U.S. Supreme Court
MEMOIRS v. MASSACHUSETTS,
383 U.S. 413 (1966)
A BOOK NAMED "JOHN
CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE" ET AL.
ATTORNEY GENERAL OF
APPEAL FROM THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS. No. 368.
Argued December 7-8, 1965.
Decided March 21, 1966.
Appellee, the Attorney
General of Massachusetts, brought this civil equity action for an adjudication
of obscenity of Cleland's Memoirs of a Woman of Pleasure (Fanny Hill), and
appellant publisher intervened. Following a hearing, including expert testimony
and other evidence, assessing the book's character but not the mode of
distribution, the trial court decreed the book obscene and not entitled to the
protection of the First and Fourteenth Amendments. The Massachusetts Supreme Judicial
Court affirmed, holding that a patently offensive book which appeals to
prurient interest need not be unqualifiedly worthless before it can be deemed
obscene. Held: The judgment is reversed. Pp. 415-433.
349 Mass. 69, 206 N. E. 2d
Syllabus by the Court:
MR. JUSTICE BRENNAN, joined by THE CHIEF
JUSTICE and MR. JUSTICE FORTAS, concluded that:
1. Under the test in Roth v. United
States, 354 U.S. 476 , as elaborated in subsequent cases, each of three
elements must independently be satisfied before a book can be held obscene: (a)
the dominant theme of the material taken as a whole appeals to a prurient
interest in sex; (b) the material is patently offensive because it affronts
contemporary community standards relating to the description or representation
of sexual matters; and (c) the material is utterly without redeeming social
value. P. 418.
2. Since a book cannot be proscribed as
obscene unless found to be utterly without redeeming social value, the Supreme
Judicial Court erroneously interpreted the federal constitutional standard. Pp.
3. On the premise, not assessed here,
that it has the requisite prurient appeal, is patently offensive, and has only
a modicum of social importance, evidence of commercial exploitation of the book
for the sake of prurient appeal to the exclusion of all other values [383 U.S.
413, 414] might in a different
proceeding justify the conclusion that the publication and distribution of
Memoirs was not constitutionally protected. Ginzburg v. United States, post, p.
463. Pp. 420-421.
MR. JUSTICE BLACK and MR. JUSTICE STEWART
concur in the reversal for the reasons given in their respective dissenting
opinions in Ginzburg v. United States, post, p. 476 and p. 497 and Mishkin v.
New York, post, p. 515 and p. 518. P. 421.
MR. JUSTICE DOUGLAS concluded that:
1. Since the First Amendment forbids
censorship of expression of ideas not linked with illegal action, Fanny Hill
cannot be proscribed. Pp. 426; 427-433.
2. Even under the prevailing view of the
Roth test the book cannot be held to be obscene in view of substantial evidence
showing that it has literary, historical, and social importance. P. 426.
3. Since there is no power under the
First Amendment to control mere expression, the manner in which a book that
concededly has social worth is advertised and sold is irrelevant. P. 427.
4. There is no basis in history for the
view expressed in Roth that "obscene" speech is "outside"
the protection of the First Amendment. Pp. 428-431.
5. No interest of society justifies
overriding the guarantees of free speech and press and establishing a regime of
censorship. Pp. 431-433.
Charles Rembar argued the
cause and filed briefs for appellants.
William I. Cowin, Assistant
Attorney General of Massachusetts, argued the cause for appellee. With him on
the brief were Edward W. Brooke, Attorney General, and John E. Sullivan,
Assistant Attorney General.
Charles H. Keating, Jr.,
and James J. Clancy filed a brief for Citizens for Decent Literature, Inc., et
al., as amici curiae, urging affirmance.
MR. JUSTICE BRENNAN
announced the judgment of the Court and delivered an opinion in which THE CHIEF
JUSTICE and MR. JUSTICE FORTAS join. [383 U.S. 413, 415]
This is an obscenity case
in which Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), written
by John Cleland in about 1750, was adjudged obscene in a proceeding that put on
trial the book itself, and not its publisher or distributor. The proceeding was
a civil equity suit brought by the Attorney General of Massachusetts, pursuant
to General Laws of Massachusetts, Chapter 272, 28C-28H, to have the book
declared obscene. 1 Section 28C requires that the petition commencing the suit
be "directed against [the] book by name" and that an order to show
cause "why said book should not be judicially determined to be
obscene" be published in a daily newspaper and sent by registered mail
"to all persons interested in the publication." Publication of the
order in this case occurred in a Boston daily newspaper, and a copy of the
order was sent by registered mail to G. P. Putnam's Sons, alleged to be the
publisher and copyright holder of the book.
As authorized by 28D, G. P.
Putnam's Sons intervened in the proceedings in behalf of the book, but it did
not claim the right provided by that section to have the issue of obscenity
tried by a jury. At the hearing before a justice of the Superior Court, which
was conducted, under 28F, "in accordance with the usual course of
proceedings in equity," the court received the book in evidence and also,
as allowed by the section, heard the testimony of experts 2 and accepted other
evidence, such [383 U.S. 413, 416] as book
reviews, in order to assess the literary, cultural, or educational character of
the book. This constituted the entire evidence, as neither side availed itself
of the [383 U.S. 413, 417] opportunity
provided by the section to introduce evidence "as to the manner and form
of its publication, advertisement, and distribution." 3 The trial justice
entered a final decree, which adjudged Memoirs obscene and declared that the
book "is not entitled to the protection of the First and Fourteenth Amendments
to the Constitution of the United States against action by the Attorney General
or other law enforcement officer pursuant to the provisions of . . . 28B, or
otherwise." 4 The Massachusetts Supreme Judicial Court affirmed the
decree. 349 Mass. 69, 206 N. E. 2d 403 (1965). We noted probable jurisdiction.
382 U.S. 900 . We reverse. 5 [383 U.S.
"obscene" appearing in the Massachusetts statute has been interpreted
by the Supreme Judicial Court to be as expansive as the Constitution permits:
the "statute covers all material that is obscene in the constitutional
sense." Attorney General v. The Book Named "Tropic of Cancer,"
345 Mass. 11, 13, 184 N. E. 2d 328, 330 (1962). Indeed, the final decree before
us equates the finding that Memoirs is obscene within the meaning of the
statute with the declaration that the book is not entitled to the protection of
the First Amendment. 6 Thus the sole question before the state courts was
whether Memoirs satisfies the test of obscenity established in Roth v. United
States, 354 U.S. 476 .
We defined obscenity in
Roth in the following terms: "[W]hether to the average person, applying
contemporary community standards, the dominant theme of the material taken as a
whole appeals to prurient interest." 354 U.S., at 489 . Under this
definition, as elaborated in subsequent cases, three elements must coalesce: it
must be established that (a) the dominant theme of the material taken as a
whole appeals to a prurient interest in sex; (b) the material is patently offensive
because it affronts contemporary community standards relating to the
description or representation of sexual matters; and (c) the material is
utterly without redeeming social value.
The Supreme Judicial Court
purported to apply the Roth definition of obscenity and held all three criteria
satisfied. We need not consider the claim that the court erred in concluding
that Memoirs satisfied the prurient [383 U.S. 413, 419] appeal and patent offensiveness criteria; for
reversal is required because the court misinterpreted the social value
criterion. The court applied the criterion in this passage:
"It remains to consider whether the
book can be said to be `utterly without social importance.' We are mindful that
there was expert testimony, much of which was strained, to the effect that
Memoirs is a structural novel with literary merit; that the book displays a
skill in characterization and a gift for comedy; that it plays a part in the
history of the development of the English novel; and that it contains a moral,
namely, that sex with love is superior to sex in a brothel. But the fact that
the testimony may indicate this book has some minimal literary value does not
mean it is of any social importance. We do not interpret the `social
importance' test as requiring that a book which appeals to prurient interest
and is patently offensive must be unqualifiedly worthless before it can be
deemed obscene." 349 Mass., at 73, 206 N. E. 2d, at 406.
The Supreme Judicial Court
erred in holding that a book need not be "unqualifiedly worthless before
it can be deemed obscene." A book cannot be proscribed unless it is found
to be utterly without redeeming social value. This is so even though the book
is found to possess the requisite prurient appeal and to be patently offensive.
Each of the three federal constitutional criteria is to be applied
independently; the social value of the book can neither be weighed against nor
canceled by its prurient appeal or patent offensiveness. 7 Hence, [383 U.S.
413, 420] even on the view of the court
below that Memoirs possessed only a modicum of social value, its judgment must
be reversed as being founded on an erroneous interpretation of a federal
It does not necessarily
follow from this reversal that a determination that Memoirs is obscene in the
constitutional sense would be improper under all circumstances. On the premise,
which we have no occasion to assess, that Memoirs has the requisite prurient
appeal and is patently offensive, but has only a minimum of social value, the
circumstances of production, sale, and publicity are relevant in determining
whether or not the publication or distribution of the book is constitutionally
protected. Evidence that the book was commercially exploited for the sake of
prurient appeal, to the exclusion of all other values, might justify the
conclusion that the book was utterly without redeeming social importance. It is
not that in such a setting the social value test is relaxed so as to dispense
with the requirement that a book be utterly devoid of social value, but rather
that, as we elaborate in Ginzburg v. United States, post, pp. 470-473, where
the purveyor's sole emphasis is on the sexually provocative aspects of his
publications, a court could accept his evaluation at its face value. In this
proceeding, however, the courts were asked to judge the obscenity of Memoirs in
the abstract, and the declaration of obscenity was neither aided nor limited by
a specific set of circumstances of production, sale, and publicity. 8 [383 U.S. 413, 421] All possible uses of the book must therefore
be considered, and the mere risk that the book might be exploited by panderers
because it so pervasively treats sexual matters cannot alter the fact - given
the view of the Massachusetts court attributing to Memoirs a modicum of
literary and historical value - that the book will have redeeming social
importance in the hands of those who publish or distribute it on the basis of
MR. JUSTICE BLACK and MR.
JUSTICE STEWART concur in the reversal for the reasons stated in their
respective dissenting opinions in Ginzburg v. United States, post, p. 476 and
p. 497, and Mishkin v. New York, post, p. 515 and p. 518.
