Attorney General v. Book Named 'Naked Lunch'

• Decision Date: 07 July 1966
• Citation: 218 N.E.2d 571,351 Mass. 298
• Parties: ATTORNEY GENERAL v. A BOOK NAMED 'NAKED LUNCH.'
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 571

218 N.E.2d 571

351 Mass. 298

ATTORNEY GENERAL v. A BOOK NAMED 'NAKED LUNCH.'

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 8, 1965.

Decided July 7, 1966.

Edward De Grazia, Washington, D.C., (Daniel Klubock, boston, Mass., with him) for intervener Grove Press, Inc.

William I. Cowin, Asst. Atty. Gen., for Attorney General.

Before SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

PER CURIAM.

The book was adjudged obscence in the Superior Court. G.L. c. 272, §§ 28C, 28E, 28F (each inserted by St.1945, c. 278, § 1). The Supreme Court of the United States has held that, to justify a holding of obscenity, 'three clements 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 affrnots contemporary community standards * * * and (c) the material is utterly without redeeming social value' (emphasis supplied). A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney Gen. of Mass., 383 U.S. 413, 418--421, 86 S.Ct. 975, 16 N.E.2d 1 (hereafter referred to as the Memoirs case). 'Naked Lunch' may appeal to the prurient interest of deviants and those curious about deviants. To us, it is grossly offensive and is what the author himself says, 'brutal, obscence and disgusting.'

As to whether the book has any redeeming social value, the record contains many reviews and articles in literary and other publications discussing seriously this controversial book portraying the hallucinations of a drug addict. Thus it appears that a substantial and intelligent group in the community believes the book to be of some literary significance. Although we are not bound by the opinions of others concerning the book, we cannot ignore the serious acceptance of it by so many persons in the literary community. Hence, we cannot say that 'Naked Lunch' has no 'redeeming social importance in the hands of those who publish or distribute it on the basis of that value.' See the Memoirs case at p. 421, 86 S.Ct. at p. 979.

The record does not show that the book has been 'commercially exploited for the sake of prurient appeal, to the exclusion of all other values.' The question, therefore, is not presented whether the book, or its publication and distribution, are on that account 'utterly without redeeming social importance.' See the Memoirs case at pp. 420--421, 86 s.Ct. 975, which appears to treat the privilege under the First Amendment of publishing material like this as a qualified privilege which may be lost if abused. See also Ginzburg v. United States, 383 U.S. 463, 467--476, 86 S.Ct. 942, 969, 16 L.Ed.2d 31; Mishkin v. New York, 383 U.S. 502, 508--512, 86 S.Ct. 958, 16 L.Ed.2d 56. Cf. Galvin v. New York, N.H. & H.R.R. Co., 341 Mass. 293, 296--298, 168 N.E.2d 262.

The final decree is reversed and a new final decree is to be entered declaring that (without considering whether the book has been commercially exploited for the sake of prurient appeal) the book cannot be declared to be obscene. This new final decree shall be without prejudice to the bringing of new proceedings with respect to this book under the appropriate sections of G.L. c. 272, if it shall appear that, after March 21, 1966, the date of the three recent Supreme Court cases, already cited, any persons have been or are advertising or distributing this book in this Commonwealth in a manner to exploit it for the sake of its possible prurient appeal.

So ordered.

The CHIEF JUSTICE took no part in the consideration of this case.

REARDON, Justice (dissenting).

I respectfully dissent from the opinion of the majority. Some general observations are in order as a preface to a statement of my reasons.

1. It is appropriate to note that, since the adoption of the Constitution of Massachusetts in 1780, this court and its judges have been most aware of the responsibility laid upon them by art. 16, Part I, of the Declaration of Rights which provides: 'The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth.' It was Massachusetts which, in ratifying the Constitution of the United States in 1788, first among the states called for the addition of a Bill of Rights. This call echoed by other ratifying conventions led in December, 1791, to the adoption of the first and the nine succeeding amendments to the Constitution of the United States. ¹ Thus our disinclination to serve as a censor of published material has an historical constitutional foundation which antedates that of any other American tribunal.

