Amicus Curiae Brief — Ginzburg v. United States
Supreme Court brief1966
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SUBJECT INDEX
Page
Interest Of AMICUS CUTIE ...............-0..--vcccercseeeceeancanceeees 1
SOURIS COND CINE isis ctecipicsanstichieitaplicecapamnicbecenias 2
United States of America: case in chief .................. 7
Ralph Ginzburg et al.’s defense .....................2---- 10
United States of America: rebuttal -........0002.222022.-..--. 26
INES 0 IE | esvncrsvinincctvidintdincgurneniidideinns 29
I sivcnsiieciniciniictiacinapnmninnli tintin tdlscrebaini thiticabbigdkaineen 32
I,
An integrated review of the obscenity case law .... 32
oe PRR ESS we 32
B. The problem of previous restraint cases ........ 38
C. The no clear majority decisions .....................--- 41
D. A major national problem ................00....0.--0--+: 43
E. A problem of communication .....................-0+-+- 45
PF. Weecceiie Ce -0ee occ 51
II.
This Court should affirm the judgment ................ 54
Pic. TR sciiticisesesirseaihinitttnisiintibiiidg titanate 54
B. The Roth-Alberts facts control ..................2...-. 56
C. The Roth-Alberts standards .............00..22:.000002 60
D. The Trial Court followed the Roth-Alberts
I eivscistisactitlicinssncrnsunteicssabaisnpingsncbciainatininien 61
S, eaeee Fe.. £: eS ice 62
2. The Housewife’s Handbook of Selective
FOIE icokitiicicetettitniiadieainae 63
3. Waron Vea; FE Ne. F sccccsssesrccceceececes: 66
os
Ti SOURIS SUNOCO a. scicniieesoreunrsntinanmtdennbnenenitiadipiin 68
1. It is not determined in a vacuum ............ 68
2. Slight social importance does not exculpt
PE SA SEES aL Ce SE REESE I RORY Soh eR Le 77
Appendix A. The Housewife’s Handbook on Selec-
FD civccrtrerntprenganinrconppnrccenpstoisie App. p. 1
iii,
TABLE OF AUTHORITIES CITED
Cases Page
A Quantity of Books v. Kansas, 378 U.S. 205, 84
S. Ct. 1723, 12 L. Ed. 2d 809 .......... 38, 40, 42, 52
Alberts v. California, 314 U.S. 160 200000... eee 58
Alberts v. California, 354 U.S. 476, 77 S. Ct. 1314,
3 } S| Rea 29, 31, 34, 37, 38, 39
PR en REA Berrie iat Tite Maas es NE 40, 53, 55, 56, 58, 60
American Civil Liberties Union v. City of Chicago,
pw Fs ers S & a Gee Nenenmemieeiar 76
Arizona v. Locks, 97 Ariz. 148, 397 P. 2d 949 ........ 42
Astore v. U.S., 288 F. 2d 26, cert. den. 366 U.S.
825, Bi S. Ce. 13552, O.L., Bb Bb TG ceccttcncrcs ce 47
Bantam Books Inc. v. Sullivan, 372 U.S. 58, 83
S. Ct. 631, 9 L. Ed. 2d 584, 176 A. 2d 393 ........ 38, 52
Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725,
i ete I ciechieh ceded cesiebotildaiacas hecctesnonceminalttain 34
Burstein v. U.S., 178 F. 2d 665 .....................- 62, 66, 69
2 ae Re Ba Re | eee eee nrno nee os 46
Cain, Robert H. v. U.S., 274 F. 2d 598, cert. den.
362 U.S. 952, 80 S. Ct. 864, 4 L. Ed. 2d 869 .... 46
California v. Milton Luros, et al., Superior Court
cS 3 | Reon 43
Chaplinsky v. New Hampshire, 315°U.S. 568, 86 L.
ie oF ££ 3.e, See 33, 34, 62, 72
Chi. v. Charles Kimmel, 63 M.C. 190116 .................... 18
oul, vw. Tien, G6 BE, CI ceeectecreveisnrevivicinetes 18
Ciel, -w. Godoms GB: BEL, REF wieececcnsicnscciccsieciniinetties 18
Chi. v. Westbery, 63 M.C. 104281 .....0. eee 18
Chilo. Word, GB BEC. USGI EP occiscesscsivccsnisinticosniceia 18
Chobot, Joseph v. Wisconsin, 12 Wis. 2d 110, 106
N.W. 2d 286, 368 U.S. 15, 82 S. Ct. 136, 7 L.
Ed. 2d 85, rehear. den. 368 U.S. 936, 82 S. Ct.
OS ge Se |e. ERR Re ee 45, 47, 59
ne ape
SS
iv.
Page
Collier, Frank L. v. U.S., 283 F. 2d 780, cert. den.
365 U.S. 833, 81 S. Ct. 746, 5 L. Ed. 2d 744 ..45, 47
Connecticut v. Andrews, 150 Conn. 92, 186 A. 2d
546 : sinlbinidideahiciaiiabeasiteinenguidedle 39, 50
Connecticut v. Sul, 146 Conn. 78, 147 A. 2d 686 ...... 71
Dale Book Co. v. Leary, 233 F. Supp. 754 .......... 18, 40
Darnell, John III, v. U.S., 316 F. 2d 813, 375 USS.
916, 84 S. Ct. 205, 11 L. Ed. 2d 155, 375 USS.
982, 84 S. Ct. 493, 11 L. Ed. 2d 429 _... 49
Finkelstein, Louis et al. v. New York, 229 N.Y.S.
2d 367, 183 N.E. 2d 661, cert. den., 371 US.
See ee a Oe Pe Sh Be OO nice 48
Freedman v. Maryland, 380 U.S. 51-0000... 38, 52
Fried, Harry v. New York, 238 N.Y.S. 2d 742, 378
U.S. 578, 84 S. Ct. 1904, 12 L. Ed. 2d 1033 ........ 49
Goldstein, Arthur v. Virginia, 372 U.S. 910, 83 S.
he Bs St OE IE eccentricities 45, 48
Grove Press Inc. v. Gerstein, 378 U.S. 577 ........ 41, 42
Hadley v. Arkansas, 205 Ark. 1027, 172 S.W. 2d
WUT ecg cau ttaciisindiimigtid taninicabisbon aah inna sikinakn 39
semen VW. UT, S., BOO FB FF occceeewsnceviecitsovecetereees 45
Heinecke, Alfred J. v. U.S., 368 U.S. 901, 82 S. Ct.
3 TG SRR RARER eee eR 45, 48
Hochman, Samuel R. v. U.S., 277 F. 2d 631, 364
U.S. 837, 81 S. Ct. 70, 5 L. Ed. 2d 61, rehear.
den., 364 U.S. 906, 81 S. Ct. 231, 5 L. Ed.
PET Wiciehbiaileinseaits labia Nonndeseruncetitinortedapiicialinias vita: 46, 47
Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12
Be Ee A PEP consienenesipindies 42, 45, 51, 59, 71, 73, 76
Kahn, Harold S. v. U.S., 300 F. 2d 78, cert. den.
369 U.S. 859, 82 S. Ct. 949, 8 L. Ed. 2d 18 ........ 48
King v. Commonwealth, 233 S.W. 2d 522 .W000000.2...... 39
v.
Page
Kingsley Book Inc. v. Brown, 354 U.S. 436, 77 S.
Cy. 1805; 3 3. BA 2 GS ou a a 39, 59, 71
Larkin v. G. I. Distributors Inc., 14 N.Y. 2d 869 .... 41
Larkin v. G. P. Putnam’s Sons, 14 N.Y. 2d 399 ....41, 75
Luros v. Hanson, Sept. 27, 1965, Oct. Term. 1965,
Wie CD ehictitiuniitndntendid lala diccieiaa 39
Manual Enterprises Inc. v. Day, 370 U.S. 478, 82
S. Ct. 1432, 8 L. Ed. 2d 639, 289 F. 2d 455 ....38, 40
LMC SE ODE MOTE ETT COS ON a aE EE 41, 42, 52
Marcus v. Kansas City Search Warrants, 367 U.S.
717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127, 344 S.W.
BUG’ Lcncintenseinisiidesdecaubeatisinetiehdesitiensanligiiiog 38, 40, 52
Matthews, John G. v. Florida, 356 U. S. 918, 78 S.
Go Fs i BO I FU sichidchchdeisetiberneitenti 46
Mishkin, Edward v. U.S., 317 F. 2d 634, cert. den.
375 U.S. 827, 84 S. Ct. 71, 11 L. Ed. 2d 60 .... 48
Missouri v. Becker, 364 Mo. 1079, 272 S.W. 2d 283 39
Missouri v. Vollmar, 389 S.W. 2d 20 ..........00.0........ 40
Monfred, Harry et al. v. Maryland, 226 Md. 312, 173
A. 2d 173, cert. den. 368 U.S. 953, 82 S. Ct.
es Fabs Se AE escheat cnttacndintciciectinsinecinle 45, 47, 48
Mounce v. U.S., 355 U.S. 180, 2 L. Ed. 2d 187, 247
B. Deb £40 1946 B, Serre, GD aancsecenciecnciecsscosmsres 38
Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625,
> ED) REE Ae 29, 33, 34, 38, 53
Nebraska v. Jungclaus, 176 Neb. 641, 126 N.W. 2d
New York v. Ray Kirk, Birch, All State News Co.
Inc., et al., 40 Misc. 2d 626, 243 N.Y.S. 2d 525 .. 44
New York v. Richmond County News Co., 175 N.E.
a]
— 7
vi.
Page
Oakley, Roy A. v. U.S., 290 F. 2d 517, cert. den.
368 U.S. 888, 82 S. Ct. 139, 7 L. Ed. 2d 87,
rehear. den. 368 U.S. 936, 82 S. Ct. 358, 7 L.
PE PREY BPs ap DETER ENC MRS 2 TO 45, 47
One Inc. v. Olesen, 355 U.S. 371, 78 S. Ct. 364, 2
es: i ER Be OE PO eckdicenictnteteemntiinss 38
Outdoor American Corporation v. City of Philadel-
phia, 333 F. 2d 1963, cert. den. 85 S. Ct. 192, 13
Bik GRIER. TET detgeilieeentienndeataprcenasiciindinetiins 39
Padell, Max v. U.S., 262 F. 2d 357, cert. den.
359 U.S. 942, 79 S. Ct. 723, 3 L. Ed. 2d 676 .... 46
Parr, Wyman Hulan v. U.S. 255 F. 2d 86, cert. den.
358 U.S. 824, 79 S. Ct. 40, 3 L. Ed. 2d 64 ........ 46
People v. Bruce, 31 Ill. 2d 459, 202 N.E. 2d 497 ..76, 77
Foeople:v. Frise, 13 N.Y. Bb VID ccsieecciecstsiyessoncsensnns 41
People v. The Bookcase Inc. et al., 14 N.Y. 2d 409 .. 41
Poss v. Christenberry, 179 F. Supp. 411 .................... 70
pe ie ek eee eee 32, 34
Roth v. U.S., 354 U.S. 476, 77 S. Ct. 1314, 1
me FP eee 29, 31, 34, 38, 39, 40, 53
disehishontadiiaiibannptsiiidentuablias 56, 58, 60, 65; 67; 71, 72, 76
State v. Andrews, 186 A. 2d 546 .0002..0..c..ccceceeeeeeeeeeee 72
Sunshine Book Co. v. Summerfield, 355 U.S. 372,
78 S. Ct. 365, 2 L. Ed. 2d 352, 249 F. 2d 114,
8B F Seap. SGA sess sssscssscscssssacacscsacssstacatecceccawaees 38, 70
Times Film Corporation v. City of Chicago, 355
U.S. 35, 78 S. Ct. 115, 2d L. Ed. 2d 72, 244 F.
ye Me SD See ane Dae ree 38, 39
Times Film Corp. v. City of Chicago, 365 U.S. 43,
81 S. Ct. 391, 5 L. Ed. 2d 403, 272 F. 2d 90, 180
8, RE RE ee 38
Tralins v. Gerstein, 378 U.S. 576, 84 S. Ct. 1903,
oe Sf | oreo 42
vii.
Page
Trans-Lux Distributing Corp. v. Board of Regents
of the University of New York, 380 U.S. 259, 85
S Ce Sa Fe tee es Be OE tide ce 38, 52
United States v. Kennerley, 209 Fed. 119 .................. 65
United States v. Klaw and Jack Kramer, 350 F. 2d
SD iiaceteconecessinteresdbtaieeddenshinada 45
United States v. Levine, 83 F. 2d 156 ...........--...-- 62, 66
United States v. Linetsky, No. T-CR 582 .......... 45
United States v. Ralph Ginzburg et al., 224 F.
De TD hccnescmnnemsrmacianttonnsanncisicisanghsiblainiaiiictile 28
United States v. Ralph Ginzburg, et al., 338 F. 2d
ETL issthiesebeateiiccbomniaplaies PRT ewes eae ee rere 29
United States v. Roth, 237 F. 2d 796 -.........--:-sc+s-++- 56
United States v. Wasserman No. T-CR 581............ 45
United States v. West Coast News Co., et al., 228 F.
BR, TE ccckicsnntsisccssemsannitsinimaieateiaitinipnatisietigas 19
Wenzler, Harold Eugene, Sr., and John Imlay v.
California, 377 U.S. 994, 84 S. Ct. 1902, 12 L. Ed.
2d 1047, 85 S. Ct. 14, 13 L. Ed. 2d 77 ........ 45, 49, 50
Williamson, Samuel Dodd v. California, 207 Cal.
App. 2d 839, 24 Cal. Rptr. 734, 377 U.S. 994,
84 S. Ct. 1902, 12 L. Ed. 2d 1047, 85 S. Ct. 13, 13
cs BE Fe setieicdewiihic en eteciciinceibitcaailacbielncciiiiids 49
Womack, Herman v. U.S., 294 F. 2d 204, cert.
den. 365 U.S. 859, 81 S. Ct. 826, 5 L. Ed. 2d
PCA Se ee I AMEE PRU ra RAE IES erate RS 47, 48
al seeceneneaienaetaaaiaaeiell 41, 75
Zucker, Harold v. New York, 371 U.S. 863, 83 S.
SRF ff eee 48
Zuideveld, Nirvana Ward v. U.S., 316 F. 2d 873,
376 U.S. 916, 84 S. Ct. 671, 11 L. Ed. 2d 612 .... 49
ach let ARS SEARLES
Viii.
Page
Dictionary
Webster’s Collegiate Dictionary, Fifth Edition ........ 32
Miscellaneous
American Law Institute, Model*Penal Code (1957
Srna), Bi: BO, BB cvs iccsestenicnccnnitiiesi 53, 66, 73
American Law Institute, Model Penal Code (1957),
Ss Set GP iiiesnicchdeeecscebicbsaslinthshal hacatachadlstasetesihchi 61
American Law Institute, Model Penal Code (1957),
es EP akichbikce sccciasighisienonitbcaspoutanenabial 63, 65, 67
American Law Institute, Model Penal Code (1962),
BG TEE sastanininiinenscnietuesthuscehenventcinoimasiedbeebasiaiassie 59
41 Chicago Bar Record (1960), pp. 416, 418 ............ 54
IX Frumkin, Robert M., Dr., Journal of Hu-
man Relations (Summer 1962), p. 513 -.............. 5
XL Notre Dame Lawyer, No. 1 (Dec. 1964), p.
ak coitihecindsthcebecuengtindtnichaecbadieathciitacdasiebthiniapictiseridatantnicipattainiaed 54
Statutes
United States Code, Title 18, Sec. 1461 .............. 4, 5, 10
United States Code, Title 28, Sec. 1257 ....0...000.000.... 58
United States Constitution, First Amendment ........ 2
United States Constitution, Fifth Amendment ........ 68
United States Constitution, Sixth Amendment ........ 68
United States Constitution, Fourteenth Amenement
oconenmores ageasseeee seseeereeevanenseansourvevensseneser cpeseseuscevensesers cesi 68
i Textbooks
49 American Bar Association Journal (Sept. 1963),
Ss ceihieilia ta sid naa iced names ecea hala teaiasaitegin as dooeasiehagh 40
Black, Handbook of Judicial Precedent (1912), pp.
135-136
Stern and Gressman, Supreme Court Practice, 3rd
Page .
45 Minnesota Law Review, p. 5 ...............-+-- 56, 57, 58
45 Minnesota Law Review, p. 20 .................-s--cceeeee-ee 56
45 Minnesota Law Review, p. 21 .............-..---c-eeeceeeseee 57
45 Minnesota Law Review, p. 22 ...............--c--seccseseeees 57
45 Minnesota Law Review, p. 25 .............c-ecececcceeeees 58
ee ee ERROR OEE E EEO EERE EEE ERE EROS
IN THE
Supreme Court of the United States
October Term, 1965
No. 42
RaLpH GINZBURG, DocUMENTARY Books, INc., Eros
MAGAZINE, INc., L1aison News Letter, INC.,
Petitioners,
US.
UnITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari to the United States Court
of Appeals for the Third Circuit.
Brief Amicus Curiae of Citizens for Decent Litera-
ture, Inc., an Ohio Corporation, in Support of
Respondent.
Interest of Amicus Curiae.
Citizens for Decent Literature, Inc., an Ohio Corpor-
ation, with local affiliates throughout the United States
is a non-profit, non-sectarian and non-political corpora-
tion with national headquarters in Cincinnati, Ohio,
formed for and dedicated to the cause of good, decent
and wholesome literature with a view to oppose and
eliminate obscene literature, by cooperating with law en-
forcement in the enforcement of the laws. For the
madi.
Court’s convenience amicus curiae is hereinafter re-
ferred to by the single short title, CDL.
CDL believes that there exists a growing flood of
publications, purposely designed and manufactured with
a sensationalized appeal to prurient interest, that threat-
ens to overthrow the basic morality upon which our na-
tion and our Constitution were founded; that while the
First Amendment of our Constitution has, from the
time of our nation’s founding, been construed to afford
no protection to such publications, a loud voice is now
being heard in the court-room advocating the overruling
of this “balancing of interest” interpretation in favor
of an absolutist approach, aimed at nullifying the na-
tion’s basic obscenity laws.
At its national convention in Chicago during October
of 1963, the national organization of Citizens for De-
cent Literature adopted a policy aimed at giving in-
creased support in the fight against “obscenity,”
through legal advocacy in the courtroom in support of
the people’s case.
Ralph Ginzburg, et al. v. United States of America
is a case of nationwide importance which will have a
serious effect on enforcement of the obscenity statutes
throughout the nation.
Statement of the Case.
On August 13, 1962, Eros Magazine, Inc. of 110
West 40th Street, New York, requested an application
to mail without affixed postage from the post office
at’ Middlesex, New Jersey, through General Mailing
Corporation, a mail-order house patron of the Middlesex
post office. Permit No. 8 was issued on August 14,
1962.
