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

INDEX

PAGE

AppeLLEE’s Point I—Socian Importance .......... 1

AppELLEE’s Point []—Prurient INTEREST .......... 11

AppeLLez’s Pornt I]]—Patent OFFENSIVENESS .... 18

AppELLEE’s Point IV anp CoNCLUSION ............ 20

TABLE OF AUTHORITIES

CasEs

Alberts v. California, 354 U. 8S. 476 ........... 3, 21, 23, 26

Attorney General v. God’s Little Acre, 326 Mass. 281,

EE cs xe cins pain nb kat abe sa eae ee 4

Attorney General v. Tropic of Cancer, 345 Mass. 11,

ED dc din éc ne desisdnccdduauwes 2, 16, 23, 26

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

ei cera ent cutead ca cedhs dba cadena as an 23

Commonwealth v. Eisenstadt, 318 Mass. 546, 62 N. E.

ete heir dade wee daaaenanmess o 4

Commonwealth v. Friede, 271 Mass. 318, 171 N. E. 472 4

Grove Press, Inc. v. Gerstein, 378 U.S. 577 ........ 23

Grove Press, Inc. v. Christenberry, 276 F. 2d 433 .... 10

Jacobellis v. Ohio, 378 U. S. 184 .............. 2, 20, 21,23

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

IN des aicnsar eee acc hawdaeevenee ts 22, 23

|

ii

PAGE

Manual Enterprises, Inc. v. Day, 370 U.S. 478 ...... 18, 19

McCauley v. Tropic of Cancer, 20 Wis. 2d 134, 121

Dy, We SD dkcdcotactivessveesbattandkedéeenbus 23

Mounce v. United States, 355 U.S. 180 ............ 22

One, Inc. v. Olesen, 355 U.S. 371 2.2... cece eeeceene 21

Panhandle Oil Co. v. Mississippi ex rel. Knox 277

5 Sf errr rer errs Tre rer rrr ree 25

People v. Bookcase, Inc., 14 N. Y. 2d 409, 201 N. E.

ED pin koh coh th dkd ee ant aetna ss ibe a 24

People v. Bruce, 31 Ill. 2d 459, 202 N. HE. 2d 497 .... 23

People v. Fritch, 13 N. Y.2d 119,192 N.H.2d713.... 28

Roth v. United States, 354 U.S. 476 . .2, 6, 11, 15, 18, 20, 21,

23, 26

Sunshine Book Co. v. Summerfield, 355 U.S. 352 .... 21

Times Film Corp. v. Chicago, 355 U.S. 835 ........ 21

United States v. Ulysses, 72 F. 2d 705 ............ +

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

ount. Gem, TIS Gi, BT bedcccasvaeusevienvtusers 23

MISCELLANEOUS

Pegis, Basic Writings of St. Thomas Aquinas (Ran-

dom Towne; 1965, Vel. 3) cc ccccccccisssccasecs 16

Rommen, In Defense of Natural Law, in Law and

Philosophy (New York University Press, 1964)... 16

Supreme Court of the United States

OCTOBER TERM, 1965.

A Book Namep ‘‘JoHN CLELAND 1s |

Memorrs or A Woman oF PLEASURE’’,

G. P. Putnam’s Sons

(INTERVENOR),

Appellant,

> No. 368.

v.

ArrornEy GENERAL OF THE ComMMON-

WEALTH OF MASSACHUSETTS,

Appellee.

REPLY BRIEF FOR APPELLANT

APPELLEE’s Pornt I—Soctat Importance!

Appellee, we suggest, reads too quickly. He speaks at

one point of what may be found if the book is opened ‘‘at

random’’ (7), and at another he refers to ‘‘any given

twenty-page section’’ (13). He dwells on the subject matter

of the book, while he neglects its qualities as literature

and ignores the observations and reflections, large and

small, that would impress a reader proceding at normal

pace. The attitude adopted by Appellee is that of the

browser rather than the reader. This affects his entire

argument.

It is also affected by the fact that Appellee imports ele-

ments of the prurient interest test and the patent offensive-

1For convenience, this reply brief follows the outline of the

Brief for Appellee. Numbered references are to pages of the Brief

for Appellee, unless otherwise indicated.

2

ness test into the discussion of social value. He argues,

under this head, that Memoirs describes sexual relations ‘‘in

an uncommonly explicit manner’’ (7) and cites the took’s

‘*power to arouse’’ (10), having quoted the trial justice to

this effect (9).2 These items are relevant, if at all, to the

tests of prurient interest and patent offensiveness. Whether

a book has the literary or scientific or artistic value that

constitutes social importance is the sole inquiry on the pres-

ent point. Appellee recognizes this, and states that ‘‘ma-

terial containing some redeeming features or ‘social value’

must be accorded the guaranties of the First Amendment”’

and that only ‘‘material utterly lacking in such value’’ may

‘‘constitutionally be suppressed’’ (5). Yet Appellee con-

tradicts his own statement of the standard; he would deny

that there is value in the book because, he asserts, it is ex-

plicit and sexually stimulating.

Appellee’s argument here is affected, again, by his re-

duction of the social value test to a level where it would

protect only ‘‘ideas’’ in an extremely restricted sense (8, 9,

10). He would confine social importance to the expository

communication of ideas, and exclude literary and artistic

values. This position contradicts the statement of Jacobellis

(which Appellee cites) ‘‘that material dealing with sex in

a manner that advocates ideas ... or that has literary or sci-

entific or artistic value or any other form of social impor-

tance, may not be branded as obscenity and denied the

constitutional protection’’ (378 U. S. 184, 191; emphasis

supplied ).*

2The Findings, Rulings and Order of the trial justice are, we

submit, full of error. An indication is seen in the trial justice’s

statement (R. 113) that ‘‘This ‘book is pitched at the nadir of

seatology’....’’ There is, of course, no scatology in Memoirs.

3 As well as the statement of the Massachusetts Supreme Judi-

cial Court, in Attorney General v. Tropic of Cancer, that ‘‘the First

Amendment protects material which has value because of ideas,

news, or artistic, literary, or scientific attributes .. .’’ (345 Mass. 11,

19, 184 N. E. 2d 328, 333).

