People v. Fritch

Citation13 N.Y.2d 119,192 N.E.2d 713,243 N.Y.S.2d 1
Parties, 192 N.E.2d 713 The PEOPLE of the State of New York, Appellant, v. Marguerite FRITCH, Alan Hammerle and John E. Armstrong, Respondents.
Decision Date10 July 1963
CourtNew York Court of Appeals

Joseph A. Ryan, Dist. Atty. (J. Richard Sardino, Syracuse, of counsel), for appellant.

Charles Rembar, New York City, Charles E. Roberts and D. Charles O'Brien, Syracuse, for respondents.

SCILEPPI, Judge.

Defendants, after a trial by jury, were convicted of selling an obscene book, to wit, 'Tropic of Cancer' by Henry Miller, in violation of section 1141 of the Penal Law. 1 The County Court reversed their convictions and dismissed the information. This case presents for consideration the recurring question of what constitutes obscene literature under the aforementioned statute in light of the guarantees of freedom of expression contained in both the Federal and State Constitutions. We have concluded that 'Tropic of Cancer' is obscene within the meaning of our statute and is not within the area of constitutional protection.

It is by now well established that the State of New York, in the exercise of its police power, may enact legislation designed to suppress the sale and distribution of salacious literature (Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498). This our Legislature has done by the enactment of section 1141 of the Penal Law, which embodies the recognition that the public interest demands protection against the damaging impact of obscenity on the moral climate of the community. The need for this protection has been highlighted in recent years as the People of this State have been exposed to an ever-increasing amount of printed material featuring sex and sensationalism which, aided by new methods of merchandising, are sold not only in bookstores but from open racks in candy stores and similar outlets. As the dissemination of this material has become more widespread, there has been anincreased awareness of the serious problem it creates. Legislative committees of both the State 2 and Federal 3 Governments, as well as other groups 4, have conducted hearings and issued reports which reflect the alarming decline in the moral climate of our times. These reports emphasize the need for obscenity laws as a safeguard in the public interest and the necessity for their proper enforcement. The need for this public protection was reaffirmed in the Supreme Court of the United States in Roth v. United States, 345 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, supra, which held that it is not a violation of the guarantees of freedom of speech and of the press under the First Amendment of the Constitution to suppress or prohibit the publication, distribution and sale of obscene literature. The court there stated (354 U.S. pp. 484-485, 77 S.Ct. p. 1309, 1 L.Ed.2d 1498): 'All ideas having even the slightest redeeming social importance unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956.'

While the State's right to enact such legislation cannot be doubted, the application of the legislative mandate to specific subjects may not be so broad as to impinge upon the right of free expression guaranteed to all citizens. Thus the determination of whether a particular work is legally obscene requires us to strike a balance in each case between these fundamental freedoms and the State's interest in the welfare of its citizens.

The term 'obscenity', however, is not susceptible of precise definition. It must be viewed in juxtaposition to time, place and circumstance, so that whether a particular work falls within the ambit of constitutional protection or is subject to regulation by the State must be determined by a case by case process of inclusion and exclusion. But, while the exact boundaries of obscenity cannot be sharply drawn, the Supreme Court, in Roth v. United States, supra, and Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, set forth guidelines and prescribed the essential elements which must conjoin before it can be found that a publication is obscene by constitutional standards. The first of these elements is the so-called 'prurient interest' test set forth in Roth, that is, 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest' (Roth v. United States, supra, 354 U.S. p. 489, 77 S.Ct. p. 1311, 1 L.Ed.2d 1498). The second, contained in Manual Enterprises, requires that, in addition to the 'prurient interest' test, it is necessary to establish that the challenged material is also 'patently offensive' to current community standards of decency (Manual Enterprises, Inc. v. Day, supra, 370 U.S. p. 482, 82 S.Ct. p. 1434, 8 L.Ed.2d 639). In addition to the foregoing tests imposed by the decisions of the Supreme Court, this court interpreted section 1141 of the Penal Law in People v. Richmond County News, Inc., 9 N.Y.2d 578, 586, 216 N.Y.S.2d 369, 375, 175 N.E.2d 681, 685, as applicable only to material which may properly be termed 'hard-core pornography'.

It is our opinion that, judged by all three of the established legal standards, 'Tropic of Cancer' does not fall within the class of publications entitled to constitutional protection.