Bet a
In letters dated September 4, 1962 and October 18,
1962, Eros Magazine, Inc. wrote the postmasters of
Blue Ball, Pa., and Intercourse, Pa. as follows:
“After a great deal of deliberation we have de-
cided that it might be advantageous for our direct
mail to bear the postmark of your city.”
The letters were on Eros Magazine, Inc. stationery and
were signed by Frank R. Brady, Associate Publisher of
Mr. Ginzburg. The postmaster of Intercourse, Pa., by
letter dated September 8, 1962, replied that his post of-
fice was too small to handle bulk mailings.
Eros Magazine, Inc. of 110 West 40th St., New
York, commenced mailings from Middlesex post office
on October 7, 1962. Approximately 5,053,884 pieces of
bulk mail advertisements for Eros Magazine had been
mailed up to the date of trial, June 10, 1962, at a total
cost of $132,704.93.
On November 20, 1962, Documentary Books, Inc.,
requested an application to mail without affixed post-
age from the post office at Middlesex, New Jersey,
through General Mailing Corporation, a mail-order house
patron of the Middlesex post office. Permit No. 8 was
issued on November 20, 1962. Thereafter 5,543 copies
of “The Housewife’s Handbook on Selective Promis-
cuity” were shipped from that post office.
First-class mailings of Liaison News Letter, Inc.
were also mailed from the Middlesex post office.
An investigation was commenced within days after
the first mailings of Eros at Middlesex, New Jersey.
Thereafter testimony was presented to a Federal
Grand Jury sitting in the Eastern District of Pennsyl-
vania, which on March J°, i963, returned its true bill
scala
of indictment charging petitioners in 28 counts with
mailing obscene publications and advertisements for
such publications, in violation of 18 U.S.C. 1461 [R.
la, 6a-13a].
Petitioner Ralph Ginzburg was named in all 28
counts. One of the three corporate petitioners was also
named with Ginzburg as a co-defendant in each of the
28 counts.
Petitioners Ralph Ginzburg and Documentary Books,
Inc. were charged with three counts (Counts 1 through
3) of having caused the mailing of advertisements to
two persons in Philadelphia and one person in Haver-
town, Pa., on November 15, November 17 and Decem-
ber 12, 1962, telling where an obscene book, “The
Housewife’s Handbook on Selective Promiscuity” by
Rey Anthony could be obtained. The same petitioners
were also charged with six counts (Counts 11 through
16) of having caused the mailing of the same obscene
book to six persons in Philadelphia, Pa.
The petitioners Ralph Ginzburg and Liaison News
Letter, Ind. were charged with three counts (Counts 4
through 6) of having caused the mailing of advertise-
ments on November 27, 1963 to three persons in New
Hope, Pa., Havertown, Pa., and Paoli, Pa., telling
where an obscene pamphlet, named “Liaison, Vol. 1, No.
1” could be obtained. The same petitioners were also
charged with four counts (Counts 23 through 28) of
having caused the mailing of the same obscene pamphlet,
“Liaison, Vol. I, No. 1” to four persons in Philadelphia,
Pa., one person in Jenkintown, Pa., and one person in
Valley Forge, Pa.
Petitioners Ralph Ginzburg and Eros Magazine, Inc.
were charged with four counts (Counts 7 through 10)
sein
of having caused the mailing of advertisements on |
March 24, November 17, December 11, and December
18, 1962, to persons in Philadelphia, Pa., Rosemont, Pa.,
Chester, Pa., and Elkins Park, Pa., telling where an
obscene book, named Eros, Vol. 1, No. 4, could be ob-
tained. The same petitioners were also charged with six
counts (Cou..s 17 through 22) of having caused the
mailing of the same obscene book, Eros Vol. 1, No. 4,
to five persons in Philadelphia, Pa., and one person in
Gladwyne, Pa.
On April 11, 1963, petitioners filed a motion to dis-
miss the 18 counts of the 28-count indictment which
pertained to “The Housewife’s Handbook on Selective
Promiscuity” and Liaison Vol. 1, No. 1 on the ground
that such materials were not obscene within the mean-
ing of 18 U.S.C. Section 1461 [R. 13a]. Copies of the
book and pamphlet and advertisements referred to in
the 18 counts were attached to the motion as exhibits.
Annexed to the motion was an affidavit of petitioner
Ralph Ginzburg [R. 14a-l6a] saying that “prior here-
to and in February 1962” he had written 1000 “prom-
inent. persons” asking their view on “The Housewife’s
Handbook” and annexing 69 replies thereto, together
with a book review of the “Handbook” by William J.
Bryan, Jr. M.D. appearing in the Journal of the Ameri-
can Institute of Hypnosis, January 1962 and a book
review of the “Handbook” by Dr. Robert M. Frumkin,
appearing in the Journal of Human Relations, Summer
1962, Vol. IX, page 513.
On May 8, 1963, petitioners acknowledged by stipula-
tion that in all counts in which the three publications or
the advertisements pertaining thereto were involved,
they “did knowingly mail or cause to be mailed the ma-
terials set forth in those counts on the dates set forth,
he
fully knowing the contents of said materials.” [R. 149a
150a, 152a].
On May 17, 1963, the people’s motion to strike the
Ginzburg affidavit and its 69 annexed exhibits was
granted. On May 23, 1963 petitioners’ motion to dis-
miss the 18 counts of the 28-count indictment was de-
nied [R. 15la].
On June 10, 1963, petitioners filed a waiver of trial
by jury [R. 2a]. The case was tried to the court on
June 10, 11, 12, 13 and 14, 1963, and the trial judge
rendered his verdict on June 14, 1963.
During its case in chief, the United States of Amer-
ica called the postmasters of Middlesex, New Jersey,
Blue Ball, Pa., and Intercourse, Pa., the postal inspector
of Middlesex, New Jersey, and the editor of Liaison
Vol. 1, No. 1. After introducing in evidence a copy of
“The Housewife’s Handbook on Selective Promiscuity,”
“Eros Vol. 1, No. 4” and “Liaison Vol. 1, No. 1,” and
the ten advertisements and their mailing envelopes, sup-
porting Counts 1 through 10, the people rested.
In their defense, petitioners called seven witnesses: A
clinical psychologist, an art critic, the author of “The
Housewife’s Handbook on Selective Promiscuity,” a
magazine editor, an attorney, a psychiatrist, and a
Southern Baptist minister/family counselor. Eight
books and pamphlets were introduced into evidence as
examples of “hard-core pornography” and 34 magazines
and paperback books were introduced into evidence as
having been recently purchased in shops in New York
City and Philadelphia, Pa.
In rebuttal the United States Government called
three witnesses: two psychiatrists (one male and one
female), and a Baptist minister/family counselor.
pe ee
United States of America: Case in Chief.
Arthur J. Rodgers, Jr., the Postmaster of Blue Ball,
Pa. testified as follows: In the course of his business as
postmaster he had received a letter on the stationery of
Eros Magazine, Inc. dated October 18, 1962, and signed
by Frank R. Brady, Associate Publisher of Mr. Ginz-
burg, reading in part, “After a great deal of delibera-
tion, we have decided that it might be advantageous for
our direct mail to bear the postmark of your city. .. .”
[R. 152a-155a, Ex. G-1]. The postmaster’s reply was
not offered in evidence, nor was there evidence present-
ed of any mailings from the Blue Ball post office.
Miss Bertha M. Martin, the postmaster of Inter-
course, Pa., testified as follows: In the course of her
business as postmaster, she had received a similar letter
on the stationery of Eros Magazine, Inc., dated Sep-
tember 4, 1962, and signed by Frank R. Brady, reading
in part: “After a great deal of deliberation, we have de-
cided that it might be advantageous for our direct mail
to bear the postmark of your city. .. .” She informed
the originator by letter that, because of limited facili-
ties, the Intercourse post office would not be able to
handle bulk mailings in such a volume [R. 156a-159a].
Robert W. Sanders, the postmaster of Middlesex,
New Jersey, testified as follows: On August 13, 1962,
petitioner Eros Magazine, Inc. of 110 West 40th Street,
New York, requested an application to mail without af-
fixed postage, through General Mailing Corporation, a
mail-order house patron of Middlesex post office. Per-
mit No. 8 was issued on the following day. Substantial
bulk mailings commenced on October 7, 1962 and con-
tinued to the present time (June 10, 1963). Approxi-
mately 5,053,884 pieces of third-class bulk mail contain-
le,
ing advertisements for Eros Magazine went out, at a
mailing cost of $132,704.93. The total pieces of all
classes of mail was 6,067,573 and the cost of mailing
was $163,438.48.
On November 20, 1962, petitioner Documentary
Books, Inc. requested an application to mail without af-
fixed postage, through the same mail-order house pa-
tron of Middlesex post office and Permit No. 8 was
issued by his post office (Middlesex) on the same date.
A total of 5,543 copies of ‘““The Housewife’s Handbook
on Selective Promiscuity” were received for mailing.
Liaison News Letter, Inc. also mailed first-class
mailings through his post office (Middlesex).
J. Shane Creamer, the Assistant United States At-
torney, placed in evidence the ten advertisements and
mailing envelopes which were received through the mail,
which were the basis for the first ten counts of the in-
dictment. The exhibits were the subject of a stipulation
previously filed with the Court on May 8, 1963, in
which the petitioners acknowledged that they did “know-
ingly mail or cause to be mailed” the same “on the
dates set forth, fully knowing the contents of said ma-
terials.” [R. 165a, 149a, 150a, 152a].
Hugh J. McDermott, a postal inspector of Middlesex
post office testified that he began investigating the
case as to a violation of the postal obscenity statutes
within days after the first mailings of Eros at the Mid-
dlesex post office [R. 172a].
John Willis Darr, the editor of “Liaison Vol. 1, No.
1,” the pamphlet named in the indictments, testified that
he had been a writer for twelve years and as such had
been referred to the Eros offices in September or Oc-
a a
tober of 1962, by an employment agency [R. 173a].
After an interview with Warren Boroson, he received a
post card from Mr. Ginzburg inviting him to submit
samples of his past work which he did. Within a week
of the time that he was referred by the employment
agency, he was interviewed by Mr. Ginzburg, who told
him he was looking for an editor and writer for Liai-
son. “Liaison” was to cover the same scope as “Eros,”
but in a more newsworthy fashion [R. 174a]. Follow-
ing this interview and at Ginzburg’s request, he sub-
mitted an article called “How to Run a Successful
Orgy” to their offices, which later appeared in Liaison
News Letter in a revised form [R. 175a]. Later Ginz-
burg telephoned him and said, “When can you start to
work?” [R. 177a]. He was hired at a salary of $7500
a year [R. 18la].
As editor of “Liaison” he inherited a collection of
magazines, newspapers, clippings and notes which he
used as research material and background for the news-
letter [R. 177a]. He identified, as having been written
by him, the statement of policy, appearing on page 1,
the article, “Semen in the Diet,” appearing on pages 4
and 5 and the article, “Sing a Song of Sex Life,” ap-
pearing on pages 5 and 6 of “Liaison Vol. 1, No. 1”
[R. 179a, 18la]. All of the copy for the newsletter was
placed in a basket on the desk of the front office and
from there it was transported up to Ginzburg’s office
upstairs. As a rule he would get the material back on
his desk the next day.
Ginzburg gave him instructions that the last page
should not contain any four-letter words. The newslet-
ter was folded for mailing in such a manner that two-
thirds of the last page was exposed to those handling
a Ss
the mails [R. 179a]. As to the statement of policy,
Ginzburg might have said, “It is all right” or “It is
good” or something like that [R. 179a]. He had a dis-
cussion with Ginzburg about his reaction to the article,
“Sing a Song of Sex Life.” They discussed the line
“The professors have crawled out of the dust and dis-
covered lust”? and he thought Ginzburg liked that line
[R. 18la].
At the time of his termination of employment in No-
vember of 1962, he had completed five issues of “Liai-
son” and two had been published [R. 183a].
The Assistant United States Attorney placed in evi-
dence a copy of “Liaison Vol. 1, No. 1” [Ex. G-16, R.
178a]. “The Housewife’s Handbook on Selective Prom-
iscuity’ by Rey Anthony [Ex. G-17, R. 184a] and
“Eros, Winter, 1962, Vol. 1, No. 4” [Ex. G-18, R.
185a] and rested the Government’s case in chief.
Petitioners’ motion for dismissal of the indictment
on the ground that the Government had failed to make
out a case under 18 U.S.C. Section 1461 was denied.
Ralph Ginzburg et al.’s Defense.
Dr. Charles G. McCormick, a clinical psychologist,
testified that pornographic material could be described
in psychological terms and gave his opinion as to what
he, as a psychologist, considered to be pornography [R.
188a]. In his opinion pornographic material must “com-
bine both the sense of pleasure and the sense of guilt
or shame” in the individual [R. 188a] and that the
sense of guilt or shame was a “sense of being able to
engage in something that is intrinsically bad to the
reader based upon whatever he had accumulated from
="
the air in which he grew up... .” [R. 189a]. He
thought that most pornographic materials “are pub-
lished secretly . . . without acknowledgement . . . won’t
even carry a title page on which the author’s name is
given or the publisher’s name is given. There is no date
.. no commitment for responsibility behind it.” And
that these surreptitious factors gave the person who
would read them the impression that sexual expression
was evil, sex was shameful and that what the material
was about was a shameful item [R. 19la]. In his opin-
ion one of the essential building blocks of pornographic
material was the distortion of reality, such as the reac-
tion of the pre-adolescent girl to her violation in “the
autobiography of the flea.” Such distortion was neces-
sary ‘to bring his readers’ attention exclusively on at-
tempting to absorb the guilty pleasure from the mate-
rial itself.” ““. .. there would have to be something wrong
with the person for’ the pornographic material he re-
ferred to not to act as a sexual stimulant and produce
sexual stimuli. “. . . he would have to be ill in some way,
physically or psychologically.” [R. 193a].
In his opinion, while under certain circumstances, the
view of an attractive nude woman could erotically stim-
ulate an average male and such erotic response would
be felt and experienced by the individual exactly the
same as for pornographic material [R. 194a], the stim-
uli of shame which accompanied pornography would not
be produced in the viewer nor would he have an itching
or a morbid or a licentious sexual arousal unless the per-
son were pathological [R. 195a] or “the publication
were designed to do this, but under ordinary circum-
stances where the publication were a responsible one,
there would be no reason to expect this to be so.”
|, ae
In his opinion, a person would have to be extremely
exhibitionistic (pathological) not to feel uncomfortable
about having his neighbor see him reading the material
which he considered as pornographic.
“... in presenting the exampies of the type of
material which Dr. McCormick has testified to .. .”
[R. 201a] Sidney Dicksteir, the defense counsel, placed
in evidence eight buvks and pamphlets: “A Small Pig”
booklet [Ex. D-1], a pamphlet, “John Dillinger in a
Hasty Exit” [Ex. D-2], a pamphlet, “Mr. Bregar is
Sold on TV” [Ex. D-3], a booklet, “Dagwood Has a
Family Party Let’s Go” [Ex. D-4], a pamphlet, “Se-
crets Will Out” [Ex. D-5], a book, “The Oxford Pro-
fessor” [Ex. D-6], a book, “The Autobiography of a
Flea” [Ex. D-7], and a book, “Devil’s Advocate” [Ex,
D-8]. Dr: McCormick testified that the effect of such
materials on the average person would “be one of revul-
sion, and one of being assaulted.” “In other words, it is
actually destructive for the individual, the ordinary in-
dividual to read that kind of material because he doesn’t
have the emotional base and he doesn’t have the capac-
ity for keeping context... .”
Dr. McCormick testified that he had read “Lady
Chatterley’s Lover.” It was his opinion that while Ex-
hibits D-1 through D-8 and “Lady Chatterley’s Lover”
were all sexually stimulating, the impact on the system
of the ordinary individual was radically different. He
said “There is context. The reality setting, the reality
factors, the complications, the responsibilities of the
author, the attitude of the author as he presents the
material... .” [R. 203a]. In “Lady Chatterley’s Lover”
there “is a responsibility in the sense that the actual
presentation by the author gives you reality situations
rather well... .” [R. 204a]. 7
oe, ae
Dr. McCormick testified that he was acquainted with
“Lolita” by Nabakov. It was his opinion that the sub-
ject matter and themes of “Oxford Professor” (one
incident of which involved the seduction of an immature
girl) and “Autobiography of the Flea” and “Lolita”
(the story of the seduction of a pre-adolescent by an
established psychotic individual} were identical, but the
books were “different” in the way in which they dealt
with the similar subject matter. The difference was re-
ality. “Lolita” was psychologically sound. The author
makes the reader appreciate the fact that “this is one
individual’s distortion, but a reality of distortion” [R.
205a].
Dr. McCormick testified that he had read “The
Housewife’s Handbook on Selective Promiscuity” and
that in his opinion the predominant effect of this ma-
terial was not to create in an average person an itching,
morbid or shameful desire or longing with respect to
sex [R. 206a]. In his opinion the book was not morl)id,
nor did it tend to corrode and turn the reader against
himself in the process of reading [R. 210a], as was the
case with pornographic material. It gave a realistic pic-
‘ture of a woman’s attitude and activities with respect
to sex [R. 210a]. It would not produce a guilty feeling
in the individual because it was supported by a respon-
sible attitude on the part of the author. A reader will
feel informed rather than guilty after having read it
[R. 21la].
Dr. McCormick had read ‘‘Eros Vol. 1, No. 4” and
' was of the opinion that the predominant effect would
not create in the average person an itching or morbid
or shameful desire or longing with respect to sex. He
thought that there were a couple of passages in Eros
ae ae
that would be erotically stimulating to an average per-
son reading it, such as in the article by Frank Harris
[R. 212a] and the article by the Kronhausens [R. 213a]
and that they would not stimulate in the average person
a morbid or unhealthy attitude toward sex, because of
the reality context that the author, wto is quoted,
maintains. “While erotically stimulating, it is not patho-
logical” [R. 214a].
Dr. McCormick had read “Liaison Vol. 1, No. 1” and
was of the opinion that the predominant effect of it
would not create in the average person an itching, mor-
bid or shameful desire or longing with respect to sex, nor
would it be erotically stimulating [R. 215a]. He was of
the opinion that one who was already perverted (a para-
philiac) would be sexually stimulated because of psychic
distortions [R. 215a]. While both the article by Dr, Al-
bert Ellis and the article “Semen in the Diet” had the
tone of an assault on the reader, neither one would have
any erotic effect because they lacked any established as-
sociation with the reader [R. 216a].
Dr. McCormick was of the opinion “The Housewife’s
Handbook” would be quite useful as an educational in-
strument [R. 216a]. It gave a realistic portrayal of the
evolution of sexual awareness and sexual expression of
“an ordinary everyday person with the natural emo-
tional and intellectual limitations who had to grope...
through just like everyone else has to grope his way
through toward some kind of sexual adjustment. . . .”