-

Appellee distorts the social vaiue test in other ways. His

argument implies that the test demands greatness in a

work. Appellee compares Memoirs ‘‘to a masterpiece such

as Ulysses’’ (8) ; complains that ‘‘Cleland was in no way a

major or even a comparatively significant figure in

eighteenth-century English literature’ (8); and speaks

of what the ‘‘relative merit’’ of the book may be (9). But

a standard that preserves First Amendment protection for

all material except that which is ‘‘utterly without social

importance’’ does not distinguish between major and minor

writers, nor does it confine its protection to ‘‘master-

pieces’’.* Appellee’s argument here represents a reversion

to the pre-Roth notion that, among works which might be

deemed sexually stimulating, only ‘‘classics’’ were beyond

the reach of anti-obscenity statutes. At least since the

time of Roth and Alberts, it has been the law that if a work

has a demonstrated literary value, the First Amendment

| applies, and the precise place of the work in the ranks of

| literature—a place which, experience shows, may vary

widely from generation to generation—is of no constitu-

tional concern.

3

Appellee also argues that Memoirs has not been included

in college reading lists or general collections (8). We sug-

gest that it is not realistic to attribute this to lack of merit.

Moreover, Appellee’s statement can refer only to the past;

the fact that many college libraries have ordered copies of

the book (R. 83) indicates that it will not hold good for the

future. The book is unlikely to appear in undergraduate

curricula, but it might very well be included in graduate

studies. Finally, and fundamentally, the question in a case

such as this one is not whether the work should be read in

* When Appellee says that Cleland was not a ‘‘major’’ figure,

we can agree; when he says that ‘‘Cleland was in no way . . . even

a comparatively significant figure in eighteenth-century English

literature’’, he is making a statement that is contrary to the record

(R. 28-31, 55-56, 72, 88).

4

college courses, but whether government, state or federal,

should be permitted to decree its total suppression.®

Appellee assumes that if the values of a work are ap-

parent only to better-educated readers, then those values

need not be recognized for constitutional purposes (8),

This would make the average person (or possibly the per-

son below average) the judge of what books have sufficient

merit to be preserved against suppression. The argument

both borrows and alters a concept taken from the prurient

interest test, and it works an extreme distortion upon the

concepts of literary and artistic value. Appreciation of

art and literature can often be gained only through an

expenditure of effort; a certain level of cultivation or a

certain amount of background may be required. The best

of painting and music and writing demands an active

participation on the part of the viewer or listener or reader.

It is easy to be entertained; it is not always easy to

attain the deeper satisfactions that art affords. Instances

abound of works, acknowiedged to be valuable, whose appre-

ciation can be a difficult matter. Indeed, Appellee himself

cites one of them: the merits of Ulysses are not apparent

to the average reader, or even to many whose education in

5 Appellee seeks to make a point of the fact that, until recently,

the circulation of the work has been ‘‘for the most part clandestine”’

(6). Examples of works of value whose circulation has, by force

of law, been kept claidestine are of course plentiful. Appellee’s

own state sunpiies examples: Theodore Dreiser’s An American

T-ayedy (271 Mass. 318, 171 N. E. 472), Lillian Smith’s Strange

Fruit (318 Mass. 546, 62 N. 10. 2d 840), Erskine Caldwell’s God’s

Little Acre (326 Mass. 281, 93 N. E. 2d 819). Ulysses and Lady

Chatterley’s Lover are other examples, and, in connection with

the former, Judge Augustus H.nd’s observation may be recalled:

‘« . . The foolish judgments of Lord Eldon about one

hundred years ago, proscribing the works of Byron and

Southey, and the find‘ng by a jury under a charge by Lord

Denman that the publica.ion of Shelley’s ‘Queen Mab’ was

an indictable offense are a war.ing to all who have to deter-

mine the limits within which iwuthors may exercise them-

selves ...’’ (United States v. Uly'sses, 72 F. 2d 705, 708).

5

literature is considerably above average. If the necessary

degree of education has not been attained, a great work

may only be puzzling, or boring.

We do not concede that the merits of Memoirs are so

arcane. An attentive reading, of the whole book, is all that

is required, not a course in eighteenth-century literature.

Memoirs is not great literature, but its values as literature

are substantial, and not at all difficult for the serious reader

to appreciate. But if the values of the work were apparent

only to a learned few, that fact would not prove the utter

absence of social importance. The First Amendment pro-

tects works whose values may be apparent only to a minor-

ity. There is no snobbishness in this principle; on the

contrary, it is part of the prescription for a healthy

democracy.

Appellee mentions ‘‘intellectual contortions of expert

witnesses’’ and ‘‘intellectual strain’’ (7). We refer to the

material on pages 26 and 27 of our main brief, and submit

that a reading of the testimony, and of the documentary

evidence, reveals no contortions and no strain. The values

that are pointed out can be seen by any careful reader of

the book; he need not be a professional scholar or critic.

Appellee treats the phrase ‘‘redeeming social import-

ance’? as though the redemption of material dealing with

sex can be accomplished only by the inclusion, in the same

work, of material dealing with other subjects (10). He

asserts (incorrectly, we submit) that ‘‘material other than

sexual description is totally lacking’’ in Memoirs. By way

of contrast, he finds the redemption of Lady Chatterley’s

Lover in ‘‘the author’s reactions to the effects of industri-

alization in England’’ and of Tropic of Cancer in its ‘‘ex-

cellent descriptions of Paris and many pages of Miller’s

interesting philosophy’’ (9). Appellee thus interprets the

social value test to mean that sex can be the subject of a

book only if the book has other subjects as well; the writer

must pay a toll of non-sexual material when he wishes to

write about sex. If the point had any relevance, it would

6

be to the prurient interest test. It surely cannot affect the

literary merit of a book that it deals with one subject rather

than another, nor will this Court accept the notion that the

subject of sex is an unirportant one (Roth v. United States,

354 U.S. 476 487).

Appellee charges that the ‘‘book has litile more than the

bare outline of a plot?’ (8). Elaborate plotting may often

be appropriate, but it i$ certainly not a necessary element

in a work of literature. Early novels are often collections

of episodes, and, to move to the twentieth century, it is

difficult to give a coherent summary of the plot of Tropic

of Cancer, or of other impressionistic writing whose merit

has been recognized. But the fact is that Memoirs has a

definite plot, which involves not only the heroine’s expe-

riences, but also the growth of her understanding and the

maturing of her character (R. 42-43, 54-55, 59-64, 73).

