# Amicus Curiae Brief — Ginzburg v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0229%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1966
- **Citation:** 383 U.S. 463

## Text

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.

sexual anatomy was summed up by the word, box.”
(P. 130.) She goes to a motel with Bill. “He was
the craziest lover ever ... he licked and sucked on
my breasts, he nibbled at my clitoris. He sucked at
the vaginal opening. The sensations were wild and won-
derful, and I loved every one of them.” (P. 131.)
Page 131 describes them having intercourse.

Age 29 ... Houston/Austin/San Antonio (1952)

Rock helps her in selling Reader’s Digest, They hire
a couple of people in San Antonio to help. Rey wants
a divorce. She calls a lawyer. He tells her she should
have no trouble getting one, telling her of a case where
a woman wanted to have anal intercourse. “The judge
saw her in his chambers, so she didn’t have to bring
out her sexual preference in court, and gave her a-
divorce.” (P. 133.)

Age 30. . . Houston (1953)

Rey goes back to Houston, and Rock goes to Fort
Worth. Page 134 describes Rey in a motel having inter-
course with Bill Sanford.

Age 30... Houston/Phoenix (1953)

They move to Phoenix. and Rock and Rey end their
marriage. Rey says. “Rock you have tried to own
my body. You couidn’t do that—I own it ... then
you thought you could own me—and I just can’t be
owned. There’s such a thing as dignity, and I have
overlooked mine too long. You’re leaving.” (P. 136.)
She divorces Rock, and continues her affair with Bill
Sanford. Bill tells Rey his wife uses essence of pepper-
mint for douching. Rey tries it, and Bill says, “You
see, that makes your box very tasty.” (P. 137.)

=

She meets Freddie Forman, a lesbian, where she
works. Page 139 describes her lesbian affair with Fred-
die. “The kids would go in and go to bed. Freddie
and I would neck. . . . She felt my breasts, and my
vulva, but she was not very adept at this. I could
compare her to a fumbling sixteen year old boy, easily.
. . . My brief encounter with homosexuality didn’t last
long.” (P. 139.) Rey works for Jon and Vivian Mer-
rick. She continues her affair with Bill Sanford. “Bill
introduced me to an exciting way to reach an orgasm.
He would lick on my clitoris—suck on it—and put a
finger into my vagina. . . . One time I was immersed
in ihe sensations—my legs were apart and he was suck-
ing on my clitoris—and he began to move the finger
that he had had in my vagina ... he approached
the anus and began pushing his finger into it ...
when I reached climax this time it was even more in-
tense... .” (P. 141.)

Age 31... Phoenix (1954)

One month before her divorce is final, she meets
Thorndyke Anthony. He offers her marriage. “I would
have preferred simply living with Thorny instead of
getting married this third time. However, marriage
seemed to be the most intelligent thing to do when I
considered the attitudes of the society I lived in.” (P.
145.)

Thorny dislikes massaging her clitoris to have her
reach climax. He asks her to try “normal’’ intercourse.

Bill Sanford visits her, and they “had a very nice
sexual experience. He was still a competent lover.” (P.

148.)
Thorny talks her into having normal intercourse, “He
inserted his penis in my vagina. ... I thought sex

pictures. And I reached climax.” (P. 149.)

a

Bill Sanford visits her again, and they have sex.

Rey finds she is pregnant, but she is not sure who
the father is, She tells Thorny, and he says, “Any
child you have will be our child.” (P. 150.) Page 151
describes Rey reaching climax by wrapping her legs
around Thorny’s leg, and undulating her body until
she reaches climax.

Tanette, 13 years old, has met a “charming fellow”
of 17. He moves in to their apartment, and Rey ap-
proves of their, “pseudo-honeymoon-before-marriage re-
lationship.” (P. 153.) Tanette tires of him, and he
leaves in dejection. His name was Donald James.

Thorny tells Rey she shouldn’t make sex so impor-
tant. Rey thinks: “I can always masturbate, I can
cope with the situation myself.” (P. 155.) They have
sex after three weeks, and it was such an unpleasant
experience that Rey felt, “sex is awful.” (P. 156.)