One need not agree with the view of Mr. Justice Black that 'the Federal Government is without any power whatever under the Constitution to put any type of burden on speech and expression of ideas of any kind,' Ginzburg v. United States, 383 U.S. 463, 476, 86 S.Ct. 942, 950, to be able to agree with him that the lot of the judge who is charged with deciding cases such as this would be immeasurably eased were Mr. Justice Black's view that of the majority of his court. ² But such is not the fact and we find ourselves again confronted with the troublesome problem of applying G.L. c. 272, §§ 28C--28G.

The task of the appellate judge on the State court in dealing with an allegedly pornographic work is not a happy one in these days. He may personally be of the opinion, also held by some who have written on the subject of pornography, that, were all restraints on publication lifted, levels of public taste would eventually rise and the business of pornography become unprofitable. ³

Yet we have, as was so well stated by Chief Justice Qua in Commonwealth v. Isenstadt, 318 Mass. 543, 548, 62 N.E.2d 840, 843, the 'plain but not necessarily easy duty to read the words of the statute in the sense in which they were intended, to accept and enforce the public policy of the Commonwealth as disclosed by its policymaking body, whatever our own personal opinions may be, and to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions.' In construing the present statute we are given added guidance by A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney Gen. of Mass., 383 U.S 413, 413--462, 86 S.Ct. 965, 16 L.Ed.2d 1 (hereafter Memoirs), decided since this case was argued before us. The majority opinion in that case set forth G.L. c. 272, §§ 28B--28F, inclusive, in full in an appendix without comment. It is reasonable to conclude that the Supreme Court of the United States acknowledges authority in those sections of that statute, subject to their application within the guidelines which the majority in the Memoirs case laid down. ⁴

It is thus may view that there is still power resident in the statute and I believe that the Commonwealth is entitled to have this court enforce what power it still contains. Failure to do so in this case consigns our State law in this field to a limbo and is, in fact, a contravention of the will of the Legislature on the supposed basis that the statute has been overridden by the Memoirs case. I do not so read that case.

2. Consonant with the duty laid upon us by the statute, I have read the book and found it to be a revolting miasma of unrelieved perversion and disease, graphically described in the findings of the trial judge. It is, in truth, literary sewage. Before the trial judge a number of authors and academic witnesses, as well as several psychiatrists, on behalf of the interveners gave varying testimony regarding the social and literary worth of the book and engaged in efforts to interpret its title. Despite the testimony of these witnesses, the trial judge, on the basis of a national standard, found the book to be patently offensive, 'predominantly prurient, hard-core pornography, and utterly without redeeming social importance.'

It has been argued by the intervener that, in assessing the social importance of the book, the judge was bound to abide by those opinions which came to him in the testimony of the witnesses whom he heard and in the reviews which were presented to him as exhibits. Indeed it was stated in a dissent in ATTORNEY GEN. V. A BOOK NAMED 'JOHN CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE,' MASS. 206 N.E.2D 403,^A when that book was before us: 'It is not the court's function to consider whether to agree or disagree with the appraisal of the book by academic witnesses. The controlling circumstance is that the work is evaluated by representative scholars and teachers of English literature as a work of some literary and historical significance notwithstanding its patently pornographic aspects.' And in the majority opinion in the case at bar, it is said, on 'whether the book has any redeeming social value, the record contains many reviews and articles in literary and other publications discussing seriously this controversial book portraying the hallucinations of a drug addict. Thus it appears that a substantial and intelligent group in the community believes the book to be of some literary significance. Although we are not bound by the opinions of others concerning the book, we cannot ignore the serious acceptance of it by so many persons in the literary community. Hence, we cannot say that 'Naked Lunch' has no 'redeeming social importance in the hands of those who publish or distribute it on the basis of that value."

I cannot associate myself with this view. Our experience with allegedly pornographic works over the years here in Massachusetts has revealed that there is no dearth of experts ready to leap to the defense of such of them as have come under scrutiny from time to time. ⁵ As one looks back now on publications which have been considered in other years, it is plain to see that much material there...