Appellee, the Attorney General of Massachusetts, brought this
civil equity action for an adjudication of obscenity of Cleland's
Memoirs of a Woman of Pleasure (Fanny Hill), and appellant
publisher intervened. Following a hearing, including expert
testimony and other evidence, assessing the book's character but
not the mode of distribution, the trial court decreed the book
obscene and not entitled to the protection of the First and
Fourteenth Amendments. The Massachusetts Supreme Judicial Court
affirmed, holding that a patently offensive book which appeals to
prurient interest need not be unqualifiedly worthless before it can
be deemed obscene.
Held: The judgment is reversed. Pp.
383 U. S.
415-433.
349 Mass. 69,
206
N.E.2d 403, reversed.
MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE
FORTAS, concluded that:
1. Under the test in
Roth v. United States,
354 U. S. 476, as
elaborated in subsequent cases, each of three elements must
independently be satisfied before a book can be held obscene: (a)
the dominant theme of the material taken as a whole appeals to a
prurient interest in sex; (b) the material is patently offensive
because it affronts contemporary community standards relating to
the description or representation of sexual matters, and (c) the
material is utterly without redeeming social value. P.
383 U. S.
418.
2. Since a book cannot be proscribed as obscene unless found to
be
utterly without redeeming social value, the Supreme
Judicial Court erroneously interpreted the federal constitutional
standard. Pp.
383 U. S.
419-420.
3. On the premise, not assessed here, that it has the requisite
prurient appeal, is patently offensive, and has only a modicum of
social importance, evidence of commercial exploitation of the book
for the sake of prurient appeal to the exclusion of all other
values
Page 383 U. S. 414
might in different proceeding justify the conclusion that the
publication and distribution of Memoirs was not constitutionally
protected.
Ginzburg v. United States, post, p.
383 U. S. 463. Pp.
383 U. S.
420-421.
MR. JUSTICE BLACK and MR. JUSTICE STEWART concur in the reversal
for the reasons given in their respective dissenting opinions in
Ginzburg v. United States, post, p.
383 U. S. 476
and p.
383 U. S. 497
and
Mishkin v. New York, post, p.
383 U. S. 515
and p.
383 U. S. 518.
P.
383 U. S.
421.
MR JUSTICE DOUGLAS concluded that:
1. Since the First Amendment forbids censorship of expression of
ideas not linked with illegal action,
Fanny Hill cannot be
proscribed. Pp.
383 U. S. 426;
383 U. S.
427-433.
2. Even under the prevailing view of the
Roth test the
book cannot be held to be obscene in view of substantial evidence
showing that it has literary, historical, and social importance. P.
383 U. S.
426.
3. Since there is no power under the First Amendment to control
mere expression, the manner in which a book that concededly has
social worth is advertised and sold is irrelevant. P.
383 U. S.
427.
4. There is no basis in history for the view expressed in
Roth that "obscene" speech is "outside" the protection of
the First Amendment. Pp.
383 U. S.
428-431.
5. No interest of society justifies overriding the guarantees of
free speech and press and establishing a regime of censorship. Pp.
383 U.S. 431-433.
MR. JUSTICE BRENNAN announced the judgment of the Court and
delivered an opinion in which THE CHIEF JUSTICE and MR. JUSTICE
FORTAS join.
Page 383 U. S. 415
This is an obscenity case in which
Memoirs of a Woman of
Pleasure (commonly known as
Fanny Hill), written by
John Cleland in about 1750, was adjudged obscene in a proceeding
that put on trial the book itself, and not its publisher or
distributor. The proceeding was a civil equity suit brought by the
Attorney General of Massachusetts, pursuant to General Laws of
Massachusetts, Chapter 272, §§ 28C-28H, to have the book declared
obscene. [
Footnote 1] Section
28C requires that the petition commencing the suit be "directed
against [the] book by name" and that an order to show cause "why
said book should not be judicially determined to be obscene" be
published in a daily newspaper and sent by registered mail "to all
persons interested ill the publication." Publication of the order
in this case occurred in a Boston daily newspaper, and a copy of
the order was sent by registered mail to G. P. Putnam's Sons,
alleged to be the publisher and copyright holder of the book.
As authorized by § 28D, G. P. Putnam's Sons intervened in the
proceedings in behalf of the book, but it did not claim the right
provided by that section to have the issue of obscenity tried by a
jury. At the hearing before a justice of the Superior Court, which
was conducted, under § 28F, "in accordance with the usual course of
proceedings in equity," the court received the book in evidence and
also, as allowed by the section, heard the testimony of experts
[
Footnote 2] and accepted other
evidence, such
Page 383 U. S. 416
as book reviews, in order to assess the literary, cultural, or
educational character of the book. This constituted the entire
evidence, as neither side availed itself of the
Page 383 U. S. 417
opportunity provided by the section to introduce evidence "as to
the manner and form of its publication, advertisement, and
distribution." [
Footnote 3] The
trial justice entered a final decree, which adjudged
Memoirs obscene and declared that the book
"is not entitled to the protection of the First and Fourteenth
Amendments to the Constitution of the United States against action
by the Attorney General or other law enforcement officer pursuant
to the provisions of . . . 28B, or otherwise. [
Footnote 4]"
The Massachusetts Supreme Judicial Court affirmed the decree.
349 Mass. 69,
206
N.E.2d 403 (1965). We noted probable jurisdiction.
382 U.
S. 900. We reverse. [
Footnote 5]
Page 383 U. S. 418
I
The term "obscene" appearing in the Massachusetts statute has
been interpreted by the Supreme Judicial Court to be as expansive
as the Constitution permits: the "statute covers all material that
is obscene in the constitutional sense."
Attorney General v.
The Book Named "Tropic of Cancer," 345 Mass. 11, 13,
184
N.E.2d 328, 330 (1962). Indeed, the final decree before us
equates the finding that
Memoirs is obscene within the
meaning of the statute with the declaration that the book is not
entitled to the protection of the First Amendment. [
Footnote 6] Thus, the sole question before
the state courts was whether
Memoirs satisfies the test of
obscenity established in
Roth v. United States,
354 U. S. 476.
We defined obscenity in
Roth in the following
terms:
"[W]hether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a
whole appeals to prurient interest."
354 U.S. at
354 U. S. 489.
Under this definition, as elaborated in subsequent cases, three
elements must coalesce: it must be established that (a) the
dominant theme of the material taken as a whole appeals to a
prurient interest in sex; (b) the material is patently offensive
because it affronts contemporary community standards relating to
the description or representation of sexual matters, and (c) the
material is utterly without redeeming social value.
The Supreme Judicial Court purported to apply the
Roth
definition of obscenity and held all three criteria satisfied. We
need not consider the claim that the court erred in concluding that
Memoirs satisfied the prurient
Page 383 U. S. 419
appeal and patent offensiveness criteria; for reversal is
required because the court misinterpreted the social value
criterion. The court applied the criterion in this passage:
"It remains to consider whether the book can be said to be
'utterly without social importance.' We are mindful that there was
expert testimony, much of which was strained, to the effect that
Memoirs is a structural novel with literary merit; that
the book displays a skill in characterization and a gift for
comedy; that it plays a part in the history of the development of
the English novel, and that it contains a moral, namely, that sex
with love is superior to sex in a brothel. But the fact that the
testimony may indicate this book has some minimal literary value
does not mean it is of any social importance. We do not interpret
the 'social importance' test as requiring that a book which appeals
to prurient interest and is patently offensive must be
unqualifiedly worthless before it can be deemed obscene."
349 Mass. at 73, 206 N.E.2d at 406. The Supreme Judicial Court
erred in holding that a book need not be "unqualifiedly worthless
before it can be deemed obscene. " A book cannot be proscribed
unless it is found to be
utterly without redeeming social
value. This is so even though the book is found to possess the
requisite prurient appeal and to be patently offensive. Each of the
three federal constitutional criteria is to be applied
independently; the social value of the book can neither be weighed
against nor canceled by its prurient appeal or patent
offensiveness. [
Footnote 7]
Hence,
Page 383 U. S. 420
even on the view of the court below that
Memoirs
possessed only a modicum of social value, its judgment must be
reversed as being founded on an erroneous interpretation of a
federal constitutional standard.
II
It does not necessarily follow from this reversal that a
determination that
Memoirs is obscene in the
constitutional sense would be improper under all circumstances. On
the premise, which we have no occasion to assess, that
Memoirs has the requisite prurient appeal and is patently
offensive, but has only a minimum of social value, the
circumstances of production, sale, and publicity are relevant in
determining whether or not the publication or distribution of the
book is constitutionally protected. Evidence that the book was
commercially exploited for the sake of prurient appeal, to the
exclusion of all other values, might justify the conclusion that
the book was utterly without redeeming social importance. It is not
that, in such a setting the social value test is relaxed so as to
dispense with the requirement that a book be
utterly
devoid of social value, but rather that, as we elaborate in
Ginzburg v. United States, post, pp.
383 U. S.
470-473, where the purveyor's sole emphasis is on the
sexually provocative aspects of his publications, a court could
accept his evaluation at its face value. In this proceeding,
however, the courts were asked to judge the obscenity of
Memoirs in the abstract, and the declaration of obscenity
was neither aided nor limited by a specific set of circumstances of
production, sale, and publicity. [
Footnote 8]
Page 383 U. S. 421
All possible uses of the book must therefore be considered, and
the mere risk that the book might be exploited by panderers because
it so pervasively treats sexual matters cannot alter the fact --
given the view of the Massachusetts court attributing to
Memoirs a modicum of literary and historical value -- that
the book will have redeeming social importance in the hands of
those who publish or distribute it on the basis of that value.
Reversed.
MR. JUSTICE BLACK and MR. JUSTICE STEWART concur in the reversal
for the reasons stated in their respective dissenting opinions in
Ginzburg v. United States, post, p.
383 U. S. 476
and p.
383 U. S. 497
and
Mishkin v. New York, post, p.
383 U. S. 515
and p.
383 U. S.
518.
|
383
U.S. 413app|
APPENDIX TO OPINION OF
MR. JUSTICE BRENNAN
STATE STATUTE
MASSACHUSETTS GENERAL LAWS, CHAPTER 272
SECTION 28B. Whoever imports, prints, publishes, sells, loans or
distributes, or buys, procures, receives, or
Page 383 U. S. 422
has in his possession for the purpose of sale, loan or
distribution, a book, knowing it to be obscene, indecent or impure,
or whoever, being a wholesale distributor, a jobber, or publisher
sends or delivers to a retail storekeeper a book, pamphlet,
magazine or other form of printed or written material, knowing it
to be obscene, indecent or impure, which said storekeeper had not
previously ordered in writing, specifying the title and quantity of
such publication he desired, shall be punished by imprisonment in
the state prison for not more than five years or in a jail or house
of correction for not more than two and one half years, or by a
fine of not less than one hundred dollars nor more than five
thousand dollars, or by both such fine and imprisonment in jail or
the house of correction.
