Jurisdictional Statement — A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts

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| JOHN F. DAVIS, CLE

Supreme Court of the United States.

Ocroszr Tzem, 1965.

No. 368

A BOOK NAMED “JOHN CLELAND’S MEMOIRS OF

A WOMAN OF PLEASURE”, .

G. P. PUTNAM’S SONS (Inrenvenor), Appellant,

ATTORNEY GENERAL OF THE COMMONWEALTH

OF MASSACHUSETTS, Appellee.

JURISDICTIONAL STATEMENT.

Cuantzs Remar,

Remsak anp ZoLorar,

521 Fifth Avenue,

New York 17, N.Y.

ADDISON C. GETCHELL & SON, INC., LAW PRINTERS, BOSTON.

_———

Table of Contents.

Opinion below 1

Jurisdiction 2

Statutes involved 3

Questions presented 3

Statement of case 4

1. The proceedings and the presentation of the

federal questions 4

2. The facts 6

The appropriateness of review 9

1. The case presents a matter of considerable cul-

tural significance 9

2. There is a multiplicity of litigation that itself

impairs first amendment rights and that can only

be terminated by a decision of this Court 12

The questions are substantial 14

1. The tests are independent 14

2. Memoirs is entitled to constitutional protection

under the prurient interest test 16

3. Memoirs is entitled to constitutional protection

under the patent offensiveness test 22

4. Memoirs is entitled to constitutional protection

under the social value test 24

5. The hard-core pornography test leads to the

same result 32

Conclusion 33

Appendix 34

Rescript of Supreme Judicial Court 34

Final decree after rescript 35

Opinion of Supreme Judicial Court 36

Statutory appendix 46

Massachusetts General Laws

Chapter 272

Chapter 231A

TABLE OF AUTHORITIES CITED

Table of Authorities Cited.

CasEs.

Alberts v. California, 354 U.S. 476 2, 3, 11, 14, 16,

19, 24, 28

A Quantity of Books v. Kansas, 378 U.S. 205 11, 33

Attorney General v. A Book Named ‘‘ John Cleland’s

Memoirs of a Woman of Pleasure’’, 1965 Mass.

Adv. Sh. 635° 1

Attorney General v. Book Named ‘‘Tropic of Can-

cer,’’ 345 Mass. 11, 184 N.E. 2d 328 15

Breard v. Alexandria, 341 U.S. 622 25n.

Burke v. Kingsley Books, Inc., 208 Mise. 150, 142

N.Y.S. 2d 735, aff’d sub nom., Kingsley Books,

Ine., v. Brown, 354 US. 436 32

City of Chicago v. Kimmel, 31 Ill. 2d 202, 201 N.E.

2d 386 15

Cole v. Violette, 319 U.S. 581 2n.

Commonwealth v. Moniz, 338 Mass. 442 4n.

Cox v. New Hampshire, 312 U.S. 569 25n.

Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. :

282 2

Dombrowski v. Pfister, 85 S. Ct. 1116 14

Doubleday & Co., Inc., v. New York, 335 U.S. 848 11

Haiman Vv. Illinois, Sup. Ct. of Illinois, 1964, Docket

No. 37276 15

G. P. Putnam’s Sons v. Calissi, 86 N.J. Super. 82,

205 A. 2d 913 12

Grove Press, Inc., v. Christenberry, 175 F. Supp.

488; aff’d 275 F. 2d 433 11

—

TABLE OF AUTHORITIES CITED iii

Grove Press, Inc., v. Gerstein, 378 U.S. 577 3, 11, 12n.,

15, 28, 33

Jacobellis v. Ohio, 378 U.S. 184 3, 9, 15, 28

Kingsley Books, Inc., v. Brown, 354 U.S. 436 12

Kovaes v. Cooper, 336 U.S. 77 25n.

Labor Board v. Virginia Electric & Power Co., 314

U.S. 469 25n.

Larkin v. G. P. Putnam’s Sons, 14 N.Y. 2d 399, 200

N.E. 2d 760 12, 15

Manual Enterprises, Inc., v. Day, 370 U.S. 478

2, 4, 11, 14, 22, 24

McCauley v. Tropic of Cancer, 20 Wis. 2d 133, 121

N.W. 2d 545 15

New York Times Co. v. Sullivan, 376 U.S. 254 14

People v. Bruce, 31 Ill. 2d 459, 202 N.E. 2d 497 15

People v. Finkelstein, 11 N.Y. 2d 300, 183 N.E. 2d

661, cert. den. 371 U.S. 863 32

People v. Fritch, 13 N.Y. 2d 119, 192 N.E. 2d 713 15, 29n.

People v. Richmond County News, Inc., 9 N.Y. 2d

578, 175 N.E. 2d 681 33

People v. Sikora, 204 N.E. 2d 768 32

Prince v. Massachusetts, 321 U.S. 158 25n.

Queen v. S. Coles Co. Ltd., 44 Crim. Rep. 219 18

Roth v. United States, 354 U.S. 476 2, 3, 11, 14, 16,

19, 22, 24, 25, 25n., 28

Schenck v. United States, 249 U.S. 47 25n.

Teamsters Union v. Hanke, 339 U.S. 470 25n.

United States v. Harriss, 347 U.S. 612 25n.

United States v. One Book Called ‘‘Ulysses,’’ 5 F.

Supp. 182; aff’d 72 F. 2d 705 11

iv TABLE OF AUTHORITIES CITED

cert. den. 375 U.S. 957

Statutes, &c.

Florida Constitution

G.L. ¢. 231A

G.L. ¢. 272, § 28B

G.L. ¢. 272, §§ 28C-28H

New York Criminal Code, Art. 22-a

28 U.S.C. § 1257 (2)

U.S. Constitution, First Amendment

U.S. Constitution, Fourteenth Amendment

Textsooks, &c.

A.L.I. Model Penal Code, Tentative Draft No. 6, p. 10

Zeitlin v. Arnebergh, 59 Cal. 2d 901, 383 P. 2d 152,

Supreme Court of the United States.

Ocroser TERM, 1965.

No.

A BOOK NAMED “JOHN CLELAND’S MEMOIRS OF

A WOMAN OF PLEASURE”’,

G. P. PUTNAM’S SONS (InteErvenor), Appellant,

Vv.

ATTORNEY GENERAL OF THE COMMONWEALTH

OF MASSACHUSETTS, Appellee.

JURISDICTIONAL STATEMENT.

This is an appeal from a judgment of the Supreme Ju-

dicial Court of the Commonwealth of Massachusetts en-

tered April 22, 1965, and from a final decree after rescript

of the Superior Court of the Commonwealth of Massachu-

setts entered pursuant thereto. Appellants submit this

Statement to show that the Supreme Court of the United

States has jurisdiction of the appeal and that substantial

federal constitutional questions are presented.

Opinion Below.

| The opinion of the Supreme Judicial Court is reported

at 1965 Mass. Adv. Sh. 635. It is set forth at pages 36 to 41

of the Appendix.

Jurisdiction.

The proceeding that gives rise to this appeal was brought

pursuant to chapter 272 of the General Laws of Massa-

chusetts, §§ 28C-28H. Invoking these statutory provisions,

the Attorney General filed a petition seeking interlocutory

and final adjudication that the book entitled ‘‘John Cle-

land’s Memoirs of a Woman of Pleasure’’ published by

G. P. Putnam’s Sons (hereinafter called ‘‘Memoirs’’) is

obscene, indecent and impure (R. 1-2). Pursuant to stat-

utory provision, G. P. Putnam’s Sons intervened. (The

Attorney General will be referred to as ‘‘the Attorney Gen-

eral’’ and the intervening publisher as ‘‘the Publisher’’.)

The Publisher interposed defenses based solely on the First

Amendment. The Superior Court rejected the Publisher’s

constitutional contentions, declared the book not entitled

to the protection of the First Amendment, and adjudged

it obscene (R. 124-125). The Supreme Judicial Court

affirmed. Its judgment was entered April 22, 1965, and

notice of appeal was filed on June 21, 1965. The appeal

is taken from the judgment of the Supreme Judicial Court

and from the decree entered thereon by the Superior

Court.*

The statutory provision believed to confer jurisdiction

of the appeal upon this Court is 28 U.S.C. § 1257(2).

The cases believed to sustain the jurisdiction of this

Court are Dahnke-Walker Milling Co. v. Bondurant, 257

U.S. 282; Roth v. United States and Alberts v. California,

354 U.S. 476; Manual Enterprises, Inc., v. Day, 370 US.

*The Supreme Judicial Court is not a court of record, the rec-

ord in this case being in the Superior Court. Although the judg-

ment of the Supreme Judicial Court is final for purposes of ap-

peal to this Court (Cole v. Violette, 319 U.S. 581), it is the Massa-

chusetts practice to enter a further final decree upon the rescript

of the Supreme Judicial Court, and, to avoid any question, this

appeal is taken from both.

cat

478; Grove Press, Inc., v. Gerstein, 378 U.S. 577; and

Jacobellis v. Ohio, 378 U.S. 184.

Statutes Involved.

The statutes involved are §§ 28C-28H of chapter 272 of

the General Laws of Massachusetts. They are set forth in

the Appendix at pages 47 to 49,

Questions Presented.

The basic question on appeal is:

Whether §§ 280-28H of chapter 272 of the General

Laws of Massachusetts, as applied to the book named

‘John Cleland’s Memoirs of a Woman of Pleasure,’’

are unconstitutional under the First Amendment of

the United States Constitution as made applicable to

the states by the Fourteenth Amendment of the United

States Constitution.

Within the foregoing basic question there are comprised,

among others, the following subsidiary questions:

(a) Whether the publication of a book is protected

by the First Amendment if it is not utterly without

social importance within the meaning of Roth vy.

United States and Alberts vy. California, 354 U.S. 476,

and whether ‘‘John Cleland’s Memoirs of a Woman

of Pleasure’’ is such a book.

(b) Whether the publication of a book is protected

by the First Amendment if it does not appeal pre-

dominantly to prurient interest within the meaning

of Roth v. United States and Alberts v. California,

™

354 U.S. 476, and whether ‘‘John Cleland’s Memoirs

of a Woman of Pleasure”’’ is such a book.

by the First Amendment if it is not patently offensive

within the meaning of Manual Enterprises, Inc., v.

Day, 370 U.S. 478, and whether ‘‘ John Cleland’s Mem-

oirs of a Woman of Pleasure’’ is such a book.

Statement of Case.

1. Tue PRocEEDINGS AND THE PRESENTATION OF THE

FEDERAL QUESTIONS.

Sections 28C-28H establish a proceeding by which it

may be adjudicated that a book is obscene, indecent and

impure.* The consequence of such an adjudication, under

the law of Massachusetts, is the suppression of the book.t

The Attorney General’s petition sought such an adjudica-

tion (R. 2). The Publisher answered by setting up de-

fenses based on the United States Constitution, and made

no other defense.

