# Reply Brief — A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0232%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1966 - **Citation:** 383 U.S. 413 ## Text 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 “ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0232%3A06. Public record. Not legal advice.