National Reports
SCHUCHAT, THEODOR
Supreme Court Tests Obscenity Laws By Theodor Schuchat Some view the Supreme Court's recent decisions in three unprecedented cases testing state and Federal anti-obscenity laws as a grave threat...
...Justice Felix Frankfurter's decision for the majority denied that this procedure was "prior restraint...
...In an impassioned brief and oral argument before the Supreme Court, his attorney advanced two principal reasons for reversal...
...Whether the Justices accepted its invitation to a private screening of seized motion picture films is not of record...
...This constitutional doctrine of free speech and press judges literature by the acts it is likely to cause, not the ideas it attempts to spread...
...But the adverse decision noted that, in...
...If the seized material is ruled obscene, it is destroyed...
...Justices Douglas and Black may be expected to hold fast to their laissez-faire views on questionable literature...
...He believed that "much of the great literature of the world could lead to conviction under such a view of the statute...
...Obscene material deals with sex in a manner appealing to prurient interest...
...In a ease involving an author and publisher with impeccable literary credentials, the Chief Justice is likely to reiterate that "It is the conduct of the individual that should ho judged, not the quality of art or literature...
...To prove its point, the Post Office Department deposited with the Court, under seal, samples of "hard-core" pornography...
...The shoal waters around the edge are also marked with well known buoys and an occasional wreck...
...Under a hitherto untested law enacted by the Legislature in 194.1, New York City obtained an injunction and removed copies from bookstores* New York was attempting "prior restraint" of publication, according to the aggrieved booksellers...
...The Government's case was simple...
...Justices Douglas and Black also attacked the new test of obscenity in their dissenting opinion...
...The majority decisions in the Alberts and Roth cases, read by Justice Brennan, noted at the outset that the obscenity of their material was not at issue...
...Its brief echoed Judge Frank, citing research findings indicating little or no behavior as a result of reading or looking at obscene material...
...There is no standard of obscenity valid for all times and places, he observed...
...The "Nights of Horror" decision they described as "prior restraint and censorship at its worst...
...Since a tie in the Supreme Court upholds the earlier verdict, New York State's conviction of Wilson's publisher, Doubleday & Co., was affirmed...
...What is needed now to divide legitimate literature even more clearly from illegal lewdness is a Supreme Court case involving an author of established literary merit and a conventional publishing house...
...Accused this time of violating Federal rather than state statutes, he contended that obscenity is no subject for Federal legislation, Congress being prohibited by the First Amendment from abridging the rights of free speech and free press...
...The Second Circuit judges wondered in print whether the Supreme Court would uphold the postal law, in view of its many decisions that speech may not be restricted unless it presents "a clear and present danger...
...Moreover, his client did a mail order business, the Los Angeles lawyer pointed out...
...Ulysses and Memoirs of Hecate County are not typical...
...The personal element basic to the criminal laws is entirely absent...
...The effect of this law, Justice Frankfurter wrote when the Court struck it down last February, was "to reduce the adult population of Michigan to reading only what is fit for children...
...California's law forbade "keeping for sale" or "advertising" obscenity, which have nothing to do with the mails or Federal powers...
...Others have concluded that ultimately the recent decisions will reduce and possibly eliminate attempts at official censorship by the ignorant and bigoted, whether police chiefs or Postmasters General...
...its constitutionality had never been squarely-asserted by the Supreme Court...
...We strongly feel that it would he a grave mistake to judge current obscenity by the cases which have reached the appellate courts, or which have been causes celebres in the past...
...The problem before the Court was a subtle one...
...Suppose that the Postmaster General attempted to bar from the mails a book like Memoirs of Hecate County...
...Under this statute the setting is irrelevant...
...I believe that the state and Federal Governments can constitutionally punish such conduct...
...Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destruclive of freedom of expression to be squared with tho First Amendment...
...Another offense requires another trial...
...Nevertheless, "under the statute as judicially interpreted, punishment is apparently inflicted for provoking in such adults undesirable sexual thoughts, feelings or desires—not overt dangerous or anti-social conduct, either actual or probable...
...and motion picture films, "sometimes of high technical quality, sometimes in color...
...And who is to determine what is sexually provocative...
...All it need do is incite a lascivious thought or arouse a lustful desire...