The answer (1) denied that the book is obscene; (2) al-

leged that the sale and distribution of the book are pro-

*The second and third statutory adjectives will hereinafter be

treated as subsumed in the term ‘‘obscene’’. See Commonwealth

v. Moniz, 338 Mass. 442.

+ Section 28B of chapter 272 (the section immediately preceding

those under which the proceeding was brought) provides imprison-

ment and fine for ‘‘Whoever ... publishes... or distributes

... a book, knowing it to be obscene... .’’ Section 28H provides

that, if a proceeding such as the present one results in an adjudica-

tion that the book is obscene, then in any trial under § 288 the

defendant ‘‘shall be conclusively presumed to have known said

book to be obsecene.’’ Thus the question whether the book is ob-

scene, as well as the question of scienter, can be litigated only in

this proceeding and not in any subsequent criminal prosecution.

—

tected by the First Amendment of the United States Con-

stitution as applied to the states by the Fourteenth Amend-

ment; (3) alleged that, if the application of the Massachu-

setts statute results in an adjudication that the book is

obscene, the statute as applied is unconstitutional under

the First and Fourteenth Amendments; (4) alleged that

an adjudication whose effect is to impede or prevent the

sale or distribution of the book would be an unconstitu-

tional deprivation of rights guaranteed by the First and

Fourteenth Amendments. The Publisher prayed that the

court adjudicate the book not obscene, and enter a decree,

pursuant to the declaratory judgment statute of Massachu-

setts (G.L. c. 231A), making a declaration of the points

alleged by way of defense (R. 6-8).

The constitutional questions were again presented in the

Publisher’s trial briefs and orally by the Publisher’s coun-

sel at the trial (R. 103-107). It was emphasized that the

Publisher’s denial of the allegation of obsceneness was

based solely on the ground that the book is constitutionally

protected expression (R. 103). On appeal to the Supreme

Judicial Court the brief for the Publisher posed the issue

as follows:

‘‘The Issue.

‘‘This case involves a single issue: Is the publica-

tion of John Cleland’s Memoirs of a Woman of Pleas-

ure protected by the guaranties of the First Amend-

ment of the United States Constitution? ;

‘“‘The Intervenor concedes that the pertinent Mas-

sachusetts statutes have as complete an effect as the

First Amendment permits them to have—that the

legislation covers all material obscene in the constitu-

tional sense. The Intervenor takes no position as to

the proper construction of the statutes apart from the

limitations on such construction that are imposed by

the First Amendment. The Intervenor contends, how-

ever, that, if the statutes are construed to penalize the

publication of this book or to sanction its suppression,

the statutes as so applied are unconstitutional. [Italics

added. |

‘‘The issue of constitutionality tendered by the In-

tervenor relates solely to the Federal Constitution. It

involves the First Amendment as made applicable to

state statutes and state action by the Fourteenth

Amendment. We believe that the protection afforded

by the First Amendment is at least as broad as that

afforded by the Constitution of the Commonwealth of

Massachusetts, but, if the state constitutional guaranty

be thought to be any broader than the federal, the

Intervenor waives the additional protection.’’

The Supreme Judicial Court dealt with the appeal, in

accordance with the issue thus presented, as involving only

a question under the First Amendment. The majority were

‘‘of opinion that Memoirs is not endowed with constitu-

tional protection’’ (App. p. 40) and ordered the decree

affirmed. The rescript of the Supreme Judicial Court in-

corporated the opinion.

2. Tue Facts.

At the trial a copy of the book was introduced by stipu-

lation, and the Attorney General called one witness. The

Publisher called several witnesses and introduced docu-

mentary evidence.

The following witnesses testified to the literary merit,

historical importance and other values of the book: Fred

Holly Stocking, Professor of English and Chairman of

English Department, Williams College; John N. Bullitt,

—

Professor of English and Master of Quincy House, Har-

vard College; Robert H. Sproat, Associate Professor of

English Literature, Boston University; Norman N. Hol-

land, Associate Professor of English, Massachusetts Insti-

tute of Technology; and Ira Konigsberg, Assistant Pro-

fessor of English and American Literature, Brandeis Uni-

versity. The Attorney General’: witness was Dr. John

E. Collins, Headmaster of the Newman Preparatory School.

The Publisher’s witnesses were all highly qualified (R.

45-46, 59, 69-70, 77, 93). Their qualifications were not

equalled by those of the one witness for the Attorney Gen-

eral (R. 20).

The Publisher also introduced documentary evidence.

On the matter of literary merit, there are essays by the

critics J. Donald Adams, V. S. Pritchett and Brigid Bro-

phy, in The New York Sunday Times Book Review, the

New York Review of Books and the New Statesman re-

spective !y, and an article in Time magazine (R. 31-43). On

the matter of community standards, there are newspaper

clippings and a copy of Life magazine.

The volume in question contains the Cleland novel, an

introduction by Peter Quennell and a historical note by the

publisher. For over two centuries Cleland’s work has had

a wide, though for the most part surreptitious, circulation

(Ex. A, Introduction and Note). In 1963 it was finally

given open publication by G. P. Putnam’s Sons, a company

that has engaged in a century and a quarter of distin-

guished publishing (R. 90-91). The distribution of the

book in no way departed from the normal course of Put-

nam’s distribution; its only unusual feature was the rela-

tively large number of orders from universities and libra-

ries (R. 91).*

*The Library of Congress requested the right to translate the

book into Braille (R. 91).

——

Memoirs is one of a group of works important in the

development of the English novel. A single decade—the

1740’s—saw the publication of Richardson’s Pamela and

Clarissa, Cleland’s Memoirs and Fielding’s Tom Jones.

The works of that decade may be said to have developed

the English novel in the modern sense, and Memoirs is very

much part of the process (R. 93-95).

Memoirs is, of course, an erotic novel. It is at the same

time a work of art—careful and gifted writing that suc-

ceeds as a novel. Read as a whole, it creates an effect that

is primarily literary (R. 46, 53-54, 58, 60, 70, 79, 93-94). The

style is excellent (R. 46, 79, 96), but the literary merits of

the book go considerably beyond the stylistic. It is artis-

tically structured fiction that contains a ‘‘plot with a

purpose’’ (R. 47, 61, 65, 70, 80). It is a ‘‘novel of educa-

tion’’, that is, a novel in which the principal character

learns from experience aid develops and changes (R. 61).

She participates in the experiences that she narrates and

then reflects and generalizes upon them (R. 46-47, 49, 50,

73). This reflection results in her acceptance and advo-

cacy of certain values and ideas—the worth of pleasure and

the place of pleasure; prudence, moderation and a rational

view of the world; and finally an affirmation of the supe-

riority of sex-in-love to the merely lustful (R. 32, 40, 46-47,

61, 65, 70, 71-76, 96, 101). Cleland displays the high liter-

ary talent of imaginative projection (R. 47). There is

skill in characterization (R. 62-63) and a gift for comedy

(R. 61-62). The book shows acute psychological insight

(R. 80-81). Apart from its intrinsic merits, the novel has

historical value both because of the part it plays in the his-

tory of English literature (R. 60, 62, 78, 93-96) and because

of the information it gives concerning the period (R. 33,

38-39, 47, 59, 62, 78, 93-94).

The witnesses, as both critics and general readers in-

evitably do, differed among themselves in their appraisals

—

of the book. But they all (except Dr. Collins) agreed that

Memoirs is a work of considerable value.

The Appropriateness of Review.

By the decisions of the courts below, a book is suppressed.

The suppression is effected over the contention that the

book constitutes expression protected by the First Amend-

ment. ‘‘Such an issue... must ultimately be decided

by this Court.’’ J/acobellis v. Ohio, 378 U.S. 184, 188, Dis-

position by this Court is particularly appropriate in the

present case.

1. THE CASE PRESENTS A MATTER OF CONSIDERABLE CULTURAL

SIGNIFICANCE,

It has, of course, been held that the guaranties of free-

dom of speech and of the ess go beyond vocal utterance

and the printed word. It does not follow, however, that the

guaranties are to be applied in the same way, or to the same

extent, with respect to all forms of expression. See Freed-

man v. Maryland, 380 U.S. 51. Books have a certain pri-

macy because of their importance to society. Moreover,

such conflicts as there may be with interests sought to be

served by anti-obscenity legislation are less intense where

books are concerned.

The audience for a book is the individual reader, not

an assembled group. In a theatre audience, for example,

there is a simultaneously shared experience, and the social

interaction itself creates difficulties.* Again, the reader of

a book has instant control over his exposure to it; he can

terminate the experience by closing the book, and if its repu-

*The familiar hypothetical from another area of restraint—

shouting ‘‘Fire!’’ in a theatre—would hardly present a problem

if there were only one other person in the theatre.

tation puts him off, he need not open it. In contrast, other

means of communication—the sound truck, for example,

or the advertising poster in a train or bus—make us their

captive. Television, the great new medium of our time,

presents both aspects: its communications are received

in a social situation, and continued exposure is not always

easily terminated. Typically, television-viewing is a family

affair, and it takes a family consensus to end it. Finally,

media of expression differ in their impact. Scenes de-

scribed in commonly accepted books would, if performed

by actors on a stage, or displayed in photographs on a bill-

board, become quite different in their effect. There is no

means of general communication that is more private,

more intellectual and less involved with public decorum

than a book.

Hence the possibilities of antagonism between the pub-

lishing of books and other interests of society are relatively

small. At the same time, books have a singular importance

for society. Tradition gives them a special place. It was

to liberty of printing that John Milton’s Areopagitica was

addressed, and the great controversies about freedom of

expression that were resolved in the adoption of the First

Amendment had to do mainly with books (including that

predecessor of contemporary paperbacks, the pamphlet).

Books provide a vehicle for the transmission of thought

that is not matched by other forms of expression. They

communicate ideas not alone by way of exposition, but

also through the shared experiences and perceptions of

poetry and fiction. Other forms of expression may be as

good or better for entertainment, excitement or the arous-

ing of emotion, but the printed word remains our most im-

portant medium for the dissemination of ideas.

Although the Court has several times spoken on the sub-

ject of the relationship between the First Amendment and

anti-obscenity legislation, it has had little occasion to do so

—

in connection with books. The Roth and Alberts decisions

(354 U.S. 476) did not at all involve the particular material

that occasioned the prosecutions. The publications that

were considered (by some members of the Court) in Man-

ual Enterprises, Inc., v. Day, 370 U.S. 478, and in A Quan-

tity of Books v. Kansas, 378 U.S. 205, were not of a char-

acter to provide helpful analogies for serious writers and

reputable publishers. The cases concerning Ulysses (72

F. 2d 705, affirming 5 F. Supp. 182) and Lady Chatterley’s

Lover (Grove Press, Inc., v. Christenberry, 276 F. 2d 433,

affirming 175 F. Supp. 488) were concluded (by judgments

in favor of publication) before reaching this Court. The

case concerning Edmund Wilson’s Memoirs of Hecate

County was decided (against publication) without opinion,

and by an evenly divided Court (Doubleday & Co., Inc., v.