Appellee next says:

‘‘Character development, despite some suggestions

by expert witnesses appearing on behalf of the pub-

lisher, is practically non-existent. Individuals ap-

pear primarily a8 good or bad, clever or dull, ete.

Fanny herself grows in experience, but changes little

if at all in character. Descriptions of skill and con-

sequence are coDfined entirely to sex portrayals;

they are not deyted at all to places, and rarely to

people.’’ (8)

In stating that there ate ‘‘descriptions of skill and conse-

quence’’ in the sex pertrayals, Appellee, we suggest, is

stating himself out of court. Assuming that a work were

devoted entirely to ‘‘sex portrayals’’, still it would not

be subject to suppressi°D if it were at the same time “<lit-

erature of skill and c@msequence’’, Indeed, in speaking

of ‘‘consequence’’, Appellee has chosen a synonym of

‘‘importance’’,

But in any event the quoted passage is inaccurate

from beginning to end- It cannot be made to jibe with

any sort of fair reading Of the book. Appellee is simply

—

7

not describing the book before the Court. Fanny herself

is a sharply delineated character. Often capricious in her

actions, she is conscious of her faults, introspective and un-

sparing about her motives. She is acute in her observation

of people; generally tolerant, she is capable of indignation.

She displays a democratic bias—an emphasis on the charac-

ter of an individual as distinguished from his station in

society—that is particularly interesting in the period of

sharp social differentiation in which the book was written.

Combining a natural lustiness with a respect for the proc-

esses of intellect, she represents, in these aspects, a model

of the Enlightenment.

Charles displays tenderness and fidelity, and, in the

beginning, he is able to teach Fanny about the world. But

he has faults, and Fanny is conscious of them. He is care-

less with money; he is poorly educated; the store of knowl-

edge that he can impart to Fanny is soon learned; and, as

Fanny herself points out, he lacks ‘‘those great and shining

qualities that constitute a genius, or are fit to make a noise

in the world’’ (Ex. A., p. 57). It is characteristic of each

of them that it is Fanny, not Charles, who brings a fortune

to their union.

The fortune comes from Fanny’s older lover, the ‘‘ra-

tional pleasurist’’ (Ex. A, p. 200). He is a self-made man,

a representative of the eighteenth-century entrepreneurial

ideal. His legacy to Fanny, as she recognizes, is more than

money. He teaches her self-respect and the possibilities of

self-improvement. By his example, he shows her the proper

uses of wealth, the importance of dignity, and the values of

moderation. He is the first from whom Fanny derives her

final philosophy that the pleasures of the mind are superior

to the pleasures of the body, and that the two are not in-

compatible, but complementary.

Mrs. Cole is a complicated character, who will not fit into

Appellee’s categories of ‘‘good or bad’’. Scrupulously fair

8

with her girls, she is not above occasionally deceiving a

customer. She teaches Fanny how to take care of herself,

physically and financially. Generally compassionate, she is

nevertheless bitter on the subject of homosexuality: ‘‘* * *

in fine, they were scarce less execrable than ridiculous in

their monstrous inconsistence, of loathing and condemning

women, and all at the same time apeing all their manners,

airs, lips, skuttle, and, in general, all their little modes of

affectation, which become them at least better than they do

these unsex’d male-misses.’’ (Ex. A, pp. 182-183.) Fanny

gains a good deal in understanding from Mrs. Cole, but

later rejects her primitive hedonism.

Fanny’s motivations at the various turns in her history

are plausible and psychologically valid. She is a real per-

son, and not one of the automatons that act out the mechan-

istic trash which occupies so much space on our newsstands.

Through her are presented the observations and reflections

that mark a work of literature.

The many minor characters are described with wit and

perception. Mrs. Jones, Fanny’s first landlady, is totally

motivated by money, ‘‘indifferent ... to every other pleasure

but that of increasing the lump by any means whatever...”

(Ex. A, p. 61). Fanny’s colleague, Emily, is ‘‘one of those

mild, pliant characters that if one does not entirely esteem,

one can scarce help loving, which is not such a bad compen-

sation neither. Owing all her weakness to good-nature,

and an indolent facility that kept her too much at the mercy

of first impressions, she had just sense enough to know that

she wanted leading-strings, and thought herself so much

obliged to any one who would take the pains to think for her

..’? (Ex. A, p. 196).

The flagellant, Mr. Barville, is described with striking

insight. His physical appearance is peculiarly appropri-

9

ate to his sick personality. Fanny makes the interestingly

modern discovery that his cruelty to others comes from

a hatred for himself, and that his masochism (a malady

then not yet named) ‘‘render’d him incapable of receiving

any pleasure till he submitted to the extraordinary means

of procuring it at the hands of pain’’ (Ex. A, p. 168). She

even suggests a possible source of his trouble; he was ‘‘con-

demn’d to have his pleasure lashed into him, as boys have

their learning’’ (Ex. A, p. 167).

These are examples of characterization, not an exhaus-

tive list. (The comments of the witnesses and the critics on

the point appear at R. 28-32, 42-43, 45, 54-57, 64, 67, 74, 87.)

The summaries are enough to demonstrate the inaccuracy

of Appeliee’s statement, but they do not do justice to

Cleland’s work. The book deserves to be read as carefully

as Cleland wrote it.

The culminating idea that Fanny presents—which, as

Appellee puts it, is ‘‘that love is essential to the complete

sexual relationship’’—is, he argues, ‘‘neither original nor

especially profound’’ (8). As to its ‘‘profundity’’, cer-

tainly the idea goes to the heart of the human experience.

As to originality of basic ideas, if that were a requisite,

there would be very few works of fiction that could claim

social importance. It is the philosopher’s function, not the

novelist’s or the playwright’s, to produce major original

ideas. That ambition, jealousy and irresolution can destroy

aman are themes that were thought of and expressed before

Macbeth, Othello and Hamlet were written.

The idea, says Appellee, ‘‘could have been presented

just as forcefully with a fraction of the erotica ...’’ (8).

And he objects that the ‘‘sexual portrayals are included not

to illustrate a theme, but for their own sake and interest”’

(8). But this is a novel, not a tract. Indeed, it is a fre-

quently-encountered criticism of unsuccessful novels that

they constitute argument with examples attached, rather

10

than products of the art of fiction.* Moreover, Appellee is

prescribing a course for the writer to follow: he is thus

undertaking a responsibility that is the artist’s own, and

not the government’s.”