He considered it a valuable instrument for a person
who was looking for sexual education. He thought the
book would be useful under supervision. The restriction
was imposed for the purpose of guiding the person in
making distinctions “where the layman in reading it
—
—15—
would not be able to distinguish those aspects that were
the individual’s own problems and those aspects of the
material that were a natural universal problem of get-
ting educated.” [R. 217a].
The Assistant United States Attorney did not cross-
examine Dr. McCormick.
Horst W. Janson, an art critic, testified as to the
origin of the etchings, engravings and woodcuts ap-
pearing in “Eros Vol. 1, No. 4” at pages 2, 6, 7, 8, 9,
10, 11, 12, 13 and 81 [R. 219a-220a]. He thought the
photographs on page 73 et seg. in the essay entitled
“Black and White in Color” were “outstanding, beau-
tifully and artistic photographs.” The photographer had
an “extraordinary sense of form and composition” [R.
221a]. He saw the “symbolic expression of blending
together of the equivalence of the two people represent-
ed,” so familiar in certain British postage stamps, used
as an artistic compositional device, in the first photo-
gr vh depicting the Caucasian female’s facial profile
superimposed on the Negro male’s profile, in the full
page photograph of the two eyes, and in the final full
page photograph depicting the full length nude Negro
male and nude Caucasian female in an amorous embrace.
He was of the opinion that in terms of material and
graphic layout and taste displayed in presenting the ma-
terial, Eros was the equal of any magazine being pub-
lished today [R. 222a].
The Assistant United States Attorney did not cross-
examine Mr. Janson.
Lillian Maxine Serett, the author of “The House-
wife’s Handbook on Selective Promiscuity,” testified
that she started writing the book 15 years ago and fin-
ished it three years ago. She had gone into the printing
os eis
eS
business two years prior to finishing the book and had
printed it herself under the title “The Housewife’s
Handbook for Promiscuity” and the printing label,
Seymour Press [R. 223a]. The edition published by
Documentary Books, Inc. had the same textual matter
as her edition [R. 224a] which she originally published
in August and September of 1960. A reprint with an in-
troduction by Dr. Ellis was mailed out to doctors, psy-
chologists, and college professors who were heads of psy-
chology departments. Approximately 400,000 brochures
were mailed since October, 1960 and a little over 12,000
copies had been sold [R. 225a].
She stated that the Kinsey Reports confirmed her
belief that woman’s role in sex was widely misunder-
stood and that she hoped her book, written in a layman’s
language, could communicate to women that the sexual
activities and attitudes they have are not unusual or
unique, that various forms of sexual expression are nor-
mal and healthy things to do and that women do have
sexual rights [R. 226a].
The Assistant United States Attorney did not cross-
examine Mrs. Serett.
Dwight MacDonald, a magazine editor and literary
film critic, testified that he reads about 200 books a
year or about five a week. He had seen a change or
movement in the permissible limits of sexual candor in
our literature, especially in the last five or six years
[R. 230a]. That “Fanny Hill,” which had always been
regarded as “hardcore pornography” should be published
was extremely significant in his judgment, as was the
publication of “Tropic of Cancer” and “Naked Lunch,”
“which is an extremely, really a sick book” [R. 23la].
—
cone
He recalled that six or seven years ago the models in
girlie magazines had to wear brassieres, whereas now
they can expose their bosoms, although “they can’t be
actually nude from the front anyway, but that will per-
haps come.” In the movie industry of the 20’s, one could
not show two people living together who were not mar-
ried, nor could they show a husband and wife in a single
bed [R. 234a]. Now it was possible to show rape, pros-
titution, and explicit scenes of sexual intercourse [R.
235a}.
Dwight MacDonald testified that he had read “The
Housewife’s Handbook on Selective Promiscuity” and
that in his opinion, “Speaking as a long-time student of
mass culture in American society” he would say that it
did not go substantially beyond tue customary limits of
candor that American society permits in its literature at
this time.” He thought that it was not a particularly in-
teresting book, that it had no literary value, and that its
only importance would be as case history for doctors.
In comparing it with “Lady Chatterley’s Lover,” he
thought the latter a work of literary art, whereas “The
Housewife’s Handbook” was not [R. 236a].
He was of the opinion that “Liaison Vol. 1. No. 1”
was “an extremely tasteless, vulgar and repulsive issue”
but that it did not go substantially beyond the custom-
ary limits of candor we tolerate in discussion of sexual
matters and that he did not think it obscene or porno-
graphic [R. 237a].
He was of the opinion that “Eros Vol. 1. No. 4” did
not go substantially beyond the customary limits of can-
dor which we in this country now tolerate and accept
[R. 238a]. He was of the opinion that the following
articles had significance or note for some literary
merit: “Love in the Bible,” “Jewel Box Review,” “Let-
= wen
ters froin Allen Ginsberg,” “Was Shakespeare a
Homo?” “New Twists on Three Great Trysts,” “The
Natural Superiority of Women as Erotisists,” “Black
and White in Color,” and “Lysystrata.” [R. 239a]. He
thought there were a considerable number of articles
that had either trivial or poor literary merit and at least
one, “Bawdy Limericks,” had no merit and was quite
vulgar. Nevertheless, he did not think them obscene or
pornographic [R. 240a].
The Assistant United States Attorney did not cross-
examine Mr. MacDonald.
Sidney Dickstein, the defense counsel, placed in evi-
dence a copy of “Memoirs of a Woman of Pleasure” by
John Cleland [Ex. G-9] as having been discussed by
Dwight MacDonald.
Arthur J. Galligan, the law partner of the defense
counsel, testified that he had visited several stores in
New York City in the vicinity of 6th and 42nd Street
and in Philadelphia, Pa., in the vicinity of 15th and
Market and had made numerous purchases of paper-
back books, girlie and nudist magazines. The following
of his purchases were placed in evidence as Exhibits
D-10 through D-43* [R. 243a-256a] :
D-10 Waterfront Blonde
D-11 Rogue Magazine
D-12 Gang Girl
*Gang Girl and Wild Body held obscene in Chi. v. Wood, 63 -
M.C. 156720; Nymph #4 held obscene in Chi. v. Charles Kimmel,
63 M.C. 190116; Pastime, Vol. 2, No. 4, held obscene in Chi. v.
W estbery, 63 M.C. 104281; Adam, Vol. 7, No. 6, held obscene iti
Chi. v. Soden, 63 M.C. 155883; Escapade, April 1964, held ob-
scene in Chi. v. Dahlia, 64 M.C. 127005; Snap, Vol. 4, No. 2, and
Tip Top, Vol. 3, No. 6, were subjects of federal obscenity indict-
ments in United States v. Milton Luros et al. (trial date Oct. 18,
1965); Gymnos, Oct. 1963, held obscene in Dale Book Co. v.
Leary, 233 F. Supp. 754 (Aug. 12, 1964) ; see also other paper-
D-13
D-14
D-15
D-16
D-17
D 18
D-19
D-20
D-21
D-22
D-23
D-24
D-25
D-26
D-27
D-28
D-29
D-30
D-31
D 32
D-33
D-34
D-34
D-36
D-37
D-38
D-39
D-40
D-41
D-42
D-43
j
anuonmimarscoommery raza g 4
f
J ap eRe
The Sucker
Pushover
Rock-N-Roll Gal
They Couldn’t Say No
Wild Body
Nymph Issue No. 5
Tic Toc Vol. 1 No. 2
Pastime Vol. 2 No. 5
Adam Vol. 7 No. 6
Satan’s Scrapbook Vol. 1 No. 1
Kiss No. 2
Stark Vol. 1 No. 1
French Frills Vol. 2 No. 5
Hip and Toe Vol. 1 No. 2
Vue, July Issue
Photo Button, Series 7
Treasure Box Review, Series 18
Treasure Box Review, Series 19
Tip Top Vol. 2 No. 6
Snap Vol. 3 No. 2
Twilight No. 3
Zoftick Vol. 2 No. 1
Ruby Vol. 1 No. 1
Torch Vol. 2 No. 1
Nude Word Issue No. 6
Gymnos July 1963
The Wrong Turn, and Season of Love
Escapade, August Issue
Cavalcade, August 1963
Scamp, September
M R Spring 1962
back books, girlie magazines and nudist magazines which have
run afoul of the law as tabulated in CDL, Commentaries, Vol. 1,
No. 2 (Nov. 1965). This problem of comparables is analyzed in
United States v. West Coast News Co., et al., 228 F. Supp. 171,
191,
Ae ht NORE ena
—= 2)
Dr. Peter G. Bennett, a psychiatrist, was asked to de-
fine pornography in psychiatric terms. He stated his
opinion that pornography was more than an intense
stimulation of erotic feelings, which in itself was not
harmful or disturbing to the ordinary mature adult.
Pornography had, in addition to the erotic stimulation,
a disturbing disintegrative influence even on the mature
person which is almost impossible to resist and which
abrades the conscience, causing morbid feelings of
shame and guilt [R. 260a]. He stated that the average
well-adjusted person’s deep-seated guilt and shame about
some aspects of sex as a result of his early education or
lack of it will disappear as the person allows himself to
become better acquainted with the subject, and that the
anxiety, caused by sexual realism, may even be turned to
a fuller enjoyment of life ‘as I think might happen
to many as a result of reading “The House-Wife’s hand-
book.” In his opinion, the characteristic of the mind
which was primarily attacked by pornography was its
narcotic appeal to the remnant of infantile narcissism
which is present in every-one—the selfish wish for total
satisfaction without regard for people or responsibility
which is characteristic of the newborn child [R. 262a].
Pornography forcibly stimulates intense narcissistic
fantasy by portraying orgiastic sexual and sadistic sat-
isfaction in the most compelling and unreal way. “The
narcissistic impulses cause a morbid sense of shame and
a desire to regress to infancy to some extent even in
the well-adjusted mature adult, whereas erotic realism
only causes an erotic stimulation without regression for
which the aforementioned individual would feel no
shame or guilt.” [R. 263a].
Dr. Bennett testified that the reading of “The House-
wife’s Handbook” by a mature person who is not men-
onli ee
tally ill would not have the effect upon his psyche that
he attributed to pornographic material [R. 264a].
He testified that he had read “Eros Vol. 1, No. 4”
and that a reading of this volume by an average per-
son would not have the same effect as the reading of
the pornographic material which he had described. He
thought the predominant effect of some of the articles
was sexually stimulating and others was not [R.
265a].
He was of the opinion that there was nothing in
Liaison Vol. 1, No. 1 that would sexually stimulate an
average individual or create morbid or shameful or li-
centious thoughts [R. 266a].
On cross-examination by the Assistant United States
Attorney, he stated that the intent of the person pro-
ducing the material was not a factor in his psychia-
tric definition of pornography. It was his opinion that
what the American society as a whole understood to
be pornographic, 1.e., persons who write things that
stimulate sexual curiousity violently for purposes of fi-
nancial gain, was not his psychiatric definition of por-
nography [R. 268a].
The trial judge asked Dr. Bennett if the acts of sod-
omy performed by Dr. Adler on the author as described
at page 207 would have any shameful effect on the av-
erage reader. Dr. Bennett replied that it would not in the
mature person [R. 27la]. The court inquired whether
those paragraphs “would suggest to a boy or girl near
21 years of age ways (sodomy) of having sexuai inter-
course in order to have greater satisfaction” and Dr.
Bennett answered, Yes, and that it would be permissible
in his opinion. The court asked if Dr. Bennett was
speaking of mental or sexual maturity and Bennett re-
Le NCI EA OLE LON ALL IO
ers
~~
plied he was talking of emotional maturity. Dr. Ben-
nett said that he thought that the average 14-year old
would not be disturbed by reading such material. The
Judge asked if they read this, would they try to do this
in order to have greater sexual satisfaction. Dr. Ben-
nett said, no, not at that age. The Judge called his at-
tention to the paragraph preceding the act of sodomy
(where Dr. Adler tells the author that her husband was
sick, when he said that there were more important things
than sex etc.) and asked him if that would have any
shameful effect on a reader or suggest a moral code
that it was all right to have sexual relations with one
not your spouse. Dr. Bennett agreed that was the au-
thor’s opinion but stated it would not create any shame-
ful effects. He was of the opinion that “A reader who
is old enough to wade through this book—and by that |
mean 12, 13, 14—would recognize that this is the au-
thor’s opinion but not necessarily the moral code or the
code of society.”
George Von Hilsheimer, III, a Southern Baptist
minister, who was trained in psychology and had done
some counseling and therapy with the underprivileged in
both urban and rural areas, testified to the attitudes
toward sex held by Christian groups and to certain
changes that have recently occurred [R. 281a].
He said that he first saw ‘The Housewife’s Hand-
book” in 1960 when one of his colleagues gave him a
copy. He had used it since in his pastoral counseling
and in his psychological counseling with married women
who have a sense of shame, as a means of ventilating
that sense of shame [R. 289a]. He was of the opinion
that it teaches them their own sexual failures are not
unusual [R. 290a]. “We have an almost idolotrous con-
ee
cept of marriage in our country. Little girls are told
practically from the moment of birth that this is the one
road to happiness and almost to salvation. They are
told that somehow a mystical magical experience is going
to occur with this marriage that was made in heaven,
which is a heretical theological notion in itself. They
will meet the man of their dreams, he will be perfect
for them, they will marry and things will be lovely and
beautiful thereafter. They are told this by comic books,
by television, by movies, by every possible medium of
public culture. They are told a lie. They are told a myth
... Now it is necessary for the pastoral counselor and
for the psychologist if he is going to be responsible to
his youth and to his parents to give them a more realis-
tic view of the world in which they live and the prob-
lems that they are going to face and to fit them with the
practical, detailed, immediate, realistic and unshamefully
communicated knowledge about the things which are
most important to them. This to me is the great value
of this book. It says, ‘you are not alone. This is the ex-
perience of many, many people,’ and it gives a certain
amount of hopefulness to it. It is in my mind theologi-
cally quite an innocent book... .” [R. 29la]. In his
opinion the book was a straightforward recount of a
fairly unhappy history of a fairly typical woman and
was not drawn far from the average middle American
experience. Although he thought the standard mar-
riage manuals helpful, the language was too compli-
cated [R. 292a].
On cross-examination by the Assistant United States
Attorney he indicated he did not use the book as a blue-
print for what one was supposed to do but used it as
a means of ventilating a sense of shame [R. 294a].
It’s main value was that it discussed in quite simple
ilies
terms things which were not ordinarily discussed. He
said he would give the book to the person being coun-
seled with a comment, “If you think you have difficul-
ties . . . then look at the book in this way and see what
it has to teach you.” He did not supervise since he be-
lieved that people can read freely and have the ability
to solve their own problems without his intimate and
daily guidance.” [R. 295a]. |
The trial judge asked if it was the kind of a book that
he would like to have in the library of his home if he
had a 14, 15 or 16-year old son or daughter. The Rev-
erend replied that it was in his library at home and
that his wife and the teenage children in his parish read
it [R. 296a]. The Judge asked him if, in his opinion,
the things discussed related to matters of sexual per-
version [R. 296a]. The Reverend replied that the kinds
of relationships the author describes were not commonly
held by psychologists as perversions, but whether or not
this is true, such was a “part of these children’s lives,
the material that is freely available to them is the hard-
core pornography, shamefully discussing lewd, prurient
kinds of garbage... .” “This kind of book in the set-
ting of a person they trust and respect who has said,
‘Read it, We will discuss it’ will form the relationship of
a new kind of understanding.” “If I am to work ef-
fectively with them I must have means to read, of talk,
or give them to read that with ease they can talk about
things they do know about in a distorted way, and then
we can talk about what is the kind of relationship you
should have and I should have, and the proper kind of
relationship.” [R. 297a].
The Court asked: “How about the person who reads
the book and doesn’t have the reverend to go to talk
ee
to him about it and believes this is a code of morals that
should be followed as set fcrth in this book?” The Rev-
erend answered: “This is one of the difficulties to me
of pornography.” [R. 297a]. The Reverend did not
think any person, particularly a teenager, reading the
book was going to be convinced that adultery was a
proper way of life [R. 298a]. He thought the book
would be read “in the context of what kids and adults
are saying to each other.” [R. 300a].
Asked by the Judge if he thought that wide circula-
tion of the book would be perfectly all right, he said
that he thought it would serve as a ventilation from
all the kinds of horrible trash that was freely avail-
able, the books on any newsstand which show sodomy,
lesbianism, homosexuality and adultery freely practiced
|R. 305a]. Asked by tive Judge if such wasn’t in this,
book, he replied: “But dealt with in an unshameful way,
a dry way, a straight forward way.” [R. 305a], He said
that he worked with children “whose common expression
is a four-letter expression. This is their form of greeting
and this is common and extending in our culture. I work
with adults whose common form of recreation is the tell-
ing of dirty and sometimes obscene and pornographic
stories” and that the book has “a tremendous value in
this kind of counseling.” [R. 307a].
Asked by the Trial Judge whether he would approve
of the methods of sexual relationship set forth in the
book (sodomy) the Reverend replied, “No, I would say
again that the intimate relationships of a loving couple
in marriage, so long as they have developed naturally
and with regard for the integrity of one another, that
there is no such thing as perversion.” The Judge then
asked him to read the passages on pages 207 describing
—
enliicn
the sodomy act and asked him the question with regard
to the relationship that is there (between the female
author and the male doctor, unmarried). The Rev-
erend replied, “I repeat, this was not described—so long
as it is in the boundaries I have stated—this does not
describe a perversion and it describes a kind of sexual
relationship which is generally regarded as quite permis-
sible and proper so long as it is within the right frame-
work.” [R. 31 la.]
The defense rested its case.
United States of America: Rebuttal.
The United States Government called three witnesses,
two psychiatrists and one minister. It was stipulated
that their testimony was to be considered for rebuttal
purposes only [R. 335a].
Dr. Nicholas George Frignito, a psychiatrist, testified
that in his opinion “The Handbook” had no medical
value, because it gave a distorted viewpoint of the
sexual behavior of women and the type of behavior that
is prevalent in our community, that it fosters sexual
perversity and implies adultery, fornication and sexual
perversion are all right [R. 320a].
In his opinion it was a danger to the majority but
was not a threat to professional people who had training
and knowledge in this sort of business [R. 321la]. This
type of material would be dangerous for an adult boy
in that it encourages all types of sexual behaviors such
as masturbation and increases sexual promiscuity [R.
322a]. It would incite the average 14-year old to sexual
misconduct [R. 323a] and lead to “self abuse, mas-
turbation and that would lead to other types of sexual
activity” [R. 324a]. As to the average adult person it
seit
would stimulate his prurient interest and certainly would
mislead him into believing that such was acceptable be-
havior in our community. The prurient interest he
referred to was “the stimulation by writing or porno-
graphic books to sexual misconduct or instilling lustful
feelings” [R. 324a].
Asked on cross-examination by the defense counsel
whether the authoress’ view toward sexual practice was
widely held by other commentators on sex, he an-
swered, “I don’t know the exact number, but those men
that I associate with rather closely do not hold to this
type of sexual behiavior. I would say that the majority
of psychiatrists that I am in contact with do not ap-
prove of say abnormal, aberrant sexual acts.” [R.