SECTION 28C. Whenever there is reasonable cause to believe that
a book which is being imported, sold, loaned or distributed, or is
in the possession of any person who intends to import sell, loan or
distribute the same, is obscene, indecent or impure, the attorney
general, or any district attorney within his district, shall bring
an information or petition in equity in the superior court directed
against said book by name. Upon the filing of such information or
petition in equity, a justice of the superior court shall, if, upon
a summary examination of the book, he is of opinion that there is
reasonable cause to believe that such book is obscene, indecent or
impure, issue an order of notice, returnable in or within thirty
days, directed against such book by name and addressed to all
persons interested in the publication, sale, loan or distribution
thereof, to show cause why said book should not be judicially
determined to be obscene, indecent or impure. Notice of such order
shall be given by publication once each week for two successive
weeks in a daily newspaper published in the city of Boston and, if
such information or petition be filed in any county other than
Page 383 U. S. 423
Suffolk county, then by publication also in a daily newspaper
published in such other county. A copy of such order of notice
shall be sent by registered mail to the publisher of said book, to
the person holding the copyrights, and to the author, in case the
names of any such persons appear upon said book, fourteen days at
least before the return day of such order of notice. After the
issuance of an order of notice under the provisions of this
section, the court shall, on motion of the attorney general or
district attorney, make an interlocutory finding and adjudication
that said book is obscene, indecent or impure, which finding and
adjudication shall be of the same force and effect as the final
finding and adjudication provided in section twenty-eight E or
section twenty-eight F, but only until such final finding and
adjudication is made or until further order of the court.
SECTION 28D. Any person interested in the sale, loan or
distribution of said book may appear and file an answer on or
before the return day named in said notice or within such further
time as the court may allow, and may claim a right to trial by jury
on the issue whether said book is obscene, indecent or impure.
SECTION 28E. If no person appears and answers within the time
allowed, the court may at once upon motion of the petitioner, or of
its own motion, no reason to the contrary appearing, order a
general default and if the court finds that the book is obscene,
indecent or impure, may make an adjudication against the book that
the same is obscene, indecent and impure.
SECTION 28F. If an appearance is entered and answer filed, the
case shall be set down for speedy hearing, but a default and order
shall first be entered against all persons who have not appeared
and answered, in the manner provided in section twenty-eight E.
Such hearing shall be conducted in accordance with the usual course
of proceedings in equity including all rights of exception and
Page 383 U. S. 424
appeal. At such hearing the court may receive the testimony of
experts and may receive evidence as to the literary, cultural or
educational character of said book and as to the manner and form of
its publication, advertisement, and distribution. Upon such
hearing, the court may make an adjudication in the manner provided
in said section twenty-eight E.
SECTION 28G. An information or petition in equity under the
provisions of section twenty-eight C shall not be open to objection
on the ground that a mere judgment, order or decree is sought
thereby and that no relief is or could be claimed thereunder on the
issue of the defendant's knowledge as to the obscenity, indecency
or impurity of the book.
SECTION 28H. In any trial under section twenty-eight B on an
indictment found or a complaint made for any offence committed
after the filing of a proceeding under section twenty-eight C, the
fact of such filing and the action of the court or jury thereon, if
any, shall be admissible in evidence. If prior to the said offence
a final decree had been entered against the book, the defendant, if
the book be obscene, indecent or impure, shall be conclusively
presumed to have known said book to be obscene, indecent or impure,
or if said decree had been in favor of the book he shall be
conclusively presumed not to have known said book to be obscene,
indecent or impure, or if no final decree had been entered but a
proceeding had been filed prior to said offence, the defendant
shall be conclusively presumed to have had knowledge of the
contents of said book.
[
Footnote 1]
The text of the statute appears in the
383
U.S. 413app|>Appendix.
[
Footnote 2]
In dissenting from the Supreme Judicial Court's disposition in
this case, 349 Mass. 69, 775,
206
N.E.2d 403, 406-407 (1965), Justice Whittemore summarized this
testimony:
"In the view of one or another or all of the following
viz., the chairman of the English department at Williams
College, a professor of English at Harvard College, an associate
professor of English literature at Boston University, an associate
professor of English at Massachusetts Institute of Technology, and
an assistant professor of English and American literature at
Brandeis University, the book is a minor 'work of art' having
'literary merit' and 'historical value' and containing a good deal
of 'deliberate, calculated comedy.' It is a piece of 'social
history of interest to anyone who is interested in fiction as a way
of understanding society in the past.'[1] A saving grace is that,
although many scenes, if translated"
" 1. One of the witnesses testified in part as follows: "Cleland
is part of what I should call this cultural battle that is going on
in the 18th century, a battle between a restricted Puritan,
moralistic ethic that attempts to suppress freedom of the spirit,
freedom of the flesh, and this element is competing with a freer
attitude towards life, a more generous attitude towards life, a
more wholesome attitude towards life, and this very attitude that
is manifested in Fielding's great novel
Tom Jones' is also
evident in Cleland's novel. . . . [Richardson's] `Pamela' is the
story of a young country girl; [his] `Clarissa' is the story of a
woman trapped in a house of prostitution. Obviously, then Cleland
takes both these themes, the country girl, her initiation into life
and into experience, and the story of a woman in a house of
prostitution, and what he simply does is to take the situation and
reverse the moral standards. Richardson believed that chastity was
the most important thing in the world; Cleland and Fielding
obviously did not, and thought there were more important
significant moral values.""
"into the present day language of 'the realistic, naturalistic
novel, could be quite offensive' these scenes are not described in
such language. The book contains no dirty words and its language
'functions . . . to create a distance, even when the sexual
experiences are portrayed.' The response, therefore, is a literary
response. The descriptions of depravity are not obscene because
'they are subordinate to an interest which is primarily literary;'
Fanny's reaction to the scenes of depravity was 'anger,' 'disgust,
horror, [and] indignation.' The book 'belongs to the history of
English literature, rather than the history of smut.'"
" 2. In the opinion of the other academic witness, the
headmaster of a private school, whose field is English literature,
the book is without literary merit and is obscene, impure, hard
core pornography, and is patently offensive."
[
Footnote 3]
The record in this case is thus significantly different from the
records in
Ginzburg v. United States, post, p.
383 U. S. 463, and
Mishkin v. New York, post, p.
383 U. S. 502.
See pp
383 U. S.
420-421,
infra.
[
Footnote 4]
Section 28B makes it a criminal offense,
inter alia, to
import, print, publish, sell, loan, distribute, buy, procure,
receive, or possess for the purpose of sale, loan, or distribution,
"a book, knowing it to be obscene." Section 28H provides that, in
any prosecution under § 2813, the decree obtained in a proceeding
against the book "shall be admissible in evidence," and further
that,
"[i]f prior to the said offence a final decree had been entered
against the book, the defendant, if the book be obscene . . . shall
be conclusively presumed to have known said book to he obscene. . .
."
Thus a declaration of obscenity such as that obtained in this
proceeding is likely to result in the total suppression of the book
in the Commonwealth.
The constitutionality of § 28H has not been challenged in this
appeal.
[
Footnote 5]
Although the final decree provides no coercive relief, but only
a declaration of the hook's obscenity, our adjudication of the
merits of the issue tendered,
viz., whether the state
courts erred in declaring the book obscene, is not premature. There
is no uncertainty as to the content of the material challenged, and
the Attorney General's petition commencing this suit states that
the book "is being imported, sold, loaned, or distributed in the
Commonwealth." The declaration of obscenity is likely to have a
serious inhibitory effect on the distribution of the book, and this
probable impact is to no small measure derived from possible
collateral uses of the declaration in subsequent prosecutions under
the Massachusetts criminal obscenity statute.
See n 4,
supra.
[
Footnote 6]
We infer from the opinions below that the other adjectives
describing the proscribed books in §§ 28C-28H, "indecent" and
"impure," have either been read out of the statute or deemed
synonymous with "obscene."
[
Footnote 7]
"[M]aterial dealing with sex in a manner that advocates ideas, .
. . or that has literary or scientific or artistic value or any
other form of social importance, may not be branded as obscenity
and denied the constitutional protection. Nor may the
constitutional status of the material be made to turn on a
'weighing' of its social importance against its prurient appeal,
for a work cannot be proscribed unless it is 'utterly' without
social importance.
See Zeitlin v.
Arnebergh, 59 Cal. 2d
901, 920, 383 P.2d 152, 165, 31 Cal. Rptr. 800, 813
(1963)."
Jacobellis v. Ohio, 378 U. S. 184,
378 U. S. 191
(opinion of BRENNAN, J.). Followed in,
e.g., People v.
Bruce, 31 Ill. 2d
459, 461,
202 N.E.2d
497,
498 (1964);
Trans-Lux Distributing Corp. v. Maryland Bd. of Censors,
240 Md. 98, 104-105, 213 A.2d 235, 238-239 (1965).
[
Footnote 8]
In his dissenting opinion, 349 Mass. at 76-78, 206 N.E.2d at
408-409, Justice Cutter stated that, although in his view the book
was not "obscene" within the meaning of Roth, "it could reasonably
be found that distribution of the book to persons under the age of
eighteen would be a violation of G. L. c. 272, § 28, as tending to
corrupt the morals of youth." (Section 28 makes it a crime to sell
to "a person under the age of eighteen years a book . . . which is
obscene . . . or manifestly tends to corrupt the morals of youth.")
He concluded that the court should
"limit the relief granted to a declaration that distribution of
this book to persons under the age of eighteen may be found to
constitute a violation of [G. L.] c. 272, § 28, if that section is
reasonably applied. . . ."
However, the decree was not so limited and we intimate no view
concerning the constitutionality of such a limited declaration
regarding
Memoirs. Cf. Jacobellis v. Ohio, 378
U.S. at
378 U. S.
195.
MR. JUSTICE DOUGLAS, concurring in the judgment.