Appellee concludes his discussion of social value by re-

peating his two main points. One is that ‘‘Ideas as such

are totally absent in the book before the Court’’ (10). This

is both inaccurate and irrelevant. Memoirs tells us about

people, and how they react to each other; it describes events

and emotions. This is the principal business of fictional

literature. Ideas in the expository sense may often be in-

cluded in fiction, and they are included in this book, as

Fanny generalizes upon her experiences. But even if they

were not, their absence would not prove the absence of value.

What is the ‘‘idea as such’’ in Yeats’ Leda and the Swan,

or in Hemingway’s The Killers?

® Lady Chatterley’s Lover has been adversely criticized for the

very characteristic to which Appellee attributes its protection. Its

tendency to become an exhortatory essay impairs its quality as a

novel. Thus, in reviewing the book for the Washington Post &

Times-Herald (May 3, 1959) Glendy Culligan wrote:

‘*Tt is both ironie and characteristic of Lawrence that his

artistic failure in ‘‘Lady Chatterley’? came not from an

excess of lust but an excess of moral indignation. The early

love scenes achieve a poetic tension which has probably not

been duplicated in English literature, but Lawrence allowed

a vituperative note to destroy the effect of later meetings.

In them, Mellors steps out of character to become the mouth-

piece for Lawrence and for his chronic shrill attack on mod-

ern woman. There, the pulpit replaces the drama.’’

7See Clark, Ch. J., in holding Lady Chatterley’s Lover not

obscene :

‘““* * * Obviously a writer can employ various means to

achieve the effect he has in mind, and so probably Lawrence

could have omitted some of the passages found ‘smutty’ by

the Postmaster General and yet have produced an effective

work of literature. But clearly it would not have been the

book he planned. * * *’’ (Grove Press, Inc. v. Christenberry,

276 F. 2d 433, 438 (2 Cir.).)

11

The other point to which Appellee returns is that the

book is ‘‘a product containing no intrinsic merit other than

its power to arouse.’’ Scanning ‘‘at random”’ will perhaps

produce the impression of the book on which Appellee’s

brief is based. There are of course many sexual incidents,

and detailed descriptions, and if the leaves of the volume

are spun, the impression may well be different from that

which is gained when the book is really read. Appellee re-

fuses to see what each of the qualified witnesses sees in the

book, and what V. S. Pritchett, Brigid Brophy and J.

Donald Adams see in the book, and what any reasonably

attentive reading of the book itself discloses.

APPELLEE’s Pornt []—Prurient INTEREST

Appellee uses the concept ‘‘average person’’ in two

quite different ways. At times he speaks of the impact of

the book on the average person—that is, the person not

particularly susceptible—and this is in accord with the

statement of the prurient interest test in Roth. At other

times he speaks of the average person as the one who will

judge whether the book is obscene, and this, as we have

urged in our main brief, is not the meaning of the prurient

interest test. Page 12 of his brief has the average person

measuring what he reads against contemporary community

standards; Appellee thus transfers to the average person

a function that belongs to the courts. At both pages 11

and 12 of his brief, Appellee contrasts the average person

with the literary expert. But the Publisher’s witnesses

were not called to testify with respect to prurient interest;

they were called to testify with respect to social value. So

far as the prurient interest test is concerned, one who is

highly educated in literature may or may not represent the

“average person’’; similarly, one who is poorly educated

in literature may or may not be ‘‘average’’ in this sense.

The distinction that Appellee draws has no relevance to

the prurient interest test. And, so far as the social value

test is concerned, Appellee’s contrast of the expert with

the average man means that the outcome should be deter-

12

mined by a hypothetical majority, in contravention of the

central meaning of the First Amendment.®

On these same pages, Appellee emphasizes the frequent

appearance and wide distribution of ‘‘sex-filled volumes’’,

It is difficult to see how this helps his case. If it demon-

strates anything, it demonstrates contemporary community

acceptance of the subject of sex in reading matter. More-

over, Appellee’s reference to ‘‘newsstands’’ suggests that

most of what he has in mind is quite different from

Memoirs. The usual newsstand paperback dealing with sex

is not ordered by universities and libraries (R. 83).

On the point cf what the public has become inured to,

Appellee says that the newspaper reports of the Profumo

affair ‘‘do not compare in any way to the descriptions in

Memoirs’’ (13). We respectfully refer the Court to Ex-

hibits C through I (unprinted).°

8 Appellee’s argument et this point seems to derive from older

cases in which literary value was regarded as significant only if

it outweighed lustfulness—an approach which antedates judicial

consideration of the matter in a constitutional context, and which

involves a balancing of interests not appropriate where expression

alone (and not expression mixed with conduct) is at issue.

® They include the following:

‘‘The next witness Margaret Ricardo admitted one con-

vietion for prostitution. She said she and a girl friend and

Ward and another man ali had sex relations in the same

room. ff‘All four together?’ inquired Judge Marshall.

‘Yes.’ {‘ All four of you taking part?’ the judge persisted.

‘Yes.’ ‘What happened in the room with the four of

you together?’ the judge continued. ‘Anything beyond

sexual intercourse?’ {[Miss Ricardo, a 23-year-old former

Paris night club dancer shook her head affirmatively.”

(Boston Traveler, July 23, 1963, p. 12, cols. 3-6)

sé

.

. galloping rumors of a prominent person wearing

only a mask while serving as a slave waiter at an orgy of

play-for-pay girls and their male customers.’’ (Boston

Record-American, July 1, 1963, p. 5, col. 5)

If a national rather than a local standard is to be applied, the

treatment of the affair in newspapers outside Boston may be noted.

(Footnote continued on next page)

13

We agree with Appellee that there are differences be-

tween these reports and Memoirs. The newspaper reports

offer the excitement of telling about real people, and people

in high places; they add the stimulation of photographs;

there is an air of morbidity that the book as a whole does

not have; and the total audience reached by the newspapers

is many times that of the book. There is also a difference

in that the social value involved is that of news rather than

literature. But with respect to community tolerance toward

the treatment of sexual incidents on the printed page, the

similarity is striking.