327a].
Dr. Ann Hankins Ford, a psychiatrist, testified that
she had read ““The Housewife’s Handbook,” and that in
her opinion it had no medical value. In the field of
psychiatry in which she was involved (disturbed per-
sons) it would be a destructive book [R. 337a, 339a].
In her opinion the authoress was emotionally very im-
mature, a very disturbed person, who had not progressed
emotionally from the age of childhood when people are
in a normal homosexual stage [R. 337a]. Asked if the
book had any medical message to it, she replied the only
message she found in the book was “if you are dissatis-
fied with your husband look around and get some
other man” [R. 338a]. “The clitoris is a remnant of the
male penis from fetal development and this is so em-
phasized in this book, it is the only penis this woman
has, and she all but works it to death. She must have
this recognized. She must have great male attention
paid to her substitute penis, and in this way she is not
was
making love to the men. This is not a lovers’ relation-
ship; it is a matter of demeaning, sullying these men
whom she comes in contact with.” [R. 338a]. The
author is so confused and far from understanding what
her problem is that it would reinforce the anguish and
feelings of hostility” that pacients in a similar situa-
tion had [R. 338a]. It would not have any value in
the treatment or counseling of her patients but would
be more disturbing to them [R. 338a].
Reverend Adolph Emil Kannwischer, a Baptist minis-
ter and Profesco~ of Psychology, testified that he would
not use the ‘“Housewife’s Handbook” in counseling
parishoners or people because he regarded it was detri-
mental to a person who already was having problems.
He saw no positive value in it [R. 344a].
The United States Government rested its case.
The Assistant United States Attorney’s motion to
strike Exhibits D-1 through D-43 and the testimony
of the expert witnesses regarding responses of the av-
erage person and community standards was refused
[R. 347a].
The defense attorney’s motion for a judgment of ac-
quittal was refused [R. 348a].
The trial judge found the defendants guilty on all
counts. The trial court’s opinion appears at R. 355a and
in United States v. Ralph Ginzburg et al., 224 F.
Supp. 129 (Nov. 21, 1963). On December 19, 1963, the
trial judge sentenced petitioner Ginzburg to five years’
imprisonment and a fine of $28,000. and fined the cor-
porate defendants $500 on each count [R. 373a-376a].
(A notice of appeal was filed on the same day). [R.
380a].
—
The United States Court of Appeals, Third Circuit,
affirmed the judgment of the District Court in United
States v. Ralph Ginzburg et al., 338 F. 2d 12 (Nov.
6, 1964). This opinion appears at R. 385a.
Summary of Argument.
i.
The public policy of the United States Supreme Court
has always championed the obscenity laws. Yet with all
of this case law support, the communities are being
inundated by a horde of obscenity which the law is not
reaching.
The prosecutors are claiming that they have no reme-
dy and that the Supreme Court stands too eager to re-
verse their successes, when they occur. Amicus do not
picture this to be the true situation.
This Court recognizes that the debasement of sex has
been with mankind down through the centuries and that
the obscenity laws are necessary for a strong commu-
nity life. The Roth-Alberts decision is testimony of the
fact that criminal penalties are authorized procedures
to regulate this type of conduct.
Most of the recent cases before this Court since 1957
have involved “previous restraint” controls, such as
movie licensing cases, search warrant procedures, the
right of the postmaster to refuse mail on the grounds
it is obscene, etc. Whereas an earlier Court in Near v.
Minnesota had indicated “previous restraint’? could
clearly be employed against obscene materials, this mod-
ern Court has restricted that interpretation considerably
by procedural rules. In doing so, a number of obscenity
judgments were reversed on procedural grounds, making
it appear that this Court was releasing the matter as
=
not being obscene. Such decisions have misled and dis-
couraged prosecutors.
In several cases the justices have been unable to agree
on an “Opinion of the Court.’”’ The theories of the case
set forth by the individual justices do not lead to an
orderly understanding of the law.
On the other hand, this Court has denied review in at
least 21 criminal cases which have come before it since
1957. These cases were without opinion and have not
been publicized. They are not generally known to the
individual prosecutors, who lose heart when they see all
losses and no victories.
Then too, some prosecutors do not recognize the dis-
tinction between criminal prosecutions and previous re-
straint cases. A favorable written opinion confirming
the trial court’s findings in this criminal case is essen-
tial to the people’s cause if we are to break the stalemate.
The prosecutors need a direct signal from the Court,
that they can retain their victories in criminal cases.
II.
Petitioners waived a jury at the outset and placed
their fate in the hands of the trial judge. They should
not be allowed to argue on appeal issues which would
not have been available to them had a jury tried the
matter.
The trial judge was receptive to all that the petition-
ers had to offer in the way of evidence. He was not
required to accept their theory of the case, in view of
ee | hen
the subject matter and conduct of the petitioners, which
spoke for itself.
If this Court, in its decision in Roth-Alberts actually
passed upon the obscenity vel non of such subject mat-
ter, that case should be controlling here, because of the
similarity of the material and operations of the peti-
tioners.
The trial court properly followed the Roth standards
in holding petitioners’ three publications obscene. Evi-
dence of the purpose of the publisher in regard to one
publication is probative as to his purpose in the other
two, ag acommon scheme or plan.
Redeeming social value is not determined in a vacuum,
but depends upon all of the circumstances. The variable
nature of obscenity requires this. The obscene portions
of the material must be balanced against its affirmative
values in determining the predominant appeal taken as a
whole.
a. ee
ARGUMENT.
I
An Integrated Review of the Obscenity Case Law.
A. Public Policy.
The public policy of this Court has always cham-
pioned the obscenity laws. See Rosen v. U. S., 161 U.S.
606 (1896),’ decided by the U.S. Supreme Court at
the turn of the century. This favored policy is not dif-
ficult of understanding. Central to our heritage is the ex-
pectation that our Courts should strive to preserve
our heritage and should not give scandal’ by tolerat-
ing anything which tends to debase public morals.
1Rosen attempted to escape a jury conviction on an obscenity
charge on a technicality. He sought his freedom on appeal, argu-
ing that, because the People had not described the obscenity in
their complaint (referred to by the court as “the record’’), he
had not been properly informed of the nature of the crime. United
States Supreme Court Justice John Marshall Harlan, grand-
father of the present United States Supreme Court Justice John
Marshall Harlan, rejected this plea out of hand and, in invoking
the unanimous rule of the courts at that time, drew from the
language of an earlier Massachusetts Supreme Court decision at
page 608:
“Tt can never be required that an obscene book and pic-
ture should be displayed upon the records of the court... .
This would be to require that the People itself should give
permanency and notoriety to indecency in order to pun-
ish it.”
His Massachusetts reference was the first recorded case in the
United States against a book, Commonwealth v. Holmes, (1821).
The book in the Massachusetts case was “Fanny Hill,” a cen-
tury and a half later to find its way before this Court in A
Book Names “John Cleland’s Memoirs of A Woman of Pleas-
ure’ v. Attorney General of Massachusetts, October Term, No.
368.
2Webster’s Collegiate Dictionary, Fifth Edition, defines “scan-
dal” as “The distressing effect on others of unseemly or un-
righteous conduct; especially, an occasion of another’s lapse in
faith or morals as to give scandal to one’s children... 3. That
which offends established moral conceptions or disgraces all who
are associated or involved.” Tolerance of indecency, for any rea-
son, even for purposes of administration, had the undesirable ef-
fect of giving notoriety and acceptance to the material and dig-
nifying its appearance.
a
Less than 35 years ago this Court underscored this
same “favored position” of the obscenity laws when, in
Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L.
Ed. 1357 (1931)* the members of that Court made it
clear that immunity from previous restraint did not
extend to obscene publications.
Eleven years later, not one member of the 1942 Court
entertained any doubt that the existence of obscenity
was contrary to the people’s abiding interest in good pub-
lic morals. Neither the prevention of publication (previ-
ous restraint) nor criminal punishment for dissemina-
tion raised any constitutional problems in their view. In
Chaplinsky v. New Hamphsire, 315 U.S. 568, 86 L.
Ed. 1031, 62 S. Ct. 766 (1942) that Court said at
page 571:
“|. There are certain well-defined and narrowly
limited classes of speech, the prevention and pun-
ishment of which have never been thought to raise
any Constitutional problem. These include the lewd
and obscene. . . . It has been well observed that
such utterances are no essential part of any exposi-
tion of ideas, and are of such slight social value
as a step to truth that any benefit that may be de-
rived from them is clearly outweighed by the so-
cial interest in order and morality. . . .”
3“The objection has . . . been made that the principle as to
immunity from previous restraint is stated too broadly, if every
such restraint is deemed to be prohibited. That is undoubtedly
true; the protection even as to previous restraint is not absolutely
unlimited. But the limitation has been recognized only in excep-
tional cases. ‘When a nation is at war many things that might be
said in time of peace are such a hindrance to its effort that
their utterance will not be endured so long as men fight and
that no Court could regard them as protected by any constitu-
tional right.’ Schenck v. United States, 249 U.S. 47, 52. No one
would question but that a government might prevent actual ob-
struction to its recruiting service or the publication of the sailing
dates of transports or the number and location of troops. On
similar grounds, the primary requirements of decency may be
enforced against obscene publications.” (Our emphasis. )
a
Ten years later, the majority of the members of the
1952 Court in Beauharnais v. Illinois, 343 U.S. 250,
72 S. Ct. 725, 96 L. Ed 919 (1952) agreed with the
Chaplinsky Court, adding:
“Certainly no one would contend that obscene
speech, for example, may be punished only upon a
showing of such circumstances (clear and present
danger)...”
When, five years later, in Roth v. U.S. and Alberts
v. California, 354 U.S. 476, 77 S. Ct. 1314, 1 L. Ed
2d, 1498 (June 24, 1957), this present Court was faced
with a broadside attack on the statutes guarding pub-
lic decency, seven members of this modern court stood
firm and enunciated a solid distaste for obscenity. Rosen
v. U.S. (supra), Near v. Minnesota (supra), Chaplin-
ski v. New Hampshire (supra), and Beauharnais v. II-
linois (supra) were all confirmed. The language of
Rosen was cited with approval. Everyone was charged
with notice of what must be deemed obscene. The Roth-
Alberts majority opinion placed emphasis on the lan-
guage of Chaplinski noted above. Obscene utterances
were of such slight social value as a step to truth that
any benefit to be derived from them was clearly out-
weighed by the social interest in order and morality.
The above language of the Beauharnais Court was cited
with approval. No one could contend that obscene speech
could be punished only upon a showing of a clear and
present danger.
Under such a regime, it did appear as though the
communities had the proper defense mechanisms and the
modern assault on public morality could easily be turned
back.
=
Yet with all this unanimity, elegance of language, and
profuseness of citation to buttress the foundations of
our anti-obscenity fortresses, the stockades are present-
ly in danger of collapsing for lack of riflemen, abetted
by confusion. The communities of this nation, eight
years later, find themselves with a horde of filth, print-
ed, visual, vocal and otherwise, of unprecedented force,
threatening to erode the very foundations of the basic
morality upon which our nation and our Constitution
were founded.* In the face of this peril the public prose-
**A tide of printed filth is advancing across the land in a
way which should give every whviesome-thinking person cause
to wonder whether it may not erode the very foundations of the
basic morality upon which our nation and our Constitution were
founded.
In bookstores, railroad stations, air terminals, drug stores,
everywhere that print is displayed and pictures revealed, there
stand pyramids of smut, pornography and obscenicy contaminat-
ing the very air in which they rest. Language which would be
too raw and grating for the dives of cpitim-smoking debauchees
degrades and defaces the paper which carries it.
Magazines with pictures and sketches that would disgrace
oriental harems are sold to children as if they were as innocuous
as bags of popcorn. Exotic rites that would bring the blush of
shame to the faces of the most primitive tribes are described
with nonchalance in high-priced books, medium-priced books,
and low-priced books. Themes which should be the subject only
for clinical studies in the hospitals for the criminal insane are
turned into scarifying stories which are bound to bring harm to
the youths into whose hands they fall.
Acts of degeneracy and unnatural conduct are being portrayed
in contemporary literature as if they were normal and accepted
practice in civilized life. Adultery and every other type of ill
and sinful conduct is being depicted glamorously, as if calling for
* emulation.
The healthful, romantic, and poetic relationship between man
and woman is being treated in the basest and most animalistic
terms.
Under the false guise of instruction and knowledge, so-called
manuals on marriage are being turned out in myriads of copies
for the sole purpose of appealing to prurient and lascivious minds.
The sick outpourings of degenerate brains are being bound in
hardback books and paperback books and sometimes in elegant and
expensive leather. Titles and cover pictures which in themselves
a
cutor bleats that he has no remedy and that it is useless
to prosecute, since the Supreme Court will reverse the
jury’s findings.
CDL is at complete odds with such ideology. Unlike
our knowledge of outer space, which is increasing in ge-
ometric proportions through discoveries in space explo-
rations, our knowledge of sex is profound, for sex has
been with us since the beginning of mankind. As to the
sexual relation, it can be said, with some degree of
truth, that there is “nothing new under the sun.” Simi-
larly, the assault which has as its objective the debase-
ment of sex has been with mankind down through the
centuries. That which motivates the pornographer, in
1965, motivated John Cleland two centuries earlier. Rec-
ognition of the universal need for strong community
are suggestive, pornographic, indecent and obscene shout their vul-
garity to passersby.
it used to be that pornographic literature, to the extent that
it existed, was sold clandestinely. The secrecy and the furtive-
ness with which it was sold and circulated was an indication
that the public looked upon it as something improper and not
in consonance with the morals of the community. But now the
most salacious books, the most degrading publications are sold in
book stores, drug stores, five and ten cent stores, and at the
newsstands. It is difficult to think of a place where print appears
that one’s eyes and spirit will not be assailed by pornography
of the vilest character.
In short, a wide river of filth is sweeping across the nation,
befouling its shores and spreading over the land its nauseating
stench. But, what is most disturbing of all, is that persons,
whose noses should be particularly sensitive to this olfactory as-
sault, do not smell it at all. I refer to district attorneys and prose-
cuting officers throughout the nation. Of course, there are a large
number of district attorneys in the country who are doing their
duty and doing it well, but a larger number of prosecuting of-
ficials are shrugging unconcerned shoulders at this violent as-
sault on law, morality and decency.”
. . . From an address given by Associate Justice Michael
A. Musmanno of the Pennsylvania Supreme Court at
the Waldorf-Astoria New York City on October 23, 1965.
a
controls in this modern era has amply been witnessed
by this Court in Roth-Alberts when it said at page
484:
“But implicit in the history of the First Amend-
ment is the rejection of obscenity as utterly with-
out redeeming social importance. This rejection for
that reason is mirrored in the universal judgment
that obscenity should be restrained, reflected in the
international agreement of over 50 nations, in the
obscenity laws of all of the 48 states, and in the
20 obscenity laws enacted by the Congress trom
1942 to 1956... .”
Nevertheless, there is, in our opinion, a crisis facing this
nation which requires the members of this Court to bear
witness through concrete action and to drive home, once
and for all, the basic fact, which is escaping so many
at the present time, that this Court really has not, in
its decisions since Roth-Alberts underwritten the sale of
“perversion for profit.”
If we understand correctly what has occurred in the
ensuing years since Roth-Alberts, this Court has not
altered the basic position taken by it in those cases;
namely that criminal cases which applied the proper
standard for judging obscenity, did not offend constitu-
tional privileges. This Court held at page 492:
“In summary then, we hold that these statutes, ap-
plied according to the proper standards for judging
obscenity, do not offend constitutional safeguards
against convictions based upon protected material,
or fail to give men in acting adequate notice of
what is prohibited. .. .’”’ (Our emphasis).
— =
B. The Problem of Previous Restraint Cases.
Unfortunately, a line of cases followed which enjoyed
in common the element of previous restraint,’ a factor
not present in the Roth and Alberts cases, which author-
ized criminal penalties as the just consequences of the
defendants’ temerous conduct. This Court did not react
as favorably to this new issue as the earlier Courts in
Near v. Minnesota (supra) which had excluded pre-
vious restraint controls in the case of obscene publica-
tions from the operation of the Blackstone rule, which
held that: .
“The liberty of the press is indeed essential to the
5Previous (prior) restraint was a major issue in each of the
following: Tunes Film Corporation v. City of Chicago, 355
U.S. 35, 78 S. Ct. 115, 2 L. Ed. 2d 72 (1957) (Movie li-
cense—no opinion), reversing 244 F. 2d 432 (7th Cir. 1957)
and 139 F. Supp. 837 (1956); Mounce v. U. S., 355 U.S. 180,
2 L. Ed. 2d 187 (1957) (customs case—no opinion), reversing
247 F. 2d 148 (9th Cir. 1957) and 134 F. Supp. 490 (1955);
One Inc. v. Olesen, 355 U.S. 371, 78 S. Ct. 364, 2 L. Ed. 2d
352 (1958) (right to deposit mail—no opinion) reversing 241
F. 2d 772 (9th Cir. 1957); Sunshine Book Co. v. Summerfield,
355 U.S. 372, 78 S. Ct. 365, 2 L. Ed. 2d 352 (1958) (right
to deposit mail—no opinion) reversing 249 F. 2d 114 (D.C.
Circuit 1957) and 128 F. Supp. 564 (1955); Times Film Corp.
v. City of Chicago, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d
403 (Jan. 23, 1961) (movie license) reversing 272 F. 2d 90
(7th Cir. 1959) and 180 F. Supp. 843 (1959); Marcus v.
Kansas City Search Warrants, 367 U.S. 717, 81 S. Ct. 1708,
6 L. Ed. 2d 1127 (June 19, 1961) (Seizure), reversing 344
S.W. 2d 119 (1960); Manual Enterprises Inc. v. Day, 370 U.S.
478, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (June 25, 1962) (right
to deposit mail), reversing 289 F. 2d 455 (D.C. Circuit 1961)
Bantam Books Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631,
9 L. Ed. 2d 584 (Feb. 18, 1963) (Warnings) reversing 176
A. 2d 393; A Quantity of Books v. Kansas, 378 U.S. 205,
84 S. Ct. 1723, 12 L. Ed. 2d 809 (June 22, 1964) (Seizure),
reversing 191 Kan. 13, 379 P. 2d 254 (1963); Freeman v. Mary-
land, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (Mar.
1, 1965) (Movie license), reversing 233 Md. 458, 197 A. 2d
232 (1964); Trans-Lux Distributing Corp. v. Board of Regents
of the University of New York, 380 U.S. 259, 85 S. Ct. 952,
13 L. Ed. 2d 959 (1965) (movie license—no opinion).
~~ =
nature of a free state; but this consists in laying
no previous restraints upon publications, and not in
freedom from censure for criminal matter when
published. Every free man has an undoubted right
to lay what sentiments he pleases before the pub-
lic; to forbid this, is to destroy the freedom of the
press; but if he publishes what is improper, mis-
chievous or illegal, he must take the consequence of
his own temerity” 4 Bl. Com. 151, 152.
