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

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SUBJECT INDEX

Page

Motion for leave to file a brief for Citizens for De-

cent Literature, Inc., an Ohio Corporation, as Am-

ell: TIONS. csninsieescsiatuiaaeniiiinintenhthbidncedieabeasaidbaadetiiiee

Brief Amicus Curiae of Citizens for Decent Litera-

ture, Inc., an Ohio Corporation, in support of Ap-

ONO osincciinnicnrcepicinoninmpinniatiesiaatensti

ae a. |

Statement of the case .-...................

Attorney General of the Commonwealth of Massa-

chusetts—case im Chief .............-..-ccccecccersesenseess

G. P. Putnam’s sons (Intervenor )—case in chief

SESE I sc cccrnteg ssi enivnetenciintilitestiiiins

PIE, cccireeevcssencnnimmaviniiniiaintitnmatsnbeinpropstionmenenemmsinnin

An integrated review of the obscenity case law ....

lee: EM, EIU insaitisoccinimtceihenrsisiisbaiennenininaanelalahieian

The problem of previous restraint cases ....

The no clear majority decisions ................

A major national problem ........................----

A problem of communication ..................----

=FOo rm?

ETT GG GIG eoccictinecccnrsecenevsntsntctntnts

II.

This court should affirm the judgment ................

A. “Fanny Hill”—a “Leveler’” of the issues ..

B. The common law court’s reaction to ob-

ee, ga Se

)

il.

Page

Intervenor and other “Fanny Hill” Publish-

ers have “Cleland” attitudes -...................-... 59

The reason for this nation’s obscenity laws 66

we 70

1. The Roth-Alberts standards .............. 70

er eceiiibcindbigicnrdrecenenrente 70

(b) Prurient interest is proscribed .... 72

exculpate .. “Fe

(d) Grove Press Inc. v. Gerstein

should be abandoned .................. 78

(e) Roth-Standards applied ................ 85

History judgments of “Fanny Hill” .. 87

aed sinsnessuicns 87

(b) Judicial opinions ........2..0000200.0.... 90

iii.

TABLE OF AUTHORITIES CITED

Cases Page

A Quantity of Books v. Kansas, 378 U.S. 205, 84

S. Ct. 1732, 12 L. Ed. 2d 809 .............. 36, 38, 40,

Alberts v. California, 354 U.S. 476, 77 S. Ct. 1314,

11 A 108 26, 28, 32, 35, 36, 37,

vesbiinovetinnbeuoepevirmstieds 43, 52, 54, 66, 67, 70, 71, 72, 78,

American Civil Liberties Union v. City of Chicago,

pe Bri pF . ence

Arizona v. Locks, 97 Ariz. 148, 397 P. 2d 949 ..........

Astore v. United States, 366 U.S. 925, 81 S. Ct.

Se AS ic BE IM hckibcicchciintincinksiacstcopiabbonnies

Attorney General v. Tropic of Cancer, 345 Mass.

it cidseslhinteitdatadiecicbetsscilbnaigean obvencsebdbieediadeaateviidlahinietaiaiigees

Bantam Books Inc. v. Sullivan, 372 U.S. 58, 83 S.

Ct. 631, 9 L. Ed. 2d 584 rv’g 176 A. 2d 393 ..36,

Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct.

I I TE IID si incitcrar aeentcecinstshimnaniciphicaiimoenti

Besig v. United States, 206 F. 2d 142 .........2.....-

Brownell v. Singer, 347 U.S. 403 ..................ccescceeceee

I I

Cain v. United States, 274 F. 2d 598, cert. den.

362 U.S. 952, 80 S. Ct. 864, 4 L. Ed. 2d 869 ....

Chaplinsky v. New Hamphsire, 315 U.S. 568, 86 L.

BG A | eRe 31, 32,

Chobot v. Wisconsin, 12 Wis. 2d 110, 106 N.W. 2d

286, 368 U.S. 15, 82 S. Ct. 136, 7 L. Ed. 2d 85

reh. den. 368 U.S. 936, 82 S. Ct. 358, 7 L. Ed.

gear ecw ene wr 43,

Page

Collier v. United States, 283 F. 2d 780, cert. den.

365 U.S. 833, 81 S. Ct. 746, 5 L. Ed. 2d 744 ..43, 45

Commonwealth v. Holmes, 17 Mass. 336 .......... 30, 91

Commonwealth v. Sharpless (1815), 2 S and R 91,

i | EN ET Se re Sn 66

Connecticut v. Andrews, 150 Conn. 92, 186 A. 2d

UP: aindehtiovbionnes idsahinbaianeaaiayiie- xatiapeahinbinipnamebeuteieiipasare 48

Dale Book Co. v. Leary, 233 F. Supp. 754 ................ 38

Darnell, III v. United States, 316 F. 2d 813, cert.

den. 375 U.S. 916, 84 S. Ct. 205, 11 L. Ed. 2d

155 reh. den. 375 U.S. 982, 84 S. Ct. 493, 11 L.

ei 47

Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734,

13 L. Ed. 2d 649 rv’g 233 Md. 458, 197 A. 2d

= Repeal rs Ail nos shee, BN SC a RE 36, 50

Finkelstein et al. v. New York, 229 N.Y.S. 2d 367,

183 N.E. 2d 661 cert. den. 371 U.S. 863, 83 S.

Se: Se Re OS ee 46

Fried v. New York, 238 N.Y.S. 2d 742, rev'd 378

U.S. 578, 84 S. Ct. 1904, 12 L. Ed. 2d 1033 ...... 47

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

I SION i NEE nis ntcyqetinacinniicbaddaAbiavedsbigdlinetant 84, 95

Goldstein v. Virginia, 372 U.S. 910, 83 S. Ct. 726,

Fs IE IE sechetinaniikecidaiskibdeibssensniionncalmatihiveid 43, 46

Grove Press Inc. v. Gerstein, 378 U.S. 577, 84 S.

Ct. 1909, 12 L. Ed. 2d 1035 ..29, 39, 40, 72, 78, 84

Haddad et al. v. Superior Court of Los Angeles

SS Sie I SII, BAI aig pacenciestertiebesncotndermeecenteees 61

Hadley v. Arkansas, 205 Ark. 1027, 172 S.W. 2d

237

Page

Heinecke v. United States, 294 F. 2d 727 cert. den.

368 U.S. 901, 82 S. Ct. 173, 7 L. Ed. 2d 96 ....43, 46

Hochman v. United States, 277 F. 2d 631, cert. den.

364, U. S. 837, 81 S. Ct. 70, 5 L. Ed. 2d 61, reh.

den. 364 U.S. 906, 81 S. Ct. 231, 5 L. Ed. 2d

a ae a 44, 45

Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12

eS eae 40, 43, 49, 67, 68, 71, 78

Kahm v. United States, 300 F. 2d 78, 300 F. 2d 78,

cert. den. 369 U.S. 859, 82 S. Ct. 949, 8 L.

I TRUE ih Sans cochheelpmepaphnentntilebiantedaaumesnpenabineie 46

King v. Commonwealth, 233 S.W. 2d 522 ................ 37

Kingsley Book Inc. v. Brown, 354 U.S. 436, 77 S.

Ct. 1325, 1 L. Ed. 2d 1469 ............ 37, 51, 52, 74, 84

Kingsley International Pictures, Inc. v. Regents, 360

U.S. 684, 79 S. Ct. 1362, 3 L. Ed. 2d 1512 .......... 68

Larkin v. G. I. Distributors Inc., 14 N.Y. 2d 869 .. 39

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

y 5 8, & Ny | © » SPR aerO mene see 39, 91, 95

Manual Enterprises Inc. v. Day, 370 U.S. 478, 82

S. Ct. 1432, 8 L. Ed. 2d 639 ..36, 38, 39, 40, 50, 72

Marcus v. Kansas City Search Warrants, 367 U.S.

717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 rv’g 344

EE CRE Sirs rer eee ee Dae 36, 50

Matthews v. Florida, 356 U.S. 918, 78 S. Ct. 702,

gg oe TL "RRR RSE tira een YS Me AES 44

Mishkin v. United States, 317 F. 2d 634, cert. den.

375 U.S. 827, 84S. Ct. 71, 11 L. Ed. 2d 60 .......... 46

Missouri v. Becker, 364 Mo. 1979, 272 S.W. 2d 283.. 37

Missouri v. Vollmar, 389 S.W. 2d 20 ....0......2.:0000 38

Monfred et al. v. Maryland, 226 Md. 312, 173 A.

2d 173 cert. den. 368 U.S. 953, 82 S. Ct. 395,

(oO: Nf RR as ae eee: 43, 45, 46

Mounce v. United States, 355 U.S. 180, 2 L. Ed.

2d 187, rv’g 247 F. 2d 148, 134 F. Supp. 490 ...... 36

Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625,

, TON) RG > gen okes Reena 26, 31, 32, 36, 51

Nebraska v. Jungclaus, 176 Neb. 641, 126 N.W. 2d

eg Aa REE LIT Se A RE a mY SOC SO 38

I FE eis shcenicarvcineciserveemnnnienonncticrovioanmetenionccnsnnnseroutes 42

New York v. Ray Kirk, Birch, All State News

Co. Inc., et al., 40 Misc. 2d 626, 243 N.YS. 2d

Saget ase Wiser Wes Niet SE DERE OO OO et CE TD 42

New York v. Richmond County News Co., 175 N.E.

a teh aitienilcsietadanhaiaecalicivetrciahaniseniicheitdiciren 38

Oakley v. United States, 290 F. 2d 517, cert. den.

368 U.S. 888, 82 S. Ct. 139, 7 L. Ed. 2d 87

reh. den. 368 U.S. 936, 82 S. Ct. 358, 7 L. Ed. 2d

ai atc calaticldctnstadetlbitaneelicail 43, 45

One Inc. v. Olesen, 355 U.S. 371, 78 S. Ct. 364, 2

mee OS es 8 by 36

Outdoor American Corporation v. City of Philadel-

phia, 333 F. 2d 1963, cert. den. 85 S. Ct. 192, 13

i IRIE eiiteinientibinsinigtniiernccaanriitapheiedenitenilenbinnaies 37

Padell v. United States, 262 F. 2d 357, cert. den.

359 U.S. 942, 79 S. Ct. 723, 3 L. Ed. 2d 676 ...... 44

Parr v. United States, 255 F. 2d 86, cert. den. 358

U.S. 824, 79 S. Ct. 40, 3 L. Ed. 2d 64 -.0000000000...-. 44

People v. Fritch, 13 N.Y. 2d 119 ............

—

Page

People v. The Bookcase Inc. et al., 14 N.Y. 2d 409 .. 39

People v. The Bookcase Inc., 40 Misc. 2d 796, 244

Re eB AR reer te ere eee era praetor 84

Putnam & Sons v. Lancer Books, Inc., 239 F. Supp.

FEN nccicssiscneneenasceviveiectintaliniainiicionaels is . 60

Regina v. Reid (1708), 11 Mod. Rep. 142 .............. 57

Rex v. Curl (1927), 2 Strange 788 ....58, 66, 72, 75

sical le esl ntacaa Siena cd asieahitinaaeantaanbaaiaaeeadaialal 84, 85, 91, 94

Rosen v. United States, 161 U.S. 606 .................. 30, 32

Roth v. United States, 354 U.S. 476, 77 S. Ct. 1314,

Fs 8 26, 28, 32, 35, 36, 37, 38

pene 43, 52, 54, 66, 67, 70, 71, 72, 76, 78, 84, 87, 91

Sunshine Book Co. v. Summerfield, 355 U.S. 372,

78 S. Ct. 365, 2 L. Ed. 2d 352 rv’g 249 F. 2d

es IE GE cnenvaccucciionledtisenisenieiindiage 36

Times Film Corporation v. City of Chicago, 355

U.S. 35, 78 S. Ct. 115, 2 L. Ed. 2d 72 rv’g 244

xe , & 3 i 3 Ae eee 36

Times Film Corp. v. City of Chicago, 365 U.S. 43,

81 S. Ct. 391, 5 L. Ed. 2d 403 rv’g 272 F. 2d

SS Ee ia: I PEE civeedtonsinsnrenintsiiitionttmabentanmats 36

Tralins v. Gerstein, 378 U.S. 576, 84 S. Ct. 1903,

Ere eee Te 40, 72

Trans-Lux Distributing Corp. v. Board of Regents

of the University of New York, 380 U.S. 259,

85 S. Ct. 952, 13 L. Ed. 2d 959 rv’g 14 N.Y.

— ) & fF aA Fees 36, 51

United States v. Kennerley, 209 Fed. 119 ~.............. 74

United States v. Klaw and Jack Kramer, 350 F. 2d

ES ea eS ee ees 43

Volanski v. United States, 246 F. 2d 842

Wenzler and Imlay v. California, 377 U.S. 994, 84

S. Ct. 1902, 12 L. Ed. 2d 1047, reh. den. 85

ae ee ee , eee 43, 47, 48

Williamson v. California, 207 Cal. App. 2d 839, 24

Cal. Rptr. 734, cert. den. 377 U.S. 994, 84 S. Ct.

1902, 12 L. Ed. 2d 1047, reh. den. 85 S. Ct.

eg scans 47

Womack v. United States, 294 F. 2d 204, cert. den.

365 U.S. 859, 81 S. Ct. 826, 5 L. Ed. 2d 822 ....

Zeitlin v. Arnebergh, 59 Cal. 2d 901, 31 Cal. Rptr.

a 39, 63, 81

Zeitlin v. Arnebergh, 375 U.S. 957 ............cesceccesseeeees 64

Zucker v. New York, 371 U.S. 863, 83 S. Ct. 116,

I ee 46

Zuideveld v. United States, 316 F. 2d 873, cert.

den. 376 U.S. 916, 84 S. Ct. 671, 11 L. Ed. 2d

IIE acidic ihaciedbdonaiiedaceiligehiaastedajtinhbdinniieensiontinnietenttineteine 47

Dictionary

Webster’s Collegiate Dictionary, Fifth Edition ........ 30

Statutes

General Laws of Massachusetts, Chap. 272, Sec.

SA IE NER EI TRE DTS =e

General Laws of Massachusetts, Chap. 272, Sec. 28

PPT rr rr TTT Tree eee ee eerie rrr rrr

ee RRR EOE EEE OEE REESE EE EERO EEE EERE OEE EERE EEE EEE EEE EE ES

Page

General Laws of Massachusetts, Chap. 272, Sec. 28-

United States Constitution, First Amendment ..........

Ciihc hag abteha ued iiataialatedldinekalsadaliandnanensects 4, 6, 25, 74, 75

Textbooks

i TIE sdecreceseeneenecsticorsenasstpieonenhiointaniedeagtantemevteteteres 38

American Law Institute, Model Penal Code (Tenta-

tive Dralt 1967), Sec. SUV. TOGZ) <2. ccscrsesesecsconsesesns 70

Black, Handbook of Judicial Precedent (1912), pp.

SIIIIIPTITSs sis cc ssclomestebteighlap Bio aaseientidaleitaceseiebaniselokaseteoit 40

4 Blackstone Commentaries, pp. 151, 152 -....0.......... 37

I re TI, DA BU ck esrseecenisistsvscinsevecesansinven 54

Columbia Law Review, Morals Offenses and The

Model Penal Code, Louis B. Schwartz, pp. 671,

I ak ih iiienseeaentlesohoces cplaieninbcnandbiabttbeonioesiei 67

a a 57

a a ai nh tnacaaeaabllat beatin as 69

Craig, Alec, Suppressed Books, World Publishing

IES Rasen renee ee one 89

Ernst and Schwartz (The MacMillan co.

ee ee eee ee eee eee

Page

Fanny Hill, Putnam Ed. 5555, 1963, Introduction,

SP, peor ed he RAR EE Se Oe ELD 58

Fanny Hill, Putnam Ed. 5555, 1963, Introduction,

iad al iaecialmebaeeeaaiails 59

Loth, David, The Erotic in Literature, MacFadden

I TN i 57

Scott, George Ryley, Into Whose Hand, p. 143 ........ 58

Scott, George vi Into Whose Hands (1945), p.

Se URS tk CN Roar ie Rec cero ee NR Wa OB OE 88

Supreme Court Practice (3rd Ed.), Stern and

CS TI daatcdhcncthcasceesincndeenncchoaeimecrrtacnes 49

Wambaugh, The Study of Cases (Sec. Ed., 1894),

—

IN THE

Supreme Court of the United States

October Term, 1965

No. 368

A book named “JoHNn CLELAND’s MEMOIRS OF A

WomaAN OF PLEASURE”, G. P. PUTNAM’s Sons (In-

tervenor ),

Appellant,

US.

ATTORNEY GENERAL OF THE COMMONWEALTH OF

MASSACHUSETTS,

Appellee.

On Appeal From the Supreme Judicial

Court of Massachusetts.

Motion for Leave to File a Brief for Citizens for

Decent Literature, Inc., an Ohio Corporation, as

Amicus Curiae.

Citizens for Decent Literature, Inc., an Ohio Cor-

poration respectfully moves for leave to file a brief as

amicus curiae in support of the Appellee in this case.

The consent of the Attorney General of the Common-

wealth of Massachusetts has been obtained, and has

been filed with this court. The consent of Charles Rem-

bar, for G. P. Putnam’s Sons (Intervenor), was re-

quested by letter dated November 13, 1965, but no re-

sponse to this request has been received.

a am

Probable jurisdiction was noted on November 8, 1965,

at which time the case was placed on the summary

calendar for argument with Ralph Ginzburg et al. vy.

United States, October Term, 1965, No. 42 and Edward

Mishkin v. State of New York, October Term, 1965.

No. 49 during the second week in December. The ac-

celeration in the hearing of this matter made a more

timely filing impossible.

The interest of Citizens for Decent Literature Inc.

is more fully set forth in the accompanying brief.

Respectfully submitted,

CuHArLeEs H. KEATING, JR.,

JAMEs J. CLANCY,

Ray T. DREHER,

Counsel for Amicus Curiae,

—

aid

IN THE

Supreme Court of the United States

October Term, 1965

No. 368

A book named “JoHN CLELAND’s MEMOIRS OF A

WoMAN OF PLEASURE”, G. P. PutNAm’s Sons (In-

tervenor ),

Appellant,

VS.

ATTORNEY GENERAL OF THE COMMONWEALTH OF

MASSACHUSETTS,

Appellee.

On Appeal From the Supreme Judicial

Court of Massachusetts.

Brief Amicus Curiae of Citizens for Decent Litera-

ture, Inc., an Ohio Corporation, in Support of

Appellee.

Interest of Amicus Curiae.

