While the precise development of each of the three crimes is slightly different, there is a clear pattern. They are all old offences, which were of little practical importance until the late eighteenth and early nineteenth centuries. They were each given new life in response to social and political developments. They were used sporadically throughout the nineteenth century, particularly at moments of political and social unrest and (with the exception of obscenity) fell into a gradual decline. There are also clear structural similarities in the way that the crimes were defined in the modern law.
|Tom Paine's The Age of Reason:|
Seditious in 1792
Blasphemous in 1883
Obscene libel was also a crime at common law, but the modern law has its origins in the Obscene Publications Act 1857. This retained the common law definition of obscenity, but for the first time separated sexuality out as an area of special concern and gave the police new powers to seize and destroy obscene material. The test of obscenity laid down in Hicklin (1868) had two central characteristics. First, that the material should have a tendency to deprave and corrupt. This was directed at the effects on the individual, not necessarily as matter of literally depraving or causing immediate arousal, but of how the text or image as a whole could be interpreted and its longer term perverting effects. It was thus concerned with imagination and interpretation. Second, it was specifically directed at the need to protect those who might be vulnerable to such influences —whether women, children, or (in the notorious formulation) domestic servants. In this version the law has survived to the present day, with the test for obscenity even being reproduced in recent legislation criminalizing extreme pornography.
What do they have in common? The first thing is that the modern offences are directed less at the content of the beliefs than the tendency of the expression of the beliefs to undermine society. In each case it is recognized that it might be legitimate to express those beliefs - political or theological debate, or artistic expression - but that in certain circumstances, with a certain intent, that these forms of expression might be dangerous. It is the tendency of the beliefs to undermine society that is crucial, rather than their actual impact. In sedition and blasphemy the crime is concerned with the impact on society; in obscenity law it is concerned with thecorrupting impact on the individual. But in each case the structure of the offence is the same. And all are concerned with the imagination: the imagination of the vulnerable reader or listener, who may not be able to resist, as well the ability of the authorities to imagine the worst.