Amicus Curiae Brief — Ginzburg v. United States

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SEP 29 1965

IN THE JOHN F. DAVIS, CLER

Supreme Court of the United States

Ocroser Term, 1965

No. 42

Rate Ginzspurc, Documentary Books, Inc.,

Eros Macazing, Inc., Liaison News Letter, Inc.,

Petitioners,

Unitep States or AMERICA,

Respondent.

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL LIBERTIES UNION

OF PENNSYLVANIA, AMICI CURIAE

Bernarp A. BERKMAN

1320 The Superior Building

Cleveland, Ohio 44114

Metvin L. Wuur

Seymour H. Bucnoiz

156 Fifth Avenue

New York, New York 10010

Murray Pow.en

1405 Locust Street

Philadelphia, Pennsylvania

;

Attorneys for Amici Curiae

WE?

Interest of Amici

Statement of Facts

Summary of Argument

ARGUMENT

II.

CoNCLUSION .....

INDEX

All utterances are within the protection of the

First Amendment and may not be restricted un-

less there is a clear and present danger that they

will bring about a substantive evil to society

unless. restrained

The test of obscenity as announced in Roth v.

United States and interpreted in subsequent de-

cisions is vague and unworkable and inhibits

the dissemination of expression which is not

obscene and clearly within the protective scope

of the First Amendment

A. Obscenity Standards of Sex Portrayal

B. The “Average Person”

C. Determining What Is “Utterly Without Re-

deeming Social Importance”

SRE PHP TOR EE,

TABLE oF AUTHORITIES

Cases:

Abrams v. United States, 250 U. S. 616 (1919)

American Mercury, Ine. v. Chase, 13 F. 2d 224 (D. C.

Cir. 1926) 37

A Quantity of Copies of Books v. Kansas, 378 U. S.

205 (1964) } . 10, 36

Bantam Books, Inc. v. Melko, 25 N. J. Super. 292, 96

A. 2d 47 (1950) 37

Bantam Books, Ine. v. Sullivan, 372 U. 8. 58 (1963) ... 10

Beauharnais v. Illinois, 343 U. 8. 250 (1952) ....7, 8, 15, 17, 19

Bridges v. California, 314 U. S. 252 (1941) 00. 5

Butler v. Michigan, 352 U. S. 380 (1957) 200. 30

Cantwell v. Connecticut, 310 U. S. 296 (1940) 00... 15

Chaplinsky v. New Hampshire, 315 U. 8. 568 (1942) ..5, 6,17

Commonwealth v. Gordon, 66 Pa. D. & C. 101 (1949) ..7,9,

26, 29

Commonwealth v. Isenstadt, 318 Mass. 543, 62 N. E. 2d

a IN TITTE -diichinsechinsnnaticiteiidedeebeiiniiesmeniadielibcaniibiabininapicenaaees 31

Dennis v. United States, 341 U. S. 494 (1951) ....15, 37, 38

Edwards v. South Carolina, 372 U. S. 229 (1963)

Garrison v. Louisiana, 379 U. S. 64 (1964)

Gitlow v. New York, 268 U. S. 652 (1925)

Grove Press, Inc. v. Gerstein, 378 U. S. 577 (1964) ....

Haldeman v. United States, 340 F. 2d 59 (10th Cir.

1965)

Herndon v. Lowry, 301 U. S. 254 (1937)

PAGE

Jacobellis v. Ohio, 378 U. S. 184 (1964) 9,10,11,21 _

Jacobellis v. United States, 378 U. S. 184 (1964) —...... 12

Kingsley Books, Inc. v. Brown, 354 U. 8. 436 (1957) ... 10

Kingsley Int’! Pictures Corp. v. Regents, 360 U. 8. 684

(1959) . 39

Manual Enterprises, Inc. v. Day, 370 U. S. 478 (1962)

9, 10, 21, 25, 31

Marcus v. Search Warrant, 367 U. S. 717 (1961) -...... 10

Mounce v. United States, 355 U. 8. 180, reversing 247

F. 2d 148 (9th Cir. 1957) 9, 11

N. A. A. C. P. v. Button, 371 U. S. 415 (1963) -...... 12, 26, 33

New American Library v. Allen, 114 F. Supp. &%

i 2s 2 ee “7

New York Times v. Sullivan, 376 U. S. 254 (1964) ...15, 16,

17,19

Olmstead v. United States, 277 U. S. 438 (1928) ........ 2

One, Inc. v. Olesen, 355 U. S. 371 (1958), reversing

241 F. 2d 772 (9th Cir. 1957) 9

Pennekamp v. Florida, 328 U. S. 331 (1946) ..0000..... 15

Public Utilities Commission v. Pollack, 343 U. S. 451

(1952) 16

Regina v. Hicklin, [1868} L. R. 3 Q. B. 360 _...... 21, 24, 30

Roth v. United States, 354 U. S. 484 (1957) 0... 3,

passim

Schenck v. United States, 249 U. S. 47 (1919) 0... 5, 6, 15

Smith v. California, 361 U. S. 147 (1959) _....... 10, 22, 37

PAGE

State v. Jacobellis, 173 Ohio St. 22, 179 N. E. 2d 777

(1962) 10

State v. Jacobellis, 115 Ohio App. 226, 175 N. E. 2d

123 (1961) ..... 10

Stromberg v. California, 283 U. 8. 359 (1931) -........... 16

Sunshine Book Co. v. Summerfield, 355 U. S. 372 (1958),

reversing 249 F. 2d 114 (D. C. Cir. 1957) .......00002... 9,11

Terminiello v. Chicago, 337 U. S. 1 (1949) -.20000...... 15, 16

Thomas v. Collins, 323 U. S. 516 (1945) 2. 15

Thornhill v. Alabama, 310 U. 8S. 88 (1940) 20202000... 15

Times Film Corp. v. City of Chicago, 355 U. 8. 35,

reversing 244 F, 2d 432 (7th Cir. 1957) 2.0.0.2... 9,11

Times Film Corp. v. City of Chicago, 365 U. 8. 43

CRIED acansctirerceiiidatlateilheesidaaeininrcviioennbanbovnmaaibcaniihdanadncenicaas 10

Tralins v. Gerstein, 378 U. S. 576 (1964) 000. 9

Trans-Lux Distrib. Corp. v. Board of Regents, 85 Sup.

RE IE PET tnisiasniastsbeennasenpnsepttaniittnipg upline g

United States v. Associated Press, 52 F. Supp. 362

oe ek | ee eee 39

United States v. Kennerley, 209 Fed. 119 (D. S. D.

I rere erence nemeenrer ct IRS it OnE SCO 24

United States v. One Book Called “Ulysses,” 5 F. Supp.

182 (S. D. N. Y. 1933), aff'd 72 F. 2d 705 (2d Cir.

I ccssinrcesncacschcnasiasiucassitpielacacttinrsoseiainsivaeeilaiealinaiglateadesbaneniaiia 30

United States v. Roth, 237 F. 2d 796 (2d Cir. 1956) ..7, 9, 26,

Whitney v. California, 274 U. S. 357 (1927) ................ 5, 14

Winters v. New York, 333 U.S. 507 (1948) _.0.. 30

Wood v. Georgia, 370 U. S. 375 (1962) ........................ 15

Yates v. United States, 354 U. S. 298 (1957) -.............. 15

PAGE

Statutes and Rules:

First Amendment to Constitution of the United States 2,

passim

Fourteenth Amendment to Constitution of the United

OTIS nciccnnstgeowsves scbtilebshedapneatotiens Bs 1

18 U. S. C. $1461 .... 4

Miscellaneous:

A. L. I., Model Penal Code, Tent. Draft No. 6 (1957) ..24, 26

Alpert, Judicial Censorship of Obscene Literature, 52

ee ne nttitepecciesiiiinas 9, 26

Cairns, Paul and Wishner, Sex Censorship: The As-

sumptions of Anti-Obscenity Laws and the Empirical

Evidence, 46 Minn. L. Rev. 1009 (1962) ......200.0...... 9, 27

Henkin, Morals and the Constitution: The Sin of

Obscenity, 63 Columbia L. Rev. 391 (1963) -............... 16

The Institute for Sex Research, Inc., Sex Offenders

STITT salidatasinicichdbdiesstbdctedgalelddasaecatithcaddds doen habia eed iiesien 9, 26

Jahoda and staff of Research Center for Human Re-

lations, New York University, The Impact of Litera-

ture, A Psychological Discussion of Some Assump-

tions in the Censorship Debate (1954) -2000000000202.... 9, 26

Kalven, Metaphysics of the Law of Obscenity, Su-

preme Court Review (Univ. of Chicago Press, 1960) .. 23

Kalven, The New York Times Case: A Note on “The

Central Meaning of the First Amendment,” The Su-

preme Court Review 191 (1964) 200 eee 7

Kinsey, Sexual Behavior in the Human Maiec (1948) .... 31

Kronhausen, Pornography and the Law (195%)

Reis. 31, 35

RAO ar cam Ne

PAGE

Lawrence, Pornography and Obscenity in Sex Litera-

ture and Censorship (1953)

Libel and Slander, 53 C. J. S. §4 8

Lockhart and McClure, Censorship of Obscenity, The

Developing Constitutional Standards, 45 Minn. L.

