Com. v. Dell Publications, Inc.

• Decision Date: 29 September 1967
• Citation: 427 Pa. 189,233 A.2d 840
• Parties: COMMONWEALTH of Pennsylvania v. DELL PUBLICATIONS, INC., Parliament News Company, Publishers Distribution Corp., Kable News Company, G. P. Putnam's Sons, United News Company, Appellants.
• Court: Pennsylvania Supreme Court

Page 840

233 A.2d 840

427 Pa. 189

COMMONWEALTH of Pennsylvania v. DELL PUBLICATIONS, INC., Parliament News Company, Publishers Distribution Corp., Kable News Company, G. P Putnam's Sons, United News Company, Appellants.

Supreme Court of Pennsylvania.

Sept. 29, 1967.

Albert B. Gerber, Gerber, Galfand & Berger, Philadelphia, for appellants

Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Division, David L. Creskoff, Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

In response to a complaint in equity filed by the District Attorney of Philadelphia County, the Court of Common Pleas of that county held a hearing to determine whether A hearing on the district attorney's complaint was held in March 1965, but the court below withheld its adjudication pending the disposition by the Supreme Court of the United States of three obscenity cases then on appeal to that Court. ³ On June 9, 1966, the court below, obviously frustrated because the long awaited decisions did not materially ease its task, ⁴ found 'Candy' to be an obscene publication within the meaning of the Pennsylvania Act and hence not entitled to the protection of the first and fourteenth amendments. See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Exceptions were filed but they were overruled by the court en banc. The Dell Publishing Company, and the five additional defendants in the action below, have appealed from the issuance of a permanent injunction enjoining the sale and distribution of 'Candy' in Philadelphia County.

the book 'Candy' was obscene within the meaning of 18 P.S. § 3832.1 ¹ and the first and fourteenth amendments to the Constitution of the United States. ²

We reverse, for the reasons stated hereinafter, because we conclude that the court below erroneously interpreted the standards for determining obscenity set forth by the Supreme Court of the United States and, in particular, viewed the book from a perspective inconsistent with these opinions. Our decision in this case, however, should not, in any manner, be construed as an approval of 'Candy'--indeed some members of this Court personally find the book to be revolting and disgusting. While we respect the views of those who believe this book is 'obscene' we hold it does not fall within the class of 'legal obscenity' so that, in a free society, its circulation may be indiscriminately prohibited. ⁵

The Constitution has thrust upon the judiciary the obligation of acting as a Board of Censors which requires us to consider each challenged work on a case-by-case basis. ⁶ Yet in approaching this arduous 'I (Judge Moore) personally found '491' repulsive and revolting * * *. Were I to be vested with dictatorial powers, I would ban and destroy the trash (in my opinion) which infests the news kiosks and the movie theatres in certain areas of New York City. I would do all this in the vainglorious belief that I was acting as a Beneficent Tyrant for the good of all Mankind. But the very utterance of these thoughts is more than sufficient reason to shy away from censorship except in extreme cases. If we are to survive, we should probably survive on the Darwinian theory which should include the ability to cope with our current books, stage and cinema.'

                and unpleasant task we must be mindful of our inherent limitations.  For as Mr. Justice Douglas has reminded us, '(w)e are judges, not literary experts or historians or philosophers.  We are not competent to render an independent judgment as to the worth of this or any other book, except in our capacity as private citizens.  * * *  If there is to be censorship, the wisdom of experts on such matters as literary merit and historical significance must be evaluated * * * (and a conclusion reached) irrespective of whether we would include (the challenged work) in our own libraries.'  7 The necessity of such an approach was articulated by Judge Moore of the Second Circuit in an opinion holding, largely on the basis of expert testimony, that, despite his obvious adverse reaction, the Swedish Film '491' was not constitutionally obscene: 8
                

In the instant litigation, however, both the comments made during the hearing and the formal adjudication indicate that the hearing judge proceeded on the premise that, in the final analysis, his own subjective reaction, in and by itself, was the determining factor. ⁹ As the law of obscenity now stands the judge's subjective analysis is of course relevant to the ultimate issue, ¹⁰ but the mere donning of judicial robes does not make us the embodiment of the 'average person' nor do our tastes necessarily parallel those of the 'contemporary community.'