Memoirs of a Woman of Pleasure, or, as it is often
titled,
Fanny Hill, concededly is an erotic novel. It was
first published in about 1749, and has endured to this
Page 383 U. S. 425
date, despite periodic efforts to suppress it. [
Footnote 2/1] The book relates the adventures of a
young girl who becomes a prostitute in London. At the end, she
abandons that life and marries her first lover, observing:
"Thus, at length, I got snug into port, where, in the bosom of
virtue, I gather'd the only uncorrupt sweets: where, looking back
on the course of vice I had run, and comparing its infamous
blandishments with the infinitely superior joys of innocence, I
could not help pitying, even in point of taste, those who, immers'd
in gross sensuality, are insensible to the so delicate charms of
VIRTUE, than which even PLEASURE has not a greater friend, nor than
VICE a greater enemy. Thus, temperance makes men lords over those
pleasures that intemperance enslaves them to: the one, parent of
health, vigour, fertility, cheerfulness, and every other desirable
good of life; the other, of diseases, debility, barrenness,
self-loathing, with only every evil incident to human nature."
". . . The paths of Vice are sometimes strew'd with roses, but
then they are forever infamous for many a thorn, for many a
cankerworm: those of Virtue are strew'd with roses purely, and
those eternally unfading ones. [
Footnote 2/2]"
In 1963, an American publishing house undertook the publication
of
Memoirs. The record indicates that an unusually large
number of orders were placed by universities and libraries; the
Library of Congress requested the
Page 383 U. S. 426
right to translate the book into Braille. But the Commonwealth
of Massachusetts instituted the suit that ultimately found its way
here, praying that the book be declared obscene so that the
citizens of Massachusetts might be spared the necessity of
determining for themselves whether or not to read it.
The courts of Massachusetts found the book "obscene" and upheld
its suppression. This Court reverses, the prevailing opinion having
seized upon language in the opinion of the Massachusetts Supreme
Judicial Court in which it is candidly admitted that
Fanny
Hill has at least "some minimal literary value." I do not
believe that the Court should decide this case on so disingenuous a
basis as this. I base my vote to reverse on my view that the First
Amendment does not permit the censorship of expression not brigaded
with illegal action. But even applying the prevailing view of the
Roth test, reversal is compelled by this record, which
makes clear that
Fanny Hill is not "obscene." The
prosecution made virtually no effort to prove that this book is
"utterly without redeeming social importance." The defense, on the
other hand, introduced considerable and impressive testimony to the
effect that this was a work of literary, historical, and social
importance. [
Footnote 2/3]
Page 383 U. S. 427
We are judges, not literary experts or historians or
philosophers. We are not competent to render an independent
judgment as to the worth of this or any other book, except in our
capacity as private citizens. I would pair my Brother CLARK on
Fanny Hill with the Universalist minister I quote in the
383
U.S. 413app2|>Appendix. If there is to be censorship, the
wisdom of experts on such matters as literary merit and historical
significance must be evaluated. On this record, the Court has no
choice but to reverse the judgment of the Massachusetts Supreme
Judicial Court, irrespective of whether we would include
Fanny
Hill in our own libraries.
Four of the seven Justices of the Massachusetts Supreme Judicial
Court conclude that
Fanny Hill is obscene. 349 Mass. 69,
206
N.E.2d 403. Four of the seven judges of the New York Court of
Appeals conclude that it is not obscene.
Larkin v. Putnam's
Sons, 14 N.Y.2d 399, 200 N.E.2d 760. To outlaw the book on
such a voting record would be to let majorities rule where
minorities were thought to be supreme. The Constitution forbids
abridgment of "freedom of speech, or of the press." Censorship is
the most notorious form of abridgment. It substitutes majority rule
where minority tastes or viewpoints were to be tolerated.
It is to me inexplicable how a book that concededly has social
worth can nonetheless be banned because of the manner in which it
is advertised and sold. However florid its cover, whatever the
pitch of its advertisements, the contents remain the same.
Every time an obscenity case is to be argued here, my office is
flooded with letters and postal cards urging me
Page 383 U. S. 428
to protect the community or the Nation by striking down the
publication. The messages are often identical even down to commas
and semicolons. The inference is irresistible that they were all
copied from a school or church blackboard. Dozens of postal cards
often are mailed from the same precinct. The drives are incessant,
and the pressures are great. Happily, we do not bow to them. I
mention them only to emphasize the lack of popular understanding of
our constitutional system. Publications and utterances were made
immune from majoritarian control by the First Amendment, applicable
to the States by reason of the Fourteenth. No exceptions were made,
not even for obscenity. The Court's contrary conclusion in
Roth, where obscenity was found to be "outside" the First
Amendment, is without justification.
The extent to which the publication of "obscenity" was a crime
at common law is unclear. It is generally agreed that the first
reported case involving obscene conduct is
The King v. Sir
Charles Sedley. [
Footnote 2/4]
Publication of obscene literature, at first thought to be the
exclusive concern of the ecclesiastical courts. [
Footnote 2/5] was not held to constitute an
indictable offense until 1727. [
Footnote 2/6] A later case involved the publication of
an "obscene and
Page 383 U. S. 429
impious libel" (a bawdy parody of Pope's "Essay on Man") by a
member of the House of Commons. [
Footnote 2/7] On the basis of these few cases, one
cannot say that the common law doctrines with regard to publication
of obscenity were anything but uncertain.
"There is no definition of the term. There is no basis of
identification. There is no unity in describing what is obscene
literature, or in prosecuting it. There is little more than the
ability to smell it."
Alpert, Judicial Censorship of Obscene Literature, 52
Harv.L.Rev. 40, 47 (1938).
But even if the common law had been more fully developed at the
time of the adoption of the First Amendment, we would not be
justified in assuming that the Amendment left the common law
unscathed. In
Bridges v. California, 314 U.
S. 252,
314 U. S. 264,
we said:
"[T]o assume that English common law in this field became ours
is to deny the generally accepted historical belief that 'one of
the objects of the Revolution was to get rid of the English common
law on liberty of speech and of the press.'"
Schofield, Freedom of the Press in the United States, 9
Publications Amer.Sociol.Soc., 67, 76.
"More specifically, it is to forget the environment in which the
First Amendment was ratified. In presenting the proposals which
were later embodied in the Bill of Rights, James Madison, the
leader in the preparation of the First Amendment, said:"
"Although I know whenever the great rights, the trial by jury,
freedom of the press, or liberty of conscience, come in question in
that body [Parliament],
Page 383 U. S. 430
the invasion of them is resisted by able advocates, yet their
Magna Charta does not contain any one provision for the security of
those rights, respecting which the people of America are most
alarmed. The freedom of the press and rights of conscience, those
choicest privileges of the people, are unguarded in the British
Constitution."
And see Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S.
248-249.
It is true, as the Court observed in
Roth, that
obscenity laws appeared on the books of a handful of States at the
time the First Amendment was adopted. [
Footnote 2/8] But the First Amendment was, until the
adoption of the Fourteenth, a restraint only upon federal power.
Moreover, there is an absence of any federal cases or laws relative
to obscenity in the period immediately after the adoption of the
First Amendment. Congress passed no legislation relating to
obscenity until the middle of the nineteenth century. [
Footnote 2/9] Neither reason nor history
warrants exclusion of any particular class of expression from the
protection of the First Amendment on nothing more than a judgment
that it is utterly without merit. We faced the difficult questions
the First Amendment poses with regard to libel in
New York
Times v. Sullivan,
Page 383 U. S. 431
376 U. S. 254,
376 U. S. 269,
where we recognized that "libel can claim no talismanic immunity
from constitutional limitations." We ought not to permit
fictionalized assertions of constitutional history to obscure those
questions here. Were the Court to undertake that inquiry, it would
be unable, in my opinion, to escape the conclusion that no interest
of society with regard to suppression of "obscene" literature could
override the First Amendment to justify censorship.
The censor is always quick to justify his function in terms that
are protective of society. But the First Amendment, written in
terms that are absolute, deprives the States of any power to pass
on the value, the propriety, or the morality of a particular
expression.
Cf. Kingsley Int'l Pictures Corp. v. Regents,
360 U. S. 684,
360 U. S.
688-689;
Joseph Burstyn, Inc. v. Wilson,
343 U. S. 495.
Perhaps the most frequently assigned justification for censorship
is the belief that erotica produce antisocial sexual conduct. But
that relationship has yet to be proven. [
Footnote 2/10] Indeed, if one were to make judgments on
the
Page 383 U. S. 432
basis of speculation, one might guess that literature of the
most pornographic sort would, in many cases, provide a substitute
-- not a stimulus -- for antisocial sexual conduct.
See
Murphy, The Value of Pornography, 10 Wayne L.Rev. 655, 661 and n.19
(1964). As I read the First Amendment, judges cannot gear the
literary diet of an entire nation to whatever tepid stuff is
incapable of triggering the most demented mind. The First Amendment
demands more than a horrible example or two of the perpetrator of a
crime of sexual violence, in whose pocket is found a pornographic
book, before it allows the Nation to be saddled with a regime of
censorship. [
Footnote 2/11]
Page 383 U. S. 433
Whatever may be the reach of the power to regulate
conduct, I stand by my view in
Roth v. United States,
supra, that the First Amendment leaves no power in government
over
expression of ideas.
|
383
U.S. 413app2|
APPENDIX TO OPINION OF
MR. JUSTICE DOUGLAS, CONCURRING
DR. PEALE AND FANNY HILL
An Address by
Rev. John R. Graham, First Universalist Church of
Denver
December 1965.
* * * *
At the present point in the twentieth century, it seems to me
that there are two books which symbolize the human quest for what
is moral.
Sin, Sex and Self-Control by Dr. Norman Vincent
Peale, the well known clergyman of New York City, portrays the
struggle of contemporary middle-class society to arrive at a means
of stabilizing behavior patterns. At the same time, there is a
disturbing book being sold in the same stores with Dr. Peale's
volume. It is a seventeenth century English novel by John Cleland,
and it is known as
Fanny Hill: The Memoirs of a Woman of
Pleasure.
Quickly, it must be admitted that it appears that the two books
have very little in common. One was written in a day of scientific
and technological sophistication, while the other is over two
hundred years old. One is acclaimed in the pulpit, while the other
is protested before the United States Supreme Court.
Sin, Sex
and Self-Control is authored by a Christian pastor, while
Page 383 U. S. 434
Fanny Hill represents thoughts and experiences of a
common prostitute. As far as the general public seems to be
concerned, one is moral and the other is hopelessly immoral. While
Dr. Peale is attempting to redeem the society, most people believe
that
Fanny Hill can only serve as another instance in an
overall trend toward an immoral social order. Most parents would be
pleased to find their children reading a book by Dr. Peale, but I
am afraid that the same parents would be sorely distressed to
discover a copy of
Fanny Hill among the school books of
their offspring.
