DocketNumber: Appeal, 204
Judges: Bell, Cohen, Eagen, Jones, Musmanno, O'Brien, Roberts
Filed Date: 9/29/1967
Status: Precedential
Modified Date: 10/19/2024
Opinion by
In response to a complaint in equity filed by the District Attorney of Philadelphia County, the court of common pleas of that county held a hearing to determine whether the book “Candy” was obscene within the meaning of the Act of June 1, 1956, P. L. (1955) 1997, as amended, September 22, 1961, P. L. 1587, 18 P.S. §3832.1
A hearing on the district attorney’s complaint was held in March 1965, but the court below withheld its adjudication pending the disposition by the Supreme Court of the United States of three obscenity cases then on appeal to that Court.
We reverse, for the reasons stated hereinafter, because we conclude that the court below erroneously interpreted the standards for determining obscenity set forth by the Supreme Court of the United States and, in particular, viewed the book from a perspective inconsistent with these opinions. Our decision in this case, however, should not, in any manner, be construed as an approval of “Candy” — indeed some members of this Court personally find the book to be revolting and disgusting. While we respect the views of those who believe this book is “obscene” we hold it does not fall within the class of “legal obscenity” so that, in a free society, its circulation may be indiscriminately prohibited.
In the instant litigation, however, both the comments made during the hearing and the formal adjudication indicate that the hearing judge proceeded on the premise that, in the final analysis, his own subjective reaction, in and by itself, was the determining factor.
The totally subjective approach adopted by the court below was palpable error. “The suppression of a book requires not only an expression of judgment by the court that it is so bad, in the view of the Judges, that it is offensive to community standards of decency as the Legislature has laid them down, but also that it is so bad that the constitutional freedom to print has been lost because of what the book contains. The history and tradition of our institutions stand against the suppression of books.” Larkin v. G. P. Putnam’s Sons, 14 N.Y. 2d 399, 401, 200 N.E. 2d 760, 761 (1964).
Constitutional fact finding is an essential element of any obscenity case
However, the last quoted sentence from Roth is logically circular and can be interpreted in either of two ways. On the one hand, one can conclude, as do Justices Clark and White,
Finally, before turning to the evidence presented in' the instant case, it should be pointed out that neither Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942 (1966), nor Mishkin v. New York, 383 U.S. 502, 86 S. Ct. 958 (1966), decided the same day as Memoirs, is, as the court below recognized, relevant to the case at bar. In Ginzburg a majority of the Court adopted the variable approach to obscenity
No evidence whatsoever was presented at the proceedings below concerning the conduct of the present appellants. The procedural posture of this case is identical with that of Memoirs, for in both instances it was the book which was on trial.
Candy and the Roth-Memoirs Test
For our purpose a lengthy description of “Candy” is unnecessary. It is sufficient to note that the plot is devoted almost exclusively to the normal and abnormal sexual adventures of its heroine, a coed named Candy Christian, and that these adventures are described in considerable detail. Every one of its 15 chapters centers around a particular sexual incident in the heroine’s life. It is generally conceded, by the book’s friends and foes, that it is a satire or at least an attempt at satire upon the cultural ideals of our contemporary society.
Roth, defines obscenity in the following terms, which incidentally are identical with the definition given in
A. Appeal to Prurient Interest: This is perhaps the most difficult of the three elements to define; what appeals to the prurient interest of one individual may not appeal to the prurient interest of another.
Unfortunately, there was practically no testimony offered concerning “Candy’s” appeal to the prurient interest of the average adult citizen.