APPENDIX TO OPINION OF MR. JUSTICE BRENNAN.
MASSACHUSETTS GENERAL LAWS, CHAPTER 272.
. . . . .
SECTION 28B. Whoever
imports, prints, publishes, sells, loans or distributes, or buys, procures, receives,
or [383 U.S. 413, 422] has in his
possession for the purpose of sale, loan or distribution, a book, knowing it to
be obscene, indecent or impure, or whoever, being a wholesale distributor, a
jobber, or publisher sends or delivers to a retail storekeeper a book,
pamphlet, magazine or other form of printed or written material, knowing it to
be obscene, indecent or impure, which said storekeeper had not previously
ordered in writing, specifying the title and quantity of such publication he
desired, shall be punished by imprisonment in the state prison for not more
than five years or in a jail or house of correction for not more than two and
one half years, or by a fine of not less than one hundred dollars not more than
five thousand dollars, or by both such fine and imprisonment in jail or the
house of correction.
SECTION 28C. Whenever there
is reasonable cause to believe that a book which is being imported, sold,
loaned or distributed, or is in the possession of any person who intends to
import, sell, loan or distribute the same, is obscene, indecent or impure, the
attorney general, or any district attorney within his district, shall bring an
information or petition in equity in the superior court directed against said
book by name. Upon the filing of such information or petition in equity, a
justice of the superior court shall, if, upon a summary examination of the
book, he is of opinion that there is reasonable cause to believe that such book
is obscene, indecent or impure, issue an order of notice, returnable in or
within thirty days, directed against such book by name and addressed to all
persons interested in the publication, sale, loan or distribution thereof, to
show cause why said book should not be judicially determined to be obscene,
indecent or impure. Notice of such order shall be given by publication once
each week for two successive weeks in a daily newspaper published in the city
of Boston and, if such information or petition be filed in any county other
than [383 U.S. 413, 423] Suffolk
county, then by publication also in a daily newspaper published in such other
county. A copy of such order of notice shall be sent by registered mail to the
publisher of said book, to the person holding the copyrights, and to the
author, in case the names of any such persons appear upon said book, fourteen
days at least before the return day of such order of notice. After the issuance
of an order of notice under the provisions of this section, the court shall, on
motion of the attorney general or district attorney, make an interlocutory
finding and adjudication that said book is obscene, indecent or impure, which
finding and adjudication shall be of the same force and effect as the final
finding and adjudication provided in section twenty-eight E or section
twenty-eight F, but only until such final finding and adjudication is made or
until further order of the court.
SECTION 28D. Any person
interested in the sale, loan or distribution of said book may appear and file
an answer on or before the return day named in said notice or within such
further time as the court may allow, and may claim a right to trial by jury on
the issue whether said book is obscene, indecent or impure.
SECTION 28E. If no person
appears and answers within the time allowed, the court may at once upon motion
of the petitioner, or of its own motion, no reason to the contrary appearing,
order a general default and if the court finds that the book is obscene,
indecent or impure, may make an adjudication against the book that the same is obscene,
indecent and impure.
SECTION 28F. If an
appearance is entered and answer filed, the case shall be set down for speedy
hearing, but a default and order shall first be entered against all persons who
have not appeared and answered, in the manner provided in section twenty-eight
E. Such hearing shall be conducted in accordance with the usual course of
proceedings in equity including all rights of exception and [383 U.S. 413,
424] appeal. 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. Upon such
hearing, the court may make an adjudication in the manner provided in said
section twenty-eight E.
SECTION 28G. An information
or petition in equity under the provisions of section twenty-eight C shall not
be open to objection on the ground that a mere judgment, order or decree is
sought thereby and that no relief is or could be claimed thereunder on the
issue of the defendant's knowledge as to the obscenity, indecency or impurity
of the book.
SECTION 28H. In any trial
under section twenty-eight B on an indictment found or a complaint made for any
offence committed after the filing of a proceeding under section twenty-eight
C, the fact of such filing and the action of the court or jury thereon, if any,
shall be admissible in evidence. If prior to the said offence a final decree
had been entered against the book, the defendant, if the book be obscene,
indecent or impure, shall be conclusively presumed to have known said book to
be obscene, indecent or impure, or if said decree had been in favor of the book
he shall be conclusively presumed not to have known said book to be obscene,
indecent or impure, or if no final decree had been entered but a proceeding had
been filed prior to said offence, the defendant shall be conclusively presumed
to have had knowledge of the contents of said book.
[ Footnote 1 ] The text of
the statute appears in the Appendix.
[ Footnote 2 ] In
dissenting from the Supreme Judicial Court's disposition in this case, 349
Mass. 69, 74-75, 206 N. E. 2d 403, 406-407 (1965), Justice Whittemore
summarized this testimony: "In the view of one or another or all of the
following viz., the chairman of the English department at Williams College, a
professor of English at Harvard College, an associate professor of English
literature at Boston University, an associate professor of English at
Massachusetts Institute of Technology, and an assistant [383 U.S. 413,
416] professor of English and American
literature at Brandeis University, the book is a minor `work of art' having
`literary merit' and `historical value' and containing a good deal of
`deliberate, calculated comedy.' It is a piece of `social history of interest
to anyone who is interested in fiction as a way of understanding society in the
past.'1. A saving grace is that although many scenes, if translated 1.
"One of the witnesses testified in part as follows: `Cleland is part of
what I should call this cultural battle that is going on in the 18th century, a
battle between a restricted Puritan, moralistic ethic that attempts to suppress
freedom of the spirit, freedom of the flesh, and this element is competing with
a freer attitude towards life, a more generous attitude towards life, a more
wholesome attitude towards life, and this very attitude that is manifested in
Fielding's great novel "Tom Jones" is also evident in Cleland's
novel. . . . [Richardson's] "Pamela" is the story of a young country
girl; [his] "Clarissa" is the story of a woman trapped in a house of
prostitution. Obviously, then Cleland takes both these themes, the country
girl, her initiation into life and into experience, and the story of a woman in
a house of prostitution, and what he simply does is to take the situation and
reverse the moral standards. Richardson believed that chastity was the most
important thing in the world; Cleland and Fielding obviously did not and
thought there were more important significant moral values.'" into the
present day language of `the realistic, naturalistic novel, could be quite
offensive' these scenes are not described in such language. The book contains
no dirty words and its language `functions . . . to create a distance, even
when the sexual experiences are portrayed.' The response, therefore, is a
literary response. The descriptions of depravity are not obscene because `they
are subordinate to an interest which is primarily literary'; Fanny's reaction
to the scenes of depravity was `anger,' `disgust, horror, [and] indignation.'
The book `belongs to the history of English literature rather than the history
of smut.'2." "2. In the opinion of the other academic witness, the
headmaster of a private school, whose field is English literature, the book is
without literary merit and is obscene, impure, hard core pornography, and is
[ Footnote 3 ] The record
in this case is thus significantly different from the records in Ginzburg v.
United States, post, p. 463, and Mishkin v. New York, post, p. 502. See pp.
[ Footnote 4 ] Section 28B
makes it a criminal offense, inter alia, to import, print, publish, sell, loan,
or distribute, buy, procure, receive, or possess for the purpose of sale, loan,
or distribution, "a book, knowing it to be obscene." Section 28H provides
that in any prosecution under 28B the decree obtained in a proceeding against
the book "shall be admissible in evidence" and further that
"[i]f prior to the said offence a final decree had been entered against
the book, the defendant, if the book be obscene . . . shall be conclusively
presumed to have known said book to be obscene . . . ." Thus a declaration
of obscenity such as that obtained in this proceeding is likely to result in
the total suppression of the book in the Commonwealth. The constitutionality of
28H has not been challenged in this appeal.
[ Footnote 5 ] Although the
final decree provides no coercive relief but only a declaration of the book's
obscenity, our adjudication of the merits of the issue tendered, viz., whether
the state courts erred in declaring the book obscene, is not premature. There
is no uncertainty as to the content of the material challenged, and the
Attorney General's petition commencing this suit states that the book "is
being imported, sold, loaned, or distributed in the Commonwealth." The
declaration of obscenity is likely to have a serious inhibitory effect on the
distribution of the book, and this probable impact is to no small measure
derived from possible collateral uses of the declaration in subsequent
prosecutions under the Massachusetts criminal obscenity statute. See n. 4,
[ Footnote 6 ] We infer
from the opinions below that the other adjectives describing the proscribed
books in 28C-28H, "indecent" and "impure," have either been
read out of the statute or deemed synonymous with "obscene."
[ Footnote 7 ]
"[M]aterial dealing with sex in a manner that advocates ideas . . . or
that has literary or scientific or artistic value or any other form of social
importance, may not be branded as obscenity and denied the constitutional
protection. Nor may the constitutional status of the material be made to turn
on a `weighing' of its social importance against its prurient appeal, for a
work cannot be proscribed [383 U.S. 413, 420]
unless it is `utterly' without social importance. See Zeitlin v.
Arnebergh, 59 Cal. 2d 901, 920, 383 P.2d 152, 165, 31 Cal. Rptr. 800, 813
(1963)." Jacobellis v. Ohio, 378 U.S. 184, 191 (opinion of BRENNAN, J.).
Followed in, e. g., People v. Bruce, 31 Ill. 2d 459, 461, 202 N. E. 2d 497, 498
(1964); Trans-Lux Distributing Corp. v. Maryland Bd. of Censors, 240 Md. 98,
104-105, 213 A. 2d 235, 238-239 (1965).
[ Footnote 8 ] In his
dissenting opinion, 349 Mass., at 76-78, 206 N. E. 2d, at 408-409, Justice
Cutter stated that, although in his view the book was not "obscene"
within the meaning of Roth, "it could reasonably be found that
distribution of the book to persons under the age of eighteen would be a
violation of G. L. c. 272, 28, as tending to corrupt the morals of youth."
(Section 28 makes it a crime to sell to "a person under the age of
eighteen years a book . . . which is obscene . . . or manifestly tends to
corrupt the morals of youth.") He concluded that the court should
"limit the relief granted to a declaration that distribution of this book
to persons under the age of eighteen may be found to constitute a violation of
[G. L.] c. 272, 28, if that section is reasonably applied . . . ."