Although one would not expect to find very many similarities
between the thoughts of a pastor and those of a prostitute, the
subject matter of the two books is, in many ways, strangely
similar. While the contents are radically different, the concerns
are the same. Both authors deal with human experience. They are
concerned with people and what happens to them in the world in
which they live each day. But most significantly of all, both books
deal with the age-old question of "What is moral?" I readily admit
that this concern with the moral is more obvious in Dr. Peale's
book than it is in the one by John Cleland. The search for the
moral in
Fanny Hill is clothed in erotic passages which
seem to equate morality with debauchery as far as the general
public is concerned. At the same time, Dr. Peale's book is
punctuated with such noble terms as "truth," "love," and
"honesty."
These two books are not very important in themselves. They may
or may not be great literature. Whether they will survive through
the centuries to come is a question, although John Cleland has an
historical edge on Norman Vincent Peale. However, in a symbolic
way, they do represent the struggle of the moral quest, and for
this reason they are important.
Page 383 U. S. 435
Dr. Peale begins his book with an analysis of contemporary
society in terms of the moral disorder which is more than obvious
today. He readily admits that the traditional Judeo-Christian
standards of conduct and behavior no longer serve as strong and
forceful guides. He writes:
"For more than forty years, ever since my ordination, I had been
preaching that, if a person would surrender to Jesus Christ and
adopt strong affirmative attitudes toward life, he would be able to
live abundantly and triumphantly. I was still absolutely convinced
that this was true. But I was also bleakly aware that the whole
trend in the seventh decade of the twentieth century seemed to be
away from the principles and practices of religion -- not toward
them."
(Page 1)
Dr. Peale then reflects on the various changes that have taken
place in our day and suggests that, although he is less than
enthusiastic about the loss of allegiance to religion, he is,
nevertheless, willing to recognize that one cannot live by
illusion.
After much struggle, Dr. Peale then says that he was able to
develop a new perspective on the current moral dilemma of our
times. What first appeared to be disaster was really opportunity.
Such an idea, coming from him, should not be very surprising, since
he is more or less devoted to the concept of "positive thinking!"
He concludes that our society should welcome the fact that the old
external authorities have fallen. He does not believe that
individuals should ever be coerced into certain patterns of
behavior.
According to Dr. Peale, we live in a day of challenge. Our
society has longed for a time when individuals would be disciplined
by self control, rather than being motivated by external
compunction. Bravely and forthrightly,
Page 383 U. S. 436
he announces that the time has now come when self-control can
and must replace external authority. He is quick to add that the
values contained in the Judeo-Christian tradition and "the American
way of life" must never be abandoned, for they emanate from the
wellsprings of "Truth." What has previously been only an external
force must now be internalized by individuals.
In many ways, Dr. Peale's analysis of the social situation and
the solution he offers for assisting the individual to stand
against the pressures of the times, come very close to the views of
Sigmund Freud. He felt that society could and would corrupt the
individual and, as a result, the only sure defense was a strong
super-ego or conscience. This is precisely what Dr. Peale
recommends.
Interestingly enough, John Cleland, in
Fanny Hill, is
concerned with the same issues. Although the question of moral
behavior is presented more subtly in his book, the problem with
which he deals is identical. There are those who contend that the
book is wholly without redeeming social importance. They feel that
it appeals only to prurient interests.
I firmly believe that
Fanny Hill is a moral, rather
than an immoral, piece of literature. In fact, I will go as far as
to suggest that it represents a more significant view of morality
than is represented by Dr. Peale's book
Sin, Sex and
Self-Control. As is Dr. Peale, Cleland is concerned with the
nature of the society and the relationship of the individual to it.
Fanny Hill appears to me to be an allegory. In the story,
the immoral becomes the moral and the unethical emerges as the
ethical. Nothing is more distressing than to discover that what is
commonly considered to be evil may, in reality, demonstrate
characteristics of love and concern.
There is real irony in the fact that Fanny Hill, a rather naive
young girl who becomes a prostitute, finds warmth,
Page 383 U. S. 437
understanding and the meaning of love and faithfulness amid
surroundings and situations which the society, as a whole, condemns
as debased and depraved. The world outside the brothel affirms its
faith in the dignity of man, but people are often treated as
worthless and unimportant creatures. However, within the world of
prostitution, Fanny Hill finds friendship, understanding, respect,
and is treated as a person of value. When her absent lover returns,
she is not a lost girl of the gutter. One perceives that she is a
whole and healthy person who has discovered the ability to love and
be loved in a brothel.
I think Cleland is suggesting that one must be cautious about
what is condemned and what is held in honor. From Dr. Peale's
viewpoint, the story of Fanny Hill is a tragedy because she did not
demonstrate self-control. She refused to internalize the values
inherent in the Judeo-Christian tradition and the catalog of sexual
scenes in the book, fifty-two in all, are a symbol of the debased
individual and the society in which he lives.
Dr. Peale and others, would be correct in saying that Fanny Hill
did not demonstrate self-control. She did, however, come to
appreciate the value of self-expression. At no time were her
"clients" looked upon as a means to an end. She tried and did
understand them, and she was concerned about them as persons. When
her lover, Charles, returned, she was not filled with guilt and
remorse. She accepted herself as she was, and was able to offer him
her love and devotion.
I have a feeling that many people fear the book
Fanny
Hill not because of its sexual scenes, but because the author
raises serious question with the issue of what is moral and what is
immoral. He takes exception to the idea that repression and
restraint create moral individuals. He develops the thought that
self-expression is more human than self-control. And he dares to
suggest that, in a situation which society calls immoral and
Page 383 U. S. 438
debased, a genuine love and respect for life and for people, as
human beings, can develop. Far from glorifying vice, John Cleland
points an accusing finger at the individual who is so certain as to
what it means to be a moral man.
There are those who will quickly say that this "message" will be
missed by the average person who reads
Fanny Hill. But
this is precisely the point. We become so accustomed to prejudging
what is ethical and what is immoral that we are unable to recognize
that what we accept as good may be nothing less than evil because
it harms people.
I know of no book which more beautifully describes meaningful
relationships between a man and a woman than does
Fanny
Hill. In many marriages, men use a woman for sexual
gratification and otherwise, as well as vice versa. But this is not
the case in the story of
Fanny Hill. The point is simply
that there are many, many ways in which we hurt, injure and degrade
people that are far worse than either being or visiting a
prostitute. We do this all in the name of morality.
At the same time that Dr. Peale is concerned with sick people,
John Cleland attempts to describe healthy ones.
Fanny Hill
is a more modern and certainly more valuable book than Sin, Sex and
Self-Control because the author does not tell us how to behave, but
attempts to help us understand ourselves and the nature of love and
understanding in being related to other persons. Dr. Peale's
writing emphasizes the most useful commodities available to man --
self-centeredness and self-control. John Cleland suggests that
self-understanding and self-expression may not be as popular, but
they are more humane.
The "Peale approach" to life breeds contentment, for it suggests
that each one of us can be certain as to what is good and true.
Standards for thinking and behavior are available and all we need
to do is appropriate them
Page 383 U. S. 439
for our use. In a day when life is marked by chaos and
confusion, this viewpoint offers much in the way of comfort and
satisfaction. There is only one trouble with it, however, and that
is that it results in conformity, rigid behavior, and a lack of
understanding. It results in personality configurations that are
marked with an intense interest in propositions about Truth and
Right but, at the same time, build a wall against people. Such an
attitude creates certainty, but there is little warmth. The idea
develops that there are "my kind of people" and they are "right."
It forces us to degrade, dismiss and ultimately attempt to destroy
anyone who does not agree with us.
To be alive and sensitive to life means that we have to choose
what we want. There is no possible way for a person to be a slave
and free at the same time. Self-control and self-expression are at
opposite ends of the continuum. As much as some persons would like
to have both, it is necessary to make a choice, since restraint and
openness are contradictory qualities. To internalize external
values denies the possibility of self-expression. We must decide
what we want, when it comes to conformity and creativity. If we
want people to behave in a structured and predictable manner, then
the ideal of creativity cannot have meaning.
* * * *
Long ago Plato said, "What is honored in a country will be
cultivated there." More and more, we reward people for thinking
alike and as a result, we become frightened, beyond belief, of
those who take exception to the current consensus. If our society
collapses, it will not be because people read a book such as
Fanny Hill. It will fall because we will have refused to
understand it. Decadence, in a nation or an individual, arises not
because there is a lack of ability to distinguish between morality
and immorality, but because the opportunity
Page 383 U. S. 440
for self-expression has been so controlled or strangled that the
society or the person becomes a robot.
The issue which a Dr. Peale will never understand, because he is
a victim of it himself, and which John Cleland describes with
brilliant clarity and sensitive persuasion, is that, until we learn
to respect ourselves enough that we leave each other alone, we
cannot discover the meaning of morality.
Dr. Peale and
Fanny Hill offer the two basic choices
open to man. Man is free to choose an autocentric existence which
is marked by freedom from ambiguity and responsibility.
Autocentricity presupposes a "closed world" where life is
predetermined and animal-like. In contrast to this view, there is
the allocentric outlook, which is marked by an "open encounter of
the total person with the world." Growth, spontaneity and
expression are the goals of such an existence.
Dr. Peale epitomizes the autocentric approach. He offers "warm
blankets" and comfortable "cocoons" for those who want to lose
their humanity. On the other hand,
Fanny Hill represents
the allocentric viewpoint which posits the possibility for man to
raise his sights, stretch his imagination, cultivate his
sensitiveness as well as deepen and broaden his perspectives. In
discussing the autocentric idea, Floyd W. Matson writes,
"Human beings conditioned to apathy and affluence may well
prefer this regressive path of least resistance, with its promise
of escape from freedom and an end to striving. But we know at least
that it is open to them to choose otherwise: in a word, to choose
themselves."
(
The Broken Image, page 193.)
In a day when people are overly sensitive in drawing lines
between the good and the bad, the right and the wrong, as well as
the true and the false, it seems to me
Page 383 U. S. 441
that there is great irony in the availability of a book such as
Fanny Hill. Prostitution may be the oldest profession in
the world, but we are ever faced with a question which is becoming
more and more disturbing: "What does a prostitute look like?"
[
Footnote 2/1]
Memoirs was the subject of what is generally regarded
as the first recorded suppression of a literary work in this
country on grounds of obscenity.
See Commonwealth v.