Citizens for Decent Literature, Inc., an Ohio Corpo-

ration, with local affiliates throughout the United States

is a non-profit, non-sectarian and non-political corpora-

tion with national headquarters in Cincinnati, Ohio,

formed for and dedicated to the cause of good, decent

and wholesome literature with a view to oppose and

eliminate obscene literature. by cooperating with law en-

iii

forcement in the enforcement of the laws. For the

Court’s convenience amicus curiae is hereinafter re-

ferred to by the single short title, CDL.

CDL believes that there exists a growing flood of

publications, purposely designed and manufactured with

a sensationalized appeal to prurient interest, that threat-

ens to overthrow the basic morality upon which our na-

tion and our Constitution were founded; that while the

First Amendment of our Constitution has, from the

time of our nation’s founding, been construed to afford

no protection to such publications, a loud voice is now

being heard in the courtroom advocating the overruling

of this “balancing of interest” interpretation in favor

of an absolutist approach, aimed at nullifying the na-

tion’s basic obscenity laws.

At its national convention in Chicago during October

of 1963, the national organization of Citizens for De-

cent Literature adopted a policy aimed at giving in-

creased support in the fight against “obscenity,”

through legal advocacy in the courtroom in support of

the people’s case.

A Book Named “John Cleland’s Memoirs of a Woman

of Pleasure”, G. P. Putnam’s Sons (Intervenor) vs.

Attorney General of the Commonwealth of Massachu-

setts is a case of nationwide importance which will have

a serious effect on enforcement of the obscenity statutes

throughout the nation.

Statement of the Case.

On February 10, 1964, Edward W. Brooke, Attorney

General of the State of Massachusetts, filed a petition

in the Superior Court of Suffolk County under the pro-

visions of Section 28 C of Chapter 272* of the General

Laws of Massachusetts alleging that there was probable

cause to believe that an obscene paperback book named

“John Cleland’s Memoirs of a Woman of Pleasure”

(commonly known as Fanny Hill) was being im-

ported, sold, etc., in the Commonwealth. The petition

further alleged that the publisher** and copyright holder

was G. P. Putnam’s Sons of the City of New York.

On the same date, Justice Eugene A. Hudson of the

Superior Court filed a statement indicating that, after

reading and studying its entire contents, he was of the

opinion that there was reasonable cause to believe the

*Section 28 C-H were enacted into law as part of Chapter 272

in 1945 as an ancillary proceeding to Section 28B thereof which

provides a criminal penalty of up to five years in the state prison

or not more than two and one-half years in the House of Cor-

rection and/or a fine of not less than $100 nor more than $5,000

for dealing in obscenity. Section 28D provides in part that “Any

person interested . . . may claim a right to trial by jury on the

issue whether said book is obscene . . .” Section 28F provides in

part “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 publication, advertisement, and distribution. . . .”

**The publishers of Fanny Hill are legion. Until the recent

decisions of this Court the overwhelming majority preferred to

remain anonymous, Some (but not all) of the modern competitors

of G. P. Putnam & Son are: Brandon House (P. 901), owned by

Milton Luros, 7311 Fulton St., Los Angeles, California, also a

publisher of girlie magazines, nudist magazines and sex (pre-

dominantly Lesbian type) paperbacks; All Star (AS 10) owned

by Edwin A. Schnepf, of 10539 Burbank Blvd., Los Angeles,

California, also a publisher of girlie magazines, nudist magazines

and sex tabloids and sex paperback books, and Fitz Publishing

Company, Los Angeles, California, distributed nationally by Gold-

en State News (GSN), owned by a publisher and distributor of

girlie magazines, nudist magazines, and sex paperback books.

book to be obscene. He entered an interlocutory finding

and adjudication to that effect and ordered publication

of a notice to show cause why such book should not

be judicially declared to be obscene, and transmission of

the same by registered mail to the publisher and copy-

right holder in New York City.

On the return date, March 19, 1964, G. P. Putnam’s

Sons filed an answer to the petition, as an intervenor,

admitting it was the publisher and copyright holder, the

sale and distribution in the Commonwealth, but denying

that the book was obscene and alleging affirmatively

that the same was protected by the First Amendment

to the United States Constitution, as applied to the

states by the Fourteenth Amendment.

Neither party “claimed” a jury as authorized by Sec-

tion 28 D.

On April 16, 1964, an order wes entered setting the

matter for hearing on May 27, 1964, without jury. The

case was tried before Superior Court Justice Donald M.

Macaulay, on May 27, 1964.

During its case in chief, a copy of the paperback book

“Fanny Hill, John Cleland’s Memoirs of a Woman of

Pleasure” was introduced by stipulation. The Attorney

General called one literary person as a witness, Dr.

John E. Collins, Headmaster of the Newman Prepara-

tory School.

During its case in chief, intervenor introduced docu-

mentary evidence in the form of book reviews, essays and

newspaper and magazine articles. The publisher’s Presi-

dent Mr. Minton, and five persons in the literary field

testified as witnesses: Fred Holly Stocking, Professor

of English and Chairman of English Department,

oo Se

Williams College, John N. Bullitt, Professor of English

and Master of Quincy House, Harvard College, Robert

H. Sproat, Associate Professor of English Literature,

Boston College, Norman N. Holland, Associate Profes-

sor of English, Massachusetts, Institute of Technology

and Ira Konigsberg, Assistant Professor of English

and American Literature, Brandeis University.

Attorney General of the Commonwealth of Massachusetts—

Case in Chief.

A copy of G. P. Putnam’s Son’s paperback book en-

titled “Fanny Hill, John Cleland’s Memoirs of a Wom-

an of Pleasure” was admitted into evidence as Exhibit A.

John E. Collins, the headmaster of Newman Prepara-

tory School, testified to his educational background and

experience. He received a Bachelor of Arts degree from

Boston College in 1925, a Master of Arts degree from

Boston University in 1926, and a Doctor of Philosophy

degree from Boston College in 1936. He did graduate

work at Harvard and Oxford. He taught at Boston Latin

School for 22 years, was head of the English Depart-

ment at the State College at Boston for 16 years and

Academic Dean and Dean of the Graduate School until

February 1, 1964, when he became headmaster of New-

man Preparatory School. His area was English litera-

ture. He had lectured and had prepared and contributed

articles [R. 10].

Dr. Collins testified that he had read Fanny Hill

and that in his opinion the book was “obscene” and

“Gndecent” [R. 11]. In his subjective opinion the book

“unconditionally” would arouse prurient interest in a

reader [R. 13]. The book “lacks literary merit” [R.

13] and, judging the book from the point of view of a

” —

human document, he could not “find that it had any

social significance nor any literary style that might lift

it up beyond pornography” [R. 13]. In his opinion the

book was “pornographic” [R. 14], “hard-core pornog-

raphy”, “offensive” [R. 14] and “patently offensive”

[R. 15].

On cross-examination by the intervenor’s attorney,

Mr. Rembar, Dr. Collins stated that he was familiar with

the English novels of the 18th Century and taught

courses on the English novel, comparative study of the

novel, contemporary novel, Shakespeare, a course in

biography and others [R. 16]. He understood the word

“prurient” to mean “dirty”, “sexual”, “erotic” and “for

the purpose of stimulating sexual reactions” [R. 16].

Zola’s “Nana” was an example of a book that he

would regard as “predominantly erotic” but which he

would not regard as “predominantly prurient” because

it had literary merit which “lifts it up above and beyond

the word ‘prurient’” and was a “human document”

[R. 17]. He understood the word “obscene” to mean

“disgusting” as confined to books that deal with sexual

subject matter [R. 18]. He understood the word “in-

decent’”’ to mean “contrary to public mores, to the cus-

toms of the people and the common standards of a given

time and a given place” [R. 19]. In reference to the

phrase “patently offensive” he understood “patently”

to mean “openly” [R. 19]. In his opinion Tropic of

Cancer was patently offensive, indecent, appealed to

prurient interest and was obscene [R. 19].

The court sustained an objection to the question of

intervenor’s attorney whether Dr. Collins agreed with

a certain book review in the New York Sunday Times

Book Review Section. The court ruled that such was

hearsay and, if admitted, would let into evidence the

opinion of another witness not under oath [R. 22].

Intervenor’s attorney made an offer of proof on four

exhibits: Exhibit 1, a review of “Speaking of Books”

by J. Donald Adams in the New York Times Book

Review, dated July 28, 1963; Exhibit 2, an article en-

titled “The Harlot’s Progress” by V. S. Pritchett, con-

tained in the October 31, 1963 edition of the New

York Review of Books; Exhibit 3, an article entitled

“Mersey Sound, 1750” by Brigid Brophy, from the

November 15, 1963 edition of “New Statemen”; and

Exhibit 4, an item bearing the subheading “Taste”

under the heading “Modern Living” from the August 2,

1963 edition of Time Magazine. The offers of proof

were excluded on the grounds that such exhibits were

inadmissible as hearsay, being opinions of persons not

in court for cross-examination [R. 22-40].

The Attorney General of the Commonwealth of Mas-

sachusetts rested his case [R. 40].

G. P. Putnam’s Sons (Intervenor)—Case in Chief.

Fred Holly Stocking, Professor of English and Chair-

man of the English Department, Williams College, Wil-

liamstown, Mass., testified to his educational back-

ground and experience. He had been teaching English

since 1937 and had taught a wide range of English

literature from Chaucer to the 1930’s [R. 41-42].

Mr. Stocking testified that he was familiar with the

book in issue and that in his opinion it had literary

merit because it “is a work of art. That is to say, I

think it asks for and receives a literary response as dis-

tinct from a non-literary response.” [R. 42]. It was “an

act of contemplation presented through a story that is

= =

presented in an orderly and organized fashion, with a

fictional central character, and with a literary style

that is definable and commendable. I think the central

character is presented as a person who, at the time of

writing these words, is essentially what I call an in-

tellectual. By an intellectual, I mean someone who is ex-

tremely curious about life and who seeks with objectivity

and detachment to record with accuracy the details of

the external world, physical sensations, psychological re-

sponses .. .” [R. 42]. In his opinion, the character was

essentially “an empiricist who does arrive at certain con-

clusions, certain conclusions about moral values, certain

conclusions about the nature and high value of temper-

ance, certain conclusions about the value of the life of the

mind, who arrives at a clear intellectual distinction be-

tween the nature of love and the nature of lust.” [R. 43].

Mr. Stocking testified that the “intellectuality of

this character” was made clear to him by the prose

style, which “is ceremonious, formal, consciously

formed, and in a way that I find pleasurable and highly

artificial. This establishes the air of detachment from

the beginning.” In his opinion it was “extraordinary”

that a man could project himself into the mind of a

woman “in as precise and vivid a way” as Cleland

had [R. 43].

In Mr. Stocking’s opinion, the book was a structured

novel which “offers that kind of vicarious experience

and the conclusions one can derive from vicarious ex-

perience which one cannot derive from one’s own expe-

rience... .” [R. 43].

It told him things about human nature and the 18th

Century that he might not otherwise have known [R.

43].

| ee

On cross-examination by the Assistant Attorney Gen-

eral, Mr. Sullivan, Mr. Stocking testified that he got

his BA from Williams College and his MA and Ph.D

in English from the University of Michigan. He had

been at Williams since 1940 as a member of the faculty

[R. 44]. Mr. Stocking said that he understood “there

is a passage that the editors believed a later publisher

inserted and therefore was not written by Cleland,

but does occur in some 18th Century editions of this

book.” [R. 47]. The passage referred to the homosexual

episode.

On cross-examination Mr. Stocking testified that in

his opinion the description of the depravities, such as

homosexuality and lesbianism were “not obscene be-

cause they are subordinate to an interest which is pri-

marily literary, whereas an obscene piece of literature has

an interest which is primarily to arouse sexual pas-

sion in the reader.” Individual passages in the book “‘do

of course” give rise to sexual passions in the reader

[R. 49]. Asked percentage-wise “what proportion of

this book is devoted to depicting sexual relations of one

kind or another” he answered, “My guess would be less

than half” [R. 51]. Asked if the depicting of these sex-

ual relations, intercourse, homosexuality, lesbianism, or

depravity, as presented in the book, aroused prurient in-

terest in the reader, he said “The answer is no. That

is not the chief—”; later, that he could not “give a

Yes or No because it arouses many interests, of which

a prurient is—’’; later, that he could not give a Yes or

No answer [R. 51-52].

On re-direct examination by intervenor’s attorney he

testified that his impression of the book as a whole was

that “It is essentially trying to be, and is successful in

— a

being, a literary work, that is to say, a piece of writing

that intends to and succeeds in evoking a literary re-

sponse.” [R. 53].

John M. Bullitt, Professor of English at Harvard

and Master of Quincy House, testified to his exper-

ience. The 18th Century was his specialty in the field

of English [R. 53].

Mr. Bullitt testified that he had read the book in issue

and was of the opinion that it had “detectable literary

merit and considerable historical value” [R. 53]. Though

not “a great work of art by any means” it was “recogniz-

able as an effort to interpret a rather complex character

living in a world peopled by highly diversified charac-

ters, going through a number of very different situa-

tions. There is evidence, it seems to me, here of a rather

skillful, not greatly skillful, but rather skillful effort to

construct a recognizable plot with a purpose behind it.”

[R. 54].

Mr. Bullitt testified that the book “has a good deal

of interest as it relates to a number of other books in

the 18th Century which are concerned with some of

the same*themes, some of the same points of view.”

like Henry Fielding’s Joseph Andrews and Richard-

son’s Clarissa and Pamela. The moral structure of the

theme Cleland resolves “in a way which is customary

among his contemporaries in the 1740’s, namely,

although she asserts very strongly throughout the novel

the value, the importance, of sexual pleasure, she at the

same time learns, and the sense of the novel can be con-

strued as the education of a young woman in a moral

life, the value of love” [R. 55]. “Here she asserts during

those last pages at some length the whole idea that a

—

po” ee

sensual passion is only truly experienced when it is as-

sociated with the emotion of love... .” [R. 55].

Mr. Bullitt was of the opinion that there was a good

deal of deliberate, calculated comedy in the novel “For

example, the metaphoric structure which Fanny uses

when she describes her seduction, if I may use that word,

by the sailor, is nautical.” [R. 55]. The deliberate, calcu-

lated use of the metaphore is amusing [R. 56].

Mr. Bullitt testified that a “second aspect of the

book” “that might bear emphasis is the way in which

Cleland follows a tradition of descriptive characteriza-

tion. It may not be an accident that she takes the name

“Fanny”. It may be that Cleland clearly had the adven-

tures of Joseph Andrews, by Henry Fielding, in mind.”

[R. 56]. He cited the characterizations of Ester Davis,

who brought Fanny to London, “about 46 years old,

tall, meager, red haired, with one of those trivial, ordi-

nary faces you meet with everywhere and go about un-

heeded, unmentioned . . .”” and Phoebe, the prostitute,

who is “red faced, fat and in her early 50’s, who waddles

into a room” as instances of the treatment and develop-

ment of character that is typical of the novel asa literary

form. They are “very careful, exuberantly done char-

terizations” “There is a rather careful effort here to

delineate this person.” ‘This kind of writing is very skill-

fully done. It is a mark of an artist” [R. 57].

On cross-examination by the Assistant Attorney Gen-

eral, Mr. Bullitt stated that there was considerable sen-

sual delight in the book, and that there were phrases

which depicted depraved sexual relations [R. 58]. He

admitted that “So far as I can recall, every character

in the book has, at some time or other, some relation

_— eS

_ to sexual activity” [R. 59]. Asked concerning the pur-

pose behind the novel which he referred to on direct ex-

amination, he replied that one purpose of the book is

“to write a novel that is going to be of interest to his

readers. That is perfectly clear. Beyond that, he does

have an idea to present—a purpose in that sense. He is

communicating.” [R. 59].

Asked if he believed if the average reader in the com-

munity to whom the book would become available would

have aroused in him or her prurient interest, he an-

swered “Your Honor, do I have to answer that yes or

no when I find it very difficult? I am no sociologist,

your Honor; I am a professor of English. . . . I am not

a sexologist ; 1 am not a professional in this matter.” [R.

61]; later, “I think it is possible, but I find it incapable,

honestly, to be certain.” [R. 62]. Asked “Is the book

obscene in your opinion” he replied, “I have no opinion

on obscenity”. Asked if he had an opinion on offensive-

ness, he replied ‘‘yes” and that he felt it was not of-

fensive [R. 62].

On re-direct examination by intervenor’s attorney,

Mr. Bullitt was asked the reaction of the reader to the

homosexual description in Fanny. He replied that in

his opinion the readers “are somewhat influenced by

Fanny’s own response. Fanny’s response is disgust,

horror, indignation. She explains very carefully that

the only reason she sees the scene to its conclusion is not

for any pleasure that she receives in voyeurism, but

rather so that she can document the facts so that she

can go and get help and to have the people arrested.

This is the reason why she hurries so rapidly, catches

her foot on a nail, falls, is knocked unconscious; they

hear her and they escape.” [R. 62-63].

—

"os

On re-cross-examination by the Assistant Attorney

General, he was asked if he would use this type of

language over the breakfast table with his wife and he

replied, “Yes, indeed, indeed.”’, and “There isn’t a single

dirty word in this book.” [R. 63].

Robert H. Sproat, Associate Professor of English

literature, Boston University, testified to his exper-

ience. He had been a member of the faculty at Boston

University for approximately 17 years [R. 63].

Mr. Sproat testified that he had read the book which

was before the court. In his opinion the book had very

definite literary merit and as such had social value.

It was a work of art, having an interesting structure

“fundamentally in three parts. It bears upon the de-

velopment of the character of the heroine.” “The first

part, up to ier meeting with Charles; the second with

her experience with, I think it is Mr. H; and then,

finally her salvation in love with Charles. I think each

of these sections is intricately or organically related to

the character of Fanny, to help develop the heroine’s

final moral and philosophical values. Now, they aren’t

very great, I will admit that—they are not profound,

but they are legitimate values, and they are positive

values.”” Asked “What are those values?” He replied,

“IT think that, at the risk of oversimplification, she

finds that love, that sex without love, with love, is a good

thing.” . . . “Cleland is dealing with the opposition in

the novel between sex without love and sex with love.”

In his opinion the character of Fanny belonged to the

minor classic heroines, falling between James Joyce’s

Molly and Moll Flanders [R. 64].

Mr. Sproat testified that one aspect he found in-

teresting about the work was “the language functions

— — gy

in his novel to create a distance, even when the sexual

experiences are portrayed, and, I will admit, they are

portrayed in detail. That one’s response to those scenes

is a literary response has been brought out by a pre-

vious witness.” “One’s response is, in part or, as it is

in any work of art, both to what is being said and

how it is said at the same time. Very often, I think that

this is a saving grace, for many of the scenes, trans-

lated into language of the present, realistic, naturalistic,

in the language of the realistic, naturalistic novel could

be quite offensive. But I find it not offensive.” In his

opinion passages in John Updike’s “Rabbit Run” and

James Baldwin’s were just as explicit, if not even more

explicit than in Fanny Hill. Mary McCarthy approaches

it in a more clinical and less enjoyable way than John

Cleland [R. 65].