Rev. 5 (1960) 9, 23

Lockhart and McClure, Obscenity and the Courts, 20

Law and Contemp. Probs. 587 (1955) 26

Lockhart and McClure, Literature, the Law of Ob-

scenity, and the Constitution, 38 Minn. L. Rev. 295

(1954) a: Se

Mead, Sex and Censorship in Contemporary Society,

New World Writings (Third Mentor Selection 1953) 32

Mill, Essay on Liberty =

Murphy, The Value of Pornography, 10 Wayne L. Rev.

655 (1964) 9, 26, 35

Report of the Committee on Forensic Psychiatry,

Group for the Advancement of Psychiatry (No. 9,

Rev. 1950) ... 31

IN THE

Supreme Court of the United States

Octoser Term, 1965

No. 42

Ratpx Ginzeurc, Documentary Books, Inc.,

Eros Macazing, Inc., Liaison News Lerten, Inc.,

Petitioners,

——V.—

Unitep Srates oF AMERICA,

; Respondent.

—$—>——

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL LIBERTIES UNION

OF PENNSYLVANIA, AMICI CURIAE

Interest of Amici

The American Civil Liberties Union and its Pennsylvania

affiliate, the Pennsylvania Civil Liberties Union, are or-

ganizations dedicated to the preservation of a free and open

society, principally through the protections embodied in our

Bill of Rights and the Fourteenth Amendment to the United

States Constitution.

Freedom of expression is a particular facet of this con-

eern. Accordingly, this brief of amici curiae is filed be-

cause it appears to us that the federal felony conviction

of a publisher for using the mails to distribute to the pub-

lic books and magazines about whose aesthetic merit re-

sponsible opinion varies widely, abridges the freedom of

expression guaranteed by the First Amendment—hboth as

to the right of the distributor to disseminate and the cor-

responding right of members of the adult public to exer.

cise their freedom of choice in determining for themselves

what forms of artistic and literary expression they will

experience.

Our interest is not in the protection of smutty books

and magazines, nor do we presume to judge the artistic

merit of the publications whose distribution caused peti-

tioners’ conviction here. Neither is our interest limited to

our objection to the suppression of the particular books

and magazines here involved. Our concern is that, sup-

pressed in addition to these publications, is the courage of

this distributor and others to continue to disseminate the

entire spectrum of artistic and literary creativity, for fear

of future prosecutions.

In the firm belief that “the widest scope of freedom is

to be given to the adventurous and imaginative exercise

of the human spirit,”* and in the hope that it will be of

some assistance to the Court in dealing with its great task

of preserving freedom of expression from “insidious en-

croachment by men of zeal, well-meaning but without under-

standing,” * this brief is filed.

The written consent of the parties to this appearance

of amici has been filed with the Clerk of the Court.

1 Kingsley Int’l Pictures Corp. v. Regents, 360 U. S. 684, 695

(1959) (Frankfurter, J., concurring).

2 Olmstead v. United States, 277 U. S. 438, 479 (1928) (Brandeis,

J., dissenting).

Statement of Facts :

Petitioners were indicted and convicted on twenty-eight

counts of mailing obscene publications and advertisements

for such publications in violation of 18 U. 8. C. $1461. The

publications in issue were a magazine, Eros, Vol. 1, No. 4,

a book, The Housewife’s Handbook of Selective Promiscu-

ity, and a newsletter, Inaison, Vol. 1, No, 1.

At the trial before the District Court, sitting without a

jury, it was stipulated that petitioners had mailed the

challenged publications with knowledge of the contents and,

after presenting some evidence to show criminal intent, the

prosecution introduced the publications and rested. A de-

fense motion for acquittal was denied.

For its case, the defense offered the expert testimony

of a clinical psychologist, a practicing psychiatrist, literary

critic Dwight MacDonald, the chairman of the fine arts de-

partment of New York University and a Baptist minister,

who testified in sum that the publications, while admittedly

erotic in character, did not go bevond customary limits of

candor, were not patently offensive and had no tendency to

arouse the prurient interest of the average adult, that some

of the material in Eros had considerable literary and ar-

tistic merit, that the Housewife’s Handbook involved the

advocacy of ideas and had educational and clinical value.

The prosecution introduced rebuttal testimony of two psy-

chiatrists and a Baptist minister. Their testimony was

admitted for the limited purpose of rebutting the expert

testimony offered by the defense and not as affirmative

evidence in the prosecution’s case in chief.

All of the publications were held to be obscene within

the meaning of Roth v. United States, 354 U. S. 484 (1957),

and petitioners were found guilty on all counts.

Petitioner Ginzburg, a first offender, was sentenced to

five years imprisonment and a fine of $28,000.00. The cor-

porate petitioners were fined a total of $14,000.00. The

Court of Appeals for the Third Circuit affirmed the con-

victions. Sentences have been stayed pending determina-

tion of the validity of the convictions by this Court.

Summary of Argument

Inasmuch as the petitioner was convicted on counts of

mailing obscene publications and advertisements for such

publications in violation of 18 U. S. C. §1461 under the

verbal formula for determining what is obscene for con-

stitutional purposes, announced in Roth v. United States,

354 U. S. 476 (1957), and interpreted in subsequent cases,

it is appropriate for amici curiae, in urging reversal of

the conviction below, to re-examine that holding.

In light of the imperatives of freedom of expression and

the decisions and sociological studies since the enunciation

of the Roth rule, we urge the Court to reconsider certain

aspects of that decision. r

We contend that:

I. All utterances are within the protection of the

First Amendment and may not be restricted unless

there is a clear and present danger that they will bring

about a substantive evil to society unless restrained.

II. The test of obscenity as announced in Roth v.

United States and interpreted in subsequent decisions

is vague and unworkable and tends to inhibit the dis-

semination of expression which is not obscene and

clearly within the protective scope of the First Amend-

ment.

Each of these contentions will be discussed in sequence

and detail below.

ARGUMENT

All utterances are within the protection of the First

Amendment and may not be restricted unless there is

a clear and present danger that they will bring about a

substantive evil to society unless restrained.

When this Court held in Roth v. United States, 354 U.S.

476, 485 (1957) “that obscenity is not within the area of

constitutionally protected speech or press” it embarked

upon a philosophic voyage in the law of obscenity whose

consequences to freedom of expression can only be unfortu-

nate, to say the least.

Until Chaplinsky v. New Hampshire, 315 U.S. 568 (1942),

this Court had never held that any form of utterance was

per se outside the scope of the protection of the First

Amendment. All forms of expression were subjected,

rather, to the “clear and present danger” standard* within

*See Holmes, J., for the Court in Schenck v. United States, 249

U. 8. 47, 52 (1919): “The question in every case is whether

the words used are used in such circumstances and are of such

a nature as to create a clear and present danger that they will

bring about the substantive evils that Congress has a right to

prevent. It is a question of proximity and degree.” See also Abrams

v. United States, 250 U. S. 616 (1919) (dissenting opinion), Gitlow

v. New York, 268 U. S. 652 (1925) (dissenting opinion), Whitney

v. California, 274 U. 8. 357 (1927) (concurring opinion of Brandeis,

J.). And see Bridges v. California, 314 U. S. 252, 263, 265 (1941)

IE ON ON IT Ey

the framework of the First Amendment to determine

whether governmental restraint was constitutionally per-

missible.

In Chaplinsky, however, the Court for the first time

articulated a concept of “unprotected speech”, based not

upon its dangerous consequences to society, but upon its

lack of social value. Upon facts which might well have

been similarly resolved with less violence to settled First

Amendment principle,‘ Mr. Justice Murphy stated the prop-

osition broadly:

“There are certain well-defined and narrowly limited

classes of speech, the prevention and punishment of

which has never been thought to raise any Constitu-

tional problem. These include the lewd and obscene, the

profane, the libelous, and the insulting or ‘fighting’

words—those which by their very utterance inflict in-

jury or tend to incite an immediate breach of the peace,

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 out-

weighed by the social interest in order and morality.” °

which held that freedom of expression was entitled to “the broadest

scope that could be countenanced in an orderly society,” subject

only to the requirement of the clear and present danger standard,

defined as “a working principle that the substantive evil must

be extremely serious and the degree of imminence extremely high

before utterances can be punished.”

*The epithets and vituperative remarks here involved and de-

scribed as “fighting” words might have been disposed of as “words

that . . . have all the effect of force,” Schenck v. United States,

249 U. S. 47, 52 (1919) or as expression “so closely brigaded with

illegal action as to be an inseparable part of it,” Roth v. United

Stutes, 354 U. S. 476, 514 (1957) (Douglas, J. dissenting) but

within the protection of the First Amendment.

