Facets of Freedom
FELLMAN, DAVID
Facets of Freedom The Smut Peddlers, by James Jackson Kilpatrick. Doubleday, 323 pp. $4.50. The Quest for Equality, by Robert J. Harris. Louisiana State University Press. 172. pp. $4. Reviewed...
...The author is no book-burner, and he approves of the various standards of judgment which our courts have developed during recent years to stay the hand of the censor...
...His book on the equal protection conception is based upon competent scholarship...
...Kilpatrick is editor of the Richmond News Leader...
...Kilpatrick does not pretend that the problem can be solved by some facile and simple formula...
...Following a chapter on the stormy debut of the Fourteenth Amendment, the heart of the book is found in the analysis of the large number of constitutional decisions in which the equal protection clause was construed by the nation's highest court...
...Having said all this, I should like to state that this is a reasonable and sensible book, and in many ways the best we now have on the subject...
...Harris teaches constitutional law in the political science department of Vanderbilt University...
...his book is equally scholarly, being thoroughly annotated and embodying a great deal of careful research...
...Both books are serious, informed, and well-written, and both authors write in a highly responsible manner...
...My only quarrel with Kilpatrick is that he tends to lump the kind of problem one finds in the suppression of hard-core smut with the sort of question which inheres in the attempt to censor a serious book which deals frankly with some aspect of sexual experience...
...But this is not the area of controversy...
...For, speaking generally, "the Court has done no more than reaffirm the traditional American doctrine of equality before the law . . ." This is a wise and learned book, a brilliant introduction to an important segment of American constitutional law...
...Kilpatrick's book is concerned with the problems of obscenity censorship...
...The point Harris makes is that there was no need for the Court to invoke the authority of contemporary social scientists, since the position it took was in the great historic tradition of the equal protection of the laws...
...The first part of the book describes some of the basic facts of the smut racket, but the other three parts of the book deal largely with controversial issues relating to the propriety of the sale of books written by reputable authors...
...But he does spell out forcefully and learnedly the progress we have made in the elaboration of reasonable tests and procedures...
...Having engaged in a considerable amount of empirical research, Kilpatrick makes the point abundantly clear that there are quite a few entrepreneurs engaged in the pornography racket...
...Instead of overruling Plessy as having been erroneous at the time it was decided, the Chief Justice preferred to argue merely that because of the growth of public education since then, and advances in psychological knowledge, the Plessy doctrine was now unacceptable...
...The controversy arises when the censors ban the books of serious authors, such as James Joyce, Edmund Wilson, James Farrell, and Honore de Balzac...
...But the rest of the book is concerned with the place of the concept of equal protection in the general stream of American political theory, and in Supreme Court decisions...
...Harris is unquestionably correct in asserting that all the Court had to do was to hold that the "separate but equal" formula was not in accord with precedents before and after 1896...
...Harris devotes the last chapter of The Quest for Equality to a penetrating analysis of the Supreme Court's decisions in the school segregation cases of 1954...
...This explains why the opinion in the school segregation cases is not a truly distinguished one, and why it has been so vulnerable to damaging criticism...
...The history of the equal protection clause amply supports Harris's conclusion that while the 1954 decision of the Court, which threw out the "separate but equal" doctrine announced in 1896 in Plessy v. Ferguson, was a great decision, the opinion of Chief Justice Warren was not...
...Reviewed by David Fellman About all that these two books have in common is that they deal with aspects of what we roughly call the civil liberties field...
...The intellectual problem here is the age-old search for a proper balance between freedom and the abuse of freedom...
...To my knowledge no responsible or sensible civil libertarian defends hard-core pornography...
...The right to publish is not, and cannot be, unlimited, but on the other hand the right to censor is also far from absolute...
...It is equally clear that in the eyes of the law the advertisement, sale, and distribution of this bilge is unlawful, and this is as it should be...
...While the author does recognize the difference between hard-core pornography and serious books, and indeed between hard cover and paperback books, the organization of the book as a whole tends to sweep everything into the same tent...
...While we now have a large and rapidly expanding body of literature dealing with the school segregation problem, we have surprisingly few books on the concept of equal protection as a constitutional doctrine...
...The Harris volume analyzes the meaning of the doctrine of equal protection in American political theory and in the jurisprudence of the Supreme Court...
Vol. 25 • April 1961 • No. 4