New York, 335 U.S. 848). Tropic of Cancer is the only

work as to which the claim of literary value has been made

and on which there have been opinions of this Court (Grove

Press, Inc., v. Gerstein, 378 U.S. 577). Even there the five

members of the Court who dealt with the book referred to

reasons stated in another case that did not involve a book.

Four Justices were of the opinion that certiorari should be

denied and did not participate in the consideration of the

merits, presumably on the ground that constitutional ques-

tions had not been preserved.* These circumstances per-

haps account for the fact that there is incomplete under-

standing of the meaning and effect of the Tropic decision.t

*The inference is based on the fact that the petition for cer-

tiorari had been opposed on this ground, the respondent arguing

that the petitioner had waived the constitutional questions, and

that only the Supreme Court of Florida—and not the intermediate

appellate court whose judgment was sought to be reviewed—had

jurisdiction to hear appeals involving the validity of a statute or

construing the United States or Florida Constitutions (respond-

ent’s brief in opposition to petition for writ of certiorari, pp. 2-4).

7 Public misapprehensions are illustrated in an issue of ‘‘De-

cency Reporter’’, the publication of the Citizens For Decent Litera-

—y

In view of the importance of books, and the paucity of

direct statement on the protection afforded books by the

first amendment, what this Court will have to say with

respect to Memoirs is eagerly awaited as a guide to what

may be written and what may be published.

2. THERE IS A MULTIPLICITY OF LITIGATION THAT ITSELF IM-

pairs First AMENDMENT RIGHTS AND THAT CAN BE ENDED

BY A DECISION OF THIS CouRT.

The basic issue on appeal—whether Memoirs may be

suppressed—is in litigation or has been litigated in four

states: New York, Massachusetts, New Jersey and Illinois.

In Illinois a bookseller has been convicted in a criminal

prosecution; counsel for the defendant have stated that an

appeal is planned. In New Jersey, in an action brought

under a New Jersey statute similar to Article 22-a of the

New York Code of Criminal Procedure (the statute in-

volved in Kingsley Books, Inc., v. Brown, 354 U.S. 436),

there has been a decision after trial holding that the book

is obscene and not entitled to constitutional protection

(G. P. Putnam’s Sons v. Calissi, 86 N.J. Super. 82, 205 A.

2d 913); notice of appeal has been filed, and the appellate

court has stayed the matter pending the determination of

the instant appeal. In New York, in an action brought

under Article 22-a, the trial court has held the book en-

titled to constitutional protection, the Appellate Division

has reversed by a vote of three to two, and the Court of

Appeals has reversed the Appellate Division by a

vote of four to three (Larkin v. G. P. Putnam’s Sons,

ture (vol. 2, No. 35, October 29, 1964). It refers to the action of

this Court in Grove Press v. Gerstein as ‘‘a 5-4 decision,’’ and

criticizes the Illinois Supreme Court for following Grove Press v.

Gerstein and ignoring ‘‘the two other cases that the U. 8S. Supreme

Court upheld.”’

————

14 N.Y. 2d 399, 200 N.E. 2d 760). In the present case the

Supreme Judicial Court also has divided four to three,

the publication being supvressed in Massachusetts by the

same margin as that by which it was sustained in New

York. Thus, of the fourteen high state court judges who

have ruled on the book, seven have construed the decisions

of this Court to sanction its suppression and seven have

construed those decisions to accord the book the protec-

tion of the First Amendment. (It may be noted that the

Supreme Judicial Court and the Court of Appeals have

also rendered four-to-three decisions on Tropic of Cancer,

the positions being exchanged; the Massachusetts majority

. found the Miller book entitled to the constitutional protec-

tion that the New York majority denied it.)

Multiplicity of litigation is itself a powerful form of

extra-judicial censorship. It is extra-judicial because, al-

though it invokes judicial processes, its effectiveness de-

pends not on ultimate judicial decision, but on the financial

strain that the litigation puts upon the publisher. A pub-

lisher enmeshed in litigation in a number of jurisdictions

—either directly or through the indemnities to booksellers

that prevail in the book trade—soon finds himself facing

legal expenses that make publication of the book unprofit-

able, and may even jeopardize his economic existence.*

The irhibiting effects on publishing, and consequently

on intellectual and artistic creativity, are plain. There are

indications that this method of censorship has been adopted

in some localities as a matter of deliberate policy, even

where it is expected that the publication of the book will

ultimately be sustained in the courts.t

*See Lewis, ‘‘The Most Recent Troubles of ‘Tropic’: A Chapter

in Censorship’’, New York Times Sunday Book Review, January

21, 1962, p. 4.

+See, for example, Chicago Daily News, December 2, 1964, p. 6,

cols. 6-8, in reporting on certain pending obscenity prosecutions:

en.

A ‘‘chilling effect upon the exercise of First Amendment

rights’? may come from the threat of prosecution (Dom-

browski v. Pfister, 85 8. Ct. 1116, 1121) or from the imposi-

tion of financial burden (New York Times Co. v. Sullivan,

376 U.S. 254). A multiplicity of litigation against a book

has both effects: it imposes an extraordinary financial

burden on the publisher, and it simultaneously threatens

criminal prosecution to booksellers in every state whose

highest court has not yet passed upon the book. Since the

protection of the First Amendment is asserted as a defense

in all the cases involving Memoirs, a decision by this Court

can forestall the consequences that would otherwise flow

from the mass of litigation. Indeed, only a decision by this

Court can assure that the right to publish, if it exists

in law, also exists in fact.

The Questions are Substantial.

1. THE TESTS ARE INDEPENDENT.

In Roth and Alberts this Court formulated two independ- :

ent tests by which it can be determined whether a book,

challenged as obscene, is entitled to the protection of the

First Amendment. One has come to be called the ‘‘ prurient

interest’’ test, the other the ‘‘social value’’ test. In Manual

‘* Assistant State’s Atty. Daniel J. Leahy said: ‘We’re well

aware of the decisions lately of the supreme courts. We do

not agree with them as a whole or any part of them’.’’

and The Hollywood Reporter, March 24, 1965:

**Rep. Dowdy advocated getting local authorities to prose-

cute sellers of nudie magazines and other offensive publica-

tions and exhibitors of films they believe obscene, even if it is

known that under Supreme Court interpretations of law no

convictions can be gained. Dowdy said in this way exhibitors

and others would simply give up because the receipts would

be less than the expense.’’

Enterprises, Inc., v. Day, 370 U.S. 478, a third test, that

of ‘‘patent offensiveness’’, was set forth.

The prurient interest test and the patent offensiveness

test supply the outer boundaries of the general field to

which anti-obscenity legislation relates. But within this

general field another test is to be applied: the legislation

can have a constitutional application only if the challenged

publication is without value. Thus a book found to have

intellectual content or artistic merit or some other form of

social importance may not be suppressed, regardless of

what conclusion might be reached if the prurient interest

test were applied by itself and without regard to social

value.

It is the Publisher’s position that a book must fail by all

of these tests before it may be suppressed. If, in applying

any one of them, the result is on the side of free expression,

| suppression is impermissible. The weight of state court

authority supported this position even before Jacobellis v.

Ohio, 378 U.S. 184, and Grove Press, Inc., v. Gerstein, 378

U.S. 577, were decided. See Attorney General v. Book

Named ‘‘ Tropic of Cancer,’’ 345 Mass. 11, 184 N.E. 2d 328;

Zeitlin v. Arnebergh, 59 Cal. 2d 901, 383 P. 2d 152, cert.

den. 375 U.S. 957; McCauley v. Tropic of Cancer, 20 Wis.

2d 134, 121 N.W. 2d 545; but cf. Haiman v. Illinois, Sup.

Ct. of Illinois, 1964, Docket No. 37276 (not reported and

withdrawn by order dated July 7, 1964), and People v.

Fritch, 13 N.Y. 2d 119, 192 N.E. 2d 713. After Jacobellis

and Grove Press the high state courts that had earlier re-

jected the view now accepted it. City of Chicago v. Kim-

mel, 31 Ill. 2d 202, 201 N.E. 2d 386; People v. Bruce, 31 Til.

2d 459, 202 N.E. 2d 497; Larkin v. G. P. Putnam’s Sons,

14 N.Y. 2d 399, 200 N.E. 2d 760.

In the decision from which the present appeal is taken,

the majority, although indicating acceptance of the view

(App. p. 40), stated that whether there were three inde-

pendent standards ‘‘need not be decided, for in our opinion

Memoirs meets all the tests’’ (App. p. 40).

We submit that the tests are independent. If the proposi-

tion is not involved here, it is only because, with all due

respect to the majority below, its opinion was wrong at

every point; Memoirs is a book that under each of the tests

must be found to come within the protection of the First

Amendment.

2. MEMOIRS IS ENTITLED TO CONSTITUTIONAL PROTECTION

UNDER THE PRURIENT INTEREST TEST.

When this Court, in Roth and Alberts, formulated the

prurient interest test, it was not engaged in the simple

exercise of synonym-swapping. Most earlier efforts to

give meaning to the term ‘‘obscene’’ had ended by doing no

more than replacing one epithet with another. ‘‘Obscene’’

was defined as ‘‘lewd’’, ‘‘lewd’’ as ‘‘lascivious’’, ‘‘lasciv-

ious’’ as ‘‘libidinous’’, ‘‘libidinous’’ as ‘‘licentious’’ and

‘‘licentious’”’ as ‘‘lustful’’. ‘‘Immoral’’, ‘‘improper’’ and

‘‘impure’’ were tried, along with ‘‘indecent’’, ‘‘filthy’’ and

‘‘vulgar’’. The succeeding definitions had different trim,

but no functional change, and the troublesome vagueness

persisted.

In the last decade, however, courts began to consider

the matter in a constitutional context, and in that context

this Court, with Roth and Alberts, dispelled a good deal of

the vagueness. The Court chose a word that had not been

prominent in earlier formulas—the word ‘‘prurient’’. It

was a word whose peculiar connotations set it apart from

its predecessors. The choice, of course, was not mere

rhetoric. The purpose, we suggest, was to make it clear

that the Hicklin test and its derivatives were no longer the

law, and to define more narrowly and with greater depth

——

the characteristic that must be found in the material upon

which anti-obscenity statutes may operate.

The fact that a publication may appeal to the sexual

interest of the reader, or may create a sexual response in

him—the fact that the publication may be called erotic, or,

in terms of the older definitions, lustful—would not satisfy

the new and narrower prurient interest test. The etymo-

logical source of ‘‘prurient’’ is a word that means ‘‘itch-

ing’, and its present-day connotations are ‘‘dirty’’,

‘‘nasty’’, ‘‘furtive’’, ‘‘unwholesome’’. In the American

Law Institute definitions quoted and approved by the Court,

‘prurient interest’’ is ‘‘a shameful or morbid interest in

nudity, sex, or excretion’’. This leaves no room for the

proposition that a writing may be suppressed merely be-

cause it produces uormal sexual response in a healthy

adult. The A.L.I. Comment contains the following state-

ment:

‘*. . . we reject the prevailing tests of tendency to

arouse lustful thoughts or desires because it is un-

realistically broad for a society that plainly tolerates

a great deal of erotic interest in literature, advertising

and art, and because regulation of thought or desire,

uneonnected with overt misbehavior, raises the most

acute constitutional as well as practical difficulties.’’