In answer to the Court’s question whether he found

books with as many repetitive sexual experiences as this

book, Mr. Sproat answered, “. . . in a quantitive

court, I would say no, probably.” “The episodic nature

of the 18th Century novel which often belongs to the

genre, makes it almost inevitable that one will have a

repetition of the same sort of thing over again.” [R. 65].

Mr. Sproat stated that he found the “style itself, the

words, the language, the metaphore” “amazing”. The

metaphore rescues—put it this way, the language trans-

mutes what might have been, what could be a brutal or

raw and directly expressed vulgar situation into some-

thing literary” [R. 66].

On cross-examination by the Assistant Attorney Gen-

eral, Mr. Sproat stated that he did not find Fanny Hill

“vulgar” or “offensive.” It was “not great”, was “not

profound” but had “some value” [R. 66]. The homo-

= &

sexual scene could not, in his opinion, be omitted be-

cause “it further developes the character of Fanny”

[R. 67]. It was “a minor work of art.” [R. 68]. Asked

if he thought the book obscene, he answered “If I

should answer that—may I ask a question? If I say

No, I don’t want to be forced to define ‘obscene’ be-

cause I am not sure what you are getting at, but I do

not think that— . . . I do not find the book offensive.

I do not find the book offensive. I find it erotic.” In

answer to the question, “Do you feel that the book

arouses prurient interest in the reader,” he said, “I do

feel that I cannot judge. I am not qualtied to judge this

matter. This is a matter for a sociologist.’ As he recalled,

all of the characters have some relationship to the depict-

ing of a sexual relationship of some sort [R. 68]. In

answer to the question, “If we we.e to remove all the

sexual relations out of this book, how much of the book

will we have left, proportionately?” he replied, “I would

disagree with the former witness who said it was less

than 50 per cent of the book that deals with sexual mat-

ters.” [R. 69].

On re-direct examination, he was asked if the moral

value which he testified he found in the book that

“sex with love is a good thing” was the only value he

found, he stated, “Oh, no. I mean that this was value

in the sense of a theme in the book—one of the themes,

the development of the character, the structure of the

plot, the setting, the style, and so forth and so on. There

are other themes, in other words, in the novel. This is

one of themes.” [R. 70].

Norman N. Holland, Associate Professor of Eng-

lish at M.I.T. testified to his experience. He had been

teaching English literature 11 years, two years as a

Se,

a Se

teaching fellow and 9 years full-time teaching [R. 70-

71}.

Mr. Holland testified that he had read the book and

was of the opinion it has “literary merit and it has

other values” [R. 71].

He found it “extremely interesting from the point of

view of a literary historian, essentially as a record of

the historical, psychological, social events of the period.”

Cleland occupied an interesting part in the novel of

1748 and its transition from epistolary form to a more

straight-forward narrative technique. The descriptions

of clothes, prices, customs, the theme of inherited wealth

[R. 71] the “insight into the awakening of a woman,

into the sexual act, both its normal and its perverted

forms”, the “sexual tastes of the 18th Century” such

as the tendency away from nakedness during the sex act

were “an interesting sort of sociological observation”

[R. 72].

Mr. Holland testified that in terms of literary merit,

he would place Fanny Hill below the works of Field-

ing’s, Joseph Andrews and Tom Jones and above De-

foe’s Moll Flanders, “which makes ii, I would say, not

a great novel but certainly a rather good one.” In terms

of value of a novel, “we would ask that the style and

the content work together to create a meaningful expres-

sion,” [R. 72]. As to the novel’s style, the technical

term is “pariphrasis” but essentially what is meant is,

a spade is not called a spade. “It is masking over the

events described by different kinds of metaphores and

figures of speech, as, for example, when she is in her

encounter with a sailor, she slips into nautical

figures of speech. She refers constantly to the male sex-

ual organ as an engine, this kind of thing, which is

pulling you away from the way these events would be

described in the 19th or 20th Century.” [R. 72]. He

thought the style was “a sense of masking over the

events described” “Cleland is using the various sexual

acts in the novel to trace the moral progress of his

heroine”. He thought that the sexual content of the

novel is part and parcel of the theme and would agree

that the theme of the novel in a simplified form, is that

sex with love is a good thing, morally, psychologically”

[R. 73].

Mr. Holland testified that he found two observations

of people’s human behavior which were of interest to

him. One was the awakening of Fanny as a woman to

a womah’s mature sexuality, as to which he thought

Cleland had considerable insight. The other was the

treatment of the masochist, in that Cleland presented

the pain as a prepayment for his own guilt which he

received out of the pleasure of the sexual relationship, a

view of masochism he thought extraordinary in the

year 1748 [R. 74].

On cross-examination by the Assistant Attorney Gen-

eral, Mr. Holland stated that he found “A good deal’’

of “Sexuality, the sexual drive” in the book [R. 74].

The term “engine” and “machine” used for the male

sex organ [R. 75] was quite specifically described, but

it was in “this funny 18th Century language” [R. 76].

The trial judge commented, “I think I understand a

description whether given in the 18th Century or not.”

Asked if he would use the type of language that is used

in the book over the breakfast table with his wife, he

replied that he would if he were “so skilled to speak it”

[R. 77].

—,

ny, )

On re-direct examination by the intervenor’s attorney,

he stated that it had never been thought to be a literary

requirement that a novel deal with all aspects of life and

the fact that a novel deals with only one aspect of life

would not deprive it of its quality of a work of art

[R. 78].

Intervenor’s attorney offered in evidence Exhibits

B through I (Copies of newspapers, and a copy of Life

Magazine, dealing with the treatment of the Profumo-

Ward scandals in England in June and July of 1963)

as bearing on the issue of contemporary community

standards [R. 78] 1.e., what the general public was read-

ing at about the time Fanny Hill was published by In-

tervenors in September and October of 1963. The court

admitted the exhibits noting, “Just a cursory reading

of them indicates that these late events are quite dif-

ferent than those detailed in the book” [R. 81].

Walter Minton, President of G. P. Putnam’s & Sons

testified that his company had been publishing books

since 1838 and that he had been president for 9 years.

In its earlier history the company had published some

of the writers of the New York school including Wash-

ington Irving, James Fenimore Cooper, Edgar Allan

Poe; Herman Melville. In more recent years they have

published Sholem Asch, Vladimir Nabakov and Pearl

Buck [R. 82].

Putnam’s & Sons had received a considerable number

of orders for the book from colleges and libraries. They

had received two communications from the Library of

Congress, one requesting the copy of the book which

they had failed to file for copyright purposes; the other,

a request to translate the book into Braille, “which the

—

Library of Congress does with a number of books it

deems of general interest” [R. 83].

Mr. Minton testified that the book was distributed

through the ordinary channels of distribution that Put-

nam’s employed for its lists generally; through normal

bookstore accounts and wholesalers who service smaller

bookstores as well as supplying public and college librar-

ies [R. 84].

Ira Konigsberg, Assistant Professor of English and

American literature at Brandeis University, Waltham,

testified to his experience. He had been teaching litera-

ture for 9 years and specialized in the 18th Century

novel. He was finishing a book that deals with the 18th

Century novel from 1700 through 1740 [R. 84].

Mr. Konigsberg testified that he had read the book

and was of the opinion that “it is an extremely signif-

icant literary work”. He based his opinion on three

standards: It’s significance as a literary document for a

modern day reader, its significance in the history of Eng-

lish literature, and its significance in terms of the moral

values that a literary work can advocate [R. 85].

Mr Konigsberg testified that in terms of its literary

value for the contemporary reader it was a novel that

fulfilled the requirements of serious literature. It “‘at-

tempts to create an illusion of reality for the reader

through the creation of realistic characters, realistically

portrayed in a semi-credible or realistic situation” and

“the various episodes, the chapters, are all unified to-

gether for one specific end, and that is the writing

of a complete work of art itself.” [R. 85].

Mr. Konigsberg testified that in terms of its histori-

cal importance, its publication in 1749 was “extremely

significant”, “With Fielding’s work ‘Tom Jones’ Clel-

and’s ‘Memoirs of a Woman of Pleasure’ is a very spe-

cific reaction to a kind of literature that was published

at the time, that is, the novels, in particular, of Samuel

Richardson.” [R. 85]. “Richardson believed that chastity

was the most important thing in the world; Cleland

and Fielding obviously did not and thought there were

more important significant moral values.” [R. 86]. “to

sum up this point,” Fanny Hill was of historical im-

portance because it “tells us about a cultural conflict

in the 18th Century”, “tells us something about the

literary plots and character types that were being used”

[R. 86] and “tells us something about the development

of the English novel as a literary form” which “cannot

be emphasized enough” since before 1740 “there is sim-

ply no modern English novel”. “Cleland is right there

at the beginning, and his work is extremely significant

in this way” [R. 97]. Cleland’s prose style makes him a

remarkable “literary stylist of the novel” In his opinion,

“Cleland is not one of the six major novelists of the

period, but he is significantly better than the rest of the

minor figures.” [R. 88].

Mr. Konigsberg testified that it was an important

literary book because it made a serious statement

about life and experience [R. 88].

Mr. Konigsberg stated that the Commonwealth period

of extreme expression of freedom of life in 17th Cen-

tury England was followed by the reactionary Restora-

tion period which was an excessive kind of libertine life

and excessive sexual freedom. This in turn was followed

by the significant middle-class reaction at the beginning

of the 18th Century, of which Richardson, Fielding and

Cleland were a part, which had a Puritanical emphasis

-—

upon chastity. In his opinion Fielding and Cleland were

“trying to advocate a more wholesome view of life it-

self and the relationship between the sexes’ in reaction

to what Richardson was doing [R. 89].

Asked to compare the attitude toward sex in Cleland’s

book with the same attitude as reflected in a good many

contemporary novels such as James Baldwin’s “Giovan-

nis Room”, John Updike’s “Run Rabbit Run,” Mary

McCarthy’s “The Group”, Norman Mailer’s “The Naked

and the Dead” and James Jones’ ‘‘From Here to Eter-

nity” [R. 90], Mr. Konigsberg replied that “the treat-

ment in Cleland’s novel is obviously more healthy”. The

contemporary novels “deal with various kinds of love in

modern 20th day society, and it is generally treated ruth-

lessly. That is, the relationship between the sexes is seen

as another manifestation of modern decadence, insteril-

ity, or perversion. Cleland’s point simply is this, that,

with love, the relationship between men and women can

be a wholesome, healthy, experience itself.” [R. 91].

The trial court asked, “What about the three other

girls whose history is given in the book besides Fanny ?

Remember about three other associates of hers in what-

ever you might call her calling?” [R. 91]. The witness

answered, “Well, actually, they are dealt with similarly

in a complex manner. If I recall, the three of them end

up well... .” [R. 91]. Fanny is “quite willing to expose”

the various aspects of the three girls’ professional life

which are “perverse or in bad taste or without love” but

“when the actual relationship with men is one composed

partly of love, then she is willing not to condemn it but

to appreciate it, and the same standard is held with

these women.” [R. 92]. In answer to the trial court’s

question, “Would you say these three other girls told

—,

—24—

about their experiences with a sense of pride?” or

“Sense of exultation?” he replied, “No, I wouldn’t use

those particular words. I think they are too strong for

that... .” [R. 92].

Mr. Konigsberg stated that in the modern novel

and in art forms we “have an emphasis today upon viola-

tion of physical being, upon grotesqueness, upon various

kinds of physical injury and harm. This is very prey-

alent in the modern novel as well as in other art forms.

What Cleland is saying is just the opposite, that the

human body is something that is wholesome, that is

healthy, that is normal, and that is beautiful, and when

people come together in love, then in the experience it-

self is something that is wholesome. . . .” [R. 92-93].

In answer to the trial court’s question, “What about

the whipping incident” and “The homosexual incident”

and “The lesbianism?” the witness replied, “These acts

of sexual perversion are there to be juxtaposed to the

acts which are partaken in sexual health. Otherwise the

point couldn’t be made.” [R. 93]. In answer to the

trial court’s question, ‘““Would you describe the descrip-

tion given by the author of these acts as pornographic?”

the witness answered, “Could you tell me what you

mean by pornographic” and “I don’t know what you

mean, I know what I would mean by pornographic”

[R. 93].

On cross-examination by the Attorney General, Mr.

Konigsberg stated that he was presently writing “a

scholarly book on the novel’. In answer to the question,

“Do they deal with sex in the same way that Fanny

Hill deals with sex?” he replied, “I can answer that

with a qualification. The qualification is no two books

can handle sex the same, but they do have a similar

«allen

emphasis upon sexual matters, yes.” Asked if he could

write his scholarly work without the benefit of Fanny

Hill, he answered, “Yes, I could, although it would be

—.” [R. 94].

The attorney for the intervenor rested his case.

In his findings the trial judge reversed his ruling as

to Exhibits 1 to 4 and considered them in his delibera-

tion [R. 104]. On September 3, 1964, the trial judge

entered extensive findings of fact, rulings of law, and an

order for a final decree that the book entitled “John

Cleland’s Memoirs of a Woman of Pleasure” commonly

known as “Fanny Hil!” is not entitled to the protection

of the First Amendment of the United States Constitu-

tion, and finding the said book obscene under the pro-

visions of General Laws, Chapter 272, Section 28 C, E

and F, as amended by Statutes 1945, Chapter 278 [R

100-117].

The trial court said, at R-116 “Careful review of all

the expert testimony has been made, but, the best evi-

dence of all, is the book itself and it plainly has no value

because of ideas, news or artistic, literary or scientific

attributes. Attorney General v. Tropic of Cancer, 345

Mass. 11, at 16. Nor does it have any other merit.

‘This court will not adopt a rule of law which states

obscenity is suppressible but well written obscenity is

not.’ Mr. Justice Scilippi in People v. Fritch, 13 N.Y.

2d 119. No ‘weighing’ of any of its alleged social im-

portance against its prurient interest appeal is needed.

‘Hard-core’ pornography has no literary merit or so-

cial value. Attorney General v. Tropic of Cancer, 345

Mass. 11, 15, fn 5. It is concluded that this book is

‘utterly without redeeming social importance’ in the fields

—"

of art, literature, science, news or ideas of any social

importance and that it is obscene, indecent and impure.’ ”

The final decree was entered on December 17, 1964.

The Supreme Judicial Court of Massachusetts af-

firmed the decision in Attorney General v. A Book

Named “John Cleland’s Memoirs of a Woman of Pleas-

ure”, 206 N.E. 2d 403 (April 22, 1965). This opinion

appears at R-120-129.

Summary of Argument.

The public policy of the United States Supreme Court

has always championed the obscenity laws. Yet with all

of this case law support, the communities are being in-

undated by a horde of obscenity which the law is not

reaching.

The prosecutors are claiming that they have no reme-

dy and that the Supreme Court stands too eager to re-

verse their successes, when they occur. Amicus do not

picture this to be the true situation.

This Court recognizes that the debasement of sex has

been with mankind down through the centuries and that

the obscenity laws are necessary for a strong commu-

nity life. The Roth-Alberts decision is testimony of the

, fact that criminal penalties are authorized procedures

to regulate this type of conduct.

Most of the recent cases before this Court since 1957

have involved “previous restraint” controls, such as

movie licensing cases, search warrant procedures, the

right of the postmaster to refuse mail on the grounds

it is obscene, etc. Whereas an earlier Court in Near v.

Minnesota had indicated “previous restraint” could

clearly be employed against obscene materials, this mod-

— =

ern Court has restricted that interpretation considerably

by procedural rules. In doing so, a number of obscenity

judgments were reversed on procedural grounds, making

it appear that this Court was releasing the matter as

not being obscene. Such decisions have misled and dis-

couraged prosecutors.

In several cases the justices have been unable to agree

on an “Opinion of the Court.” The theories of the case

set forth by the individual justices do not lead to an

orderly understanding of the law.

On the other hand, this Court has denied review in at

least 21 criminal cases which have come before it since

1957. These cases were without opinion and have not

been publicized. They are not generally known to the

individual prosecutors, who lose heart when they see all

losses and no victories.

Then too, some prosecutors do not recognize the dis-

tinction between criminal prosecutions and previous re-

straint cases. The prosecutors need a direct signal from

the Court.

II.

The presence of “Fanny Hill” in this Court places the

spotlight on the real substantive matters at issue—the

concern of government and courts of justice over the

corrosive effects which weigh against the people’s sense

of sexual morality, and the sovereign right of a state

government to control conduct relating thereto. Proper

consideration must be given to the historic reasons for

the obscenity laws. It is wrong to concentrate one’s atten-

tion solely on the rule under which the law is adminis-

tered.

Two centuries ago the Commun Law Courts of Eng-

land were faced with a historic situation, similar to that

—

in the present day United States. The community was

surrounded with an excessive kind of libertine life, with

excessive sexual freedom. To combat these excesses in

the field of literature those Courts in 1727 created the

Common Law Crime of Obscene Libel. Twenty two

years later, the book which is in this Court was first pub-

lished, and upon publication was caught in the 2_»res

of the obscenity laws. It has, since that time, enjoyed

over 214 years of suppression.

Appellant cannot assume the disguise of an old line

publishing company, having made a very deliberate and

substantial move into the production of erotic litera-

ture. Other publishers, with lesser reputations, are also

producing “Fanny Hill’. Most of the other publishers

deal exclusively in sex materials. All are interested in

capitalizing commercially on its erotic qualities. All

operations will be equally affected.

The function of the obscenity laws is to preserve the

peace of government by preserving the morality of

the people. If vice is tolerated, it affects our standards

of morality adversely. The great majority of people be-

lieve that the morals of “‘bad’”’ people do threaten the

security of the “good” people and that a minority should

not be permitted to flaunt their immoralities where they

will shock others. Parents have a right to shape the

moral notions of their children and the general public

have a right not to be subjected to violent psychological

assault.

We contend that strong obscenity law enforcement can

assist in reversing the current trend toward anti-social

sexual misconduct.

The constitutional test expressed in the Roth-Alberts

case in 1957 has not been changed. Subject matter whose

—

dominant appeal is to prurient interest can be proscribed.

The interest is either “prurient” or it is “‘normal.’’ The

line between candor and shame is a narrow one. To al-

low sufficient leeway so as not to inhibit legitimate ex-

pression, the proscribed material must be sufficiently

over the line. A jury trial in a criminal forum provides

this safeguard, as does the requirement that the mate-

rial must go “substantially beyond customary limits of

candor.”

