The opinion
Hammond, J.,
filed the following dissenting opinion:
The opinion of the Court in this troublesome case is essentially syllogistic: the Maryland statute proscribing the sale of obscene books and magazines is to be construed as broadly as the Supreme Court will permit; the case of Roth v. United States, 354 U. S. 476 , 1 L. Ed. 2d 1498 , held that obscenity is not protected by the constitutional guarantees of freedom of speech and press, and said that material is obscene if, to the average person, applying contemporary community •standards, “the dominant theme of the material taken as a whole appeals to prurient interest;” the trial judge found the magazines sold by the defendants appealed to “prurient interest” and, since this Court cannot say he was clearly wrong in his determination, the judgments and sentences of guilty must be affirmed. I find the premises and the deductive process unsound, and the conclusion therefore necessarily *325 wrong and am constrained to dissent and express my reasons lor disagreement.
The only testimony against each defendant was that he had sold the magazine or pictures introduced against him. There was no testimony as to contemporary community standards (except that the magazines had been sold openly in Baltimore for five years), or as to what comprises a community, or as to what effect the pictures and magazines would have on the average person. The Court held the separate group of pictures and those in the magazines not to be in themselves obscene (and with these holdings I agree), but decided that most of the texts, considered with the related pictures, justified Judge Sodaro in finding the magazines obscene under the Roth standards, as the Court understands them. Despite the Court’s statement that its determinations were independent, this is no more in actuality than holding that “Judge Sodaro thought that most people would think the magazines obscene, we cannot say he was wrong and therefore, under the Maryland statute and the Constitutional tests, they are obscene.”
In deciding the case on this basis the Court, I think, failed to fulfill its obligatory duty to make a reflective independent appraisal of the controversial printings, for as Justice Harlan, concurring in Roth , said (as to the suppression of obscenity) at p. 497-498 of 354 U. S.: “* * * the question of whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind.” A State appellate court, no less than the Supreme Court, has the same obligation. The People, etc. v. Richmond County News, Inc. (N. Y.), 175 N. E. 2d 681 ; Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 114 -120; 4 Davis, Administrative Law, 29.08; Niemotko v. Maryland, 340 U. S. 268, 271 , 95 L. Ed. 267 ; Feiner v. New York, 340 U. S. 315, 316 , 95 L. Ed. 267 ; Napue v. Illinois, 360 U. S. 264, 271 , 3 L. Ed. 2d 1217 ; Watts v. Indiana, 338 U. S. 49 , 93 L. Ed. 1801 . Since Roth , cases that have recognized this obligation include United States v. Keller, 259 F. 2d 54 (3rd Cir.); Capitol Enterprises, Inc. v. City of Chicago, 260 F. 2d 670 (7th Cir.); Commonwealth v. Moniz (Mass.), 155 N. E. 2d 762 .
*326 That the publications here involved are a form of vulgar and tawdry entertainment (for some part of the populace), lacking in all social value or artistic or scientific justification, does not deprive them of the constitutional protection of free speech and press. In Winters v. New York, 333 U. S. 507, 510 , 92 L. Ed. 840 , the Court, noting its obligations as to an aspect of a free press (comic crime books) “in its relation to public morals” said: “We do not accede to appellee’s suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. * * * What is one man’s amusement, teaches another’s doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.” Hannegan v. Esquire, 327 U. S. 146, 158 , 90 L. Ed. 586 , said: “What seems to one to be trash may have for others fleeting or even enduring values.”
The concept of obscenity in law is a complex and difficult one. I take it the Maryland Legislature intended by its use of “obscene” in the statute (Code (1960 Cum. Supp.), Art. 27, Sec. 418 (a)) what the word meant in prevailing leading legal thought; otherwise it would be too vague to constitute a permissible standard in a criminal statute.
In The People, etc. v. Richmond County News, Inc., supra, the Court of Appeals of New York, in holding a “girlie” magazine (indistinguishable from the worst of those in the case before us) not to be obscene, said of the New York statute (the equivalent of the Maryland section) (at p. 685 of 175 N. E. 2d 681 ) :
“In the Roth case ( 354 U. S. 476 , * * * supra), the court did say that ‘obscene material is material which deals with sex in a manner appealing to prurient interest’ (* * * p. 487 * * *), and that the test was ‘whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest’ (* * * p. 489 * * *). These statements, however, can only indicate the broad boundaries of any *327 permissible definition of obscenity under the United States Constitution; they do not pretend to, and cannot, give specific content to the meaning of ‘obscene’ as it appears in our statute.”