However, the decree was not so limited and we intimate no view concerning the
constitutionality of such a limited declaration regarding Memoirs. Cf.
Jacobellis v. Ohio, 378 U.S., at 195 .
MR. JUSTICE DOUGLAS,
concurring in the judgment.
Memoirs of a Woman of
Pleasure, or, as it is often titled, Fanny Hill, concededly is an erotic novel.
It was first published in about 1749 and has endured to this [383 U.S. 413,
425] date, despite periodic efforts to
suppress it. 1 The book relates the adventures of a young girl who becomes a
prostitute in London. At the end, she abandons that life and marries her first
"Thus, at length, I got snug into
port, where, in the bosom of virtue, I gather'd the only uncorrupt sweets:
where, looking back on the course of vice I had run, and comparing its infamous
blandishments with the infinitely superior joys of innocence, I could not help
pitying, even in point of taste, those who, immers'd in gross sensuality, are
insensible to the so delicate charms of VIRTUE, than which even PLEASURE has
not a greater friend, nor than VICE a greater enemy. Thus temperance makes men
lords over those pleasures that intemperance enslaves them to: the one, parent
of health, vigour, fertility, cheerfulness, and every other desirable good of
life; the other, of diseases, debility, barrenness, self-loathing, with only
every evil incident to human nature.
". . . The paths of Vice are
sometimes strew'd with roses, but then they are for ever infamous for many a
thorn, for many a cankerworm: those of Virtue are strew'd with roses purely,
and those eternally unfading ones." 2
In 1963, an American
publishing house undertook the publication of Memoirs. The record indicates
that an unusually large number of orders were placed by universities and
libraries; the Library of Congress requested the [383 U.S. 413, 426] right to translate the book into Braille.
But the Commonwealth of Massachusetts instituted the suit that ultimately found
its way here, praying that the book be declared obscene so that the citizens of
Massachusetts might be spared the necessity of determining for themselves
whether or not to read it.
The courts of Massachusetts
found the book "obscene" and upheld its suppression. This Court
reverses, the prevailing opinion having seized upon language in the opinion of
the Massachusetts Supreme Judicial Court in which it is candidly admitted that
Fanny Hill has at least "some minimal literary value." I do not
believe that the Court should decide this case on so disingenuous a basis as
this. I base my vote to reverse on my view that the First Amendment does not
permit the censorship of expression not brigaded with illegal action. But even
applying the prevailing view of the Roth test, reversal is compelled by this
record which makes clear that Fanny Hill is not "obscene." The
prosecution made virtually no effort to prove that this book is "utterly
without redeeming social importance." The defense, on the other hand,
introduced considerable and impressive testimony to the effect that this was a
work of literary, historical, and social importance. 3 [383 U.S. 413, 427]
We are judges, not literary
experts or historians or philosophers. We are not competent to render an
independent judgment as to the worth of this or any other book, except in our
capacity as private citizens. I would pair my Brother CLARK on Fanny Hill with the
Universalist minister I quote in the Appendix. If there is to be censorship,
the wisdom of experts on such matters as literary merit and historical
significance must be evaluated. On this record, the Court has no choice but to
reverse the judgment of the Massachusetts Supreme Judicial Court, irrespective
of whether we would include Fanny Hill in our own libraries.
Four of the seven Justices
of the Massachusetts Supreme Judicial Court conclude that Fanny Hill is
obscene. 349 Mass. 69, 206 N. E. 2d 403. Four of the seven judges of the New
York Court of Appeals conclude that it is not obscene. Larkin v. Putnam's Sons,
14 N. Y. 2d 399, 200 N. E. 2d 760. To outlaw the book on such a voting record
would be to let majorities rule where minorities were thought to be supreme.
The Constitution forbids abridgment of "freedom of speech, or of the
press." Censorship is the most notorious form of abridgment. It
substitutes majority rule where minority tastes or viewpoints were to be
It is to me inexplicable
how a book that concededly has social worth can nonetheless be banned because
of the manner in which it is advertised and sold. However florid its cover,
whatever the pitch of its advertisements, the contents remain the same.
Every time an obscenity case
is to be argued here, my office is flooded with letters and postal cards urging
me [383 U.S. 413, 428] to protect the
community or the Nation by striking down the publication. The messages are
often identical even down to commas and semicolons. The inference is
irresistible that they were all copied from a school or church blackboard.
Dozens of postal cards often are mailed from the same precinct. The drives are
incessant and the pressures are great. Happily we do not bow to them. I mention
them only to emphasize the lack of popular understanding of our constitutional
system. Publications and utterances were made immune from majoritarian control
by the First Amendment, applicable to the States by reason of the Fourteenth.
No exceptions were made, not even for obscenity. The Court's contrary
conclusion in Roth, where obscenity was found to be "outside" the
First Amendment, is without justification.
The extent to which the
publication of "obscenity" was a crime at common law is unclear. It
is generally agreed that the first reported case involving obscene conduct is
The King v. Sir Charles Sedley. 4 Publication of obscene literature, at first
thought to be the exclusive concern of the ecclesiastical courts, 5 was not
held to constitute an indictable offense until 1727. 6 A later case involved
the publication of an "obscene and [383 U.S. 413, 429] impious libel" (a bawdy parody of
Pope's "Essay on Man") by a member of the House of Commons. 7 On the
basis of these few cases, one cannot say that the common-law doctrines with
regard to publication of obscenity were anything but uncertain. "There is
no definition of the term. There is no basis of identification. There is no
unity in describing what is obscene literature, or in prosecuting it."
There is little more than the ability to smell it." Alpert, Judicial
Censorship of Obscene Literature, 52 Harv. L. Rev. 40, 47 (1938).
But even if the common law
had been more fully developed at the time of the adoption of the First
Amendment, we would not be justified in assuming that the Amendment left the
common law unscathed. In Bridges v. California, 314 U.S. 252, 264 , we said:
"[T]o assume that English common law
in this field became ours is to deny the generally accepted historical belief
that `one of the objects of the Revolution was to get rid of the English common
law on liberty of speech and of the press.' Schofield, Freedom of the Press in
the United States, 9 Publications Amer. Sociol. Soc., 67, 76.
"More specifically, it is to forget
the environment in which the First Amendment was ratified. In presenting the
proposals which were later embodied in the Bill of Rights, James Madison, the
leader in the preparation of the First Amendment, said: `Although I know
whenever the great rights, the trial by jury, freedom of the press, or liberty
of conscience, come in question in that body [Parliament], [383 U.S. 413,
430] the invasion of them is resisted
by able advocates, yet their Magna Charta does not contain any one provision
for the security of those rights, respecting which the people of America are
most alarmed. The freedom of the press and rights of conscience, those choicest
privileges of the people, are unguarded in the British Constitution.'"
And see Grosjean v.
American Press Co., 297 U.S. 233, 248 -249.
It is true, as the Court
observed in Roth, that obscenity laws appeared on the books of a handful of
States at the time the First Amendment was adopted. 8 But the First Amendment
was, until the adoption of the Fourteenth, a restraint only upon federal power.
Moreover, there is an absence of any federal cases or laws relative to
obscenity in the period immediately after the adoption of the First Amendment.
Congress passed no legislation relating to obscenity until the middle of the
nineteenth century. 9 Neither reason nor history warrants exclusion of any
particular class of expression from the protection of the First Amendment on
nothing more than a judgment that it is utterly without merit. We faced the
difficult questions the First Amendment poses with regard to libel in New York
Times v. Sullivan, [383 U.S. 413, 431]
376 U.S. 254, 269 , where we recognized that "libel can claim no
talismanic immunity from constitutional limitations." We ought not to
permit fictionalized assertions of constitutional history to obscure those
questions here. Were the Court to undertake that inquiry, it would be unable,
in my opinion, to escape the conclusion that no interest of society with regard
to suppression of "obscene" literature could override the First Amendment
to justify censorship.
The censor is always quick
to justify his function in terms that are protective of society. But the First
Amendment, written in terms that are absolute, deprives the States of any power
to pass on the value, the propriety, or the morality of a particular
expression. Cf. Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 688
-689; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 . Perhaps the most
frequently assigned justification for censorship is the belief that erotica produce
antisocial sexual conduct. But that relationship has yet to be proven. 10
Indeed, if one were to make judgments on the [383 U.S. 413, 432] basis of speculation, one might guess that
literature of the most pornographic sort would, in many cases, provide a
substitute - not a stimulus - for antisocial sexual conduct. See Murphy, The
Value of Pornography, 10 Wayne L. Rev. 655, 661 and n. 19 (1964). As I read the
First Amendment, judges cannot gear the literary diet of an entire nation to
whatever tepid stuff is incapable of triggering the most demented mind. The
First Amendment demands more than a horrible example or two of the perpetrator
of a crime of sexual violence, in whose pocket is found a pornographic book,
before it allows the Nation to be saddled with a regime of censorship. 11 [383 U.S. 413, 433]
Whatever may be the reach
of the power to regulate conduct, I stand by my view in Roth v. United States,
supra, that the First Amendment leaves no power in government over expression
APPENDIX TO OPINION OF MR. JUSTICE
DR. PEALE AND FANNY HILL.
An Address by
Rev. John R. Graham, First
Universalist Church of Denver.
. . . . .
At the present point in the
twentieth century, it seems to me that there are two books which symbolize the
human quest for what is moral. Sin, Sex and Self-Control by Dr. Norman Vincent
Peale, the well-known clergyman of New York City, portrays the struggle of
contemporary middle-class society to arrive at a means of stabilizing behavior
patterns. At the same time, there is a disturbing book being sold in the same
stores with Dr. Peale's volume. It is a seventeenth century English novel by
John Cleland and it is known as Fanny Hill: The Memoirs of a Woman of Pleasure.
Quickly, it must be
admitted that it appears that the two books have very little in common. One was
written in a day of scientific and technological sophistication, while the
other is over two hundred years old. One is acclaimed in the pulpit, while the
other is protested before the United States Supreme Court. Sin, Sex and
Self-Control is authored by a Christian pastor, while [383 U.S. 413, 434] Fanny Hill represents thoughts and
experiences of a common prostitute. As far as the general public seems to be
concerned, one is moral and the other is hopelessly immoral. While Dr. Peale is
attempting to redeem the society, most people believe that Fanny Hill can only
serve as another instance in an overall trend toward an immoral social order.
