# Amicus Curiae Brief — A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0232%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1966 - **Citation:** 383 U.S. 413 ## Text 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 52 ) 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 y (b) Prurient interest is proscribed .... 72 (c) Slight social importance does not 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, 50 38 91 79 50 45 iv 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 Craig, Alec, Copyright 1963, World Publishing Co., a a 57 Craig, Alec, Copyright 1963, World Publishing Co., 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. oe 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. 7 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. ne 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 if 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. I. The public policy of the United States Supreme Court has always championed the obscenity laws. Yet with all of this case law support, the communities are being 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. I, AN INTEGRATED REVIEW OF THE OBSCENITY CASE LAW. A. Public Policy. The public policy of this Court has always cham- pioned the obscenity laws. See Rosen v. U. S., 161 U.S. 606 (1896),’ decided by the U.S. Supreme Court at the turn of the century. This favored policy is not dif- ficult of understanding. Central to our heritage is the ex- pectation that our Courts should strive to preserve our heritage and should not give scandal’ by tolerat- ing anything which tends to debase public morals. 1Rosen attempted to escape a jury conviction on an obscenity charge on a technicality. He sought his freedom on appeal, argu- ing that, because the People had not described the obscenity in their complaint (referred to by the court as “the record”), he had not been properly informed of the nature of the crime. United States Supreme Court Justice John Marshall Harlan, grand- father of the present United States Supreme Court Justice John Marshall Harlan, rejected this plea out of hand and, in invoking the unanimous rule of the courts at that time, drew from the language of an earlier Massachusetts Supreme Court decision at page 608: “Tt can never be required that an obscene book and pic- ture should be displayed upon the records of the court... . This would be to require that the People itself should give permanency and notoriety to indecency in order to pun- ish it.” His Massachusetts reference was the first recorded case in the United States against a book, Commonwealth v. Holmes, (1821). The book in the Massachusetts case was “Fanny Hill,” a cen- tury and a half later to find its way before this Court in A Book Names “John Cleland’s Memoirs of A Woman of Pleas- 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 a cutor bleats that he has no remedy and that it is useless _ to prosecute, since the Supreme Court will reverse the jury’s findings. CDL is at complete odds with such ideology. Unlike our knowledge of outer space, which is increasing in ge- ometric proportions through discoveries in space explo- rations, our knowledge of sex is profound, for sex has been with us since the beginning of mankind. As to the sexual relation, it can be said, with some degree of truth, that there is “nothing new under the sun.” Simi- larly, the assault which has as its objective the debase- ment of sex has been with mankind down through the centuries. That which motivates the pornographer, in 1965, motivated John Cleland two centuries earlier. Rec- ognition of the universal need for strong community are suggestive, pornographic, indecent and obscene shout their vul- garity to passersby. It used to be that pornographic literature, to the extent that it existed, was sold clandestinely. The secrecy and the furtive- ness with which it was sold and circulated was an indication that the public looked upon it as something improper and not in consonance with the morals of the community. But now the most salacious books, the most degrading publications are sold in book stores, drug stores, five and ten cent stores, and at the newsstands. It is difficult to think of a place where print appears that one’s eyes and spirit will not be assailed by pornography of the vilest character. In short, a wide river of filth is sweeping across the nation, befouling its shores and spreading over the land its nauseating stench. But, what is most disturbing of all, is that persons, whose noses should be particularly sensitive to this olfactory as- sault, do not smell it at all. I refer to district attorneys and prose- cuting officers throughout the nation. Of course, there are a large number of district attorneys in the country who are doing their duty and doing it well, but a larger number of prosecuting of- ficials are shrugging unconcerned shoulders at this violent as- sault on law, morality and decency.” . .. From an address given by Associate Justice Michael A. Musmanno of the Pennsylvania Supreme Court at the Waldorf-Astoria New York City on October 23, 1965. = 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). a 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 aS 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). } i i} i} i} 1} « — 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. UN 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. i _ 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) ; a 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 a 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 RE 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 a (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. fp 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. a 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- 21Suppressed books, Alec Craig, Copyright 1963 by The 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 3 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0232%3A07. Public record. Not legal advice.