The cloud of confusion which was to appear was fore-
case in Kingsley Book Inc. v. Brown, 354 U.S. 436, 77
S. Ct. 1325, 1 L. Ed. 2d 1469 (June 24, 1957), decided
on the same day with Roth-Alberts. In that case, this
Court split five-to-four in approving the New York in-
junctive action which authorized limited previous re-
straint. It was here that Justice Brennan and Warren
parted compar with the majority in the Rotk and the
earlier Courts.
The confusion and disruption commenced one year
later with the per curiam reversals without opinion in
the Times Film Corporation, One Inc., and Sunshine
Book Co. cases* (cited in footnote 5). Later written
®For example, the claim is widespread that Sunshine Book Com-
pany stands for the proposition that nudist magazines are not
obscene, no matter what may be the publisher’s or disseminator’s
intent, the format, method of distribution, policy of the state
etc. See here the recent result in Connecticut v. Martin et al.
(June 17, 1965), where the Appellate Division of the Circuit
Court reversed (2-1) an extremely well reasoned trial court
opinion, solely upon the basis of the Sunshine Book Co. case.
We believe such claim to be utterly groundless. See Outdoor Amer-
ican Corporation v. City of Philadelphia, 333 F. 2d 1963 (June
30, 1964) certiorari denied 85 S. Ct. 192, 13 L. Ed. 2d 176
(Nov. 9, 1964); Luros v. Hanson, petition for certiorari filed
Sept. 27, 1965, Oct. Term, 1965 No. 620; Hadley v. Arkansas,
205 Ark. 1027, 172 S.W. 2d 237 (1943); King v. Common-
wealth, 233 S.W. 2d 522 (Oct. 20, 1950); Missouri v. Becker,
364 Mo. 1079, 272 S.W. 2d 283 (1954), cited with approval in
i,
cull
opinions in Marcus, Manual Enterprises, Inc. and A
Quantity of Books gave specific recognition to the fact
that the obscenity issue was not reached in this Court’s
reversals of those lower Court judgments on previous
restraint grounds. What factor the previous restraint
element played in the 1958 decisions will never be
known.’ Subsequent opinions have revealed a common
disagreement between the justices on what constitutes
the vital phase of the case. See the No Clear Majority
Decisions, infra. Then too, the Court’s membership has
changed.*
As breeding grounds, the 1958 per curiam reversals
acted with catalytic action to spawn the “hard core por-
nography” rule in one of the major centers of porno-
praphic production in the United States. New York v.
Richmond County News Co., 175 N.E. 2d 681 (May 25,
Roth-Alberts at footnote 26; Sunshine Publishing Co. v. George
N. Parris (unreported, Circuit Court, Macomb County April 29,
1963); Nebraska v. Jungclaus, 176 Neb. 641, 126 N.W. 2d
858 (Mar. 13, 1964); Dale Book Co. v. Leary, 233 F. Supp.
754 (Aug. 12, 1964); City of Phoenix v. Fine (unreported, Su-
perior Court Maricopa County, Arizona (Jan. 22, 1965) ; Missouri
v. Vollmar, 389 S.W. 2d 20 (Mar. 8, 1965); Virginia v. Dave
Rosenbloom (unreported, Suffolk County, Richmond, Virginia,
June 10, 1965); Arizona v. Arizona Magazine Distributors Inc.
(unreported, West Phoenix Justice Court, Maricopa County,
(Aug. 26, 1965) ; Arizona v. Al Sacks (unreported, West Phoenix
Justice Court, Maricopa County (Sept. 1, 1965).
7The per curiam decisions are criticized in “Obscenity, Pornog-
raphy and Censorship by Thomas R. Mulroy of the Illinois Bar
in 49 American Bar Association Journal (Sept. 1963) at 869.
The author cites Justice Jackson’s remarks on the empirical
reversal of a case without opinion in Brownell v. Singer, 347 U.S.
403 (1954):
“The Court’s one-word decision reverses concurring judg-
ments of three highly respected courts . . . (by citing) a
single case. . . . I think this Court owed those Courts and
the legal profession something more than reference to an
inapplicable decision.”
SJustices Frankfurter, Whittaker and Burton have been re-
placed by Justices Fortas, White and Stewart.
par” ae
1961.) Abetted by a misconstruction of the no clear
majority opinion decision in the Manual Enterprises
Inc. case and a misapplication of the special view enter-
tained by Justice Harlan in federal cases, the “hard core
pornography” rule spread to the other major centers of
pornographic production. Zeitlin v. Arnebergh, 59 Cal.
2d 901, 31 Cal. Rptr. 800 (July 2, 1963).”
C. The No Clear Majority Decisions.
The common disagreement between the justices has
given birth to a number of “no clear majority” deci-
sions which confound and confuse.’ Manual Enter-
°There is reason to believe that had Justice Desmond recog-
nized the significance of the previous restraint issue in the 19
cases, his deciding vote would have been cast differently and the
minority in that case would have prevailed. See Justice Des-
mond’s concurring opinion in the Richmond County News Co.
case, his concurring opinion in People v. Fritch, 13 N.Y. 2d
119 (June 10, 1963), and his dissenting opinions in Larkin
v. G. 1. Distributors Inc., 14 N.Y. 2d 869 (June 10, 1964) ;
Larkin v. G. P. Putnam’s Sons, 14 N.Y. 2d 399 (July 10,
1964) ; People v. The Bookcase Inc, et al., 14 N.Y. 2d 409 (July
10, 1964).
That the California Supreme Court misinterpreted the Har-
lan view seems apparent from Justice Harlan’s vote to deny cer-
tiorari in Grove Press Inc. v. Gerstein, 378 U.S. 577 (June
22, 1964), a state case. The language of the Zeitlin case sug-
gests however, that the author would have come by the same
result no matter how he chose to interpret Justice Harlan’s opin-
ion in the Manual Enterprises case.
1QOne of the basic postulates of the American case law system
is that the decision of a majority determines the result, and an
“opinion of the court” is written expressing the reasoning agreed
upon by the majority. When a majority agree on the result, the
decision is final as between the litigants. When a majority agree
in the reasoning for the result, the opinion which expresses this
reasoning is called the “opinion of the court.” If a majority agree
on the result, but do not agree in the reasoning for the result,
there is no “opinion of the court,” even though the controversy
is ended as between the parties to the lawsuit.
The decision plus the reasoning found in the “opinion of the
court” determine the precedent value of any particular case. In ~
many obscenity cases, however, there has been no “opinion of
Mahe A
par
prises Inc. v. Day, 370 U.S. 478, 82 S. Ct. 1432, 8 L.
Ed. 2d 639 (1962); Jacobellis v. Ohio, 378 U.S. 184,
84S. Ct. 1676, 12 L. Ed. 2d 793 (1964) ; A Quantity of
Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L.
Eu. <d 809 (1964); Grove Press Inc. v. Gerstein, 378
U.S. 577, 84 S. Ct. 1909, 12 L. Ed. 2d 1035 (1964);
Tralins v. Gerstein, 378 U.S. 576, 84 S. Ct. 1903, 12 L.
Ed. 2d 1033 (1964). The order in appearance of an
opinion, rather than solid precedent, often controls the
destiny of the people’s defenses against the assaults on
public morality.”
the court,” as where the majority have agreed only upon the re-
sult, (i.e., judgment reversed) but have not been able to agree
upon the supporting reasoning.
Text books on judicial precedent indicates that theoretically
the “no-clear-majority” decision stands only for its general result.
See Wambaugh, The Study of Cases (Second Edition, 1894), at
e 50:
1c “Even when all the judges concur in the result, the value
of the case as an authority may be diminished and almost
wholly destroyed by the fact that the reasons given by the
several judges differ materially. . . . “There must be a con-
currence of a majority of the judges upon the principles,
rules of law, announced in the case, before they can be con-
sidered settled by a decision. If the court is equally divided
or less than a majority concur in a rule, no one will claim that
it has the force of the authority of the court.’ ”
See also Black, Handbook of Judicial Precedent (1912), pages
135-136:
“Tf all or a majority of the judges concur in the result .. .
but differ as to the reasons which lead them to this con-
clusion, the case is not an authority except upon the general
result.”
The confusion of the State courts as to what is taking place
in the United States Supreme Court is spotlighted in Arizona v.
Locks, 97 Ariz. 148, 397 P. 2d 949 (Dec. 30, 1964). That
court said, in error, at page 951:
“This was followed by Manual Enterprises Inc. v. Day,
370 U.S. 478 . . . holding the publication of photographs
of nude male figures designed to appeal to homosexuals not
to be so obscene as to lose the protection of the First Amend-
ment. (Our emphasis).”
The Arizona Supreme Court’s reversal of a jury decision on
girlie magazine subject matter was based largely on a compari-
a ee
D. A Major National Problem.
In the absence of knowledgeable defending riflemen,
compounded by the confusion, those well-buttressed for-
tresses are being subjected to a withering attack. On
October 21, 1965, the Los Angeles County Grand Jury
returned a two count indictment against 14 defendants
in California v. Milton Luros, et al., Superior Court
case No. 295,183, for conspiracy to manufacture and
distribute girlie magazines, nudest magazines and nine
lesbian-type paperback books (including Fanny Hill).
On February 15, 1965, the count covering the girlie
and nudist magazines was dismissed without trial in a
pre-trial motion to dismiss the indictment. Superior
Court Judge Walter R. Evans, in dismissing, had this
to say:
“In view of the time I have had to study it, I
have found it extremely interesting, but absolutely
amazing. I was concerned as to the extent to which
the United States Supreme Court—I am very
frank to say, and I think I am entitled to say
it, that I disagree wholeheartedly with the United
States Supreme Court cases. I think the so-called
founding fathers who promulgated our Constitution
probably would turn over in their graves if they saw
the extent to which the United States Supreme
Court has stretched the protection to this type of
material which to me, has no value to anybody.
However, that is my personal position. I want to get
that off my chest. I think there is nothing but filth
from beginning to end in this material. However,
son with this erroneous reference and belief that Justice Harlan’s
opinion was the opinion of the Court. The Arizona Court had in-
dicated a different view on the subject matter when the case
was before it previously in 372 P. 2d 724 (June 20, 1962)
and 382 P. 2d 241 (May 25, 1963).
en
a
tixat is my personal opinion, and I think that counsel
pointed out that I still have an obligation to follow
what I think are the rules laid down by the United
States Supreme Court. I was interested in reading
one oy the learned justices who said that maybe
some day the balance will start swinging back where
honesty and decency would start entering into a con-
sideration of this thing. I hope it will.”
He thought eight of the lesbian-type paperbacks (but
strangely, not Fanny Hill) a jury issue, and Count 2
was set for trial. The people’s action was short lived
however. Although both the District Court of Appeal
and the California Supreme Court thereafter refused the
defendants a writ of prohibition on the count involving
the lesbian-type paperback books, Trial Judge Joseph
Sprankle dismissed the case, without trial on June 14,
1965. The books’ titles, Lesbian Sin Song, Two Women
in Love, Counterfeit Lesbian, Lesbian Captive, Les-
bians in White, The Girls at Wendy’s, The Three Way
Apartment and Honey Lips, sung out the perversion
they peddled.
In another action by the people-—this time against a
notorious national disseminator located in New York—
a criminal obscenity indictment was short-circuited by
trial judge J. Irwin Shapiro, when he dismissed New
York v. Ray Kirk, Birch, All State News Co. Inc., et
al., 40 Misc. 2d 626, 243 N.Y.S. 2d 525 (Sept. 6, 1963)
without trial. In so holding, Judge Shapiro refused
to follow controlling precedent in his state, for one of
the books supporting the indictment had already been
held obscene by New York’s highest court in New York
v. Harry Fried, 18 A. 2d 996, 238 N.Y.S. 2d 742 (Mar.
26, 1963). Appeal dismissed for want of jurisdiction.
—45—
Treating the paper whereon the appeal was taken as a
petition for writ of certiorari, certiorari is denied (Jus-
tice Black, Douglas and Stewart are of the opinion
probable jurisdiction should be voted and judgment re-
versed 378 U.S. 578, 84 S. Ct. 1904, 12 L. Ed. 2d
1033 (June 22, 1964).”
E. A Problem of Communication.
The confused results reached in the lower courts
noted above does not seem warranted to CDL, when one
considers the overwhelming weight of case law in the
opposite direction. The key to an awakening of law en-
forcement seems bound up in the remarks of Chief
Justice Warren in Jacobellis v. Ohio (supra) at page
1684:
“. . This Court hears cases such as the instant
one not merely to rule upon the alleged obscenity
13Federal courts are equally confused. See United States v.
Klaw and Jack Kramer, 350 F. 2d 155 (2nd Circuit July 15,
1965) and Haldeman v. U.S., 340 F. 2d 59, 62 at fn. 6 (10th
Cir. Jan. 13, 1965):
“Mr. Justice Stewart, concurring in Jacobellis, declined to de-
fine the term ‘hard-core pornography,’ but stated: ‘I know
it when I see it . . .. 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 pro-
tected tends to raise doubts regarding one’s perceptive abili-
ties in such matters...”
When District Judge George Templar found himself reversed
as the trial judge in the Haldeman case, he turned around and
dismissed two major federal grand jury indictments against na-
tionally notorious smut peddlers: Louis Linetsky aka John Am-
slow & Co. in United States v. Linetsky, No. T-CR 582 (D.C.
Kansas) (June 24, 1965) and an equally notorious smut mer-
chant in United States v. Wasserman (D.C. Kansas) No. T-CR-
581 (June 29, 1965). The former involved girlie magazines
and illustrations of females in the nude and the latter involved
motion picture films, compare these results with Roth-Alberts
(supra); Frank L. Collier v. U.S. (infra) ; Herman L. Womack
v. U.S. (infra); Chobot v. Wisc. (infra); Roy A. Oakley v.
U.S. (infra) Monfred v. Maryland (infra); Heinecke v. U.S.
(infra) ; Goldstein v. Virginia (infra); Wensler and Imlay v.
Calif. (infra).
ak se te AL AE Be
—
of a specific film or book but to establish principles
for the guidance of lower courts and legislatures.
Yet most of our decisions since Roth have been
given without opinion and have thus failed to fur-
nish such guidance... .” (our emphasis).
With the exception of the four per curiam decisions
in 1958, the only obscenity decisions since Roth-Al-
berts which have been without opinion, were those in
which this Court has dismissed an appeal or denied cer-
tiorari. This Court should call attention to these deci-
sions denying certiorari and dismissing appeals. In so
far as we have been able to ascertain they are 21 in
number :
John G. Matthews v. Florida, writ of certiorari
denied 356 U.S. 918, 78 S. Ct. 702, 2 L. Ed.
2d 714 (March 31, 1958), notwithstanding
the similarity of the statute to the Michigan
Statute in Butler v. Mich., 352 U.S. 80;
Wyman Hulan Parr v. U.S. (film), 255 F. 2d
86, writ of certiorari denied 358 U.S. 824, 79
S. Ct. 40, 3 L. Ed. 2d 64 (Oct. 13, 1958);
Max Padell v. U.S. (paperback books), 262 F.
2d 357, writ of certiorari denied 359 U.S. 942
79 S. Ct. 723, 3 L. Ed. 2d 676 (March 23,
1959) ;
Robert H. Cain v. U.S., 274 F. 2d 598, writ of
certiorari denied 362 U.S. 952, 80 S. Ct. 864,
4L. Ed. 2d 869 ( April 18, 1960) ;
Samuel R. Hochman v. U.S. (paperback books:
“The Sex Factory” and “Virgins Come High”)
277 F. 2d 631, writ of certiorari denied (Jus-
tices Black and Douglas voted to grant cer-
tiorari) 364 U.S. 837, 81 S. Ct. 70, 5 L.
_—
Ed. 2d 61 (Oct. 10, 1960) rehearing denied,
364 U.S. 906, 81 S. Ct. 231, 5 L. Ed.
2d 199 (Nov. 21, 1960) ;
Frank L. Collier v. U.S. (photographs of nude
young men) 283 F. 2d 780, writ of certiorari
denied 365 U.S. 833, 81 S. Ct. 746, 5 L.
Ed. 2d 744 (March 6, 1961) ;
Herman Womack v. U.S. (photographs of nude
young men) 294 F. 2d 204, writ of cer-
tiorari denied 365 U.S. 859, 81 S. Ct. 826, 5
L. Ed. 2d 822 (March 27, 1961);
Astore v. U.S. (film) 288 F. 2d 26, writ of
certiorari denied, 366 U.S. 925, 81 S. Ct. 1352,
6 L. Ed. 2d 384 (May 15, 1961);
Joseph Chobot v. Wisconsin (girlie magazines:
“Spice” “Adam” “Spree” and “Blondes, Bru-
nettes, and Redheads”) 12 Wis. 2d 110, 106
N.W. 2d 286, appeal dismissed for lack of a
federal question (Justices Black, Douglas and
Harlan voted for probable jurisdiction), 368
U.S. 15, 82 S. Ct. 136, 7 L. Ed. 2d 85 (Oct.
23, 1961) rehearing denied 368 U.S. 936,
82 S. Ct. 358, 7 L. Ed. 2d 198 (Dec. 4,
1961) ;
Roy A. Oakley v. U. S. (unretouched photo-
graphs of naked young women) 290 F. 2d 517,
writ of certiorari denied 368 U.S. 888, 82 S.
Ct. 139, 7 L. Ed. 2d 87 (Oct. 23, 1961) re-
hearing denied, 368 U.S. 936, 82 S. Ct. 358,
7 L. Ed. 2d 198 (Dec. 4, 1961) ;
Harry Monfred et al. v. Maryland (girlie maga-
zines: “Candid” “Consort” “Sextet” “Cloud 9”
“Torrid”), 226 Md. 312, 173 A. 2d 173, writ
ae
of certiorari denied 368 U.S. 953, 82 S. Ct.
395, 7 L. Ed. 2d 386 (Jan. 8, 1962) ;
Alfred J. Heinecke v. U.S. (Photographs of nude
young men—similar to U.S. v. Womack) 294
F. 2d 727, writ of certiorari denied (Justices
Black and Douglas voted to grant certiorari),
368 U.S. 901, 82 S. Ct. 173, 7 L. Ed. 2d 96
(Nov. 6, 1961) ;
Harold S. Kahm v. U.S. (for description of sub-
ject matter, see 300 F. 2d 78 at 82), 300 F.
2d 78, writ of certiorari denied 369 USS.
859, 82 S. Ct. 949, 8 L. Ed. 2d 18 (April
23, 1962) ;
Louis Finkelstein et al. v. New York (paper-
back books: “Garden of Evil” and “Queen
Bee’), 229 N.Y.S. 2d 367, 183 N.E. 2d 661
writ of certiorari denied (Justice Douglas voted
to grant certiorari), 371 U.S. 863, 83 S. Ct.
