The Court and Obscenity

...Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications," Brennan announced, "that fact may be decisive in the determination of obscenity...

...The views of Black and Douglas have been mentioned...

...Don't Peep, Tom...

...Fanny Hill was passed as possessing a "modicum of literary and historical value...

...Brennan's reference to "the purveyor's sole emphasis on the sexually provocative aspects of his publications" is patently incorrect as applied to Ginzburg...

...And what can we hope for from the Court...

...Since Schenck v. United States in 1919 the Court has been grappling with the general problem: When may speech (including the printed word) constitutionally be restrained and punished...

...Henry Miller's Tropic of Cancer and D. H. Lawrence's Lady Chatterly's Lover were found to be innocent of an appeal to prurient interest, and to possess redeeming social value...

...If we assume the Court means that materials can be made criminal by sexually pointed advertising, the possibilities are as extensive as they are absurd...

...This decision to cut loose from action and create a category, of "unspeech," is the root of the obscenity mischief...

...Justice Stewart would return to a strict application of the Roth test, and Justice John Marshal Harlan supports this for the Federal government (he would allow greater latitude to state censorship...

...Between 1957-66 the Roth test was applied and refined in different ways...

...It begins by exclaiming, "This book is too much" brushes aside expert testimony with philistine self-confidence, and rises to the dramatic revelation that "Fanny was nothing but a Harlot...

...The second case involved an attempt by the Commonwealth of Massachusetts to condemn John Cleland's 18th-century erotic fantasy Fanny Hill (a standard item in prep school dormitories for decades before its first over-the-counter publication by G. P. Putnam Sons in 1963) as obscene and suppressable under Massachusetts law...

...Though Justice White was not on the Court when Roth was decided, he has developed his own reading of that test...

...Defenders of Brennan's handicraft answered by pointing out that very little would be caught by the test, and that no "serious" literature of any sort could be suppressed...

...Justices Black and Douglas could not see why some utterances were more "speech" than others, but the "Roth test" was established over their protests...

...It is possible, perhaps, to resolve this contradiction, but Brennan does not...

...The materials themselves remain constitutionally protected speech, but the fashion in which Ginzburg distributed them sent him to prison for five years...

...and the third involves the practical consequences of what the Court has done...

...By 1964 it appeared that the test was satisfied only by "hard-core pornography"-material produced for the sole purpose of sexual stimulation for gain...

...Reading the Ginzburg decision one has an uneasy sense that Brennan stretched painfully to get his man...

...In this process some worthwhile material will disappear along with the worthless...

...In each instance the question facing the Justices was the deceptively simple one: Is it obscene...

...The immediate practical consequences of the decisions can only be unpleasant...

...The first case involved the conviction of publisher Ralph Ginzburg for violation of a Federal law which makes it a crime to introduce obscene material into the mails...

...the second involves the wisdom of the doctrine announced -can it be accepted as public policy...

...3) How does the Supreme Court avoid becoming a national censor, since the judgments involved in the test are essentially subjective and can only be made case by case and book by book...

...Censorship lobbies such as New York's Operation Yorkville have greeted the Ginzburg doctrine as a victory, and the ever-present host of politically ambitious young DA'S will be sharpening their knives...

...enjoined a half-clad nymph in a recent New York Times Magazine girdle advertisement...

...In 1957, however, in the case of Roth v. United States, the Court, speaking through Justice Brennan, created an exception to the speechaction principle for certain utterances touching on sexual matters...

...and still others, former Justice Felix Frankfurter, for example, have argued that elected officials should be afforded the greatest latitude in deciding what speech might lead to prescribable action, subject only to the test of "reasonableness...

...Whether the problem involved a soapbox orator, a demagogue publishing hate literature, or a Communist advocating the forceful overthrow of the government, the Court considered the relationship of speech to action...

...The novelty came in Ginzburg's case, with Brennan tossing his logical bonnet over the windmill in a departure from Roth of the most surprising sort...

...Many lawyers and civil libertarians remained unpersuaded in principle, but the Court allayed fears by calling off the censors in specific cases...

