349 Mass. 69 (1965), Attorney General v. Book Named 'John Cleland's Memoirs of a Woman of Pleasure'

Citation:349 Mass. 69, 206 N.E.2d 403
Case Date:April 22, 1965
Court:Supreme Judicial Court of Massachusetts

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349 Mass. 69 (1965)

206 N.E.2d 403




Supreme Judicial Court of Massachusetts, Suffolk.

April 22, 1965

Argued Jan. 8, 1965.

[206 N.E.2d 404] Charles Rembar, New York City (Reuben Goodman, Boston, with him) for intervener.

William I Cowin, Asst. Atty. Gen. (John E. Sullivan, Asst. Atty. Gen., with him), for Attorney General.

Henry P. Monaghan, Holyoke, for Civil Liberties Union of Massachusetts and others, amici curiae, submitted a brief.


SPALDING, Justice.

This is an appeal from a final decree holding the book, 'John Cleland's Memoirs of a Woman of Pleasure' (Memoirs), more commonly known as 'Fanny Hill,' obscene, indecent and impure under G.L. c. 272, §§ 28C, 28E, and 28F (inserted by St.1945, c. 278, § 1). 1

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The petition was brought by the Attorney General. The publisher of the book, G. P. Putnam's Sons, intervened as a party. No jury trial having been claimed under § 28D, the case was heard by a judge. The evidence consisted of the book, various newspaper articles, book reviews and the testimony of several experts in the field of literature. The judge made careful and complete findings of fact and discussed the relevant law exhaustively.

Memoirs was written in England in 1749. For over two centuries it has had for the most part a surreptitious circulation. Memoirs has, for example, previously been a source of litigation in this Commonwealth (see Commonwealth v. Holmes, 17 Mass. 336), and very recently it has been the subject of decisions by other courts. See Larkin v. G. P. Putnam's Sons, 14 N.Y.2d 399, 252 N.Y.S.2d 71, 200 N.E.2d 760; G. P. Putnam's Sons v. Calissi, 86 N.J. Super. 82, 205 A.2d 913.

The sole question is whether the publication of Memoirs is protected by the First Amendment to the United States Constitution, as made applicable to the States by the Fourteenth Amendment. Since a majority of the court held in Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, 'that obscenity is not within the area of constitutionally protected speech or press,' the question becomes one of determining whether or not Memoirs is obscene.

The book takes the form of two letters written by a prostitute in which the recounts her life since she, a country girl, was abandoned in London. It concentrates on her sexual experiences, both normal and abnormal, which are described in minute detail. Memoirs, as is conceded by the intervener, is erotic. Erotica and obscenity, however, are not synonymous. The fact that Memoirs may arouse sexual thoughts and desires is not, in itself, sufficient to deprive

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it of its constitutional protection. If the contrary were the case, the public could be deprived of many of the word's greatest literary and artistic works. Our task, then, [206 N.E.2d 405] is to trace, as best we can, the 'dim and uncertain line' which separates obscenity from that which is protected by the First Amendment. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 9 L.Ed.2d 584; Jacobellis v. State of Ohio, 378 U.S. 184, 187, 84 S.Ct. 1676, 12 L.Ed.2d 793. We are under no illusions as to the difficulties involved in 'facing up to the tough individual problems of constitutional judgment involved in every obscenity case.' Roth v. United States, 354 U.S. 476, 498, 77 S.Ct. 1304, 1316.

The first Supreme Court case to face the obscenity issue squarely was Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304. 2 The majority opinion in that case established the following test: 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' Id. at 489, 77 S.Ct. at 1311. In a footnote the majority clarified what their notion of 'prurient' was by quoting with approval Am.Law. Inst., Model Penal Code, § 207.10(2) (Tent. draft, No. 6, 1957) which defined that term as '* * * a shameful or morbid interest in nudity, sex, or excretion.' 3 Roth v. United States, supra, at 487, n. 20, 77 S.Ct. at 1310.

We have no doubt that the dominant theme of Memoirs appeals to prurient interest. The book is composed almost entirely of a series of episode involving Lesbianism, voyeurism, prostitution, flagellation, sexual orgies, masturbation, fellatio, homosexuality, and defloration, all of which 'goes substantially beyond customary limits of candor in describing or representing such matters.' Am.Law Inst., Model Penal Code, § 251.4(1) (Proposed Official Draft, May 4, 1962). See Jacobellis v. State of Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676. For the same reason, we hold Memoirs to be such an affront

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to current community standards as to constitute 'patent offensiveness.' See Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482, 82 S.Ct. 1432, 8 L.Ed.3d 639. We would reach this result whether we applied local community or national standards. See Jacobellis v. State of Ohio, supra, 378 U.S. at 193, 84 S.Ct. 1676 (opinion of Brennan, J.), which indicates national standards should be used. But see dissent of Warren, C. J., in that case at page 200, 84 S.Ct. at page which takes the position that obscenity is to be defined by local community standards.

There is one other possible test which must be considered. The majority opinion in the Roth case went on to say that 'implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance' (emphasis supplied) Id. 354 U.S. at p. 484, 77 S.Ct. at p. 1309. While it does not clearly emerge from the opinion whether 'social importance' is an independent standard, subsequent decisions shed some light on the matter.

In Jacobellis v. State of Ohio, supra, 378 U.S. at 191, 84 S.Ct. at 1680 (opinion of Brennan, J., concurred in by Goldberg, J.), the view was expressed that the constitutional status of material cannot 'be made to turn on a 'weighing' of its social importance against its prurient appeal, for a work cannot be proscribed unless it is 'utterly' without social importance.' See Tralins v. Gerstein, 378 U.S. 576, 84 S.Ct. 1903, 12 L.Ed.2d 1053 (per curiam), and Grove Press, Inc. v. Gerstein, 378 U.S. 577, 84 S.Ct. 1909, 12 L.Ed.2d 1035 (per curiam). Thus it would appear that unless a work is 'utterly without social importance' [206 N.E.2d 406] it cannot be deemed obscene. For views which would extend the constitutional protection even further see Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304 (dissent of Douglas, J.); Jacobellis v. State of Ohio, 378 U.S. 184, 196, 84 S.Ct. 1676 (opinion of Black, J.); A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 213, 84 S.Ct. 1723, 12 L.Ed.2d 809 (opinion of Black, J.).

The trial judge, after an exhaustive and able discussion of the relevant decisions, ruled that the Attorney General, to maintain his petition, must meet the following three tests: 'First, the 'prurient interest' test, which, because of the holding in the 'Tropic of Cancer' (345 Mass. 11 [184 N.E.2d 328]) case must be shown to be 'hard core pornography'; Second, the

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'PATENT OFFENSIVENESS' TEST; AND third, the 'social value' test.' he further ruled that the '[f]ailure * * * to sustain the standards that any one of these tests is designed for will result in an adjudication that the book * * * [is not] obscene in a constitutional sense.' Whether the Supreme Court of the United States has laid down three independent standards, all of which (as the judge ruled), must be satisfied, need not be decided, for in our opinion Memoirs meets all the tests. 4 As indicated above, we have litte doubt that Memoirs' dominant theme appeals to prurient interests and that it is patently offensive.

It remains to consider whether the book can be said to be 'uttlerly without social importance.' We are mindful that there was expert testimony, much of which was strained, to the effect that Memoris is a structural novel with literary merit; that the book displays a skill in characterization and a gift for comedy; the 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. Upon a consideration of all the evidence, including the book, we are of opinion that Memoirs is not endowed with constitutional...

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