In the Roth opinion the phrase “appeal to prurient interest” was lifted from a more comprehensive definition in the American Raw Institute’s Model Penal Code, Tentative Draft No. 6, Sec. 207.10(2) (a definition which the Court seemingly adopted as sound) : “* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex or excretion and if it goes substantially beyond customary limits of candor in description or representation of such matters * * The authors of Model Penal Code continue:
“We reject the prevailing test of tendency to arouse lustful thoughts or desires because it is unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehaviour, faises the most acute constitutional as well as practical difficulties. We likewise reject the common' definition of obscene as that which ‘tends to corrupt or debase.’ If this means anything different from tendency to arouse lustful thought and desire, it suggests that change of character or actual misbehaviour follows from contact with obscenity. Evidence of such consequences is lacking * * 1
*328 The Supreme Court of Oregon in a careful opinion in State v. Jackson, 356 P. 2d 495, 507 , adopted the Model Penal Code definition of obscenity as the meaning of the Oregon statute on the subject, and said:
“On the other hand, the Model Penal Code, by requiring that the material, to be obscene, must appeal to ‘prurient interest’ and go ‘substantially beyond customary limits of candor in description or representation’ emphasizes strongly that the manner of presentation must itself amount to shameful and disgusting conduct outside the pale of what is tolerable to the community at large. The majority opinion in the Roth case defines ‘prurient’ as ‘having a tendency to excite lustful thoughts.’ 354 U. S. 476 , at page 486, note 20, 77 S. Ct. at page 1310 . We think, however, that the court had in mind the narrower meaning used by the Model Penal Code or means to use the narrower meaning in cases following Roth.”
The Roth case unquestionably established two constitutional tests of obscenity: (1) the material must be judged as a whole and (2) it must be judged under contemporary community standards by its impact upon average or normal persons, not the young, the weak, or the susceptible. There can *329 be little doubt, I believe, that “community standards” means not state or local communities but rather the standards of society as a whole. 2 The phrase originated with Judge Learned Hand in his opinion in United States v. Kennerley, 209 F. 119 , 121: “* * * should not the word ‘obscene’ be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now? * * * To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy.” It seems plain Judge Hand was referring not to the standards of states or local communities, but rather to the contemporary standards of society as a whole, and that the Supreme Court had in mind that same standard in adopting the phrase. Messrs. Lockhart and McClure so interpret the Roth opinion. They say in their article Censorship of Obscenity at p. 111 of 45 Minn. L. Rev.:
*330 “* * * We believe the Supreme Court did not, as some of the proponents of censorship hopefully-thought, approve of the application of state or local community standards in obscenity cases. Indeed, in one of its per curiam decisions after the RothAlberts opinion, the Court indicated that it would not tolerate the application of restrictive local standards in obscenity censorship.”
The error into which the trial judge and majority of this Court fell, in my view, was to confuse and equate sex (and vulgarity, crudeness and cheap, poor taste) with obscenity. They are not synonymous and society as a whole and the courts recognize this. The subject matter, the descriptions and references found in the magazines held obscene in this case can be found in much the same form in literally hundreds of novels and stories which have either been accepted as not obscene or have been found not to be. The Supreme Court in Roth emphasized the necessity of differentiating between sex and lewdness:
“However, sex and obscenity are not synonymous. * * * The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” (p. 487 of 354 U. S., p. 1508 of 1 L. Ed. 2d)
I do not believe the trial judge permissibly could have been convinced beyond a reasonable doubt that the contents of the magazines, judged by the contemporary standards of our society as a whole, both appealed to “a shameful or morbid interest” in nudity or sex and at the same time went “substantially beyond customary limits of candor in description or representation of such matters.” 3 As the American Eaw *331 Institute said, we live today in “a society that plainly tolerates a great deal of erotic interest in literature, advertising and art.” Judge Bryan made the same point in finding “Lady Chatterley’s Lover” not obscene in Grove Press, Inc. v. Christenberry, 175 F. Supp. 488 :
“The tests of obscenity are not whether the book or passages from it are in bad taste or shock or offend the sensibilities of an individual, or even of a substantial segment of the community. * * * (p. 501)