...Ginzburg gambled and look where it got him...

...One is reminded of that working-class puritanism which holds above all that sex must be humorless...

...Also, there will be a great deal of self, or prudential censorship...

...Any lawyer worth his retainer will advise playing it safe...

...And Brennan was ready with the test...

...The third case lifted a rock to reveal the activities of Edward Mishkin, an entrepreneur specializing in sadomasochistic erotica-a genre which has burgeoned in the past few years...

...In Ginzburg, a man was sent to prison without a showing that what he was selling lacked redeeming social value...

...Titillation,' "pandering," "commercial exploitation," "shoddy," and "salacious" (all words, as Justice Potter Stewart pointed out in dissent, without legal significance) are used to describe the "crime" of which Ginzburg was guilty...

...and 3) possessed no "redeeming social value...

...After making clear that none of the three items Ginzburg mailed were being held (in and of themselves) to be obscene by the Roth standard, Brennan went on to contend that they became obscene because of the way in which they had been advertised...

...Mishkin's productions, on the other hand, failed the Roth test and New York was upheld...

...The shock will reverberate through the publishing community, and although it would be wrong to overdramatize the effect of the ruling (perhaps all it will mean for most firms is a little more care in promotion), everyone will want to go slowly until its implications become clearer...

...That was before the decisions of March 21...

...This was not so much an argument as a fundamentalist (in the intellectual, not the religious sense) cri de coeur...

...As public policy and a rule for the future, the Ginzburg doctrine is without prospects...

...It is unlikely that the basic error of Roth (scrapping the speech-action principle for "obscenity") can be undone in the immediate future, nor can we realistically expect any formal retraction of the new Ginzburg doctrine...

...The most distressing feature of the decision, however, is Brennan's reliance on vague and emotionallyladen catch words...

...But no matter how strict or permissive the individual standard, the nexus between expression and action was the gravamen-some demonstration of possible anti-social behavior was required if the speech was to be constitutionally punished...

...Further, the opinion is marred by a carelessness of statement, unimportant itself, but hardly calculated to put the worried citizen's mind at ease...

...Some members of the Court (Justices Hugo L. Black and William O. Douglas) have insisted that only action itself could be punished...

...Nothing need be shown, since the First Amendment was not involved...

...At issue was New York's decision to punish Mishkin's activities ($12,000 fine and three years imprisonment) under a statute that makes the publication of obscene material a crime...

...This is a harsh judgment, but the doctrine announced by the Court taxes credulity and the quality of its argument taxes charity...

...The process by which the Supreme Court of the United States got into the business of defining obscenity is a study in judicial improvisation...

...2) exceeded contemporary community standards of "candor...

...Four other Justices underwrote Brennan's Ginzburg essay (Earl Warren, Tom C. Clark, Byron R. White and Abe Fortas), four dissented...

...In all, there were 14 separate opinions in these three cases, and in their voting the Justices combined and recombined in kaleidoscopic patterns...

...Purveyors of books labor under a significant new inhibition...

...Strangest of all, however, is the dissent of Justice Clark in the Fanny Hill case...

...There is bound to be some running amuck, and once started, the keystone cops of censorship are difficult to get on leash...

...The offending items were the fourth issue of Ginzburg's pseudo-intellectual glossy magazine Eros, a sexual autobiography titled The Housewife's Handbook on Selective Promiscuity, which was advertised as useful in psychotherapy and sex education, and a bi-weekly "newsletter of love" called Liaison...

...Whatever one may think of that gentleman's wares, it is a fact that his advertising contained multiple emphasis...

...Obscenity was "as distinct, recognizable, and classifiable as poison ivy is among other plants" (a turn of phrase which may appear unfortunate to more than one camper...

...The Justices have been deeply and often bitterly divided on this issue, but one principle has run through the tangled skein of speech cases and given the Court's work in this area a minimal, irreducible coherence...

...Two days after the decisions were announced, the New York Times reported that lawyers were touring mid-town bookstores advising their clients what to take off the shelves...