Most parents would be pleased to find their children reading a book by Dr.
Peale, but I am afraid that the same parents would be sorely distressed to
discover a copy of Fanny Hill among the school books of their offspring.
Although one would not expect
to find very many similarities between the thoughts of a pastor and those of a
prostitute, the subject matter of the two books is, in many ways, strangely
similar. While the contents are radically different, the concerns are the same.
Both authors deal with human experience. They are concerned with people and
what happens to them in the world in which they live each day. But most
significantly of all, both books deal with the age-old question of "What
is moral?" I readily admit that this concern with the moral is more
obvious in Dr. Peale's book than it is in the one by John Cleland. The search
for the moral in Fanny Hill is clothed in erotic passages which seem to equate
morality with debauchery as far as the general public is concerned. At the same
time, Dr. Peale's book is punctuated with such noble terms as
"truth," "love," and "honesty."
These two books are not
very important in themselves. They may or may not be great literature. Whether
they will survive through the centuries to come is a question, although John
Cleland has an historical edge on Norman Vincent Peale! However, in a symbolic
way they do represent the struggle of the moral quest and for this reason they
are important. [383 U.S. 413, 435]
Dr. Peale begins his book
with an analysis of contemporary society in terms of the moral disorder which
is more than obvious today. He readily admits that the traditional
Judeo-Christian standards of conduct and behavior no longer serve as strong and
forceful guides. He writes:
"For more than forty years, ever
since my ordination, I had been preaching that if a person would surrender to
Jesus Christ and adopt strong affirmative attitudes toward life he would be
able to live abundantly and triumphantly. I was still absolutely convinced that
this was true. But I was also bleakly aware that the whole trend in the seventh
decade of the twentieth century seemed to be away from the principles and
practices of religion - not toward them." ( [383 U.S. 413, 1] .)
Dr. Peale then reflects on
the various changes that have taken place in our day and suggests that although
he is less than enthusiastic about the loss of allegiance to religion, he is,
nevertheless, willing to recognize that one cannot live by illusion.
After much struggle, Dr.
Peale then says that he was able to develop a new perspective on the current
moral dilemma of our times. What first appeared to be disaster was really
opportunity. Such an idea, coming from him, should not be very surprising, since
he is more or less devoted to the concept of "positive thinking!" He
concludes that our society should welcome the fact that the old external
authorities have fallen. He does not believe that individuals should ever be
coerced into certain patterns of behavior.
According to Dr. Peale, we
live in a day of challenge. Our society has longed for a time when individuals
would be disciplined by self-control, rather than being motivated by external
compunction. Bravely and forth-rightly, [383 U.S. 413, 436] he announces that the time has now come when
self-control can and must replace external authority. He is quick to add that
the values contained in the Judeo-Christian tradition and "the American
way of life" must never be abandoned for they emanate from the wellsprings
of "Truth." What has previously been only an external force must now
be internalized by individuals.
In many ways, Dr. Peale's
analysis of the social situation and the solution he offers for assisting the
individual to stand against the pressures of the times, come very close to the
views of Sigmund Freud. He felt that society could and would corrupt the
individual and, as a result, the only sure defense was a strong super-ego or
conscience. This is precisely what Dr. Peale recommends.
Interestingly enough John
Cleland, in Fanny Hill, is concerned with the same issues. Although the
question of moral behavior is presented more subtly in his book, the problem
with which he deals is identical. There are those who contend that the book is
wholly without redeeming social importance. They feel that it appeals only to
I firmly believe that Fanny
Hill is a moral, rather than an immoral, piece of literature. In fact, I will
go as far as to suggest that it represents a more significant view of morality
than is represented by Dr. Peale's book Sin, Sex and Self-Control. As is Dr.
Peale, Cleland is concerned with the nature of the society and the relationship
of the individual to it. Fanny Hill appears to me to be an allegory. In the story,
the immoral becomes the moral and the unethical emerges as the ethical. Nothing
is more distressing than to discover that what is commonly considered to be
evil may, in reality, demonstrate characteristics of love and concern.
There is real irony in the
fact that Fanny Hill, a rather naive young girl who becomes a prostitute, finds
warmth, [383 U.S. 413, 437]
understanding and the meaning of love and faithfulness amid surroundings
and situations which the society, as a whole, condemns as debased and depraved.
The world outside the brothel affirms its faith in the dignity of man, but
people are often treated as worthless and unimportant creatures. However,
within the world of prostitution, Fanny Hill finds friendship, understanding,
respect and is treated as a person of value. When her absent lover returns, she
is not a lost girl of the gutter. One perceives that she is a whole and healthy
person who has discovered the ability to love and be loved in a brothel.
I think Cleland is
suggesting that one must be cautious about what is condemned and what is held
in honor. From Dr. Peale's viewpoint, the story of Fanny Hill is a tragedy
because she did not demonstrate self-control. She refused to internalize the
values inherent in the Judeo-Christian tradition and the catalog of sexual
scenes in the book, fifty-two in all, are a symbol of the debased individual
and the society in which he lives.
Dr. Peale and others, would
be correct in saying that Fanny Hill did not demonstrate self-control. She did,
however, come to appreciate the value of self-expression. At no time were her
"clients" looked upon as a means to an end. She tried and did
understand them and she was concerned about them as persons. When her lover,
Charles, returned she was not filled with guilt and remorse. She accepted
herself as she was and was able to offer him her love and devotion.
I have a feeling that many
people fear the book Fanny Hill, not because of its sexual scenes, but because
the author raises serious question with the issue of what is moral and what is
immoral. He takes exception to the idea that repression and restraint create
moral individuals. He develops the thought that self-expression is more human
than self-control. And he dares to suggest that, in a situation which society
calls immoral and [383 U.S. 413, 438]
debased, a genuine love and respect for life and for people, as human
beings, can develop. Far from glorifying vice, John Cleland points an accusing
finger at the individual who is so certain as to what it means to be a moral
There are those who will
quickly say that this "message" will be missed by the average person
who reads Fanny Hill. But this is precisely the point. We become so accustomed
to pre-judging what is ethical and what is immoral that we are unable to
recognize that what we accept as good may be nothing less than evil because it
I know of no book which
more beautifully describes meaningful relationships between a man and a woman
than does Fanny Hill. In many marriages, men use a woman for sexual
gratification and otherwise, as well as vice versa. But this is not the case in
the story of Fanny Hill. The point is simply that there are many, many ways in
which we hurt, injure and degrade people that are far worse than either being
or visiting a prostitute. We do this all in the name of morality.
At the same time that Dr.
Peale is concerned with sick people, John Cleland attempts to describe healthy
ones. Fanny Hill is a more modern and certainly more valuable book than Sin,
Sex and Self-Control because the author does not tell us how to behave, but
attempts to help us understand ourselves and the nature of love and
understanding in being related to other persons. Dr. Peale's writing emphasizes
the most useful commodities available to man - self-centeredness and
self-control. John Cleland suggests that self-understanding and self-expression
may not be as popular, but they are more humane.
approach" to life breeds contentment, for it suggests that each one of us
can be certain as to what is good and true. Standards for thinking and behavior
are available and all we need to do is appropriate them [383 U.S. 413,
439] for our use. In a day when life is
marked by chaos and confusion, this viewpoint offers much in the way of comfort
and satisfaction. There is only one trouble with it, however, and that is that
it results in conformity, rigid behavior and a lack of understanding. It
results in personality configurations that are marked with an intense interest
in propositions about Truth and Right but, at the same time, build a wall
against people. Such an attitude creates certainty, but there is little warmth.
The idea develops that there are "my kind of people" and they are
"right." It forces us to degrade, dismiss and ultimately attempt to
destroy anyone who does not agree with us.
To be alive and sensitive
to life means that we have to choose what we want. There is no possible way for
a person to be a slave and free at the same time. Self-control and
self-expression are at opposite ends of the continuum. As much as some persons
would like to have both, it is necessary to make a choice, since restraint and
openness are contradictory qualities. To internalize external values denies the
possibility of self-expression. We must decide what we want, when it comes to
conformity and creativity. If we want people to behave in a structured and
predictable manner, then the ideal of creativity cannot have meaning.
. . . . .
Long ago Plato said,
"What is honored in a country will be cultivated there." More and
more, we reward people for thinking alike and as a result, we become
frightened, beyond belief, of those who take exception to the current
consensus. If our society collapses, it will not be because people read a book
such as Fanny Hill. It will fall, because we will have refused to understand
it. Decadence, in a nation or an individual, arises not because there is a lack
of ability to distinguish between morality and immorality, but because the
opportunity [383 U.S. 413, 440] for
self-expression has been so controlled or strangled that the society or the
person becomes a robot.
The issue which a Dr. Peale
will never understand, because he is a victim of it himself and which John
Cleland describes with brilliant clarity and sensitive persuasion is that until
we learn to respect ourselves enough that we leave each other alone, we cannot
discover the meaning of morality.
Dr. Peale and Fanny Hill
offer the two basic choices open to man. Man is free to choose an autocentric
existence which is marked by freedom from ambiguity and responsibility.
Autocentricity presupposes a "closed world" where life is
predetermined and animal-like. In contrast to this view, there is the allocentric
outlook which is marked by an "open encounter of the total person with the
world." Growth, spontaneity and expression are the goals of such an
Dr. Peale epitomizes the
autocentric approach. He offers "warm blankets" and comfortable
"cocoons" for those who want to lose their humanity. On the other
hand, Fanny Hill represents the allocentric viewpoint which posits the
possibility for man to raise his sights, stretch his imagination, cultivate his
sensitiveness as well as deepen and broaden his perspectives. In discussing the
autocentric idea, Floyd W. Matson writes,
"Human beings conditioned to apathy
and affluence may well prefer this regressive path of least resistance, with
its promise of escape from freedom and an end to striving. But we know at least
that it is open to them to choose otherwise: in a word, to choose
themselves." (The Broken Image, page 193.)