5 Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942).

_—

Ten years later, in Beauharnais v. Illinois, 343 U. S. 250

(1952), a different class of expression—libel—was ex-

empted from the protection of the First Amendment and

measurement against “clear and present danger” standards.

In upholding the constitutionality of a state statute pro-

hibiting group libel, Justice Frankfurter, site for a

closely divided Court,’ said:

“Libelous utterances not being within the area of con-

stitutionally protected speech, it is unnecessary .. .

to consider the issues behind the phrase ‘clear and

present danger’. Certainly no one would contend that

obscene speech for example, may be punished only

upon a showing of such circumstances.’ Libel, as we

have seen, is in the same class.” °

In Roth v. United States, 354 U. S. 476 (1957), this Court

considered yet another forr: of utterance—obscenity—for

the first time. Following Beauharnais despite vigorous ar-

guments to the contrary,’ the Court transformed the dicta

* Beauharnais v. Illinois, 343 U. S. 250 (1952). See dissenting

opinions of Black, J. at 267, Reed, J. at 277, Douglas, J. at 284

and Jackson, J. at 287.

‘That Justice Frankfurter’s assessment of the number of those

who would precisely so contend is, to say the least, conservative.

See, e.g., United States v. Roth, 237 F. 2d 796, 801 (2d Cir. 1956)

(Frank, J. concurring) ; Roth v. United States, 354 U. S. 476, 508

(1957) (Douglas, J. and Black, J. dissenting) ; Commonwealth v.

Gordon, 66 Pa. D. & C. 101 (1949) ; and see Kalven, The New York

Times Case: A Note on “The Central Meaning of the First Amend-

ment,” The Supreme Court Review 191, 214 (1964).

8 Beauharnais v. Illinois, 343 U. S. 250, 266 (1952).

°“Tt is strenuously urged that these obscenity statutes offend

the constitutional guarantees because they punish incitation to im-

pure sexual thoughts, not shown to be related to any overt anti-

social conduct which is or may be incited in the persons stimulated

in a acc RR DIIRALAE.

in that decision into a square holding: that obscene ut-

terances are not within the ambit of First Amendment

protections and may be constitutionally suppressed in com-

plete disregard of clear and present danger standards.”

In thus emancipatiag itself, so far as obscene publica-

tions are concerned, from the First Amendment require-

ment that a clear and present danger of overt anti-social

conduct must be demonstrated before utterances may be

suppressed, this Court has necessarily taken upon itself

the task of determining whether utterances may be con-

stitutionally suppressed solely by the technique of cata-

loguing and labeling them, rather than by analyzing the

nature of the particular words sought to be suppressed and

the circumstances under which they are uttered to determine

the precise point at which such expression must give way

to the overriding requirements of society.

As a consequence, the factual separation of obscene

utterances, which may be suppressed, from _ protected

to such thoughts . . . It is insisted that the constitutional guar-

antees are violated because convictions may be had without proof

either that obscene material will perceptibly create a clear and

present danger of anti-social conduct, or will probably induce its

recipients to such conduct. But, in light of our holding that

obscenity is not protected speech, the complete answer to this

argument is in the holding of this Court in Beauharnais v. Ili-

nots....” Roth v. United States, 354 U. S. 476, 485-86 (1957).

10 Even if it is conceded arguendo that Beaxharnais was rightly

decided, a substantial argument can be made that the transfer of

the “unprotected speech” doctrine from libel to obscenity is un-

warranted because by definition libel requires proof of harm to

another as an essential element, see 53 C. J. S. §4, Libel and

Slander, while no such proof can be mustered with respect to ob-

scene material. See also Beauharnais v. Illinois, 343 U. 8. 250,

256 (1952) in which the Court found that group libel posed a

threat of violence.

_ —

speech, which may not,” has necessarily occupied a sub-

stantial portion of this Court’s attention since Roth.” —

11Jn the area of obscenity, the determination that a publication

is protected speech is, in most instances and for all practical pur-

poses, dispositive of the question of whether it may be: constitu-

tionally suppressed. For it has not yet been demonstrated, to satisfy

the clear and present danger standard, that pornography bears any

euusative relation whatever to overt anti-social conduct which so-

ciety may legitimately prevent. See Judge Frank’s collection of

studies of the behavioral sciences in United States v. Roth, 237

F. 2d 796, 812 (2d Cir. 1956) ; Lockhart & McClure, Censorship

of Obscenity, The Developing Constitutional Standards, 45 Minn.

L. Rev. 5 (1960); Alpert, Judicial Censorship of Obscene Litera-

ture, 52 Harv. L. Rev. 40 (1938); Jahoda and staff of Research

Center for Human Relations, New York University, The Impact

of Literature, A Psychological Discussion of Some Assumptions in

the Censorship Debate (1954); Cairns, Paul and Wishner, Sez

Censorship: The Assumptions of Anti-Obscenity Laws and the

Empirical Evidence, 46 Minn. L. Rev. 1009 (1962) ; Commonwealth

v. Gordon, 66 Pa. D. & C. 101 (1949); The Institute for Sex Re-

search, Inc., Sex Offenders (1965) pp. 126-127, 669-692; and see

Murphy, The Value of Pornography, 10 Wayne L. Rev. 655 (1964).

2 Times Film Corp. v. City of Chicago, 355 U. S. 35, reversing

244 F. 2d 432 (7th Cir. 1957) (the movie, “The Game of Love,”

held: not obscene) ; Mounce v. United States, 355 U. S. 180, re-

versing 247 F. 2d 148 (9th Cir. 1957) (an imported collection of

nudist and art student publications containing many nude photo-

graphs, held: not obscene); One, Inc. v. Olesen, 355 U. S. 371

(1958), reversing 241 F. 2d 772 (9th Cir. 1957) (“One—The Homo-

sexual Magazine,” held: not obscene) ; Sunshine Book Co. v. Sum-

merfield, 355 U. S. 372 (1958), reversing 249 F. 2d 114 (D. C. Cir.

1957) (“Sunshine & Health” and “Sun Magazine,” held: not ob-

scene) ; ef. Kingsley-Int’l Pictures Corp. v. Regents, 360 U. S. 684

(1959) (the French motion picture, “Lady Chatterley’s Lover,”

held: the statute under which conviction for exhibition of the film

had been obtained violated the First Amendment’s guarantee of

freedom to advocate ideas) ; Manual Enterprises, Inc. v. Day, 370

U. S. 478 (1962) (homosexual magazines with photographs of nude

or near nude male models, held: not obscene) ; Jacobellis v. Ohio,

378 U. S. 184 (1964) (French motion picture, “The Lovers” held:

not obscene) ; see also Grove Press, Inc. v. Gerstein, 378 U. S. 577

(1964); Tralins v. Gerstein, 378 U. S. 576 (1964); Trans-Luz

Distrib. Corp. v. Board of Regents, 85 Sup. Ct. 952 (1964).

SS REC ARE RASA IN eT ee cemmeneiat |

eae a BOI et 6

Recognizing that “a dim and uncertain line” ** separates

obscenity from protected speech, this Court has been faced.

with the problem of how such fine distinctions, fraught with

First Amendment implications, can be made.

A primary problem has been determining who may

properly decide such matters. A number of negative an-

swers have emerged from the decided cases.

Neither a police officer,* an administrative board,” the

postal authorities,** the booksellers,’ a police board of

censors,* a judge without a full hearing,” a judge sitting

without a jury after a full hearing,” nor even a jury” may

be the final arbiter of this ultimate issue.

Nor have the various courts of appellate review distin-

guished themselves for their ability to divine this Court’s

intentions on the matter.”

13 4 Quantity of Copies of Books v. Kansas, 378 U. 8. 205, 210

(1964). And see Bantam Books, Inc. v. Sullivan, 372 U. 8. 58, 66

(1963).

14 Marcus v. Search Warrant, 367 U.S. 717 (1961).

1° Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).

16 Manual Enterprises, Inc. v. Day, 370 U. 8. 478 (1962).

17 Smith v. California, 361 U.S. 147 (1959).

18 Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961).

19 4 Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964).

20 Kingsley Books, Inc. v. Brown, 354 U. 8. 436, 448 (1957).

21 Jacobellis v. Ohio, 378 U. S. 184, fn. 6 (1964).

22 Cf. State v. Jacobellis, 115 Ohio App. 226, 230, 175 N. E. 2d

123, 125 (1961): “... the motion picture film in issue is obscene,

lewd and lascivious within the definition . . . set forth in Roth v.

