People v. Birch

• Decision Date: 06 September 1963
• Citation: 243 N.Y.S.2d 525,40 Misc.2d 626
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Philip BIRCH, Richard Mead, Ray Kirk, All States News Company, Inc., Defendants.
• Court: New York Supreme Court

Page 525

243 N.Y.S.2d 525

40 Misc.2d 626

The PEOPLE of the State of New York, Plaintiff, v. Philip BIRCH, Richard Mead, Ray Kirk, All States News Company, Inc., Defendants.

Supreme Court, Criminal Term, Queens County, Part I.

Sept. 6, 1963.

Frank D. O'Connor, Dist. Atty., Queens County (Kenneth M. Browne, Asst. Dist. Atty., of counsel), for the People.

Frank R. McGlynn, Woodside, for defendants.

J. IRWIN SHAPIRO, Justice.

Motion by the defendants 'for an order directing the District Attorney of the County of Queens to permit the defendants, or their representatives, to inspect the minutes of the Grand Jury which presented to this court the said indictment hereinabove referred to or, in the alternative, to dismiss the said indictment on the ground that the same is contrary to the law, illegal and invalid in that the same was not founded upon sufficient or adequate evidence and that the same is and was violative of the constitutional rights of the defendants, more particularly, but not confined to the violation of the defendants' rights under the First, Fourth, Fifth and Fourteenth Amendments of the United States Constitution'.

The defendants are charged in a nine count indictment with violating Section 1141 of the Penal Law ('obscene prints and articles'), and with conspiracy to violate that statute, in that they did sell and distribute the eight books mentioned therein. ¹

It is now well settled, despite illuminating dissenting opinions to the contrary, that state statutes making it a crime to publish or distribute writings 'incontestably found to be obscene' do not invade the freedom of expression guarantees contained in the First Amendment of the United States Constitution (Kingsley Books v. Brown, 354 U.S. 436, 440, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Roth v. United States, 354 U.S. 476, 481, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Alberts v. California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; People v. Richmond County News, 9 N.Y.2d 578, 581, 216 N.Y.S.2d 369, 370, 175 N.E.2d 681, 682), but such statutes must be narrowly and strictly construed (People v. Richmond County News, supra, p. 581 of 9 N.Y.2d, p. 370 of 216 N.Y.S.2d, p. 682 of 175 N.E.2d).

'* * * (I)f 'obscenity' is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind' (Harlan, J., in concurring opinion in Roth v. United States, 354 U.S. 476, 497-498, 77 S.Ct. 1304, 1316, 1 L.Ed.2d 1498).

In order to pass upon that 'most sensitive and delicate question' of 'constitutional judgment', I have of necessity been compelled to read all eight books, a short synopsis of each of which is set forth as an exhibit to this opinion.

The literary value of these books may be nil, but that does not mean that they may therefore constitutionally be suppressed or that their authors or distributors are criminals. A public official, albeit a judge, who determines what is and what is not hard core pornography becomes a censor but the law in its present state requires just that. Undertaking that distasteful task, as I must, requires an evaluation of the stories in these books in relation to our present society and culture. The basic question is whether these books go beyond 'the present critical point in the compromise between candor and shame at which the community (has) arrived' (United States v. Kennerley, D.C., 209 F. 119, 121, cited with approval in People v. Richmond County News, 9 N.Y.2d 578, 586, 216 N.Y.S.2d 369, 375, 175 N.E.2d 681, 685).

The books contain a great number of descriptions of sexual activity which, in many cases, are only tenuously associated with the plot and story line. They thus, no doubt, provide erotic reading material, but no more so than many works of literature which have received as classics. In that connection it should be remembered that the fact 'that adulterous or other sexually immoral relationships are portrayed approvingly cannot serve as a reason for declaring a work obscene without running afoul of the First Amendment' (People v. Richmond County News, supra, p. 582 of 9 N.Y.2d, p. 372 of 216 N.Y.S.2d, p. 683 of 175 N.E.2d) because the constitution protects 'advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax' (Kingsley Intern. Pictures Corp. v. Regents, 360 U.S. 684, 689, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512).