In a day when people are
overly sensitive in drawing lines between the good and the bad, the right and
the wrong, as well as the true and the false, it seems to me [383 U.S. 413,
441] that there is great irony in the
availability of a book such as Fanny Hill. Prostitution may be the oldest
profession in the world, but we are ever faced with a question which is
becoming more and more disturbing: "What does a prostitute look
FOOTNOTES TO JUSTICE DOUGLAS' Concurrence
[ Footnote 1 ] Memoirs was
the subject of what is generally regarded as the first recorded suppression of
a literary work in this country on grounds of obscenity. See Commonwealth v.
Holmes, 17 Mass. 336 (1821). The edition there condemned differed from the
present volume in that it contained apparently erotic illustrations.
[ Footnote 2 ] Memoirs, at
213-214 (Putnam ed. 1963).
[ Footnote 3 ] The defense
drew its witnesses from the various colleges located within the Commonwealth of
Massachusetts. These included: Fred Holly Stocking, Professor of English and
Chairman of the English Department, Williams College; John M. Bullitt,
Professor of English and Master of Quincy House, Harvard College; Robert H.
Sproat, Associate Professor of English Literature, Boston University; Norman N.
Holland, Associate Professor of English, Massachusetts Institute of Technology;
and Ira Konigsberg, Assistant Professor of English and American Literature,
Brandeis University. In addition, the defense introduced into evidence reviews
of impartial literary critics. These are, in my opinion, of particular
significance since their publication indicates that the book is of sufficient
significance as to warrant serious critical comment. The [383 U.S. 413,
427] reviews were by V. S. Pritchett,
New York Review of Books, p. 1 (Oct. 31, 1963); Brigid Brophy, New Statesman,
p. 710 (Nov. 15, 1963); and J. Donald Adams, New York Times Book Review, p. 2
(July 28, 1963). And the Appendix to this opinion contains another contemporary
[ Footnote 4 ] There are
two reports of the case. The first is captioned Le Roy v. Sr. Charles Sidney, 1
Sid. 168, pl. 29 (K. B. 1663); the second is titled Sir Charles Sydlyes Case, 1
Keble 620 (K. B. 1663). Sir Charles had made a public appearance on a London
balcony while nude, intoxicated, and talkative. He delivered a lengthy speech
to the assembled crowd, uttered profanity, and hurled bottles containing what
was later described as an "offensive liquor" upon the crowd. The
proximate source of the "offensive liquor" appears to have been Sir
Charles. Alpert, Judicial Censorship of Obscene Literature, 52 Harv. L. Rev.
[ Footnote 5 ] The Queen v.
Read, 11 Mod. 142 (Q. B. 1707).
[ Footnote 6 ] Dominus Rex
v. Curl, 2 Strange 789 (K. B. 1727). See Straus, The Unspeakable Curll (1927).
[ Footnote 7 ] Rex v.
Wilkes, 4 Burr. 2527 (K. B. 1770). The prosecution of Wilkes was a highly
political action, for Wilkes was an outspoken critic of the government. See R.
W. Postgate, That Devil Wilkes (1929). It has been suggested that the
prosecution in this case was a convenient substitute for the less attractive
charge of seditious libel. See Alpert, supra, at 45.
[ Footnote 8 ] See 354
U.S., at 483 and n. 13. For the most part, however, the early legislation was
aimed at blasphemy and profanity. See 354 U.S., at 482 -483 and n. 12. The
first reported decision involving the publication of obscene literature does not
come until 1821. See Commonwealth v. Holmes, 17 Mass. 336. It was not until
after the Civil War that state prosecutions of this sort became commonplace.
See Lockhart & McClure, Literature, The Law of Obscenity, and the
Constitution, 38 Minn. L. Rev. 295, 324-325 (1954).
[ Footnote 9 ] Tariff Act
of 1842, c. 270, 28, 5 Stat. 566 (prohibiting importation of obscene
"prints"). Other federal legislation followed; the development of
federal law is traced in Cairns, Paul, & Wishner, Sex Censorship: The
Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn. L. Rev.
1009, 1010 n. 2 (1962).
[ Footnote 10 ] See Cairns,
Paul & Wishner, supra, 1034-1041; Lockhart & McClure, supra, at
382-387. And see the summary of Dr. Jahoda's studies prepared by her for Judge
Frank, reprinted in United States v. Roth, 237 F.2d 796, 815-816 (concurring
opinion). Those who are concerned about children and erotic literature would do
well to consider the counsel of Judge Bok: "It will be asked whether one
would care to have one's young daughter read these books. I suppose that by the
time she is old enough to wish to read them she will have learned the biologic
facts of life and the words that go with them. There is something seriously
wrong at home if those facts have not been met and faced and sorted by then; it
is not children so much as parents that should receive our concern about this.
I should prefer that my own three daughters meet the facts of life and the
literature of the world in my library than behind a neighbor's barn, for I can
face the adversary there directly. If the young ladies are appalled by what
they read, they can close the book at the bottom of page one; if they read
further, they will learn what is in the world and in its [383 U.S. 413, 432] people, and no parents who have been
discerning with their children need fear the outcome. Nor can they hold it
back, for life is a series of little battles and minor issues, and the burden
of choice is on us all, every day, young and old." Commonwealth v. Gordon,
66 Pa. D. & C. 101, 110.
[ Footnote 11 ] It would be
a futile effort even for a censor to attempt to remove all that might possibly
stimulate antisocial sexual conduct: "The majority [of individuals],
needless to say, are somewhere between the over-scrupulous extremes of
excitement and frigidity . . . . Within this variety, it is impossible to
define `hard-core' pornography, as if there were some singly lewd concept from
which all profane ideas passed by imperceptible degrees into that sexuality called
holy. But there is no `hard-core.' Everything, every idea, is capable of being
obscene if the personality perceiving it so apprehends it. "It is for this
reason that books, pictures, charades, ritual, the spoken word, can and do lead
directly to conduct harmful to the self indulging in it and to others. Heinrich
Pommerenke, who was a rapist, abuser, and mass slayer of women in Germany, was
prompted to his series of ghastly deeds by Cecil B. DeMille's The Ten
Commandments. During the scene of the Jewish women dancing about the Golden
Calf, all the doubts of his life came clear: Women were the source of the
world's trouble and it was his mission to both punish them for this and to
execute them. Leaving the theater, he slew his first victim in a park nearby. John
George Haigh, the British vampire who sucked his victims' blood through soda
straws and dissolved [383 U.S. 413, 433]
their drained bodies in acid baths, first had his murder-inciting dreams
and vampire-longings from watching the `voluptuous' procedure of - an Anglican
High Church Service!" Murphy, supra, at 668.
MR. JUSTICE CLARK,
It is with regret that I
write this dissenting opinion. However, the public should know of the
continuous flow of pornographic material reaching this Court and the increasing
problem States have in controlling it. Memoirs of a Woman of Pleasure, the book
involved here, is typical. I have "stomached" past cases for almost
10 years without much outcry. Though I am not known to be a purist - or a shrinking
violet - this book is too much even for me. It is important that the Court has
refused to declare it obscene and thus affords it further circulation. In order
to give my remarks the proper setting I have been obliged to portray the book's
contents, which causes me embarrassment. However, quotations from typical
episodes would so debase our Reports that I will not follow that course.
Let me first pinpoint the
effect of today's holding in the obscenity field. While there is no majority
opinion in this case, there are three Justices who import a new test into that
laid down in Roth v. United States, 354 U.S. 476 (1957), namely, that "[a]
book cannot be proscribed unless it is found to be utterly without redeeming
social value." I agree with my Brother WHITE that such a condition rejects
the basic holding of Roth and gives the smut artist free rein to carry on his
dirty business. My vote in that case - which was the deciding one for the
majority opinion - was cast solely because the Court declared the test of obscenity
to be: "whether to [383 U.S. 413, 442]
the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to prurient
interest." I understood that test to include only two constitutional requirements:
(1) the book must be judged as a whole, not by its parts; and (2) it must be
judged in terms of its appeal to the prurient interest of the average person,
applying contemporary community standards. 1 Indeed, obscenity was denoted in
Roth as having "such slight social value as a step to truth that any
benefit that may be derived . . . is clearly outweighed by the social interest
in order and morality. . . ." At 485 (quoting Chaplinsky v. New Hampshire,
315 U.S. 568, 572 (1942)). Moreover, in no subsequent decision of this Court
has any "utterly without redeeming social value" test been suggested,
much less expounded. My Brother HARLAN in Manual Enterprises, Inc. v. Day, 370
U.S. 478 (1962), made no reference whatever to such a requirement in Roth. Rather
he interpreted Roth as including a test of "patent offensiveness"
besides "prurient appeal." Nor did my Brother BRENNAN in his
concurring opinion in Manual Enterprises mention any "utterly without
redeeming social value" test. The first reference to such a test was made
by my Brother BRENNAN in Jacobellis v. Ohio, 378 U.S. 184, 191 (1964), seven
years after Roth. In an opinion joined only by Justice Goldberg, he there
wrote: "Recognizing that the test for obscenity enunciated [in Roth] . . .
is not perfect, we think any substitute would raise equally difficult problems,
and we therefore adhere to that standard." Nevertheless, he proceeded to
"We would reiterate, however, our
recognition in Roth that obscenity is excluded from the constitutional
protection only because it is `utterly without redeeming social importance,' .
. . ." [383 U.S. 413, 443]
This language was then
repeated in the converse to announce this non sequitur:
"It follows that material dealing
with sex in a manner that advocates ideas . . . or that has literary or
scientific or artistic value or any other form of social importance, may not be
branded as obscenity and denied the constitutional protection." At 191.
Significantly no opinion in
Jacobellis, other than that of my Brother BRENNAN, mentioned the "utterly
without redeeming social importance" test which he there introduced into
our many and varied previous opinions in obscenity cases. Indeed, rather than
recognizing the "utterly without social importance" test, THE CHIEF
JUSTICE in his dissent in Jacobellis, which I joined, specifically stated:
"In light of the foregoing, I would
reiterate my acceptance of the rule of the Roth case: Material is obscene and
not constitutionally protected against regulation and proscription if `to the
average person, applying contemporary community standards, the dominant theme
of the material taken as a whole appeals to prurient interest.'" (Emphasis
added.) At 202.