United States ...”; State v. Jacobellis, 173 Ohio St. 22, 28, 179

N. E. 2d 777, 781 (1962) (Ohie. Supreme Court found the film

depicted episodes “of complete revulsion during the showing of

an act of perverted obscenity” and was worse than hard-core

This Court has consequently been required to sift the

facts in each case in order to determine the constitutional

implications of suppressing the publications and motion

pictures brought to its attention. Given the law of obscenity

in its present posture, there can be no quarrel with this as-

sumption of judicial responsibility; but, unfortunately,

since it assumed this role in Roth v. United States, this

Court has been unable to obtain a consensus among its

members nor articulate sufficiently detailed working princi-

ples for the classification of utterances which Roth com-

pels** to guide the state and federal courts and legislatures

upon whose performance the preservation of freedom of

speech must ultimately depend.

Amici contend that a constitutional principle which re-

quires a fine factual discrimination to be made by qualified

persons who cannot be found, according to standards which

cannot be articulated, is, in fact, not a rule of law at all,

pornography). But see’ Jacobeliis v. Ohio, 378 U. S. 184 (1964)

(film held not obscene). See also Times Film Corp. v. City of

Chicago, 355 U. S. 35, reversing 244 F. 2d 432 (7th Cir. 1957) ;

Mounce v. United States, 355 U. S. 180, reversing 247 F. 2d 148

(9th Cir. 1957) ; Sunshine Book Co. v. Summerfield, 355 U. S. 372

(1958), reversing 249 F. 2d 114 (D. C. Cir. 1957).

28 Cf. Jacobellis v. Ohio, 378 U. S. 184, 200 (1964) (Warren,

CJ., dissenting) : “... most of our decisions since Roth have been

given without opinion and have thus failed to furnish . . . guidance

[to the lower courts and legislatures}. Nor does the Court in the

instant case . . . shed any greater light on the problem.” And

see Stewart, J., concurring in Jacobellis: “I shall not today at-

tempt . . . to define the kinds of materia! [which may be sup-

pressed] ; and perhaps I could never succeed in intelligibly doing

so. But I know it when I see it and the motion picture involved

in this case is not that.” (Emphasis supplied.) 378 U. S. 184, 197

(1964). Cf. Haldemon v. United States, 340 F. 2d 59, 62 fn. 6

(10th Cir. 1965) : “The writer of this opinion has also felt that he

would ‘know it when he saw it’ but a reading of some of the

published material held to be constitutionally protected tends to

raise doubts regarding one’s perceptive abilities in such matters.”

but rather, a license to adjudicate by whim and caprice,*

Such a constitutional scheme is particularly dangerous in

the sensitive area of First Amendment freedoms which

“need breathing space to survive” and in which “govern-

ment may regulate . . . only with narrow specificity.” *

(Emphasis supplied.)

But there is another, more substantive reason for recon-

sidering the Roth holding that obscenity is not protected

speech and returning to the First Amendment philosophy

by whose standards other forms of speech are measured.

It lies in the historical and cultural and philosophic origins

of our concern for preserving a free society and the in-

tegrity of thought and utterance of each of its members.

One of the principal architects of First Amendment

philosophy, John Stuart Mill, in his Essay on Liberty,

stated his conception of the proper relationship between

man and society as follows:

“. .. the sole end for which mankind are warranted,

individually or collectively, in interfering with the

liberty of action of any of their number, is self-protec-

tion.... [T]he only purpose for which power can be

rightfully exercised over any member of a civilized

community, against his will, is to prevent harm to

others. His own good, either physical or moral, is not

a sufficient warrant. He cannot rightfully be compelled

to do or forbear because it will be better for him to do

so, because it will make him happier, because, in the

opinions of others, to do so would be wise, or even

24“Tn truth the matter in the last analysis depends upon how

particular challenged material happens to strike the minds of

jurors and judges and ultimately those of a majority of the mem-

bers of this Court.” Jacobellis vy. United States, 378 U. S. 184, 204

(1964) (Harlan, J., dissenting).

2°N. A. A. C. P. v. Button, 371 U. S. 415, 433 (1963).

—

Bt eat

right. These are good reasons for remonstrating with

him, or reasoning with him, or persuading him, or

entreating him, but not for compelling him, or visiting

him with any evil in case he do otherwise. To justify

that, the conduct from which it is desired to deter him

must be calculated to produce evil to some one else.

* * * Over himself, over his own body and mind, the

individual is sovereign.

set AMOI LIS TORE OES:

“* * * No one pretends that actions should be as free

as opinions. On the contrary, even opinions lose their

immunity when the circumstances in which they are

expressed are such as to constitute their expression a

positive instigation to some mischievous act.

“* * * TWiith regard to the merely contingent, or,

as it may be called, constructive injury which a per-

son causes to society, by conduct which neither violates

any specific duty to the public, nor occasions per-

ceptible hurt to any assignable individual except him-

self ; the inconvenience is one which society can afford

to bear, for the sake of the greater good of human free-

dom.” (Emphasis added.)

This philosophy—that a man’s mind and thoughts are

his own, and that he may express his opinions without

societal restraint on any subject, whether or not these

thoughts appear to have any social value to the rest of the

| citizenry, until it can be demonstrated that his utterances

will necessarily harm another—has been compressed into

what is called the “clear and present danger” standard.

Not a mere slogan, its central meaning was laid bare by i

Ae BAN Nes ot a

Mr. Justice Brandeis in his concurring opinion in Whitney

v. California, 274 U. S. 357, 376-77 (1927):

The distinction between speech which stirs the minds of

men and speech which induces anti-social conduct or, to put

it another way, between utterances which affect thoughts

and those which incite to action, capsulized in the clear

and present danger formula, has traditionally been of

overriding importance in determining when the state may

properly suppress speech. “Freedom of expression can be

suppressed if, and to the extent that, it is so closely brigaded

“To justify supression of free speech there must be

reasonable ground to fear that serious evil will result

if free speech is practiced. There must be reasonable

ground to believe that the danger apprehended is im-

minent. There must e reasonable ground to believe

that the evil to be prevented is a serious one.

“Those who won our independence by revolution

were not cowards. They did not fear political change.

They did not exalt order at the cost of liberty. To

courageous, self-reliant men, with confidence in the

power of free and fearless reasoning applied through

the processes of popular government, no danger flow-

ing from speech can be deemed clear and present, un-

less the incidence of the evil apprehended is so immi-

nent that it may befall before there is opportunity for

full discussion. If there be time to expose through

discussion the falsehood and fallacies, to avert the evil

by the processes of education, the remedy to be applied

is more speech, not enforced silence.’”’ (Emphasis sup-

plied.)

with illegal action as to be an inseparable part of it.” *

(Emphasis supplied.)

This insistence upon a showing of the most urgent neces-

sity before curbing expression is an attitude which per-

yades the decided cases of this Court, both before and

since Roth.” This standard has been consistently applied

to all kinds of utterances, even though they may be foolish,

stupid, tasteless, or pure rubbish—except in one sphere:

publications on the subject of sex which are labeled “ob-

scene.” Expression which urges the overthrow of the gov-

ernment,”* utterances which urge economic pressure against

employers,” publications which libel public officials,*° sym-

2 Roth v. United States, 354 U. S. 476, 514 (1957) (dissenting

opinion). See also Douglas, J., dissenting in Beauharnais v. Illinois,

343 U. S. 250, 284 (1952) :

“My view is that if in any case other public interests are

to override the plain command of the First Amendment, the

peril of speech must be clear and present, leaving no room

for argument, raising no doubts as to the necessity of curbing

speech in order to prevent disaster.”

See also dissenting opinions of Reed, J., Black, J. and Jackson, J.

in Beauharnais.

27 Early cases which applied stringent clear and present dan-

ger standards to the suppression of speech or press, such as

Schenck v. United States, 249 U. S. 47, 52 (1919), Thornhill v.

Alabama, 310 U. S. 88, 104-105 (1940), Cantwell v. Connecticut,

310 U. S. 296, 311 (1940), Thomas v. Collins, 323 U. S. 516, 536

(1945), Pennekamp v. Florida, 328 U. S. 331 (1946) and Ter-

miniello v. Chicago, 337 U. 8. 1, 4-5 (1949) may appear to have

been modified by the “gravity of the ‘evil’ discounted by its im-

probability” test applied in Dennis v. United States, 341 U.S. 494,

510 (1951); but compare Yates v. United States, 354 U. S. 298

(1957). Later decisions of this Court indicate that the Dennis

test is limited to its peculiar facts. See Edwards v. South Carolina,

372 U. S. 229, 237-238 (1963), Wood v. Georgia, 370 U. 8S. 375,

385 (1962), New York Times v. Sullivan, 376 U. S. 254 (1964)

and Garrison v. Louisiana, 379 U. S. 64 (1964).

28 Herndon v. Lowry, 301 U.S. 254 (1937).

2° Thornhill v. Alabama, 310 U.S. 88 (1940).

8° New York Times v. Sullivan, 376 U.S. 254 (1964).