Rick, a friend of Thorny, tells Rey and her daughters
how his wife died trying to abort a baby of another
man she had known. Rey tells Tanette, Niki-Sue, and
Shari, “only with proper medical supervision could abor-
tion ever be safe, and then it would be as safe as any
other surgical operation.” (P. 157.) ey oe

Age 32... Houston/Tucson (1955)

Rey takes her daughters to Houston when she is
eight months pregnant. She lets them watch while the
doctor examines her. She wants them to be able to watch
when she has the baby, but the doctor tells her this
is not possible. Pages 161 to 162 describe the birth of
Jana Kae, Rey’s fourth daughter. There was a pos-
sibility Thorny was the father due to blood type. They
all return to Tucson, but Rey knows the marriage won’t
succeed.

a an

Age 33... Tucson (1956)

Rey meets Bill Iverson. Pages 165 to 168 describe
perversion and sexual intercourse between them. “Then
he pulled my body to the edge of the bed. He sat on
the floor and put his face between my legs—I felt his
tongue on my clitoris. (Cunnilingus, p. 167.) Our inter-
course was a lovely aftermath for me. . . . Bill and |
made a very nice sexual relationship four ourselves.”

(P. 168.)
Age 34... Tucson (1957)

Thorny goes away to school. Bill Iverson moves in
with Rey and her four daughters. Pages 171 to 172
describe sex relations between Rey and Bill. “When |
' made love to Bill I kissed his body, fondled his tes-
ticles, kissed and sucked on his penis.” (P. 171.) “When
we had sex Bill masturbated me to a climax with his
finger or his tongue.” (P. 171.) Bill continues to have
sex with other women with Rey’s consent.

Pages 174 to 182 give Rey’s theory on marriage. “I
tend to be highly monogamous—with one person at a
time—but not forever.” (P. 180.)

Bill moves out when Rey leaves for Houston to meet
Thorny. They have sexual intercourse once. After four
months of sexual abstinence I suggested that we have
sex. Thorny tells her she places too much importance on
sex. “If you would spend more time on the more im-
portant things in life, we might be able to have sex
once in a while.” (P. 184.)

Tanette brings her boy friend Bill Patterson to the
house, and he moves in. “We had our pseudo-honey-
moon-before-marriage situation again.” (P. 184.)

Not liking abstinence from sex relations, Rey goes
to see Bill Iverson and has sex with him. She talks

lt ccss

to Thorny about trying to resume sex relations with
him. He said he wasn’t going to ever, and tells Rey
he wants her to be a respectable mother to Jana. Rey
says, “I will have sex. I will be in bed with a man.”
He accuses her of being promiscuous. She says, “If
that’s being promiscuous, then that’s what I want to
be.” (P. 186.)

Tanette is sixteen now. She meets Floyd Stewart,
who is 24 years old. She ends her relationship with Bill
Patterson, and continues seeing Floyd.

Thorny leaves Rey after they divide their assets and
liabilities. Months pass, and she builds up a printing
business. “I wasn’t involved in a goofed-up marital re-
lation sans sexual sensations. I masturbated if I wanted
to.” (P. 189.)

Rock visits Rey. He visits with her daughters, and
Rey goes to bed. “I woke up with Rock fondling my
breasts. Twelve months of nearly complete sexual ab-
stinence resulted in an immediate response on my part.
... Ll had had five climaxes caused by someone else in
the past year, and these five times had definitely not
left me satiated. As Tanette, or anyone else who knew
the facts would have put it, I was hard up. ‘Just a
minute,’ I said. After all, Jana was lying on the other
side of the bed I was on. I led him by the hand into
the bedroom where he was staying that night. I got
on the bed and we didn’t say a word. We just made
violent and passionate love. He did all the things that
he knew I liked. It was extremely nice.” (P. 190.) Rey
asks him how sex is with his present wife, Stella, and
he tells her “It’s all right.” (P. 190.)

Rey meets Dr. Carl Adler. Pages 188 to 210 describe
their sexual relationship. “I had sex cn several occasions

—

with another very nice man I knew, Al Sanislawski.”
(P. 201.)

