Attorney General v. Book Named 'Tropic of Cancer'

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; CUTTER
• Citation: 345 Mass. 11,184 N.E.2d 328
• Decision Date: 17 July 1962
• Parties: ATTORNEY GENERAL v. The BOOK NAMED 'TROPIC OF CANCER.'

Page 328

184 N.E.2d 328 345 Mass. 11 ATTORNEY GENERAL
v.
The BOOK NAMED 'TROPIC OF CANCER.' Supreme Judicial Court of Massachusetts, Suffolk. Argued May 16, 1962.
Decided July 17, 1962.

[345 Mass. 12]

Page 329

Charles Rembar, New York City, William P. Homans, Jr., Boston, for intervener.

James J. Kelleher, Asst. Atty. Gen., Leo Sontag, Asst. Atty. Gen., for Attorney General.

Reuben Goodman, Rudolph Kass and George Waldstein, Boston, by leave of court, submitted a brief as amici curiae.

Before [345 Mass. 11] WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

[345 Mass. 12] CUTTER, Justice.

The Attorney General proceeds under G.L. c. 272, §§ 28C-28G (inserted by St.1945, c. 278, § 1 ¹), against a book by Henry Miller, 'Tropic of Cancer' (Tropic), published by Grove Press, Inc. (Grove). Answers were filed by Grove, Miller, and other interveners, alleging that c. 272, §§ 28C through 28H, 'as applied herein * * * violate rights of the intervenor[s] guaranteed * * * by the * * * Constitution of the United States,' under the First Amendment, 'as embraced in the Fourteenth Amendment,' and under the Constitution of the Commonwealth, Part I, arts 10, 12, and 16. The case was heard by a judge of the Superior Court, who made a report of material facts. A final decree was entered adjudging Tropic to be 'obscene.' The interveners appealed. The evidence is reported. The trial judge made the findings summarized below.

'The book was first published in Paris in 1934. The first publication in the United States was on June 24, 1961.' Its distribution in Massachusetts was enjoined on July 24, [345 Mass. 13] 1961. 'There is no connected plot * * *. It is largely a tale of the sex experiences of an American * * * [who went to] Paris * * * in the hope of becoming a writer, and who, except on a few occasions, lived the life of a down-and-outer, sponging on friends * * *. It graphically describes sex episodes with almost minute detail. It is in many respects filthy, disgusting, nauseating and offensive to good taste. As one favorable review, which was introduced in evidence, put it, 'Now it must be granted that parts of 'Tropic of Cancer' will hammer away at some of the strongest of stomachs.'' ²

The book, several book reviews, and some advertising were in evidence. 'Persons who qualified as literary experts testified.' The trial judge stated that he was 'irresistibly led to the conclusion that the book is obscene, indecent and impure.'

1. The opinion testimony is significant principally in that it discloses that competent critics entertain (and, in some cases, have entertained since 1934) the view that Tropic has great literary merit despite its repulsive features. Because the only

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important evidence is documentary, we are in essentially the same position as the trial judge, and 'may draw our own inferences * * * from the basic facts * * * without deference to any inferences * * * drawn by the trial judge.' See Corkum v. Salvation Army of Mass., Inc., 340 Mass. 165, 166-167, 162 N.E.2d 778, 780. See also Skil Corp. v. Barnet, 337 Mass. 485, 488, 150 N.E.2d 551.

2. The issue 'is whether the' material can 'reasonably and constitutionally be found to be obscene.' Commonwealth v. Moniz, 338 Mass. 442, 443, 155 N.E.2d 762, 763 (motion picture). The interveners 'concede that the statute covers all material that is obscene in the constitutional sense.'

In Roth v. United States, 354 U.S. 476, 488-489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 the [345 Mass. 14] majority rejected the test of obscenity in Regina v. Hicklin, L.R. 3 Q.B. 360 (1868), and pointed out that later decisions have sought to determine 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' Material 'appealing to prurient interest' was defined as 'material having a tendency to excite lustful thoughts' (354 U.S. 476, 487, fn. 20, 77 S.Ct. 1304, 1310) and was equated to the definition of obscenity in A.L.I., Model Penal Code, § 207.10(2) Tent.Draft No. 6, 1957). ³ The Roth case recognized that there is constitutional protection (354 U.S. 476, 484, 77 S.Ct. 1304) for works containing 'ideas having even the slightest redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--[which] have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests.' The court, however, stated (p. 485, 77 S.Ct. p. 1309) that implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance' and that 'obscenity is not within the area of constitutionally protected speech or press.'