(A.L.I. Model Penal Code, Tentative Draft No. 6,

p. 10.)

Memoirs, of course, is literature that has ‘‘a great deal of

erotic interest’’. It is a book about sex. But the interest of

its heroine in sex is not morbid or shameful, nor is the

interest of the normal adult reader. We respectfully refer

the Court to portions of the record which have particular

bearing on this point (R. 29-30, 33-34, 35-36, 37-38, 41-43,

101). The heroine-narrator’s attitude toward sex is open

—

and essentially innocent, not leering or dirty. Her ap-

preciation of sex is natural, not sick or perverted. Aber-

ration is rejected and denounced. The book is directed

toward life, not toward morbidity. The statement of the

prevailing opinion of the Court of Appeals of Ontario, in

holding Memoirs not obscene, is pertinent:

‘‘In my opinion, the book, read as a whole, has not

about it that aura of morbidity nor that degree of sug-

gestive pruriency which might render it obscene within

the meaning of the Code.’’ (Queen v. S. Coles Co.

Ltd., 44 Crim. Rep. 219.)

Any legislative attempt to do away with books that may

excite sexual thoughts and desires becomes ludicrous when

viewed against the realities of contemporary civilization.

An eighteenth-century novel, no matter how much it may

be devoted to the act of sex, can hardly add anything to

the constant sexual prodding with which our environment

assails us. Apart from the evidence offered, the Court can

take judicial notice of the fact that our advertising, our

motion pictures, our television and our journalism are in

large measure calculated to produce sexual thoughts and

reactions. We live in a sea of sexual provocation.

These aspects of our society may indeed be deplorable,

but they are part of the contemporary culture within which,

as this Court has held, cases like the present one must be

judged. Surrounded as we are by strong and manifold

stimulants to our sexual instincts, we cannot bring the

force of law to bear upon the publication of a book on the

ground that its effect on a reader may be that of ‘‘arousing

him to libidinousness.”’

Nor do the references, in the prurient interest formula,

to ‘‘the average person’’ and to ‘‘contemporary commu-

nity standards’’ imply a broader brush of condemnation.

——

—_—

The theme of the portion of the Roth and Alberts opinion

in which the prurient interest test is stated is the final re-

jection of the Hicklin rule (354 U.S. 476, at 488-489).

Hicklin had notorious weaknesses: (a) it stressed isolated

excerpts of the book in question; (b) it judged those ex-

cerpts by their effect on the particularly susceptible, and

time, place and circumstances. The courts that refused to

follow Hicklin, as the Roth and Alberts opinion says, (a)

considered the book as a whole, (b) judged it according to

its effect upon the normal healthy adult rather than upon

the particularly susceptible, and (c) stressed current mores

and reading habits as distinguished from the notions of

propriety entertained by British judges of the mid-nine-

teenth century. This Court’s use of the term ‘‘average

person’’ was designed to remedy the second weakness of

the Hicklin rule, and the use of the term ‘‘contemporary

community standards’’ was designed to remedy the third.

The Court’s repudiation of the Hicklin doctrine did not

permit its replacement with a rule by which an ‘‘average’’

notion of what is objectionable should control the freedom

to write and be read. Such a rule would forbid dissent in

matters of taste, and would impose a tyranny no less re-

pugnant to the constitutional guaranties than that imposed

by Hicklin. It would be a direct contradiction of the

Court’s declaration that ‘‘All ideas . . . even ideas hateful

to the prevailing climate of opinion—have the full protec-

tion of the guaranties ...’’ (354 U.S. 476, 484).

The negation of the Hicklin test expressed in the phrases

‘‘average person’’ and ‘‘contemporary community stand-

ards’’ does not mean that the rights guaranteed by the

First Amendment are to be determined by conducting a

Gallup poll among the population at large. Where a stat-

ute purports to control general publication, the reference

to ‘‘the average person’’ excludes as criteria the possible

responses and attitudes of specia! elements of the popula-

tion. (A less intrusive statute, which might, for example,

regulate sales to children, is to be distinguished from a

statute that suppresses publication altogether.) The ref-

erence to ‘‘contemporary community standards’’ fixes at-

tention on the historic fact that standards change. The

phrases were meant, we submit, to make clear that it is

today’s normal adult reader who is to be kept in mm:-

they were not meant to limit writers and publishers to an

average notion of what ought to be published, or to limit

a minority of readers to what a majority might think good

for them. The Court was not seeking to chain creative

minds to the dead center of convention at a given moment

in time.

The newspaper clippings and the magazines that are in

evidence deal with the Profumo affair. They are illustra-

tive of the contemporary community standards and the cus-

tomary limits of candor that form the trame of reference

for the application of the prurient interest test. They dem-

onstrate the broad range of public tolerance toward read-

ing materials. Newspapers and magazines, at about the

time of the publication of the book in question, put before

the public material remarkably similar to what is objected

to in the book. Readers saw daily descriptions of prosti-

tution, orgies, lesbianism, voyeurism, flagellation and other

sexual excesses. It can hardly be maintained that what

may be presented as present-day fact .to the entire public

may not be presented as two-hundred-year-old fiction to the

book-buying portion of the public.

The entire discussion in the opinion of the majority

below as to how it arrived at the conclusion that Memoirs

fails the prurient interest test is as follows:

‘‘We have no doubt that the dominant theme of

Memoirs appeals to prurient interest. The book is

composed almost entirely of a series of episodes in-

volving Lesbianism, voyeurism, prostitution, flagella-

tion, sexual orgies, masturbation, fellatio, homosexu-

ality, and defloration, all of which ‘goes substantially

beyond customary limits of candor in describing or

representing such matters.’’’ (App. p. 38.)

From the catalog of episodes one may perhaps infer that

it is the presence of aberrations that influenced the court.*

| We submit that the itemization does not constitute an ac-

curate description of the book. The principal sexual in-

terest of Memoirs is a normal heterosexual interest, and,

as a number of the witnesses pointed out, Fanny Hill ex-

tols the normal sexual relationship and scorns the deviant.

In any event, however, it is fundamental that no subject

matter as such is excluded from the First Amendment

guaranties. As to the way in which the subject matter is

presented, we submit that Memoirs does not go ‘‘substan-

tially beyond customary limits of candor’’, as those limits

have been fixed by contemporary literature that is re-

putably published and publicly accepted.

Possibly the crucial words are ‘‘almost entirely’’. They

suggest that the majority below based its conclusion on

the amount of sexual material in Memoirs. But surely

the extent to which a book deals with sex cannot determine

the application of the test. If a book does not have that

quality of essential nastiness and morbidity which identifies

appeal to prurient interest, the quantity of sexual mate-

rial in the book will not create it. Prurience is not a matter

of arithmetic.

Earlier in its opinion, the majority states: ‘‘The fact

that Memoirs may arouse sexual thoughts and desires is

hi el

*It may be noted that the court’s list is very similar to the sum-

mary above of the items contained in the Profumo newspaper

reports.

not, in itself, sufficient to deprive it of its constitutional

protection’’ (App. p. 37). The statement is unexception-

able, but the opinion does not otherwise make a case for

condemnation under the prurient interest test. With all

the respect due a distinguished court, it would seem that,

despite the disclaimer, the majority found Memoirs pru-

rient because it found Memoirs erotic. But whatever the

reasoning behind the majority’s elliptical statement, the

conclusion it reached necessarily involves a departure from

the prurient interest standards as they were set forth in

Roth and applied in the subsequent per curiam decisions of

this Court.

3. MEMorRsS IS ENTITLED TO CONSTITUTIONAL PROTECTION

UNDER THE PATENT OFFENSIVENESS TEST.

The term ‘‘patent offensiveness’’ is given definition by

the facts of the case in which it first appeared. Apart from

the effect of the Manual Enterprises publications upon

those ‘‘unfortunate persons whose patronage they were

aimed at capturing’’ (370 U.S. 478, 490), it is apparent

from the descriptions of the publications (370 U.S. 478, 489-

490, 526-527) that most adults would, as the Court did,

recognize them for what they are. ‘‘Patent offensiveness’’,

then, necessarily means something quite beyond a violation

of standards of propriety or good taste. Not everything

that the average person finds offensive can be called ‘‘pat-

ently offensive’’ within the meaning of Manual Enterprises.

But, even if we were considering standards of taste rather

than standards of constitutional law, Fanny Hill would

do well:

‘¢ , . she never utters an obseene word, rarely de-

scends even to colloquialism, never to the clinical; she

indeed writes an elaborate literary language that

would do credit to any master of baroque and poetic

utterance—shall we say Henry James?—spoken in a

drawing room. And it is not shabby baroque.’’ (Prit-

chett, R. 32.)

‘‘Mercifully not ‘robust’, or Rowlandsonian, [Cle-

land] is decorous not merely in vocabulary but down to

the last cadence of his fine, plain prose.’’ (Brophy,

R. 40-41.) |

‘¢. . , in an age when even serious authors treat the

sexual act in terms of a case history or social protest

(and the Olympis Press’s professional pornographers

are driven to exploit De Sadean whips, chains and

intricate multiple interlacings to keep ahead of the un-

censored press), Fanny Hill’s straightforward hetero-

sexuality must come as a shock. None of her esca-

pades, for instance, are as unsavory as the AC-DC

boy-meets-boy encounters of James Baldwin’s ‘An-

other Country’, nor are they as grubbily explicit as the

climactic sexual passage in Updike’s ‘Rabbit Run.’

‘‘Certainly Fanny was ro common harlot. Her

‘Memoirs’ combine literary grace with a disarming

enthusiasm for an activity which is, after all, only

human. What is more, she never uses a dirty word.’’

(Time, R. 43.)

‘*Cleland was not a great writer, but he was a gifted

one, and in my belief as much entitled to call himself

an artist as Henry Miller. The chief difference be-

tween them is that Cleland presented normal sexual

relations for what they are—the intensest pleasure

man derives from his senses; Miller makes them revolt-

ing. I would prefer to have a child of mine read

Cleland than Miller.’’ (Adams, R. 29.)

ae BOGE ES OE

_ —

‘‘Patent offensiveness’’ may perhaps be found in a work

such as Tropic of Cancer, a work entitled to protection for

other reasons. But the term cannot appropriately be ap-

plied to Memoirs. Certainly erotic in subject matter, it is

just as certainly, in its patent qualities, free from the ex-

treme offensiveness that Manual Enterprises contemplates.