The totally subjective approach adopted by the court below was palpable error. 'The suppression of a book requires not only an expression of judgment by the court that it is so bad, in the view of the Judges, that it is offensive to community standards of decency as the Legislature has laid them down, but also that it is so bad that the constitutional freedom to print has been lost because of what the book contains. The history and tradition of our institutions stand against the suppression of books.' Larkin v. G. P. Putman's Sons, 14 N.Y.2d 399, 401, 252 N.Y.S.2d 71, 200 N.E.2d 760, 761 (1964).

Constitutional fact finding is an essential element of any obscenity case ¹¹ because 'all ideas having even the slightest However, the last quoted sentence from Roth is logically circular and can be interpreted in either of two ways. On the one hand, one can conclude, as do Justices Clark and White, ¹² that obscenity by definition has no redeeming social importance. On the other hand, Justice Brennan believes that a work which has even a minimum of social importance is by definition not obscene, a view shared by Chief Justice Warren and Justice Fortas. ¹³ Since Justices Black, Douglas and Stewart believe that the Brennan approach is too restrictive, we must accept the Brennan analysis as 'settled law' with respect to obscenity Vel non, at least until five members of the Court agree on a new definition. This is because simple arithmetic shows that the votes of the 'Brennan block' along with that of the 'Black-Douglas-Stewart axis' will, of necessity, result in a finding that the work, in the absence of pandering, ¹⁴ is entitled to constitutional protection. ¹⁵

redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--have the full protection of (constitutional) guarantees, unless excludable because they encroach upon the limited area of more important interests.' Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957). But, the Roth Court continued, 'implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.' Ibid. Thus the determination that a book is obscene carries with it the conclusion that the book is not speech within the meaning of the first amendment.

The impact of Mr. Justice Brennan's analysis means that in determining the constitutional fact of obscenity Vel non the evidence must be viewed in a light favorable to the book's circulation. As we read his opinions in Roth and Memoirs, any other approach would not provide first amendment freedoms with the necessary 'breathing space to survive.' NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Compare, Monaghan, Obscenity, 1966: The Marriage of Obscenity Per Se and Obscenity Per Quod, 76 Yale L.J. 127, 150--55 (1966).

Finally, before turning to the evidence presented in the instant case, it should be pointed out that neither Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), nor Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), decided the same day as Memoirs, is, as the court below recognized, relevant to the case at bar. In Ginzburg a majority of the Court adopted the variable approach to obscenity ¹⁶ which had long been advocated by Mr. Chief Justice Warren. ¹⁷ The Court proceeded on the assumption No evidence whatsoever was presented at the proceedings below concerning the conduct of the present appellants. The procedural posture of this case is identical with that of Memoirs, for in both instances it was the book which was on trial. ¹⁹ In his opening sentence in the Memoirs opinion, Mr. Justice Brennan emphasized the crucial importance this difference made when he pointedly said: 'This is an obscenity case in which ('Fanny Hill') was adjudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor.' 383 U.S. at 415, 86 S.Ct. at 975. And as in Memoirs, it does not necessarily follow from our holding in this case 'that a determination that ('Candy') is obscene in the constitutional sense would be improper under all circumstances,' see id. at 420--421, 86 S.Ct. at 978--979.

that the materials in question were not themsevles obscene (indeed it all but conceded this point) but held that Ginzburg's method of 'pandering' his wares made them obscene. In Mishkin the defendant's conduct, rather than the materials themselves, was also the focus of the Court's concern. Moreover, Mishkin's sole contention regarding the nature of his books was not their obscenity Vel non but rather whether the prurient appeal of the work was to be judged in terms of its effect on the average person or is to be assessed in terms of its effect on the members of the 'intended and probable recipient group.' ¹⁸

Candy and the Roth-Memoirs Test

For our purpose a lengthy description of 'Candy' is unnecessary. It is sufficient to note that the plot is devoted almost exclusively to the normal and abnormal sexual adventures of its heroine, a coed named...