Over half a century ago Judge Learned Hand spoke out against the then prevailing test of obscenity, derived from Regina v. Hicklin, [1868] 3 Q.B. 360, which judged a work in terms of its effect on the most susceptible recipient group: “To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy.” United States v. Kennerley, 209 Fed. 119, 121 (S.D.N.Y. 1913). The HiekUn test has been subsequently rejected by the Supreme Court of the United States and the one advocated by Judge Hand substituted therefor. See Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304 (1957); Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676 (1964); Smith v. California, 361 U.S. 147, 160, 169, 80 S. Ct. 215, 222, 227 (1959) (Frankfurter and Harlan, JJ., concurring). This does not mean that society may not by carefully drawn statutes prevent juveniles from obtaining literature which may have an adverse effect on them. See Commonwealth v. Robin, 421 Pa. 70, 72, 218 A. 2d 546, 547 (1966) (concurring opinion); cf. Redrup v. New York, 386 U.S. 767, 87 S. Ct. 1414 (1967). But to destroy literature solely because of its possible effect on the children, and thus “reduce
Nevertheless, we shall assume that the Commonwealth has adequately shown that “the dominant theme . . . taken as a whole appeals to a prurient interest in sex.” This area is one where a judge’s subjective reaction is most relevant; the hearing judge, the court en banc below, and the members of this Court agree that “Candy” has the requisite prurient appeal.
B. Contemporary Community Standards: Before a finding of legal obscenity can be sustained the evidence must show that “the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.” Memoirs v. Massachusetts, 383 U.S. at 418, 86 S. Ct. at 977 (1966); see Commonwealth v. Baer, 209 Pa. Superior Ct. 349, 227 A. 2d 915 (1967); cf. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S. Ct. 1432 (1962) (Harlan, J.). Most of the debate over the term “contemporary community standards” has centered around the question of whether the relevant community is to be defined in terms of the nation-at-large or some smaller sector. Compare Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676 (1964) (Brennan, J.) with id. at 199, 84 S. Ct. at 1684 (War-
One aspect of obscenity litigation in which the Supreme Court seems to be unanimous is that contemporary community standards are to be judged by the standards of the current year rather than by the standards of 5, 10, 50, or 100 years ago.
There are two yardsticks by which contemporary community standards may be judged. One is to compare the challenged book to other books which have either been held entitled to the protection of the First Amendment or, in the absence of litigation, which meet contemporary standards and are substantially similar to the challenged book. The other is to consider the reception the book received from the community when
The Commonwealth presented practically no evidence whatsoever concerning “Candy’s” relationship to contemporary community standards.
■-1 On - the contrary, the defense witnesses
.. When “Candy” was first published in this country it was reviewed in over a hundred newspapers and periodicals, many of which were introduced by the defense in the proceedings below. While many of these reviews panned the book and some showed utter distaste for it, almost without exception, they recognized it as
C. Redeeming Social Importance: Following the conclusion of the “Fanny Hill” litigation, in which the Supreme Judicial Court of Massachusetts was reversed by the Supreme Court of the United States, the Massachusetts Court had occasion to consider the obscenity vel non of William Borroughs’ “Naked Lunch.” Although to the Court the book was “grossly offensive” and was “what the author himself says, ‘brutal, obscene and disgusting,’ ” it nevertheless held in a per curiam opinion that the book was protected by the First Amendment: “As to whether the book has any redeeming social value, the record contains many reviews and articles in literary and other publications discussing
From what has been said in the section under contemporary community standards it should be evident that “Candy” has at least a minimum or modicum of social value, which is all that is required, absent evidence of pandering, to shield a book with the protection of ' the First Amendment. For, as Mr. Justice 'Brennan stated in Memoirs, 383 U.S. at 419, 86 S. Ct. at 978 (emphasis in original) : “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.”