With respect to this test, the majority below, referring

to the sentence supporting its conclusion on prurient in-

terest, said only:

‘‘Wor the same reason, we hold Memoirs to be such

an affront to current community standards as to con-

stitute ‘patent offensiveness.’ ’’

This would make patent offensiveness turn on subject

matter rather than on patent characteristics, and negate

the point of Manual Enterprises that the question of pat-

ent offensiveness is not the same as the question of appeal

to prurient interest.

4. Memoirs IS ENTITLED TO CONSTITUTIONAL PROTECTION

UNDER THE SOCIAL VALUE TEST.

Although the formulation of the prurient interest test

attracted a great deal of attention, the Roth and Alberts

opinion contained another, more fundamental, limitation

on anti-obscenity legislation. The statute in each case was

attacked as unconstitutional in toto and there was no other

issue. The majority accordingly undertook a comprehen-

sive statement of the reasons why the First Amendment

does not protect obscene material, and this necessarily en-

tailed a description of just what this unprotected material

is.

The majority held that it has two characteristics. One

is its appeal to prurient interest, discussed above. The

_ es

other is its utter worthlessness. It is not every worthless

publication, of course, that the statutes can affect; it must

be a publication that appeals predominantly to prurient

interest. Nor is it every publication considered prurient

that the statutes can affect; it must be a publication ‘‘ut-

terly without redeeming social importance.’’ For unless

the publication is worthless trash, it is not possible to jus-

tify its suppression in the face of a Constitution that for-

bids abridgement of freedom of the press.

Laws affecting speech or writing have, of course, been

held to have a valid operation in spite of the First Amend-

ment guaranties. The Roth majority referred to cases that

had so held. The cited cases involved situations in which

the speech or writing amounted to conduct rather than ex-

pression, or was so entwined with conduct that the behav-

ioral rather than the expressive aspect dominated.* Pro-

hibitory laws might also operate where material is so

utterly devoid of value that it need not be regarded as

speech or writing at all. This last category provided both

*United States v. Harriss, 347 U.S. 612 (disclosure provisions

of the Federal Lobbying Act) ; Breard v. Alexandria, 341 U.S. 622

(municipal ordinance prohibiting peddlers from calling upon pri-

vate residences without invitation); Teamsters Union v. Hanke,

339 U.S. 470 (state court injunction against picketing) ; Kovacs

v. Cooper, 336 U.S. 77 (municipal ordinance against sound trucks

emitting ‘‘loud and raucous noises’’); Prince v. Massachusetts,

321 U.S. 158 (state statute prohibiting newspaper sale on the streets

by minors) ; Labor Board v. Virginia Electric & Power Co., 314

U.S. 469 (coercion by employer under National Labor Relations

Act; ‘‘. . . conduct, though evidenced in part by speech, may

amount, in connection with other circumstances, to coercion within

the meaning of the Act’’ (p. 477)); Cox v. New Hampshire, 312

U.S. 569 (state statute requiring a license for parade) ; Schenck

v. United States, 249 U.S. 47 (the ‘‘clear and present danger’’

test applied to a conspiracy to circulate materials influencing per-

sons to obstruct a wartime draft). 354 U.S. 476, 484.

——

the constitutional justification for anti-obscenity legislation

and, within the area bounded by the prurient interest

standards, the constitutional definition of obscenity. Anti-

obscenity statutes, the majority held, have a discernible,

though severely limited, validity. Legislatures, in the pur-

suit of goals relating to prevailing concepts of immorality

or offensiveness, may ordain suppression despite the strong

language in which the First Amendment is cast. But

they may do this only with publications that have no social

value, and only because they have no social value.

The First Amendment, of course, has its principal func-

tion where the majority disapproves. Where a work of any

value is in issue, the fact that most of the citizenry views

it as immoral or offensive cannot justify a forcible si-

lencing. On the other hand, it may be said of material

utterly without value that it does not rise to the level of

writing—that is, ‘‘the press’’—within the meaning of the

Constitution. Nothing is lost. Once obscenity is defined

as that which has no value, then—and only then—room can

be found in our constitutional structure for anti-obscenity

legislation. The mark of suppressible obscenity inheres in

the constitutional justification of the suppressive legisla-

tion.

The social value test supplied not only doctrinal validity

but practical workability. The prurient interest test was

itself a significant step toward clarity. The elimination

of the spectacular weaknesses of Hicklin represented an im-

portant gain, and the word ‘‘prurient’’ provided some con-

tent and character where earlier formulas provided only

amorphous emotional connotations. But the prurient in-

terest test, standing alone, left the law to deal with these

grave yet delicate questions in terms of judicial reactions

that must remain largely subjective.

In determining whether a book is prurient or patently

offensive, the court has no evidence apart from the book

itself. Judgment is merely a matter of direct and personal

reaction. There is the challenged book, and the key word,

and the court must decide whether they match or do not

match; there is nothing in between. This is not the kind of

work for which the process of trial is designed. Indeed,

the traditional concept of trial becomes superfluous.

The social value test, on the other hand, adds a criterion

that can be objectively applied, and by a process familiar

to the law. Judges and jurors are no longer committed

to a total reliance on their individual responses. Tradi-

tional judicial techniques come into play. There is evidence

to be considered.

We are now on familiar judicial ground. Questions of

value have long been handled by the courts, and there are

time-tested methods at hand. Value is shown by what has

taken place outside the court, and, at the trial itself, by the

testimony of those who may be qualified as expert in the

field.

Real estate experts, for example, give testimony in con-

demnation cases and in tax cases, and security analysts

estimate earning power in corporate reorganization cases.

Similarly, those who are qualified to speak about the par-

ticular values alleged to reside in a book can offer the

court expert testimony on the point. There are among us

individuals who, by reason of training and experience, are

better qualified than most to appraise the literary or artistic

or other merit of a book. Their opinion testimony pro-

vides the material of decision. Opinion as to value is not,

of course, opinion as to whether a book is prurient or not

prurient, or obscene or not obscene; these words signal

conclusions of law, which are the business of the court, not

of the witness. The function of the witness is to supply

data upon which the court may determine whether the book

aca

has that value which brings it within the protection of the

First Amendment.

Another source of objective evidence is documentary.

Where there are book reviews, or critical essays, additional

data can be presented to the court. The situation is an-

alogous to appraisals made, apart from the litigation,

where economic value is in issue. Material ‘‘utterly with-

out social importance’’ does not become the subject of crit-

ical comment. There naturally will be differences of opin-

ion about any given book, but the fact that there is serious

discussion of the work, by recognized critics and scholars, |

published in established periodicals, is an objective fact of

the utmost significance.

That the presence of value in a book, thus proved, en-

titles it to the protection of the First Amendment has been

the law, we submit, since the date of Roth and Alberts.

Most high state courts that considered the matter agreed,

even before Grove Press and Jacobellis, and those cases

confirmed the proposition.*

In the present case there are both kinds of evidence. Re-

spected critics have written about the book, and what

they wrote is part of the record. In addition, there ap-

peared in court, to face whatever rigors cross-examination

might produce, distinguished faculty members from tke

colleges and universities of the Commonwealth of Massa-

chusetts. Some assign the book a high place in the echelons

of literature. Thus Pritchett feels that Cleland succeeded

where D. H. Lawrence failed (R. 34-35). Holland ranks

Memoirs, among eighteenth-century novels, above Defoe’s

celebrated Moll Flanders (R. 79). Others do not rate the

book so highly. But all of the witnesses and all of the

documentary evidence agree upon the fundamental point:

Memoirs is a work of literature that has considerable

*See cases cited on page 15, above.

—

value.* We respectfully refer the Court to the passages

that are cited in our Statement of Facts above.t

The majority below gave the social value test only grudg-

ing recognition, referring to it as ‘‘one other possible

test’? (App. p. 39). It then formulated the test in a way

which, we submit, negates the decisions of this Court.

The opinion below states that the test does not require that

a book ‘‘must be unqualifiedly worthless before it can be

deemed obscene’’ (App. p. 40). The statement cannot be

reconciled with this Court’s statement that the obscene, in

the constitutional sense, is only that which is ‘‘utterly with-

out redeeming social importance’’. There is no discernible

distinction between the concept of material that utterly

lacks worth and the concept of material that is unqualifiedly

worthless.

The majority below not only contradicted this Court’s

announcement of the applicable principle; it also erred on

*Even opposing counsel were impressed with the values of the

book. The Attorney General’s brief to the Supreme Judicial Court

stated (at pages 6 and 7) that the writing in Memoirs is ‘‘ quite

clever’’; that there is ‘‘frequent use of highly colorful metaphor’’;

that there is no reason to disagree with the expert testimony to the

effect that ‘‘the writing style is artistic’’; and, in a sentence in-

stinct with admiration, that there is ‘‘a comic flair to the writing

that is inescapable’’. Contrast the statement of Chief Judge Des-

mond of the New York Court of Appeals on Tropic of Cancer.

‘*. .. Not only is there in it no word or suggestion of the ro-

mantic, sentimental, poetic or spiritual aspects of the sex relz<ion,

but it is not even bawdy sex or comic sex or sex described with

vulgar good humor... .’’ (People v. Fritch, 13 N.Y. 2d 119,

at 126.)

7 The Attorney General produced one witness in opposition.

His opinions were not so much literary evaluations as legal

conclusions; his concepts, moreover, differed from those of the

courts (R. 23). His misuse of language (R. 20, 22) indicated that

he did not approach the subject with a great deal of detachment.

Finally, he could not recall important aspects and events of the

book about which he was testifying (R. 25).

the constitutional fact of the value to be found in Memoirs,

ascribing to the book only ‘‘some minimal literary value’’

(App. p. 40). A publication might have considerably less

value than the testimony and the documentary evidence

show Memoirs to have and still rise above the level of

‘‘minimal literary value’’.

The opinion below mentions, in slighting, advocates’

terms, that the book ‘‘contains a moral’’ (App. p. 40).

But the critics treated Fanny’s thoughts about life and love

as seriously meant, and entitled to serious reading. Brophy

puts it this way: ‘‘She is unrepentant in pleasure or lust;

but she truthfully perceives—and that, I believe, without

the sort of hypocrisy that greater writers like Defoe or

Richardson insinuated—that she had physical pleasure in

lust but physical, spiritual pleasure in love’’ (R. 32). Sim-

ilarly, Pritchett finds Fanny’s final statement to be ‘‘with-

out, as she rightly claims, hypocrisy. .. .’’ (R. 40). The

witnesses gave more detailed testimony to the same general

effect—that the observations, ideas and moral conclusions

of the book are thoughtful, substantial and perceptive.

(See, for examples, pages 46-47, 61, 70, 73, 96 and 101 of

the Record.)