—

ESA MND OLE GATING LOGE SN LA

Me oP OIRRL AM

foc Sm OR POOIEN ERS

ne erenn

bols said to foster class antagonism,” vituperative speech

which charges racial and political groups with shocking

offenses in a highly charged atmosphere**—in all of these

cases the First Amendment has been quite properly inter-

posed between government and the speaker to protect the

utterance.

But publications on “sexy” subjects receive unique treat-

ment,** not because such matter constitutes a threat to so-

ciety, but because it is “utterly without redeeming social

importance,” * or, to state the proposition differently, “ob-

scenity ...is forbidden, in large part, not because it incites

but because it offends.” *

Amici submit that offense to the sensibilities of the audi-

ence is no proper ground for suppressing any speech. As

long as the audience chooses voluntarily to submit to the

offensive material, government may not intervene. See

Public Utilities Commission v. Pollack, 343 U. S. 451, 468-

469 (1952).

We are at one with Mr. Justice Douglas, dissenting in

Roth, when he said:

“T would give the broad sweep of the First Amend-

ment full support. I have the same confidence in the

31 Stromb~: g v. California, 283 U.S. 359 (1931).

3? yerminiello v. Chicago, 337 U.S. 1 (1949).

33 Roth v. United States, 354 U.S. 476 (1957).

34 Id. at 484. See discussion of the futility of dealing with this

concept, infra, pp. 20-38.

35 Henkin, Morals and the Constitution: The Sin of Obscenity,

63 Columbia L, Rev. 391, 393 (1963).

Seen

ability of our people to reject noxious literature as I

have in their capacity to sort cut the true froin the

false in theology, economics, politics, or any other

field.” **

It may well be that a means of deliverance from this con-

stitutional impasse is at hand.

When this Court decided New York Times v. Sullivan,"

“against the background of a profound national commit-

ment to the principle that debate on public issues should

be uninhibited, robust, and wide-open,” * it gave the First

Amendment new perspective, and for the first time since

the unfortunate language in Chaplinsky v. New Hampshire®

was followed in Beauharnais v. Illinois*®° and Roth v. United

States," replaced within the protections of the First

Amendment a segment of speech which had previously been

removed.*? Whether this holding marks the beginning of

a new direction for the Court in this sphere is too early to

36 Td. at 514.

37 376 U: S. 254 (1964).

88 Td. at 270.

39 315 U. S. 568, 571 (1942), quoted supra, p. 6.

49 343 U.S. 250 (1952).

*1 354 U. 8. 476 (1957).

“In Beauharnais, the Court found “libelous utterances not...

within the area of constitutionally protected speech ...” 343

U.S. 250, 266 (1952). New York Times v. Sullivan returned libel,

at least against public officials, to the scope of First Amendment

protections.

Ps DUN Sa ROMRGRERISED: OMIT BRAIN

determine,** but some of Mr. Justice Brennan’s language in

his opinion for the Court is pregnant with promise:

“In Beauharnais v. Illinois, .. . the Court sustained

an Illinois criminal libel statute as applied to a publica-

tion held to be both defamatory of a racial group and

‘liable to cause violence and disorder.’ But the Court

was careful to note that it ‘retains and exercises au-

thority to nullify action which encroaches on freedom

of utterance under the guise of punishing libel’... .

In deciding the questions [of constitutional limitations

upon the power to award damages for libel of a public

official] we are compelled by neither precedent nor

policy to give any more weight to the epithet ‘libel’

than we have to other ‘mere labels’... .

Like ‘insurrection’, contempt, advocacy of unlawful

acts, breach of the peace, obscenity, solicitation of

legal business and the various other formulae for the

repression of expression that have been challenged in

this court, libel can claim no talismanic immunity from

constitutional limitations. It must be measured by

standards that satisfy the First Amendment.” (Em-

phasis and bracketed material supplied.)

48 See Garrison v. Louisiana, 379 U. S. 64 (1964) (concurring

opinion): “Beauharnais v. Illinois, . . . a case decided by the

narrowest of margins, should be overruled as a misfit in our con-

stitutional system and as out of line with the dictates of the First

Amendment. I think it is time to face the fact that the only

line drawn by the constitution is between ‘speech’ on the one side

and conduct or overt acts on the other.”

44 The entire Court concurred in the result. Black, Douglas and

Goldberg, JJ. concurred on still broader grounds.

#5 376 U.S. 254, 268-269 (1964).

If Beauharnais has not been reversed so far as its pe-

culiar facts are concerned, the above language suggests

rather clearly that its rationale has been severely undercut

and that this Court now regards all classifications of ex-

pression, even “obscene speech”, to be within the ambit of

First Amendment protections.

Fur‘hermore it must be observed that the basic approach

of Beauharnais, bottomed as it was upon the holding that

“libelous utterances [are] not ... within the area of con-

stitutionally protected speech,” has been explicitly rejected

by the Court in New York Times v. Sullivan.

The questionable value of Beauharnais as precedent in its

present posture is of particular relevance to the re-examina-

tion of the holding in Roth that obscene speech is not pro-

tected by the First Amendment, for the Roth opinion relies

exclusively on Beauharnais for supportive precedent on that

point.“ That the decline and fall of Beawharnais as a prec-

edent has left Roth like a structure without a foundation,

cannot be denied.

Amici have attempted to demonstrate that Roth v. United

States was decided in violation of fundamental First

*6“Tt is insisted that the constitutional guarantees are violated

because convictions may be had without proof either that obscene

material will perceptibly create a clear and present danger of

anti-social conduct, or will probably induce its recipients to such

conduct. But, in light of our holding that obscenity is not pro-

tected speech, the complete answer to this argument is in the hold-

ing of this Court in Beauharnais v. Illinois . . .

‘Libelous utterances not being within the area of constitu-

tionally protected speech, it is unnecessary .. . to consider

the issues behind the phrase ‘clear and present danger.’ Cer-

tainly no one would contend that obscene speech, for example,

may be punished only upon a showing of such circumstances.

Libel, as we have seen, is in the same class.” (Emphasis

supplied.) Roth v. United States, 354 U. S. 476, 485-486

(1957).

Ra POE

eee ee

Amendment principle in the first place, that experience

under the Roth rule has been futile, and that subsequent

decisions in other First Amendment areas have exposed the

Roth holding for the anachronism that it is.

As the Court observed in Roth:

“The door barring federal and state intrusion into [the

area of fundamental freedoms of speech and press]

cannot be left ajar; it must be kept tightly closed and

opened only the slightest crack necessary to prevent

encroachment upon more importart interests.” *

Il. ee

The test of obscenity as announced in Roth v. United

States and interpreted in subsequent decisions is vague

and unworkable and inhibits the dissemination of ex-

pression which is not obscene and clearly within the

protective scope of the First Amendment.

It has already been argued that the holding in Roth v.

United States, 354 U. 8S. 476, 485 (1957) “that obscenity

is not within the area of constitutionally protected speech

or press” is a drastic curtailment of First Amendment pro-

tections.

We also urge that the standards expressed by the Court in

Roth and interpreted in subsequent cases, for determining

what forms of expression are “obscene” and therefore not

entitled to constitutional protection should be re-examined

because they are vague, unworkable and inhibit the dis-

semination of constitutionally protected expression.

47 354 U.S. 476, 488 (1957).

Obscenity, as defined in Roth, is “material which deals

with sex in a manner appealing to prurient interest,” or

“material having a tendency to excite lustful thoughts.”

Obscenity is “utterly without redeeming social importance.”

354 U. S. at 484. Furthermore, “the Roth standard [for

holding material obscene] requires ... a finding that the ma-

terial ‘goes substantially beyond customary limits of can-

dor in description or representation of [sexual] matters,’ ”

Jacobellis v. Ohio, 378 U. S. 184, 191 (1964), an element

labeled “patent offensiveness.” Manual Enterprises, Inc.

y. Day, 370 U. S. 478, 482 (1962). Rejecting the standard

of Regina v. Hicklin, [1868] L. R. 3 Q. B. 360, in Roth,

this Court substituted this test:

“* * * whether to the average person, applying con-

temporary community standards, the dominant theme

of the material taken as a whole appeals to prurient

interest.” 354 U. S. at 489.

Thus the Court, having excepted “obscenity” from the pro-

tections of the First Amendment, was faced with the task of

describing the limits of the exception with sufficient par-

ticularity to insure constitutional protection for other “non-

obscene” forms of expression.

That it failed, in the view of amici, in Roth and in sub-

sequent cases to delimit sufficiently precise boundaries for

unprotected utterances demonstrates the difficulty of the

assignment rather than the Court’s failure to recognize

the importance of its assigned task.** Although Roth

liberalized the Hicklin test of obscenity by requiring con-

s“Tt is * * * vital that the standards for judging obscenity

safeguard the protection of freedom of speech and press for ma-

terial which does not treat sex in a manner appealing to prurient

interest.” Roth v. United States, 354 U.S. at 488.

seh: EAD EEE POE LLM

sideration of “the dominant theme of the material taken

as a whole” and its effect upon “the average person” in-

stead of judging the material “by the effect of an isolated

excerpt upon particularly susceptible persons,” * and aj-

though many of the subsequent decisions of this Court fol-

lowing Roth have sirictly limited obscenity convictions

by the lower courts,” the test that Roth substituted has

created as many problems as it has solved.