116, 9 L. Ed. 2d 100 (Oct. 15, 1962) ;
Harold Zucker v. New York (3 sado-masochis-
tic books similar to 50 books involved in New
York v. Mishkin, also before this court), writ
of certiorari denied (Justice Douglas voted to
grant certiorari) 371 U.S. 863, 83 S. Ct. 116,
9 L. Ed. 2d 100 (Oct. 15, 1962) ;
Arthur Goldstein v. Virginia (girlie magazines)
writ of certiorari denied 372 U.S. 910, 83 S.
Ct. 726, 9 L. Ed. 2d 720 (Feb. 18, 1963) ;
Edward Mishkin v. U.S. (books not named), 317
F. 2d 634, writ of certiorari denied 375 U.S.
827, 84 S. Ct. 71, 11 L. Ed. 2d 60 (Oct. 14,
1963) ;
—49__
John Darnell, III, v. U.S. (obscene letter), 316
F. 2d 813, writ of certiorari denied (Justice
Douglas voted to grant certiorari), 375 U.S.
916, 84 S. Ct. 205, 11 L. Ed. 2d 155 (Nov.
12, 1963), rehearing denied, 375 U.S. 982, 84
S. Ct. 493, 11 L. Ed. 2d 429 (Jan. 6, 1964);
Nirvana Ward Zuideveld v. U.S., 316 F. 2d 873,
writ of certiorari denied, 376 U.S. 916, 84 S.
Ct. 671, 11 L. Ed. 2d 612 (Feb. 17, 1964) ;
Harry Fried v. New York (paperback books:
“College for Sinners” ‘Sex Cat” and seminude
photographs of women), 238 N.Y.S. 2d 742,
appeal dismissed for lack of jurisdiction.
Treating the papers wherein the appeal was
taken as a petition for writ of certiorari, cer-
tiorari is denied (Justices Biack, Douglas and
Stewart are of the opinion that probable juris-
diction should be noted and judgment re-
versed), 378 U.S. 578, 84 S. Ct. 1904, 12 L.
Ed. 2d 1033 (June 26, 1964) ;
Samuel Dodd Williamson v. California (paper-
back book: “Fear of Incest’), 207 Cal. App.
2d 839, 24 Cal. Rptr. 734, writ of certiorari
denied (Justice Doulas voted to grant cer-
tiorari), 377 U.S. 994, 84 S. Ct. 1902, 12 L.
Ed. 2d 1047 (June 22, 1964), rehearing de-
nied .... U.S. ...., 85 S. Ct. 13, 13 L. Ed. 2d
77 (Oct. 12, 1964) ;
Harold Eugene Wensler, Sr., and John Imlay v.
California (8 mm movie, 12 minutes—“First
Fling” described as girlie magazine subjects in
motion) writ of certiorari denied (Justice
ill
Douglas voted to grant certiorari), 377 US.
994, 84 S. Ct, 1902, 12 L. Ed. 2d 1047 (June
22, 1964), rehearing denied, .... U.S. ...., 85 S.
Ct. 14, 13 L. Ed. 2d 77 (Oct. 12, 1964).
There is rarely any mention made in a trial court or
in a State Supreme Court of any of the criminal con-
victions, which this Court has refused to reverse, or the
obscene matter involved in those cases. The rare ex-
ception is Connecticut v. Andrews, 150 Conn. 92, 186
A. 2d 546 (1962), which, in answer to the defendant’s
claim that the girlie magazines “Modern Man” (July
1960) and “Modern Man—Yearbook of Queens” were
not obscene, said:
“The defendant’s claim that there were no ob-
scene magazines to support his conviction on the
first and second counts is without merit. Monfred
v. State, 226 Md. 312, 317, 173 A. 2d 173, Cert.
denied, 368 U.S. 953, 82 S. Ct. 395, 7 L. Ed. 2
386; State v. Chobot, 12 Wisc. 2, 110, 116, 106
NW2 286, dismissed, for lack of a substantial fed-
eral question, 368 U.S. 15, 82 S. Ct. 136, 7 L. Ed2
Sep
The end result it that the people’s cause suffers.
The bad cases are highlighted and the good cases go
unnoticed.
The Connecticut Supreme Court has recognized what
in our opinion appears to be good logic and good law
if the United States Supreme Court must, in each in-
stance make a constitutional judgment as to whether any
given subject matter is either, as a matter of law, pro-
tected speech; or a question of fact on the issue of ob-
scenity, for the jury to decide, then a denial of review .
—51—~
(either by dismissal of an appeal or by denial of cer-
tiorari) places the material in the latter category.”*
F. Reconciling the Cases.
When the obscenity statutes have been applied as
criminal statutes trying “conduct,” the People’s case has
met with no opposition from the United States Su-
preme Court, except in the case of Jacobellis v. Ohio,
378 U.S. 184, 84 S. Ct. 1674. Unfortunately, the United
States Supreme Court has failed to publicize such
results by way of formal opinion.
Justice Warren, in his dissenting opinion, in Jacob-
ellis v. Ohio, 84 S. Ct. 1674 (June 22, 1964), makes it
clear that this Court is not defending obscenity, but that
it only appears to do so when it is faced with proce-
durally bad cases, at page 1685:
“There has been some tendency in dealing with this
area of the law for enforcement agencies to do only
that which is easy to do— for instance, to seize
and destroy books with only a minimum of protec-
tion. As a result, courts are often presented with
procedurally bad cases and, in dealing with them,
appear to be acquiescing in the dissemination of ob-
scenity. But if cases were well prepared and were
conducted with the appropriate concern for consti-
tutional safeguards, courts would not hesitate to
enforce the laws against obscenity.”
MThe general rule of law that denial of certiorari means
“nothing” or “nothing much,” would seem to have little applica-
tion in free speech cases. See Supreme Court Practice, 3rd Ed.,
Stern and Gressman, P. 182, where the authors discuss this
point in writs of habeas corpus cases.
Our analysis points to a major point of distinction between
those cases which draw into issue the conduct of an individual
and those which involve “prior restraint.”” The final results have
certainly been distinguishable. The seven year history points to
a course of conduct which has meaning.
—
The “procedurally bad cases’ referred to by Justice
Warren were not criminal cases involving “conduct” but
were the cases cited in footnote 5, involving “prior re-
straint.” Where difficulty has been encountered, it has
been in the area of “prior restraint” by administrative
officials (motion picture censor boards and Postmaster
cases and mass seizures under search warrants). “Due
process” considerations were a major issue in such
cases. See here, the four Per Curiam decisions in 1958
(prior restraint—no jury trial on the issue of obscenity;
material kept from mails in preference to criminal trial
for disseminating obscene material, vendor required to
prove his right to distribute by injunctive action) ; Mar-
cus v. Kansas City Search Warrants, 367 U.S. 717,
(prior restraint—mass seizure under general search
warrant, non-criminal proceeding aimed at destruction
of subject matter rather than at conduct of vendor);
Bantam Books, Inc. v. Sullivan, 372 U.S. 48 (prior re-
straint—boycott, rather than criminal trial of vendor);
Manual Enterprises, Inc. v. Day, 370 U.S. 478 (prior
restraint—material kept from mails in preference to
criminal trial for disseminating obscene material, vendor
required to prove right to distribute by bringing an in-
junctive action); A Quantity of Books v. Kansas, 84 S.
Ct. 1723 (prior restraint—mass seizure, non-criminal
proceedings aimed at destruction of subject matter, ra-
ther than at conduct of vendor, no right to jury trial on
issue of obscenity). Freedman v. Maryland, 380 U.S.
51 (prior restraint—movie censor board, exhibitor re-
quired to prove his right to exhibit by injunctive action) ;
Trans-Lux Distributing Corp. v. Board of Regents of
New York, 380 U.S. 259 (prior restraint—movie cen-
sor board, exhibitor required to prove his right to ex-
hibit by injunctive action).
adie
In all of these cases, the People could have brought
the criminal action and held the defendant accountable
for his “conduct” (with the procedural safeguards of
criminal procedure, 1.e., jury trial and burden of proof)
and avoided the prior restraint issue. They chose the
“prior restraint” attack in preference, unaware that
this Court’s policy was to give Near v. Minnesota as
narrow a construction as possible. Unfortunately, the
disinterested prosecutor pictured above, at this late date,
is unaware of this basic distinction in the case law.
Furthermore, he is unwilling to pursue the distinction,
though convinced by logic, without a more direct signal
from this Court.
It appears symbolic therefore that, in this climate of
stalemate, petitioners Ginzburg, et ai. and Mishkin
should now find themselves before this Court at the
same time in criminal cases. Their respective operations
are as unto Roth and Alberts as peas in a pod.”
This Court must now decide if it meant what it said
when it put pornographers Roth and Alberts out of
business in 1957.
The reporter’s comments in the American Law Institute,
Model Penal Code (1957 draft) section 207.10 at page 14 de-
scribes the obscenity offense :
“The gist of the offense we envision, therefore, is a
kind of ‘pandering’ ”
which accurately discribes their separate activities. At page 13,
the reporter comments:
“The main purpose of Section 207.10 is to suppress com-
merce in the obscene. If production and circulation of ob-
scene material for gain can be eliminated, the supply would
be cut off at the source... .”
epithet OAR GARETT I ENTIAL CH ne
en
II.
This Court Should Affirm the Judgment.
A. Introduction.
One should bear in mind at the outset that this is not
the case of a defendant who has been’ deprived of a
right to trial by a jury of his peers in the*tommunity
in which the crime occurred. Under the Federal Stat-
ute, of which the Petitioners stand convicted, they had a
clear right to a trial by 12 jurors and the benefit of
the burden of proof in criminal cases, which requires the
prosecutor to prove to each and every one of these 12
jurors, that the defendant’s conduct was unlawful, be-
yond a reasonable doubt. They waived that right at the
outset, but not without reason, for “defendants in ob-
scenity cases want nothing so little as a jury trial’
XL Notre Dame Lawyer, No. 1 at page 10 (Dec.
1964). Bromberg, Five Tests for Obscenity, 41 Chi-
cago Bar Record, 416, 418 (1960).
Having made that waiver, and placed their fate in
the hands of the trial judge, they now argue on appeal
that which would not be available to them in the case of
a jury verdict. Though ever so subtle, the argument is
that it was the subjective feelings of the trial judge
which decided the matter, not the community’s sense of
responsibility.
16“Tefendant invariably recoils in horror at any suggestion that
the question of obscenity be submitted to a jury. This leads one to
question his sincerity for there is no better way of determining
community standards of morality than the time-tested method of _
trial by jury ...” Bromberg, Five Tests for Obscenity, 41 Chicago
Bar Record 416, 418 (1960).
“Are they not telling the justices that they believe they can pre-
vail only if the community standard is not applied? The Court
hasn’t gotten the message .. .” XL, Notre Dame Lawyer No. 1, 10
(Dec. 1964).
a
abn
At page 28 of their brief, the petitioners argue
“‘Customary limits of candor’ are still measured by
the type of material a trial judge would have in his
library or upon his coffee table.” At page 29: “At-
tempts to treat these concepts as objective standards and
to offer evidence in traditional form on whether a par-
ticular work can, by such standards, be judged ‘ob-
scene’ are rebuffed by triers of fact whose subjective
reaction to the work is too strong to permit enlighten-
ment by objective proof.” At page 34: “Experts on
mass culture .. . are in a much better position to know
what society now tolerates than a judge whose personal
reading habits may be quite different from those of the
crowd.” At page 43: “It does not appear that the trial
court had any special knowledge on matters literary or
artistic. What the trial judge did then was to ‘arbi-
trarily disregard all the expert testimony in the record
and rely upon his unsubstantiated personal beliefs in-
stead of upon evidence . . .” Had the case been tried to
a jury, their arguments would have been swallowed up
in the jury verdict and the result should not be different
here. Having waived the jury, petitioners should not be
permitted to argue what a jury would have found as to
“customary limits of candor,” “what objective proof
constitutes enlightenment,” “what society tolerates,” or
“whether or not the jury would accept the offered ex-
pert testimony,” as against what the trial judge did in
fact find.
The petitioners find themselves in no better position
than petitioner David Alberts who waived a jury trial
in Alberts v. California (supra). As to that defendant,
this Court said at page 489:
“Both trial courts below sufficiently followed the
proper standard. Both courts used the proper def-
pe ie
inition of obscenity . . . in the Alberts case, in rul-
ing on a motion to dismiss, the trial judge indi-
cated that, as the trier of facts, he was judging
each item as a whole as it would affect the normal
person...”
A close reading of the trial transcript reveals no lack of
receptivity on the part of the trial judge to the peti-
tioners’ efforts to “enlighten.” That he should reject
their theory of the case is understandable upon an
examination of the evidence presented at the trial, in-
cluding the exhibits, defendants’ conduct in relation
thereto, and the testimony.
B. The Roth-Alberts Facts Control.
Because the Roth-Alberts defendants and materials
so closely resemble their counterparts in this and the
Mishkin case, also before this Court in Mishkin v. New
York, No. 49, they assume a particular relevance to the
issues raised by these defendants. As to the materials
involved in Roth-Alberts, see 45 Minn. Law Review,
5, 20, et seg. and footnotes 88-102.
In United States v. Roth, 237 F. 2d 796, 800 (Sept.
18, 1956) Judge Clark in the Court of Appeals, Second
Circuit below, said of Roth and his materials:
“As we have indicated, if the statute is to be up-
held at all it must apply to a case of this kind
where defendant is an old hand at publishing and
surreptitiously mailing to those induced to order
them such lurid pictures and material as he can
find profitable. There was ample evidence for the
jury, and the defendant had an unusual trial in
that the judge allowed him to produce experts, in-
cluding a psychologist who stated that he would
nidithicn
find nothing obscene at the present time. Also vari-
ous modern novels were submitted to the jury for
the sake of comparison.”
In his petition for certiorari, Roth raised an issue that
the publications of which he stood convicted were not
obscene.’ One of the books was “American Aphrodite,
Vol. 1, No. 3,” whose description bears considerable re-
semblance to “Eros Vol. 1, No. 4.’* This Court ap-
parently did not consider Roth’s claim substantial, for
in granting the writ,’ jurisdiction and arguments were
limited” to three of the other issues in the jurisdiction-
al statement.
17Petition for Writ of Certiorari, pp. 2-3 ; 45 Minn. L. Rev. 5, 21.
18See 45 Minn. L. Rev. 5, 20, at footnotes 88, 89:
“88. The particular issue of America Aphrodite was volume
1, number 3, as correctly stated in count 24; the reference to
‘Number Thirteen’ in count 17 appears to be a typographical
error. See Record, pp. 19 & 15 respectively.
Among the distinguished authors whose works appeared
in the issue were Herbert Ernest Bates, perhaps best known
in the United States for The Purple Plain, Rhys Davis, whose
The Trip to London delighted thousands of its readers. Pierre
Louys, famous for Aphrodite, and Edwin Beresford Chancel-
ler, author of The Lives of the Rakes and many other histori-
cal works. Here, too, were pieces by Harold Alfred Manhood,
John Cournos, Patrick Kirwan, Henry Miller, and Harry
Roskolenko (Colin Ross).
In England, D. Val Baker criticized the Postmaster Gen-
eral’s earlier exclusion of American Aphrodite from the United
States mail, pointing out the genuine literary quality of its
contents. Baker, Aphrodite in Trouble, 168 Publishers’ Cir-
cular and Booksellers’ Record 924 (1954).”
“89. Record, pp. 1-19; Brief for the United States in Op-
position, pp. 12-13 . . . Since the count involving only Ameri-
can Aphrodite included both the book itself and advertise-
ments for it, the sole element of consistency in the verdict is
the conclusion that the book was obscene .. .”
19The granting of writs of certiorari are discretionary. Supreme
Court Practice, Third Edition, Stern and Gressman, page 118.
20See 352 U.S. 964 and 45 Minn. L. Rev. 5, 22.
Se
On the other hand, David S. Alberts’ approach to
this Court was by way of appeal under 28 U.S.C. sec-
tion 1257,” rather than by petition for writ of certio-
rari. In his jurisdictional statement, one of the issues
raised was whether the statute “upon its face and as
construed and applied” abridged “freedom of speech,
press and thought.’” which should have been suffi-
cient to state grounds for appellate jurisdiction on the
issue of obscenity under 28 U.S.C. section 1257.* This
Court noted probable jurisdiction in Alberts v. Califor-
nia, 314 U.S. 160, which theoretically placed the ob-
scenity issue before this Court. Alberts argued the mat-
ter to some extent in his briefs.”
In its majority opinion in Roth-Alberts (supra), this
Court said on the issue of obscenity vel non at page
476, footnote 8:
“No issue is presented in either case concerning the
obscenity of the material involved . . .”
Was this Court saying that this issue was so unsub-
stantial as to require no discussion?—in effect, that
*1*Where an appeal may properly be taken, the so-called obliga-
tory jurisdiction of the Supreme Court is thereby invoked, in con-
trast to the discretionary jurisdiction over certiorari cases .. .”
Supreme Court Practice, Third Edition, Stern and Gressman,
page 63.
Jurisdictional Statement, pp. 4-5, 45 Minn. L. Rev. 5, 25.
23The ‘validity’ of a state statute is also said to have been sus-
tained, within the meaning of §1257(2), when the state court holds
the statute applicable to a particular set of facts as against the con-
tention that such an application is invalid on federal grounds.
Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282. This is
true even though the statute on its face bears no federal impedi-
ment. Thus where the court holds that a particular transaction is
intrastate rather than interstate commerce and that on such basis
the state statute may be applied and enforced, the validity of the
statute has been sustained as to those facts.” Supreme Court
Practice, Third Edition, Stern and Gressman, p. 67.
24See 45 Minn. L. Rev. 5, 25, and footnotes 110, 111.
—59—
without the other major issues the Court would not
have written an opinion, but would have dismissed for
want of a federal question or affirmed the appeal with-
out opinion as in the case of Joseph Chobot v. Wiscon-
sin (supra). Or did the Court, give Mr. Roth and Mr.
Alberts less than justice? Roth was facing a 5-year
sentence and $5,000.00 fine and Alberts was facing a
30-day jail sentence. In their concurring opinions, both
Justices Harlan and Warren reviewed the materials.
One commentator has interpreted this footnote to in-
dicate the majority did not treat the obscenity issue. 45
Minn. Law Review 5. But this is inconsistent with the
role of the jurist expressed by Justice Brennan, its au-
thor in his dissenting opinion in the companion case of
Kingsley Book Inc. v. Brown (supra) at 448:
“Of course, as with jury questions generally, the
trial judge must initially determine that there is a
jury question, i.e. that renaonanrr:| men may differ
whether the material is obscene .