Referring to the expert testimony, the majority said, in

passing ‘‘much of [it] was strained’’ (App. p. 40). We

respectfully but emphatically disagree. The testimony was

careful and specific. The witnesses were not indulging in

flights of critical fancy. What they had to say made sense

on direct examination, and continued to make sense under

persistent cross-examination. The witnesses are indi-

viduals of high academic standing, who would be most

unlikely to jeopardize that standing by giving sworn testi-

mony that might return to embarrass them. It is one thing

to assert that a book is ‘‘not obscene’’ or ‘‘not porno- |

graphic’’. These are conclusory statements that can al-

ways be defended on semantic grounds. It is quite another

thing for a professional critic or teacher to analyze a book,

to give detailed testimony about what values he sees in it,

and to appraise the book as against other works of litera-

ture. Even if a single individual might conceivably be so

irrational as to do what the majority below suggests, it is

not conceivable that the entire roster of these distinguished

men should be willing to give disingenuous, distorted or

otherwise ‘‘strained’’ testimony.*

*Although it is not part of this record, we invite the Court’s at-

tention to matters of record in other cases involving § © book.

The Publisher defended Memoirs at three trials. Only ‘tree of the

witnesses (including the Publisher’s president) appeas= «| more

than one of the trials. It was not a matter of finding a iew peo-

ple who would be willing to speak in defense. A large number of

highly reputable critics and scholars regarded the book as one that

had considerable merit, and they were willing to say so, under

oath, in court. The following testified in the New York and New

Jersey trials: J. Donald Adams, for many years editor-in-chief of

The New York Times Sunday Book Review; Eric Bentley, critic,

dramatist and Professor of Dramatic Literature at Columbia;

Louis Untermeyer, poet, critic and anthologist; Eliot Fremont-

Smith, book review editor and regular critic for The New York

Times; Clarence Decker, Professor of Literature and Vice-

President at Fairleigh Dickinson; John McCormick, Chairman of

the Department of Comparative Literature at Rutgers; John Hol-

lander, poet and Assistant Professor of English at Yale; Gerald

Willen, Assistant Professor of English at Hunter College; Paul

Fussell, Associate Professor of English and Director of English

Graduate Studies at Rutgers; and David Burrows, Assistant Pro-

fessor of English at Douglas College For Women.

In the one case that involved a motion for preliminary injune-

tion, the following submitted affidavits or letters attesting the

merit of the work: the well-known crities Alfred Kazin, Maxwell

Geismar, Dwight MacDonald and Edward B. Garside, together with

John Gassner, Sterling Professor at Yale, Barbara Epstein, co-

editor of The New York Review of Books, and Norman Podhoretz,

editor-in-chief of Commentary magazine.

It thus appears that in each locality where the book was called

into question there was an ample number of highly qualified people

Moreover, there was corroboration for what the witnesses

said in the published essays of Pritchett, Adams and

Brophy, and in the introduction by Peter Quennell. Cele-

brated critics thus submitted to the judgment of the literary

world opinions very similar to those which the witnesses

submitted to the judgment of the court. In neither case is

it realistic to suppose that the opinion was less than the

best that the writer or the witness had to offer.

5. THE HARD-CORE PORNOGRAPHY TEST LEADS TO THE SAME

RESULT.

If ‘‘hard-core pornography’’ is taken as the definition

of what may be constitutionally suppressed under anti-

obscenity legislation, the result in the present case is the

same. Analytically, the concept appears to involve all three

standards discussed above. That is, it would seem to be a

combination of morbidity, extreme offensiveness and utter

worthlessness that denotes hard-core pornography ; no such

syndrome can be attributed to Memoirs. If the concept is

considered not analytically but empirically, there is a strik-

ing contrast between Memoirs and publications that have

been held to be obscene: see People v. Finkelstein, 11 N.Y.

2d 300, 183 N.E. 2d 661, cert. den. 371 U.S. 863; Burke v.

Kingsley Books, Inc., 208 Mise. 150, 142 N.Y.S. 2d 735, affd.

(on another issue) sub nom. Kingsley Books, Inc., v. Brown,

354 U.S. 436; People v. Sikora, 32 Ill. 2d 260, 204 N.E. 2d

768. And comparison with publications that have been

deemed not obscene appears to exclude the possibility that

ready to testify that Memoirs has substantial value. (Not all

who were willing to testify were used as witnesses.) If they repre-

sented a negligible minority of critical opinion, it is strange that

no member of the hypothetical majority (with the dubious excep-

tion of Dr. Collins) would have appeared to give contrary testi-

mony at any of the three trials.

Memoirs might be deemed hard-core pornography ; we refer

to the various materials in the per curiam reversals that

followed Roth, to the magazine in People v. Richmond

County News, Inc., 9 N.Y. 2d 578, 175 N.E. 2d 681 (see the

description of the magazine at 9 N.Y. 2d 578, 594), to the

rough and shocking Tropic of Cancer of Grove Press, Inc.,

v. Gerstein, 378 U.S. 577, and to the tailored vulgarities of

A Quantity of Books v. Kansas, 378 U.S. 205.

Conclusion.

This appeal poses, in a case where review by the Court

is particularly appropriate, pressing questions with re-

spect to what may be written and published, questions that

involve the meaning of earlier decisions of the Court. We

have suggested answers to those questions, but it is evident

that there is substantial disagreement both among courts

below and within courts below. The resolution of the issues

growing out of the suppression of Memoirs will, we submit,

do much to clarify an important aud troubled field of con-

stitutional law.

Respectfully submitted,

CuarLes Remsar,

Rempar AND Zouorar,

Counsel for Appellant,

521 Fifth Avenue,

New York 17, N.Y.

Appendix.

J UDGMENT-RESCRIPT.

CoMMONWEALTH OF MassACHUSETTS.

SuprEME JupiciaL Court FOR THE COMMONWEALTH,

Ar Boston,

April 22 1965.

IN THE CASE OF

ATTORNEY GENERAL

Vs.

A Boox Namep ‘‘JoHn CLELAND’s Memorrs oF A Woman

or Pueasure.’’ pending in the Superior Court for the

County of Suffolk

ORDERED, that the following entry be made in the docket;

viz.,—Decree affirmed.

By the Court,

/s/ RICHARD A. McLAUGHLIN, Cuerx.

April 22, 1965.

A true copy,

Attest:

RICHARD A. McLAUGHLIN

Clerk of the Supreme Judicial

Court for the Commonwealth

May 24, 1965.

BRIEF STATEMENT OF THE GROUNDS AND REASONS OF THE

DECISION :

See opinion on file.

CoMMONWEALTH OF MAsSACHUSETTS

Suffolk, ss. Superior Court

No. 82126 Kq.

Epwarp W. Brooke,

Attorney General

A Boox Namen, ‘‘JoHN CLELAND’s Memoirs or a Woman

or PiEasurE’’, (CommMonty Known as Fanny Hix)

FinaL DecreEE aFTER REscript

This cause came on at this sitting after rescript from

the Supreme Judicial Court and, pursuant to said re-

script, it is ORDERED, ADJUDGED and DECREED that the book

named ‘‘John Cleland’s Memoirs of a Woman of Pleas-

ure’’, commonly known as ‘‘Fanny Hill’’, is obscene, inde-

cent and impure under the provisions of G. L. ec. 272, $4 280,

28E and 28F, as amended by St. 1945, ¢. 278.

And it is further ORDERED, ADJUDGED, DECLARED and DE-

cREED that the above-named book is not entitled to the pro-

tection of the First and Fourteenth Amendments to the

Constitution of the United States against action by the

Attorney General or other law enforcement officer pur-

suant to the provisions of G. L. ¢. 272, § 28B, or otherwise.

By the Court, (Kalus, J.)

Tuomas F. BropHey

Entered June 10, 1965 .- Asst. Clerk

ae.

OPINIONS OF THE SUPREME JUDICIAL CouRT

ADVANCE SHEETS

AtTToRNEY GeneERAL vs. A Book Namep ‘‘ JOHN CLELAND’s

Memorrs oF A WoMAN OF PLEASURE.’’

Suffolk. January 8, 1965.—April 22, 1965.

Present: Witkins, C.J., Spanpine, Wiairremore, Cutrer, Kirk,

SprpceL, & Rearpon, JJ.

Obscenity, Indecency or Impurity. Book. Constitutional Law,

Freedom of speech, Freedom of the press.

Suit in equity heard in the Superior Court by Macaulay, J.

Spaupine, J. This is an appeal from a final decree hold-

ing the book, ‘‘John Cleland’s Memoirs of a Woman of

Pleasure’’ (Memoirs), more commonly known as ‘‘ Fanny

Hill,’’ obscene, indecent and impure under G. L. ¢. 272,

§§ 28C, 28E, and 28F (inserted by St. 1945, c. 278, § 1).

The petition was brought by the Attorney General. The

publisher of the book, G. P. Putnam’s Sons, intervened as a

party. No jury trial having been claimed under § 28D, the

ease was heard by a judge. The evidence consisted of the

book, various newspaper articles, book reviews and the

testimony of several experts in the field of literature. The

1 Section 28C reads, in relevant part, ‘‘ Whenever there is reason-

able cause to believe that a book which is being imported, sold,

loaned or distributed . . . is obscene, indecent or impure, the at-

torney general . . . shall bring an information or petition in equity

... directed against said book by name.’’ Then follows a pro-

vision relating to a ‘‘reasonable cause’’ hearing, notice to in-

‘ terested persons, and an interlocutory adjudication. Section 28E

provides for an adjudication against the book, in the event of

default, ‘‘if the court finds that the book is obscene, indecent or

impure... .’’ Section 28F provides for a contested hearing.

‘* At such hearing the court may receive the testimony of experts

and may receive evidence as to the literary, cultural or educational

character of said book and as to the manner and form of its pub-

lication, advertisement, and distribution.’’

judge made careful and complete findings of fact and dis-

cussed the relevant law exhaustively.

Memoirs was written in England in 1749. For over two

centuries it has had for the most part a surreptitious circu-

lation. Memoirs has, for example, previously been a source

of litigation in this Commonwealth (see Commonwealth v.

Holmes, 17 Mass. 336), and very recently it has been the

subject of decisions by other courts. See Larkin v. G. P.

Putnam’s Sons, 14 N. Y. 2d 399; G. P. Putnam’s Sons v.

Calissi, 86 N. J. Super. 82.

The sole question is whether the publication of Memoirs

is protected by the First Amendment to the United States

Constitution, as made applicable to the States by the Four-

teenth Amendment. Since a majority of the court held in

Roth v. United States, 354 U. S. 476, 485, ‘‘that obscenity is

not within the area of constitutionally protected speech or

press,’’ the question becomes one of determining whether

or not Memoirs is obscene.

The book takes the form of two letters written by a pros-

titute in which she recounts her life since she, a country

girl, was abandoned in London. It concentrates on her sex-

ual experiences, both normal and abnormal, which are de-

scribed in minute detail. Memoirs, as is conceded by the

intervener, is erotic. Erotica and obscenity, however, are

not synonymous. The fact that Memoirs may arouse sex-

ual thoughts and desires is not, in itself, sufficient to de-

prive it of its constitutional protection. If the contrary

were the case, the public could be deprived of many of the

world’s greatest literary and artistic works. Our task,

then, is to trace, as best we can, the ‘‘dim and uncertain

line’’ which separates obscenity from that which is pro-

tected by the First Amendment. See Bantam Books, Inc.

v. Sullivan, 372 U. S. 58, 66; Jacobellis v. Ohio, 378 U. S.

