Book Named John Cleland Memoirs of Woman of Pleasure v. Attorney General of Commonwealth of Massachusetts, No. 368

CourtUnited States Supreme Court
Writing for the CourtBRENNAN
Citation383 U.S. 413,16 L.Ed.2d 1,86 S.Ct. 975
PartiesA BOOK NAMED 'JOHN CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE,' et al., Appellants, v. ATTORNEY GENERAL OF the COMMONWEALTH OF MASSACHUSETTS
Docket NumberNo. 368
Decision Date21 March 1966

383 U.S. 413
86 S.Ct. 975
16 L.Ed.2d 1
A BOOK NAMED 'JOHN CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE,' et al., Appellants,

v.

ATTORNEY GENERAL OF the COMMONWEALTH OF MASSACHUSETTS.

No. 368.
Argued Dec. 7 and 9, 1965.
Decided March 21, 1966.

[Syllabus from pages 413-414 intentionally omitted]

Page 414

Charles Rembar, New York City, for appellants.

William I. Cowin, Brookline, Mass., for appellee.

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 in 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.

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 experts 2 and accepted other evidence, such

Page 416

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

Page 417

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, 206 N.E.2d 403 (1965). We noted probable jurisdiction. 382 U.S. 900, 86 S.Ct. 232, 15 L.Ed.2d 154. We reverse.5

Page 418

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, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

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, 77 S.Ct., at 1311. 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

Page 419

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 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,

Page 420

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 all other values, might justify the conclusion that the book was utterly without redeeming social importance. It is not that in such a setting the social value test is relaxed so as to dispense with the requirement that a book be utterly devoid of social value, but rather that, as we elaborate in Ginzburg v. United States, 383 U.S., pp. 470—473, 86 S.Ct., pp. 947—948, where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation at its face value. In this proceeding, however, the courts were asked to judge the obscenity of Memoirs in the abstract, and the declaration of obscenity was neither aided nor limited by a specific set of circumstances of production, sale, and pub-

Page 421

licity.8 All possible uses of the book must therefore be considered, and the mere risk that the book might be exploited by panderers because it so pervasively treats sexual matters cannot alter the fact—given the view of the Massachusetts court attributing to Memoirs a modicum of literary and historical value that the book will have redeeming social importance in the hands of those who publish or distribute it on the basis of that value.

Reversed.

Mr. Justice BLACK and Mr. Justice STEWART concur in the reversal for the reasons stated in their respective dissenting opinions in Ginzburg v. United States, 383 U.S., p. 476 and p. 497, 86 S.Ct., p. 950 and p. 956, and Mishkin v. State of New York, 383 U.S., p. 515 and p. 518, 86 S.Ct., p. 968, and p. 969.

APPENDIX TO OPINION OF MR. JUSTICE BRENNAN.

STATE STATUTE.

MASSACHUSETTS GENERAL LAWS, CHAPTER 272.

SECTION 28B. Whoever imports, prints, publishes, sells, loans or distributes, or buys, procures, receives, or

Page 422

has in his possession for the purpose of sale, loan or distribution, a book, knowing it to be obscene, indecent or impure, or whoever, being a wholesale distributor, a jobber, or publisher sends or delivers to a retail storekeeper a book, pamphlet, magazine or other form of printed or written material, knowing it to be obscene, indecent or impure, which said storekeeper had not previously ordered in writing, specifying the title and quantity of such publication he desired, shall be punished by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one half years, or by a fine of not less than one hundred dollars nor more than five thousand dollars, or by both such fine and imprisonment in jail or the house of correction.

SECTION 28C. Whenever there is reasonable cause to believe that a book which is being imported, sold, loaned or distributed, or is in the possession of any person who intends to import, sell, loan or distribute the same, is obscene, indecent or impure, the attorney general, or any district attorney within his district, shall bring an information or petition in equity in the superior court directed against said book by name. Upon the filing of such information...

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