(Since these quotations are made only to show the fact of what

appeared in prominent daily newspapers, and not to prove the

truth of the matters reported, the taking of judicial notice is, we

submit, appropriate.) The daily having the largest circulation in

the United States contained the following:

‘Maria claims that the man in the hangman’s style mask

wore brief, striped underpants at the party, but other guests

are definite that he wore no more than a pink ribbon bow in

addition to his mask and that guests amused themselves by

tugging at it while he was serving them.’’ (New York Daily

News, July 6, 1963, p. 4, col. 1)

‘She denied suggestions that the masked man was

reviled and beaten like a siave and that he ate food from a

dish on the floor like an animal.’’ (New York Daily News,

July 6, 1963, p. 4, col. 1)

‘‘She agreed and went to the apartment where a naked

man was awaiting her in the bedroom. Asked how long it

took from the pickup point to the bed, she replied, ‘about

eight minutes’. {[‘‘In the apartment she asked where the

man was. ‘He said he was waiting for me in the bedroom.

He gave me a contraceptive and told me to strip’.’’

{‘‘ ‘The man was in bed, naked. There was a hole in the

wall where there had been a two-way mirror’.’’ {|‘‘ While

Ward made coffee she said. [sic] She had had sexual rela-

tions with the waiting man. Then they drank coffee.’’ (New

York Daily News, July 25, 1963, p. 3, col. 3)

The newspapers in the nation’s capital had similar accounts:

‘*<«Then,’ she said, ‘there was a dinner party where a

naked man wearing a mask waited on table like a slave. He

(Footnote continued on next page)

—

Newspaper editorials are to some extent an expression

of community standards, and the similarity between the

reports and the novel was editorially noted at the same

time that a decision holding Memoirs not obscene was

editorially approved:

*‘Miss Hill, Meet Miss Keeler

‘“‘The State Supreme Court ruling that the 18th-

century novel, ‘Memoirs of a Woman of Pleasure,’

better known as ‘Fanny Hill,’ is not obscene and

cannot be barred from sale in New York was in-

evitable. The city’s Corporation Counsel and Dis-

trict Attorneys only invited trouble when they tried

to decide that this (or any other) book is ‘obscene.’

One reader’s obscenity is another’s artistry. Fora

public official to set himself up as a literary critic

is censorship. ‘Fanny Hill’ isn’t great literature.

By today’s standards, it isn’t even gamy. We live

in a time of open revelation and too often of sordid

detail; we would not want to ban a Profumo scandal

from the public prints, distasteful as most of its

14

had to have a mask because he was so well known.’”’

(Washington Evening Star, June 8, 1963, p. A3)

‘‘In today’s hearing, a 19-year-old girl identified as

‘Miss X’ testified that Ward tried to get her to perform in

a bedroom equipped with a peek-through mirror. * * *

‘‘She told him she wasn’t interested in watching, but

she testified that Ward replied to her: ‘Darling, I don’t

want you to watch, I want you to perform.’’’ (Washington

Post and Times-Herald, June 30, 1963, p. A3, cols. 2-4)

‘‘* * * He asked her to go to a party and said he would

pay her for it, she said. But instead she was driven to

Ward’s flat, handed a contraceptive and told to get into bed

with a naked man in the next room.

‘** * * Sometimes there was a man in bed waiting for her.

Sometimes the man asked her to hit him with a cane or a

whip—which she did, dressed in her underwear. * * *

‘When counsel asked what the going rate would be, she

said five pounds ($14) for normal intercourse and one pound

($2.80)a stroke for beating.’’ (Washington Post and Times-

Herald, July 25, 1963, p. A3, cols. 1-2)

=,

15:

revelations were. Real-life incidents often exceed

fictional ones. Miss Hill, meet Miss Keeler.’’ (New

York Tumes, August 24, 1963.)

Appellee says that the average person would be ‘‘sur-

prised and probably discomforted’’ if the subject matter

of the book were discussed in public (12). We refer to what

is said in our main brief on the differences between reading

and less private forms of communication. There is a great

deal, in many books that are publicly accepted and highly

regarded, which would create embarrassment if it were

recited aloud to a public assembly. The situation is alto-

gether inapposite.

Appellee cites the language of the A. L. I. Model Penal

Code, which describes prurient interest as a ‘‘shameful

or morbid interest’’ (14). But nowhere in his argument on

prurient interest does Appellee assert that Memoirs is

predominantly shameful or morbid. Nor could he. In-

stead, Appellee speaks in such terms as ‘‘highly erotic’’

(12). What Appellee is saying amounts, at most, to no

more than that the book may stimulate a normal sexual

response in the reader, and this, as we have urged in our

main brief, is not the test of prurient interest. When Ap-

pellee states that ‘‘The dominant theme of the book is the

portrayal in prose of sex and sexual relationships’’ (14),

he is not describing a book whose predominant appeal is

to prurient interest. He is merely describing the subject

matter of a book, a subject matter that writers are free to

deal with (Roth v. United States, 354 U. S. 476, 487).

Comparing Memoirs with other books that have been

held not obscene, Appellee offers as a distinction that these

other books ‘‘contain many passages of real merit, and

whole sections having nothing at all to do with sex’’ (14).

Here Appellee is confusing the social value test with the

prurient interest test (which he concedes should not be

done), and he is asserting the constitutionally invalid

notion that what is otherwise prurient is saved from pru-

rience if it is mixed with non-sexual material. The argu-

_——_—

16

ment involves the propositions that sexually-exciting ob-

jects or descriptions are less exciting in a non-sexual

environment, and that repetition of sexual description in-

creases its interest—propositions which experience con-

tradicts. Moreover, it is difficult to see how comparisons

with Tropic of Cancer and with Lady Chatterley’s Lover

can help Appellee’s case. On the contrary, they remind

us that Appellee’s arguments about the alleged reasons

why the ‘‘average person’’ will buy the book have been

made before, and rejected.’° Moreover, these precedents

show that no ground for suppression is supplied by Ap-

pellee’s charge that Memoirs describes sexual experiences

‘‘in a manner which leaves virtually nothing to even the

dullest imagination’’ (12)."