THE CHIEF JUSTICE and I
further asserted that the enforcement of this rule should be committed to the
state and federal courts whose judgments made pursuant to the Roth rule we
would accept, limiting our review to a consideration of whether there is
"sufficient evidence" in the record to support a finding of obscenity.
Three members of the
majority hold that reversal here is necessary solely because their novel
"utterly without redeeming social value" test was not properly
interpreted or applied by the Supreme Judicial Court of Massachusetts. [383
U.S. 413, 444] Massachusetts now has to
retry the case although the "Findings of Fact, Rulings of Law and Order
for Final Decree" of the trial court specifically held 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." I quote portions of the findings:
"Opinions of experts are admitted in
evidence to aid the Court in its understanding and comprehension of the facts,
but, of course, an expert cannot usurp the function of the Court. Highly
artificial, stylistic writing and an abundance of metaphorical descriptions are
contained in the book but the conclusions of some experts were pretty well
strained in attempting to justify its claimed literary value: such as the book
preached a moral that sex with love is better than sex without love, when
Fanny's description of her sexual acts, particularly with the young boy she
seduced, in Fanny's judgment at least, was to the contrary. Careful review of
all the expert testimony has been made, but, the best evidence of all, is the
book itself and it plainly has no value because of ideas, news or artistic,
literary or scientific attributes. . . . 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 Scileppi in People v. Fritch,
13 N. Y. 2d 119." (Emphasis added.) Finding 20.
None of these findings of
the trial court were overturned on appeal, although the Supreme Judicial Court
of Massachusetts observed in addition that "the fact that the testimony
may indicate this book has some minimal literary value does not mean it is of
any social importance. We do not interpret the `social importance' test as
requiring [383 U.S. 413, 445] that a
book which appeals to prurient interest and is patently offensive must be
unqualifiedly worthless before it can be deemed obscene." My Brother
BRENNAN reverses on the basis of this casual statement, despite the specific
findings of the trial court. Why, if the statement is erroneous, Brother
BRENNAN does not affirm the holding of the trial court which beyond question is
correct, one cannot tell. This course has often been followed in other cases.
In my view evidence of
social importance is relevant to the determination of the ultimate question of
obscenity. But social importance does not constitute a separate and distinct
constitutional test. Such evidence must be considered together with evidence
that the material in question appeals to prurient interest and is patently
offensive. Accordingly, we must first turn to the book here under attack. I
repeat that I regret having to depict the sordid episodes of this book.
Memoirs is nothing more
than a series of minutely and vividly described sexual episodes. The book
starts with Fanny Hill, a young 15-year-old girl, arriving in London to seek
household work. She goes to an employment office where through happenstance she
meets the mistress of a bawdy house. This takes 10 pages. The remaining 200
pages of the book detail her initiation into various sexual experiences, from a
lesbian encounter with a sister prostitute to all sorts and types of sexual
debauchery in bawdy houses and as the mistress of a variety of men. This is
presented to the reader through an uninterrupted succession of descriptions by
Fanny, either as an observer or participant, of sexual adventures so vile that
one of the male expert witnesses in the case was hesitant to repeat any one of
them in the courtroom. [383 U.S. 413, 446]
These scenes run the gamut of possible sexual experience such as
lesbianism, female masturbation, homosexuality between young boys, the
destruction of a maidenhead with consequent gory descriptions, the seduction of
a young virgin boy, the flagellation of male by female, and vice versa,
followed by fervid sexual engagement, and other abhorrent acts, including over
two dozen separate bizarre descriptions of different sexual intercourses
between male and female characters. In one sequence four girls in a bawdy house
are required in the presence of one another to relate the lurid details of
their loss of virginity and their glorification of it. This is followed the
same evening by "publick trials" in which each of the four girls
engages in sexual intercourse with a different man while the others witness,
with Fanny giving a detailed description of the movement and reaction of each
In each of the sexual
scenes the exposed bodies of the participants are described in minute and
individual detail. The pubic hair is often used for a background to the most
vivid and precise descriptions of the response, condition, size, shape, and
color of the sexual organs before, during and after orgasms. There are some
short transitory passages between the various sexual episodes, but for the most
part they only set the scene and identify the participants for the next orgy,
or make smutty reference and comparison to past episodes.
There can be no doubt that
the whole purpose of the book is to arouse the prurient interest. Likewise the
repetition of sexual episode after episode and the candor with which they are
described renders the book "patently offensive." These facts weigh
heavily in any appraisal of the book's claims to "redeeming social
Let us now turn to evidence
of the book's alleged social value. While unfortunately the State offered
little testimony, 2 [383 U.S. 413,
447] the defense called several experts
to attest that the book has literary merit and historical value. A careful
reading of testimony, however, reveals that it has no substance. For example,
the first witness testified:
"I think it is a work of art . . .
it asks for and receives a literary response . . . presented in an orderly and
organized fashion, with a fictional central character, and with a literary
style . . . . I think the central character is . . . what I call an
intellectual . . . someone who is extremely curious about life and who seeks .
. . to record with accuracy the details of the external world, physical
sensations, psychological responses . . . an empiricist . . . . I find that
this tells me things . . . about the 18th century that I might not otherwise
If a book of art is one
that asks for and receives a literary response, Memoirs is no work of art. The
sole response evoked by the book is sensual. Nor does the orderly presentation
of Memoirs make a difference; it presents nothing but lascivious scenes
organized solely to arouse prurient interest and produce sustained erotic
tension. 3 Certainly the book's baroque style cannot vitiate the determination
of obscenity. From a legal standpoint, we must remember that obscenity is no
less obscene though it be expressed in "elaborate language." Indeed,
the more meticulous its presentation, the more it appeals to the prurient
interest. To say that Fanny is an "intellectual" is an insult to
those who travel under that tag. [383 U.S. 413, 448] She was nothing but a harlot - a sensualist
- exploiting her sexual attractions which she sold for fun, for money, for
lodging and keep, for an inheritance, and finally for a husband. If she was
curious about life, her curiosity extended only to the pursuit of sexual
delight wherever she found it. The book describes nothing in the "external
world" except bawdy houses and debaucheries. As an empiricist, Fanny
confines her observations and "experiments" to sex, with primary
attention to depraved, lewd, and deviant practices.
Other experts produced by
the defense testified that the book emphasizes the profound "idea that a
sensual passion is only truly experienced when it is associated with the
emotion of love" and that the sexual relationship "can be a
wholesome, healthy, experience itself," whereas in certain modern novels "the
relationship between the sexes is seen as another manifestation of modern
decadence, insterility or perversion." In my view this proves nothing as
to social value. The state court properly gave such testimony no probative
weight. A review offered by the defense noted that "where `pornography'
does not brutalize, it idealizes. The book is, in this sense, an erotic fantasy
- and a male fantasy, at that, put into the mind of a woman. The male organ is
phenomenal to the point of absurdity." Finally, it saw the book as "a
minor fantasy, deluding as a guide to conduct, but respectful of our delight in
the body . . . an interesting footnote in the history of the English
novel." These unrelated assertions reveal to me nothing whatever of
literary, historical, or social value. Another review called the book "a
great novel . . . one which turns its convention upside down . . . ."
Admittedly Cleland did not attempt "high art" because he was writing
"an erotic novel. He can skip the elevation and get on with the
erections." Fanny's "downfall" is seen as "one long
delightful swoon into the depths of pleasurable sensation." [383 U.S. 413,
449] Rather than indicating social
value in the book, this evidence reveals just the contrary. Another item
offered by the defense described Memoirs as being "widely accredited as
the first deliberately dirty novel in English." However, the reviewer
found Fanny to be "no common harlot. Her `Memoirs' combine literary grace
with a disarming enthusiasm for an activity which is, after all, only human.
What is more, she never uses a dirty word." The short answer to such
"expertise" is that none of these so-called attributes have any value
to society. On the contrary, they accentuate the prurient appeal.
Another expert described
the book as having "detectable literary merit" since it reflects
"an effort to interpret a rather complex character . . . going through a
number of very different adventures." To illustrate his assertion that the
"writing is very skillfully done" this expert pointed to the
description of a whore, "Phoebe, who is `red-faced, fat and in her early
50's, who waddles into a room.' She doesn't walk in, she waddles in."
Given this standard for "skillful writing," it is not surprising that
he found the book to have merit.
The remaining experts
testified in the same manner, claiming the book to be a "record of the
historical, psychological, [and] social events of the period." One has but
to read the history of the 18th century to disprove this assertion. The story
depicts nothing besides the brothels that are present in metropolitan cities in
every period of history. One expert noticed "in this book a tendency away
from nakedness during the sexual act which I find an interesting sort of
sociological observation" on tastes different from contemporary ones. As
additional proof, he marvels that Fanny "refers constantly to the male
sexual organ as an engine . . . which is pulling you away from the way these
events would be described in the 19th or 20th century." How this adds social
value to the book [383 U.S. 413, 450]
is beyond my comprehension. It only indicates the lengths to which these
experts go in their effort to give the book some semblance of value. For
example, the ubiquitous descriptions of sexual acts are excused as being
necessary in tracing the "moral progress" of the heroine, and the
giving of a silver watch to a servant is found to be "an odd and
interesting custom that I would like to know more about." This only points
up the bankruptcy of Memoirs in both purpose and content, adequately justifying
the trial court's finding that it had absolutely no social value.
