The Legal Fiction of Obscenity

...The Supreme Court therefore based its determination on much broader grounds, perhaps, than had ever previously been applied in a case involving the right of free expression...

...When the distributors of the film version of Lady Chatterley's Lover applied for a license to exhibit it in New York, the examining official ruled that it would not be granted unless three allegedly offensive scenes were deleted...

...And Associate Justice John Marshall Harlan, with whom Associate Justice Felix Frankfurter and Charles Whit-taker joined, declared the movie not obscene, but thought the statute constitutional and expressed the opinion that under the Fourteenth Amendment a state may engage in certain curtailments of expression not allowed the Federal government under the First Amendment...

...In sum, what the Supreme Court seemed to say was that Lady Chatterley's Lover falls outside the recently formulated constitutional category of the "obscene"—because it presents or advocates some idea of "social importance...

...Relying upon the declaration in Roth v. U.S...

...Although the extent of the Government's power to control "obscene" literature has not been clearly defined, it would seem that a rule of law somewhat more sensible than earlier formulations has been adumbrated...

...Apart from this specter of Grundyism, the test is unworkable because notions as to the obscenity or spiciness of a given work will vary even among presumably literate and responsible people...

...The Board of Regents sustained the ban— but on the broader ground that the picture, constituting an alluring portrayal of adultery, was "immoral" and thus in its entirety unfit to be displayed publicly...

...Thus, while asserting the inapplicability of the First and Fourteenth Amendments to "obscenity," it marked off an area which might not, constitutionally, be regarded as "obscene," and would therefore continue to be protected against censorship or licensing...

...Thus, it declared that "obscene" material is not at all protected by the constitutional guarantees...

...He noted that a book "published and distributed through normal channels by a reputable publisher stands on quite a different footing from hard core pornography furtively sold for the purpose of profiting by the titillation of the dirty minded...

...Moreover, it leaves open the question "whether, despite problems peculiar to motion pictures, the controls which a State may impose upon this medium of expression are precisely coextensive with those allowable for newspapers, books or individual speech...

...Lawrence declared that "some quite popular Christian hymns" are "very near to pornography...

...Obscene material is material which deals with sex in a manner appealing to the prurient interest...

...The two Lady Chatterley's Lover cases fill in some of the gaps in Roth v. U.S...

...This seeming paradox results from the vagueness of the word "obscene...

...Among the guardians of morals to whom our society has delegated this job is the Postmaster General...

...WHAT MAY BE CONSIDERED "obscene" (in the everyday sense of the word) differs as one's notions of propriety differ...

...The social evil that may result from the dissemination of a given story or picture has been solemnly debated for centuries and continues to divert the attention of legislators, clergymen and schoolmarms...

...In Butler v. Michigan, decided a few months before the Roth case, the Court struck down a statute which made it an offense to sell to the general public matter which might have a pernicious effect on children...

...An Article 78 proceeding was promptly instituted...

...In the wake of the recent outbursts of juvenile crime, it seems fair to guess that the relationship traced by certain well-meaning individuals between the reading of books and the commission of anti-social acts will come more and more to influence judicial thought, and that under the rule of Butler v. Michigan there will continue to be local suppression of literature which is not, in the constitutional sense, "obscene...

...The defendants had appealed from convictions under a federal statute prohibiting the mailing of "obscene" matter and a state law punishing its sale...

...The proper inquiry was held to be whether the dominant effect of a work is pornographic—whatever that means—and in making this determination its ontological purpose or artistic sincerity and the organic necessity of passages alleged to be objectionable were to be deemed relevant...

...THE LEGAL FICTION OF OBSCENITY By J. S. Rubinstein Recent court decisions advance 'more sensible' interpretations of literary freedoom THE RECENT court decisions upsetting new attempts to ban D. H. Lawrence's Lady Chatterley's Lover have revived the controversy about literature and freedom of expression...

...At present, that test continues to be applied by federal courts on the West Coast and appears to remain the criterion which New York courts will apply...

...The earlier rulings were based upon other considerations—whether a given work fell within a statutory proscription, whether a certain law might be unconstitutional because of the fuzziness of its wording, or whether any social necessity existed for a given enactment...