Significantly, the jury was instructed that to convict the defendants they must find the book to be obscene under all of the standards discussed above, that it, the tests of 'prurient interest', 'patent offensiveness' and 'hard-core pornography'. Formerly their determination of this question would have been deemed conclusive unless as a matter of law the writing could be said to be so innocuous as to forbid its submission to the trial of the facts (People v. Pesky, 254 N.Y. 373, 173 N.E. 227). However, as this court stated in the Richmond County News case supra, 9 N.Y.2d pp. 580-581, 216 N.Y.S.2d p. 370, 175 N.E.2d p. 681: 'This court, as the State's highest tribunal, no less than the United States Supreme Court, cannot escape its responsibility in this area 'by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as 'obscene,' for, if '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.' Roth v. United States, 354 U.S. 476, 497 498, 77 S.Ct. 1304, 1315-1316, 1 L.Ed.2d 1498 (HARLAN, J., concurring) * * * . It involves not a simple question of fact, but a mixed question of fact and constitutional law, calling upon the court to make an appraisal of a publication and its contents against the requirements embodied in both State and Federal Constitutions'.

In the exercise of our duty to make an independent constitutional appraisal, we have read the book carefully and conclude that it is nothing more than a compilation of a series of sordid narrations dealing with sex in a manner designed to appeal to the prurient interest. 5 It is devoid of theme or ideas. Throughout its pages can be found a constant repetition of patently offensive words used solely to convey debasing portrayals of natural and unnatural sexual experiences. It is a blow to sense, not merely sensibility. It is, in short, 'hard-core pornography', dirt for dirt's sake (United States v. One Book Called 'Ulysses', D.C., 5 F.Supp. 182), and dirt for money's sake (Kingsley Intern. Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 692, 79 S.Ct. 1362, 3 L.Ed.2d 1512). We see no reason for adopting an unrealistic appraisal of the nature of this book when there is such overwhelming proof of its incompatability with the current moral standards of our community. If, as the County Court held, this book is not obscene as a matter of law, it is difficult to conceive when, if ever, a book can be held to be obscene under any established legal standard.

Defendants contend that even if 'Tropic of Cancer' is obscene when judged by the established tests, it is nevertheless, under the Roth case, supra, entitled to protection because it has 'substantial literary merit'. We do not interpret Roth, or any other authority, as establishing any such rule of law. Defendants place reliance upon the court's statement in Roth that 'implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance' (354 U.S., supra, p. 484, 77 S.Ct. p. 1309, 1 L.Ed.2d 1498). But it does not follow that the converse is true; indeed, if such were the case the holding in Roth would be vitally eroded, for the test as pronounced there is the appeal to the prurient interest of the average person in the contemporary community. It does not follow, then, that because an alleged work of literature does not appeal to the prurient interest of a small group of intellectuals that it is not obscene under the prurient interest, or for that matter any other legal test of obscenity. This would permit the substitution of the opinions of authors and critics for those of the average person in the contemporary community. The fact that a few literary figures have commented favorably on this book and have lent it their prestige does not expunge from its pages the flagrantly obscene...

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    ... ... general public statements made with the intent of educating the community as to the existence and spread of obscene literature among young people. The judge had attempted to temper his remarks and to qualify them, noting that he was not attacking any specific type of publication, for precise ... 23 People v. Fritch ... ...
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    ... ... 800, 383 P.2d 152, cert. denied, 375 U.S. 957, 84 S.Ct. 445, 11 L.Ed.2d 315 (1963). The New York Court of Appeals in People v. Fritch, 13 N.Y.2d 119, 243 N.Y.S.2d 1, 192 N.E.2d 713 (1963) also by a four-to-three vote held the same book to be "obscene" and reversed a ... ...
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    ... ... He was prepared to say that distribution of Candy to young people would be 'healthful.' A Catholic priest who had not read the book opined that sex matters can be spoofed without appealing to the prurient interest ... The following quotation from People v. Fritch, 13 N.Y.2d 119, 243 N.Y.S.2d 1, 192 N.E.2d 713, by the New York Court of Appeals (1963), approved by the New Jersey Superior Court, represents our ... ...
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    ... ... Compare People v. Fritch, 13 N.Y.2d 119, 243 N.Y.S.2d[196 A.2d 229] 1, 192 N.E.2d 713 (Ct.App.1963), with Attorney General v. Tropic of Cancer, 345 Mass. 11, 184 ... ...
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