It is, of course, the duty
of the judge or the jury to determine the question of obscenity, viewing the
book by contemporary community standards. It can accept the appraisal of
experts or discount their testimony in the light of the material itself or
other relevant testimony. So-called "literary obscenity," i. e., the
use of erotic fantasies of the hard-core type clothed in an engaging literary
style has no constitutional protection. If a book deals solely with erotic
material in a manner calculated to appeal to the prurient interest, it matters
not that it may be expressed in beautiful prose. There are obviously dynamic
connections between art and sex - the emotional, intellectual, and physical -
but where the former is used solely to promote prurient appeal, it cannot claim
constitutional immunity. Cleland uses this technique to promote the prurient
appeal of Memoirs. It is true that Fanny's perverse experiences finally bring
from her the observation that "the heights of [sexual] enjoyment cannot be
achieved until true affection prepares the bed of passion." But this
merely emphasizes that sex, wherever and however found, remains the sole theme
of Memoirs. In my view, the book's repeated and unrelieved appeals to the
prurient interest of the average person leave it utterly without redeeming
social importance. [383 U.S. 413, 451]
In his separate
concurrence, my Brother DOUGLAS asserts there is no proof that obscenity
produces antisocial conduct. I had thought that this question was foreclosed by
the determination in Roth that obscenity was not protected by the First
Amendment. I find it necessary to comment upon Brother DOUGLAS' views, however,
because of the new requirement engrafted upon Roth by Brother BRENNAN, i. e.,
that material which "appeals to a prurient interest" and which is
"patently offensive" may still not be suppressed unless it is
"utterly without redeeming social value." The question of antisocial
effect thus becomes relevant to the more limited question of social value.
Brother BRENNAN indicates that the social importance criterion encompasses only
such things as the artistic, literary, and historical qualities of the
material. But the phrasing of the "utterly without redeeming social
value" test suggests that other evidence must be considered. To say that
social value may "redeem" implies that courts must balance alleged
esthetic merit against the harmful consequences that may flow from pornography.
Whatever the scope of the social value criterion - which need not be defined
with precision here - it at least anticipates that the trier of fact will weigh
evidence of the material's influence in causing deviant or criminal conduct,
particularly sex crimes, as well as its effect upon the mental, moral, and
physical health of the average person. Brother DOUGLAS' view as to the lack of
proof in this area is not so firmly held among behavioral scientists as he
would lead us to believe. For this reason, I should mention that there is a
division of thought on the correlation between obscenity and socially
physiological studies clearly indicate that many persons become sexually
aroused from reading [383 U.S. 413, 452]
obscene material. 4 While erotic stimulation caused by pornography may
be legally insignificant in itself, there are medical experts who believe that
such stimulation frequently manifests itself in criminal sexual behavior or
other antisocial conduct. 5 For example, Dr. George W. Henry of Cornell
University has expressed the opinion that obscenity, with its exaggerated and
morbid emphasis on sex, particularly abnormal and perverted practices, and its
unrealistic presentation of sexual behavior and attitudes, may induce
antisocial conduct by the average person. 6 A number of sociologists think that
this material may have adverse effects upon individual mental health, with
potentially disruptive consequences for the community. 7
In addition, there is
persuasive evidence from criminologists and police officials. Inspector Herbert
Case of the Detroit Police Department contends that sex murder cases are
invariably tied to some form of obscene literature. 8 And the Director of the
Federal Bureau of Investigation, J. Edgar Hoover, has repeatedly emphasized
that pornography is associated with an overwhelmingly large number of sex
crimes. Again, while the correlation between possession of obscenity and
deviant behavior [383 U.S. 413, 453]
has not been conclusively established, the files of our law enforcement
agencies contain many reports of persons who patterned their criminal conduct
after behavior depicted in obscene material. 9
The clergy are also
outspoken in their belief that pornography encourages violence, degeneracy and
sexual misconduct. In a speech reported by the New York Journal-American August
7, 1964, Cardinal Spellman particularly stressed the direct influence obscenity
has on immature persons. These and related views have been confirmed by
practical experience. After years of service with the West London Mission, Rev.
Donald Soper found that pornography was a primary cause of prostitution. Rolph,
Does Pornography Matter? (1961), pp. 47-48. 10
Congress and the
legislatures of every State have enacted measures to restrict the distribution
of erotic and pornographic material, 11 justifying these controls by reference
to evidence that antisocial behavior may result in part from reading obscenity.
12 Likewise, upon another trial, the parties may offer this sort of evidence
along with other "social value" characteristics that they attribute
to the book. [383 U.S. 413, 454]
But this is not all that
Massachusetts courts might consider. I believe it can be established that the
book "was commercially exploited for the sake of prurient appeal, to the
exclusion of all other values" and should therefore be declared obscene
under the test of commercial exploitation announced today in Ginzburg and
As I have stated, my study
of Memoirs leads me to think that it has no conceivable "social
importance." The author's obsession with sex, his minute descriptions of
phalli, and his repetitious accounts of bawdy sexual experiences and deviant
sexual behavior indicate the book was designed solely to appeal to prurient
interests. In addition, the record before the Court contains extrinsic evidence
tending to show that the publisher was fully aware that the book attracted
readers desirous of vicarious sexual pleasure, and sought to profit solely from
its prurient appeal. The publisher's "Introduction" recites that
Cleland, a "never-do-well bohemian," wrote the book in 1749 to make a
quick 20 guineas. Thereafter, various publications of the book, often
"embellished with fresh inflammatory details" and "highly
exaggerated illustrations," appeared in "surreptitious
circulation." Indeed, the cover of Memoirs tempts the reader with the
announcement that the sale of the book has finally been permitted "after
214 years of suppression." Although written in a sophisticated tone, the
"Introduction" repeatedly informs the reader that he may expect
graphic descriptions of genitals and sexual exploits. For instance, it states:
"Here and there, Cleland's
descriptions of love-making are marred by what perhaps could be best described
as his adherence to the `longitudinal fallacy' - the formidable bodily
equipment of his most [383 U.S. 413, 455]
accomplished lovers is apt to be described with quite unnecessary relish
. . . ."
Many other passages in the
"Introduction" similarly reflect the publisher's "own
evaluation" of the book's nature. The excerpt printed on the jacket of the
hard-cover edition is typical:
"Memoirs of a Woman of Pleasure is
the product of a luxurious and licentious, but not a commercially degraded,
era. . . . For all its abounding improprieties, his priapic novel is not a
vulgar book. It treats of pleasure as the aim and end of existence, and of
sexual satisfaction as the epitome of pleasure, but does so in a style that,
despite its inflammatory subject, never stoops to a gross or unbecoming
Cleland apparently wrote
only one other book, a sequel called Memoirs of a Coxcomb, published by Lancer
Books, Inc. The "Introduction" to that book labels Memoirs of a Woman
of Pleasure as "the most sensational piece of erotica in English
literature." I daresay that this fact alone explains why G. P. Putnam's
Sons published this obscenity - preying upon prurient and carnal proclivities
for its own pecuniary advantage. I would affirm the judgment.
FOOTNOTES TO THE DISSENT OF JUSTICE CLARK
[ Footnote 1 ] See Lockhart
& McClure, Censorship of Obscenity: The Developing Constitutional
Standards, 45 Minn. L. Rev. 5, 53-55 (1960).
[ Footnote 2 ] In a preface
to the paperbook edition, "A Note on the American History of Memoirs of a
Woman of Pleasure," the publisher itself mentions several critics who
denied the book had any literary merit and found it totally undistinguished.
These critics included Ralph Thompson and Clifton Fadiman. P. xviii.
[ Footnote 3 ] As one
review stated: "Yet all these pangs of defloration are in the service of
erotic pleasure - Fanny's and the reader's. Postponing the culmination of
Fanny's deflowering is equivalent to postponing the point where the reader has
a mental orgasm."
[ Footnote 4 ] For a
summary of experiments with various sexual stimuli see Cairns, Paul &
Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the
Empirical Evidence, 46 Minn. L. Rev. 1009 (1962). The authors cite research by
Kinsey disclosing that obscene literature stimulated a definite sexual response
in a majority of the male and female subjects tested.
[ Footnote 5 ] E. g.,
Wertham, Seduction of the Innocent (1954), p. 164.
[ Footnote 6 ] Testimony
before the Subcommittee of the Judiciary Committee to Investigate Juvenile
Delinquency, S. Rep. No. 2381, 84th Cong., 2d Sess., pp. 8-12 (1956).
[ Footnote 7 ] Sorokin, The
American Sex Revolution (1956).
[ Footnote 8 ] Testimony
before the House Select Committee on Current Pornographic Materials, H. R. Rep.
No. 2510, 82d Cong., 2d Sess., p. 62 (1952).
[ Footnote 9 ] See, e. g.,
Hoover, Combating Merchants of Filth: The Role of the FBI, 25 U. Pitt. L. Rev.
469 (1964); Hoover, The Fight Against Filth, The American Legion Magazine (May
[ Footnote 10 ] For a
general discussion see Murphy, Censorship: Government and Obscenity (1963), pp.
[ Footnote 11 ] The
statutes are compiled in S. Rep. No. 2381, 84th Cong., 2d Sess., pp. 17-23
(1956). While New Mexico itself does not prohibit the distribution of
obscenity, it has a statute giving municipalities the right to suppress
"obscene" publications. N. M. Stat. 14-17-14 (1965 Supp.).
[ Footnote 12 ] See Report
of the New York State Joint Legislative Committee Studying the Publication and
Dissemination of Offensive and Obscene Material (1958), pp. 141-166.
MR. JUSTICE HARLAN,
The central development
that emerges from the aftermath of Roth v. United States, 354 U.S. 476 , is
that no stable approach to the obscenity problem has yet been devised by this
Court. Two Justices believe that the First and Fourteenth Amendments absolutely
protect obscene and nonobscene material alike. Another Justice believes that
neither the States nor the Federal Government may suppress any material save
for "hard-core pornography." Roth in 1957 stressed prurience and [383
U.S. 413, 456] utter lack of redeeming
social importance; 1 as Roth has been expounded in this case, in Ginzburg v.
United States, post, p. 463, and in Mishkin v. New York, post, p. 502, it has
undergone significant transformation. The concept of "pandering,"
emphasized by the separate opinion of THE CHIEF JUSTICE in Roth, now emerges as
an uncertain gloss or interpretive aid, and the further requisite of
"patent offensiveness" has been made explicit as a result of
intervening decisions. Given this tangled state of affairs, I feel free to
adhere to the principles first set forth in my separate opinion in Roth, 354
U.S., at 496 , which I continue to believe represent the soundest
constitutional solution to this intractable problem.
My premise is that in the
area of obscenity the Constitution does not bind the States and the Federal
Government in precisely the same fashion. This approach is plainly consistent
with the language of the First and Fourteenth Amendments and, in my opinion,
more responsive to the proper functioning of a federal system of government in
this area. See my opinion in Roth, 354 U.S., at 505 -506. I believe it is also
consistent with past decisions of this Court. Although some 40 years have
passed since the Court first indicated that the Fourteenth Amendment protects
"free speech," see Gitlow v. New York, 268 U.S. 652 ; Fiske v.