[345 Mass. 15] The Roth opinions discuss 'obscenity' on a highly theoretical basis. Indeed, the court said (354 U.S. 476, 481, fn. 8, 77 S.Ct. 1304, 1307), 'No issue is presented * * * concerning the obscenity of the material.' See Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. (hereinafter cited Lockhart) pp. 49-58. ⁴

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At least the Chief Justice (see his concurring opinion, 354 U.S. 476, 496, 77 S.Ct. 1304, 1315) thought that he was dealing with 'the commercial exploitation of the morbid and shameful craving for materials with prurient effect.' ⁵

Some principles have been established by the Roth case, as applied in the Moniz case, 338 Mass. 442, 445-450, 155 N.E.2d 762. (1) Hard core, commercial pornography, 'utterly without redeeming social importance' (see 354 U.S. 476, 484-485, 77 S.Ct. 1304, 1309), is not within the protection of the First Amendment. (2) 'The portrayal of sex, e. g., in art, literature and scientific works, in not itself sufficient reason to deny material the constitutional protection of freedom of speech and press' (354 U.S. 476, 487-488, 77 S.Ct. 1304, 1310). (3) '[W]hether a particular work is * * * [obscene] involves not * * * an issue of fact but a question of constitutional judgment of the most sensitive * * * kind.' See Mr. Justice Harlan's separate opinion, 354 U.S. 476, 497-498, 77 S.Ct. 1304, 1316; the Moniz case, 338 Mass. 442, 446-447, 155 N.E.2d 762. (4) Material (see 354 U.S. 488-489, 77 S.Ct. 1311) must be judged by its effect upon the 'average person' (not susceptible persons or youths) and by whether the 'dominant theme of the material taken as a whole appeals [345 Mass. 16] to prurient interest' (emphasis supplied). ⁶ (5) '[A] work may not be adjudged obscene only because' objectionable 'to many citizens as violative of accepted standards of propriety.' See the Moniz case, 338 Mass. 442, 445, 155 N.E.2d 762, 764. Apart from these principles, what the Supreme Court means by 'obscenity' must be determined by what it has done in other cases. ⁷

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(a) In Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, the New York courts (see 1 N.Y.2d 177, 180, 151 N.Y.S.2d 639, 134 N.E.2d 461, affirming 208 Misc. 150, 158-159, 142 N.Y.S.2d 735) were sustained in enjoining distribution of fourteen booklets, 'Nights of Horror,' clearly hard core pornography. The Supreme Court assumed that the books were obscene and that only the issue of the constitutionality of the testing statute was before it (see 354 U.S. p. 439, 77 S.Ct. p. 1326).

(b) In four per curiam decisions (October term, 1957) the Supreme Court reversed decisions of Federal courts of appeal which had treated several different types of material as obscene. See Times Film Corp. v. Chicago, 355 U.S. 35, 78 S.Ct. 115, 2 L.Ed.2d 72 (revg. 244 F.2d 432, 436 [7th Cir.] on a film dealing with the seduction of a sixteen year old boy by an older woman, and other 'illicit sexual intimacies and acts'); Mounce v. United States, 355 U.S. 180, 78 S.Ct. 267, 2 L.Ed.2d 187 (revg. 247 F.2d 148 [9th Cir.] nudist publications; see United States v. 4200 Copies International Journal, 134 F.Supp. 490 [E.D., Wash.]); One, Inc. v. Olesen, 355 U.S. 371, 78 S.Ct. 364, 2 L.Ed.2d 352 (revg. 241 F.2d 772 [9th Cir.] dealing with a post office order in respect of 'One--[345 Mass. 17] The Homosexual Magazine'); Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352 (revg. 101 U.S.App.D.C. 358, 249 F.2d 114, nudist material). See also the Moniz case, 338 Mass. 442, 447-449, 155 N.E.2d 762; Lockhart, pp. 32-39.

(c) In Kingsley International Pictures Corp. v. Regents of Univ. of N. Y., 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512, a New York decision (4 N.Y.2d 349, 175 N.Y.S.2d 39, 151 N.E.2d 197) was reversed which had sustained the denial of a license to show the film 'Lady Chatterley's Lover.' The majority did not consider whether the film was obscene (360 U.S. 684, 686, 79 S.Ct. 1362), but said (at pp. 688-689, 79 S.Ct. at p. 1365), 'What New York has done * * * is to prevent the exhibition of a motion picture because that picture advocates an idea--that adultery under certain circumstances may be proper behavior. * * * [The First Amendment's] 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.'

(d) Manual Enterprises, Inc. v. Day, 82 S.Ct. 1432, reversing 110 U.S.App.D.C. 78, 289 F.2d 455 (see fn. 3, supra), dealt (p. 1433) with a ruling of the Post Office Department barring from the mails magazines ('titled MANual, Trim, and Grecian Guild Pictorial') consisting 'largely of photographs of nude, or near-nude, male models'; and containing 'advertisements * * * offering nudist photographs for sale.' See 18 U.S.C. § 1461 (fn. 5, supra). Mr. Justice Harlan's opinion (see fn. 8, infra) accepts (82 S.Ct. p. 1434) findings that '(1) the magazines * * * are composed primarily, if not exclusively, for homosexuals,...