“* * * the broadening of freedom of expression and of the frankness with which sex and sex relations are dealt with at the present time require no discussion. In one best selling novel after another frank descriptions of the sex act and ‘four-letter’ words appear with frequency. These trends appear in all media of public expression, in the kind of language used and the subjects discussed in polite society, in pictures, advertisements and dress, and in other ways familiar to all. Much of what is now accepted would have shocked the community to the core a generation ago. Today such things are generally tolerated whether we approve or not.” (p. 502)
I agree with the conclusion of the Court of Appeals of New York in its holding that the “realistic accounts of normal sexuality” in the magazine “Gent” (in which, as Judge Froessil makes plain in his dissenting opinion by extensive quotations and description, the language and pictures were as direct and crude and vulgar as any in the magazines before us) was not obscene. Judge Fuld said for the Court at p. 686 of 175 N. E. 2d:
“The fact is, however, that, while the magazine contains many stories or pictures which are aesthet *332 ically tasteless and without any redeeming social worth, none of them is pornographic. Numerous pictures and cartoons of nude or semi-nude women and numerous descriptions and depictions of sexual arousal and satisfaction are to be found in ‘Gent’ but it contains nothing which smacks of sick and blatantly perverse sexuality.”
Chief Judge Desmond, concurring, said at pp. 687-688:
“This collection of sexy fiction and illustrations has little of literary merit or artistry and yet it is not in the First Amendment sense filthy or disgusting or deliberately corruptive or offensive to common decency under prevailing standards of taste. Virtuous adults will reject it (as all of us Judges would were we not restrained by the Roth-Alberts legal test). Adolescents may be hurt by it. But our prepossessions are not the law and the reactions of children are not valid tests (Roth v. United States, 354 U. S. 476, 489, 490 , * * * supra).”
Whether the Court’s reading of the Maryland statute, or mine, is correct as a matter of interpretation may well be immaterial. I am convinced that the Supreme Court has left no constitutional leeway to make the interpretation the majority makes and that its result violates the constitutional rights of the defendants and the publishers of free speech and free press.
In seeking to go to the Supreme Court, Roth raised four issues of substance—whether (a) the federal statute violated first amendment guarantees; (b) was too vague; (c) invaded the reserved powers of the States and the people; and, finally, (d) whether the publications were obscene. Roth seriously pressed only the first three; his argument on the fourth was so perfunctory the government did not reply. The Court limited the certiorari granted to the first three issues. The Alberts case, decided with Roth , ended in the Supreme Court in the same posture as Roth—at a level of abstraction so rarefied that the facts had become immaterial.
The Solicitor General brought the case to a more earthy *333 level. In his brief he pointed out that the violations of the Federal obscenity statute fell into three categories. The first, some two per cent, comprised “novels of apparently serious literary intent” challenged because “they concentrate on explicit discussion of sex conduct in a vocabulary based on four letter words.” The second category, less than ten per cent, he said was border-line material, mainly photographic. The final group, ninety per cent of the whole, comprised what the Solicitor General described as “black market” or “hard-core” pornography. To make sure the Court knew what he meant by “hard-core pornography” he sent to the Court a carton containing numerous samples concededly in that category. 4
The foregoing account of the Roth-Alberts case was taken from Lockhart and McClure, Censorship of Obscenity, 45 *334 Minn. R. Rev. pp. 19-29. The authors later revert to the subject and conclude (p. 60) :
“In voting to sustain the constitutionality of the obscenity statutes of California and of the United States, Justices Frankfurter, Burton, Clark, Brennan, *335 and Whittaker must have had material of this kind in mind for hard-core pornography, particularly in pictorial form, is so blatantly shocking and revolting that it would have been impossible for the Justices to put it out of mind. Since the basic issue before the Court was only the constitutionality of the statutes on their faces and in a vacuum, without regard to their application in the two cases, it seems likely that the Court upheld their constitutionality as imaginatively applied to hard-core pornography.
“We conclude, therefore, that the concept of obscenity held by most members of the Court is probably hard-core pornography, a conclusion consistent with the Court’s 'rejection of obscenity as utterly without redeeming social importance.’ ”
This view is strongly confirmed by the per curiam decisions which followed Roth on distinctly mundane levels. In each on the citation of Roth the Court reversed United States Court of Appeals decisions that had upheld obscenity censorship, and demonstrated that in Roth it had placed really very tight restraints on what can constitutionally be censored as obscene.