184, 187. We are under no illusions as to the difficulties

involved in ‘‘facing up to the tough individual problems of

2 7“

constitutional judgment involved in every obscenity case.’’

Roth v. United States, 354 U. S. 476, 498.

The first Supreme Court case to face the obscenity issue

squarely was Roth v. United States, 354 U. S. 476.1. The

majority opinion in that case established the following test:

‘‘whether to the average person, applying contemporary

community standards, the dominant theme of the material

taken as a whole appeals to prurient interest.’’ Id. at 489.

In a footnote the majority clarified what their notion of

‘*prurient’’ was by quoting with approval Am. Law. Inst.,

Model Penal Code, § 207.10 (2) (Tent. draft, No. 6, 1957)

which defined that term as ‘‘. ..a shameful or morbid

interest in nudity, sex, or excretion.’’? Roth v. United

States, supra, at 487, n. 20.

We have no doubt that the dominant theme of Memoirs

appeals to prurient interest. The book is composed almost

entirely of a series of episodes involving Lesbianism, voy-

eurism, prostitution, flagellation, sexual orgies, masturba-

tion, fellatio, homosexuality, and defloration, all of which

‘‘goes substantially beyond customary limits of canuor in

describing or representing such matters.’? Am. Law. Iust.,

Model Penal Code, § 251.4 (1) (Proposed Official Draft,

May 4, 1962). See Jacobellis v. Ohio, 378 U. S. 184, 191.

For the same reason, we hold Memoirs to be such an affront

to current community standards as to constitute ‘‘patent

offensiveness.’’ See Manual Enterprises, Inc. v. Day, 370

U. S. 478, 482. We would reach this result whether we ap-

1This case, as well as all but the most recent authority, is fully

diseussed in Attorney Gen. v. ‘‘Tropic of Cancer,’’ 345 Mass. 11.

We need not, therefore, elaborate upon the general development of

this area of the law.

2The same definition of ‘‘prurient’’ has been adopted by Am.

Law. Inst., Model Penal Code, § 251.4 (1) (Proposed Official Draft,

May 4, 1962).

—

plied local community or national standards. See Jacobel-

lis v. Ohio, supra, at 193 (opinion of Brennan, J.), which

indicates national standards should be used. But see dis-

sent of Warren, C.J., in that case at page 200, which takes

the position that obscenity is to be defined by local com-

munity standards.

There is one other possible test which must be consid-

| ered. The majority opinion in the Roth case went on to

say that ‘‘implicit in the history of the First Amendment

is the rejection of obscenity as utterly without redeeming

social tmportance’’ (emphasis supplied) Id. at p. 484.

While it does not clearly emerge from the opinion whether

| ‘‘social importance’’ is an independent standard, subse-

| quent decisions shed some light on the matter.

In Jacobellis v. Oto, supra, 191 (opinion of Brennan, J.,

concurred in by Goldberg, J.), the view was expressed that

the constitutional status of materia! cannot ‘‘be made to

) turn on a ‘weighing’ of its social importance against its

| prurient appeal, for a work cannot be proscribed unless it

is ‘utterly’ without social importance.’’ See Tralins v.

) Gerstein, 378 U.S. 576 (per curiam), and Grove Press, Inc.

v. Gerstein, 378 U.S. 577 (per curiam). Thus it would ap-

pear that unless a work is ‘‘utterly without social impor-

tance’’ it cannot be deemed obscene. For views which would

extend the constitutional protection even further see Roth v.

| United States, 354 U. S. 476, 508 (dissent of Douglas, J.) ;

Jacobellis v. Ohio, 378 U. S. 184, 196 (opinion of Black, J.) ;

| A Quantity of Books v. Kansas, 378 U.S. 205, 213 (opinion

of Black, J.).

The trial judge, after an exhaustive and able discussion

of the relevant decisions, ruled that the Attorney General,

to maintain his petition, must meet the following three

tests: ‘‘ First, the ‘prurient interest’ test, which, because of

the holding in the ‘Tropic of Cancer’ (345 Mass. 11) case

must be shown to be ‘hard core pornography’; Second, the

‘patent offensiveness’ test; and Third, the ‘social value’

test.’? He further ruled that the ‘‘[flailure .. . to sus-

tain the standards that any one of these tests is designed

for will result in au adjudication that the book... [is

not] obscene in a constitutional sense.’’ Whether the Su-

preme Court of the United States has laid down three inde-

pendent standards, all of which (as the judge ruled), must

be satisfied, need not be decided, for in our opinion Mem-

oirs meets all the tests.1. As indicated above, we have little

doubt that Memoirs’ dominanc theme appeals to prurient

interests and that it is patently offensive.

It remains to consider whether the book can be said to be

‘‘utterly without social importance.’’ We are mindful that

there was expert testimony, much of which was strained, to

the effect that Memoirs is a structural novel with literary

merit; that the book displays a skill in characterization and

a gift for comedy; that it plays a part in the history of the

development of the English novel; and that it contains a

moral, namely, that sex with love is superior to sex in a

brothel. But the fact that the testimony may indicate this

book has some minimal literary value does not mean it is of

any social importance. We do not interpret the ‘‘social

importance’’ test as requiring that a book which appeals to

prurient interest and is patently offensive must be unquali-

fiedly worthless before it can be deemed obscene. Upon a

consideration of all the evidence, including the book, we are

of opinion that Memoirs is not endowed with constitutional

protection.

We have not overlooked the fact that Memoirs was re-

cently held not to be obscene in the constitutional sense by

1A fourth criterion, which involves determining whether mate-

rial is hard core pornography, has been suggested. See Jacobellis

v. Ohio, supra, pp. 184, 197 (opinion of Stewart, J.) ; Attorney

Gen. v. ‘Tropic of Cancer,’’ 345 Mass. 11, 19. But the Supreme

Court has never so held.

a closely divided court in Larkin v. G. P. Putnam’s Sons,

14 N. Y. 2d 399. But the Superior Court of New Jersey

in a well considered opinion has reached a contrary con-

clusion with respect to this book in G. P. Putnam’s Sons v.

Calissi, 86 N. J. Super. 82. We find the reasoning in that

decision and the opinions of the dissenting judges in the

Larkin case more persuasive.

It follows that the entry must be

Decree affirmed.

Wuittemor:, J. (dissenting, with whom Spiegel, J., joins)

This book cannot be ruled to be ‘‘utterly without redeem-

ing social importance.’’ Roth v. United States, 354 U. S.

476, 484. Jacobellis v. Ohio, 37¢ U. S. 184, 191.

In the view of one or another or all of the following viz.,

the chairman of the English department at Williams Col-

lege, a professor of English at Harvard College, an asso-

ciate professor of English literature at Boston University,

an associate professor of English at Massachusetts Insti-

tute of Technology, and an assistant professor of English

and American literature at Brandeis University, the book

is a minor ‘‘work of art’’ having ‘‘literary merit’’ and

‘thistorical value’’ and containing a good deal of ‘‘delib-

erate, calculated comedy.’’ It is a piece of ‘‘social history

of interest to anyone who is interested in fiction as a way

of understanding society in the past.’’* A saving grace is

1Qne of the witnesses testified in part as follows: ‘‘Cleland is

part of what I should call this cultural battle that is going on in

the 18th century, a battle between a restricted Puritan, moralistic

ethic that attempts to suppress freedom of the spirit, freedom of

the flesh, and this element is competing with a freer attitude to-

wards life, a more generous attitude towards life, a more

wholesome attitude towards life, and this very attitude that

is manifested in Fielding’s great novel ‘Tom Jones’ is also

evident in Cleland’s novel. ... [Richardson’s] ‘Pamela’ is the

story of a young country girl; [his] ‘Clarissa’ is the story of

- ee

that although many scenes, if translated into the present

day language of ‘‘the realistic, naturalistic novel, could be

quite offensive’’ these scenes are not described in such lan-

guage. The book contains no dirty words and its language

‘‘functions . . . to create a distance, even when the sexual

experiences are portrayed.’’ The response, therefore, is a

literary response. The descriptions of depravity are not

obscene because ‘‘they are subordinate to an interest which

is primarily literary’’; Fanny’s reaction to the scenes of

depravity was ‘‘anger,’’ ‘‘disgust, horror [and], indigna-

tion.’’? The book ‘‘belongs to the history of English litera-

ture rather than the history of smut.’’?

The book, according to its publisher, has been purchased

by a considerable number of college libraries including

the Harvard and Massachusetts Institute of Technology

libraries. ;

It is not the court’s function to consider whether to agre

or disagree with the appraisal of the book by academic wit-

nesses. The controlling circumstance is that the work is

evaluated by representative scholars and teachers of Eng-

lish literature as a work of some literary and historical sig-

nificance notwithstanding its patently pornographic aspects.

I construe the concept embodied in the term ‘‘social im-

portance’’ as used by the United States Supreme Court to

a woman trapped in a house of prostitution. Obviously, then,

Cleland takes both these themes, the country girl, her initiation

into life and into experience, and the story of a woman in a house

of prostitution, and what he simply does is to take the situation

and reverse the moral standards. Richardson believed that chastity

was the most important thing in the world; Cleland and Fielding

obviously did not and thought there were more important signifi-

eant moral values.”’

2In the opinion of the other academic witness, the headmaster

of a private school, whose field is English literature, the book is

without literary merit and is obscene, impure, hard core pornog-

raphy, and is patently offensive.

include the literary and historical field. Hence, I believe

that the publication of this book is protected by the First

Amendment as expounded in the Supreme Court decisions.

Larkin v. G. P. Putnam’s Sons, 14 N. Y. 2d 399.

I assume that the book would be offensive to some, per-

haps a great many, readers. So are numerous other books

now published that use four letter words freely, portray

sexual encounters explicitly and with a detail of description

far beyond anything used by Cleland, and often appear in-

tendeu to degrade and debase the sexual relationship. A

purpose of some such books appears to be the destruction

of concepts deemed basic to the existing social and moral

order. If the measure intended by the Roth case, supra,

were of possible effect on prevailing values, books like

‘Tropic of Cancer’’ would, I submit, be banned. But on

such a scale ‘‘Fanny Hill’’ appears of slight, if any, weight

and not worth the attention that efforts to ban inevitably

bring. I agree with the opinion in the Larkin case, supra,

that ‘‘[i]t is unlikely ‘Fanny Hill’ can have any adverse

effect on the sophisticated values of our century.’’ 14

N. Y. 2d 399, 403-404.

Freedom to read, as I construe it, means that such a book

as this is to be available to those who wish to read it and

that the persisting urge of others to bar its publication is

effectively restrained. There is, of course, no obligation

upon any member of the general public to read this book.

Currer, J. (dissenting) I disagree with the majority

opinion for reasons in part somewhat different from those

stated by Mr. Justice Whittemore and Mr. Justice Spiegel.