■In addition, several of the Commonwealth’s own witnesses’ testimony indicates that “Candy” has a. “modicum” of social value, although they felt this
Obscenity Litigation During the October 1966 Term
One constant aspect of obscenity litigation in the Supreme Court of the United States during the past decade seems to be that action speaks louder than words. Thus the convictions of Messrs. Mishkin and
On May 8, 1967, without the fanfare of its 1966 trilogy, the Court handed down a cryptic per curiam opinion disposing of three consolidated cases, Redrup v. New York, 386 U.S. 767, 87 S. Ct. 1414, which may yet prove to be the most significant of its obscenity opinions. The impact of this opinion, along with those cases summarily decided on the last day of the Term, comes as close to a holding that, in the eyes of the present Court, “Candy” is not per se constitutionally obscene as is possible without a direct ruling on the bock itself. Although the Court had originally granted review in Redrup to consider problems of scienter upon the assumption that the materials involved were obscene in the constitutional sense, it decided to dispose of the case upon the ground that they were not
Redrup seems to signify the Court’s final abandonment of its futile search for a definition of obscenity vel non. For significantly, instead of attempting to determine what constituted obscenity, the Court approached the problem in terms of those circumstances under which the publication of otherwise unobjectionable material might be constitutionally restricted, 87 S. Ct. at 1415: “In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645; cf. Butler v. State of Michigan, 352 U.S. 380, 77 S. Ct. 524, 1 L. Ed. 2d 412. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. City of Alexandria, 341 U.S, 622, 71 S. Ct. 920, 95 L. Ed. 1233; Public Utilities Comm’n of District of Columbia v. Pollak, 343 U.S. 451, 72 S. Ct. 813, 96 L. Ed. 1068. And in none was there evidence of the sort of ‘pandering’ which the
As has already been indicated in this opinion, none of the three situations described in Redrup are present in the case at bar. The importance of Redrup to obscenity litigation in general, and to the instant case in. particular., is amply demonstrated by eleven decisions handed down by the Court on the last day of the 1966 Term, June 12, 1967.
Because of the wide difference of opinion on the Supreme Court, perhaps the only way to obtain a sense for the Court’s attitude qua Court is to consider the views of each individual Justice. A breakdown of the individual votes in the eleven Redrup related cases reveals the following: Justices Black, Douglas and Stewart predictably voted to reverse in each instance, but so did Justices White and Fortas. Justice Brennan voted to reverse the convictions in seven cases, to affirm two cases (both involving movies) without giving any reason, and to affirm one case on the authority of Ginzburg and to vacate and remand one case on the authority of Memoirs. Chief Justice Warren voted to reverse in two cases, to affirm in two cases (both involving movies) without giving any reason, to affirm two cases on the authority of Mishhin and one on the authority of Ginzburg, to vacate and remand one case in light of Memoirs, and to set down three cases for oral argument. Justice Clark
None of the published works involved in the Redrup related cases comes close to having achieved the national recognition afforded “Candy.” Indeed, to our knowledge, none of them were reviewed in any publication and none certainly appeared on any best seller lists.
Decree reversed; each party to pay own costs.
Appendixes to the Opinion op the Court :
Appendix A
Excerpts from three reviews of “Candy”:
1. Life Magazine, May 8, 1964. (A signed review by Nelson Algren, American author) : “I don’t know how reviewers reacted to Alice in Wonderland when it first was published. Something, I suspect, along the same lines as the Navy brass when first confronted with Admiral Rickover’s fantasies. I do know how the professional critics ducked when Joseph Heller’s Catch 22 was published: and that it took a great wave of praise from England to force it upon their frighted sightlines. So far Terry Southern has suffered the same fate in this country.
“The awkward truth he presents is that sex is not sick, but innocent. And worse yet to reviewers— Southern is an absolutely first-rate writer. So now the whole bicycling throng of literary begrudgers, too obsequious to oppose yet too chintzy to praise, too canny to hate and too careful to love, will have to pedal like mad to fit Southern to some acceptable preconception.
“‘He’s like Nathanael West!’ is sure to be one guess. ‘No! he’s Lenny Bruce!’ another will insist. ‘Hey! How about “A Beat Dean Swift”?’ yet another may venture. ‘Not at all! He’s a combination of Orwell, Burroughs, Joe Heller and Evelyn Waugh.’ None of which will be accurate. Nor will - the inevitable comparisons to Henry Miller. Miller fought the tyranny of puritanical sex with puritanical fury. But two generations have passed since then, and it is possible to be more lighthearted about such matters today. The Magic Christian, Candy and Dr. Strangelove are the work of a major satirist. Furthermore, each are' aspects of the same novel. In short, Southern is holding up a triple-angled mirror to America in which, given a rudimentary sense of humor, we are enabled to see ourselves as we really are.