Holmes, 17 Mass. 336 (1821). The edition there condemned
differed from the present volume in that it contained apparently
erotic illustrations.
[
Footnote 2/2]
Memoirs, at 213-214 (Putnam ed.1963).
[
Footnote 2/3]
The defense drew its witnesses from the various colleges located
within the Commonwealth of Massachusetts. These included: Fred
Holly Stocking, Professor of English and Chairman of the English
Department, Williams College; Tohn M. Bullitt, Professor of English
and Master of Quincy House, Harvard College; Robert H. Sproat,
Associate Professor of English Literature, Boston University;
Norman N. Holland, Associate Professor of English, Massachusetts
Institute of Technology, and Ira Konigsberg, Assistant Professor of
English and American Literature, Brandeis University.
In addition, the defense introduced into evidence reviews of
impartial literary critics. These are, in my opinion, of particular
significance, since their publication indicates that the book is of
sufficient significance as to warrant serious critical comment. The
reviews were by U.S. Pritchett, New York Review of Books, p. 1
(Oct. 31, 1963); Brigid Brophy, New Statesman, p. 710 (Nov. 15
1963), and J. Donald Adams, New York Times Book Review, p 2 (July
28, 1963). And the
383
U.S. 413app2|>Appendix to this opinion contains another
contemporary view.
[
Footnote 2/4]
There are two reports of the case. The first is captioned
Le
Roy v. Sr. Charles Sidney, 1 Sid. 168, pl. 29 (K.B. 1663); the
second is titled
Sir Charles Sydlyes Case, 1 Keble 620
(K.B. 1663). Sir Charles had made a public appearance on a London
balcony while nude, intoxicated, and talkative. He delivered a
lengthy speech to the assembled crowd, uttered profanity, and
hurled bottles containing what was later described as an "offensive
liquor" upon the crowd. The proximate source of the "offensive
liquor" appears to have been Sir Charles. Alpert, Judicial
Censorship of Obscene Literature, 52 Harv.L.Rev. 40-43 (1938).
[
Footnote 2/5]
The Queen v. Read, 11 Mod. 142 (Q.B. 1707).
[
Footnote 2/6]
Dominus Rex v. Curl, 2 Strange 789 (K.B. 1727).
See Stralls, The Unspeakable Curll (1927).
[
Footnote 2/7]
Rex v. Tilkes, 4 Burr. 2527 (K.B. 1770). The
prosecution of Wilkes was a highly political action, for Wilkes was
an outspoken critic of the government.
See R. W. Postgate,
That Devil Wilkes (1929). It has been suggested that the
prosecution in this case was a convenient substitute for the less
attractive charge of seditious libel.
See Alpert,
supra, at 45.
[
Footnote 2/8]
See 354 U.S. at
354 U. S. 483
and n. 13. For the most part, however, the early legislation was
aimed at blasphemy and profanity.
See 354 U.S. at
354 U. S.
482-483 and n. 12. The first reported decision involving
the publication of obscene literature does not come until 1821.
See Commonwealth v. Holmes, 17 Mass. 336. It was not until
after the Civil War that state prosecutions of this sort became
commonplace.
See Lockhart & McClure, Literature, The
Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 324-325
(1954).
[
Footnote 2/9]
Tariff Act of 1842, c. 270, § 28, 5 Stat. 566 (prohibiting
importation of obscene "prints"). Other federal legislation
followed; the development of federal law is traced in Cairns, Paul,
& Wishner, Sex Censorship: The Assumptions of Anti-Obscenity
Laws and the Empirical Evidence, 46 Minn.L.Rev. 1009, 1010 n. 2
(1962).
[
Footnote 2/10]
See Cairns, Paul Wishner,
supra, 1031041;
Lockhart & McClure,
supra, at 382-387.
And
see the summary of Dr. Jahoda's studies prepared by her for
Judge Frank, reprinted in
United States v. Roth, 237 F.2d
796, 815-816 (concurring opinion). Those who are concerned about
children and erotic literature would do well to consider the
counsel of Judge Bok:
"It will be asked whether one would care to have one's young
daughter read these books. I suppose that, by the time she is old
enough to wish to read them, she will have learned the biologic
facts of life and the words that go with them. There is something
seriously wrong at home if those facts have not been met and faced
and sorted by then; it is not children so much as parents that
should receive our concern about this. I should prefer that my own
three daughters meet the facts of life and the literature of the
world in my library than behind a neighbor's barn, for I can face
the adversary there directly. If the young ladies are appalled by
what they read, they can close the book at the bottom of page one;
if they read further, they will learn what is in the world and in
its people, and no parents who have been discerning with their
children need fear the outcome. Nor can they hold it back, for life
is a series of little battles and minor issues, and the burden of
choice is on us all, every day, young and old."
Commonwealth v. Gordon, 66 Pa.D. & C. 101, 110.
[
Footnote 2/11]
It would be a futile effort even for a censor to attempt to
remove all that might possibly stimulate antisocial sexual
conduct:
"The majority [of individuals], needless to say, are somewhere
between the over-scrupulous extremes of excitement and frigidity. .
. . Within this variety, it is impossible to define 'hard-core'
pornography, as if there were some singly lewd concept from which
all profane ideas passed by imperceptible degrees into that
sexuality called holy. But there is no 'hard-core.' Everything,
ever idea, is capable of being obscene if the personality
perceiving it so apprehends it."
"It is for this reason that books, pictures, charades, ritual,
the spoken word, can and do lead directly to conduct harmful to the
self indulging in it and to others. Heinrich Pommerenke, who was a
rapist, abuser, and mass slayer of women in Germany, was prompted
to his series of ghastly deeds by Cecil B. DeNlille's The Ten
Commandments. During the scene of the Jewish women dancing about
the Golden Calf, all the doubts of his life came clear: Women were
the source of the world's trouble, and it was his mission to both
punish them for this and to execute them. Leaving the theater, he
slew his first victim in a park nearby. John George Haigh, the
British vampire who sucked his victims' blood through soda straws
and dissolved their drained bodies in acid baths, first had his
murder-inciting dreams and vampire-longings from watching the
'voluptuous' procedure of -- an Anglican High Church Service!"
Murphy,
supra, at 668.
MR. JUSTICE CLARK, dissenting.
It is with regret that I write this dissenting opinion. However,
the public should know of the continuous flow of pornographic
material reaching this Court and the increasing problem States have
in controlling it.
Memoirs of a Woman of Pleasure, the
book involved here, is typical. I have "stomached" past cases for
almost 10 years without much outcry. Though I am not known to be a
purist -- or a shrinking violet -- this book is too much even for
me. It is important that the Court has refused to declare it
obscene and thus affords it further circulation. In order to give
my remarks the proper setting, I have been obliged to portray the
book's contents, which causes me embarrassment. However, quotations
from typical episodes would so debase our Reports that I will not
follow that course.
I
Let me first pinpoint the effect of today's holding in the
obscenity field. While there is no majority opinion in this case,
there are three Justices who import a new test into that laid down
in
Roth v. United States, 354 U.
S. 476 (1957), namely, that "[a] book cannot be
proscribed unless it is found to be utterly without redeeming
social value." I agree with my Brother WHITE that such a condition
rejects the basic holding of
Roth and gives the smut
artist free rein to carry on his dirty business. My vote in that
case -- which was the deciding one for the majority opinion -- was
cast solely because the Court declared the test of obscenity to
be:
"whether, to
Page 383 U. S. 442
the average person, applying contemporary community standards,
the dominant theme of the material, taken as a whole, appeals to
prurient interest."
I understood that test to include only two constitutional
requirements: (1) the book must be judged as a whole, not by its
parts, and (2) it must be judged in terms of its appeal to the
prurient interest of the average person, applying contemporary
community standards. [
Footnote 3/1]
Indeed, obscenity was denoted in
Roth as having
"
such slight social value as a step to truth that any
benefit that may be derived . . . is clearly outweighed by the
social interest in order and morality. . . ."
At
354 U. S. 485
(quoting
Chaplinsky v. New Hampshire, 315 U.
S. 568,
315 U. S. 572
(1942)). Moreover in no subsequent decision of this Court has any
"utterly without redeeming social value" test been suggested, much
less expounded. My Brother HARLAN, in
Manual Enterprises, Inc.
v. Day, 370 U. S. 478
(1962), made no reference whatever to such a requirement in
Roth. Rather, he interpreted
Roth as including a
test of "patent offensiveness," besides "prurient appeal." Nor did
my Brother BRENNAN, in his concurring opinion in
Manual
Enterprises, mention any "utterly without redeeming social
value" test. The first reference to such a test was made by my
Brother BRENNAN in
Jacobellis v. Ohio, 378 U.
S. 184,
378 U. S. 191
(1964), seven years after
Roth. In an opinion joined only
by Justice Goldberg, he there wrote:
"Recognizing that the test for obscenity enunciated [in
Roth] . . . is not perfect, we think any substitute would
raise equally difficult problems, and we therefore adhere to that
standard."
Nevertheless, he proceeded to add:
"We would reiterate, however, our recognition in
Roth
that obscenity is excluded from the constitutional protection only
because it is 'utterly without redeeming social importance,' . . .
. "
Page 383 U. S. 443
This language was then repeated in the converse to announce this
non sequitur:
"It follows that material dealing with sex in a manner that
advocates ideas . . . or that has literary or scientific or
artistic value or any other form of social importance, may not be
branded as obscenity and denied the constitutional protection."
At
378 U. S. 191.
Significantly no opinion in
Jacobellis, other than that of
my Brother BRENNAN, mentioned the "utterly without redeeming social
importance" test which he there introduced into our many and varied
previous opinions in obscenity cases. Indeed, rather than
recognizing the "utterly without social importance" test, THE CHIEF
JUSTICE in his dissent in
Jacobellis, which I joined,
specifically stated:
"In light of the foregoing, I would reiterate my acceptance of
the rule of the
Roth case:
material is obscene and not
constitutionally protected against regulation and proscription
if 'to the average person, applying contemporary community
standards the dominant theme of the material taken as a whole
appeals to prurient interest.'"
(Emphasis added.) At
378 U. S. 202.
THE CHIEF JUSTICE and I further asserted that the enforcement of
this rule should be committed to the state and federal courts whose
judgments made pursuant to the
Roth rule, we would accept,
limiting our review to a consideration of whether there is
"sufficient evidence" in the record to support a finding of
obscenity. At
378 U. S.
202.
II
Three members of the majority hold that reversal here is
necessary solely because their novel "utterly without redeeming
social value" test was not properly interpreted or applied by the
Supreme Judicial Court of Massachusetts.