Appellee refers to one who purchases Memoirs with ‘‘a

knowledge of what it is [that is, what Appellee says it is]

and the intention to indulge in what is clearly the book’s

prime attraction’’ (11). Appellee is apparently interested

in protecting the normal adult from indulging in the private

sin of reading the book. This, we suggest, is not the busi-

ness of government. An anti-obscenity statute, limited as

it must be by the First Amendment guaranties, cannot be

made to serve such purposes. That it should not be made

to serve such purposes was recognized long before our Con-

stitution came into being.’*

10 F.g., in the Brief for the Petitioner, page 21, in Attorney Gen-

eral v. Tropic of Cancer, 345 Mass. 11, 184 N. E. 2d 328.

11 Tropic of Cancer, of course, has been before this Court. As

to Lady Chatterley’s Lover, the degree of detail is certainly not

less than that of Memoirs (see, for example, pages 207-209 and

pages 251-254 of the Grove Press hard-cover edition; pages 228-

231 and 269-271 of the paperback edition), and the differences

in the style of the two works are such as to bring the reader into

much closer contact with the experiences of the characters in Lady

Chatterley’s Lover.

12 Aquinas, Question XCVI, Second Article, in Pegis, Basic

Writings of St. Thomas Aquinas (Random House, 1945, Vol. 2,

pages 791, 793) ; Rommen, In Defense of Natural Law, in Law and

Philosophy (New York University Press, 1964, page 111).

17

Appellee engages in an attempt to explore John

Cleland’s motives and intent in writing the book (14). As-

suming that the determination of the state of mind of John

Cleland in 1749 is a plausible subject for judicial inquiry,

it is an inquiry that must be deemed irrelevant. What is

to be judged is the book that was created, not the situation

that may have brought abovt its creation. Whatever may

have been John Cleland’s objective, the fact is that he

produced a work of art.’®

Appellee’s final point under this heading is that the

‘average person selects this book because he can find

therein material which is unwsual, and rarely produced for

consumption by the general reading public’’ (15). For one

thing, this is a necessary consequence in each case where

a previously suppressed book has been held entitled to

publication; formerly forbidden material is made avail-

able, and this very fact will create interest. For another,

the point that readers are interested in reading about sex

is neither news nor a constitutional consideration. The

courts that held Lady Chatterley’s Lover and Tropic of

Cancer to be within the protection of the First Amendment

were as much aware as Appellee that many people would

read these books for their sexual interest and the sexual

excitement they offered. The unexpurgated Lady Chatter-

ley’s Lover was published in hard cover by Grove Press,

and then, because the book was not in copyright, published

in paperback by Dell, by New American Library, by Pocket

Books and by Pyramid. Some seven million copies of Lady

Chatterley’s Lover were sold. Over two and a half million

copies of Tropic of Cancer have now been sold. The judges

who decided those cases were not innocent of the possibili-

ties upon which Appellee puts so much stress. The point,

18 William Faulkner’s introduction to the Modern Library

edition of Sanctuary (Random House, 1932, 1959) begins:

‘This book was written three years ago. To me it is a

cheap idea, because it was deliberately conceived to make

>

money... .

18

rather, is that these possibilities do not dispose of First

Amendment questions. Whether or not we approve of the

fact that people look for sexual excitement in what they

read, in what they watch on television, in what they see in

theatres—the fact exists, and it cannot in itself exclude

material from the protection of the First Amendment. If

it did, huge areas of art, entertainment and advertising

would be subject to censorship, and ‘‘the door barring fed-

eral and state intrusion into this area’’ would have to be

opened far wider than ‘‘the slightest crack necessary”

(Roth v. United States, 354 U. S. 476, 488).

But in any case the interest of the public in material

dealing with sex cannot account for the long life of

Memoirs. As Appellee himself points out, there is a great

deal of reading matter available to the public that is de-

voted to sexual experience. Trash is soon discarded; a

book that continues to be read in the third century after its

first publication must have other qualities. In the words

of V. S. Pritchett, Memoirs ‘‘has its place in the history of

literature, not in the history of smut. Smut never lasts.”’

(R. 28). .

APpPELLEE’s Pornt I]]—PatTent OFFENSIVENESS

Here Appellee rests his argument on the assertion that

‘‘Something is patently offensive when it violates an indi-

vidual’s concept of appropriate behavior’’ (16). There is

no authority for the assertion; certainly Manual Enter-

prises does not provide it. If the narration of matters that

violate ‘‘an individual’s concept of appropriate behavior”’

constitutes patent offensiveness, then there are very few

works of fiction that can pass this constitutional test.

Appellee then says: ‘‘This is a test which relates to the

sense of propriety and good taste of the average person”’

(17). We have pointed out in our main brief, in discussing

the prurient interest test (at page 13), that the use of an

average notion of what is objectionable would impose a

19

deadening restriction on art and literature—a restriction

that the constitutional guaranties do not tolerate. But

quite apart from appellee’s misuse of the ‘‘average per-

son’’ aspect of the prurient interest test, propriety and

good taste are not standards by which the scope of the

First Amendment is measured. They are rather, standards

of behavior, or standards of literary and artistic criticism.

Every one of our media of art or entertainment furnishes

frequent instances of impropriety and bad taste—whether

in sexual or non-sexual material. A few hours in front of

a television set will yield a wealth of documentation. Pro-

priety and good taste, desirable as they may be, do not, un-

der the Constitution, set limits on freedom of expression.

It is something far beyond impropriety and bad taste

that Manual Enterprises refers to. We respectfully invite

the Court’s attention to the magazines involved in Manual

Enterprises, and suggest that the words ‘‘propriety’’ and

‘‘good taste’? cannot possibly be applied.™*

Putting together different sections of the brief, it is

difficult to determine whether Appellee objects to Memoirs

because it attracts or because it repels. At times his posi-

tion is that the descriptions of sexual activities are too al-

luring (e.g., 9, 11-12, 15) ; at this point he is saying that they

are too repellent.

Appellee argues that ‘‘skillful writing’’ will not avoid

the charge of patent offensiveness (17). It is not the gen-

eral excellence of the writing to which we have drawn atten-

tion in this aspect of the matter; it is specifically its elegant

and seemly language, the use of periphrasis and metaphor,

14 We refer to the Government’s description of the magazines,

set forth in footnote 13 at 370 U. S. 478, 489, 490. Mr. Justice

Harlan’s opinion states that the Government’s description ‘‘tends

to emphasize and in some respects overdraw certain features in

several of the photographs ...’’. It is clear, however, that the

material itself was far removed from the area of propriety and

good taste. The opinion describes the magazines as ‘‘dismally

unpleasant, uncouth, and tawdry’’.