The views of Messrs. Eockhart and McClure as to the meaning of Roth undoubtedly are shared by the Court of Appeals of New York which, in The People, etc. v. Richmond County News, Inc., supra, clearly indicated its interpretation of the New York statute as reaching only “hard-core” pornography was compelled by the Roth and the per curiam holdings. *336 Chief Judge Desmond, concurring in the Richmond case, said so in so many words, and, concurring in Kingsley Inter. Pic. Corp. v. Regents of Univ. of N. Y. (N. Y.), 151 N. E. 2d 197, 207-208 , observed that the Supreme Court in the per curiams must have looked at the challenged material and found it not obscene under Roth . Other cases which would seem to have shared the same views include those in the footnote below. 5
One of the significant per curiams which followed Roth was Times Films Corp. v. City of Chicago, 355 U. S. 35 , 2 D. Ed. 2d 72. The Court of Appeals described the motion picture “The Game of Love,” held obscene by it, as follows:
“We found that, from beginning to end, the thread of the story is supercharged with a current of lewdness generated by a series of illicit sexual intimacies and acts. In the introductory scenes a flying start is made when a 16 year old boy is shown completely nude on a bathing beach in the presence of a group of younger girls. On that plane the narrative proceeds to reveal the seduction of this boy by a physically attractive woman old enough to be his mother. Under the influence of this experience and an arrangement to repeat it, the boy thereupon engages in sexual relations with a girl of his own age. The erotic thread of the story is carried, without deviation toward any wholesome idea, through scene after scene. The narrative is graphically pictured with nothing omitted except those sexual consummations which are plainly suggested but meaningfully omitted and thus, by the very fact of omission, emphasized.
“We do not hesitate to say that the calculated purpose of the producer of this film, and its dominant *337 effect, are substantially to arouse sexual desires. We are of the opinion that the probability of this effect is so great as to outweigh whatever artistic or other merits the film may possess. We think these determinations are supported by the effect which this film would have upon the normal, average person.” ( 244 F. 2d 432, 436 )
A second appeal, One, Inc. v. Olesen, 355 U. S. 371 , 2 L. Ed. 2d 352 , was from the decision of the Court of Appeals of the Ninth Circuit, holding the magazine “One” and the advertisement in it of the magazine “Circle” which contained pictures and stories of homosexuality and lesbianism obscene. The Court of Appeals described its findings in this way:
“The article ‘Sappho Remembered’ is the story of a lesbian’s influence on a young girl * * *. This article is nothing more than cheap pornography calculated to promote lesbianism. It falls far short of dealing with homosexuality from the scientific, historical and critical point of view.
“The poem ‘Lord Samuel and Lord Montagu’ is about the alleged homosexual activities of Lord Montagu and other British Peers and contains a warning to all males to avoid the public toilets while Lord Samuel is ‘sniffing round the drains’ of Piccadilly (London). The poem pertains to sexual matters of such a vulgar and indecent nature that it tends to arouse a feeling of disgust and revulsion. It is dirty, vulgar and offensive to the moral senses.
“An examination of ‘The Circle’ clearly reveals that it contains obscene and filthy matter which is offensive to the moral senses, morally depraving and debasing, and that it is designed for persons who have lecherous and salacious proclivities.
“The picture and the sketches are obscene and filthy by prevailing standards. The stories ‘All This and Heaven Too’, and ‘Not Til the End’, pages 32-36, are similar to the story ‘Sappho Remembered’, *338 except that they relate to the activities of the homosexuals rather than lesbians. Such stories are obscene, lewd and lascivious. They are offensive to the moral senses, morally depraving and debasing.” ( 241 F. 2d 772, 777, 778 )
The third case, Sunshine Book Co. v. Summerfield, 355 U. S. 372 , 2 L. Ed. 2d 352 , involved a nudist magazine. The Court of Appeals quoted with approval the language of Sunshine Book Co. v. McCaffrey, 112 N. Y. S. 2d 476, 483, that:
“Where the dominant purpose of nudity is to promote lust, it is obscene and indecent. The distribution and sale of the magazines in this case is a most objectionable example. The dominant purpose of the photographs in these magazines is to attract the attention of the public by an appeal to their sexual impulses. * * * Men, women, youths of both sexes, and even children, can purchase these magazines. They will have a libidinous effect upon most ordinary, normal, healthy individuals. Their effect upon the abnormal individual may be more disastrous.” ( 249 F. 2d 114, 118, 119 )
The Supreme Court must have made an independent examination of the material in each case and found that censorship offended constitutional privileges for the Court simply reversed on the citation of Roth , and so terminated the litigation and gave final protection to the material.