...Since the question of the "obscenity" of a given work had been traditionally considered a factual issue, this was something of a departure from older doctrine...

...The prevailing opinion, written by Associate Justice Potter Stewart, declared the film not to be "obscene" and the attempt by the New York Board of Regents to prevent its exhibition an unconstitutional prior restraint of expression...

...By a shaky 4-3 split (one judge who voted with the majority doubted the constitutionality of the statute, but felt the Supreme Court should "have the final say") the New York Court of Appeals reversed the decision of the Appellate Division...

...Under Article 78 of the New York Civil Practice Act, a state official's act may be reviewed and set aside in the courts on the ground that it constitutes an abuse of the discretion entrusted him or a failure to do something which he is required by law to do...

...that "obscene" literature is not protected by the guarantees of free expression in the First and Fourteenth Amendments...

...if not obscene, then the equivalent of obscene...

...As the Court saw it, the slate law was "not reasonably restricted to the evil with which it is said to deal" because Michigan has another law "specifically designed to protect its children...

...From an adverse decision by the examining official the distributor of the movie may appeal to the Board of Regents itself, and may contest their decision by an "Article 78 proceeding...

...The logical pitfalls offered by this holding had to be sidestepped in order to sustain the legislature's right to regulate smut...

...Thus any doubts about the danger such material might present became wholly irrelevant—at least, so far as the law is concerned...

...In order to be properly understood, the recent decisions must be viewed within the context of legal precedents...

...In support of his holding, Judge Bryan considered the "unanimous critical approval" the book had received, the reputation of the publisher and the book club, and "editorials in leading newspapers . . . approving the publication," as evidence that it does not "exceed the limits of tolerance imposed by current standards of the community...

...All parties moved for summary judgment, a procedure whereby if no dispute as to fact is presented to the court, a decision may be reached on purely legal issues...

...The issue of appeal to "prurient interest" involves two questions—whether the allegedly offensive material was calculated to appeal to such an interest, and whether the prurience excited by it was the response of a hypothetical normal man rather than that of the "young and immature...

...In following the Ulysses case, the Supreme Court, in Roth v. U.S., elevated the Hand formula from a mere test for determining the obscenity of a given work to a definition of the sort of material exempt from the constitutional guarantees...

...Ironically, the test which may be applied with increasing rigor in prosecutions for the sale of spicy literature, if it is based on the social assumptions expressed in Butler v. Michigan, is likely to be the old formulation which had been seemingly junked in the Roth case...

...By this ruling, in effect, two senses of the word "obscene" were first imported into American jurisprudence...

...J. S. RUBINSTEIN, who practices law in New York City, has over a period of years made a special study of the civil liberty cases involving obscenity and literature...

...Under that law no movie may be exhibited unless it has been approved by the Regents of the University of the State of New York...

...A hint at this special meaning is provided by the Court's approving reference to Judge Augustus Hand's decision in the case of Joyce's Ulysses...

...In 1957 a sharply divided Supreme Court declared in Roth v. U.S...

...Even the test based on the suppositious reactions of a hypothetical average man to the "dominant effect" of a work is unsound, for it is largely because of his refusal to accept received patterns of thought that the significant writer may be characterized...

...However, the power of local authorities to levy criminal penalties against the distribution of such matter appears in no way to have been curtailed...

...The publisher and the book club offered testimony as to their reputation in the literary world, put into evidence reviews and editorial comments about the book and presented the testimony of two distinguished literary critics...

...may still be applied, depending upon the jurisdiction in which the original prosecution is instituted...

...as desirable, acceptable or proper patterns of behavior," is unconstitutional, for it leaves too much to "the opinion, discretion or individual point of view of a censor...

...Last April the New York Postmaster withheld from the mail some 20,000 circulars deposited by The Readers' Subscription offering Lady Chatterley's Lover to its members, as well as a number of copies of the book which the publisher, Grove Press, sought to mail...

...Judge Frederick Van Pelt Bryan, who heard the motion, held the book not "obscene" as a matter of law and ruled in favor of the plaintiffs...