Later opinions of its author have indicated that review
of the subject matter was necessary in free speech
cases.”* Justice Brennan would employ the rule as stated
in the American Law Institute, Model Penal Code
(1962), section 251.4(4) which holds that “The court
shall dismiss a prosecution for obscenity if it is satis-
fied that the material is not obscene.’’”*
*5See, for example, the opinion of Justice Brennan, concurr red i in
by Justice Goldberg, in Jacobellis v. Ohio (supra) at p. 1
“Hence we reaffirm the principle that, in ‘obscenity’ cases as
in all others involving rights derived from the First Amend-
ment guarantees of free expression, this Court cannot avoid
making an independent constitutional judgment on the facts
of the case as to whether the material involved is constiti1tion-
ally protected ...”
*6Jacobellis v. Ohio (supra), footnote 6 of Justice Brennan’s
opinion.
OE IN I LOCI TE ETN I eT
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Lneeembatrone
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It should also be noted that in the majority opinion,
Justice Brennan said at page 489:
“Both trial courts below sufficiently followed the
proper standard. Both courts used the proper def-
inition of obscenity .. .”’ (our emphasis).
Does the language “trial courts . . . followed” indicate
that the majority found that the trial court in Alberts
correctly applied “the proper standards to the material ?”
C. The Roth-Alberts Standards.
The majority opinion in Roth-Alberts (supra) ap-
proved four definitions for the word “obscene.” At
page 486, the federal court sponsored tes! in Roth
and the State Court sponsored test in Alberts were set
forth:
“In Roth, the trial judge instructed the jury: ‘The
words obscene, lewd and lascivious as used in the
law, signify that form of immorality which has
relation to sexual impurity and has a tendency to
excite lustful thoughts.’ (Emphasis added.) In Al-
berts, the trial judge applied the test laid down
in People v. Wepplo, 78 Cal. App. 2d Supp. 959,
178 P.2d. 853, namely, whether the material lias ‘a
substantial tendency to deprave er corrupt its nead-
ers by inciting lascivious thoughts or arousing lust-
ful desires.’ ”
The court thereafter held both tests to be within the con-
stitutional standard, when given with proper jury in-
structions relevant to the dominant theme and proper
audience.
At page 489, Justice Brennan gave tacid approval to
a third definition in these words:
“Some American courts adopted this standard but
later decisions have rejected it and substituted this
lila
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. The Hicklin test, judging obscen-
ity by the effect of isolated passages upon the most
susceptible persons, might well encompass material
legitimately treating with sex, and so it must be
rejected as unconstitutionally restrictive of the free-
doms of speech and press...”
At page 487, footnote 20, the majority opinion gave
approval to the definition found in the A.L.I. Model
Penal Code, Section 207.10(2) (Tentative Draft 1957)
and noted no significant difference between this and the
meaning of obscenity developed in the case law:
“ .. 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 ex-
cretion, and if it goes substantially beyond cus-
tomary limits of candor in description or represen-
tation of such matters. . . . See Comment, id., at
10, and the discussion at page 29 et seq.”
D. The Trial Court Followed the
Roth-Alberts Standards.
Trial Judge Body properly followed the Roth Stand-
ards. He noted preliminarily in his opinion at 224 F.
Supp. 129 at 133;
“If material has any socially redeeming importance
it is protected...”
. In his investigation into the matter of “social redeem-
ing importance” he applied the facts at bar, and did
not move in a vacuum, as petitioners would have this
Court do. The variable nature of obscenity requires this.
-_-
Burstein v. U.S., 178 F. 2d 665 (Dec. 28, 1944) ; United
States v. Levine, 83 F. 2d 156, 157 (Apr. 6, 1936.)
1. Liaison Vol. 1, No. 1.
As to “Liaison Vol. 1, No. 1,” he found that the three
articles, “Slaying the Sex Dragon,” “Semen in the
Diet,” and “Sing A Song of Sex Life” covered the most
“perverse and offensive” behavior and that the treat-
ment was “largely superficial”. He noted that the de-
fendants’ own expert, Magazine Editor Dwight Mac-
Donald, testified that it had “no literary value”. If it
could be said there was social redeeming importance in
the magazine, it had to be found in what it advocated,
or in its entertainment value. As to the latter he found
the material beyond contemporary community stand-
ards “even in applying the liberal night club standards.”
As to the former it failed “to serve a legitimate pur-
pose of an author in recording human experience or in
seeking to accomplish a worthwhile objective.”’ The only
idea advocated was complete abandon of any restraint
with regard to any form of sexual expression, which one
can say exists in every form of pornography. He found
the pamphlet “designed obviously and solely for the pur-
pose of appealing to the prurient interest of an ordinary
person.”
Amicus submits the trial judge properly applied the
Roth Standards to “Liaison”, noting further that the
idea expressed by all pornography, 1.e., the complete
abandonment of any restraint with regard to forms of
sexual expression, is too “slight” to be redeeming.
Chaplinski v. New Hampshire (supra).
The finding that the pamphlet was “designed” solely
for its app al to prurient interest is supported by the
common scheme or plan which attended the creation and
inca
dissimination of “Eros Vol. 1, No. 4” and “The House-
wife’s Handbook on Selective Promiscuity.” A.L.L,
Model Penal Code (1957 draft) section 207.10(2)f.
The judge considered the proper audience in making
his findings. This Court approved an instruction in Roth
which held: “The test in each case is the effect of the
book, picture or publication considered as a whole, not
upon any particular class, but upon all those whom it is
likely to reach. In other words, you determine its im-
pact upon the average person in the community .. .”
As to the audience he considered, the trial court said:
“It is also the law that the community as a whole
is the proper consideration. In this community, our
society, we have children of all ages, psychotics,
feeble-minded and other susceptible elements. Just
as they cannot set the pace for the average adult
reader’s taste, they cannot be overlooked as part of
the community. The community as a whole is not
an ideal man who wouldn’t seek and read obscenity
in the first place. Otherwise no restraint at all
be required. Some is proper. Therefore, an ideal
person without any failings or susceptibility is not
the man to protect. Society as a whole, replete of
course with various imperfections, must be pro-
tected.”
2. The Housewife’s Handbook of Selective Promiscu-
ity.
As to “The Housewife’s Handbook on Selective Prom-
iscuity” the trial judge noted that, as in the gase of
“Liaison,” no literary merit was ascribed to the book.
Its only claim to redeeming value was expert testimony
to the effect that it had utility as a clinical device to
“ventilate” persons with sexual inhibitions and miscon-
ceptions. The court expressly rejected that testimony.
ee AE ANE ie har BIO
pa ae
The court noted that the author testified under oath it
was a factual and highly accurate reporting of actual
occurrence, but that he doubted the accuracy of the book
(indirectly, her testimony). It met the prescribed tests
for poruography—it was a bizarre exaggeration, morbid
and offensive. An examination of the book in capsule
form, by book outline bears out the correctness of this
finding (Appendix A).
The court explained its reason for disbelieving the
testimony of the Reverend George von Hilsheimer III,
“This same witness shocked the writer by saying that
this book should be in every home and available for
teen-agers for guidance in sex behavior, but in my
opinion misbehavior . . .” It was petitioners’ expert
witness, Rev. Hilsheimer who first brought up the mat-
ter of the book’s suitability for use by “youth” [R.
291a]. He volunteered in his direct testimony at R.
291la and R. 292a that it was an “innocent book” which
it was necessary for him to give “youth” as a pastoral
counselor, if he was going to be responsible “to his
youth.” The trial judge questioned him further, and
it developed that that was what he meant.
It should be noted that petitioners’ other expert wit-
ness along these lines, Dr. Charles G. McCormick (psy-
chologist) did not agree with Rev. Hilsheimer, who said
he did not supervise the reading, [R. 295a]. Dr Mc-
Cormick applied a restriction [R. 217a] to “guide the per-
son in making distinctions.”
Dr. Bennett, the psychiatrist testified that a 14-year
old would not be disturbed by the “Handbook.” The
trial judge had reason to question the standards he em-
ployed in his expert testimony on the “effects of the
material, and to reject the same.
satin:
The determination of obscenity is ult‘mately with the
fact finder and not with the expert witnesses in any
event. United States v. Kennerley, 209 Fed. 119, 121.
The judge considered the proper cudience in making
his findings. This Court approved an instruction in
Roth which held: “The test in each case is the effect
of the book, picture or publication considered as a whole,
not upon any particular class, but upon all those whom
it is likely to reach. In other words, you determine its
impact upon the average person in the community. . .”
As to the audience he considered, the trial court said:
“It is also the law that the community as a whole
is the proper consideration. In this community, our’
society, we have children of all ages, psychotics, fee-
ble-minded and other susceptible elements. Just as
they cannot set the pace for the average adult read-
er’s taste, they cannot be overlooked as part of the
community. The community as a whole is not an
ideal man who wouldn’t seek and read obscenity in
the first place. Otherwise no restraint at all would
be required. Some is proper. Therefore, an ideal per-
son without any failings or susceptibility is not the
man to protect. Society as a whole, replete of course
with various imperfections, must be protected.”
The prurient nature of “The Handbook” is attested
to by the common scheme or plan which attended the
creation and dissemination of “Eros Vol. 1 No. 4”
and “Liaison”. A.L.I. M.P.C. (1957 draft) section
207.10(2)f. The stipulation as to “knowledge” did not
foreclose other admissible evidence on intent for the
prosecutor reserved that right [R. 152a].
seilliais
3. Eros Vol. 1 No. 4.
As to “Eros Vol. 1 No. 4” the judge properly con-
strued the “balancing” concept of the A.L.I Model
Penal Code (1957 draft) section 207.10 to find no
redeeming social importance. This fact is demonstrated
by his comparison of the novel Lady Chatterley’s Lover
with the work under scrutiny, “It is one thing to create
an integrated work of art containing what would be
obscenity standing alone, and another thing to create
an integrated work of obscenity containing excerpts
from recognized works of art.”
As the Judge noted, the Allen Ginsberg article was a
written statement of policy, purposely contrived and
disseminated—the destruction of all barriers against
sexual behavior of any kind. When this is combined
with independent displays of obscenity, the innocent
will not shield the obscene.
The question of redeeming social importance must be
determined in the light of the facts and-not in a vac-
uum. The variable nature of obscenity requires this.
Burstein v, U.S., 178 F. 2d 665 (Dec. 28, 1944);
United States v. Levine, 83 F. 2d 156, 157 (April 6,
1936).
In the case of Eros, the items of possible merit and
those which are considered innoculous are a mere dis-
guise. The “overriding theme, and the only theme of Eros
is the advocacy of complete sexual expression of what-
ever sort and manner.” The finding that the magazine
was “designed” solely for its appeal to prurient in-
pan
terest is supported by the pattern—the craftily com-
piled overall effect, which purpose!y loads the forbidden
fruits: “Frank Harris, His Life and Love”, “Bawdy
Limericks”, “Natural Superiorty of Women as Erot-
icists” and “Black and White in Color” and seeks to
ameliorate the criminal liability through the disguise.
The whole, however, take on the flavor of the part.
Amicus submits that the “design” of Ginzburg’s
operations on Eros to appeal to prurient interests is
also supported by the common scheme or plan which
attends the creation and dissemination of his other prod-
ucts, “Liaison” and “The Housewives Handbook on
Selective Promiscity.” The stipulation as to “knowl-
edge” did not foreclose other admissible evidence on in-
tent, for the prosecutor reserved that right [R. 152a].
See also A.L.I., MP.C. (1957 draft) section 207.10(2)f.
The judge considered the proper audience in making
his findings. This Court approved an instruction in
Roth which held: ‘The test in each case is the effect
of the book, picture or publication considered as a
whole, not upon any particular class, but upon all those
whom it is likely to reach. In other words, you de-
termine its impact upon the average person in the
community. ...” As to the audience he considered the
trial court said:
“It is also the law that the community as a whole
is the proper consideration. In this community,
our society, we have children of all ages, psy-
chotics, feeble-minded and other susceptible ele-
ments. Just as they cannot set the pace for the
Pe NC SRE ELEI
—
average adult reader’s taste, they cannot be over-
looked as part of the community. The community
as a whole is not an ideal man who wouldn’t seek
and read obscenity in the first place. Otherwise no
restraint at all would be required. Some is proper.
Therefore, an ideal person without any failings
or susceptibility is not the man to protect. Society
as a whole, replete of course with various imper-
fections, must be protected.”
E. Social Importance.
1. Jt Is Not Determined in a Vacuum.
At page 32 of their brief, petitioners argue “Only
if the words of Roth ‘utterly without redeeming social
importance’ mean what they say, can criminal obscenity
statutes survive the challenge that they violate the
Fifth, Sixth and Fourteenth Amendments. Thus, ma-
terial found to have some social value may not be sup-
pressed and certainly may not be the basic for crim-
inal conviction of the utterer or disseminator. Only
when a work is found to be totally devoid of value
can we even begin to subject that work to the other
tests which identify actionable obscenity. . . .” Such an
argument misconceives the very nature of obscenity—
it has a variable quality about it. The guilt or innocence
of the act, display, or publication depends not only
upon the work but also upon the surrounding circum-
stances. The time and manner of acting and motives
involved are always relevant and may even be de-
terminative. Petitioner’s argument lacks a necessary
qualification. The value must be considered in light of
the circumstances.
For example, at page 50 of their brief, petitioners
take issue with the court below, because the trial judge
+ pean engenne se ay,
onlin
found that there was “no credible evidence that the
‘Handbook’ had the slightest valid scientific importance
for treatment of individuals in clinical psychiatry, psy-
chology, or any field of medicine.” In doing so, the
judge indicated he was not won over by the testi-
mony of the Reverend von Hilsheimer, Dr. Bennett and
the author on that score. But assuming that the testi-
mony did indicate some value as a case history or the
like, that value cannot be considered alone and in a
vacuum, independent of the petitioners’ personal condr-t
in relation thereto.
The classic example is Burstein v. U.S., 178 F. 2d
665 (Dec. 28, 1949). A book entitled, “Sterile Sun”
had been published by Macauley Company and issued
by that company in a special edition, the sale of which
was limited to physicians, psychiatrists, sociologists,
social workers, educators and other persons having a
professional interest in the psychology of adolescents.
The book was to be found in the public library upon
the restricted shelves. Burstein made copies of the book,
omitting the statement of the publisher respecting the
limitation of sale, and an introductory note which em-
phasized the statement that the book was written for a
professional group. He gave it a new title called “Con-
fessions of a Prostitute” and mailed circulars advertis-
ing the book as “spicy,” “too sharp for ordinary con-
sumption” and quoted a few especially salacious and
suggestive lines from the book. On his appeal from
convictions for both depositing for mailing an obscene
book, and depositing for mailing a letter giving infor-
. mation as to where and how the book might be ob-
tained, he argued that the book was not obscene as a
matter of law. The Court of Appeals for the Ninth
a
anes
Circuit held that the trial judge was correct in submit-
ting the matter to the jury. Under petitioners theory,
Burstein could go on about his business.
District Judge Bryan expressed the same principle in
Poss v. Christenberry, 179 F. Supp. 411, 416 (Dec.
21, 1959). Poss argued in that case that the per curiam
decision of this Court in Sunshine Book Co. v. Sum-
merfield, 355 U.S. 372, 78 S. Ct. 365, 2 L. Ed. 2d 352,
compelled a holding that his circulars, depicting nude
photographs which advertised nude movies, photos and
color slides, were not obscene. Judge Bryan thought oth-
erwise, at page 416:
“Tn the circular at bar there is little doubt that the
publisher’s purpose is to appeal to the salaciously
minded. No one could be naive enough to suppose
that these photographs have anything whatever to
do with ‘art.’ The circular does not contain any
ideas of redeeming social importance.’ Nor has it
the slightest vestige of literary or artistic merit.
The publisher’s purpose in putting out the material
may well be ‘a cardinal determinative.’ See Glanz-
man v. Schaeffer, D.C. S.D. N.Y., 143 F. Supp.
243, 247.”
See also the discussion at footnote 6.
The Petitioners’ attempt to concentrate the investi-
gation on the “thing” rather than the “conduct, in rela-
tion to the thing.” A number of examples suggest the
fallacy of this concent: A person may utter a four letter
word, or a stream of such words in the restrictive au-
dience of a group, when such conduct is essential to the
portrayal of a character in a play, yet he may find him-
self in difficulty when he utters those same words over
a loud speaker on the grounds of a college campus, in
a en
defiance of community standards. A person may not be
in violation of the criminal statutes were he to relieve
himself (urinating) out of necessity in a public alley
and accidentally be seen by a female from an adjoining
yard. The result would be otherwise if he purposely
summoned the attention of the female and relieved him-
self for the purpose of the public exhibition. In obsceni-
ty cases as in criminal cases in general, the defendant’s
conduct is the central issue. As stated by Chief Justice
Warren in his concurring opinion | in Roth v. U.S., 345
U.S. 476, 494:
“Tt is not the book that is on trial; it is a person.
The conduct of the defendant is the central issue,
not the obscenity of a book or picture. The nature
of the materials is of course, relevant as an attri-
bute of the defendant’s conduct, but the materials
are thus placed in context from which they draw
color and character. A wholly different result
might be reached in a different setting.”
See also Chief Justice Warren’s opinions in Kingsley
Books Inc. v. Brown, 354 U.S. 436, 1 L. Ed. 2d 1469,
1476 (1957), and Jacobellis v. Ohio, 378 U.S. 184, 84
S. Ct. 1673, 1685 (1964).
The same principle is very well stated by the Su-
preme Court of Errors of Connecticut in Connecticut
v. Sul; 146 Conn. 78, 147 A. 2d 686, 691 Sct 24,
1958) :
“Obscene and indecent are not technical terms of
law and hence susceptible of fine distinctions.
Whether something is obscene or indecent depends
upon all of the surrounding circumstances. Section
8567 comprehends material which from its very
character a person of sound mind must know was
a
obscene and indecent. See Wigmore, Evidence
(third edition) page 43. It also includes material
which by the method of its presentation to the
prospective reader or viewer shows a design to ap-
peal to sordid interests. See Roth v. U.S., supra,
354 U.S. 495, 77 S.Ct. 1314 (concurring opin-
ion). To cite an example; if language and pictures
describing or portraying human sex organs are con-
tained in a book or brochure on medical science and
treat the subject with no more frankness than is
required, they would not be obscene or indecent
within the statute. But if the same language and
pictures were taken from their context and com-
piled in pamphiet form to be sold or shown to chil-
dren, they would be. People v. Muller, 96 N.Y.
408, 413. The purpose of the statute is to prevent
the selling, showing or offering of obscene or inde-
cent material falling within the description stated.”
See also the expression of the Supreme Court of Errors
of Connecticut to the same effect in State v. Andrews,
186 A. 2d 546 at page 550.
2. Slight Social Importance Does Not Exculpt.
At page 31 of their brief, petitioners argue, “The
First Amendment principle bars suppression of any
work of the slightest value, whether the suppression be
accomplished by civil order or criminal sanction.” This
appears to amicus as an exaggerated statement of the
law, easily responded to. At page 476 of Roth-Alberts
(supra), the majority opinion cited with approval the
Chaplinsky Court (supra) opinion, which held:
“There are certain well-defined and narrowly lim-
ited classes of speech, the prevention and punish-
ee ea
ment of which have never been thought to raise
any constitutional problem. These include the lewd
and obscene . . . It has been well observed that
such utterances are no essential part of any exposi-
tion of ideas, and are of such slight social value
as a step to truth that any benefit that may he
derived from them is clearly outweighed by the so-
cial interest in order and morality .. .”