“Nowhere has sex been sicker than in the U.S., and sick for so long we have forgotten it is supposed to be-healthy. When sex is a joyous fulfillment instead of a wasting affliction, people can see that the most hilarious event in the history of mankind was the divi
2. Time Magazine, June 12, 1964: “Since pornography is now available at every neighborhood bookshop and drugstore, the idea of satirizing the pornographic novel was bound to occur to someone. If done with Swiftian skill, it could be defended on moral as well as literary grounds, even though it could easily descend to the level of a vice crusader’s wet-lipped discourse on the evils of vice.
“Candy is as far from Swift as a French postcard is from Hogarth. Its heroine, Candy Christian, is that supposedly fictitious character — the girl who was ruined by a book. A glad-glanded college girl, she believes everything she reads or is told, and thus her pretty head is filled with every cliché in the current liberal establishment of ideas. Unhappily there is just one thing she can do for her country, for colonial freedom, for Zen enlightenment, for Freud, for minorities, and this she certainly does. For example, she takes the most improbable of her lovers, a cretin with a ‘radish-white’ humped back, because he is so loathsome that he constitutes a superminority of one.
“Candy, originally written for Paris’ Olympia Press, which specializes in sheer lubricity, is not pornography. It may even be described as antisexual; all too often, at the crucial moment, everything goes askew, and Candy slips back into her flimsy panties, crying ‘Good grief!’ Its most conspicuous intent is to be more outrageous in detail than what it is satirizing, and these days, that is hard to do. In the effort, Candy ends up dirty as hell.”
3. Newsweek Magazine, May 18, 1964: “Stand aside. Franny and Zooey; the age of Hadj and Zoon is upon us. The new era promises to be a good deal
“Eager: The form of the story is episodic, like Voltaire’s ‘Candide,’ which the heroine’s name, Candy Christian, purposely recalls. But she is a very up-to-date heroine, peachy, pneumatic, and eager for defloration and all sorts of debauchery, which she is able to accept in good conscience as service to others as well as mystical self-realization.
“ ‘To give oneself — fully—-is not merely a duty prescribed by an outmoded superstition,’ the prurient Professor Mephesto assures her over an aphrodisiac sherry in his study, ‘it is a beautiful and thrilling privilege!’ After privileged encounters with libidinous doctors and a cretinous hunchback, Candy attains the esoteric ca-' maraderie of the Cracker Foundation, a progressive coal mine like some sort of underground kibbutz, near Mohawk, Minn. From there, inflamed by a lecherously demanding guru (‘. . . the mystic path is an arduous path . . .’), she undertakes a pilgrimage to Tibet and what must surely be the most marvelously scabrous denouement in modern letters — the climax of a G-reek tragedy rewritten by Nathanael West and S. J. Perelman.
“The stylistic mixture sounds fantastic, and it is. It also sounds uncomfortably lumpy, and yet, surprisingly, it isn’t. Although, the two authors write alternately, the texture is remarkably even, and Southern gave the whole script a final fond erotic polish.”
Appendix B
For purposes of comparison with the reviews excerpted in Appendix A (see also notes 30, 44, 47 and accompanying text) we have included the Court of Appeals’ description of “Sex Life of A Cop”, held not
“Inside the covers are pages which the defendants’ experts call ‘blurbs’. These are short, but meaty, excerpts from other books available from the publishers, and give prurient promise of the books’ contents. They demonstrate that the publisher, at least, suffered from no illusions as to the interests to which the book was directed. One of the blurbs, however, has an intellectual flavor. It identifies as an author, Wallace DeOrtega Maxey, Doctor of Divinity, whom we assume to be the defendant of the same name. ‘Dr. Maxey’ is described as a minister who has cast off the shackles of prudery, (now an evangelist for freedom) whose ‘views are in sharp contrast with those of most ministers, but so were the views of Columbus with those of the other navigators of his time. The new idea replaces the old; the world is not flat.’