...Although the Court was unanimous in striking down New York's ban on the movie, Justice Stewart's opinion reflects only his views and those of Chief Justice Earl Warren and Justice Brennan...

...Although the cumulative effect of the holdings in Roth v. U.S...

...It is significant that his opinion was far less concerned with the effect of the book than with its purpose...

...For in the course of his prevailing opinion Associate Justice William Brennan made it abundantly clear that the term was not being used in an everyday sense, but solely to refer to one aspect of what might ordinarily be called "obscene...

...and in any event censorable because of its enticing portrayal of a situation deemed to be immoral...

...If a particular deed is within the scope of his allowable discretion, no matter how much a court may dislike it, the deed will be sustained...

...Because of the constitutional protections, spicy literature (with movies or television as possible exceptions) may not be censored or made the subject of other forms of prior restraint...

...that "all ideas having even the slightest social importance" are protected by the constitutional guarantees, the Supreme Court reversed the New York ruling...

...There would doubtless be little objection to the exercise of rigid controls over the sort of matter that is purveyed along Sixth Avenue in New York...

...Associate Justice Tom Clark observed that if the New York statute had banned only films which "portray acts of sexual immorality," he would have upheld its constitutionality...

...Even if the work does "appeal to prurient interest," it might only be held obscene if it lacks "even the slightest social importance...

...The Regents' determination was annulled and a license ordered to be granted—apparently with the three offending scenes uncut...

...Hand declared the book not "obscene" within the meaning of a customs law, although "numerous long passages . . . contain matter that is obscene under any fair definition of the word...

...and the two cases involving Lady Chatterley's Lover is a disavowal of earlier doctrines under which works of serious literature were frequently stigmatized by the courts, it is by no means certain that the power to regulate the dissemination of "obscene" material has been conclusively limited to pure smut...

...Even under this new rule, however, a variety of situations remains in which the censorious may continue their crusade against thought...

...In the context of the "clear and present danger" test, the holding in Butler v. Michigan might have been construed to mean that "obscene" literature may only be regulated to the same extent, and for the same reason, as any other literature...

...Although it would be impossible to define with any precision what lawyers mean when they distinguish between matters of law and matters of fact the distinction is of great importance in appraising the rulings as likely legal precedents...

...The Judicial Officer referred the matter to the Postmaster General "for final departmental decision...

...If it is true that harmful effects—whatever they may be—derive from reading, the most certain way of preventing those effects is to restrict what may be read...

...The statute provides that the license is to be issued unless the movie is found, by an examining official, to be offensive for one of a variety of reasons which, taken together, constitute "obscenity" in the everyday sense of the word...

...Although one of the offending works had been characterized by Judge Jerome Frank of the Court of Appeals as no more shocking than smoking-car yarns, no dispute was raised over the initial finding that they were "obscene...

...Letters of complaint were issued and a hearing was held before the Post Office Judicial Officer...

...Under the various state criminal laws that still may be applied to spicy literature, the "dominant effect" test approved in Roth v. U.S...

...Judge Bryan seemed to postulate the existence of an "obscene" (in the everyday sense) book written for some "high moral purpose" which, not being calculated to appeal to "the prurient interest," might not be considered "obscene" in the constitutional sense...

...The majority opinion may be summed up as a declaration that the film is obscene...

...Enunciated in the notorious case of Queen v. Hicklin, the question is "whether the tendency of the matter . . . is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall...

...by only a few months, it becomes apparent that certain works, which would fall outside the constitutional category of the "obscene," may nevertheless be regulated by the states if their dissemination is found to work some real or imagined social evil...

...The statutes involved in the Roth case could thus have been upheld merely as a "reasonable" curtailment of free expression—were it not, ironically, for a small body of legal opinion which applies the "clear and present danger" test to deny the enforcement of curbs on "obscene" literature except where there is persuasive evidence that its dissemination would stimulate anti-social conduct...

...As Justice Douglas put it, this test "creates a regime where in the battle between the literati and the philistines, the philistines are certain to win...

...As against "any fair definition of the word" was set a new legal standard...