—-.:

Slight social importance does not exculpate where

the predominant appeal is to prurient interest. The result

is otherwise if the degree of pruriency is submerged and

the social interest is the predominant theme.

Subsequent events have indicated that the result in

Grove Press Inc. v. Gerstein should be abandoned.

Neither courts, law enforcement or publishers under-

stand the distinction between “obscenity” and “well-writ-

ten obscenity.” If courts can require decency in expres-

sion from attorneys who present ideas in the courtroom,

the communities should be able to require the same de-

gree of decency from artists in the market place.

“Fanny Hill’ is obscene under all standards. It is es-

sentially an appeal to the “voyeur”’ perversion.

It has been the universal judgment of history that

“Fanny Hill” should be restrained.

——

ARGUMENT.

AN INTEGRATED REVIEW OF THE

OBSCENITY CASE LAW.

A. Public Policy.

The public policy of this Court has always cham-

pioned the obscenity laws. See Rosen v. U. S., 161 U.S.

606 (1896),’ decided by the U.S. Supreme Court at

the turn of the century. This favored policy is not dif-

ficult of understanding. Central to our heritage is the ex-

pectation that our Courts should strive to preserve

our heritage and should not give scandal’ by tolerat-

ing anything which tends to debase public morals.

1Rosen attempted to escape a jury conviction on an obscenity

charge on a technicality. He sought his freedom on appeal, argu-

ing that, because the People had not described the obscenity in

their complaint (referred to by the court as “the record”), he

had not been properly informed of the nature of the crime. United

States Supreme Court Justice John Marshall Harlan, grand-

father of the present United States Supreme Court Justice John

Marshall Harlan, rejected this plea out of hand and, in invoking

the unanimous rule of the courts at that time, drew from the

language of an earlier Massachusetts Supreme Court decision at

page 608:

“Tt can never be required that an obscene book and pic-

ture should be displayed upon the records of the court... .

This would be to require that the People itself should give

permanency and notoriety to indecency in order to pun-

ish it.”

His Massachusetts reference was the first recorded case in the

United States against a book, Commonwealth v. Holmes, (1821).

The book in the Massachusetts case was “Fanny Hill,” a cen-

tury and a half later to find its way before this Court in A

Book Names “John Cleland’s Memoirs of A Woman of Pleas-

po * uw. Attorney General of Massachusetts, October Term, No.

*Webster’s Collegiate Dictionary, Fifth Edition, defines “scan-

dal” as “The distressing effect on others of unseemly or un-

righteous conduct; especially, an occasion of another’s lapse in

faith or morals as to give scandal to one’s children . . . 3. That

which offends established moral conceptions or disgraces all who

are associated or involved.” Tolerance of indecency, for any rea-

son, even for purposes of administration, had the undesirable ef-

fect of giving notoriety and acceptance to the material and dig-

nifying its appearance.

Less than 35 years ago this Court underscored this

same “favored position” of the obscenity laws when, in

Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L.

Ed. 1357 (1931)* the members of that Court made it

clear that immunity from previous restraint did not

extend to obscene publications.

Eleven years later, not one member of the 1942 Court

entertained any doubt that the existence of obscenity

was contrary to the people’s abiding interest in good pub-

lic morals. Neither the prevention of publication (previ-

ous restraint) nor criminal punishment for dissemina-

tion raised any constitutional problems in their view. In

Chaplinsky v. New Hamphsire, 315 U.S. 568, 86 L.

Ed. 1031, 62 S. Ct. 766 (1942) that Court said at

page 571:

“|. There are certain well-defined and narrowly

limited classes of speech, the prevention and pun-

ishment of which have never been thought to raise

any Constitutional problem. These include the lewd

and obscene. . . . It has been weil observed that

such utterances are no essential part of any exposi-

tion of ideas, and are of such slight social value

as a step to truth that any benefit that may be de-

rived from them is clearly outweighed by the so-

cial interest in order and morality. . . .”

8“The objection has . . . been made that the principle as to

immunity from previous restraint is stated too broadly, if every

such restraint is deemed to be prohibited. That is undoubtedly

true; the protection ewen as to previous restraint is not absolutely

unlimited. But the limitation has been recognized only in excep-

tional cases. ‘When a nation is at war many things that might be

said in time of peace are such a hindrance to its effort that

their utterance will mot be endured so long as men fight and

that no Court could regard them as protected by any constitu-

tional right.’ Schenck v. United States, 249 U.S. 47, 52. No one

would question but that a government might prevent actual ob-

struction to its recruiting service or the publication of the sailing

dates of transports or the number and location of troops. On

similar grounds, the primary requirements of decency may be

enforced against obsceme publications.” (Our exaphasis. )

= =

Ten years later, the majority of the members of the

1952 Court in Beauharnais v. Illinois, 343 U.S. 250,

72 S. Ct. 725, 96 L. Ed 919 (1952) agreed with the

Chaplinsky Court, adding:

“Certainly no one would contend that obscene

speech, for example, may be punished only upon a

showing of such circumstances (clear and present

danger)...”

When, five years later, in Roth v. U.S. and Alberts

v. California, 354 U.S. 476, 77 S. Ct. 1314, 1 L. Ed

2d 1498 (June 24, 1957), this present Court was faced

with a broadside attack on the statutes guarding pub-

lic decency, seven members of this modern court stood

firm and enunciated a solid distaste for obscenity. Rosen

v. U.S. (supra), Near v. Minnesota (supra), Chaplin-

sky v. New Hampshire (supra), and Beauharnais v, II-

linois (supra) were all confirmed. The language of

Rosen was cited with approval. Everyone was charged

with notice of what must be deemed obscene. The Roth-

Alberts majority opinion placed emphasis on the lan-

guage of Chaplinsky noted above. Obscene utterances

were of such slight social value as a step to truth that

any benefit to be derived from them was clearly out-

weighed by the social interest in order and morality.

The above language of the Beauharnais Court was cited

with approval. No one could contend that obscene speech

could be punished only upon a showing of a clear and

present danger.

Under such a regime, it did appear as though the

communities had the proper defense mechanisms and the

modern assault on public morality could easily be turned

back.

= =

Yet with all this unanimity, elegance of language, and

profuseness of citation to buttress the foundations of

our anti-obscenity fortresses, the stockades are present-

ly in danger of collapsing for lack of riflemen, abetted

by confusion. The communities of this nation, eight

years later, find themselves with a horde of filth, print-

ed, visual, vocal and otherwise, of unprecedented force,

threatening to erode the very foundations of the basic

morality upon which our nation and our Constitution

were founded.’ In the face of this peril the public prose-

4“A tide of printed filth is advancing across the land in a

way which should give every wholesome-thinking person cause

to wonder whether it may not erode the very foundations of the

basic morality upon which our nation and our Constitution were

founded.

In bookstores, railroad stations, air terminals, drug stores,

everywhere that print is displayed and pictures revealed, there

stand pyramids of smut, pornography and obscenity contaminat-

ing the very air in which they rest. Language which would be

too raw and grating for the dives of opium-smoking debauchees

degrades and defaces the paper which carries it.

Magazines with pictures and sketches that would disgrace

oriental harems are sold to children as if they were as innocuous

as bags of popcorn. Exotic rites that would bring the blush of

shame to the faces of the most primitive tribes are described

with nonchalance in high-priced books, medium-priced books,

and low-priced books. Themes which should be the subject only

for clinical studies in the hospitals for the criminal insane are

turned into scarifying stories which are bound to bring harm to

the youths into whose hands they fall.

Acts of degeneracy and unnatural conduct are being portrayed

in contemporary literature as if they were normal and accepted

practice in civilized life. Adultery and every other type of =

and sinful conduct is being depicted glamorously, as if calling for

emulation.

The healthful, romantic, and poetic relationship between man

and woman is being treated in the basest and most animalistic

terms.

Under the false guise of instruction and knowledge, so-called

manuals on marriage are being turned out in myriads of copies

for the sole purpose of appealing to prurient and lascivious minds.

The sick outpourings of degenerate brains are being bound in

hardback books and paperback books and sometimes in elegant and

expensive leather. Titles and cover pictures which in themselves

cutor bleats that he has no remedy and that it is useless

to prosecute, since the Supreme Court will reverse the

jury’s findings.

CDL is at complete odds with such ideology. Unlike

our knowledge of outer space, which is increasing in ge-

ometric proportions through discoveries in space explo-

rations, our knowledge of sex is profound, for sex has

been with us since the beginning of mankind. As to the

sexual relation, it can be said, with some degree of

truth, that there is “nothing new under the sun.” Simi-

larly, the assault which has as its objective the debase-

ment of sex has been with mankind down through the

centuries. That which motivates the pornographer, in

1965, motivated John Cleland two centuries earlier. Rec-

ognition of the universal need for strong community

are suggestive, pornographic, indecent and obscene shout their vul-

garity to passersby.

It used to be that pornographic literature, to the extent that

it existed, was sold clandestinely. The secrecy and the furtive-

ness with which it was sold and circulated was an indication

that the public looked upon it as something improper and not

in consonance with the morals of the community. But now the

most salacious books, the most degrading publications are sold in

book stores, drug stores, five and ten cent stores, and at the

newsstands. It is difficult to think of a place where print appears

that one’s eyes and spirit will not be assailed by pornography

of the vilest character.

In short, a wide river of filth is sweeping across the nation,

befouling its shores and spreading over the land its nauseating

stench. But, what is most disturbing of all, is that persons,

whose noses should be particularly sensitive to this olfactory as-

sault, do not smell it at all. I refer to district attorneys and prose-

cuting officers throughout the nation. Of course, there are a large

number of district attorneys in the country who are doing their

duty and doing it well, but a larger number of prosecuting of-

ficials are shrugging unconcerned shoulders at this violent as-

sault on law, morality and decency.”

. .. From an address given by Associate Justice Michael

A. Musmanno of the Pennsylvania Supreme Court at

the Waldorf-Astoria New York City on October 23, 1965.

controls in this modern era has amply been witnessed

by this Court in Roth-Alberts when it said at page

484:

“But implicit in the history of the First Amend-

ment is the rejection of obscenity as utterly with-

out redeeming social importance. This rejection for

that reason is mirrored in the universal judgment

that obscenity should be restrained, reflected in the

international agreement of over 50 nations, in the

obscenity laws of all of the 48 states, and in the

20 obscenity laws enacted by the Congress from

1942 to 1956... .”

Nevertheless, there is, in our opinion, a crisis facing this

nation which requires the members of this Court to bear

witness through concrete action and to drive home, once

and for all, the basic fact, which is escaping so many

at the present time, that this Court really has not, in

its decisions since Roth-Alberts underwritten the sale of

“perversion for profit.”

If we understand correctly what has occurred in the

ensuing years since Roth-Alberts, this Court has not

altered the basic position taken by it in those cases;

namely that criminal cases which applied the proper

standard for judging obscenity, did not offend constitu-

tional privileges. This Court held at page 492:

“In summary then, we hold that these statutes, ap-

plied according to the proper standards for judging

obscemty, do not offend constitutional safeguards

against convictions based upon protected material.

or fail to give men in acting adequate notice of

what is prohibited. . . .” (Our emphasis).

—

B. The Problem of Previous Restraint Cases.

Unfortunately, a line of cases followed which enjoyed

in common the element of previous restraint,’ a factor

not present in the Roth and Alberts cases, which author-

ized criminal penalties as the just consequences of the

defendants’ temerous conduct. This Court did not react

as favorably to this new issue as the earlier Courts in

Near v. Minnesota (supra) which had excluded pre-

vious restraint controls in the case of obscene publica-

tions from the operation of the Blackstone rule, which

held that:

“The liberty of the press is indeed essential to the

5Previous (prior) restraint was a major issue in each of the

following: Times Film Corporation v. City of Chicago, 355

U.S. 35, 78 S. Ct. 115, 2 L. Ed. 2d 72 (1957) (Movie li-

cense—no opinion), reversing 244 F. 2d 432 (7th Cir. 1957)

and 139 F. Supp. 837 (1956); Mounce v. U. S., 355 U.S. 180,

2 L. Ed. 2d 187 (1957) (customs case—no opinion), reversing

247 F. 2d 148 (9th Cir. 1957) and 134 F. Supp. 490 (i955);

One Inc. v. Olesen, 355 U.S. 371, 78 S. Ct. 364, 2 L. Ed. 2d

352 (1958) (right to deposit mail—no opinion) reversing 241

F. 2d 772 (9th Cir. 1957); Sunshine Book Co. v. Summerfield,

355 U.S. 372, 78 S. Ct. 365, 2 L. Ed. 2d 352 (1958) (right

to deposit mail—no opinion) reversing 249 F. 2d 114 (D.C.

Circuit 1957) and 128 F. Supp. 564 (1955); Times Film Corp.

v. City of Chicago, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d

403 (Jan. 23, 1961) (movie license) reversing 272 F. 2d 9

(7th Cir. 1959) and 180 F. Supp. 843 (1959); Marcus v.

Kansas City Search Warrants, 367 U.S. 717, 81 S. Ct. 1708,

6 L. Ed. 2d 1127 (June 19, 1961) (Seizure), reversing 344

S.W. 2d 119 (1960); Manual Enterprises Inc. v. Day, 370 US.

478, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (June 25, 1962) (right

to deposit mail), reversing 289 F. 2d 455 (D.C. Circuit 1961)

Bantam Books Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631,

9 L. Ed. 2d 584 (Feb. 18, 1963) (Warnings) reversing 176

A. 2d 393; A Quantity of Books v. Kansas, 378 U.S. 205,

84 S. Ct. 1723, 12 L. Ed. 2d 809 (June 22, 1964) (Seizure),

reversing 191 Kan. 13, 379 P. 2d 254 (1963) ; Freeman v. Mary-

land, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (Mar.

1, 1965) (Movie license), reversing 233 Md. 458, 197 A. 2d

232 (1964); Trans-Lux Distributing Corp. v. Board of Regents

of the University of New York, 380 U.S. 259, 85 S. Ct. 952,

13 L. Ed. 2d 959 (1965) (movie license—no opinion). Revers-

ing 14 N.Y. 2d 88, 248 N.Y.S. 2d 857 (1964).

nature of a free state; but this consists in laying

no previous restraints upon publications, and not in

freedom from censure for criminal matter when

published. Every free man has an undoubted right

to lay what sentiments he pleases before the pub-

lic; to forbid this, is to destroy the freedom of the

press; but if he publishes what is improper, mis-

chievous or illegal, he must take the consequence of

his own temerity” 4 Bl. Com. 151, 152.

The cloud of confusion which was to appear was fore-

case in Kingsley Book Inc. v. Brown, 354 U.S. 436, 77

S. Ct. 1325, 1 L. Ed. 2d 1469 (June 24, 1957), decided

on the same day with Roth-Alberts. In that case, this

Court split five-to-four in approving the New York in-

junctive action, which authorized limited previous re-

straint. It was here that Justice Brennan and Warren

parted company with the majority in the Roth and the

earlier Courts.

The confusion and disruption commenced one year

later with the per curiam reversals without opinion in

the Times Film Corporation, One Inc., and Sunshine

Book Co. cases® (cited in footnote 5). Later written

®For example, the claim is widespread that Sunshine Book Com-

pany stands for the proposition that nudist magazines are not

obscene, no matter what may be the publisher’s or disseminator’s

intent, the format, method of distribution, policy of the state

etc. See here the recent result in Connecticut v. Martin et al.

(June 17, 1965), where the Appellate Division of the Circuit

Court reversed (2-1) an extremely well reasoned trial court

opinion, solely upon the basis of the Sunshine Book Co. case.

We believe such claim to be utterly groundless. See Gutdoor Amer-

ican Corporation v. City of Philadelphia, 333 F. 2d 1963 (June

30, 1964) certiorari denied 85 S. Ct. 192, 13 L. Ed. 2d 176

(Nov. 9, 1964); Luros v. Hanson, petition for certiorari filed

Sept. 27, 1965, Oct. Term, 1965 No. 620; Hadley v. Arkansas,

205 Ark. 1027, 172 S.W. 2d 237 (1943); King v. Common-

wealth, 233 S.W. 2d 522 (Oct. 20, 1950); Missouri v. Becker,

364 Mo. 1079, 272 S.W. 2d 283 (1954), cited with approval in

opinions in Marcus, Manual Enterprises, Inc. and A

Quantity of Books gave specific recognition to the fact

that the obscenity issue was not reached in this Court's

reversals of those lower Court judgments on previous

restraint grounds. What factor the previous restraint

element played in the 1958 decisions will never be

known." Subsequent opinions have revealed a common

disagreement between the justices on what constitutes

the vital phase of the case. See the No Clear Majority

Decisions, infra. Then too, the Court’s membership has

changed.*

As breeding grounds, the 1958 per curiam reversals

acted with catalytic action to spawn the “hard core por-

nography” rule in one of the major centers of porno-

praphic production in the United States. New York v,

Richmond County News Co., 175 N.E. 2d 681 (May 25,

Roth-Alberts at footnote 26; Sunshine Publishing Co. v. George

N. Parris (unreported, Circuit Court, Macomb County April 29,

1963); Nebraska v. Jungclaus, 176 Neb. 641, 126 N.W. 2d

858 (Mar. 13, 1964); Dale Book Co. v. Leary, 233 F. Supp.

754 (Aug. 12, 1964); City of Phoenix v. Fine (unreported, Su-

perior Court Maricopa County, Arizona, Jan. 22, 1965) ; Missouri

v. Vollmar, 389 S.W. 2d 20 (Mar. 8, 1965); Virginie v. Dave

Rosenbloom (unreported, Suffolk County, Richmond, Virginia,

June 10, 1965); Arizona v. Arizona Magazine Distributors Inc.

(unreported, West Phoenix Justice Court, Maricopa County,

Aug. 26, 1965) ; Arizona v. Al Sacks (unreported, West Phoenix

Justice Court, Maricopa County, Sept. 1, 1965).

"The per curiam decisions are criticized in “Obscenity, Pornog-

raphy and Censorship by Thomas R. Mulroy of the Illinois Bar

in 49 American Bar Association Journal (Sept. 1963) at 869.

The author cites Justice Jackson’s remarks on the empirical

reversal of a case without opinion in Brownell v. Singer, 347 U.S.

403 (1954) :

“The Court’s one-word decision reverses concurring judg-

ments of three highly respected courts . . . (by citing) a

single case. . . . I think this Court owed those Courts and

the legal profession something more than reference to an

inapplicable decision.”

SJustices Frankfurter, Whittaker and Burton have been re-

placed by Justices Fortas, White and Stewart.

anion

1961.)*° Abetted by a misconstruction of the no clear

majority opinion decision in the Manual Enterprises

Inc. case and a misapplication of the special view enter-

tained by Justice Harlan in federal cases, the “hard core

pornography” rule spread to the other major centers of

pornographic production. Zeitlin v, Arnebergh, 59 Cal.