“The 147 pages of the alleged novel are generously faithful to the promises of the blurbs. Without palliating interruption, the story moves quickly from one sexual enterprise to another. So numerous are these events that even the practiced skill of the author runs
The Act of June 1, 1956, P. L. (1955) 1997, as amended, 18 P.S. §3832.1 provides: “The district attorney of any county in which any person sells, distributes, . . . any comic book, magazine, book, . . . which is obscene, may institute proceedings in equity in the court of common pleas of said county for the purpose of enjoining [its] sale, resale .... A preliminary injunction may issue and a hearing thereafter be held . . . upon the averment of the district attorney that the sale, resale, distribution or consignment of such publication constitutes a danger to the welfare or peace of the community.”
Compare Pa. Const., Art. I, §7.
Mishkin v. New York, 383 U.S. 502, 86 S. Ct. 958 (1966); Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942 (1966); Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975 (1966).
One commentator lias suggested, “respectfully but firmly” that by its 1966 trilogy “the- Court has turned the law of obscenity into a constitutional disaster area.” Magrath, The Obscenity Cases: Grapes of Roth, 1966 S. Ct. Review 7, 59. This view is apparently shared by others, see Monaghan, Obscenity, 1966: The Marriage of Obscenity Per Se and Obscenity Per Quod, 76 Yale L.J. 127 (1966) ; Note, More Ado About Dirty Books, 75 Yale L.J. 1364 (1966).
Although this point will be made again in this opinion, we wish to stress at the outset that this case does not involve an attempt to limit the scope of the injunction to a carefully defined group such as juveniles. See Commonwealth v. Robin, 421 Pa. 70,
See, e.g., Memoirs v. Massachusetts, supra note 3; Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676 (1964); Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S. Ct. 1432, 1437 (1962).
Memoirs v. Massachusetts, 383 U.S. at 427, 86 S. Ct. at 981-82 (concurring opinion). See also Smith v. California, 361 U.S. 147, 160, 169, 80 S. Ct. 215, 222, 227 (1959) (Frankfurter & Harlan, JJ., concurring).
United States v. One Carton Positive Motion Picture Film Entitled "491”, 367 F. 2d 889, 897 n.3 (2d Cir. 1966).
See Record, e.g., 51a, 71a, 159a, 257a, 267a, 382a.
But see the views of Justices Black, Douglas and Stewart in the cases cited supra note 3.
The relationship of constitutional fact finding to the law of obscenity is definitively set forth in Mr. Justice Br'ennan’s opinion in Jacobellis v. Ohio, supra, note 6.
See Memoirs v. Massachusetts, supra note S (dissenting opinions).
See Memoirs v. Massachusetts, supra note 3.
See Ginzburg v. United States, supra note 3; cf. Mishkin v. New York, supra note 3.
Mr. Justice Harlan believes that different standards should apply in federal and state obscenity cases. See his opinions in
For a full exposition of variable obscenity see Lockhart & McClure, Obscenity Censorship: The Core Constitutional Issue— What is Obscene?, 7 Utah L. Rev. 289 (1961) ; Lockhart & McClure, The Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5 (1960).
“it is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.” Roth v. United States, 354 U.S. 476, 495, 77 S. Ct. 1304, 1314-15 (1957) (Wabben, C. X, concurring). See. Ginzburg v. United States, 383 U.S. 463, 474-76, 86 S. Ct. 942, 949-50 (1966). See also Kingsley Books, Inc. v. Brown, 354 U.S. 436, 445, 77 S. Ct. 1325, 1330 (1957) ( Wabben, C. X, dissenting).
Mishkin v. New York, 383 U.S. 502, 509, 86 S. Ct. 958, 964 (1966). “Candy’s” audience was the community-at-large rather than a deviate sector as in Mishkin.
-vye recognize of course that the instant litigation was instituted against “Candy’s” publisher and distributor. However, the whole focus of 18 P.S. §3832.1 is upon the book itself and it clearly was the book, not the publisher or distributor, which was on trial. Cf. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S. Ct. 1325 (1957). No evidence was introduced below which even alluded to any other issue. Nor was there any suggestion that any of the defendants went about their business with “the leer of the sensualist” or made any statements remotely similar to those made by defendants Mishkin and Ginzburg which proved so decisive in their respective appeals.
