The Evolution of Obscenity Standards in the Common Law World
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MICHAEL P FIX
The Evolution of Obscenity Standards
in the Common Law World
MICHAEL P FIX*
Georgia State University
In much the same way plant and animal species evolve to select traits most beneficial
to their continued survival, legal standards must adapt to societal changes to maintain
relevance. Thus, to understand how the law in a particular area changes over time, it is
advantageous to view it as an evolutionary process. While this approach would be useful
in understanding the evolution of the law in any area in the common law world, obscenity
law serves as an exemplar of this. Judges (through common law) and legislators (through
statutory law) have constantly struggled to find a proper standard for defining obscenity.
Modifications and transformations of standards for defining obscenity have proliferated
since the genesis of the concept,' through the development and widespread adoption of
the Hicklin test,2 and the creation of modern approaches, many based on the concept of
community standards.
In evolutionary biology, there are four mechanisms of evolutionary change, each of
which has parallels in the development of legal standards: mutation, migration, genetic
drift, and natural selection. Mutation occurs when there is a change in the genetic material
of an offspring causing it to differ in some way from its parents. In the law, standards
mutate each time a judge makes an alteration, however small, to extant case law. As with
changes in animal species, significant change occurs primarily as a culmination of many
small changes. However, a significant mutation can occasionally facilitate major change in
a short period of time often through a landmark decision, overturning a key precedent, or
otherwise introducing a dramatic change in the law. Migration involves the movement into
one population of individuals from a different population with different characteristics.
This occurs in common law when a court in one jurisdiction borrows from decisions of
another jurisdiction. Genetic drift refers to changes that occur from one generation to
another due to purely random factors that prevent parents with one set of characteristics
* Assistant Professor, Department of Political Science, Georgia State University. The author would like to
thank Chip Carey, Benjamin Kassow, Andrew Koppelman, Amy Steigerwalt, Jacqueline Walker, and Elizabeth
Wheat for advice on earlier versions of this article. E-mail: mfix@gsu.edu.
' While specifically dealing with a breach of the peace involving indecent exposure, Manchester identifies
the case of Le Roy v Sedley, 1 Sid 168 (1663), as 'the first step on the way towards the recognition of obscene
publication as a common law offense.' Manchester, C (1991) 'A History of the Crime of Obscene Libel' (12)
Journal of Legal History 36 at 37.
2 R v Hicklin, L.R 2 Q.B. 360 (1868).
See eg Roth v United States, 354 U.S. 476 (1957); Miller v California, 413 U.S. 15 (1973); R v Brodie, [1962] S.C.R
681; R v Butler, [1992] 1 SCR 452.
JCL 11:2 75](ViewImageLocal?handle=hein.journals/jrnatila11&div=25&collection=&method=preview&ext=.png&size=3)
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The Evolution of Obscenity Standards in the Common Law World
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