Page 383 U. S. 444
Massachusetts now has to retry the case although the "Findings
of Fact, Rulings of Law and Order for Final Decree" of the trial
court specifically held that
"this book is 'utterly without redeeming social importance' in
the fields of art, literature, science, news or ideas of any social
importance, and that it is obscene, indecent and impure."
I quote portions of the findings:
"Opinions of experts are admitted in evidence to aid the Court
in its understanding and comprehension of the facts, but, of
course, an expert cannot usurp the function of the Court. Highly
artificial, stylistic writing and an abundance of metaphorical
descriptions are contained in the book, but the conclusions of some
experts were pretty well strained in attempting to justify its
claimed literary value: such as the book preached a moral that sex
with love is better than sex without love, when Fanny's description
of her sexual acts, particularly with the young boy she seduced, in
Fanny's judgment at least, was to the contrary.
Careful review
of all the expert testimony has been made, but, the best
evidence of all, is the book itself, and it plainly has no value
because of ideas, news or artistic, literary or scientific
attributes. . . . Nor does it have any other merit. 'This Court
will not adopt a rule of law which states obscenity is
suppressible, but well written obscenity is not.' Mr. Justice
Scileppi in
People v. Fritch, 13 N.Y.2d 119."
(Emphasis added.) Finding 20. None of these findings of the
trial court were overturned on appeal, although the Supreme
Judicial Court of Massachusetts observed in addition that
"the fact that the testimony may indicate this book has some
minimal literary value does not mean it is of any social
importance. We do not interpret the 'social importance' test as
requiring
Page 383 U. S. 445
that a book which appeals to prurient interest and is patently
offensive must be unqualifiedly worthless before it can be deemed
obscene."
My Brother BRENNAN reverses on the basis of this casual
statement, despite the specific findings of the trial court. Why,
if the statement is erroneous, Brother BRENNAN does not affirm the
holding of the trial court which beyond question is correct, one
cannot tell. This course has often been followed in other
cases.
In my view, evidence of social importance is relevant to the
determination of the ultimate question of obscenity. But social
importance does not constitute a separate and distinct
constitutional test. Such evidence must be considered together with
evidence that the material in question appeals to prurient interest
and is patently offensive. Accordingly, we must first turn to the
book here under attack. I repeat that I regret having to depict the
sordid episodes of this book.
III
Memoirs is nothing more than a series of minutely and
vividly described sexual episodes. The book starts with Fanny Hill,
a young 15-year-old girl, arriving in London to seek household
work. She goes to an employment office where, through happenstance,
she meets the mistress of a bawdy house. This takes 10 pages. The
remaining 200 pages of the book detail her initiation into various
sexual experiences, from a lesbian encounter with a sister
prostitute to all sorts and types of sexual debauchery in bawdy
houses and as the mistress of a variety of men. This is presented
to the reader through an uninterrupted succession of descriptions
by Fanny, either as an observer or participant. of sexual
adventures so vile that one of the male expert witnesses in the
case was hesitant to repeat any one of them in the courtroom.
Page 383 U. S. 446
These scenes run the gamut of possible sexual experience such as
lesbianism, female masturbation, homosexuality between young boys,
the destruction of a maidenhead with consequent gory descriptions,
the seduction of a young virgin boy, the flagellation of male by
female, and vice versa, followed by fervid sexual engagement, and
other abhorrent acts, including over two dozen separate bizarre
descriptions of different sexual intercourses between male and
female characters. In one sequence, four girls in a bawdy house are
required in the presence of one another to relate the lurid details
of their loss of virginity and their glorification of it. This is
followed the same evening by "publick trials" in which each of the
four girls engages in sexual intercourse with a different man while
the others witness, with Fanny giving a detailed description of the
movement and reaction of each couple.
In each of the sexual scenes, the exposed bodies of the
participants are described in minute and individual detail. The
pubic hair is often used for a background to the most vivid and
precise descriptions of the response, condition, size, shape. and
color of the sexual organs before, during and after orgasms. There
are some short transitory passages between the various sexual
episodes, but, for the most part, they only set the scene and
identify the participants for the next orgy, or make smutty
reference and comparison to past episodes.
There can be no doubt that the whole purpose of the book is to
arouse the prurient interest. Likewise the repetition of sexual
episode after episode and the candor with which they are described
renders the book "patently offensive." These facts weigh heavily in
any appraisal of the book's claims to "redeeming social
importance."
Let us now turn to evidence of the book's alleged social value.
While unfortunately the State offered little testimony, [
Footnote 3/2]
Page 383 U. S. 447
the defense called several experts to attest that the book has
literary merit and historical value. A careful reading of
testimony, however, reveals that it has no substance. For example,
the first witness testified:
"I think it is a work of art . . . ; it asks for and receives a
literary response . . . presented in an orderly and organized
fashion, with a fictional central character, and with a literary
style. . . . I think the central character is . . . what I call an
intellectual . . . , someone who is extremely curious about life
and who seeks . . . to record with accuracy the details of the
external world, physical sensations, psychological responses . . .
, an empiricist. . . . I find that this tells me things . . . about
the 18th century that I might not otherwise know."
If a book of art is one that asks for and receives a literary
response,
Memoirs is no work of art. The sole response
evoked by the book is sensual. Nor does the orderly presentation of
Memoirs make a difference; it presents nothing but
lascivious scenes organized solely to arouse prurient interest and
produce sustained erotic tension. [
Footnote 3/3] Certainly the book's baroque style cannot
vitiate the determination of obscenity. From a legal standpoint, we
must remember that obscenity is no less obscene though it be
expressed in "elaborate language." Indeed, the more meticulous its
presentation, the more it appeals to the prurient interest. To say
that Fanny is an "intellectual" is an insult to those who travel
under that tag.
Page 383 U. S. 448
She was nothing but a harlot -- a sensualist -- exploiting her
sexual attractions which she sold for fun, for money, for lodging
and keep, for an inheritance, and finally for a husband. If she was
curious about life, her curiosity extended only to the pursuit of
sexual delight wherever she found it. The book describes nothing in
the "external world" except bawdy houses and debaucheries. As an
empiricist, Fanny confines her observations and "experiments" to
sex, with primary attention to depraved, lewd, and deviant
practices.
Other experts produced by the defense testified that the book
emphasizes the profound "idea that a sensual passion is only truly
experienced when it is associated with the emotion of love" and
that the sexual relationship "can be a wholesome, healthy,
experience itself," whereas in certain modern novels "the
relationship between the sexes is seen as another manifestation of
modern decadence, insterility or perversion." In my view, this
proves nothing as to social value. The state court properly gave
such testimony no probative weight. A review offered by the defense
noted that
"where 'pornography' does not brutalize, it idealizes. The book
is, in this sense, an erotic fantasy -- and a male fantasy, at
that, put into the mind of a woman. The male organ is phenomenal to
the point of absurdity."
Finally, it saw the book as
"a minor fantasy, deluding as a guide to conduct, but respectful
of our delight in the body . . . , an interesting footnote in the
history of the English novel."
These unrelated assertions reveal to me nothing whatever of
literary, historical, or social value. Another review called the
book "a great novel . . . , one which turns its convention upside
down. . . ." Admittedly Cleland did not attempt "high art," because
he was writing "an erotic novel. He can skip the elevation and get
on with the erections." Fanny's "downfall" is seen as "one long
delightful swoon into the depths of pleasurable sensation."
Page 383 U. S. 449
Rather than indicating social value in the book, this evidence
reveals just the contrary. Another item offered by the defense
described
Memoirs as being "widely accredited as the first
deliberately dirty novel in English." However, the reviewer found
Fanny to be
"no common harlot. Her 'Memoirs' combine literary grace with a
disarming enthusiasm for an activity which is, after all, only
human. What is more, she never uses a dirty word."
The short answer to such "expertise" is that none of these
so-called attributes have any value to society. On the contrary,
they accentuate the prurient appeal.
Another expert described the book as having "detectable literary
merit," since it reflects "an effort to interpret a rather complex
character . . . going through a number of very different
adventures." To illustrate his assertion that the "writing is very
skillfully done" this expert pointed to the description of a whore,
"Phoebe, who is
red-faced, fat and in her early 50's, who
waddles into a room.' She doesn't walk in, she waddles in." Given
this standard for "skillful writing," it is not surprising that he
found the book to have merit.
The remaining experts testified in the same manner, claiming the
book to be a "record of the historical, psychological, [and] social
events of the period." One has but to read the history of the 18th
century to disprove this assertion. The story depicts nothing
besides the brothels that are present in metropolitan cities in
every period of history. One expert noticed "in this book a
tendency away from nakedness during the sexual act which I find an
interesting sort of sociological observation" on tastes different
from contemporary ones. As additional proof, he marvels that
Fanny
"refers constantly to the male sexual organ as an engine . . .
which is pulling you away from the way these events would be
described in the 19th or 20th century."
How this adds social value to the book
Page 383 U. S. 450
is beyond my comprehension. It only indicates the lengths to
which these experts go in their effort to give the book some
semblance of value. For example, the ubiquitous descriptions of
sexual acts are excused as being necessary in tracing the "moral
progress" of the heroine, and the giving of a silver watch to a
servant is found to be "an odd and interesting custom that I would
like to know more about." This only points up the bankruptcy of
Memoirs in both purpose and content, adequately justifying
the trial court's finding that it had absolutely no social
value.
It is, of course, the duty of the judge or the jury to determine
the question of obscenity, viewing the book by contemporary
community standards. It can accept the appraisal of experts or
discount their testimony in the light of the material itself or
other relevant testimony. So-called "literary obscenity,"
i.e., the use of erotic fantasies of the hard-core type
clothed in an engaging literary style has no constitutional
protection. If a book deals solely with erotic material in a manner
calculated to appeal to the prurient interest, it matters not that
it may be expressed in beautiful prose. There are obviously dynamic
connections between art and sex -- the emotional, intellectual, and
physical -- but where the former is used solely to promote prurient
appeal, it cannot claim constitutional immunity. Cleland uses this
technique to promote the prurient appeal of
Memoirs. It is
true that Fanny's perverse experiences finally bring from her the
observation that "the heights of [sexual] enjoyment cannot be
achieved until true affection prepares the bed of passion." But
this merely emphasizes that sex, wherever and however found,
remains the sole theme of
Memoirs. In my view, the book's
repeated and unrelieved appeals to the prurient interest of the
average person leave it utterly without redeeming social
importance.
