Commonwealth v. Isenstadt
| Decision Date | 17 September 1945 |
| Citation | 318 Mass. 543,62 N.E.2d 840 |
| Parties | COMMONWEALTH v. ISENSTADT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
COMMONWEALTH
v.
ISENSTADT.
Supreme Judicial Court of Massachusetts, Middlesex.
Sept. 17, 1945.
Exceptions from Superior Criminal Court, Middlesex County; Hanify, Judge.
Abraham A. Isenstadt was convicted of selling, and of having in his possession for the purpose of sale, exhibition, loan or circulation, a book which was obscene, indecent, or impure, or manifestly tended to corrupt the morals of youth, and he brings exceptions.
Exceptions overruled.
LUMMUS, J., dissenting in part.
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Before FIELD, C. J., and LUMMUS, QUA, RONAN, and WILKINS, JJ.
G. E. Thompson, Dist. Atty., and A. Di Cicco, Jr., Asst. Dist. Atty., both of Boston, for the Commonwealth.
A. O. Dawson, of New York City, and A. A. Albert and J. N. Welch, both of Boston, for defendant.
H. Williams, amicus curiae.
QUA, Justice.
The defendant has been found guilty by a judge of the Superior Court sitting without jury upon two complaints charging him respectively with selling and with having in his possession for the purpose of
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sale, exhibition, loan, or circulation a book published under the title ‘Strange Fruit,’ which is ‘obscene, indecent, or impure, or manifestly tends to corrupt the morals of youth.’ G.L.(Ter.Ed.) c. 272, § 28, as amended by St.1934, c. 231, and St.1943, c. 239. The section (except the part describing the penalty) is reproduced in the footnote.1
The complaints are in disjunctive form, but this point was not taken. The defendant could therefore be convicted if he committed any one of the several offenses set forth in so far as such offenses are susceptiable of differentiation. G.L.(Ter.Ed.) c. 278, § 17; Commonwealth v. McKnight, 283 Mass. 35, 38, 39, 186 N.E. 42;Commonwealth v. McMenimon, 295 Mass. 467, 470, 471, 4 N.E.2d 246.
We do not pretend ignorance of the controversy which has been carried on in this Commonwealth, sometimes with vehemence, over so called ‘literary censorship.'2 With this background in mind it may not be out of place to recall that it is not our function to assume a ‘liberal’ attitude or a ‘conservative’ attitude. As in other cases of statutory construction and application, it is our 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.
We are fully aware of the uselessness of all interpretations of the crucial words of this statute which merely define each of those words by means of the others or of still other words of practically the same signification. We do not now attempt by any single formula to furnish a test for all types of publications, including scientific and medical treatises, religious and educational works, newspapers and periodicals, and classical and recent literature, as well as phonograph records, prints, pictures, paintings, images, statuary and sculpture, artistic or otherwise, all of which are within the literal words of the statute and might conceivably fall within its prohibitions. In this case we are dealing with a recent work of fiction-a novel. We shall, in general, confine our observations to the case in hand, without necessarily binding ourselves to apply all that is here said to entirely different forms of writing or to representations by picture or image.
We deal first with a number of pertinent propositions advanced in the able briefs filed in behalf of the defendant. We agree with some of them.
(1) We agree that since the amendment of the section as it appeared in the General Laws by St.1930, c. 162, the book is to be treated as a whole in determining whether it violates the statute.3 It
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is not to be condemned merely because it may contain somewhere between its covers some expressions which, taken by themselves alone, might be obnoxious to the statute. Halsey v. New York Soc. for Suppression of Vice, 234 N.Y. 1, 4, 136 N.E. 219;United States v. One Book Entitled ‘Ulysses', 2 Cir., 72 F.2d 705, 707.United States v. Levine, 2 Cir., 83 F.2d 156. But this does not mean that every page of the book must be of the character described in the statute before the statute can apply to the book. It court never have been intended that obscene matter should escape proscription simply by joining to itself some innocent matter. A reasonable construction can be attained only by saying that the book is within the statute if it contains prohibited matter in such quantity or of such nature as to flavor the whole and impart to the whole any of the qualities mentioned in the statute, so that the book as a whole can fairly be described by any of the adjectives or descriptive expressions contatined in the statute. The problem is to be solved, not by counting pages, but rather by considering the impressions likely to be created. For example, a book might be found to come within the prohibition of the statute although only a comparatively few passages contained matter objectionable according to the principles herein explained if that matter were such as to offer a strong salacious appeal and to cause the book to be bought and read on account of it.
(2) We agree with the weight of authority that under each of the prohibitions contained in the statute the test of unlawfulness is to be found in the effect of the book upon its probable readers and not in any classification of its subject matter or of its words as being in themselves innocent or obscene.4 A book is ‘obscene, indecent or impure’ within the statutory prohibition if it has a substantial tendency to deprave or corrupt it sreaders by inciting lascivious thoughts or arousing lustful desire. It also violates the statute if it ‘manifestly tends to corrupt the morals of youth.’ The latter prohibition is expressly limited to the kind of effect specified-the corruption of morals. Under this branch of the statute it is not enough that a book may tend to coarsen or vulgarize youth if it does not manifestly tend to corrupt the morals of youth. People v. Wendling, 258 N.Y. 451, 453, 180 N.E. 169, 81 A.L.R. 799.
Although in their broadest meaning the statutory words ‘Obscene, indecent or impure’ might signify offensive to refinement, properiety and good taste, we are convinced that the Legislature did not intend by those words to set up any standard merely of taste, even if under the Constitution it could do so. Taste depends upon convention, and sometimes upon irrational taboo. It varies ‘with the period, the place, and the training, environment and characteristics of persons.’ Reddington v. Reddington, 317 Mass. 760, 765, 59 N.E.2d 775, 778. A penal statute requiring conformity to some current standard of propriety defined only by the statutory words quoted above would make the standard an uncertain one, shifting with every new judge or jury. It would be like a statute penalizing a citizen for failing to act in every situation in a gentlemanly manner. Such a statute would be unworkable if not unconstitutional, for in effect it would ‘[license] the jury to create its own standard in each case,’ ex post facto. Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ct. 732, 741, 81 L.Ed. 1066. Such a test must be rejected. The prohibitions of the statute are concerned with sex and sexual desire. The statute does not forbid realistically coarse scenes or vulgar words merely because they are coarse or vulgar, although such scenes or words may be considered so far as they
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bear upon the test already stated of the effect of the book upon its readers.
(3) Since effect is the test, it follows that a book is to be judged in the light of the customs and habits of thought of the time and place of the alleged offence. Although the fundamentals of human nature change but slowly, if indeed they change at all, customs and habits of thought do vary with time and place. That which may give rise to impure thought and action in a highly conventional society may pass almost unnoticed in a society habituated to greater freedon. United States v. Kennerly, D.C., 209 F. 119, 121;Parmelee v. United States, 72 App.D.C. 203, 113 F.2d 729, 731, 732. To recognize this is not to change the law. It is merely to acknowledge the facts upon which the application of the law has always depended. And of the operation of this principle it would seem that a jury of the time and place, representing a cross section of the people, both old and young, should commonly be a suitable arbiter. United States v. Clarke, D.C., 38 F. 500;United States v. Kennerly, D.C., 209 F. 119, 121.
(4) So, too, we think it proper to take into account what we may call the probable ‘audience’ of the book, just as the effect of a lecture might depend in large degree upon the character of those to whom it is addressed. At one extreme may be placed a highly technical medical work, sold at a great price and...
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