20

the absence of coarseness and vulgarity. Literary skill may

be employed in either direction here. It can be used to make

writing deliberately offensive—and a great deal of contem-

porary literature employs this device.” It can also be used

to make decorous what might otherwise be rude and offen-

sive, and this is an end to which Cleland devotes his consid-

erable talent. His subject matter is one that most people

would not include in sccial conversation, but this is true of

many books, and the concept of patent offensiveness goes to

expression, not to underlying subject matter.’*® So far as

the patent qualities of the work are concerned, Memoirs is

the very opposite of offensive.

We agree with Appellee that absence of four-letter words

does not in itself control the question, but it is highly rele-

vant. And the grace and elegance of the language of Mem-

oirs, its advocacy of the natural and its rejection of the

sordid, the fact that it has none of the scatology that is found

in Tropic of Cancer and many other modern works—all

these place the book well outside the field of the patently

offensive.

APppELLEE’s Fornt IV anp Concuusion

In Point IV Appellee urges that the Roth opinion is

‘‘the primary guide in this area’’ (18), that Jacobellis was a

‘‘clear reiteration of the standards set forth’’ in Roth (19),

that three tests have been developed to determine whether

material is obscene (22), and that:

‘‘The portrayal of sex in and of itself is not sufficient

to deny a work First Amendment protection; but

hard-core commercial pornography without redeem-

ing importance would not be protected.’’ (20).

15 A device not confined to contemporary literature: cf. the

works of Jonathan Swift.

16 Mr. Justice Harlan’s opinion cites the portion of the A. L. I.

Model Penal Code that refers to ‘‘description or representation”’

.(370 U. S. 478, 486).

21

There is no dispute between the parties on these points.

Earlier portions of Appellee’s brief show further areas of

agreement—on the proposition that the First Amendment

protects material unless it is found obscene under each of

the tests considered independently (3-6), and on the empha-

sis that Jacobellis gave to the social value test of Roth and

Alberts (6).

There is dispute, however, about the meaning of the per

curiam reversals that followed Roth and Alberts. Appellee

states that in those reversals ‘‘It does not appear that the

Court acted in any way upon the question whether the ma-

terials were or were not obscene (18)’’. We submit that the

statement is not accurate; it does appear that the Court

considered the materials and held them not obscene. In

Jacobellis, Mr. Justice Brennan wrote:

‘<* * * Hence we reaffirm the principle that, in ‘ob-

scenity’ cases as in all others involving rights de-

rived from the First Amendment guarantees of free

expression, this Court cannot avoid making an inde-

pendent constitutional judgment on the facts of the

ease as to whether the material involved is consti-

tutionally protected.®’’ (378 U. S. 184, 190).

The footnote appended reads:

‘<6This is precisely what the Court did in Times

Film Corp. v. City of Chicago, 355 U. S. 35; One, Inc.,

v. Olesen, 355 U. S. 371; and Sunshine Book Co. v.

Summerfield, 355 U. S. 372. * * *”’

In the same ease, Mr. Justice Stewart wrote:

««* * * T have reached the conclusion, which I think

is confirmed at least by negative implication in the

Court’s decisions since Roth and Alberts, that under

the First and Fourteenth Amendments criminal laws

in this area are constitutionally limited to hard-core

pornography. * * *’’ (378 U. S. 184, 197).

The cases cited by Mr. Justice Stewart in the accompany-

ing footnote are Times Film; One, Inc.; Sunshine Book; and

Manual Enterprises.

—

Nor is Appellee correct in explaining Mounce v. United

States as turning simply on confession of error. The per

curiam decision was rendered ‘‘upon consideration of the

record and confession of error by the Solicitor General...”

(355 U. S. 180; emphasis supplied).

Appellee also discusses the decision of the New York

Court of Appeais holding Memoirs entitled to constitutional

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

200 N. E. 2d 760) (21). Appellee criticizes the majority

opinion in that case and recommends the dissenting opin-

ions. The majority opinion, in our view, makes ‘an inade- 4

quate appraisal of the value to be found in Memoirs.

What is significant, however, is that the majority saw suff-

cient value in the work to bring it within the protection of

the First Amendment (14 N. Y. 2d 399, 403, 200 N. E. 2d

760, 762). The opinion, we submit, considerably underesti-

mates the merit of the book. This, however, merely lends

emphasis to the court’s recognition of the principle that

the application of the First Amendment does not depend

upon a finding of great value.

22

The opinion is not analytical, but its conclusions are firm

and clear:

««* * * The Supreme Court has indicated with grow-

ing judicial resolution that New York’s obscenity

statute may not constitutionally be invoked to sup-

press a book of the standard and content of ‘Fanny

Hill’.

* * *

‘*It had become increasingly clear in a long line

of decisions which foreshadowed those of June 22

[1964] that State obscenity statutes would no longer

afford a constitutionally sound basis for the suppres-

sion of a book of the type of ‘Fanny Hill’....’’ (14

N. Y. 2d 399, 404-405, 200 N. E. 2d 760, 763).

The dissenting opinions with which Appellee agrees, and

which the majority below found ‘‘more persuasive’’ (R.

124), do not, we submit, support either Appellee’s argument

here or the conclusion of the majority below. They repre-

23

sent a repetition of the view that literary or artistic values,

no matter how substantial, cannot bring a book within the

protection of the First Amendment if, under other criteria,

it may be judged obscene. This was Judge Scileppi’s view

when he spoke for the majority in the Tropic of Cancer

ease (People v. Fritch, 13 N. Y. 2d 119, 192 N. E. 2d 713)

and it remained his view when he came to consider the pres-

ent book, despite the intervening decisions and opinions of

this Court in Jacobellis and Grove Press v. Gerstewm. His

dissenting opinion in Larkin v. Putnam’s is no more valid

than his majority opinion in People v. Fritch; each repre-

sents a refusal to follow what should have been clear from

the time of Roth and Alberts—and was clear to most high

state courts that considered the matter’’—and was made

clear beyond question by Jacobellis and Grove Press v. Ger-

stein,'®

Indeed, neither the dissenting opinion of Chief Judge

Desmond nor the dissenting opinion of Judge Scileppi take

the position that Memoirs is obscene under the decisions of

this Court. Each is not so much a dissent as a protest.

