One of the most difficult of all freedom of speech problems has been the subject of obscenity and where to draw a line. An extensive selection of tests have been used by different justices to establish what is legally unacceptable obscenity, and for long phases of time, no particular approach controlled the support of a majority of the Court.
The First Amendment to the U.S. Constitution gives each person in the United States the right to free speech, unhampered by government intrusion. But that does not mean that government is unable to act when speech is involved. For instance, governments can place policy about when, where, and how a group can do protest march. However, the government cannot set rules about the substance of communications. But particular exceptions to that rule exist, including one for obscenity. Obscenity is called “unprotected speech.” If an act or speech or image is obscene, the government can control it, and deal with the offender.
In 1868, in the case of Regina v. Hicklin, the English courts formed a definition of unlawfully punishable obscenity. The Hicklin criterion, which American courts implemented, depended on whether
“The tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”
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