The material it protected had been thought obscene by the lower court judges, applying what they deemed to be the contemporary standards of the average or normal person. Yet the Supreme Court, as I interpret its actions, held the pictures and writings were not obscene under the Roth standards. I can only conclude that as of now the Supreme Court will permit the proscription only of hard-core pornography and I find nothing in the magazines before the Court coming within that category.
The Supreme Court in Roth (p. 488 of 354 U. S., p. 1509 of 1 L. Ed. 2d) said, speaking of “the fundamental freedoms *339 of speech and press,” that “Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.”
The background of Roth, and the three per curiams that followed, lead me to conclude that the door has been opened very slightly for the censors—not enough to permit them to get at the magazines in this case—and that the Roth standard, as understood and applied by the Supreme Court, is a very tight standard, reaching only “hard-core” pornography. If I am right the application of the Maryland statute, applied as the majority has applied it in this case, was unconstitutional.
I would reverse the judgments appealed from.
. The Court of Appeals of New York comments on the last statements in The People, etc. v. Richmond County News, Inc. (N. Y.), 175 N. E. 2d 681 , saying: “It is noteworthy that, despite the reams of material on the effect of books, magazines and other media of expression on sexual conduct, ‘there is very little scientific evidence’ on the subject. (St. John-Stevas, Obscenity in the Law (1956), p. 196; see, also, Brown v. Kingsley Books, 1 N. Y. 2d 177, 181, fn. 3; United States v. Roth, 237 F. 2d 796, 812-817 , per Frank, J., concurring, affd. 354 U. S. 476 ). Indeed, two authoritative writers in the field have concluded that, ‘Although the whole subject of obscenity censorship hinges upon the unproved *328 assumption that “obscene” literature is a significant factor in causing sexual deviation from the community standard, no report can be found of a single effort at genuine research to test this assumption by singling out as a factor for study the effect of sex literature upon sexual behavior.’ (Lockhart and McClure, Obscenity and the Courts, 30 Law and Contemporary Problems, 587, 595; see, also, American Law Institute, Model Penal Code, Tentative Draft No. 6, Sec. 307.10, p. 44). Some commentators have gone even further and suggested that ‘for an undetermined number of individuals, the writing or reading of obscenity may be a substitute for rather than a stimulus to physical sexuality.’ (American Law Institute, Model Penal Code, Tentative Draft No. 6, Sec. 307.10, p. 45).” The suggestion in these writings is that there is no causal connection between what is regarded as “obscene” and antisocial conduct of a sexual nature.
. Manifestly local community standards as to what is or is not obscene vary to a considerable degree. What a jury in the more unsophisticated sections of Maryland—in some parts of the Eastern Shore and in more remote Southern and Western Maryland—might consider beyond the pale, a jury in Baltimore or the metropolitan counties of the State might find acceptable. Lockhart and McClure in their article in 45 Minn. L. Rev. 5 point out at page 36 that “In Los Angeles, New York, and perhaps also Chicago, the Post Office and Justice Departments had difficulty convicting persons for mailing obscene matter; courts and juries there were too sophisticated, their attitudes too liberal * * * the two departments supported the enactment of legislation authorizing prosecution of a mailer at any place through which the mail passed, as well as at the place of receipt of the mail. It would be easier to obtain convictions and heavier sentences in the hinterland * * The authors add at page 109 that “At trials in more straight-laced communities, the government could make particular effective use of such trial tactics as refusing to consent to waivers of jury trials; and then, having insisted on jury trials, it could peremptorily challenge the most literate and best educated jurors. If ‘contemporary community standards’ has reference to the standards of state or local communities, and if those standards are to be applied by a jury, then these tactics will enable the government to secure convictions which heretofore would have been difficult or impossible to obtain.”