They do not state that Memoirs can be denied constitutional

protection under the standards established by the decisions

of this Court; rather they attack those standards, and ap-

peal for a change in the law. Thus Chief Judge Desmond

states :

‘«* * * Hereafter, pornography no matter how gross

(see Grove Press v. Gerstein,

[June 22, 1964], validating ‘Tropic of Cancer’) is

immune and safe so long as critics praise its writing

17 Attorney General v. 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.

18The one other high state court that agreed with People v.

Fritch—the Supreme Court of Illinois—acknowledged its error

after Jacobellis and Grove Press v. Gerstein were decided: Chicago

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

Ill. 2d 459, 202 N. E. 2d 497.

24

style and discover ‘social significance’, whatever

that may mean.’’ (14 N. Y. 2d 399, 406, 200 N. E. 2d

760, 764).

‘«* * * And into the law itself there has come from

nowhere a new constitutional theory which licenses

the most unrelieved sexual filth either on the theory

of ‘prevailing community standards’ (Larkin v. G, I,

Distrs., 14 N. Y. 2d ‘ [June 10, 1964])

or on a finding of literary merit or social values

(Grove Press v. Gerstein, supra).* * *’’ (14 N. Y, 2d

399, 406, 407, 200 N. E. 2d 760, 764).

‘*T refuse to believe that all this can continue to

be the law. I predict that the wheel will turn and the

pendulum swing back.’’ (14 N. Y. 2d 399, 407, 200

N. E. 2d 760, 765).

And Judge Scileppi states:

‘‘The growing tendency to narrow the definition

of obscenity and to demand impossible standards

makes it virtually impossible to enforce any existing

obscenity law or to enact any new legislation which

can adequately protect our people from indecent and

obscene publications. This is an incredible result

which cannot long stand, for an aroused public is sure

to bring about a change in the attitude that ‘anything

goes’ in the area of printed material and motion

picture productions.’’ (14 N. Y. 2d 399, 408, 200

N. E. 2d 760, 765)?

We do not agree that this Court’s standards make it ‘‘vir-

tually impossible to enforce any existing obscenity law’’

or that under those standards ‘‘anything goes’’. We be-

lieve that history will prove Judge Desmond’s prediction

wrong, and will confirm the wisdom of this Court’s applica-

tion of the First Amendment to prevent the suppression

19 Judge Desmond was also troubled by a companion case in the

Court of Appeals which held unconstitutional, as too vague, a New

York statute prohibiting sales to minors: People v. Bookcase, Inc.,

14.N. Y. 2d 409, 201 N. E. 2d 14. Although Memoirs was the book

involved, the publisher, appellant here, did not participate in that

case.

25

of writing of value. But on the matter of what the law

is, the New York Court of Appeals is unanimous; the dif-

ference between majority and minority is only on what the

law ought to be. All seven judges (Judge Desmond and

Judge Scileppi joined in each other’s opinion, and Judge

Burke joined in both) agree that, under the decisions of

this Court, Memoirs may not be suppressed.

Appellee argues that unless there is an adjudication of

obscenity in the present case, ‘‘it is extremely doubtful that

the tests may ever successfully be applied to writing which

is in novel form’’ (22). This presents the where-is-the-line-

to-be-drawn question with which the law deals in many

fields. Here again there are echoes of arguments made

against Tropic of Cancer and Lady Chatterley’s Lover. Jus-

tice Holmes’ famous rejoinder to the citation of McCulloch

v. Maryland—‘not ... while this court sits’’—has become

the accepted judicial response to arguments of this type.”

Difficulties of degree and definition are not reasons for de-

nying constitutional freedoms.

But the asserted difficulty is not a real one in the present

ease. There are books and magazines devoted to sex which,

in cover and content, are characterized by a morbidity and

a vulgarity that is not found in Memoirs. Moreover, they

are in no way comparable to Memoirs as literature. It is

not conceivable that evidence of value such as appears in

the present record would be forthcoming with respect to

such publications. The Court, as it has said, will consider

each case of suppression on its own merits. There is no

validity in the argument that a decision on Memoirs must

necessarily be a holding for every publication ‘‘in novel

form’’.

*® Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. 8. 218,

223.

26

Appellee states that ‘‘a decision by the Supreme Judi-

cial Court to the effect that Memoirs is obscene is the first

time since the rendering of the Roth decision that that Court

has concluded that a given piece of writing could constitu-

tionally be suppressed’’ (22-23). The statement implies

that the Supreme Judicial Court regarded Memoirs as ex-

ceptional. In fact, since the time of Roth and Alberts, the

Supreme Judicial Court had had only two cases in which

it considered the alleged obscenity of writing—this and the

Tropic of Cancer case.

Appellee asserts that the Publisher seeks ‘‘to expand

First Amendment guaranties ... far beyond what the United

States Supreme Court has indicated is the limitation upon

those guaranties’’ (21). On the contrary, we submit, the

position of the Publisher, both in our main brief and here,

has been based squarely on the decisions of this Court.

Appellee reverts at this point to his earlier argument

that Memoirs does not have the literary merit of Ulysses,

Lady Chatterley’s Lover and Tropic of Cancer, saying that

‘It cannot be seriously maintained that Memoirs ranks with

the abovementioned volumes’’ (21). Here, as elsewhere in

his brief, it may be seen that it is Appellee, not the Pub-

lisher, who seeks a departure from the standards which this

Court has set forth. Appellee would change ‘‘utterly with-

out social importance’’ to read ‘‘without the redeeming so-

cial importance that may be attributed to the most highly-

regarded works’’.

Appellee construes the Publisher’s ‘‘Point 6’’ to mean

that the Court should ‘‘insulate books completely from the

operation of obscenity legislation’’ (22). This, we submit,

is misconstruction. We have urged that different media of

expression may be treated differently; that such conflicts

as there may be with interests sought to be served by anti-

obscenity legislation are less intense where books are con-

cerned, and that books have a special importance for society.

27

This does not mean that there is nothing in book form upon

which anti-obscenity legislation may operate. It does mean

that where there are values in a book such as have been

demonstrated here, the First Amendment precludes sup-

pression.

Respectfully submitted,

CHARLES REMBAR,

REMBAR AND ZOLOTAR,

Counsel for Appellant,

521 Fifth Avenue,

New York 17, N. Y.