Page 383 U. S. 451
IV
In his separate concurrence, my Brother DOUGLAS asserts there is
no proof that obscenity produces antisocial conduct. I had thought
that this question was foreclosed by the determination in
Roth that obscenity was not protected by the First
Amendment. I find it necessary to comment upon Brother DOUGLAS'
views, however, because of the new requirement engrafted upon
Roth by Brother BRENNAN,
i.e., that material
which "appeals to a prurient interest" and which is "patently
offensive" may still not be suppressed unless it is "utterly
without redeeming social value." The question of antisocial effect
thus becomes relevant to the more limited question of social value.
Brother BRENNAN indicates that the social importance criterion
encompasses only such things as the artistic, literary, and
historical qualities of the material. But the phrasing of the
"utterly without redeeming social value" test suggests that other
evidence must be considered. To say that social value may "redeem"
implies that courts must balance alleged esthetic merit against the
harmful consequences that may flow from pornography. Whatever the
scope of the social value criterion -- which need not be defined
with precision here -- it at least anticipates that the trier of
fact will weigh evidence of the material's influence in causing
deviant or criminal conduct, particularly sex crimes, as well as
its effect upon the mental, moral, and physical health of the
average person. Brother DOUGLAS' view as to the lack of proof in
this area is not so firmly held among behavioral scientists as he
would lead us to believe. For this reason, I should mention that
there is a division of thought on the correlation between obscenity
and socially deleterious behavior.
Psychological and physiological studies clearly indicate that
many persons become sexually aroused from reading
Page 383 U. S. 452
obscene material. [
Footnote 3/4]
While erotic stimulation caused by pornography may be legally
insignificant in itself, there are medical experts who believe that
such stimulation frequently manifests itself in criminal sexual
behavior or other antisocial conduct. [
Footnote 3/5] For example, Dr. George W. Henry of
Cornell University has expressed the opinion that obscenity, with
its exaggerated and morbid emphasis on sex, particularly abnormal
and perverted practices, and its unrealistic presentation of sexual
behavior and attitudes, may induce antisocial conduct by the
average person. [
Footnote 3/6] A
number of sociologists think that this material may have adverse
effects upon individual mental health, with potentially disruptive
consequences for the community. [
Footnote 3/7]
In addition, there is persuasive evidence from criminologists
and police officials. Inspector Herbert Case of the Detroit Police
Department contends that sex murder cases are invariably tied to
some form of obscene literature. [
Footnote 3/8] And the Director of the Federal Bureau of
Investigation, J. Edgar Hoover, has repeatedly emphasized that
pornography is associated with an overwhelmingly large number of
sex crimes. Again, while the correlation between possession of
obscenity and deviant behavior
Page 383 U. S. 453
has not been conclusively established, the files of our law
enforcement agencies contain many reports of persons who patterned
their criminal conduct after behavior depicted in obscene material.
[
Footnote 3/9]
The clergy are also outspoken in their belief that pornography
encourages violence, degeneracy and sexual misconduct. In a speech
reported by the New York Journal-American August 7, 1964, Cardinal
Spellman particularly stressed the direct influence obscenity has
on immature persons. These and related views have been confirmed by
practical experience. After years of service with the West London
Mission, Rev. Donald Soper found that pornography was a primary
cause of prostitution. Rolph, Does Pornography Matter? (1961), pp.
478. [
Footnote 3/10]
Congress and the legislatures of every State have enacted
measures to restrict the distribution of erotic and pornographic
material, [
Footnote 3/11]
justifying these controls by reference to evidence that antisocial
behavior may result in part from reading obscenity. [
Footnote 3/12] Likewise, upon another
trial, the parties may offer this sort of evidence along with other
"social value" characteristics that they attribute to the book.
Page 383 U. S. 454
But this is not all that Massachusetts courts might consider. I
believe it can be established that the book "was commercially
exploited for the sake of prurient appeal, to the exclusion of all
other values" and should therefore be declared obscene under the
test of commercial exploitation announced today in
Ginzburg and
Mishkin.
As I have stated, my study of
Memoirs leads me to think
that it has no conceivable "social importance." The author's
obsession with sex, his minute descriptions of phalli, and his
repetitious accounts of bawdy sexual experiences and deviant sexual
behavior indicate the book was designed solely to appeal to
prurient interests. In addition, the record before the Court
contains extrinsic evidence tending to show that the publisher was
fully aware that the book attracted readers desirous of vicarious
sexual pleasure, and sought to profit solely from its prurient
appeal. The publisher's "Introduction" recites that Cleland, a
"never-do-well bohemian," wrote the book in 1749 to make a quick 20
guineas. Thereafter, various publications of the book, often
"embellished with fresh inflammatory details" and "highly
exaggerated illustrations," appeared in "surreptitious
circulation." Indeed, the cover of
Memoirs tempts the
reader with the announcement that the sale of the book has finally
been permitted "after 214 years of suppression." Although written
in a sophisticated tone, the "Introduction" repeatedly informs the
reader that he may expect graphic descriptions of genitals and
sexual exploits. For instance, it states:
"Here and there, Cleland's descriptions of lovemaking are marred
by what perhaps could be best described as his adherence to the
'longitudinal fallacy' -- the formidable bodily equipment of his
most
Page 383 U. S. 455
accomplished lovers is apt to be described with quite
unnecessary relish. . . ."
Many other passages in the "Introduction" similarly reflect the
publisher's "own evaluation" of the book's nature. The excerpt
printed on the jacket of the hardcover edition is typical:
"
Memoirs of a Woman of Pleasure is the product of a
luxurious and licentious, but not a commercially degraded, era. . .
. For all its abounding improprieties, his priapic novel is not a
vulgar book. It treats of pleasure as the aim and end of existence,
and of sexual satisfaction as the epitome of pleasure, but does so
in a style that, despite its inflammatory subject, never stoops to
a gross or unbecoming word."
Cleland apparently wrote only one other book, a sequel called
Memoirs of a Coxcomb, published by Lancer Books, Inc. The
"Introduction" to that book labels
Memoirs of a Woman of
Pleasure as "the most sensational piece of erotica in English
literature." I daresay that this fact alone explains why G. P.
Putnam's Sons published this obscenity -- preying upon prurient and
carnal proclivities for its own pecuniary advantage. I would affirm
the judgment.
[
Footnote 3/1]
See Lochart & McClure, Censorship of Obscenity: The
Developing Constitutional Standards, 45 Minn.L.Rev. 5, 53-55
(1960).
[
Footnote 3/2]
In a preface to the paperbook edition, "A Note on the American
History of
Memoirs of a Woman of Pleasure," the publisher
itself mentions several critics who denied the book had any
literary merit and found it totally undistinguished. These critics
included Ralph Thompson and Clifton Fadiman. P. xviii.
[
Footnote 3/3]
As one review stated:
"Yet all these pangs of defloration are in the service of erotic
pleasure -- Fanny's and the reader's. Postponing the culmination of
Fanny's deflowering is equivalent to postponing the point where the
reader has a mental orgasm."
[
Footnote 3/4]
For a summary of experiments with various sexual stimuli,
see Cairns, Paul & Wishner, Sex Censorship: The
Assumptions of Anti-Obscenity Laws and the the Empirical Evidence,
46 Minn.L.Rev. 1009 (1962). The authors cite research by Kinsey
disclosing that obscene literature stimulated a definite sexual
response in a majority of the male and female subjects tested.
[
Footnote 3/5]
E.g., Wertham, Seduction of the Innocent (1954), p.
164.
[
Footnote 3/6]
Testimony before the Subcommittee of the Judiciary Committee to
Investigate Juvenile Delinquency, S.Rep. No. 2381, 84th Cong., 2d
Sess., pp. 8-12 (1956).
[
Footnote 3/7]
Sorokin, The American Sex Revolution (1956).
[
Footnote 3/8]
Testimony before the House Select Committee on Current
Pornographic Materials, H.R.Rep. No. 2510, 82d Cong., & Sess.,
p. 62 (1952).
[
Footnote 3/9]
See, e.g., Hoover, Combating Merchants of Filth: The
Role of the FBI, 25 U.Pitt.L.Rev. 469 (1964); Hoover, The Fight
Against Filth, The American Legion Magazine (May 1961).
[
Footnote 3/10]
For a general discussion
see Murphy, Censorship:
Government and Obscenity (1963), pp. 131-151.
[
Footnote 3/11]
The statutes are compiled in S.Rep. No. 2381, 84th Cong., 2d
Sess., pp. 17-'3 (1956). While New Mexico itself does not prohibit
the distribution of obscenity, it has a statute giving
municipalities the right to suppress "obscene" publications.
N.M.Stat. § 14-17-14 (1965 Supp.).
[
Footnote 3/12]
See Report of the New York State Joint Legislative
Committee Studying the Publication and Dissemination of Offensive
and Obscene Material (1958), pp. 141-166.
MR. JUSTICE HARLAN, dissenting.
The central development that emerges from the aftermath of
Roth v. United States, 354 U. S. 476, is
that no stable approach to the obscenity problem has yet been
devised by this Court. Two Justices believe that the First and
Fourteenth Amendments absolutely protect obscene and nonobscene
material alike. Another Justice believes that neither the States
nor the Federal Government may suppress any material save for
"hard-core pornography."
Roth, in 1957, stressed prurience
and
Page 383 U. S. 456
utter lack of redeeming social importance; [
Footnote 4/1] as
Roth has been expounded
in this case, in
Ginzburg v. United States, post, p.
383 U. S. 463, and
in
Mishkin v. New York, post, p.
383 U. S. 502, it
has undergone significant transformation. The concept of
"pandering," emphasized by the separate opinion of THE CHIEF
JUSTICE in
Roth, now emerges as an uncertain gloss or
interpretive aid, and the further requisite of "patent
offensiveness" has been made explicit as a result of intervening
decisions. Given this tangled state of affairs, I feel free to
adhere to the principles first set forth in my separate opinion in
Roth, 354 U.S. at
354 U. S. 496, which I continue to believe represent the
soundest constitutional solution to this intractable problem.
My premise is that, in the area of obscenity, the Constitution
does not bind the States and the Federal Government in precisely
the same fashion. This approach is plainly consistent with the
language of the First and Fourteenth Amendments and, in my opinion,
more responsive to the proper functioning of a federal system of
government in this area.
See my opinion in
Roth,
354 U.S. at
354 U. S.
505-506. I believe it is also consistent with past
decisions of this Court. Although some 40 years have passed since
the Court first indicated that the Fourteenth Amendment protects
"free speech,"
see Gitlow v. New York, 268 U.