The Commonwealth in its brief does attempt to bring “Candy” within the Ginzburg-Mishlevn pandering rationale but its arguments on this point border on the absurd. First it suggests that the appellants were guilty of pandering because “Candy” was also sold in a paperback edition. The Ginzburg Court itself emphatically rejected the equation of profit with pandering, 383 U.S. at 474-75, 86 S. Ct. at 949. See also Redrup v. New York, 386 U.S. 767, 87 S.
See, e.g., the dissenting opinions of Justices Black, Douglas and Stewart in Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942 (1966).
E.g., Mishkin v. New York, 383 U.S. 502, 86 S. Ct. 958 (1966): cf. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S. Ct 1432 (1962).
“Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or
Four members of the Supreme Court, Justices Blaoic, Douglas. Brennan and Stewart, have clearly stated that they believe the relevant community is the nation. The votes of Justices White and Fortas in the obscenity cases decided in June 1967, discussed infra, seem to imply that they too have adopted this view.
A vast number of books, which are now considered classics, were at one time banned. See, e.g., Judge Bok’s list in Commonwealth v. Gordon, 66 Pa. D. & C. 101, 115-17 (1949).
This second yardstick will not be available in all instances. See, e.g., the books held to be not constitutionally obscene in Redrup v. Now York, 386 U.S. 767, 87 S. Ct. 1414 (1967) and its progeny discussed infra. See also Commonwealth v. Baer, 209 Pa. Superior Ct. 349, 227 A. 2d 915 (1967).
Compare United States v. One Carton Positive Motion Picture Film Entitled “491”, 367 F. 2d 889, 896-98 (2d Cir. 1966); Commonwealth v. Baer, supra note 25.
‘'Under cross-examination, most of the [Commonwealth’s] witnesses admitted they had read little of the modern outpouring of erotic novels, and hence were not able to compare ‘Candy’ with other contemporary works of its general kind.” Opinion of the hearing judge, Record p. 380a.
The Commonwealth called as its witnesses, Dr. John J. Kane, a Professor of Sociology at Notre Dame, Rev. Paul G. Larkin, a Roman Catholic priest, Dr. Austin J. App, a Professor of English at LaSalle College, Rev. Carter W. Merbreier, a Lutheran minister, James J. O’Donnell, the head of a small anti-pornography group, and Frank R. Ryan, a court psychologist, who dealt with problem children.
Grove Press, Inc. v. Gerstein, 378 U.S. 577, 84 S. Ct. 1909 (1964); see Commonwealth v. Robin, 421 Pa. 70, 218 A. 2d 546 (1966).
For illustrative and comparison purposes see, e.g., the description of the book, “Sex Life of A Cop,” by the United States Court of Appeals for the Sixth Circuit in United States v. West Coast News Co., 357 F. 2d 855, 857-58 (1966) (reprinted in Appendix B) rev’d sub nom; Aday v. United States, 388 U.S. 447, 87 S. Ct. 2095 (1967) and the description of the book, “Orgy Club,” by the Ohio Court of Appeals in State v. Mazes, 209 N.E. 2d 496, 498 (1965), aff’d 7 Ohio St. 2d 136, 218 N.E. 2d 725 (1966), rev’d 388 U.S. 453, 87 S. Ct. 2105 (1967). See generally the discussion of Redrup v. New York and its progeny infra.
The defense witnesses consisted of Dr. Morse Peckham, a Professor of English at the University of Pennsylvania, Mr. Lyle Stuart, a New York publisher, Dr. Albert Goldman, a Professor of English literature at Columbia University, and Dr. Martin Oppenheimer, a Professor of Sociology at H’averford College.
Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975 (1966) (“Eanny Hill”); Attorney General v. A. Book Named “Naked Lunch", 351 Mass. 298, 218 N.E. 2d 571 (1966).