Writings which have received favorable recognition in all types of civilizations, in all ages, have delineated societies' cultures and the relationship of the individual to them. Throughout the annals of recorded history, there have been writers who failed to achieve the higher plateaus of literature and art. Their failure to achieve literary recognition does not thereby make their works more objectionable, legally or morally, than that of the writer who merits, or receives, the high acclaim of the critical community for his literary style and grace (Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840; People v. Fritch, 13 N.Y.2d 119, 243 N.Y.S.2d 1, 192 N.E.2d 713.

The civilizations of the past provide the basis for our modern culture and society. Literature,--good, bad and indifferent,--has been the tissue which formed the umbilical cord nurturing all societies from Homeric Greece to the present. The passage of time has seen honors bestowed upon authors whose writings are replete with words and incidents that were deemed lurid and pornographic contemporaneously with their appearance. Aristophanes, Plautus, Shakespeare, Brinsley, Swift, Boccaccio, Rabelais and Balzac, to name just a few, are now noted and recognized for the vigor of their writings and for the artful way in which they delineated and portrayed the ethical and moral conditions of their times. They were not always so regarded, however, and many of their works were attacked and ridiculed by those of tender sensibilities upon the same basis that the finger of accusation is pointed at the books here under scrutiny.

Nothing is truer than that with the passage of time we constantly see a reshuffling of the gods in the world's literary pantheon. We should therefore proceed with the utmost caution before determining, as a matter of constitutional judgment that those who write about the serpent in Eden, in their own way, should have their writings banned and that they themselves should be denominated criminals.

Words which are not in use (supposedly) in polite society and are denoted as 'four letter' words do not in and of themselves make for obscenity. If they did 'The Arabian Nights', just to cite one accepted classic, would require suppression. Many readers may be disgusted or revolted by the use of foul language but the scenes that are depicted thereby are not, in context, necessarily pornographic (United States v. One Book Entitled Ulysses, 2 Cir., 72 F.2d 705, 707; Halsey v. New York Soc. for Suppression of Vice, 234 N.Y. 1, 4, 136 N.E. 219, 220).

Most books which have been heretofore attacked as obscene and pornographic, and which have been defended as having over-all literary merit, have presented a problem in research which usually consisted of a detailed search for 'four letter' words, phrases and descriptions which could be lifted from the text to provide a basis for their indictment as pornographic. The books here offer no such problem for they contain no 'four letter' words. So far as the purity of the language used is concerned the books could well be made required reading for fourth year elementary students. Fully 90% of each book, however, is filled with lurid descriptions of sexual activities, both hetero and homosexual, in sufficient detail to act as an erotic stimulus to those so inclined. However, in all their erotic descriptions they maintain a clever, and apparently deliberate, avoidance of socially unacceptable language, and the descriptions of erotic activity are so similar, in language and action, as to appear to be written by one author using one outline for all the books. Even those books which have a stronger plot and story line reflect this outline in the description of the sexual scene. Page after page contains details and descriptions of similar erotic behavior. In that respect they remind one of the similarity of all the Horatio Alger stories of this Court's youthful days except that the latter dealt with the rise from 'Rags to Riches' and these books deal with the march from 'Puberty to Prostitution'.

In the opinion of the Court (compelled by statute to act as a literary critic) these books are plain unvarnished trash, but novels and stories of no literary merit have a place in our society. There are those who, because of lack of education, the meanness of their social existence, or mental insufficiency, cannot cope with anything better. Slick paper confessions, plup adventure and 'comic book' type of magazines provide them with an escape from reality. However, the fringes of society are not the only cover for those neurotics unable to satisfy their sexual needs through acceptable outlets. Events of the past and present tell us that. So called pillars of society number among them men and women whose sexual outlet is the eroticism of literature and pictures designed to relieve their libidinous repressions (see authorities collated by Judge Fuld in People v. Richmond County News, 9 N.Y.2d 578, 583, 584, 216 N.Y.S.2d 369, 372, 373, 175 N.E.2d 681, 683, 684). Many of these people provide a ready, although, no doubt, clandestine market for the pornographic. As Sigmund Freud, the contentious founder of psycho-analysis and one whose own writings many no doubt would like to see suppressed, said in his 'Wit and Its Relation to the Unconscious' '* * * Common people so thoroughly enjoy such smutty talk, * * * that it is a never lacking activity of cheerful humor * * *'.

In a pluralistic society, such as ours,...