S. 652;
Fiske v. Kansas, 274 U.
S. 380, the decisions have never declared that every
utterance the Federal Government may not reach or every regulatory
scheme it may not enact is also beyond the power of the State. The
very criteria used in opinions to delimit the protection of free
speech -- the gravity of the evil being regulated,
see
Schneider v. State, 308 U. S. 147; how
"clear and present" is the danger,
Schenck
v.
Page 383 U. S. 457
United States, 249 U. S. 47,
249 U. S. 52
(Holmes, J.); the magnitude of "such invasion of free speech as is
necessary to avoid the danger,"
United States v. Dennis,
183 F.2d 201, 212 (L. Hand, J.) -- may and do depend on the
particular context in which power is exercised. When, for example,
the Court in
Beauharnais v. Illinois, 343 U.
S. 250, upheld a criminal group libel law because of the
"social interest in order and morality," 343 U.S. at
343 U. S. 257,
it was acknowledging the responsibility and capacity of the States
in such public welfare matters and not committing itself to uphold
any similar federal statute applying to such communications as
Congress might otherwise regulate under the commerce power.
See
also Kovacs v. Cooper, 336 U. S. 77.
Federal suppression of allegedly obscene matter should, in my
view, be constitutionally limited to that often described as
"hard-core pornography." To be sure, that rubric is not a
self-executing standard, but it does describe something that most
judges and others will "know . . . when [they] see it" (STEWART,
J., in
Jacobellis v. Ohio, 378 U.
S. 184,
378 U. S. 197)
and that leaves the smallest room for disagreement between those of
varying tastes. To me it is plain, for instance, that Fanny Hill
does not fall within this class and could not be barred from the
federal mails. If further articulation is meaningful, I would
characterize as "hard-core" that prurient material that is patently
offensive or whose indecency is self-demonstrating and I would
describe it substantially as does MR. JUSTICE STEWART's opinion in
Ginzburg, post, p.
383 U. S. 499.
The Federal Government may be conceded a limited interest in
excluding from the mails such gross pornography, almost universally
condemned in this country. [
Footnote
4/2] But I believe the dangers of national
Page 383 U. S. 458
censorship and the existence of primary responsibility at the
state level amply justify drawing the line at this point.
State obscenity laws present problems of quite a different
order. The varying conditions across the country, the range of
views on the need and reasons for curbing obscenity, and the
traditions of local self-government in matters of public welfare
all favor a far more flexible attitude in defining the bounds for
the States. From my standpoint, the Fourteenth Amendment requires
of a State only that it apply criteria rationally related to the
accepted notion of obscenity and that it reach results not wholly
out of step with current American standards. As to criteria, it
should be adequate if the court or jury considers such elements as
offensiveness, pruriency, social value, and the like. The latitude
which I believe the States deserve cautions against any federally
imposed formula listing the exclusive ingredients of obscenity and
fixing their proportions. This approach concededly lacks precision,
but imprecision is characteristic of mediating constitutional
standards; [
Footnote 4/3]
voluntariness of a confession, clear and present danger, and
probable cause are only the most ready illustrations. In time, and
with more litigated examples, predictability increases, but there
is no shortcut to satisfactory solutions in this field, and there
is no advantage in supposing otherwise.
I believe the tests set out in the prevailing opinion, judged by
their application in this case, offer only an
Page 383 U. S. 459
illusion of certainty and risk confusion and prejudice. The
opinion declares that a book cannot be banned unless it is "utterly
without redeeming social value" (
ante, p.
383 U. S.
418). To establish social value in the present case, a
number of acknowledged experts in the field of literature testified
that
Fanny Hill held a respectable place in serious
writing, and unless such largely uncontradicted testimony is
accepted as decisive, it is very hard to see that the "utterly
without redeeming social value" test has any meaning at all. Yet
the prevailing opinion, while denying that social value may be
"weighed against" or "canceled by" prurience or offensiveness
(
ante, p.
383 U. S.
419), terminates this case unwilling to give a
conclusive decision on the status of
Fanny Hill under the
Constitution. [
Footnote 4/4]
Apparently, the Court believes that the social value of the book
may be negated if proof of pandering is present. Using this
inherently vague "pandering" notion to offset "social value" wipes
out any certainty the latter term might be given by reliance on
experts, and admits into the case highly prejudicial evidence
without appropriate restrictions.
See my dissenting
opinion in
Ginzburg, post, p.
383 U. S. 493.
I think it more satisfactory to acknowledge that, on this record
the book has been shown to have some quantum of social value, that
it may at the same time be deemed offensive and salacious, and that
the State's decision to weigh these elements and to ban this
particular work does not exceed constitutional limits.
A final aspect of the obscenity problem is the role this Court
is to play in administering its standards, a matter
Page 383 U. S. 460
that engendered justified concern at the oral argument of the
cases now decided. Short of saying that no material relating to sex
may be banned, or that all of it may be, I do not see how this
Court can escape the task of reviewing obscenity decisions on a
case-by-case basis. The views of literary or other experts could be
made controlling, but those experts had their say in
Fanny
Hill, and apparently the majority is no more willing than I to
say that Massachusetts must abide by their verdict. Yet I venture
to say that the Court's burden of decision would be ameliorated
under the constitutional principles that I have advocated.
"Hard-core pornography" for judging federal cases is one of the
more tangible concepts in the field. As to the States, the due
latitude my approach would leave them ensures that only the unusual
case would require plenary review and correction by this Court.
There is plenty of room, I know, for disagreement in this area
of constitutional law. Some will think that what I propose may
encourage States to go too far in this field. Others will consider
that the Court's present course unduly restricts state
experimentation with the still elusive problem of obscenity. For
myself, I believe it is the part of wisdom for those of us who
happen currently to possess the "final word" to leave room for such
experimentation, which indeed is the underlying genius of our
federal system.
On the premises set forth in this opinion, supplementing what I
have earlier said in my opinions in
Roth, supra, Manual
Enterprises, Inc. v. Day, 370 U. S. 478. and
Jacobellis v. Ohio, 378 U.S. at
378 U. S. 203,
I would affirm the judgment of the Massachusetts Supreme Judicial
Court.
[
Footnote 4/1]
Given my view of the applicable constitutional standards, I find
no occasion to consider the place of "redeeming social importance"
in the majority opinion in
Roth, an issue which further
divides the present Court.
[
Footnote 4/2]
This interest may be viewed from different angles. Compelling
the Post Office to aid actively in disseminating this most
obnoxious material may simply appear too offensive in itself. Or,
more concretely, use of the mails may facilitate or insulate
distribution so greatly that federal inaction amounts to thwarting
state regulation.
[
Footnote 4/3]
The deterrent effect of vagueness for that critical class of
books near the law's borderline could in the past be ameliorated by
devices like the Massachusetts
in rem procedure used in
this case. Of course, the Court's newly adopted "panderer" test,
turning as it does on the motives and actions of the particular
defendant, seriously undercuts the effort to give any seller a yes
or no answer on a book in advance of his own criminal
prosecution.
[
Footnote 4/4]
As I understand the prevailing opinion, its rationale is that
the state court may not condemn
Fanny Hill as obscene
after finding the book to have a modicum of social value; the
opinion does note that proof of pandering "might justify the
conclusion" that the book wholly lacks social value (
ante,
p.
383 U. S.
420). Given its premise for reversal, the opinion has
"no occasion to assess" for itself the pruriency, offensiveness, or
lack of social value of the book (
ante p.
383 U. S.
420).
MR. JUSTICE WHITE, dissenting.
In
Roth v. United States, 354 U.
S. 476, the Court held a publication to be obscene if
its predominant theme
Page 383 U. S. 461
appeals to the prurient interest in a manner exceeding customary
limits of candor. Material of this kind, the Court said, is
"utterly without redeeming social importance," and is therefore
unprotected by the First Amendment.
To say that material within the
Roth definition of
obscenity is nevertheless not obscene if it has some redeeming
social value is to reject one of the basic propositions of the
Roth case -- that such material is not protected because
it is inherently and utterly without social value.
If "social importance" is to be used as the prevailing opinion
uses it today, obscene material, however far beyond customary
limits of candor, is immune if it has any literary style, if it
contains any historical references or language characteristic of a
bygone day, or even if it is printed or bound in an interesting
way. Well written, especially effective obscenity is protected; the
poorly written is vulnerable. And why shouldn't the fact that some
people buy and read such material prove its "social value"?
A fortiori, if the predominant theme of the book
appeals to the prurient interest, as stated in
Roth, but
the book nevertheless contains here and there a passage descriptive
of character, geography or architecture, the book would not be
"obscene" under the social importance test. I had thought that
Roth counseled the contrary: that the character of the
book is fixed by its predominant theme, and is not altered by the
presence of minor themes of a different nature. The
Roth
Court's emphatic reliance on the quotation from
Chaplinsky v.
New Hampshire, 315 U. S. 568,
means nothing less:
"' . . . There are certain well defined and narrowly limited
classes of speech, the prevention and punishment of which have
never been thought to raise any Constitutional problem. These
include
Page 383 U. S. 462
the lewd and obscene. . . . It has been well observed that such
utterances are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality. . . .' (Emphasis added.)"
354 U.S. at
354 U. S.
485.
In my view, "social importance" is not an independent test of
obscenity, but is relevant only to determining the predominant
prurient interest of the material, a determination which the court
or the jury will make based on the material itself and all the
evidence in the case, expert or otherwise.
Application of the
Roth test, as I understand it,
necessarily involves the exercise of judgment by legislatures,
courts and juries. But this does not mean that there are no limits
to what may be done in the name of
Roth. Cf.
Jacobellis v. Ohio, 378 U. S. 184.
Roth does not mean that a legislature is free to ban books
simply because they deal with sex or because they appeal to the
prurient interest. Nor does it mean that, if books like
Fanny
Hill are unprotected, their nonprurient appeal is necessarily
lost to the world. Literary style, history, teachings about sex,
character description (even of a prostitute) or moral lessons need
not come wrapped in such packages. The fact that they do impeaches
their claims to immunity from legislative censure.
Finally, it should be remembered that, if the publication and
sale of
Fanny Hill and like books are proscribed, it is
not the Constitution that imposes the ban. Censure stems from a
legislative act, and legislatures are constitutionally free to
embrace such books whenever they wish to do so. But if a State
insists on treating
Fanny Hill as obscene and forbidding
its sale, the First Amendment does not prevent it from doing
so.
I would affirm the judgment below.