Mr. Chief Justice Warren” and Justices Black,” Doug-

las,** and Harlan,” have themselves raised serious questions

as to the wisdom of the Roth test of obscenity.

Mr. Justice Douglas’s critique of the Roth verbal formula

in his dissenting opinion in Roth, in which Mr. Justice Black

concurred, laid bare its inherent defectiveness as a con-

stitutional standard:

“Any test that turns on what is offensive to the com-

munity’s standards is too loose, too capricious, too de-

structive of freedom of expression to be squared with

the First Amendment. Under the test, juries can cen-

sor, suppress, and punish what they don’t like, pro-

vided the matter relates to ‘sexual impurity or has a

tendency ‘to excite lustful thoughts.’ This is com-

munity censorship in one of its worst forms. It creates

” Roth v. United States, 354 U.S. at 488-489.

5° See cases collected in footnote 12, supra.

*! Concurring in the result in Roth, 354 U.S. at 494-495.

52 Smith v. California, 361 U. S. 147, 157 (1959) (concurring

opinion).

58 Dissenting in Roth, 354 U.S. at 512-514.

°* Concurring in part and dissenting in part in Roth, 354 U. 8.

at 497-498.

a regime where in the battle between the literati and the

Philistines, the Philistines are certain to win. If ex-

perience in this field teaches anything, it is that ‘cen-

sorship of obscenity has almost always been both ir-

rational and indiscriminate.’ * * * The test adopted

here accentuates that trend.

“The legality of a publication in this country should

never be allowed to turn either on the purity of thought

which it instills in the mind of the reader or on the

degree to which it offends the community conscience.

By either test the role of the censor is exalted, and

society’s values in literary freedom are sacrificed.

“T reject too the implication that problems of free-

dom of speech and of the press are to be resolved by

weighing against the values of free expression, the

judgment of the Court that a particular form of that

expression has ‘no redeeming social importance.’

“For the test that suppresses a cheap tract today

can suppress a literary gem tomorrow. All it need

do is to incite a lascivious thought or arouse a lustful

desire. The list of books that judges or juries can

place in that category is endless.” 354 U.S. at 512, 513,

514.

Nor have the text-writers been silent in their criticism

of the obscenity test formulated in Roth.*’

°° E.g., Lockhart & McClure, Censorship of Obscenity: The De-

veloping Constitutional Standards, 45 Minn. L. Rev. 5 (1960);

Kalven, Metaphysics of The Law of Obscenity, Supreme Court Re-

view (Univ. of Chicago Press, 1960).

Se eee

While amici have no quarrel with Roth insofar as it re-

jects the Hicklin rule of judging material by isolated pas.

sages and by its effect on particularly susceptible persons,”

the test formulated in Roth presents a perplexing problem

of application to those who would use the pronouncements

of the Court for guidance in dealing with obscenity prosecu.

tions.

First: How are the standards of sex portrayal “in a

manner appealing to prurient interest” and “having a

tendency to excite lustful thoughts” to be applied in con-

crete cases?

Srconp: Who is the “average person” whose “prurient

interest” or “lustful thoughts” need be aroused before ma-

terial may be adjudged obscene? What of material designed

for a special audience?

Tuirp: How is the determination that material is “ut.

terly without redeeming social importance” to be made?

A. Obscenity Standards of Sex Portrayal.

Since obscenity as defined in Roth is “material which

deals with sex in a manner appealing to prurient inter-

est,” " it is necessary to inquire what, if any, constitutional

meaning “prurient interest” has. Apparently the term was

expropriated from a proposed draft of the Model Penal

Code of the American Law Institute. The Institute’s

definition of “prurient interest” is “shameful or morbid

°° See Judge Learned Hand’s critical analysis of the defective

and now defunct Hicklin rule in United States v. Kennerley, 209

Fed. 119, 120-121 (D. 8. D. N. ¥., 1913).

°? 354 U.S. at 487.

** A. L. I., Model Penal Code, Tent. Draft No. 6 (1957) §207.10

(2): “A thing is obscene if, considered as a whole, its predominant

appeal is to prurient interest * * * .”

interest in nudity, sex or excretion” ® or “an exacerbated,

morbid, or perverted interest growing out of the conflict

between the universal sex drive of the individual and

equally universal social controls of sexual activity.” ° (EKm-

phasis supplied.) Are not these definitions descriptive of

something other than normal sexual interest or arousal?

Or did the Court intend some other meaning to be attached

to the words “prurient interest”? If so, does the court

equate “prurient interest” with normal sexual arousal?

If not, what becomes of the “average person” whose sexual

arousal determines whether or not utterances shall have

constitutional protection? May an “average person” have

an “exacerbated, morbid or perverted” sexual interest?

Nor is the recent pronouncement of members of this

Court particularly illuminating in dealing with this prob-

lem. Although equating “prurient interest” with “impure

desires relating to sex,” Mr. Justice Harlan, speaking for

himself and Mr. Justice Stewart, remarked:

“* * * one would not have to travel far even among

the acknowledged masterpieces in any of these fields

[literature, science or art] to find works whose ‘dom- :

inant theme’ might, not beyond reason, be claimed to

appeal to the ‘prurient interest’ of the reader or ob-

server.” Manual Enterprises, Inc. v. Day, 370 U. S.

478 (1962).

Moreover, since the Court in Roth defined obscenity not

only as “material which deals with sex in a manner ap-

pealing to prurient interest” but, in the alternative, as

“material having a tendency to excite lustful thoughts,”

a concept expressly rejected by the American Law Insti-

° Thid.

tute," it is not clear whether the Court intended to in-

corporate the Model Penal Code definition into its obscenity

formula or whether, as Mr. Justice Harlan put it, the Court

“merely assimilate[d] the various tests into one indiscrim.

inate potpourri.” * These ambiguities provide ample cause

for concern “[b]lecause First Amendment freedoms need

breathing space to survive,” and therefore, “government

may regulate in the area only with narrow specificity.” *

(Emphasis supplied.)

The studies of the behavioral sciences in this area further

illuminate the difficulties involved in ascertaining a consti-

tutionally valid meaning for “prurient interest.” It is an

acknowledged fact that the studies have failed to reveal

a direct causal relationship between exposure to obscenity

and overt anti-social conduct,* without more. Of itself,

s1«“* * * 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 inierest in

literature, advertising and art, and because regulation of ‘thought

or desire, unconnected with overt misbehavior, raises the most acute

constitutional as well as practical difficulties.” A. L. I., Model

Penal Code, Tent. Draft No. 6 (1957) §207.10(2). Comment, p. 10.

62 354 U.S. at 500.

3 N. A. A. C. P. v. Button, 371 U. S. 415, 433 (1964).

64 See analysis of sociological studies on this point in Judge

Frank’s concurring opinion in U. 8S. v. Roth, 237 F. 2d 798, 804

(2d Cir. 1956) ; Lockhart & McClure, Obscenity and the Couris,

20 Law and Contemp. Probs. 587, 595 (1955); Alpert, Judicial

Censorship of Obscene Literature, 52 Harv. L. Rev. 40 (1942);

see also Jahoda and Staff of Research Center for Human Relations,

New York University: The Impact of Literature. A Psychological

Discussion of Some Assumptions in the Censorship Debate (1954)

(results of this study reported in the appendix to Judge Frank’s

econeurring opinion in U. 8S. v. Roth, supra) ; Lockhart & McClure,

Literature, The Law of Obscenity, and the Constitution, 38 Minn.

L. Rev. 295, 387 (1954) ; Commonwealth v. Gordon, 66 Pa. D. & C.

101 (1949); The Institute for Sex Research, Inc., Sex Offenders

(1965) pp. 126-127, 669-692; and see Murphy, The Value of Por-

nography, 10 Wayne L. Rev. 655 (1964).

“this absence of dependable information on the effect of

obscene literature on human conduct should make us wary.

It should put us on the side of protecting society’s interest

in literature, except and unless it can be said that the par-

ticular publication l.as an impact on action that the govern-

ment can control.” *

A recent study oy Cairns, Paul and Wishner® reveals

useful information of a more positive nature. Using sexual

arousal as a physiolog.cal phenomenon more easily mea-

sured than “prurient interest,” whatever the precise mean-

ing of the latter term may be, the findings of the authors

(two behavioral psychologists and a professor of law), after

an examination of the psychological abstracts and a number

of human experiments, are interesting and illuminating:

“1, A significant proportion of our society is sexu-

ally aroused to some extent by some form of sex stimuli

in pictures and probably in books.