While we do not consider these magazines the arbiters of contemporary community standards, and certainly not the standards of the avant-garde communities, they probably reflect the average community mores as well as any other tangible standard. Nor are the views of these magazines to be equated with what constitutes redeeming social importance.
See also Zeitlin v. Arnebergh, 59 Cal. 2d 901, 920, 31 Cal. Rptr. 800, 813, 383 P. 2d 152, 165 (1963); 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, 104-05, 213 A. 2d 235, 238-39 (1965).
Por example, no one would suggest that books like Marx’s “Communist Manifesto”, Hitler’s “Mein Kampf”, or Mao Tse-tung’s “Quotations from the Red Book” could be constitutionally banned even though they seek to undermine the very essence of our society But cf. Commonwealth v. Robin, 421 Pa. 70, 90, 218 A. 2d 546, 555-56 (1966) (Musmaetno, J., dissenting).
Although Kingsley involved a motion picture admittedly not obscene, Mr. Justice Stewart, speaking for the Court, pertinently observed, 360 U.S. at 688-89, 79 S. Ct. at 1365: “It is contended that the State’s action was justified because the motion picture attractively portrays a relationshij) which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.”
To demonstrate this, all we need do is quote from the trial judge’s summarization of the two defense witnesses who addressed themselves to the book’s social value: “A Princeton Ph. D., professor of English at the University of Pennsylvania, called it ‘a work of literature’ — though, he conceded, not a very good one. It was concerned with- a serious moral and emotional problem, he said — the idea upheld in our culture of the satisfaction to be found in giving oneself to others, which the book brought into question. It was reasonably funny. He considered ‘Fanny Hill’ to be outright pornography, and if so ‘Candy’ was not, he declared.” Opinion of the hearing judge, Record p. 380a.
“A professor of English literature at Columbia University testified that he considered ‘Candy’ an important book, not great but significant, in the tradition of Roman satire but presenting a new technique. It had social importance, he said, as a bitter attack on the ‘specious goodness’ inherent in the false and hypocritical idea of the ‘American Dream girl’ — the stereotype of woman as pure, beautiful, wholesome, sweet and devoted to everyone’s welfare but her own. The sex scenes, he said, were not written to arouse sexual desires or to advocate improprieties but rather as caricatures. He did concede, however, that the book might stimulate some young people to improper acts. Nevertheless he believed ‘Candy’ might very likely be recommended for college reading in a course on modern comic fiction.” Id. at 381a. See also the book review excerpts in Appendix A.
In Roth and its companion case, Alberts v. California, the Court proceeded on the assumption, not challenged by the defendants, that the materials involved were properly classified as obscenity, the only issue being whether obscenity was protected by the First Amendment. 354 U.S. at 481 n.8, 77 S. Ct. at 1307 n.8. In Ginsbura, the Court proceeded on the assumption that the materials involved were not constitutionally obscene per se but that the defendant’s conduct made them so. Finally, in Mishkin, the only other case where the Court has written an opinion affirming an obscenity conviction, Mishkin evidently did not challenge the New York Court’s findings that his material consisted of hard-core pornography, but limited his appeal to the question of whether the material appealed to the prurient interest of the average person. See 383 U.S. at 508, 86 S. Ct. at 963.
Justices Black, Douglas and Stewart would have granted review without any such limitation. See Gent v. Arkansas, 384 U.S. 937, 86 S. Ct. 1454; Redrup v. New York, 384 U.S. 916, 86 S. Ct. 1362 (1966).
Justices Clark and Harlan objected to the Court’s decision to dispose of the cases on grounds specifically excluded from review.
Two other obscenity cases were reversed on non-Redrup grounds, Cornith Publications, Inc. v. Wesberry, 388 U.S. 418, 87 S. Ct. 2096 (1967) and Rosenbloom v. Virginia, 388 U.S. 450, 87 S. Ct. 2095, and two appeals were dismissed as moot, Jacobs v. New York, 388 U.S. 431, 87 S. Ct. 2098, and Tannenbaum v. New York, 388 U.S. 439, 87 S. Ct. 2107.