2d 901, 31 Cal. Rptr. 800 (July 2, 1963).”°

C. The No Clear Majority Decisions.

The common disagreement between the justices has

given birth to a number of “no clear majori’y cleci-

sions which confound and confuse.’ Manuel © »ter-

*There is reason to believe that had Justice Desmond recog-

nized the significance of the previous restraint issue in the 19

cases, his deciding vote would have been cast differently and the

minority in that case would have prevailed. See Justice Des-

mond’s concurring opinion in the Richmond County News Co.

case, his concurring opinion in People v. Fritch, 13 N.Y. 2d

119 (June 10, 1963), and his dissenting opinions in Larkin

v. G. I. Distributors Inc., 14 N.Y. 2d 869 (June 10, 1964) ;

Larkin v. G. P. Putnam’s Sons, 14 N.Y. 2d 399 (July 10,

1964) ; People v. The Bookcase Inc. et al., 14 N.Y. 2d 409 (July

10, 1964).

That the California Supreme Court misinterpreted the Har-

lan view seems apparent from Justice Harlan’s vote to deny cer-

tiorari in Grove Press Inc. v. Gerstein, 378 U.S. 577 (June

22, 1964), a state case. The language of the Zeitlin case sug-

gests however, that the author would have come by the same

result no matter how he chose to interpret Justice Harlan’s opin-

ion in the Manual Enterprises case.

"One of the basic postulates of the American case law system

is that the decision of a majority determines the result, and an

“opinion of the court” is written expressing the reasoning agreed

upon by the majority. When a majority agree on the result, the

decision is final as between the litigants. When a majority agree

in the reasoning for the result, the opinion which expresses this

reasoning is called the “opinion of the court.” If a majority agree

on the result, but do not agree in the reasoning for the result,

there is no “opinion of the court,” even though the controversy

is ended as between the parties to the lawsuit.

The decision plus the reasoning found in the “opinion of the

court” determine the precedent value of any particular case. In

many obscenity cases, however, there has been no “opinion of

_—

prises Inc. v. Day, 370 U.S. 478, 82 S. Ct. 1432, 8 L,

Ed. 2d 639 (1962); Jacobellis v. Ohio, 378 U.S. 184,

84 S. Ct. 1676, 12 L. Ed, 2d 793 (1964) ; A Quantity of

Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L.

Ed. 2d 809 (1964); Grove Press Inc. v. Gerstein, 378

U.S. 577, 84 S. Ct. 1909, 12 L. Ed. 2d 1035 (1964);

Tralins v. Gerstein, 378 U.S. 576, 84 S. Ct. 1903, 12 L.

Ed. 2d 1033 (1964). The order in appearance of an

opinion, rather than solid precedent, often controls the

destiny of the people’s defenses against the assaults on

public morality.”

the court,” as where the majority have agreed only upon the re-

sult, (i.e., judgment reversed) but have not been able to agree

upon the supporting reasoning.

Text books on judicial precedent indicate that theoretically

the “no-clear-majority” decision stands only for its general result.

See Wambaugh, The Study of Cases (Second Edition, 1894), at

e 50:

= “Even when all the judges concur in the result, the value

of the case as an authority may be diminished and almost

wholly destroyed by the fact that the reasons given by the

several judges differ materially. . . . “There must be a con-

currence of a majority of the judges upon the principles,

rules of law, announced in the case, before they can be con-

sidered settled by a decision. If the court is equally divided

or less than a majority concur in a rule, no one will claim that

it has the force of the authority of the court.’ ”

Lat also Black, Handbook of Judicial Precedent (1912), pages

135-136:

“Tf all or a majority of the judges concur in the result .. .

but differ as to the reasons which lead them to this con-

clusion, the case is not an authority except upon the general

result.”

The confusion of the State courts as to what is taking place

in the United States Supreme Court is spotlighted in Arizona v.

Locks, 97 Ariz. 148, 397 P. 2d 949 (Dec. 30, 1964). That

court said, in error, at page 951:

“This was followed by Manual Enterprises Inc. v. Day,

370 U.S. 478 . . . holding the publication of photographs

of nude male figures designed to appeal to homosexuals not

to be so obscene as to lose the protection of the First Amend-

ment. (Our emphasis).”

The Arizona Supreme Court’s reversal of a jury decision on

girlie magazine subject matter was based largely on a compari-

a a

D. A Major National Problem.

In the absence of knowledgeable defending riflemen,

compounded vy the confusion, those well-buttressed for-

tresses are being subjected to a withering attack. On

October 21, 1965, the Los Angeles County Grand Jury

returned a two count indictment against 14 defendants

in California v. Milton Luros, et al., Superior Court

case No. 295,183, for conspiracy to manufacture and

distribute girlie magazines, nudist magazines and nine

lesbian-type paperback books (including Fanny Hill).

On February 15, 1965, the count covering the girlie

and nudist magazines was dismissed without trial in a

pre-trial motion to dismiss the indictment. Superior

Court Judge Walter R. Evans, in dismissing, had this

to say:

“In view of the time I have had to study it, I

have found it extremely interesting, but absolutely

amazing. | was concerned as to the extent to which

the United States Supreme Court—I am very

frank to say, and I think I am entitled to say

it, that I disagree wholeheartedly with the United

States Supreme Court cases. I think the so-called

founding fathers who promulgated our Constitution

probably would turn over in their graves if they saw

the extent to which the United States Supreme

Court has stretched the protection to this type of

material which to me, has no value to anybody.

However, that is my personal position. I want to get

that off my chest. I think there is nothing but filth

from beginning to end in this material. However,

son with this erroneous reference and belief that Justice Harlan’s

opinjon was the opinion of the Court. The Arizona Court had in-

dicated a different view on the subject matter when the case

was! before it previously in 372 P. 2d 724 (June 20, 1962)

and/382{P. 2d 241 (May 25, 1963).

}

—

that is my personal opinion, and I think that counsel

pointed out that I still have an obligation to follow

what I think are the rules laid down by the United

States Supreme Court. I was interested in reading

one of the learned justices who said that maybe

some day the balance will start swinging back where

honesty and decency would start entering into a con-

sideration of this thing. I hope it will.”

He thought eight of the lesbian-type paperbacks (but

strangely, not Fanny Hill) a jury issue, and Count 2

was set for trial. The people’s action was short lived

however. Although both the District Court of Appeal

and the California Supreme Court thereafter refused the

defendants a writ of prohibition on the count involving

the lesbian-type paperback books, Trial Judge Joseph

Sprankle dismissed the case, without trial on June 14,

1965. The books’ titles, Lesbian Sin Song, Two Women

in Love, Counterfeit Lesbian, Lesbian Captive, Les-

bians in White, The Girls at Wendy’s, The Three Way

Apartment and Honey Lips, sung out the perversion

they peddled.

In another action by the people—this time against a

notorious national disseminator located in New York—

a criminal obscenity indictment was short-circuited by

trial judge J. Irwin Shapiro, when he dismissed New

York v. Ray Kirk, Birch, All State News Co. Inc., et

al., 40 Misc. 2d 626, 243 N.Y.S. 2d 525 (Sept. 6, 1963)

without trial. In so holding, Judge Shapiro refused

to follow controlling precedent in his state, for one of

the books supporting the indictment had already been

held obscene by New York’s highest court in New Vork

v. Harry Fried, 18 A. 2d 996, 238 N.Y.S. 2d 742 (Mar.

26, 1963). Appeal dismissed for want of jurisdiction.

Treating the paper whereon the appeal was taken as a

petition for writ of certiorari, certiorari is denied (Jus-

tice Black, Douglas and Stewart are of the opinion

probable jurisdiction should be voted and judgment re-

versed 378 U.S. 578, 84 S. Ct. 1904, 12 L. Ed. 2d

1033 (June 22, 1964).

E. A Problem of Communication.

The confused results reached in the lower courts

noted above does not seem warranted to CDL, when one

considers the overwhelming weight of case law in the

opposite direction. The key to an awakening of law en-

forcement seems bound up in the remarks of Chief

Justice Warren in Jacobellis v. Ohio (supra) at page

1684:

“ .. This Court hears cases such as the instant

one not merely to rule upon the alleged obscenity

13Federal courts are equally confused. See United States v.

Klaw and Jack Kramer, 350 F. 2d 155 (2nd Circuit July 15,

1965) and Haldeman v. U.S., 340 F. 2d 59, 62 at fn. 6 (10th

Cir. Jan. 13, 1965):

“Mr. Justice Stewart, concurring in Jacobellis, declined to de-

fine the term ‘hard-core pornography,’ but stated: ‘I know

it when I see it . . .’ The writer of this opinion has also

felt that he would ‘know it when he saw it’ but a reading of

some of the published material held to be constitutionally pro-

tected tends to raise doubts regarding one’s perceptive abili-

ties in such matters. . .”

When District Judge George Templar found himself reversed

as the trial judge in the Haldeman case, he turned around and

dismissed two major federal grand jury indictments against na-

tionally notorious smut peddlers: Louis Linetsky aka John Am-

slow & Co. in United States v. Linetsky, No. T-CR 582 (D.C.

Kansas) (June 24, 1965) and an equally notorious smut mer-

chant in United States v. Wasserman (D.C. Kansas) No. T-CR-

581 (June 29, 1965). The former involved girlie magazines

and illustrations of females in the nude and the latter involved

motion picture films. Compare these results with Roth-Alberts

(supra); Frank L. Collier v. U.S. (infra); Herman L. Womack

v. U.S. (infra); Chobot v. Wisc. (infra); Roy A. Oakley v.

U.S. (infra) Monfred v. Maryland (infra); Heinecke v. U.S.

(infra) ; Goldstein v. Virginia (infra); Wenzler and Imlay v.

Calif. (infra).

44...

of a specific film or book but to establish principles

for the guidance of lower courts and legislatures.

Yet most of our decisions since Roth have been

given without opinion and have thus failed to fur-

nish such guidance... .” (our emphasis).

With the exception of the four per curiam decisions

in 1958, the only obscenity decisions since Roth-Al-

berts which have been without opinion, were those in

which this Court has dismissed an appeal or denied cer-

tiorari. This Court should call attention to these deci-

sions denying certiorari and dismissing appeals. In so

far as we have been able to ascertain they are 21 in

number :

John G. Matihews v. Florida, writ of certiorari

denied 356 U.S. 918, 78 S. Ct. 702, 2 L. Ed.

2d 714 (March 31, 1958), notwithstanding

the similarity of the statute to the Michigan

Statute in Butler v. Mich., 352 U.S. 80;

Wyman Hulan Parr v. U.S. (film), 255 F. 2d

86, writ of certiorari denied 358 U.S. 824, 79

S. Ct. 40, 3 L. Ed. 2d 64 (Oct. 13, 1958);

Mas Padell v. U.S. (paperback books), 262 F.

2d 357, writ of certiorari denied 359 U.S. 942

79 S. Ct. 723, 3 L. Ed. 2d 676 (March 23,

1959) ;

Robert H. Cain v. U.S., 274 F. 2d 598, writ of

certiorari denied 362 U.S. 952, 80 S. Ct. 864,

4L. Ed. 2d 869 (April 18, 1960) ;

Samuel R. Hochman v. U.S. (paperback books:

“The Sex Factory” and “Virgins Come High’’)

277 F. 2d 631, writ of certiorari denied (Jus-

tices Black and Douglas voted to grant cer-

tiorari) 364 U.S. 837, 81 S. Ct. 70, 5 L.

Ed. 2d 61 (Oct. 10, 1960) rehearing denied,

364 US. 96, 81 S. C..231, 5 L. Ee

2d 199 (Nov. 21, i960) ;

Frank L. Collier v. U.S. (photographs of nude

young men) 283 F. 2d 780, writ of certiorari

denied 365 U.S. 833, 81 S. Ct. 746, 5 L.

Ed. 2d 744 (March 6, 1961) ;

Herman Womack v. U.S. (photographs of nude

young men) 294 F. 2d 204, writ of cer-

tiorari denied 365 U.S. 859, 81 S. Ct. 826, 5

L. Ed. 2d 822 (March 27, 1961) ;

Astore v. U.S. (film) 288 F. 2d 26, writ of

certiorari denied, 366 U.S. 925, 81 S. Ct. 1352,

6 L. Ed. 2d 384 (May 15, 1961);

Joseph Chobot v. Wisconsin (girlie magazines:

“Spice” “Adam” “Spree” and “Blondes, Bru-

nettes, and Redheads”) 12 Wis. 2d 110, 106

N.W. 2d 286, appeal dismissed for lack of a

federal question (Justices Black, Douglas and

Harlan voted for probable jurisdiction), 368

U.S. 15, 82 S. Ct. 136, 7 L. Ed. 2d 85 (Oct.

23, 1961) rehearing denied 368 U.S. 936,

82 S. Ct. 358, 7 L. Ed. 2d 198 (Dec. 4,

1961) ;

Roy A. Oakley v. U. S. (unretouched photo- ~~~

graphs of naked young women) 290 F. 2d 517,

writ of certiorari denied 368 U.S. 888, 82 S.

Ct. 139, 7 L. Ed. 2d 87 (Oct. 23, 1961) re-

hearing denied, 368 U.S. 936, 82 S. Ct. 358,

7 L. Ed. 2d 198 (Dec. 4, 1961) ;

Harry Monfred et al. v. Maryland (girlie maga-

zines: “Candid” “Consort” “Sextet” “Cloud 9”

“Torrid”), 226 Md. 312, 173 A. 2d 173, writ

‘iil.

of certiorari denied 368 U.S. 953, 82 S. Ct.

395, 7 L. Ed. 2d 386 (Jan. 8, 1962) ;

Alfred J. Heinecke v. U.S. (Photographs of nude

young men—similar to U.S. v. Womack) 294

F. 2d 727, writ of certiorari denied (Justices

Black and Douglas voted to grant certiorari),

368 U.S. 901, 82 S. Ct. 173, 7 L. Ed. 2d 96

(Nov. 6, 1961) ;

Harold S. Kahm v. U.S. (for description of sub-

ject matter, see 300 F. 2d 78 at 82), 300 F.

2d 78, writ of certiorari denied 369 US.

859, 82 S. Ct. 949, 8 L. Ed. 2d 18 (April

23, 1962) ;

Louis Finkelstein et al. v. New York (paper-

back books: “Garden of Evil” and “Queen

Bee’), 229 N.Y.S. 2d 367, 183 N.E. 2d 661

writ of certiorari denied (Justice Douglas voted

to yrant certiorari), 371 U.S. 863, 83 S. Ct.

116, 9 L. Ed. 2d 100 (Oct. 15, 1962) ;

Harold Zucker v. New York (3 sado-masochis-

tic books similar to 50 books involved in New

York v. Mishkin, also before this court), writ

of certiorari denied (Justice Douglas voted to

grant certiorari) 371 U.S. 863, 83 S. Ct. 116,

9 L. Ed. 2d 100 (Oct. 15, 1962) ;

Arthur Goldstein v. Virginia (girlie magazines)

writ of certiorari denied 372 U.S. 910, 83 S.

Ct. 726, 9 L. Ed. 2d 720 (Feb. 18, 1963) ;

Edward Mishkin v. U.S. (books not named), 317

F. 2d 634, writ of certiorari denied 375 U.S.

827, 84 S. Ct. 71, 11 L. Ed. 2d 60 (Oct. 14,

1963) ;

John Darnell, III, v. U.S. (obscene letter), 316

F. 2d 813, writ of certiorari denied (Justice

Douglas voted to grant certiorari), 375 U.S.

916, 84 S. Ct. 205, 11 L. Ed. 2d 155 (Nov.

12, 1963), rehearing denied, 375 U.S. 982, 84

S. Ct. 493, 11 L. Ed. 2d 429 (Jan. 6, 1964);

Nirvana Ward Zuideveld v. U.S., 316 F. 2d 873,

writ of certiorari denied, 376 U.S. 916, 84 S.

Ct. 671, 11 L. Ed. 2d 612 (Feb. 17, 1964) ;

Harry Fried v. New York (paperback books:

“College for Sinners” “Sex Cat” and seminude

photographs of women), 238 N.Y.S. 2d 742,

appeal dismissed for lack of jurisdiction.

Treating the papers wherein the appeal was

taken as a petition for writ of certiorari, cer-

tiorari is denied (Justices Black, Douglas and

Stewart are of the opinion that probable juris-

diction should be noted and judgment re-

versed), 378 U.S. 578, 84 S. Ct. 1904, 12 L.

Ed. 2d 1033 (June 26, 1964) ;

Samuel Dodd Williamson v. California (paper-

back book: “Fear of Incest”), 207 Cal. App.

2d 839, 24 Cal. Rptr. 734, writ of certiorari

denied (Justice Doulas voted to grant cer-

tiorari), 377 U.S. 994, 84 S. Ct. 1902, 12 L.

Ed. 2d 1047 (June 22, 1964), rehearing de-

od .. US... 6S. @, 15, 13 L. Be aw

77 (Oct. 12, 1964) ;

Harold Eugene Weneler, Sr., and John Imlay v.

California (8 mm movie, 12 minutes—“First

Fling” described as girlie magazine subjects in

motion) writ of certiorari denied (Justice

tien.

Douglas voted to grant certiorari), 377 U.S.

994, 84S. Ct. 1902, 12 L. Ed. 2d 1047 (June

22, 1964), rehearing denied, .... U.S. ...., 85 S.

Ct. 14, 13 L. Ed. 2d 77 (Oct. 12, 1964).

There is rarely any mention made in a trial court or

in a State Supreme Court of any of the criminal con-

victions, which this Court has refused to reverse, or the

obscene matter involved in those cases. The rare ex-

ception is Connecticut v. Andrews, 150 Conn. 92, 186

A. 2d 546 (1962), which, in answer to the defendant’s

claim that the girlie magazines “Modern Man” (July

1960) and ‘Modern Man—Yearbook of Queens” were

not obscene, said:

“The defendant’s claim that there were no ob-

scene magazines to support his conviction on the

first and second counts is without merit. Monfred

v. State, 226 Md. 312, 317, 173 A. 2d 173, Cert.

denied, 368 U.S. 953, 82 S. Ct. 395, 7 L. Ed. 2

386; State v. Chobot, 12 Wisc. 2, 110, 116, 106

NW2 286, dismissed, for lack of a substantial fed-

eral question, 368 U.S. 15, 82 S. Ct. 136, 7 L. Ed2

The end result it that the people’s cause suffers.

The bad cases are highlighted and the good cases go

unnoticed.