...The New York law was carefully written to make pornography unprofitable...
...The Chief Justice concurred in the, decision but wrote a separate opinion emphasizing its limited nature...
...The late Judge Jerome Frank made his misgivings plain in a lengthy appendix to the Appellate decision against Roth, in which he concurred...
...In truth, the stimuli to irregular sexual conduct, by normal men and women, may be almost anything—the odor of carnations or cheese, the sight of a cane or a candle or a shoe, the touch of silk or a gunnysack...
...for example, an illustrated anthology of Boccaccio, Aubrey Beardsley, pseudo-scientific articles on sex, etc...
...Usually, when a dealer is charged with selling obscene literature, the books remain on sale until his case has dragged its way through a clogged court calendar...
...Massachusetts, he reminded the Court, once found Lillian Smith's Strange Fruit obscene and three years later deemed Forever Amber acceptable...
...That is all these cases present to us and all we need to decide...
...Alberts v. California dealt with a Los Angeles publisher and bookseller convicted of violating a state law against pornography...
...The list of books that judges or juries can put in the category is endless...
...Their hope is that these minority opinions by Chief Justice Earl Warren and Associate Justices William J. Bren-nan, John M. Harlan, William 0. Douglas and Hugo L. Black will yet prevail...
...Ninety per cent of the printed or photographic items supporting criminal convictions under the anti-obscenity statutes, the Government explained, is "hard-core" pornography: erotic objects, photographic sets and booklets, illustrated pamphlets and books "in simple explicit words of sexual excesses of every kind, over and over again...
...Although on the books since 1842...
...A jury trial is optional...
...Apparently a majority of the Court agreed with the Government's brief, which asserted: "The continental mass of commercial pornography is well marked on the maps and...
...The Federal Government has exclusive jurisdiction over the mails, and state regulation in this field presents such a patchwork as to make a nationwide traffic impossible...
...Roth v. U.S., however, presented the basic, challenge to the 20 anti-obscenity acts passed by Congress...
...The vexing question raised by Judge Frank was disposed of in these words: "It is insisted that the constitutional guarantees are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of anti-social conduct, or will probably induce its recipients to such conduct...
...Rarely, if ever, has an amicus brief been accepted in the Supreme Court from a lawyer without a client, but the authoritative personal opinion of Morris Ernst, the celebrated literary-lawyer, was presented to the Justices in this fashion...
...Judge Frank asked...
...Under the New York statute, in contrast, a trial must be held within 24 hours after the injunction issues, and a decision must be handed down within 48 hours after the trial has ended...
...Chief Justice Warren observed in his Roth opinion that "To recognize the existence of a problem . . . does not require that we sustain any and all measures adopted to meet that problem...
...Alberta's argument that the Federal postal statute precluded state laws against obscenity was also rejected...
...Their parting shot was: "The tost that suppresses a cheap tract today can suppress a literary gem tomorrow...
...Alberts and Roth had operated for years in the shadowy area between literature and lewdness...
...The bookseller is assured of a swift trial and justice without delay...
...pornographic comic books...
...They were joined in dissent, on other grounds, by Justice Bren-nan and the Chief Justice...
...Taking the three cases together, they point out, a majority of the court dissented...
...effect, the three appellate judges were asserting the constitutionality of the Federal law barring obscene material from the mails...
...Roth lost his trial and the Court of Appeals upheld his conviction...
...Should obscenity, alleged or conceded, be ruled outside the protection the First Amendment extends to ideas...
...One such measure the Court would not sustain was a 118-year-old Michigan statute making it an offense to publish or sell books to the general public that could potentially "incite minors to violent or depraved or immoral acts...
...Justice Harlan concurred in Alberto's case but dissented with respect to Roth: "I am very much afraid that the broad manner in which tho Court has decided these cases will tend to obscure the peculiar responsibilities resting on state and Federal courts in this field and encourage them to rely on easy labeling and jury verdicts as a substitute for facing up to the tough individual problem* of constitutional judgment involved in every obscenity case," Nor was Justice Harlan happy with tho now definition of obscenity, in which "the Court merely assimilated the various tests into one indiscriminate potpourri...