...Three sorts of questions are raised by this ruling: The first involves the internal consistency of Brennan's argument-his craftsmanship...

...Do not many of the auto advertisements discussed by Ralph Nader in Unsafe at Any Speed appeal to a prurient interest...

...It is open to the Court, however, to construe Ginzburg so narrowly in future cases as to restrict it to its own facts, and thus retreat, sub-silencio to "pure" Roth...

...wait and see...

...In his Fanny Hill opinion we arc informed flatly that a "book cannot be proscribed unless it is found to be utterly without redeeming social value...

...The Roth test would not reach Ginzburg's materials, and so it was extended telescopically to get at this "sordid business...

...Suburban police chiefs and women's club presidents do not read Supreme Court advance sheets, and the decision unavoidably came across in the press as a "tightening of the laws against obscenity...

...Harlan opposed the majority on Ginzburg but would have allowed Massachusetts to condemn Fanny Hill...

...some others, such as former Chief Justice Frederick M. Vinson, have been prepared to make their own assessment of the proximity of the expression in question to an antisocial action...

...Is Madison Avenue to be stripped of its stock-in-trade...

...The case involved an attempt by the Federal government to punish an "obscene" mailing, and the argument was made for the defendants that unless some anti-social action could be shown to flow from their "speech" it could not, under the First Amendment to the Constitution, be proscribed...

...New York's new Chief Inspector of Police, Sanford Garelik, has announced that arrests for obscene literature have increased 300 per cent since the Court's ruling...

...The Court's past treatments of heterodox and unpopular expression were cited in support of this defense...

...Brennan brushed these contentions aside with the announcement that obscenity was not speech, thus no consideration of the proximity to action was required...

...Mailing privileges for Eros, et al., were first sought from the post offices of Intercourse and Blue Ball, Pennsylvania, and finally obtained from the postmaster of Middlesex, New Jersey-this supposedly showed the "leer of the sensualist...

...Psychological, esthetic and literary appeals were combined with the erotic, and it does not do to brush this record aside with talk about a non-existent "sole emphasis...

...All that was needed was a litmus test for obscenity and your constitutional problems were behind you...

...Nor does Brennan's logic reassure...

...At the same time, the test was being criticized on three distinct grounds: 1) How does a Uberai society justify any censorship without showing that someone is hurt by what is said...

...In the development of constitutional law a furtive step backward is sometimes progress, and this is one of those times...

...At first blush the Roth decision seemed to simplify the "dirty books" problem-no tenuous arguments about the causal relationship between literature and rape, no records weighty with statistics on juvenile delinquency, no conflicting social-scientific theories about "auto-erotic stimulation" (reading a book) and crime...

...take in everything which might be questionable, put out a nice display of cookery books...

...Is a man to serve five years for a bad joke...

...Both these decisions were, at least, consistent with the Court's post-1957 stance...

...Arguing against Brennan who wrote Roth, White contended that "redeeming social value" does not redeem if the book appeals to a "prurient" interest...

...The new member, Justice Fortas, voted with the majority on each case but gave no indication of his own views, which will be crucial in future obscenity cases...

...As Justice Douglas pointed out, Brennan ignored the reality of the American advertising industry, and this will bring a shower of tawdry promotional cases down on the "Marble Palace...

...An utterance was obscene if it 1) treated sex in a manner appealing to a "prurient interest...

...It is noteworthy that the aspect of Ginzburg's behavior which the Court seems to have found most objectionable was his feeble attempt at humor...

...Richard Morgan, a previous contributor, teaches international relations at Columbia University...

...NATIONAL REPORTS The Court and Obscenity By Richard Morgan In three cases decided late last month, involving so-called "obscene' literature, Associate Justice William Brennan reduced the already rickety concept of obscenity to constitutional rubble which may take years for the Supreme Court to clear away...

...2) What about the argument of some psychologists that even hard-core pornography may have a redeeming social value in that it serves as a "safety valve" of fantasy for tensions which might otherwise be resolved in action...