The Connecticut Supreme Court has recognized what

in our opinion appears to be good logic and good law.

If the United States Supreme Court must, in each in-

stance make a constitutional judgment as to whether any

given subject matter is either, as a matter of law, pro-

tected speech; or a question of fact on the issue of ob-

scenity, for the jury to decide, then a denial of review

(either by dismissal of an appeal or by denial of cer-

tiorari) places the material in the latter category.“

F. Reconciling the Cases.

When the obscenity statutes have been applied as

criminal statutes trying “conduct,” the People’s case has

met with no opposition from the United States Su-

preme Court, except in the case of Jacobellis v. Ohio,

378 U.S. 184, 84 S. Ct. 1674. Unfortunately, the United

States Supreme Court has failed to publicize such

results by way of formal opinion.

Justice Warren, in his dissenting opinion, in Jacob-

ellis v. Ohio, 84 S. Ct. 1674 (June 22, 1964), makes it

clear that this Court is not defending obscenity, but that

it only appears to do so when it is faced with proce-

durally bad cases, at page 1685:

“There has been some tendency in dealing with this

area of the law for enforcement agencies to do only

that which is easy to do— for instance, to seize

and destroy books with only a minimum of protec-

tion. As a result, courts are often presented with

procedurally bad cases and, in dealing with them,

appear to be acquiescing in the dissemination of ob-

scenity. But if cases were well prepared and were

conducted with the appropriate concern for consti-

tutional safeguards, courts would not hesitate to

enforce the laws against obscenity.”

“The general rule of law that denial of certiorari means

“nothing” or “nothing much,” would seem to have little applica-

tion in free speech cases. See Supreme Court Practice, 3rd Ed.,

Stern and Gressman, P. 182, where the authors discuss this

point in writs of habeas corpus cases.

Our analysis points to a major point of distinction between

those cases which draw into issue the conduct of an individual

and those which involve “prior restraint.”” The final results have

certainly been distinguishable. The seven year history points to

a course of conduct which has meaning.

The “procedurally bad cases” referred to by Justice

Warren were not criminal cases involving “conduct” but

were the cases cited in footnote 5, involving “prior re-

straint.”” Where difficulty has been encountered, it has

been in the area of “prior restraint” by administrative

officials (motion picture censor boards and Postmaster

cases and mass seizures under search warrants). “Due

process” considerations were a major issue in such

cases. See here, the four Per Curiam decisions in 1958

(prior restraint—no jury trial on the issue of obscenity;

material kept from mails in preference to criminal trial

for disseminating obscene material, vendor required to

prove his right to distribute by injunctive action) ; Mar-

cus v. Kansas City Search Warrants, 367 U.S. 717,

(prior restraint—mass seizure under general search

warrant, non-criminal proceeding aimed at destruction

of subject matter rather than at conduct of vendor);

Bantam Books, Inc. v. Sullivan, 372 U.S. 48 (prior re-

straint—boycott, rather than criminal trial of vendor);

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

restraint—material kept from mails in preference to

criminal trial for disseminating obscene material, vendor

required to prove right to distribute by bringing an in-

junctive action); A Quantity of Books v. Kansas, 84 S.

Ct. 1723 (prior restraint—mass seizure, non-criminal

proceedings aimed at destruction of subject matter, ra-

ther than at conduct of vendor, no right to jury trial on

issue of obscenity). Freedman v. Maryland, 380 U‘S.

51 (prior restraint—movie censor board, exhibitor re-

quired to prove his right to exhibit by injunctive action) ;

alii

Trans-Lux Distributing Corp. v. Board of Regents of

New York, 380 U.S. 259 (prior restraint—movie cen-

sor board, exhibitor required to prove his right to ex-

hibit by injunctive action).

In all of these cases, the People could have brought

the criminal action and held the defendant accountable

for his “conduct” (with the procedural safeguards of

criminal procedure, 1.e., jury trial and burden of proof)

and avoided the prior restraint issue. They chose the

“prior restraint” attack in preference, unaware that

this Court’s policy was to give Near v. Minnesota as

narrow a construction as possible. Unfortunately, the

disinterested prosecutor pictured above, at this late date,

is unaware of this basic distinction in the case law.

Furthermore, he is unwilling to pursue the distinction,

without a more direct signal from this Court.

The appeal herein places in issue the very foundations

upon which the obscenity laws draw their life. “Fanny

Hill” has had widespread recognition in the underground

trade as a classic in pornegraphy, and appellant is its

publisher.** Although as in rim civil action, rather than

a criminal case, it has none of the previous restraint de-

fects found objectionable in Kingsley Inc. v. Brown

(supra). Further, appellant had the right to a jury

trial, which he elected not to claim.

The reporter’s comments in the American Law Institute,

Model Penal Code (1957 draft) section 207.10 at page 13:

“The main purpose of Section 207.10 is to suppress com-

merce in the obscene. If production and circulation of ob-

scene material for gain can be eliminated, the supply would

”

be cut off at the source...

— ae

II.

THIS COURT SHOULD AFFIRM THE JUDGMENT.

A. “Fanny Hill”’—A “Leveler” of the Issues.

It is poetic justice that “Fanny Hill” should find its

way into the court room for consideration as an abstract

idea at the same moment in history that this High

Court has before it for review cases involving the con-

duct of Ralph Ginzburg and Edward Miskin dealing with

related matters. Without this book and its history, those

cases would lose their reality alongside the semantic ad-

ventures in case law which have flooded this nation’s

court rooms in the eight years of distortion which have

followed Roth-Alberts, supra. The presence of “Fanny

Hill” acts as a poultice to draw this Court’s attention

to the real substantive matters which are at stake—

the concern of government and courts of justice over

the corrosive effects which weigh against the people’s

sense of sexual morality and the sovereign right of a

state government to control conduct relating thereto.

Even in this Court’s majority opinion in Roth, the

realities of the moment’® were barely discernable.”

16Roth received a 5-year jail sentence, Alberts a 60-day jail

sentence. Putting aside the theoretical arguments of how this

Court acts in certiorari (Roth) and appeals (Alberts) matters on

the federal questions raised in jurisdictional statements, amicus

have too great a respect for appellate justice not to be convinced

that the 1957 Court did pass on the subject matter. Failure to

do so under such circumstances would he an admission that justice

is blind and little better than that received in a trial court from

the hands of a prejudiced jury which refuses to convict on

proper evidence. We prefer to believe that the majority did look

at the subject matter, and under the test approved by the Roth

author in his dissenting opinion in Kingsley Pook Inc. v. Brown,

354 U.S. 436, 448, agreed with the trial judge that such mate-

rials presented a fact question, exclusively for the consideration

of the trial court, i.e., that reasonable men may differ whether

the material is obscene. Footnote 8 in Roth, at page 481 that

BRIE HS

It was almost as though Samuel Roth and David Alberts

did not exist. What the defendants were doing in those

cases, and society’s right to concern itself with such con-

duct—these historical facts and issues were forgotten.

It is the tragedy of that case that the two concurring

opinions which supplied the missing quantity’ were

thereafter to be responsible for distortions” in mean-

“No issue is presented in either case concerning the obscenity of

the material involved” is consistent with this construction of

the case.

The actual morai issue was treated superficially by the ma-

jority opinion. It merely confirmed the historic precedents, noting

the Chaplinsky reference to “social interest in order and moral-

ity” and recorded the judgments of history which rejected ob-

scenity. As “mirrored in the universal judgment that obscenity

should be restrained, reflected in the international agreement of

over 50 nations, the obscenity laws of all of the 48 states, and

in the 20 obscenity laws enacted by the Congress from 1842 to

1956.”

18That the corrosive effects weighing upon the people’s sense

of sexual morality are a proper concern of government. Jus-

tice Harlan asked at page 501: “What, then, is the purpose of

this California statute? Clearly the state legislature has made the

judgment that printed words can ‘deprave or corrupt’ the reader

—that words can incite to antisocial or immoral action’ The as-

sumption seems to be that the distribution of certain types of

literature will induce criminal or immoral sexual conduct.” An-

swering this he said: “The state can reasonably draw the in-

ference that over a long period of time the indiscriminate dissemi-

nation of material, the essential character of which is to degrade

sex, will have an eroding effect on moral standards. .. .”

Justice Warren said at page 495: “The defendants in both

these cases were engaged in the business of purveying textual or

graphic material openly advertised to appeal to the erotic interest

of their customers. They were plainly engaged in the commercial

exploitation of the morbid and shameful cravings for material

with prurient effect. I believed that the State and Federal gov-

ernments can constitutionally punish such conduct. That is all

that these cases present to us, and that is all we need to decide.

For example, the closing arguments of appellant’s attorney

where he said concerning the concurring opinions [R. 95] .. .

“The Court considered only that question. It did not consider

whether the materials involved were in fact obscene or in law

obscene. It considered only that single question, can anti-ob-

scenity legislation under any circumstances have a constitutional

iis

ing of the majority opinion, which the concurring opin-

ions in no way intended.

As a consequence of a willingness of courts to dwell

exclusively upon the Roth formula and to forget the

reasons therefor, we find that the simple test formulated

in Roth-Alberts, i.e., that material is obscene when the

dominant theme is an appeal to prurient interest, has

been distorted out of reason with measurable success in

both trial and appellate courts and is being urged at

great length now in this Court as to the very object

against which the rule was originally applied. Such be-

come the vagaries of the law, when the rule overshadows

the reason” for the law.

application? The answer of a majority of the court was Yes.

Four judges dissented. . . . The five judge majority, however,

said Yes with a very important qualification, and that was that

such statutes have only the narrowest application. . . .” (Our

emphasis.) The statement is fallacious. The concurring opinions

were just that, making it more like a 7-2 majority. Yet the

trial judge’s reasoning was momentarily distorted, for after the

closing arguments his offhand statement was [R. 100]: “This is

the type of case where, as counsel pointed out, there is a

great deal of difference of opinion as to facts and the weight

to be given. The United States Supreme Court decided on a 5-4

decision. . . .”

20The reason of the law is the life of the law; for though

a man can tell the law, yet, if he know not the reason thereof,

he shall soon forget his superficial knowledge. But when he find-

eth the right reason of the law, and so bringeth it to his natural

reason, that he comprehendeth it as his own, this will not only

serve him for the understanding of that particular case, but

of many others. Coke, First Institute 183. “The corrupting influ-

ence on order and morality must be kept in mind in considering

obscenity. To lose sight of the objective of the law by narrowly

considering only the prurient appeal aspect of the obscenity law

is to become s@ enamored with a means as to lose sight of the

end. Obscenity is prohibited not just hecause it excites the sexual

appetite but rather because such excitation has a “corrosive ef-

fect upon the public sense of sexual morality. The goal of the

law is the protection of the public interest in order and morality.”

Censorship, Government, Obscenity, Terrence Murphy, Helicon

Press, p. 183.

It is not accidental that “Fanny Hill” should appear

again on the scene at this moment. Such reasonably

was to be expected as a natural consequence of the

distortions which have crept into the obscenity laws in

the years since Roth, and the cycles which occur in his-

tory. On this latter point, it has been well observed that,

if a nation is to be assured of its continuance, its people

must look backwards and take note of the lessons of his-

tory.

B. The Common Law Court’s Reaction to

Obscenity and “Fanny Hill”.

Two centuries removed from the Common Law origin

of the obscenity crime, this nation finds itself in the

same straits which required the English Common Law

Courts to “create” the obscenity laws originally. A tide

of printed filth is advancing across the land in a way

which should give every wholesome thinking person

cause to wonder whether it may not erode the very

foundations of the basic morality upon which our nation

and our Constitution were founded. A leading educator

recently observed that we are the first generation of

Americans to permit our authors and playwrights to

wallow in filth. The history of England has completed

its cycle, reappearing in the English-speaking “New

World”. “Fanny Hill” has been a part of both cycles.

Appellant himself, in his defense of “Fanny Hill”,

draws this Court’s attention to the historical reference

and precedence which should decide the merits of this

and the other obscenity matters which are on this Court

docket. In his testimony, Mr. Konigsberg [R. 89]

called the trial court’s attention to the cyclic reference to

which we refer, albeit with a different connotation.

His reference to the year in which Cleland wrote, as a

part of a “cultural battle concerning life’ was for the

purpose of attributing “historic value” to the book in an

attempt to redeem it from its obscenity. It was, in his

words, a part of the transitional period in the cycle from

the 17th Century Commonwealth Period, with its ex-

treme suppression of freedom of life, to the Restoration

Period, with its excessive kind of libertine life and ex-

cessive sexual freedom, and the 18th Century Purtian-

ical reaction, with its emphasis upon chastity as a re-

action to the Cavalier attitude of the Restoration Pe-

riod. In his view, Cleland’s writings were a “reaction”

to the mores which were taking shape in the year 1749.

We refer to the same cycle, but for a different pur-

pose—that of inviting this Court’s attention to the

manner in which the Common Law courts of that

era reacted to the identical problem that appellant pub-

lisher presents in this appeal. The association, of course,

is quite relevant, for it was from this heritage that our

nation and the State of Massachusetts received its

obscenity laws.

The middle class reaction to the Restoration ribaldy

that took place in England at the turn of the century

followed much the same pattern as society has in its

“reaction” today. The governmental control of the ex-

cesses of the individual was not through the licensing

acts which were allowed to lapse in 1695 but rather

through the Common Law, which held each citizen ac-

countable for personal conduct which affected public

morals.

In the early 1700’s “the reputable literature of the

time was often very broad, and pornographic works cir-

i UN

culated freely.”** “In London, where various trades

and businesses tend to flock together, the pornographic

shops were mostly on Holywell Street. . . . It is noi

known who first had the notion that publication of

obscenity might be a violation of the English Common

Law. But in 1708 he managed to have a printer named

Reid called before a grand jury for producing a porno-

graphic book entitled ‘The Fifteen Plagues of a Maiden-

head’... it was a typical example of the new com-

mercial smut.””” The first reported obscenity convic-

tion, in Regina v. Reid (1708), 11 Mod. Rep. 142, came

before Judge Sir John Holt who ruled that nothing in

the law, common or statute, could warrant an indictment

against even the filthiest book. He wished there were,

but he could not make law. And so Mr. Reid went free.

The Common Law, however, was and is a living

thing and it breathed new life for the community

when the case of Edmund Curl came before the courts

in 1725. The book for which Curl was arrested, “Venus

in the Cloister, or the Nun in her Smock,” had been

in print for 50 years or more The magistrate con-

victed Curl. This time, on appeal, the prosecutor

argued* that to corrupt the morals of the king’s sub-

World Publishing Co. at page 33.

2The Erotic in Literature, David Loth, a MacFadden Book,

1961, at page 104.

233. As to morality. Destroying that is destroying the peace

of the Government, for government is no more than publick

order, which is morality. My Lord Chief Justice Hale used to

say Christianity is part of the law, and why not morality too?

I do not insist that every immoral act is indictable, such as tell-

ing a lie, or the like; but if it is destructive of morality in gen-

eral, if it does, or may, affect all the King’s subjects, it then is

an offence of a publick nature. And upon this distinction it is,

that particular acts of fornication are not punishable in the Tem-

poral Courts, and bawdy-houses are. In Sir Charles Sedley’s

jects was an offense at Common Law. Jf you destroy

morality, you destroyed the peace of government. In up-

holding the conviction, the King’s Bench established for

the first time the crime of obscene libel as a mis-

demeanor. Rex v. Curl (1727), 2 Strange 788. The

state and the law out of necessity had forged a tool

ready to meet the community’s need at that time for

controls against obscene material.

It was no accident therefore that Cleland, 22 years

later, found himself in difficulty when his ‘Fanny

Hill”, pubiished anonymously, appeared on the mar-

ket in 1749. In “Copies Taken From the Records” is

found under date of November 8, 1749, a warrant for

the seizure of “a most obscene and infamous book en-

titled The Memoirs of a Woman of Pleasure.”

George Ryley Scott gives this account in his book,

“Into Whose Hand” at page 143:

“When Cleland was summoned before the Privy

Council for writing an obscene book and pleaded

poverty as an excuse, the Earl of Granville, who,

at the time, was president of the Council, granted

him a pension of 100 pounds a year on condition

that he did not write any more literature of this

type.”’

Ralph Griffiths, Cleland’s publisher, was the first smut

peddler to make a fortune in the trade, and he did it on

“Fanny Hill”. It is also noted that the first criminal

penalty in the over 214 years of suppression of “Fanny

case it was saii, that this Court is the custos morum of the

King’s subjects. 1 Cid. 168.” . . . Rex v. Curl, 2 Strange 789,

at 790.

24“ “Printed for G. Fenton in the Strand’ but of Fenton noth-

ing else is known—almost certainly he did not exist... .” Fanny

Hill, Putnam edition 5555, 1653, Introduction, page VII.

= eS

Hill” which followed, was suffered by one Drybutter,

a distributor of “Fanny Hill”, who in 1757 was sen-

tenced to the pillory.”

Today, in the shadow of this history and at a time

when this nation is visited with problems” that parallel

those which existed in England in 1749, appellant ap-

pears in this High Court with his argument that the

concern of government and the courts of justice in

Massachusetts over the corrosive effects which weigh

against the people’s sense of sexual morality do not

transcend his personal right to publish for profit. We

ask this Court to take its guidance from the Common

Law principles.

C. Intervenor and Other “Fanny Hill” Publishers

Have “Cleland” Attitudes.

Nor is appellant alone in this court room. With him

today as real parties in interest though not named, are

the ghosts of other contemporary publishers who enjoy

in common, lesser reputations than that of this publish-

er. All, however, are joined in their endeavor to capital-

ize commercially on the erotic qualities of “Fanny Hill.”

Lest this Court misconceive the nature of the inquiry,

by virtue of the appearance here of a “Fanny Hill”

publisher under the disguise of an “old line publishing

company,” it must be emphasized that their move into

the production of erotic literature was not without

calculation. Appellant’s recent publications of “Candy,”

wr Hill, Putnam edition 5555, 1963, Introduction, page

*6In comparison, the obscenity problem in the United States

is infinitely greater than that which existed in England in the

1700’s due to the modern advancements of the high speed press,

rapid transportation, ease of access to channels of distribution,

easy credit, availability of the purchasing dollar, etc.

= =

“Krafft-Ebbings Psychopathia Sexualis”, “Perfume

Garden”, and “Ananga Ranga’, place it alongside a

formidable array of nondescript publishers who, for

commercial profit, are bent upon pushing back the line

between candor and shame beyond that which is ac-

ceptable to the community. Their interest is not centered

on free speech, but rather in their commercial interests

in profit arising out of copyright interest, and the his-

toric saleability of pornographic material.

In Putnam & Sons v. Lancer Books, Inc., 239 F.