Schackman v. California, 388 U.S. 454, 87 S. Ct. 2107 (1967); Mazes v. Ohio, 388 U.S. 453, 87 S. Ct. 2105 (books); Books, Inc. v. United States, 388 U.S. 449, 87 S. Ct. 2098 (books; reversing 1st Cir.); Aday v. United States, 388 U.S. 447, 87 S. Ct. 2095 (books; reversing 6th Cir.); Avansino v. New York, 388 U.S. 446, 87 S. Ct. 2093 (books); Sheperd v. New York, 388 U.S. 444, 87 S. Ct. 2093 (books); Cobert v. New York, 388 U.S. 443, 87 S. Ct. 2092 (movies); Ratner v. California, 388 U.S. 442, 87 S. Ct. 2092 (movies); Friedman v. New York, 388 U.S. 441, 87 S. Ct. 2091 (books); Keney v. New York, 388 U.S. 440, 87 S. Ct. 2091 (books); A Quantity of Books v. Kansas, 388 U.S. 452, 87 S. Ct. 2104 (books).
Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 1683 (1964) (Stewart, J.).
See 35 Law Week 3430-31 (June 13, 1967) for a summary of the issues raised in the cases cited notes 41 and 42 supra. Examples of the paperbacks held not to be obscene in the constitutional sense are: “Lust Job”, “Orgy Club”, “Sex Life of A Cop”, “Passion Priestess”, and “Sin Warden.” See especially the description of “Sex Life of A Cop” in United States v. West Coast News Co., 357 F. 2d 855, 857-58 (6th Cir. 1966), rev’d sub nom, Aday v. United States, 388 U.S. 447, 87 S. Ct. 2095 (1967), reprinted in Appendix B.
Because of his resignation at the end of the 1966 Term, Justice Glabk’s personal views on obscenity may no longer bo important. Moreover, since Justice Clark has been the most conservative member of the Court vis-a-vis obscenity eases, even if his successor were to have the same views, it would have no appreciable effect on the current status of obscenity law.
See Justice Harlan’s separate opinion in Memoirs v. Massachusetts, 383 U.S. 413, 455, 86 S. Ct. 975, 996 (1966) and Roth v. United States, 354 U.S. 476, 496, 77 S. Ct. 1304, 1315 (1957).
Two other cases decided on the last day of the Term, both involving convictions for distributing allegedly obscene movies, deserve passing mention. In one, Wenzler v. Pitchess, 388 U.S. 912, 87 S. Ct. 2096 (1967), the Court simply denied certiorari with Justices Black, Stewart and Douglas noting that they were of the opinion that certiorari should be granted and a writ of habeas corpus issued on the authority of Redrup. In the other case, Landau v. Fording, 388 U.S. 456, 87 S. Ct. 2109 (1967), the Court granted certiorari and affirmed, Justices Portas, Stewart, Douglas and Black noting dissents. Neither the majority nor. dissenting judges cited any authority for their respective votes. The lower court opinion in Landau, 54 Cal. Reptr. 177 (Cal. App. 1966) reveals that the defendant’s conviction was upheld on alternative grounds, viz., that the movie in question was constitutionally obscene and that the defendant was guilty of pandering. Significantly however the court noted an important distinction between obscenity vel non of movies and books: “Because of the nature of the medium, we think a motion picture of sexual scenes may transcend the bounds of the constitutional guarantee long before a frank description of the same scenes in the written word.” 54 Cal. Reptr. at 181. Of. the votes of Chief Justice Warren and Justice Brennan in the eleven cases reversed on the authority of Redrup.
For example, in United States v. West Coast News Co., 228 F. Supp. 171 (W.D. Mich. 1964), aff’d, 357 F. 2d 855 (6th Cir. 1966), rev’d sub nom, Aday v. United States, 388 U.S. 447, 87 S. Ct. 2095 (1967) (“Sex Life of A Cop”) (see Appendix B), the