The History of Obscenity, the British Novel, and the First Amendment

Abstract

Novels of the eighteenth century often treat sexuality in highly explicit terms, by the standards even of our own time, and certainly by Victorian standards. This chapter addresses the topic of sexual explicitness, looking at the role of law in regulating artistic expression in our period. It argues that we tend today to think of a legal doctrine of obscenity as quite natural, regardless of whether we like the doctrine as it exists. However, the doctrine did not exist at all until the eighteenth century and did not have any real bite in English law until the publication of John Cleland's Memoirs of a Woman of Pleasure in 1748. The chapter traces the origins of the obscenity doctrine in English law in order to show, among other things, that it was not a meaningful part of either English or American law until well after the First Amendment to the U.S. Constitution was enacted. Looking at the nonregulation of highly explicit literature by law informs us about our legal concepts, past and present.