Supp. 782, appellant brought suit against Lancer Books

and others for “pirating” their rights to a monopoly on

“Candy”, a piece written for French pornographer

Girodias in 1958. In the Illinois trial of Putnam’s

Son’s “Fanny Hill’, Jilinois v. Paul Romaine, the de-

fense attorney clarified the testimony of Mr. Walter

Minton, president of Putnam & Sons, as to the circum-

stances surrounding Putnam’s publication of ‘“Krafft-

Ebbings Psychopathia Sexualis’. A rival publisher,

Greenleaf Publishing Company,” had “beaten” them

27Putnam & Sons, Lancer, Brandon House, All Star, Greenleaf

Classics, Sundown Readers, and Ampoc published “Candy.”

28More recently the same publisher, Greenleaf Publishing

Company, has been found guilty of copyright infringement in a

New York Federal District Court. Judge John R. Bartels held

they pirated the translation of French author M. Genet’s “Thief’s

Journal” from Grove Press. Also named as defendants in the

Grove Press suit were William L. Hamling and Frances Ham-

ling, Greenleaf Publishing Company owners, New Cal Publica-

tion Inc. of Gardena, California, and Reed Enterprises, Inc. of

San Diego, its national distributor, also indicated in Houston,

Tex., on September 11, 1965, for publishing Nightstand Books

“Orgy Club,” “Sin Summer,” “Shame Hunger,” “Temple of

Shame,” “Virgin Inc.,” “Passion Carousel,” and “Swap Sect.’

Greenleaf Publishing Company was taken to task this Spring by a

reviewer writing in the Books Section of Women’s Wear Daily.

The reviewer wrote that Grove Press, publisher of Miller’s novels

had just “learned to its horror” that a private publisher, an ad-

junct of a girlie magazine called Rogue, was ready to distribute a

oniidins

to the publication. “I know it was Putnam’s intention

to be the first on the stand with this but when it was

announced that Putnam’s was going to bring out an

edition of Krafft-Ebbings, Putnam’s original intention

was to bring out a hard cover edition . . . then, I be-

lieve Greenleaf had its own translation made . . . and

Greenleaf got on the stand after this was printed but

before it was published . . . and Greenleaf was the first

unexpurgated edition out on the stand.”

The Putnam & Sons edition of “Fanny Hill” which

received court attention in New York, New Jersey,

Illinois and Massachusetts is not the only “Fanny Hill’

edition on the open market today, which will be affected

by this Court’s ruling.” In truth, the people’s cause

for decency in community standards is more in danger

from the manner in which this case will affect those

publishers and their other products.

Typical of the publishers of “Fanny Hill” which pre-

ceded Putnam & Sons, was the fly-by-night publisher

Richard J. Haddad, California v. Haddad, Forti (Los

Angeles Superior Court Case 27504, unreported). See

also Haddad et al. v. Superior Court of Los Angeles

County, 32 Cal. Rptr. 120 (July 10, 1963). Haddad

manufactured materials in three classifications: sado-

masochistic material like “Bound in Rubber”, “Female

Sultan”, “Whip and Lash’, “Bondage Slave”, and

“Bondage Discipline at Bondhaven”. A step lower, he

reproduced such paperback gems as “Rape Me Again”,

“Incest for Renee”, and “Sex Life of a Cop”. At the

2-volume paperback edition of Miller’s novel, “Sexus.” The re-

viewer added that Grove Press, which had planned to publish

“Sexus,” immediately issued a 1-volume paperback edition of the

work, priced at 65c less than the Greenleaf edition.

29See note 30.

: a

bottom of the rung were the paperbacks, ‘“Devil’s

Advocate”, ‘““Head Humper”, “Down She Goes’, “Ven-

us in India”, “Memoirs of Josephine Mitzerbacker”,

“Three Times a Woman Gruschenka’”, and ‘Memoirs

of Fanny Hill”. The manuscripts from which Haddad

worked had a “French import” look and were graphically

illustrated. His publishing operations consisted of de-

leting the photographic illustrations, renumbering the

manuscript pages, and reproducing the same by lithog-

raphy. He had completed “Down She Goes”, “Head

Humper”, and “Devil’s Advocate’, and was about to

reproduce “Fanny Hill” when on November 30, 1962,

the Los Angeles County Sheriff’s Vice ended his opera-

tion. A Los Angeles jury in January 1964 found Had-

dad and Forti guilty of conspiracy to print, publish,

etc. obscene materials in California v. Haddad, Forti

(S.C. 27504).

The number of persons who preceded Haddad as

publishers of “Fanny Hill” belong to a legion of the

unknown. Those who were successful would not risk

their trademarks on their product. The unsuccessful who

ran athwart the law, rarely ventured beyond the state

of pleading “guilty”, in recognition of the astronomical

odds which ran against them in the trial court. Hence,

the appellate courts do not record their names. The in-

tervening two centuries since 1749 are crowded with

people who longed for the anonymousness which appel-

lant and others now consider demeaning to their

product.

Some (but not all) of the “Fanny Hill” competitors

of G. P. Putnam & Sons are: Brandon House (P.

901),°° owned by Milton Luros of 7311 Fulton Street,

30On February 14, 1964, the Attorney General of the State

of Rhode Island filed an in rem civil action against “Fanny Hill,

Los Angeles, California, also a publisher of girlie maga-

zines, nudist magazines and sex (predominantly les-

bian type) paperbacks; All Star (AS 10), owned by

Edwin A. Schnepf of 10539 Burbank Blvd., Los An-

geles, California, also a publisher of girlie magazines,

nudist magazines, sex tabloids and sex paperback

books, and Fitz Publishing Company, Los Angeles,

California, distributed nationally by Golden State News

(GSN) owned by a publisher and distributor of girlie

magazines, nudist magazines and sex paperback books.

It was no coincidence that in October 1963, concur-

rently with the California decision holding “Tropic of

Cancer” not obscene,** a paperback book entitled

Memoirs of a Woman of Pleasure” published by Brandon House

(American Art Agency Inc., dba Brandon House) of 7311

Fulton Avenue, North Hollywood, Calif. On February 27, 1964,

Judge John E. Mullen of the Providence Plantation Superior

Court made a written finding that “there is reasonable cause to be-

lieve said book is obscene,” and issued a temporary restraining

order. American Art Agency, Inc., a California corporation, made

a special appearance on March 17, 1964, and filed a stipulation

continuing the temporary restraining order in effect, under which,

time for filing special pleas was extended to May 25, 1964. No

answer was filed until January 19, 1965, when publisher’s at-

torney filed two answers: one for American Art Agency, Inc.,

the California corporation, denying the book is obscene, and the

other for other respondents, denying the book is obscene and

challenging the provisions of the statute (failure to provide for

a jury trial, failure to set a standard for obscenity, challenging

the provision which allows the court to except from its judgment

a restrictive category of persons to whom the book may be

sold or commercially distributed, challenging “County” standards,

etc.). J. Joseph Nugent, Attorney General of Rhode Island v.

Fanny Hill (Providence Plantations Supreme Ct. M.P. 6467).

The Brandon House edition was being distributed by Books Inc.

of Providence, a recognized distributor of sex materials. On De-

cember 17, 1964, a federal jury found Books Inc. guilty of the

interstate shipment of an obscene paperback, “Lust Job,” in vio-

lation of 18 U.S.C.A. 1462.

310n July 2, 1963, the California Supreme Court entered its

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

152, holding Tropic of Cancer “not obscene” in a declaratory judg-

ment action and reversing a contrary decision in the trial court

- ~~

“Fanny Hill’, published by Brandon House of 7311

Fulton Avenue, North Hollywood, California, appeared

on the newsstands in Los Angeles and throughout the

nation. At about the same time, the paperback edition

of Putnam & Sons also appeared. When asked as to

why the book was being sold, one newsdealer replied:

“We have been selling it ever since “Tropic of Cancer’

has been put back on the racks.”

A short time later, in January 1964, a paperback

book entitled “Fanny Hill” (AS 10), published by All

Star Books of 10539 Burbank Blvd., North Holly-

wood, California, appeared on the newstands in Los

Angeles and throughout the nation.

Much later in 1965, following the dismissal by the

Los Angeles District Attorney’s office of an action

against All Star’s “Fanny Hill” (infra), another paper-

back edition of “Fanny Hill” published by Fitz Pub-

lishing Company of Los Angeles, California, and dis-

tributed nationally through Golden State News (GSN)

appeared on all newsstands.

On April 2i, 1964, the Los Angeles County Grand

Jury returned felony indictments against 14 persons

for conspiracy to print, publish, etc., “Fanny Hill” and

eight other paperback books in violation of the Cali-

fornia obscenity laws in California v. Schnepf, et al.,

SC 289205. The books named in the indictment were:

“Beds of Canyon Grove” (AS 3), “Sin Island” (AS

4), “Wild Women of Wolf River” (AS 5), “Women

and in the District Court of Appeal. On July 31, 1963, a peti-

tion for rehearing was denied. On October 26, 1963, the City

Attorney of Los Angeles filed a petition for certiorari, which

was denied, in Zeitlin v. Arnebergh, 375 U.S. 957 (Dec. 16,

1965).

of Beaver Mountain” (AS 6), “Girls in the High

Spike Heels” (AS 7), “Suburban Sex Pots” (AS 8),

“Route 69” (AS 9), “The Love Teacher” (AS 11),

and “Fanny Hill” (AS 10). Motions to dismiss the

Schnepf indictments were denied in the Los Angeles

Superior Court. A writ of prohibition was denied by

the District Court of Appeal, 2nd Appellate District,

and a petition for a hearing was denied in the Cali-

fornia Supreme Court.

The All Star “Fanny Hill” (AS 10) did not go to

trial in the Schnepf case, however. In March 1965 a new

District Attorney struck “Fanny Hill” from the indict-

ment, conceding without trial, that the same was not

obscene. The Los Angeles jury in hearing the case on

the five books which were submitted to them, found

them all to be obscene. All Star reprinted “Fanny Hill’

after the jury verdict was rendered on the other books

and the indictment as to “Fanny Hill” was dismissed.

On October 21, 1964, the Los Angeles County Grand

Jury returned felony indictments against 15 persons

for conspiracy to print, publish, etc., obscene matter in

violation of the California obscenity laws in California

v. Milton Luros, et al., SC 295183. Count 2 of the

indictment included “Fanny Hill” and 8 other paper-

backs, “Lesbian Sin Song’”’ (P. 606), “Two Women in

Love” (P. 619), “Counterfeit Lesbian” (P. 623), “Les-

bian Captive” (P. 624), “Lesbians in White” (P. 627),

“The Girls at Wendy’s” (P. 707), ‘The Three Way

Apartment” (P. 710), “Honey Lips” (P. 713), and

“Fanny Hill” (P. 901).

The Brandon House “Fanny Hill” (P. 901) did not

go to trial in the Luros case, either. Two months after

the indictments were returned, the new District At-

torney similarly voluntarily struck “Fanny Hill” from

—

the indictments, conceding that the same was not ob-

scene.

D. The Reason for This Nation’s Obscenity Laws.

Curl’s case arose out of the people’s reaction to the

sexual excesses and the libertine life of the Reforma-

tion Period. Destroying morality was destroying the

peace of the government, for government is no more

than public order, which is morality. Rex v. Curl

(supra). Obscene libel was declared to be a common law

misdemeanor, and this in turn has become a funda-

mental part of the law of the states which make up this

union, either through the common law, Commonwealth

v. Sharpless (1815), 2 S and R 91, 7 Am. Dec. 632,

or by statutory proscription, Roth-Alberts (supra). To

deny its reasonableness is to disregard our inheritance.

Several hundred years ago, one of Cleland’s contem-

poraries (though not of his philosophy) wrote in sim-

ple verse the clearest statement of “why” government

acts to outlaw obscenity. In 1705, Alexander Pope

wrote in his quatrain on “The Monster Vice” :”

Vice is a monster of so frightful mien

As to be hated, only needed to be seen.

Yet seen too oft, familiar with her face,

We first endure, then pity, then embrace.

The function of the obscenity laws is not, as is so

often suggested by those opposed to such laws, the erad-

ication of that social evil which directly causes anti-

social conduct.** Nor even that social evil which “prob-

ably” or “possibly” is the cause of such anti-social con-

82We think it applies to ‘Tropic of Cancer.” See Besig v.

U.S., 206 F. 2d 142, 147 at footnote 5.

83 Roth-Alberts, 354 U.S. 476, 486.

duct. Neither does it concern itself primarily with the

danger that children may come into contact with the

material.** Rather the law’s concern is with the more

generally accepted historical notion,® that a society in

which obscene material is readily available for its mem-

bers is not a healthy society and is heading downhill.

A nation which is preoccupied with sex is thought to

be “sick.”” The ultimate evil would be a society in which

sex pictures, novels, and magazines, are available at

every store, sex pictures on every marquee, sex movies in

every theater, sex pictures in every art gallery and sex

language in every dialogue. To the extent that

we approach this status by degrees, we recognize we

are losing control of public order and we are closing

the gap on the community of “Sodom and Gomorrah.”

The anti-social conduct of today’s society becomes the

socially acceptable conduct of the new community.

Louis B. Schwartz, co-reporter of the Model Penal

Code explains the governmental function of the ob-

scenity crime in society as follows :*°

%4But see Jacobellis v. Ohio (Opinion of Justice Brennan,

concurred in by Justice Goldberg), 378 U.S. 184, 84 S. Ct.

1676, 1682, 12 L. Ed. 2d 793.

85The existence of obscenity is the symptom of a disorder

which probability teaches us, will lead to ruin. Arnold Toynbee,

the historian, tells us that 19 of the 21 great civilizations which

flourished in world history, crumbled into ruin—not because of

armed aggression from without, but because of moral decay

from within.

In sum, the case for the governmental action taken by the State

of Massachusetts was stated by U.S. Supreme Court Justice

Harlan in his concurring opinion in Roth-Alberts (supra) at

“The State can reasonably draw the inference that over a

long period of time the indiscriminate dissemination of ma-

terials, the essential character of which is to degrade sex,

will have an eroding effect on moral standards. . . .”

36Columbia Law Review, Morals Offenses and The Model Penal

Code, Louis B. Schwartz, at 671, 672, 681.

. the great majority of people believe that

the morals of ‘bad’ people do, at least in the long

run, threaten the security of the ‘good’ people.

. It is hard to deny people the right to legis-

iate on the basis of their beliefs not demonstrably

erroneous, especially if these beliefs are strongly

held by a very large majority. The majority can-

not be expected to abandon a credo and its asso-

ciated sensitivities, however irrational, in deference

to a minority’s skepticism.”

“Tf unanimity of strongly held moral views is

approached in a community, the rebel puts him-

self, as it were, outside the society when he ar-

ranges himself against those views . . . the com-

munity cannot be expected to make (his) first

protests respectable or even tolerated by the law.

9937

. But equally, it is not merely sin-control

of the sort that evoked Professor Henkin’s constitu-

tional doubts. Instead, the community is merely say-

ing: ‘Sin, if you must, in private. Do not flaunt

your immoralities where they will grieve and shock

others. If we do not impose our morals upon you,

8"The gravest amount of harm is being accomplished by a mis-

application of the majority opinion in Kingsley International Pic-

tures, Inc. v. Regents, 360 U.S. 684, 79 S. Ct. 1362, 3 L. Ed.

2d 1512 (1959) in this area. See Justice Brennan’s Opinion in

Jacobellis v. Ohio, 84 S. Ct. 1676 at 1680. Perversions like in-

cest are being presented in the voyeur manner of Fanny Hill’s

Peeping Tom incident in the inn, under the argument that such

is spe ch in the form of “controversial sex talk.” Subject mat-

ter whose sole advocacy is deviation from accepted sexual norms,

which by its unorthodoxy and manner of presentation is prurient

in nature to the “average” person in the community is pro-

scribed by the obscenity laws, and this Court should make that

point clear to undermine the possibility of arguments from

Kingsley International Pictures, Inc. (supra) to the contrary.

= ee

neither must you impose yours upon us, under-

mining the restraints we seek to cultivate through

family, church, and school.’ The interest being pro-

tected is not, directly or indirectly, the souls of

those who might be depraved or corrupted by the

obscenity, but the right of parents to shape the

moral notions of their children, and the right of

the general public not to be subjected to violent

psychological affront.” (Our emphasis. )

We contend that strong obscenity law enforcement can

assist in reversing the trend in the type of anti-social

sexual misconduct, which is widespread in the nation

today. Certainly the history in Cleland’s time bears

this out. Alec Craig writes :**

“Before the end of the eighteenth century an aston-

ishing change had come over English literature.

From being as outspoken as any other it had be-

come so straitlaced as to be a historical curi-

The change in the Common Law Court’s attitude to the

obscenity laws had its effect on private writings and

most likely, the social conduct of the community,” tho

indirectly, for the standards in the community did

change thereafter from the previous sexual excesses,

which had previously existed.

Publishing Co. at page 35.

89We have witnessed the reverse of this in the United States

in recent years. A weak attitude on the part of the courts to-

ward obscenity law enforcement has been accompanied by a pro-

portionate increase in anti-social sexual behavior.

ails

E. “Fanny Hill” is Obscene.

1. The Roth-Alberts Standards.

(a) General.

The majority opinion in Roth-Alberts (supra) ap-

proved three definitions of the word “obscene” as being

within the constitutional standard, which itself was set

forth in a fourth test.

The federal court sponsored test in Roth and the

State Court sponsored test in Alberts were set forth at

page 486:

“In Roth, the trial judge instructed the jury: ‘The

words obscene, lewd and lascivious as used in the

law, signify that form of immorality which has re-

lation to sexual impurity and has a tendency to

excite lustful thoughts.’ (Emphasis added.) In Al-

berts, the trial judge applied the test laid down in

People v. Wepplo, 78 Cal. App. 2d Supp. 959, 178

P. 2d 853, namely, whether the material has ‘a sub-

stantial tendency to deprave or corrupt its readers

by inciting lascivious thoughts or arousing lustful

desires.’ ”

The court thereafter held both tests to be within

the constitutional standard, when given with proper jury

instructions relevant to the dominant theme and proper

audience.

The majority opinion gave approval to the definition

found in the A.L.I. Model Penal Code, Section 207.10-

(2) (Tentative Draft 1957) and noted no significant

difference between this and the meaning of obscenity

developed in the case law at page 486, footnote 20:

“

. . . A thing is obscene if, considered as a

whole, its predominant appeal is to prurient interest,

i.e., a Shameful or morbid interest in nudity, sex,

or excretion, and if it goes substantially beyond cus-

tomary limits of candor in description or repre-

sentation of such matters .. . See Comment, 1d., at

10, and the discussion at page 29 et seq.”