Kansas, 274 U.S. 380 , the decisions have never declared that every utterance
the Federal Government may not reach or every regulatory scheme it may not
enact is also beyond the power of the State. The very criteria used in opinions
to delimit the protection of free speech - the gravity of the evil being
regulated, see Schneider v. State, 308 U.S. 147 ; how "clear and
present" is the danger, Schenck v. [383 U.S. 413, 457] United States, 249 U.S. 47, 52 (Holmes, J.);
the magnitude of "such invasion of free speech as is necessary to avoid
the danger," United States v. Dennis, 183 F.2d 201, 212 (L. Hand, J.) -
may and do depend on the particular context in which power is exercised. When,
for example, the Court in Beauharnais v. Illinois, 343 U.S. 250 , upheld a
criminal group-libel law because of the "social interest in order and
morality," 343 U.S., at 257 , it was acknowledging the responsibility and
capacity of the States in such public-welfare matters and not committing itself
to uphold any similar federal statute applying to such communications as
Congress might otherwise regulate under the commerce power. See also Kovacs v.
Cooper, 336 U.S. 77 .
Federal suppression of
allegedly obscene matter should, in my view, be constitutionally limited to
that often described as "hard-core pornography." To be sure, that
rubric is not a self-executing standard, but it does describe something that most
judges and others will "know . . . when [they] see it" (STEWART, J.,
in Jacobellis v. Ohio, 378 U.S. 184, 197 ) and that leaves the smallest room
for disagreement between those of varying tastes. To me it is plain, for
instance, that Fanny Hill does not fall within this class and could not be
barred from the federal mails. If further articulation is meaningful, I would
characterize as "hard-core" that prurient material that is patently
offensive or whose indecency is self-demonstrating and I would describe it
substantially as does MR. JUSTICE STEWART'S opinion in Ginzburg, post, p. 499.
The Federal Government may be conceded a limited interest in excluding from the
mails such gross pornography, almost universally condemned in this country. 2
But I believe the dangers of national [383 U.S. 413, 458] censorship and the existence of primary
responsibility at the state level amply justify drawing the line at this point.
State obscenity laws
present problems of quite a different order. The varying conditions across the
country, the range of views on the need and reasons for curbing obscenity, and
the traditions of local self-government in matters of public welfare all favor
a far more flexible attitude in defining the bounds for the States. From my
standpoint, the Fourteenth Amendment requires of a State only that it apply
criteria rationally related to the accepted notion of obscenity and that it
reach results not wholly out of step with current American standards. As to
criteria, it should be adequate if the court or jury considers such elements as
offensiveness, pruriency, social value, and the like. The latitude which I
believe the States deserve cautions against any federally imposed formula
listing the exclusive ingredients of obscenity and fixing their proportions.
This approach concededly lacks precision, but imprecision is characteristic of
mediating constitutional standards; 3 voluntariness of a confession, clear and
present danger, and probable cause are only the most ready illustrations. In
time and with more litigated examples, predictability increases, but there is
no shortcut to satisfactory solutions in this field, and there is no advantage
in supposing otherwise.
I believe the tests set out
in the prevailing opinion, judged by their application in this case, offer only
an [383 U.S. 413, 459] illusion of
certainty and risk confusion and prejudice. The opinion declares that a book
cannot be banned unless it is "utterly without redeeming social
value" (ante, p. 418). To establish social value in the present case, a
number of acknowledged experts in the field of literature testified that Fanny
Hill held a respectable place in serious writing, and unless such largely
uncontradicted testimony is accepted as decisive it is very hard to see that
the "utterly without redeeming social value" test has any meaning at
all. Yet the prevailing opinion, while denying that social value may be
"weighed against" or "canceled by" prurience or
offensiveness (ante, p. 419), terminates this case unwilling to give a conclusive
decision on the status of Fanny Hill under the Constitution. 4 Apparently, the
Court believes that the social value of the book may be negated if proof of
pandering is present. Using this inherently vague "pandering" notion
to offset "social value" wipes out any certainty the latter term
might be given by reliance on experts, and admits into the case highly
prejudicial evidence without appropriate restrictions. See my dissenting
opinion in Ginzburg, post, p. 493. I think it more satisfactory to acknowledge
that on this record the book has been shown to have some quantum of social
value, that it may at the same time be deemed offensive and salacious, and that
the State's decision to weigh these elements and to ban this particular work
does not exceed constitutional limits.
A final aspect of the
obscenity problem is the role this Court is to play in administering its
standards, a matter [383 U.S. 413, 460]
that engendered justified concern at the oral argument of the cases now
decided. Short of saying that no material relating to sex may be banned, or
that all of it may be, I do not see how this Court can escape the task of
reviewing obscenity decisions on a case-by-case basis. The views of literary or
other experts could be made controlling, but those experts had their say in
Fanny Hill and apparently the majority is no more willing than I to say that
Massachusetts must abide by their verdict. Yet I venture to say that the
Court's burden of decision would be ameliorated under the constitutional
principles that I have advocated. "Hard-core pornography" for judging
federal cases is one of the more tangible concepts in the field. As to the
States, the due latitude my approach would leave them ensures that only the
unusual case would require plenary review and correction by this Court.
There is plenty of room, I
know, for disagreement in this area of constitutional law. Some will think that
what I propose may encourage States to go too far in this field. Others will
consider that the Court's present course unduly restricts state experimentation
with the still elusive problem of obscenity. For myself. I believe it is the
part of wisdom for those of us who happen currently to possess the "final
word" to leave room for such experimentation, which indeed is the underlying
genius of our federal system.
FOOTNOTES TO THE DISSENT OF JUSTICE HARLAN
On the premises set forth
in this opinion, supplementing what I have earlier said in my opinions in Roth,
supra, Manual Enterprises, Inc. v. Day, 370 U.S. 478 , and Jacobellis v. Ohio,
378 U.S., at 203 , I would affirm the judgment of the Massachusetts Supreme
[ Footnote 1 ] Given my
view of the applicable constitutional standards, I find no occasion to consider
the place of "redeeming social importance" in the majority opinion in
Roth, an issue which further divides the present Court.
[ Footnote 2 ] This
interest may be viewed from different angles. Compelling the Post Office to aid
actively in disseminating this most obnoxious material may simply appear too
offensive in itself. Or, more concretely, use of the mails may facilitate or
insulate distribution so greatly that federal inaction amounts to thwarting
[ Footnote 3 ] The
deterrent effect of vagueness for that critical class of books near the law's
borderline could in the past be ameliorated by devices like the Massachusetts
in rem procedure used in this case. Of course, the Court's newly adopted
"panderer" test, turning as it does on the motives and actions of the
particular defendant, seriously undercuts the effort to give any seller a yes
or no answer on a book in advance of his own criminal prosecution.
[ Footnote 4 ] As I
understand the prevailing opinion, its rationale is that the state court may
not condemn Fanny Hill as obscene after finding the book to have a modicum of social
value; the opinion does note that proof of pandering "might justify the
conclusion" that the book wholly lacks social value (ante, p. 420). Given
its premise for reversal, the opinion has "no occasion to assess" for
itself the pruriency, offensiveness, or lack of social value of the book (ante,
MR. JUSTICE WHITE,
In Roth v. United States,
354 U.S. 476 , the Court held a publication to be obscene if its predominant
theme [383 U.S. 413, 461] appeals to
the prurient interest in a manner exceeding customary limits of candor.
Material of this kind, the Court said, is "utterly without redeeming
social importance" and is therefore unprotected by the First Amendment.
To say that material within
the Roth definition of obscenity is nevertheless not obscene if it has some
redeeming social value is to reject one of the basic propositions of the Roth
case - that such material is not protected because it is inherently and utterly
without social value.
importance" is to be used as the prevailing opinion uses it today, obscene
material, however far beyond customary limits of candor, is immune if it has
any literary style, if it contains any historical references or language
characteristic of a bygone day, or even if it is printed or bound in an
interesting way. Well written, especially effective obscenity is protected; the
poorly written is vulnerable. And why shouldn't the fact that some people buy
and read such material prove its "social value"?
A fortiori, if the
predominant theme of the book appeals to the prurient interest as stated in
Roth but the book nevertheless contains here and there a passage descriptive of
character, geography or architecture, the book would not be "obscene"
under the social importance test. I had thought that Roth counseled the
contrary: that the character of the book is fixed by its predominant theme and
is not altered by the presence of minor themes of a different nature. The Roth
Court's emphatic reliance on the quotation from Chaplinsky v. New Hampshire,
315 U.S. 568 , means nothing less:
"`. . . There are certain
well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional
problem. These include [383 U.S. 413, 462]
the lewd and obscene . . . . It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality. .
. .' (Emphasis added.)" 354 U.S., at 485 .
In my view, "social
importance" is not an independent test of obscenity but is relevant only
to determining the predominant prurient interest of the material, a determination
which the court or the jury will make based on the material itself and all the
evidence in the case, expert or otherwise.
Application of the Roth
test, as I understand it, necessarily involves the exercise of judgment by
legislatures, courts and juries. But this does not mean that there are no
limits to what may be done in the name of Roth, Cf. Jacobellis v. Ohio, 378
U.S. 184 . Roth does not mean that a legislature is free to ban books simply
because they deal with sex or because they appeal to the prurient interest. Nor
does it mean that if books like Fanny Hill are unprotected, their nonprurient
appeal is necessarily lost to the world. Literary style, history, teachings
about sex, character description (even of a prostitute) or moral lessons need
not come wrapped in such packages. The fact that they do impeaches their claims
to immunity from legislative censure.
Finally, it should be
remembered that if the publication and sale of Fanny Hill and like books are
proscribed, it is not the Constitution that imposes the ban. Censure stems from
a legislative act, and legislatures are constitutionally free to embrace such
books whenever they wish to do so. But if a State insists on treating Fanny
Hill as obscene and forbidding its sale, the First Amendment does not prevent
it from doing so.
I would affirm the judgment
below. [383 U.S. 413, 463]