Newsworthy: The Supreme Court Battle Over Privacy and Press Freedom; Laws of Image: Privacy and Publicity in America; The First Lady of Hollywood: A Biography of Louella Parsons; and, Movie Crazy: Fans, Stars, and the Cult of Celebrity. She holds a Ph.D. in history from UC Berkeley and a J.D from Stanford Law School. She is Professor of Law at the University at Buffalo and a recipient of the National Endowment for the Humanities Public Scholar award.
Barbas applied the “Page 99 Test” to The Rise and Fall of Morris Ernst and reported the following:
On page 99, rather serendipitously, we are introduced to the case that Morris Ernst regarded as the most important case of his career, with an “enduring effect on human happiness.”Learn more about The Rise and Fall of Morris Ernst, Free Speech Renegade at the University of Chicago Press website.
It was not the Ulysses case, for which Ernst is best known, or one of the constitutional matters he presented before the Supreme Court, but a case involving an innocuous sex education pamphlet for children called the Sex Side of Life. The author was Mary Ware Dennett, a feminist activist, who had written the pamphlet in 1915 when she discovered that there were no frank and accurate sex education materials for children. Much of the existing sex education material was laden with euphemisms or characterized sex as harmful and shameful.
Under the existing Comstock laws, and the broad definition of obscenity under the Victorian-era “Hicklin test,” which were used to repress all manner of art and literary material, Dennett’s pamphlet was obscene because of its purported “tendency” to “deprave and corrupt” children, the most susceptible members of society, “those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
In 1928 Dennett was criminally charged for having circulated obscene material, and she called on Ernst to defend her. Ernst, a young lawyer affiliated with the ACLU, had won a reputation for his work on behalf of progressive causes, including defending reproductive rights crusader Margaret Sanger and representing authors whose books had been banned for purported obscenity.
In court, Ernst argued that the pamphlet was accurate and scientific, and that the suppression of such material – and resulting ignorance – created far greater harm to society than its circulation. Dennett was convicted and fined, and Ernst took the case to the federal appeals court. He argued that the Hicklin definition was outdated and that obscenity must be judged according to the “mores of the time” – the more sophisticated sexual and social morals of the 1920s.
In a groundbreaking decision, the Second Circuit Court of Appeals repudiated Hicklin in the context of sex education material, declaring that such works were to be considered according to their effect on “normally constituted” individuals and that a work could not be obscene if its “dominant theme” was not to convey lascivious material. An “accurate exposition of the relevant facts of the sex side of life in decent language … cannot ordinarily be regarded as obscene,” the court stated. It was a ruling that would have far-reaching consequences. Not only did it transform the field of sex education, but it made possible Ernst’s subsequent victories in cases in which he undermined the foundations of literary censorship, including the case that removed the ban on Ulysses.
The Page 99 Test: Laws of Image.
The Page 99 Test: Newsworthy.
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--Marshal Zeringue
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