Vol. 13 No. 3 (March 2003)

PORNOGRAPHY ON TRIAL by Thomas C. Mackey. Santa Barbara, California: ABC-CLIO, 2002. 333 pp. Cloth $55.00. ISBN: 1-57607-275-4.

Reviewed by Paul Weizer, Department of Social Sciences, Fitchburg State College. Email: pweizer@fsc.edu .

This book, authored by Thomas C. Mackey, Associate Professor and Chair of the History Department at the University of Louisville, is part of a series of “On Trial” books that seek to analyze how the legal and political systems have dealt with a variety of controversial issues. The idea of the series is to explore the way in which litigation has shaped the evolution of these legal controversies by intensely focusing on one issue and tracing the history and changes which have taken place through the lens of the court. Previous volumes in this series have dealt with such issues as voting rights, religion, gay rights, and racial violence.  As a source book I found this to be a very well conceived and useful work. As a brief yet comprehensive reference, this book offers much for those new to the subject matter as well as those more familiar with First Amendment law.

The book is divided into two parts. The first part is the focal point of the study, while the second part provides more than thirty edited cases related to the issue of pornography. Part One consists of four chapters. In chapter one, Mackey provides a very useful introduction on the development of pornography as a social issue and society’s responses, in varying communities, to the issue. He stresses the problem of regulating in divergent states, using Utah and California as examples.  Utah has hired a “porn czar” to act as an ombudsman for citizen complaints. California, being a much larger and more diverse community, will likely allow many of the materials which Utah chooses to ban. Given the clear differences in pornography law from one state to another, many of the disputes will be settled in courts. These legal actions frame the debate in the remainder of the book.

The next chapter is an examination of the historical background of pornography. Mackey begins with British Common Law and follows the lasting remnants of this doctrine as it relates to pornography law well into the mid-twentieth century. He focuses intensively on the standard established in REGINA v. HICKLIN in 1868. The HICKLIN test defines pornography by asking “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences” (p. 19). This standard was applied throughout the United States from the colonial period through the 1930s, including such infamous examples as the Comstock Act. The chapter ends with the discarding of the HICKLIN test in favor of a more subjective “work as a whole” test (which too would be abandoned down the road).

The third chapter begins with the incorporation doctrine, that when applied to portions of the Bill of Rights to the states, added a new dimension to pornography regulation. This review of the incorporation of the First Amendment leads nicely to modern pornography decisions, beginning with ROTH v. UNITED STATES in 1957. In this decision, Justice Brennan attempted to establish a single national standard defining what could be regulated as obscenity. However, as Mackey points out, “this goal proved elusive and perhaps naïve” (p. 51). The remainder of the chapter looks at this quest. A large number of cases are presented as examples and show the folly of the attempt to pin down what obscenity is. Perhaps the best commentary of the entire book follows the addition of contemporary community standards to the ROTH definition in MILLER v. CALIFORNIA. He discusses Brennan’s disappointment at passing the problem off to the states. Yet, in the end, the decision managed to keep the federal courts in the thicket despite the change in the focus of the standard.

This chapter concludes with a section on the problems that technology has presented to the attempts at regulating pornography. From radio and television, to the advent of cable programming, and to the internet, the bar keeps being changed. Each medium presents new and difficult challenges to the MILLER standard. For example, if we are to apply contemporary community standards to the internet, where would that community be? Clearly, there are no answers to such questions. Still, Mackey presents the challenges even if they cannot be neatly summarized by the chapter’s end.

Chapter four is a very brief summary dealing with the impact and legacy of pornography regulations. Mackey uses this chapter both to tie his themes together and to lay out the challenges that will confront the courts in the near future. He concludes with a summary of the most recent pornography case to reach the Supreme Court, addressing computer-simulated images of child pornography and the ability of Congress to find acceptable limits. The ultimate conclusion of the book is that “cases such as these provide continuing evidence of the increasing complexity of the obscenity and pornography issues confronting the judicial system and United States culture” (p. 124).

Part two of the book contains a large body of well edited court opinions. The opinions have the facts nicely summarized and the opinions are edited to be brief, while covering all of the major points. There is also a section which provides one paragraph summaries of key people, laws, and concepts related to the controversy. Having all of the major pornography cases in one volume is a very useful resource. Further, this makes the volume self-contained and thus very useful to someone new to the subject area.

Overall, I found this book fairly difficult to evaluate. I think the concept of the book is excellent. It is a perfect primer for undergraduate students asked to examine pornography law for the first time. The fact that everything is contained in one volume, from British Common Law to arguments made in the United States Supreme Court in 2001, is no small feat. Mackey pulls this off with a very readable text. That being said, there is nothing terribly new or exciting here that hasn’t been written in many other places. The analysis is fairly limited. It appears to me that Mackey is willing to allow the Court to speak for themselves in many instances where insight could have been particularly useful. For those looking for a straightforward historical overview of an important and controversial topic, this book works very well. For those looking for insight and analysis, this book may leave something to be desired.

CASE REFERENCES

MILLER v. CALIFORNIA , 413 US 15 (1973).

REGINA v. HICKLIN, LR 3 QB 360 (1868).

ROTH v. UNITED STATES , 354 US 476 (1957).

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Copyright 2003 by the author, Paul Weizer.