2. Portrayals of female nudity and of sexual ac-

tivity lead to sexual arousal in many males—adoles-

cents as well as adults. These materials arouse females

far less frequently.

3. Females, on the other hand, are more frequently

sexually aroused than men by complex stimuli which

portray ‘romantic’ or ‘love’ relationships and which

constitute, in general, less direct sexual cues.

4. Males differ among each other in terms of pref-

erence for and response to various types of sex stimuli.

Factors which account for different preferences among

*® Douglas, J. dissenting in Roth, 354 U. 8. 476, 511 (1957).

** Cairns, Paul and Wishner, Sex Censorship: The Assumptions

of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn. L.

Rev. 1009 (1962).

ae NEONATE TTI

ote

males for viewing sexually relevant materials include:

adequacy of masculine sexual identity, strong guilt with

respect to sexual behavior, physical maturity and intel-

lectual ability.

5. The environmental circumstances under which

the sex stimuli are viewed may influence the extent

to which the viewers will show evidence of sexual

arousal. It is not clear, however, whether the failure

to observe evidence of sexual arousal is due to the fact

that no arousal occurred or that the overt expression

of the arousal was inhibited.

6. Exposure to certain types of sex stimuli is, for

some persons, both males and females, a distinctly

aversive experience. Sexual guilt appears to be an

important determinant of the extent to which viewing

sexually relevant material will be considered an un-

pleasant event.” 46 Minn. L. Rev. at 1032.

These findings with respect to sexual arousal—which

probably is a lesser physiological or emotional reaction than

arousal of prurient interest—demonstrate on the basis of

scientific evidence what those who have considered the

social problem of obscenity for years have known that

there are so many environmental and personality variables

in the arousal of lustful thoughts or prurient interest that

the determination of the precise books or pictures which

are universally sexually stimulating is a metaphysical quest

foredoomed to failure; what is sexually arousing to males

holds no prurient interest to females; what excites lustful

thoughts in females has no particular sexual effect upon

males and is so widespread throughout our culture as to be

impossible to eradicate by criminal prosecutions. Person-

ality, maturity and intelligence differences and varying

quantities of guilt feelings about sexual matters cause

vast differences in sexual response to the same stimuli

even among males. What is sexually arousing to some is

disgusting to others. The environmental factors under

which sexual material is seen may cause significant differ-

ences in response in both males and females. As Judge

Bok wisely observed more than a decade before this study:

“Tf [the individual] reads an obscene book when his

sensuality is low, he will yawn over it or find that its

suggestibility leads him off on quite different paths.

If he reads the Mechanics’ Lien Act while his sensuality

is high, things will stand between him and the page

that have no business there. How can anyone say that

he will infallibly be affected one way or another by

one book, or another? When, where, how, and why

are questions that cannot be answered clearly in this

field * * * in a field where even reasonable precision is

utterly impossible, I trust people more than I do the

law.” Commonwealth v. Gordon, 66 Pa. D. & C. 101,

137 (1949).

One more matter of concern with regard to the “prurient

interest” and “lustful thoughts” language in Roth. Since

obscenity is defined as “material that appeals to prurient

interest” and equated with “material that has a tendency

to excite lustful thoughts,” what kind of a showing is neces-

sary to establish that the material to be judged actually has

the effect of arousal or excitement? Must a causal relation-

ship be demonstrated between the publication and the

pruriency, between the literature and the resultant lust,

or will such “appeal” or “tendency to excite” be presumed?

What standards are to be applied to determine the appeal

and the tendency of the disputed material? Or is the inten-

AIEEE AO ENTREE a

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tion of the creator of the book or picture controlling? What

of the literary panderer whose intent is vile but whose book

or picture fails to achieve his evil goal?

The cases since Roth have not answered these questions,

They are, we suspect, unanswerable. Thus, the determina-

tion of what arouses “prurient interest” or excites “lustful

thoughts” ® is a vast guessing game, with the constitutional

right of freedom of expression and the suppression of litera-

ture and art hanging in the balance.

B. The “Average Person.”

While the substitution in Roth of “the average person”

for “particularly susceptible persons” as the subject whose

sexual arousal is the litmus of obscenity represents a logical

liberalization of the Hicklin rule, this portion of the Roth

obscenity test presents monumental problems as well.

Although it is now clear that neither what can safely be

shown to children® nor to the emotionally unstable among

us” provides an acceptable constitutional standard for

censorship of obscenity, the positive determination of who

is “the average person” to which Roth refers has few guide-

lines. He has been identified as the counterpart, in the law

of obscenity, of the “reasonable man” in the law of torts.”

But the delineation of the conduct of a “reasonable man” in

negligence suits does not determine whether basic constitu-

67 See Winters v. New York, 333 U. S. 507, 515-516, 520 (1948).

68 Butler v. Michigan, 352 U. 8. 380 (1957).

6° Roth v. U. 8., 354 U. S. 476, 488-489.

70 U0. 8. v. One Book Called “Ulysses,” 5 F. Supp. 182, 184 (S. D.

N. Y. 1933), aff'd 72 F. 2d 705 (2d Cir. 1934). Cf. Judge Frank’s

critique of the “reasonable man” test in U. 8S. v. Roth, 237 F. 2d

796, 826-827 (2d Cir. 1956) (concurring opinion).

a EE SE

tional protections are to be granted or withheld, as in the

area of obscenity censorship. And the analogy further

breaks down when one considers that, since the vast ma-

jority of people neither know nor care about literary or

artistic qualities, the standard of the composite fiction of

“the average person” will include multitudes who were

never intended to be the audience for the particular tract

or motior picture in question and who, but for the publicity

resulting from the obscenity prosecution, would never have

experienced it. Moreover, one may well ask: Is the “aver-

age person” composite to be drawn from the 95% of the

total male population who would be convicted if the sex

laws now on the books were strictly enforced?”

Is a tract designed for a special audience to be judged

by the standard of “the average person” outside the group?”

What of foreign movies imported to be shown in “art”

motion picture houses? Is it the “average” art theater

patron whose prurient interest is in issue in this context?

Moreover, if the test of obscenity is to turn upon the

nature of the audience which is exposed to it, would it not

be curious to find that the publicity surrounding an obscenity

prosecution could, by calling the attention of the prurient-

minded public to it, change the composition and size of

the audience so as to render material obscene which at

the outset of the prosecution clearly was not?

1 Commonwealth v. Isenstadt, 318 Mass. 543, 553, 62 N. E. 2d

840, 846 (1945).

™ Kinsey, Sexual Behavior in the Human Male (1948), at 217

et seq.; Report of the Committee on Forensic Psychiatry, Group

for the Advancement of Psychiatry (No. 9, Rev. 1950); Kron-

hausen, Pornography and the Law (1959), at 155 et seq.

*Cf. Manual Enterprises, Inc. et al. v. Day, 370 U. 8. 478, 82

S. Ct. 1432, 1434 (1962).

sn ne ie a cornea aR

The concept of “the average person” disintegrates com-

pletely as a valid test when it is applied to what has been

described as “hard core” pornography.” It has been widely

noted that “hard core” pornography, far from having ap.

peal to normal or “average” persons, is disgusting to them;

it seems to appeal only to the sexually inadequate: “the

frightened, the impotent, the bored and sated, the senile

** * the adolescent * * * not yet old enough to seek sexual

partners or * * * [the person who] has lost the precious

power of spontaneous sexual feeling.”

Thus, even in a case dealing with “hard core” pornog-

raphy, the “appeal to the average person’s prurient inter-

est” test is entirely useless because pornography is “appeal-

ing” only to the decidedly “non-average” individual and is

repulsive to “the average person” in the standard.

C. Determining What Is “Utterly Without

Redeeming Social Importance.”

In Roth the Court described obscenity which was not con-

stitutionally protected as “utterly without redeeming social

importance.” Thus, the Court has embarked upon the pro}-

ect of determining which books and pictures have any social

importance, at least as to those which might otherwise be

obscene. We suggest, as did Mill, that “the usefulness of

an opinion is itself a matter of opinion; as disputable, as

™ Brief for the United States, pp. 37-39 in Roth v. U. S., op. cit.

"> Margaret Mead, Sex and Censorship in Contemporary Society,

New World Writings (Third Mentor Selection 1953) at pp. 18-19;

and see D. H. Lawrence, Pornography and Obscenity in Sex Lit-

erature and Censorship 74-77 (1953) : “|Pornographie books] 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.”

mel

open to discussion, and requiring discussion as much as

the opinion itself.” **

Although the “social importance” standard was undoubt-

edly designed by this Court to protect expression which

might otherwise be obscene, the judicial exploration of the

social value of books or pictures as a factor in determining

whether or not they should be suppressed is an imposing

task which has dangerous implications to freedom of ex-

pression. As Mr. Justice Douglas has pointed out:

“The First Amendment * * * was designed to pre-

clude courts as well as legislatures from weighing the

values of speech against silence.” Roth v. U. S., 354

U. S. at 514 (dissent).

It seems curious, to say the least, that only in the area

of sexual expression must a distributor of printed material

afirmatively prove that the publication has social impor-

tance before he can demonstrate his right to disseminate it.