...Roth's argument that the Ninth and Tenth Amendment- reserved to the states and the people the power to deal with obscenity was rejected summarily...
...The defendants in both those cases were . . . plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect," Mr, Warren commented...
...Supreme Court Tests Obscenity Laws By Theodor Schuchat Some view the Supreme Court's recent decisions in three unprecedented cases testing state and Federal anti-obscenity laws as a grave threat to avant-garde authors and publishers...
...Kingsley Books v. Broum concerned pamphlets describing sadomasochistic activities...
...The jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person...
...One defect in the anti-obscenity laws, Judge Frank wrote, is that "no one can show that with any reasonable probability obscene publications tend to have any effects on the behavior of normal average adults...
...Tho conduct of the defendant is tho central issue...
...Justice Frankfurter holds judicial proceedings preferable to administrative rulings against literature, while Justice Brennan believes a jury trial essential for determination of the issue of obscenity, and Justice Harlan would probably prefer state rather than Federal restraints in a case of this kind...
...Tho decision denied that this standard was vague...
...No publisher approaches these waters without knowing what he is doing...
...However, ". [such] utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the state courts, to consider the issue behind the phrase 'clear and present danger.'' What, then, shall be considered obscene...
...If found guilty, the dealer may pay only a fine and often he is soon selling the same books again...
...A curious cross between books and magazines, these were issued irregularly but with a common format and the running title "Nights of Horror...
...Amicus curiae briefs were also filed by the Authors League of America, the American Books Publishers Council and Playboy and Rogue magazines...
...Justices Douglas and Black dissented and, as they did in all three cases, adopted a more extreme position than they have taken in the past in similar cases...
...As author, publisher or bookseller, Roth has long run afoul of various state and Federal laws against obscene literature...
...Two years after that, Erskine Caldwell's God's Little Acre was banned in Boston and the rest of the Bay State, yet it was then legally held to be fit reading for residents of New York and Pennsylvania...
...it is a person...
...Tho Supreme Court would overrule him, if the positions taken in the Roth, Alberts and "Nights of Horror" cases are maintained...
...The trend of the Supreme Court's recent decisions and the temper of the present Justices would seem to belie these warnings, however...
...His opinion further noted that "It is not the book that is on trial...
...Justice Bretman argued that "the absence in this New York obscenity statute of a right to jury trial is a fatal defect...
...Yet how could they be restrained without impairing the intellectual freedom of reputable men of letters...
...Similar statutes in Colorado, Florida, Iowa, Maine, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia and West Virginia are now challenged, for the Supreme Court's decision in Butler v. Michigan was unanimous...
...Precisely this grave question was posed nine years ago in the case of Edmund Wilson's Memoirs of Hecate County, but then the Court divided 4-4, with Justice Frankfurter not participating...
...the Government's brief contended...
...There is totally lacking any standard in the statute for judging the book in context," Mr...
...Some of the earliest English common law cases, for example, involved Southey's Wat Tyler, Byron's Don Juan and Shelley's Queen Mab...
...The decision of the majority in the Roth and Alberts cases, according to the Court's two steadfast liberals, "creates a regime where, in the battle between the literati and the Philistines, the Philistines are certain to win...
...Their optimism is based on the nature of the minority opinions, the temperate tone of the majority and, above all, the shoddy literary goods involved in these particular cases...
...The test is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest...
...The American Civil Liberties Union came to Roth's defense before the Supreme Court...
...According to the Post Office Department, the "borderline" category accounts for less than a tenth of the questionable matter scrutinized at the border or in the U. S. mails...
...Warren wrote...
...In my judgment, the same object may have wholly different impact depending upon the setting in which it is placed...
...They conceded that the "Nights of Horror" series was "indisputably obscene and filthy," but they defended their hard-won historic right to sell a book— completing the path from author to reader—before the law intervenes...
...Much more was at stake than Alberts' girlie magazines or Roth's erotic books—American Aphrodite...
...Until then, he may keep the book for sale and sell it on his own judgment...
...Obscenity was then denied the constitutional protection of free speech and free press because "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance...
...By these standards, punishment is inflicted for thoughts provoked, not anti-social conduct," they warned...
...is unmistakable...
Vol. 40 • October 1957 • No. 40