Page 207 describes her feelings when Dr. Adler made
love to her. “When he licked my clitoris, with fingers
inserted in my vagina and anus, and I reached a climax,
I would slide off the foot of the bed. . . . For me
Dr. Adler was the man I had the most intense feeling
for, so sexual relations with Rock and Al fell into the
category of either ‘gooder’ or ‘goodest.’ Dr. Adler said
our relations were the result of good clean lust.” (P.
211.)

Tanette talks Rey into writing the book. Her daugh-
ters collate the book and put it between covers.

ae

PART TWO.. . . Miscellaneous concepts.

A Penis by any other name. . .

“In short, one way sex is made ‘filthy’ as it is
today, is by sheer neglect on the part of parents to
provide a suitable vocabulary for things children must
confront all through their lives . . . anus, vagina, penis,
testicles, breasts . . . along with ears, eyes, nose, throat,
legs, and brains.” (P. 216.) “So long as we persist |
in not teaching our children authentic language at an |
age when they need it in order to integrate bodies and |
body actions into their everyday life, that long will we
have ‘obscenity.’” (P. 220.)

Obscenity is where you find it.

“There does not exist anything that is intrinsically ob-
scene. For an individual to feel that an object or ac-
tion is obscene, he must manufacture the idea of obscen-
ity and apply it to the object of action.” (P. 222.)

“In some societies, women are completely unrestricted
about sex and sexual matters, and the men are the

calito

same way. Obscenity takes over when possessiveness,
jealousy, and hate take precedence over the more natural
human emotions of friendliness and mutual respect.
... For if you can accept a thing for what it is it
ceases to be obscenity.”’ (P. 222.)

Sexing for fun and profit.

“Finally, the usefulness of sexciting and sexotic pic-
tures—the fantasizing—cannot be stressed tov greatly
in allowing the female to reach a climax of a wonder-
ful nature and with great intensity.” (P. 224.) ...
“let us develop the ability to create in our own minds
the loveliness that can be had with good clean lust.
This can be fun, and can be profitable in terms of bet-
ter health and happier relations with our friends and
acquaintances. Our sex life is not so separate from
our life in general. The one does influence the other.”’
(P. 225.)

“Normal” intercourse.

In actual order of importance for love making to the
woman, the penis which is not easily manipulated,
would have to rank third among the masculine extremi-
ties. . . . The tongue is second best. . . . The fingers
are the most capable extremities in making love to a
woman. (P. 226.)

Abortion.

“We are in need of more realistic attitudes regarding
abortion. . . . When a woman finds herself pregnant,
and in circumstances which make it impossible (emo-
tionally) for her to bear a child, the resultant attitude
can be insanity.” (P. 228.)

Sex in language and action.

“We regard all practices other than ‘normal’ inter-
course (coitus) as ‘unnatural.’ ... Just a few words

ache SA tn” on EIN SS a RATTAN

nttiliinn

that no one would want applied to himself are: promis-
cuous, wanton, lewd, lascivious, sensual, passionate, car-
nal, and lustful.” (P. 232.) “Things of the spirit are
created in the image of our God. Things of the spirit
are created in the image of God, and things of the flesh
but reflect the spirit. Of all Godlike qualities we are
endowed with, the sexual capacity is one of the finest,
Our sexual appetites are not of the devil, but are rather
physical expression of spiritual qualities. . . . When the
consciousness controls the body and creates sexual sen-
sations, it is realizing and experiencing a very worth-
while—and spiritual—activity.” (P. 233) “One fasci-
nating aspect of sex in action is the fact that cc unselors
and doctors now give advice that, if carried out, results
in disregarding the criminal code.” (P. 234.)

What price rebellion?

“There are some methodologies that would adjust all
men to the world around them. . . . Dr. Robert Lind-
ner, in his ‘Prescription for Rebellion,’ says that the
average psychiatrist tries to ‘adjust’ his patients to
placid acceptance of a maladjusted society! (P. 238.)

“The way out and up in regard to our sexual prob-
lems in this country is by way of communication and
education. Though speaking openly on sexual matters
is a little rebellious, let us hope that more and more
of us can acquire the willingness to confront our sexual
activities. Only when we do this will we come out of
our communicational and conversational dark age on

sex.” (P. 240.)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0229%3A14. Public record. Not legal advice.