383 U.S. 413 (1966), 368, A Book Named "John Cleland's Memoirs of a Woman of Pleasure"

Docket Nº:No. 368
Citation:383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1
Party Name:A Book Named "John Cleland's Memoirs of a Woman of Pleasure"
Case Date:March 21, 1966
Court:United States Supreme Court
 
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Page 413

383 U.S. 413 (1966)

86 S.Ct. 975, 16 L.Ed.2d 1

A Book Named "John Cleland's Memoirs of a Woman of Pleasure"

No. 368

United States Supreme Court

March 21, 1966

v. Attorney General of Massachusetts

Argued December 7-8, 1965

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

Syllabus

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 403, reversed.

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. 419-420.

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

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might in 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.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and MR. JUSTICE FORTAS join.

Page 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 ill 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.

[86 S.Ct. 976] 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 experts2 and accepted other evidence, such

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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

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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, [86 S.Ct. 977] 206 N.E.2d 403 (1965). We noted probable jurisdiction. 382 U.S. 900. We reverse.5

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I

The term "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

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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 [86 S.Ct. 978] 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,

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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 constitutional standard.

II

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...

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