The very language of the Court indicates that speech
may have. “slight social value” and yet be subject to
punishment, because by its nature it is obscene.
In support of this argument, petitioners, at page 31
of their brief cite language in Jacobellis v. Ohio
(supra) that:
“The constitutional status of the material (may
not) be made to turn on a ‘weighing’ of its social
importance against its prurient appeal, for a work
cannot be proscribed unless it is ‘utterly’ without
social importance...”
. The language is that of Justice Brennan, concurred in
by Justice Goldberg and was not the opinion of this
Court. The accuracy of this statement of law is doubt-
ful, if we are to believe that this Court is following
prior case law, as reported in the comments to the
American Law Institute, Model Penal Code (1957
draft) section 207.10. In this regard the reporter states
at page 30:
“The second aspect of the recommended definition,
requiring that appeal to prurient interest be the
predominant appeal of the material, recognizes that
a work of art or literature may contain elements of
prurient interest, which, however, are subordinate
—_ Fh
to other positive values of the work. Policy as well
as constitutional limitations enjoin us to safeguard
freedom of expression by balancing artistic or other
merits of a work against the alleged prurient ap-
peal... .” (Our emphasis).
and at page 40:
“11. Effect of Artistic or Scientific Merit. The
effect of our proposals on definition of the ob-
scene, consideration of the work ‘as a whole,’ and
admissibility of evidence of artistic and other mer-
its is to permit consideration of positive values of
the work in determining whether the predominant
appeal of the work is to prurient interest. This does
not differ substantially from present law.”
and at page 42:
“Our reasons for hesitating to relate the defini-
tion of obscenity directly to appraisal of artistic
merit are as follows. In the first place, great ar-
tistry is not necessarily inconsistent with prurient
appeal; consummate skill in execution might be the
very thing which lends the work its powerful erotic
appeal. ...
Accordingly, we have refrained from making ar-
tistic or other merit a direct and independent issue
in obscenity trials. On the other hand, it is obvious
that the issue of ‘predominant appeal’ involves not
only a judgment that the material in question ap-
peals to prurient interest, but also a judgment that
it has this characteristic more than any other.
Thus consideration is invited to the question of
what other appeal, if any, the material has. And in
subsection (2) (c) we expressly provide for the
—/5—
admissibility of evidence as to artistic, literary,
scientific, educational or other merits.
The slight but real difference between a defense
or justification on the basis of artistic worth and
mere permission to introduce evidence of artistic
merit as bearing on the issue of ‘predominant ap-
peal’ may be seen in the possibility, under the later
arrangement, of (1) convicting notwithstanding
great artistic competence, where the main appeal is
to prurient interest; and (2) acquitting notwith-
standing that the material has little or no artistic
merit and some, but not much, appeal to prurient
interest, in short, is a dull piece with no signifi-
cant ‘appeal’, where a trace of the salacious is lost
in a sea of inanity.
The ultimate question is how prominent is the
appeal to prurient interest in the work as a whole,
whatever the value judgment placed on the balance
of the work.” (Our emphasis).
The employment of such language in a majority opin-
ion of this Court would invite disaster to the federal
governments attempts to control obscenity. The lan-
guage in Justice Brennan’s opinion was taken from the
California Supreme Court opinion in Zeitlin v. Arne-
bergh, 59 Cal. 2d 901, 920, 31 Cal. Rptr. 800, 813, 383
P. 2d 152, 165 (1963) where it has brought about a
sterilization of obscenity law enforcement in that state.
See also the incongruous result reached by four mem-
bers of the New York Court of Appeals, holding that
classic of pornography, Fanny Hill not obscene in Lar-
kin v. G. P. Putnasa’s Sons, 14 N.Y. 2d 399, 252 N.Y.S.
2d 71, 74, because:
“It has a slight literary value and it affords some
insight into the life and manners of mid-18th Cen-
SEIS EON O-D
aren
ae.” a
tury London . . . Some critics, writers, and teach-
ers of stature testified at the trial that the book
has merit, and the testimony as a whole showed rea-
sonable differences of opinion as to its value. It
does not warrant suppression . . .” (our empha-
sis).
It is true that the Illinois Supreme Court in People
v. Bruce, 31 Ill. 2d 459, 202 N.E. 2d 497 (1964)
wrote an opinion upholding contentions similar to those
of the petitioners. In that case, the majority opinion
(Schaefer concurred in the result) noted that it had,
in an earlier opinion in the same case, rejected the de-
fendant’s arguments that the Roth case, struck down the
“balancing test” which was ruling case law in Amer-
ican Cwil Liberties Union v. City of Chicago, 3 IIl.
2d 334, 121 N.E. 2d 585. The Civil Liberties case held
at page 498; that:
“the obscene portions of the material must be bal-
anced against its affirmative values to determine
which predominates. .. .”
Following the Jacobellis decision, the Illinois Supreme
Court reversed its previous ruling, giving as its sole
reason, at page 498:
“Tt is apparent from the opinions of a majority
of the court in Jacobellis that the ‘balancing test’
rule of American Civil Liberties Union is no
longer a constitutionally acceptable method of de-
termining whether material is obscene, and it is there
made clear that material having any social impor-
tance is constitutionally protected.”
aman Janies
The Illinois Court was led into accepting a rule of
law it would not otherwise have adopted, at page 498:
“. . . we would not have thought that constitu-
tional guarantees necessitate the subjection of so-
ciety to the gradual deterioration of its moral fabric
which this type of presentation promotes .. .”
Mr. Lenny Bruce did not fare as well with his argu-
ments in Bruce v. New York (unreported, Dec. 1964).
In that criminal action in New York City he was found
guilty of using obscene words in his nightclub act. On a
petition for certiorari, this Court refused to consider his
case in June 1965.
If the Illinois Supreme Court knew then (Nov. 1964),
what it knows now (June 1965), the Bruce matter un-
doubtedly would have been decided differently. The
strength of People v. Bruce (supra), as a precedent in
Illinois is questionable.
Conclusion.
The judgment below should be affirmed.
Respectfully submitted,
CHARLES H. KEATING, Jr.,
JAMEs J. CLANCY,
Counsel for Amicus Curiae.
Sy aa oS Ge LTT LOLI IL IL
APPENDIX “A”.
The Housewife’s Handbook on Selective Promiscuity.
By Rey Anthony (240 pages, in two parts). Seventh
printing, cl1962, LC 62-21130. Documentary Books,
Inc., 110 West 40th Street, New York 18, N.Y.
INTRODUCTION
By Albert Ellis, Ph. D., New York City, September
15, 1960.
Dr. Albert Ellis states: “I have no hesitation in stat-
ing that Mrs. Anthony’s Handbook is one of the most
honest, courageous, valuable books on sex that I have
ever read.” (p. 7) He compares her writing to Mrs.
Hilda O’Hare, publisher of the now-defunct scientific
periodical, the International Journal of Sexology, giving
her own views, in terms of personal experience, “on
vaginal versus clitoral orgasm.” (p. 7). Drs. Mary Cal-
derone, Sophia J. Kleegman, and Lena Levine, among
others, have “consistently stated, at meetings, of the
American Association of Marriage Counselors, the So-
ciety for Scientific Study of Sex, and other profes-
sional groups, that the truth about female orgasm will
never be fully known until women themselves give us
their own detailed accounts and studies of what happens
in their minds and bodies when they are engaged in
sexual relations.” (p. 7). “I find that the Handbook
makes a distinctly valuable contribution to sexual
knowledge.” (p. 8). “More power to Mrs. Anthony—and
a copy of her book to many of her (and my) professional
colleagues!” (p. 9). “My own Art and Science of Love,
may prove quite useful to millions of young people who
have much to learn about sexual technique.” (p. 9).
isd ies
PREFACE BY THE AUTHOR‘S DAUGHTER
By Tannette Savelle (age 19), Tucson, Arizona, Au-
gust 1, 1960.
“This book was not written for professional people. It
was written for people like mechanics, beauty parlor
operators, carpenters, and housewives .. . because our
laws are not in accord with our customs, we are a na-
tion of sex offenders. We need laws that are more in
keeping with the times we live in . . . I hope this book
may enrich your life, as knowing my mother has en-
riched mine. During the time she wrote this book, I
have come to know, understand, and admire her even
more than I did before.” (p. 11).
AUTHOR’S FRIENDS
Bill Patterson
Thorndyke Anthony, 3rd husband
Peter Landis
Jon and Vivian Merrick
Dr. Carl Adler
Ruth
Clint Jameson
Bill Canella, 1st husband
Sage, stepfather
Larry and Lorna Scott
Randall “Rock” Brown, 2nd husband
J. C. Smith, neighbor
Eric Summers, homosexual
Dan Jacobs
Laura Baxter, negro
Bill and Bobbie Sanford
Freddie Forman, lesbian
Donald James
Bill Iverson
Floyd Stewart
Al Sanislawski
Daughters
Tanette
Niki-Sue
Shari
Jana Kae
ABOUT THE AUTHOR.
By Rey Anthony, Tucson, Arizona, August 1, 1960.
Rey Anthony was born in a small town of east Texas,
thirty-seven years ago. She finished high school at San
Marcos Academy at fourteen, the youngest person to
ever graduate from there. She attended the University
of Houston for three years, majoring in mathematics,
and interested in the social sciences (anthropology, psy-
chology, and sociology.) She married the first time at
age 17, and has been married and divorced three times
in all. “] could be the woman next door to you, in a
middle-class three-bedroom house.” (p. 14) She is a
P.T.A. member, operates a publishing and printing
house, member of a national business woman’s organiza-
tion. “It is not for my own protection that I have chosen
not to use my own name, but for the protection of my
friends . . . the names have been changed to protect
those who may be, or may seem to be, guilty in terms of
current laws and/or moral codes.” (p. 14) “Legality
does not sanctify sex—any more than illegality makes
sex filthy... . What may appear to be exceedingly pro-
miscuous to one person might be the highly discriminat-
ing and therefore selective act of another person. .. .
—
Therefore, in the title of this book I have included the
paradoxical concept of ‘Selective promiscuity.’” (p. 15)
Rey Anthony is the mother of five daughters.
PART 1... Experiences. (p. 19)
Age 3... Dallas (1926)
The author wants to know where babies come from
. .. her mother says she will tell her when she is older,
The kids in the neighborhood had a contest to see who
could produce the most awful smell. . . . “The most dis-
gusting thing I had ever smelled was my pussy... .
When I peed my mother would say, ‘Wipe yourself,’ I
wined my fingers across my pussy and returned to the
». We all produced our smells and I won. ... There |
was a rumor among the kids that boys didn’t have
pussies . . . one afternoon a boy showed me his peter
... we wee-weed on the floor of my playhouse. . . . My
mother yanked the door of the playhouse open. .. .
She hit me over and over.” (p. 20)
Age 5... Dallas (1928)
“My father died. I asked my mother why it couldn’t
have been her. I loved Daddy best.” (p. 21)
Age 7... Houston (1930)
“My grandfather pawed my pussy. Because of my
great disgust for his ugly face, with the tobacco juice
stringing from the corners of his mouth, I didn’t look
often... . It’s not easy to stand with your legs apart, as
though straddling an unseen object, so that an old man
can explore your privates. . . . His searching fingers
found the tiny opening and he managed to push one of
them into it . . . with his other hand he was feeling
the undeveloped titlets. ... My grandmother would not
es
li
believe me when I told her about his feeling me. She said
he was a man of God. ‘He is a Baptist Minister. It is
sinful of you to tell all those awful lies about this good
man.’” (p. 22)
Age 8... Houston (1931)
“Marjorie’s mother worked. She was gone all day
_,. Marjorie’s brother, Bud had a cute little peter. It
was a little larger around than a pencil. (p. 22) Bud
liked our pussies, and we licked and sucked on his peter.”
(p. 23)
Age 9... Houston (1932)
Pages 24 to 25 describe her technique of masturbating
in the bathtub. “When I took a bath, I slid up and
down in the bathtub on my back. Once, when the water
was running, it splashed on my pussy. It felt so nice I
kept on doing it . . . and reached such a peak, that it
was almost unbearable, and suddenly my hole just jerked
and jerked. ... (p. 24) Running the water all over the
pussy felt good, but running it on the little bump pro-
duced the feeling that finally caused the exciting and
wonderful jerking. I got mamma’s cold cream, and
rubbed it on the bump. I could better control myself
this way.” (p. 25)
Age 10... East Texas (1933)
“My cottsin Sydney showed me how to fuck. I felt as
if I were going to pee. I told him, and he said, ‘Go
ahead.’” (p. 26)
Age 13... San Marcos (1936)
At the San Marcos Baptist Academy, the author’s
roommate Ruth, knew a good deal about life. “She had
a
pate a
already fucked, she said . . . in cars, and in swings,
and on the ground sometimes. .. .” (p. 29) Pages 29 to
31 describe the author as she continues her practice of
masturbating in the bathtub. “I continued playing with
myself in the bathtub. . . . I also played with myself in
bed. . . . I used cold cream to lubricate the little bump.
... 1 was told that some of the girls played with one
another. . . . I never got to know one well enough to
have such an affair. . . . Obviously no one else could do
this to my body as well as I could do it to myself.” (p.
31) She is exposed to pornography at the Academy.
She got her first accurate information about sexual in-
tercourse from “The girl of the Golden West.” (p. 32)
Age 14... San Marcos (1937)
Pages 32 to 34 describe sex discussions by the house
mother of San Marcos Academy. “The house mother
explained in plain and simple terms, with a certain love-
liness added, about sexual intercourse.” (p. 32) “The
boys were said to have sex with the cows that were kept
for milking purposes. If caught, a boy would be ex-
pelled for this. None were caught.” (p. 35)
Age 15... Houston (1938)
“T was shocked at girls who let boys take sexual lib-
erties. . . . The girl who lived behind us . . . allowed
the whole winning football team of Jeff Davis High
School to lay her on the football field. . . . I asked her,
‘Wasn’t it sloppy?’ ‘Oh, not so sloppy; I wiped off in
between times.’”. . . The author says she wants to be a
virgin when she marries. .. . “In spite of all my explor-
ing and the fact that my cousin had had his peter in my
pussy—I mean penis in my vagina—I still thought of
a
myself as a virgin. (p. 38) One of my best girl friends
let her boy friend play with her titties. Breasts, that is.
... My girl friend, after over a year of this fascinating
play, still had small breasts and they didn’t sag... . I
went with one boy who was kissing me and had put his
tongue in my mouth... . He put his hand on my stom-
ach and moved it lower and lower . . . with all my clothes
on and without consciously intending it to happen. I
reached climax.” (p. 40)
Age 16... Houston (1939)
The author meets a young boy, Clint Jameson. “We
spent literally hours kissing each other. . . . Pages 42 to
47 describe this affair in detail. “There were times
when J would masturbate him with my hands. Other
times he would kiss and suck on my clitoris. Now I
put his penis in my mouth . . . even when I menstruated
he kissed my genitals, and caressed, and sucked... .
When we had intercourse we always used contracep-
tives.” (p. 46)
Age 17... Houston (1940)
Clint enlists in the Navy and came home on leave.
... “He put his penis in my vagina and promised not
to reach climax without first putting on a rubber. I
couldn’t face pregnancy alone.” (P. 47.) He betrays her
and fearing pregnancy after her menstrual period is
a week late, she sees the family doctor. “Dr. Marsh
examined me and it hurt. He mashed inside me and
pulled and pushed. . . . I think you will menstruate in
a couple of hours’”’ he said. (P. 49.) She tells Clint
she is through with him.
———
aa.
Age 17. . . Houston (1940)
On reaching simultaneous climax with a man she
says, “I had never wanted to have a climax at the
same time he did. . . . When we were having inter-
course the sensations were pleasant, and I liked paying
total attention to him and making him enjoy the climax
he reached. . . . My girl friend Ruth told me, ‘girls
who jacked off before they started getting screwed
sometimes didn’t come from getting screwed. It seemed
that they got to liking coming from jacking off and |
then weren’t normal.’ ” (P. 51.)
Age 17. . . Houston (1940) |
She meets Bill Canella. Pages 51 to 53 describe her
affair with Bill. “He kissed all of my body in the next
few weeks and I kissed all of his. . . . He could make
me reach climax by stroking the clitoris gently and
kissing the nipple of one breast. . . . Bill could drape
his long body around mine and have his penis inserted
ir, my vagina at the same time.” (P. 52.) They were
matried in November, 1941, and move in with her
mother and her husband, Sage.
Age 18. . . Houston (1941)
Her first daughter, Tanette, is born. Five days later
she and Bill decide to have sex. ““Tanette was lying in
her bed, right by my bed. . . . When Tanette would
squirm I had trouble keeping my mind on reaching a
climax. . . . It was my first really unpleasant sexual
experience. . . . Ruth’s baby, Dana, “was ten months
old when she was observed putting her hand inside
her diaper and looking pleased. When the diaper was
removed it could be seen that she was rubbing or
stroking her clitoris. She was quite happy doing it.”
(P. 60.)
is
Age 19. . . Houston (1942)
When the author’s baby is six months old, she is
pregnant again. . . . She separates from her husband
_ and has an abortion. (P. 64.) “The abortion
was a horrible experience, not because it was an abor-
tion, but the way it had been done.” (P. 66.) Page 66
describes Rey having climax in the front seat of Bill’s
car after he returns to see her a week after she has
had the abortion. “He fondled my ‘Mons Veneris’. He
stroked the sensitive skin at the top of my thighs,
just on the outer edge of the large lips. He put his
finger in my vagina and moved it in and out . . . sitting
in the car I reached climax.” (P. 66.) On the morning
she is to go to court to get her divorce, Bill arrives
and they go to bed. “I know we thought we were the
only two people in the world ever to be getting a di-
vorce and still having sex with each other.” (P. 67.)
Age 20... Houston (1943)
Rey gets a job at a shipyard. She meets Marie, a
whore. “She was charming. She was one of the most
completely gracious people I have ever known. ‘When
you have sex, my dear, do not do it in the back seat of
cars. Do make sure you have the basic conveniences of
life, such as a bed, hot running water, and towels,’
she said.” (p. 69)
Rey’s foreman propositions her and she refuses him.
The next afternoon he fires her. She thought, “You
son of-a-bitch! Can’t you get a woman in bed with you
any other way?” (p. 70) Later she is rehired at the
same shipyard, and in a medical examination she is told
she has syphilis. She goes to another doctor who tells
her it is “monilia albicans”. (p. 73) He tells her it is
.
pe
contagious like any other veneral disease, and tells her it
serves her right for fooling around. She realizes she had
first contracted this infection about four months after
she began having sex with Bill Canella. She is finally
cured of the disease by a woman doctor.
For several months she went without sexual relations
wi
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