...The ruling was, in effect, that the book is outside the constitutional category of the "obscene" because it puts forth ideas of "even the slightest social importance...

...Judge Bryan's holding that the Lawrence novel is not obscene may be reversed on appeal, but even if it is sustained, an area seems to have been left open for the censorious to continue their work...

...Although the Justices did not explicitly state that Lady Chatterley's Lover is not obscene as a matter of law, their characterization of the New York ruling makes it clear, I think, that such was their conclusion...

...In the case involving the movie, New York's licensing statute was, for the umpteenth time, passed upon unfavorably by the Supreme Court...

...Although the opinion goes on to say that "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance," the representation of sex and obscenity are declared "not synonymous...

...As one judge remarked, even reading the Mechanics' Lien Act may, at the right time, be accompanied by feelings of sexual stimulation...

...President Eisenhower, it seems, came to the same conclusion about Lady Chatterley's Lover...

...and now several popular clerics have associated themselves with the continuing struggle to ban the book from the mails...

...Only Associate Justices Hugo Black and William Douglas expressed the belief that all licensing would work an unconstitutional prior restraint...

...If we read these decisions along with that in Butler v. Michigan, which antedated Roth v. U.S...

...Nevertheless, it would seem that his declaration of the non-obscenity of Lady Chatterley's Lover, being primarily based upon his finding of the author's, publisher's and book club's integrity, would in effect constitute such a determination...

...The Appellate Division held that the provision authorizing the censorship of movies which present "acts of sexual immorality...

...He expressly disavowed the intention of deciding the question whether "if a work is found to be of literary stature, and not 'hard core' pornography," it is necessarily protected by the constitutional guarantees...

...The purpose of the author or publisher, however salutary it might be, is irrelevant, and the whole of an allegedly offensive work need not be read to sustain a conviction, for it is enough that several passages have the fatal tendency...

...But a doctrine whereby literature that presents ideas of "social importance"—and is thus constitutionally protected from federal control—may nevertheless be subjected to the whims of book burners in 50 states would be intolerable, even if the local controls are based on some benevolent desire to lessen the incidence of crime among the "young," the "immature" and presumably the illiterate...

...Although the decision in the Roth case might at first blush seem a shocking encroachment upon liberties that had been taken for granted as inviolable, a close reading makes it apparent that the Court's novel approach in a sense narrows the extent to which literature that is allegedly "obscene" may be regulated...

...For the sake of convenience I shall refer to matter of this sort ("obscene" in the everyday sense, but not the constitutional sense) as "spicy...

...Although he observed that certain passages "understandably will shock the sensitive minded," he noted that "these passages are relevant to the plot" and that the "language which shocks . . . is not inconsistent with character, situation or theme...

...This area includes literature—any writing or representation that may be visually perceived—which sets forth or represents any idea "having even the slightest social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion...

...In June the latter decided that the book and the circulars were non-mailable...

...Even though the Supreme Court declared unconstitutional the older lest which looked to the effect of selected passages upon the "young and immature," it does not follow that this dictum would be applied to reverse a conviction for the sale of spicy literature to children under a statute worded like the Michigan one referred to in the Butler case...

...So if the stales continue to regulate spicy literature, whatever test be applied, it can be assumed that nearly anything might fall into that category...

...The power to legislate against "obscenity" had never before been passed upon by the Supreme Court, but a tradition that had been in the making since 1877— when the Court gratuitously remarked that Congress had the power to punish the mailing of "corrupting publications and articles"—was called into question in Roth v. U.S...

...The major issue was a frontal attack upon the constitutionality of the laws...

...If this analysis is correct, the controls exercised over spicy literature would not differ significantly from those in effect for "obscenity" prior to the decision in Roth v. U.S...

...Both proceed from civil lawsuits instituted by the distributors of the works, and both ultimately result in holdings that they are not "obscene" as a matter of law...

...The State Appellate Division, in its decision, cited Supreme Court authority which had invalidated other aspects of New York's movie censorship law...

...The publisher and book club then brought suit in the United States District Court in New York seeking to enjoin enforcement of the ruling...