Phen

Justice Brennan expressed the constitutional stand-

ard in a fourth definition, in these words at page

489:

“Some American courts adopted this standard but

later decisions have rejected it and substituted this

test: Whether to the average person, applying con-

temporary community standards, the dominant

theme of the material taken as a whole appeals

to prurient interest. The Hicklin test, judging ob-

scenity by the effect of isolated passages upon the

most susceptible persons, might well encompass

material legitimately treating with sex, and so it

must be rejected as unconstitutionally restrictive

of the freedoms of speech and press... .”

The most recent separate pronouncements of the ma-

jority of the individual justices of this Court in Jaco-

bellis v. Ohio (swpra) have indicated no intention to de-

part from the express holdings of the Roth case. Jaco-

bellis was a no clear majority decision (See Argument

IC). There was no opinion of the court.

Justice Brennan expressed his reaffirmance, con-

curred in by Justice Goldberg, at page 1680:

“Recognizing that the test for obscenity there .. .

is not perfect, we think any substitute would raise

equally difficult problems, and we therefore ad-

here to that standard... .”

lice

Chief Justice Warren, with whom Justice Clark joined,

said at page 1685:

“Tn light of the foregoing, I would reiterate my

acceptance of the rule of the Roth case... .”

Justice Harlan adhered to his view of separate tests for

state and federal cases, as amplified in his opinion in

Manual Enterprises, Inc. v. Day (supra). Justice

Harlan said at page 1686:

“As to the States, I would not prohibit them

from banning any material which, taken as a whole,

has been reasonably found in state judicial proceed-

ings to treat sex in a fundamentally offensive

manner, under rationally established criteria for

judging such materials. . . .”

Justice White concurred in the judgment and did not in-

dicate his views, but voted with Justices Warren, Clark

and Harlan to deny certiorari in Grove Press, Inc. v.

Gerstein (supra) and Tralins v. Gerstein (supra).

(b) Prurient Interest” Is Proscribed.

Appellants claim that Roth-Alberts established three

independent tests: prurient interest, patent offensive-

ness and social value, is without merit. There is a unity

of purpose in the obscenity statutes, which is to sepa-

rate and proscribe material whose dominant theme is

to prurient interest (sexual expression which is unac-

ceptable to community standards) from the non-prurient

material (sexual expression which is acceptable).** “Pat-

ent offensiveness” is not a part of the Roth test. Only

49In Roth, Harlan’s test was “hard-core pornography.” In

Manual Enterprises, Inc., at 489, it was “amended” to “patent of-

fensiveness.”

*1Curl’s case. See Argument IT D.

willie

in Justice Harlan’s view is this term employed, and

then only in Federal cases. “Social value” las impor-

tance, but only in so far as it relates to the dominant

theme inquiry. Here we have a “Balancing Concept.”

Is the dominant theme to prurient interest or is the prur-

ient interest submerged in a theme which has social

importance? A.L.I. Model Penal Code (1957 draft),

Section 207.10 Reporter’s Comments.

In our view, most of the confusion arising in the

Roth test flows from a failure to understand the true

nature of “prurient interest”. This concept is described

with clarity in the reporter's comments to the Model

Penal Code :*

“The proposed definition recognizes that there is

a nornial interest in sexual matters, for which it

should be lawful to provide satisfaction through

works of art as well as scientific and educational

writings. .. .” (In contrast) “. . . The prurient

interest is an exascerbated” (irritating), “morbid,

or perverted interest growing out of the conflict be-

tween the universal sexual drive of the individual

and equally universal social controls of sexual ac-

tivity. .. .” (Our emphasis. )

The code itself describes the prurient interest as a

“shameful interest.”” Contrary to the popular belief of

some, there is no such thing as material whose domi-

nant theme is to “prurient interest” which is “accept-

able to contemporary community standards. The terms

are mutually exclusive. It is either a prurient interest

(unacceptable to standards) or a normal interest (ac-

ceptable).

42A L.I. Model Penal Code, 1957 draft, section 207.10, com-

ments at p. 29.

“Prurient interest’’ is defined by the existing social

norms which are acceptable to the community as stand-

ards of conduct. The line between non-pruriency and

pruriency is the narrow line between candor and

shame.“* How candid may sexual expression be, before

it becomes shameful and a danger to the approved

standards, which the obscenity laws are designed to pro-

tect? We encounter constitutional difficulties because,

by its nature, “prurient interest” is defined in fluctuat-

ing terms, the line of which, when approached, has a

tendency to inhibit expression.

In recognition of the social importance of legitimate

expression, which the First Amendment safeguards, the

organic law must allow a sufficient leeway in the area

of the line, so as not to silence worthwhile expression

which might be stifled out of fear of coming too close

to the line. This is why a jury“ and the criminal forum

is so ideal in resolving such an issue. When government

requires that 12 persons selected in accordance with due

48United States v. Kennedy, 209 Fed. 119, 121 (1913);

Volanski v. United States, 246 F. 2d 842, 845 (1957).

44Tt would seem that a jury should in each case establish the

standard much as they do in cases of negligence.” United States

v. Kennerley, 209 Fed. 119, 121.

“We impose such a duty upon a jury, because the standard they

fix is likely to be an acceptable mesne, and because in such mat-

ters a mesne most nearly satisfied the moral demands of a com-

munity. .. .” United States v. Levine, 83 F. 2d 156, 157 (1936).

“The question in our opinion is peculiarly one best left for

nisi prius determination, perferably by a jury . . .” Volanski

v. United States, 246 F. 2d 842, 845 (1957).

“The jury represents a cross-section of the community and has

a special attitude for reflecting the view of the average person.

Jury trial of obscenity therefore provides a peculiarly competent

application of the standard for judging obscenity which, by its

definition, calls for an appraisal of material according to the aver-

age person’s application of contemporary community standards.”

Kingsley Book, Inc. v. Brown (supra) (Justice Brennan, dis-

senting.

= =

process must agree unanimously, and that each one of

the 12 must be convinced “beyond a reasonable doubt”

that the dominant appeal is to “prurient interest’’, (not

normal, not acceptable to community standards), then

there is little danger that legitimate expression, which

the First Amendment was designed to protect, will be

violated. Appellate courts can be satisfied that the result

is sufficiently over the line. This same general safe-

guard as to criminal penalties is provided in the Model

Penal Code requirement that the material must go “‘sub-

stantially beyond customary limits of candor.”

Appellant’s argument is that the predominant appeal .

of “Fanny Hill” may be to prurient interest, but if it

has any social value, then he has a constitutional right

to publish it** against the express wishes of the com-

munity as reflected in the judgment of its highest tri-

bunal.** This interpretation completely disregards Curl’s

case and the reasoning behind obscenity legislation.’

It flies in the face of previous case law, as reflected

in the A.L.I. Model Penal Code (1957 draft), Section

207.10 and reporter’s comments thereto.

45“Tt 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, suppres-

sion is impermissible.” (Jurisdictional Statement, page 15)

“Nor is it every publication considered prurient that the statutes

can affect; it must be a publication ‘utterly without redeeming

social importance.’ For unless the publication is worthless trash,

it is not possible to justify its suppression in the face of a consti-

tution that forbids abridgement of freedom of the press.” (Juris-

dictional Statement, page 25.)

46Where 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 silencing.” (Jurisdictional Statement, page 26.)

*7See Argument II D, supra.

—16—

The very language of the Chaplinsky Court, as ap

proved in Roth indicates that speech may have “slight

social value” and yet be subject to punishment, because

by its nature it is obscene:

“Tt has been well observed that such utterances are

. of such slight social value as a step to truth

that any benefit that may be derived from them is

clearly outweighed by the social interest in order

and morality. .. .” (Our emphasis).

The primary inquiry is,

“What is the predominant appeal of the subject

matter as appraised by the average person, in the

light of contemporary standards? Are the elements

of prurient interest subordinate to other positive

values ?”

In this regard the reporter for the Model Penal Code

states at page 30:

“The second aspect of the recommended defini-

tion requiring that appeal to prurient interest be

the predominant appeal of the material, recognizes

that a work of art or literature may contain ele-

ments of prurient interest, which, however, are sub-

ordinate to other positive values of the work. Policy

as well as constitutional limitations enjoin us to

safeguard freedom of expression by balancing artis-

tic or other merits of a work against the alleged

prurient appeal... .” (Our emphasis).

and at page 40:

“11. Effect of Artistic or Scientific Merit.

The effect of our proposals on definition of the ob-

scene, consideration of the work ‘as a whole,’ and

admissibility of evidence of artistic and other mer-

— Te

its is to permit consideration of positive values of

the work in determining whether the predominant

appeal of the work is to prurient interest. This

does not differ substantially from present law.”

and at page 42:

“Our reasons for hesitating to relate the defi-

nition of obscenity directly to appraisal of artistic

merit are as follows. In the first place, great artis-

try is not necessarily inconsistent with prurient ap-

peal; consummate skill in execution might be the

very thing which lends the work its powerful ero-

tic appeal... .

“Accordingly, we have refrained from making

artistic or other merit a direct and independent

issue in obscenity trials. On the other hand, it is

obvious that the issue of ‘predominant appeal’ in-

volves not only a judgment that the material in

question appeals to prurient interest, but also a

judgment that it has this characteristic more than

any other. Thus consideration is invited to the

question of what other appeal, if any, the material

has. And in subsection (2) (c) we expressly pro-

vide for the admissibility of evidence as to artistic,

literary, scientific, educational or other merits.

“The slight but real difference between a de-

fense or justification on the basis of artistic worth

and mere permission to introduce evidence of artis-

tic merit as bearing on the issue of ‘predominant

appeal’ may be seen in the possibility, under the

later arrangement, of (1) convicting notwithstand-

ing great artistic competence, where the main appeal

is to prurient interest; and (2) acquitting notwith-

standing that the material has little or no artistic

merit and some, but not much, appeal to prurient

interest, in short, is a dull piece with no significant

‘appeal’, where a trace of the salacious is lost in a

-sea of inanity.

“The ultimate question is how prominent is the

appeal to prurient interest in the work as a whole,

whatever the value judgment placed on the balance

of the work.” (Our emphasis. )

The cases cited by appellant in support of a contrary

position at page 15 of his jurisdictional statement re-

late to the “Tropic of Cancer” decisions in various

state tribunals. Grove Press, Inc. v. Gerstein

(supra) should not be interpreted as changing the

“Balancing Rule” expressed above in the Model Penal

Code, for this Court has indicated it is following “prior

case law” and the A.L.J. M.P.C. See Roth-Alberts

(supra) at page 487, footnote 20:

“We perceive no significant difference between the

meaning of obscenity developed in the case law

and the definition of the A.L.I. Model Penal Code.

”

There is no indication from Jacobellis (supra) that the

“balancing test” has been abandoned. That was a no

clear majority decision. There was no opinion of the

court.

(d) Grove Press Inc. v. Gerstein Should Be Abandoned.

On June 22, 1964, this Court granted certiorari in

Grove Press Inc. v. Gerstein, 378 U.S. 577, 84 S. Ct.

*8We believe that subsequent developments have proven the re-

sult as to “Tropic of Cancer” reached by this Court in Grove

Press, Inc. v. Gerstein (supra) should be abandoned. (See Argu-

ment II(E)(d) infra.)

—79—

1909, 12 L. Ed. 2d 1035 and, without argument,

reversed the Florida judgment which had held ‘Tropic

of Cancer’ obscene under Florida’s obscenity laws. The

adverse effect of that case on law enforcement on the

one hand, and its encouragement to the purveyors of

obscenity on the other, observed during the interven-

ing 18 months, recommends the result there reached as

a most dangerous “precedent,” in so far as the morals

of this country are concerned. In these troubled times,

the “trade”, law enforcement agencies and a substantial

number of courts have interpreted the decision as

meaning “Anything goes.” It has proven to be an open

solicitation for the publication of even greater obscenity.

No other case has given greater scandal in this na-

tion’s battle against obscenity. State and Federal Courts

are proceeding without direction. See Argument ID, “A

Major National Problem.”

The Illinois Supreme Court interpreted the decision

to require it to abandon the “balancing test” of Amer-

ican Civil Liberties Union v. City of Chicago, 3 Ill.

2d 334, 121 N.E. 2d 585 which it had previously em-

ployed in obscenity cases. They reversed the jury con-

viction of Lenny Bruce, but not before they noted:

‘“

. . we would not have thought that constitu-

tional guarantees necessitate the subjection of so-

ciety to the gradual deterioration of its moral

fabric which this type of presentation promotes.

”

Trial Judge Sprankle, in refusing to permit a felony

indictment against a major manufacturer of lesbian type

paperback books to go to a jury, said as to each of the

eight books involved: “This book does not treat sex

in a more shameful manner than does Tropic of Cancer

or Fanny Hill” “There is absent the customary ‘ob-

scene’ words so common in ‘Tropic of Cancer.’ This

book does not even approach ‘Tropic of Cancer’ in can-

dor and description or representation of the sexual

matters referred to.’

Another trial judge, in Kansas in July 1965 held

11 Nightstand Type books to be not obscene, with this

reasoning :°

“The book “Tropic of Cancer’ goes far beyond the

books in question, containing virtually every filthy

word in our language and portrays sexual activity

in the most graphic detail. When this book has

been held by the Supreme Court of the United

States to be constitutionally protected, this court

cannot condemn the books named in the informa-

tion as obscene.” (our emphasis).

Publishers of sub-literature similarly have interpreted

the Grove Press Inc. result, as “Anything Goes,” as

is born out by the eruption of new pornography which

followed.

4*See Argument ID. We submit that the trial judge’s man-

ner of reasoning, “deduction through comparison with an ap-

proved (but false) standard,” when applied to the community

and its reaction to undisturbed obscenity, is a real danger to this

nation’s moral standards. One is led to reason “what is wrong

with a sex orgy, if its manifestations are everywhere about

and tolerated ?”

Kansas ex rel. Londesholm v. A Quantity of Copies of Ob-

scene Books, Titled “Sin Hooked,” Bayou Sinner,” “Lust

Hungry,” “Shame Shop,” “Fleshpot,” “Sinner’s Seance,” “Pas-

sion Priestess,” “Penthouse Pagans,” “Shame Market,” Sin War-

den,” “Flesh Avenger” No. C-3595-64, unreported, Judge Tom

Raum of the District Court of Sedgwick County, Kansas.

licens

When in December 1963 this Court denied certiorari

in Zeitlin v. Arnebergh (supra), affirming the decision

that “Tropic of Cancer’ was not obscene in California,

a lone proprietor, doing business in Los Angeles as

Tempo Publishing Company, brought out a new line

of books. His 1964 requirements for “Boudoir Classics”

were described in his form letter to prospective authors:

OE is :

“With reference to your mms which we have re-

turned, I am sending you the following letter out-

lining precisely our needs. Your mms was not even

remotely geared to these needs, nor was it the re-

quired 40,000 words.

“We need tough, strong, hard-hitting, sex-action-

filled books, geared to the demands of today’s and

tomorrow’s market—rather than to the standards of

even a few months ago.

“What we basically seek is off-beat sex, with an

emphasis on deviations. Some possible themes to

write by: foot wear lined and rubber clothing, ultra

high heels, whipping, gagging, female dominance,

gloves, sex rituals, transvestia, sadism, masochism,

homosexuality, phallic symbols, buttocks, inter-ra-

cial affairs (oriental, african, indian), boots and

shoes, corsets and tight lacing, spanking, tying,

girls fighting, wet clothing, masks, wife swap-

ping, lesbianism, exotic lingerie, group orgies, voy-

eurism, aphrodisiacs, fettishes.,

= =

“Plot is secondary. We do not want complicated

plots, naive sex adventure stories ‘spiced’ with sex

—nor pages of rambling, pointless dialogue. I need

more descriptions and more character per book.

Naturally, I expect the descriptions of these various

things to be in good taste. The mere fact that

some of these themes are used will sell our

books.

“Mss for this line, if acceptable, will run up to

$600, or more if necessary, with a small token

payment of approximately $100, after approval and

final acceptance, and the balance after publication.

“Perhaps the above will explain the unacceptability

of your mms and guide your future efforts for

submissions to us.

“Thank you for your interest.”

The response to this form letter hit the target

and produced the following titles: Lesbian Love”

(BO001); “Oversexed” (BO002); “Lash of Lust”

(B0003) ; “Lesbian Sorority” (BO004); ‘Lust in Lea-

ther” (B0005); “Whipped Passions” (B0006); “Per-

version Resort” (B0007); “Club Unique” (BO0008);

“Lady Stud” (B0009) ; “Beyond Lust” (B0010) ; “Cou-

ple for Hire” (BO011); and “Sexurbia” (B0012).

Following the Grove Press reversal, other “teams”

met the increased competition with other lines like

“Exotik Books” which came out on the markets in

late 1964, and “Satan Press” which appeared in early

1965. In a period of approximately 8 months, an esti-

—

mated 25,000 copies of each of the following titles ap-

peared :

EXOTIK BOOKS SATAN PRESS

Killer Dyke (W-3) Queer Daddy (101)

House of Perversion (W-4) Passion Psycho (102)

Stud Ship (W-5) Denied (103)

Sex Swap (W-6) The Seeker (104)

Passion Pills (W-7) Teacher’s Pet (105)

The Rape Club (W-8) Celluloid Sex Bomb (106)

Sex Farm (W-9) Black Water Nympho (107)

The Gay Game (W-10) His Brother Love (108)

Seed of the Beast (W-11) Passion Sauce (109)

Sex Fever (W-12) The Experimentors (110)

Portraits of Pleasure Just for Kicks (111)

(W-13)

Joy House (W-14) Sex Challenge (112)

Sexational Stepdaughter The Sex Trap (113)

(W-15)

Love’s Lash (W-16) Everybody Wins (114)

Motel 69 (W-17) 30 Day Orgy (115)

Strange Bondage (W-18) | Whatever Wanda Wants

Nightmare in Leather (116)

(W-19)

The general theme of these books covered fetishism

and perversion (see, Lust in Leather) ; sexual relations

between women and dogs (see, Passion Psycho and Seed

of the Beat); Incest between father, mother, brothers

and sisters (Queer Daddy, Celluloid Sex Bomb, Sexa-

tional Stepdaughter and Strange Bondage) and the like.

We submit that the progeny of “Tropic of Cancer”

have proved it to be a dangerous precedent from the

standpoint of this nation’s morals. (See Argument II

D).

We believe the overwhelming majority of the people

in this nation disagree with the view that holds “Tropic

—

—é4— |

of Cancer” acceptable to this nation’s standards.” and

outside the proscription of Curl’s case (supra). It isa

rule of law not easily understood which holds that

“obscenity is suppressible but well-written obscenity is

not.” This Court requires decency in expression

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