. The Court found “Black Garter” not to be obscene. “Consort’ *331 and “Torrid” would not seem to be any more so under any reasonable test of obscenity. “Candid” and “Sextet” have one or two stories approaching the obscene and almost all of “Cloud 9” is on the borderline.
. The Solicitor General described “hard-core” pornography as follows:
“This is commercially-produced material in obvious violation of present law * * * This material is manufactured clandestinely in this country or abroad and smuggled in. There is no desire to portray the material in pseudo-scientific or ‘arty’ terms. The production is plainly ‘hard-core’ pornography, of the most explicit variety, devoid of any disguise.
“Some of this pornography consists of erotic objects. There are also large numbers of black and white photographs, individually, in sets, and in booklet form, of men and women engaged in every conceivable form of normal and abnormal sexual relations and acts. There are small printed pamphlets or books, illustrated with such photographs, which consist of stories in simple, explicit, words of sexual excesses of every kind, over and over again. No one would suggest that they had the slightest literary merit or were intended to have any. There are also large numbers of ‘comic books,’ specially drawn for the pornographic trade, which are likewise devoted to explicitly illustrated incidents of sexual activity, normal or perverted * * *. It may safely be said that most, if not all, of this type of booklets contain drawings not only of normal fornication but also of perversions of various kinds.
“The worst of the ‘hard-core’ pornographic materials now being circulated are the motion picture films. These films, sometimes of high technical quality, sometimes in color, show people of both sexes engaged in orgies which again include every form of sexual activity known, all of which are presented in a favorable light. The impact of these pictures on the viewer cannot easily be *334 imagined. No form of incitement to action or to excitation could be more explicit or more effective.
“Brief for the United States, pp. 37-38, United States v. Roth, 354 U. S. 476 (1957).
“The Solicitor General also sought to distinguish hard-core pornography from material in ‘the borderline entertainment area.’ He said:
“The distinction between this [hard-core pornography] and the material produced by petitioner and others, as discussed above, is not based upon any difference in intent. Both seek to exploit the erotic market place. The difference is that the ‘black-market’ traffickers make no pretence about the quality and nature of the material they are producing and offering.
* **
D. H. Lawrence wrote in Pornography and Obscenity in Sex Literature and Censorship (1953):
“But even I would censor genuine pornography, rigorously. It would not be very difficult. In the first place, genuine pornography is almost always underworld, it doesn’t come into the open. In the second, you can recognize it by the insult it offers, invariably, to sex, and to the human spirit.
“Pornography is the attempt to insult sex, to do dirt on it. This is unpardonable. Take the very lowest instance, the picture postcard sold underhand, by the underworld, in most cities. What I have seen of them have been of an ugliness to make you cry. The insult to the human body, the insult to a vital human relationship! Ugly and cheap they make the human nudity, ugly and degraded they make the sexual act, trivial and cheap and nasty.
“It is the same with the books they sell in the underworld. They are either so ugly they make you ill, or so fatuous you can’t imagine anybody but a cretin or a moron reading them, or writing them.”
The Kronhausens in Pornography and The Law 178-343 (1959) say pornographic books “are always made up of a succession of increasingly erotic scenes without distracting non-erotic passages. These erotic scenes are commonly scenes of willing, even anxious seduction, of sadistic defloration in mass orgies, of incestuous relations consummated with little or no sense of guilt, of super-permissive parent figures who initiate and participate in the sexual ac *335 tivities of their children, of profaning the sacred, of supersexed males and females, of Negroes and Asiatics as sex symbols, of male and particularly female homosexuality, and of flagellation, all described in taboo words. The sole purpose of pornographic books is to stimulate erotic response, never to describe or deal with the basic realities of life.”
(As summarized by Lockhart and McClure, Censorship of Obscenity, 45 Minn. L. Rev. 63 -64)
See also the graphic description of the illicit traffic in “hardcore” pornography detailed in Chapter 1 of James Jackson Kilpatrick’s “The Smut Peddlers” (1960).
. Excelsior Pictures Corp. v. City of Chicago, 182 F. Supp. 400 (N. D. Ill.); Commonwealth v. Moniz (Mass.), 155 N. E. 2d 762 ; City of Cincinnati v. Walton (Ohio), 145 N. E. 2d 407 ; United States v. Keller, 259 F. 2d 54 (3rd Cir.); People v. Silberglitt, 182 N. Y. S. 2d 536.