In all other spheres of expression, First Amendment pro-

tections do not depend upon “the truth, popularity, or social

utility” of the material sought to be suppressed,” for if all

utterance were limited to wisdom, knowledge, truth, and

social value many of us would be required to stand mute

virtually all our lives.

The danger involved in determining which public utter-

ances have “redeeming social importance” was well under-

stood by John Stuart Mill.

“Mankind can hardly be too often reminded, that there

was once a man named Socrates, between whom and

6 John S. Mill, Essay on Liberty.

"N.A. A.C. P.v. Button, 371 U.S. 415, 445 (1963).

————

sec eR GROEN Ie Hct:

the legal authorities and public opinion of his time there

took place a’‘memorable collision. * * * This acknowl-

edged master of all the eminent thinkers who have since

lived—whose fame, still growing after more than two

thousand years, all but outweighs the whole remainder

of the names which make his native city illustrious—

was put to death by his countrymen, after a judicial

conviction, for impiety and immorality. Impiety, in

denying the gods recognised by the State; indeed his

accuser asserted (see the ‘Apologia’) that he believed

in no gods at all. Immorality, in being, by his doctrines

and instructions, a ‘corrupter of youth.’ Of these

charges the tribunal, there is every ground for beliey-

ing, honestly found him guilty, and condemned the man

who probably of all then born had deserved best of

mankind to be put to death as a criminal.”

“Tf all mankind minus one were of one opinion, and

only one person were of the contrary opinion, mankind

would be no more justified in silencing that one per-

son, than he, if he had the power, would be justified

in silencing mankind. Were an opinion a personal pos-

session of no value except to the owner; if to be ob-

structed in the enjoyment of it were simply a private

injury, it would make some difference whether the in-

jury was inflicted only on a few persons or on many.

But the peculiar evil of silencing the expression of an

opinion is, that it is robbing the human race; posterity

as well as the existing generation; those who dissent

from the opinion, still more than those who hold it. If

the opinion is right, they are deprived of the oppor-

tunity of exchanging error for truth; if wrong, they

lose, what is almost as great a benefit, the clearer

perception and livelier impression of truth, produced

by its collision with error.”

“«* * * We can never be sure that the opinion we

are endeavoring to stifle is a false opinion; and if we

were sure, stifling it would be an evil still.”

John Stuart Mill, Essay on Liberty.

To illustrate, it may well be that, despite the Comstocks

and the bluenoses, there is social value in the smuttiest

literature, the most “hard core” of pornography, the most

offensive of pictures. Our medical and behavioral scientists

are beginning to discover that these materials act as re-

leases of tension to the sexually frustrated, unhappy or

abnormal unfortunates who might otherwise act out their

sexual fears and hostilities in criminal conduct dangerous

to themselves as well as to others.

Consider, for example, the comment of Dr. Benjamin

Karpman, chief psychotherapist of St. Elizabeth Hospital,

Washington, D. C., reported in Kronhausen, E. and P., Por-

nography and the Law, 273-274 (1959):

“Contrary to popular misconception, people who read

salacious literature are less likely to become sexual

offenders than those who do not, for the reason that

such reading often neutralizes what aberrant sexual

interest they may have.”

And see Murphy, The Value of Pornography, 10 Wayne

L. Rev. 655, 660-661 (1964) :

“With regard to the assumption that reading pornog-

raphy leads directly to acts of violence and public

offenses, evidence would seem to show that the indi-

vidual who collects pornography, who derives his pri-

mary sexual gratifications from the production, col-

lection or perusal of pornography, and who is denomi-

nated for these reasons a pornographer, is a shy

introvert. Quietly and privately, he takes his pleasure

and obtains release from his tensions through study of

pictures, films, books, cartoons, phonograph records,

carvings or whatever represents or depicts for him a

pornographically eroticizing experience. What excites

him at this remove may be the description of conven-

tional sexual conduct which is barred to him by impo-

tency, physical handicap, fear or repugnance. What is

depicted may be perverse sexual practices which he

is too frightened or ashamed to participate in himself

or to even directly view. One of the most outstanding

attributes of the pornographer is his inhibition. It is

not unreasonable to expect that when he is deprived

or—what is more likely—is driven by conscience to

deprive himself of this vicarious release, tension might

accumulate to a point of violence or public display.

Hence it would seem that the opportunity to indulge in

pornography could serve to prevent or postpone, rather

than to stimulate, such outbreaks of violence by the por-

nographer.” (Emphasis supplied.)

It is not here contended that pornography has great

social value, or any. It is enough that the possibility of

value exists to compel humility and superabundant caution

among those who would suppress any form of expression.

For after the book-burning” it is too late to re-evaluate the

social value of the contents.

78 This is not merely vivid language of amici. See A Quantity of

Books v. Kansas, 378 U. S. 205 (1964) (book-burning statute held

unconstitutional).

Or, to say it another way in the language of the Court,

the “redeeming social importance” justifying the dissemi-

nation of all forms of expression, if not found in the work

itself, is found in the fabric of freedom woven by its un-

censored use.

CONCLUSION

Amici have attempted to demonstrate some of the areas

of obscurity and logical impasse which arise in specific

applications of the rule in Roth as a result of the failure to

apply the “clear and present danger” test in the obscenity

area. We believe, as does Mr. Justice Harlan” that “it is

no answer to say * * * that obscenity is not protected

speech.” Where matters of expression are involved, a

failure to define precisely, accurately and with predicta-

bility the items which may be censored, cannot fail “to

impose a severe limitation on the public’s access to constitu-

tionally protected matter,” *° both by misinterpretation of

the stated tests by the lower courts and by the extrajudicial

pressures of threatened prosecutions,” “under dangers

which are hazarded only by heroes.” *

In the view of amici, the attempt in Roth to differentiate

between utterances which are constitutionally protected and

*® Roth v. U. S., 354 U. S. at 507 (concurring in part and dis-

senting in part).

% Smith v. California, 361 U. S. 147, 153 (1959).

*' E.g., New American Library v. Allen, 114 F. Supp. 823 (N. D.

Ohio 1953) ; American Mercury, Inc. v. Chase, 13 F, 2d 224, 225

(D. C. Cir. 1926) ; Bantam Books, Inc. v. Melko, 25 N. J. Super. 292,

96 A. 2d 47 (1950).

= Dennis v. U. S., 341 U. S. 494, 550 (1951) (Frankfurter, J.,

concurring).

eee Ss ee ee a

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those which are not, has been unsuccessful because of

vagueness, unworkability and, most important, the setting

of standards to test expression which carry dangerous im-

plications for the “fullest possible opportunity for the free

play of the human mind.” *

It will be contended by those who would suppress all dis-

agreeable or offensive art and literature that obscenity is

a social problem which must be controlled, even at the ex-

pense of some unfortunate but necessary inroads upon free

expression. But we think it more accurate to say that

traffic in obscenity (which requires consumers as well as

purveyors) is a symptom of a social problem rather than

an evil per se. For that precise reason it is both ineffectual

and dangerous to attempt to treat the problem solely b;

prosecutions, broad in scope, which ignore entirely the

underlying cultural, social and personality factors which

make autoerotic fantasy material attractive to large seg-

ments of the public.

As Mr. Justice Warren, concurring in the result in Roth,

has cautioned:

“To recognize the existence of a [social] problem

** * does not require that we sustain any and all mea-

sures adopted to meet that problem. The history of

the application of laws designed to suppress the ob-

scene demonstrates convincingly that the power of gov-

ernment can be invoked under them against great art

or literature, scientific treatises, or works exciting so-

cial controversy. Mistakes of the past prove that there

is a strong countervailing interest to be considered in

the freedoms guaranteed by the First and Fourteenth

Ainendments.” 354 U.S. at 495.

88 Dennis v. U. S., supra, at 550 (Frankfurter, J., concurring).

Whatever legislatures and courts may seek to accomplish

in this area, it must be borne in mind that:

“The First Amendment presupposes that right conclu-

sions are more likely to be gathered out of a multitude

of tongues, than through any kind of authoritative se-

lection. To many this is, and always will be, folly; but

we have staked upon it our all.” *

For all of the foregoing reasons, the convictions

should be reversed.

Respectfully submitted,

Bernarp A. BERKMAN

1320 The Superior Building

Cleveland, Ohio 44114

Metyvin L. WuLF

Seymour H. BucHouz

156 Fifth Avenue

New York, New York 10010

Murray PowLen

1405 Locust Street

Philadelphia, Pennsylvania

Attorneys for Amici Curiae

September 1965

“* United States v. Associated Press, 52 F. Supp. 362, 372 (D. C.

8. D. N. Y. 1943) (Hand, L., J.).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.