The book seems to me offensive and unpleasant in numer-

ous respects. In my opinion, it could reasonably be found

that distribution of the book to persons under the age of

eighteen would be a violation of G.L. ec. 272, § 28,’ as tending

Section 28 (as amended through St. 1959, ¢ 492, § 1), reads

in part as follows: ‘‘Whoever sells or .. publishes for the

“7

to corrupt the morals of youth. Despite the propensity of

some young people to regard forbidden territory as a chal-

lenge to its exploration, it is not for the courts to determine

whether it is wise to seek to prevent sale of such a book to

persons under eighteen. I perceive no constitutional ob-

stacle to treating as a criminal offence the sale of this book

to persons under eighteen.’

It is quite another thing effectually to prohibit sale of

the book to all adults in Massachusetts by declaring the

book to be obscene. This proceeding presents much the

same substantive question involved in Butler v. Michigan,

352 U. S. 380, 382-384. There the Supreme Court of the

United States held that Michigan could not prevent the sale

to adults of a book which might ‘‘have a potentially dele-

terious influence upon youth.’’ Michigan then argued that

it was promoting the public welfare ‘‘by thus quarantining

the general reading public against books not too rugged for

grown men and women in order to shield juvenile inno-

purpose of selling or distributing, to a person under the age of

eighteen years a book . . . which is obscene. . . or manifestly

tends to corrupt the morals of youth . . . shall be punished by

imprisonment in the state prison for not more than five years or

in a jail or house of correction for not more than two and one

half years, or by a fine of not . . . more than five thousand dollars,

or by both such fine and imprisonment in jail or the house of

correction. In order to obtain a conviction under this section,

it shall not be necessary to prove that the book. . . has been

adjudged to be obscene . . . under the provisions of’’ §§ 28C to

28H.

2This, as a practical matter, might cause some booksellers to re-

fuse to sell the book to persons recognizable as minors and to be

somewhat cautious about its distribution. See Lockhart and Me-

Clure, Censorship of Obscenity: The Developing Constitutional

Standards, 45 Minn. L. Rev. 5, 84-87. Although no declaration was

expressly sought that sale of the book might be a violation of § 28,

a determination that the book may not be sold to certain minors is

a lesser form of relief which may be reasonably regarded as in-

cluded in the greater equitable relief asked for under 4 28C.

—

cence.’’? Mr. Justice Frankfurter wisely said of this argu-

ment, ‘‘Surely, this is to burn the house to roast the pig.

[The] legislation [is] not reasonably restricted to

the evil with which it is said to deal. The incidence of this

enactment is to reduce the adult population of Michigan to

reading only what is fit for children. It thereby arbi-

trarily curtails one of those liberties of the individual, now

enshrined in the Due Process Clause of the Fourteenth

Amendment, that history has attested as the indispensable

conditions for the maintenance and progress of a free so-

ciety.’’ Here the effort is so to apply the provisions of

¢. 272, §§ 28C-28H, as amended (see also §¢ 28, 28A, and

28B), as to deprive adults of the opportunity to read writ-

ten material which, in the opinion of some members of

the academic community, has some historical, literary, so-

ciological, or entertainment interest. Although the book

seems to me pretty sorry material, there is no accounting

for tastes. It is irrelevant that the taste of those who wish

to read this tawdry writing seems deplorable to judges, or

to prosecutors, or to persons of conventional habits, or to

volunteer guardians of the morals of other adults. Al-

though this book appears to me to have substantially less

literary excuse than the book discussed in Attorney Gen. v.

“Tropic of Cancer,’’ 345 Mass. 11, it cannot be said to be

“utterly without redeeming social importance.’’ As I read

the recent United States decisions, they declare in effect (if

not in words) that to justify literary censorship there must

be absent any form of worth. See Jacobellis v. Ohio, 378

U.S. 184, 191-192.

I would (a) limit the relief granted to a declaration that

distribution of this book to persons under the age of eight-

een may be found to constitute a violation of ¢. 272, § 28, if

that section is reasonably applied, and (b) expressly de-

clare that, in view of the First Amendment, the book can-

not be adjudged ‘‘obscene’’ in the sense in which that term

———

has been used in recent constitutional decisions of the Su-

preme Court of the United States.

Charles Rembar of New York (Reuben Goodman with

him) for the intervener.

William I. Cowin, Assistant Attorney General (John E.

Sullivan, Assistant Attorney General with him), for the At-

torney General.

Henry P. Monaghan for the Civil Liberties Union of

Massachusetts & others, amici curiae, submitted a brief.

Statutory Appendix.

GeneERAL Laws, CHaptTerR 272.

Section 28B. Whoever imports, prints, publishes, setls,

loans or distributes, or buys, procures, receives, or has in

his possession for the purpose of sale, loan or distribution,

a book, knowing it to be obscene, indecent or impure, or

whoever, being a ‘vholesale distributor, a jobber, or pub-

lisher sends or delivers to a retail storekeeper a book,

pamphlet, magazine or other form of printed or written

material, knowing it to be obscene, indecent or impure,

which said storexeeper had not previously ordered in writ-

ing, specifying the title and quantity of such publication

he desired, shall be punished by imprisonment in the state

prison for not more than five years or in a jail or house of

correction for not more than two and one half years, or by a

fine of not less than one hundred dollars nor more than five

thousand dollars, or by both such fine and imprisonment

in jail or the house of correction. [As amended by St.

1960, ec. 311.]

Section 28C. Whenever there is reasonable cause to

believe that a book which is being imported, sold, loaned

or distributed, or is in the possession of any person who

intends to import, sell, loan or distribute the same, is ob-

scene, indecent or impure, the attorney general, or any

district attorney within his district, shall bring an informa-

tion or petition in equity in the superior court directed

against said book by name. Upon the filing of such infor-

mation or petition in equity, a justice of the superior court

shall, if, upon a summary examination of the book, he is of

opinion that there is reasonable cause to believe that such

book is obscene, indecent or impure, issue an order of

notice, returnable in or within thirty days, directed against

such book by name and addressed to all persons interested

in the publication, sale, loan or distribution thereof, to show

cause why said book should not be judicially determined

to be obscene, indecent or impure. Notice of such order

shall be given by publication once each week for two suc-

cessive weeks in a daily newspaper published in the city of

Boston and, if such information or petition be filed in any

county other than Suffolk county, then by publication also

in a daily newspaper published in such other county. A

copy of such order of notice shall be sent by registered mail

to the publisher of said book, to the person holding the

copyrights, and to the author, in case the names of any such

persons appear upon said book, fourteen days at least

before the return day of such order of notice. After the

issuance of an order of notice under the provisions of this

section, the court shall, on motion of the attorney general

or district attorney, make an interlocutory finding and

adjudication that said book is obscene, indecent or impure,

which finding and adjudication shall be of the same force

and effect as the final finding and adjudication provided in

section twenty-eight E or section twenty-eight F, but only

until such final finding and adjudication is made or until

———

further order of the court. [As inserted by St. 1945, c. 278,

§1.]

Section 28D. Any person interested in the sale, loan or

distribution of said book may appear and file an answer on

or before the return day named in said notice or within

such further time as the court may allow, and may claim

a right to trial by jury on the issue whether said book is

obscene, indecent or impure. [As inserted by St. 1945,

ce. 278, § 1.]

Section 28E. If no person appears and answers within

the time allowed, the court may at once upon motion of the

petitioner, or of its own motion, no reason to the contrary

appearing, order a general default and if the court finds

that the book is obscene, indecent or impure, may make an

adjudication against the book that the same is obscene,

indecent and impure. [As inserted by St. 1945, c. 278, § 1.]

Section 28F. If an appearance is entered and answer

filed, the case shall be set down for speedy hearing, but a

default and order shall first be entered against all persons

who have not appeared and answered, in the manner pro-

vided in section twenty-eight E. Such hearing shall be

conducted in accordance with the usual course of proceed-

ings in equity including all rights of exception and appeal.

At such hearing the court may receive the testimony of ex-

perts and may receive evidence as to the literary, cultural

or educational character of said book and as to the manner

and form of its publication, advertisement, and distribution.

Upon such hearing, the court may make an adjudication in

the manner provided in said section twenty-eight E. [As

inserted by St. 1945, c. 278, § 1.]

Section 28G. An information or petition in equity under

the provisions of section twenty-eight C shall not be open

to objection on the ground that a mere judgment, order or

decree is sought thereby and that no relief is or could be

claimed thereunder on the issue of the defendant’s knowl-

iam

edge as to the obscenity, indecency or impurity of the book.

[As inserted by St. 1945, c. 278, § 1.]

Section 28H. In any trial under section twenty-eight B

on an indictment found or a complaint made for any

offence committed after the filing of a proceeding under

section twenty-eight C, the fact of such filing and the ac-

tion of the court or jury thereon, if any, shall be admissible

in evidence. If prior to the said offence a final decree had

been entered against the book, the defendant, if the book be

obscene, indecent or impure, shall be conclusively presumed

to have known said book to be obscene, indecent or impure,

or if said decree had been in favor of the book he shall be

conclusively presumed not to have known said book to be

obscene, indecent or impure, or if no final decree had been

entered but a proceeding had been filed prior to said offence,

the defendant shall be conclusively presumed to have had

knowledge of the contents of said book. [As inserted by

St. 1945, c. 278, § 1.]

GeneraL Laws, Cuapter 231A.

Section 1. The supreme judicial court, the superior

court, the land court and the probate courts, within their

respective jurisdictions, may on appropriate proceedings

make binding declarations of right, duty, status and other

legal relations sought thereby, either before or after a

breach or violation thereof has occurred in any case in

which an actual controversy has arisen and is specifically

set forth in the pleadings and whether any consequential

judgment or relief is or could be claimed at law or in equity

or not; and such proceeding shall not be open to objection

on the ground that a merely declaratory judgment or decree

is sought thereby and such declaration, when made, shall

have the force and effect of a final judgment or decree and

be reviewable as such; provided, that nothing contained

herein shall be construed to authorize the change, extension

or alteration of the law regulating the method of obtaining

service on, or jurisdiction over, parties or affect their right

to trial by jury. When a declaration of right, or the grant-

ing of further relief based thereon, shall involve the deter-

mination of issues of fact triable by a jury as of right and

as to which a jury trial is duly claimed by the party en-

titled thereto, or issues which the court, in accordance with

the practice of courts of equity, considers should be tried

by a jury, such issues may be submitted to a jury in the

form of questions, with proper instructions by the court,

whether a general verdict be required or not. [As inserted

by St. 1945, c. 582, § 1.]

Section 6. In an action at law or suit in equity hereto-

fore or hereafter brought to obtain a judgment or other

consequential relief, whether such judgment or relief is

granted or not, the court may make a binding determina-

tion as provided in this chapter upon application of any

party made in his declaration, bill, petition or answer. [As

inserted by St. 1945, c. 582, § 1.]

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