SEX AND THE SUPREME COURT
Morgan, Edward P.
Sex and the Supreme Court by EDWARD P. MORGAN Z^iNE of the difficulties about cor-railing that lascivious commodity called obscenity is that it behaves like a blob of mercury rolling out from...
...United States...
...Supreme Court in particular would probably welcome a sound, fair, and durable definition of obscenity...
...Nevertheless, the decisions encouraged a series of censorship efforts across the country, some of them by self-appointed protectors of public morals...
...It did not withdraw or contradict the unique reasoning it had developed last year on the point of sensuous salesmanship, though one is tempted to wonder if the majority had not regretted its vintage rationale, especially in view of the fact that the May decision took the pains to spell out the existence of a wide difference of opiniori among the nine justices on some aspects of obscenity...
...Some people have tried to bottle it, but then they use it as one would use a thermometer to take temperatures of outrage...
...Speaking for the majority, Justice William J. Bren-nan Jr., said Ginzburg's sales pitch for a magazine called Eros and other publications bore the "leer of the sensualist...
...Sex used to be daubed in dirty words on the back of the barn...
...By such process, he warned, "we forsake a government of law and are left with government by Big Brother...
...In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it . . . and in none was there evidence of the sort of 'pandering' which the Court found significant in Ginzburg vs...
...Involved were ten girlie magazines and two paperback books...
...Sex and the Supreme Court by EDWARD P. MORGAN Z^iNE of the difficulties about cor-railing that lascivious commodity called obscenity is that it behaves like a blob of mercury rolling out from under a pursuing thumb...
...These fevers vary widely and the public can never tell whether the doctor of morality is a reasonable citizen, a blue-nosed quack, or a playboy with a provocative nose for sex...
...In none . . . was there a claim that the statute in question reflected a specific and limited state concern for juveniles...
...But in throwing out three state cases on the subject, the Court showed an impressive lack of difference...
...In last month's decision, with Justice Stewart voting with the majority this time, the Court noted that in the three cases brought up from Paducah, Kentucky, Pine Bluff, Arkansas, and New York City, three significant things were absent...
...The censorship of anything but the worst "hard core" pornography, he argued then, not only violates the First Amendment's protection of freedom of expression but betrays society's lack of confidence in itself...
...If the First Amendment means anything," he continued, "it means that a man cannot be sent to prison merely for distributing publications which offend a judge's esthetic sensibilities...
...The courts in general and the U.S...
...This was precisely the logic used last year by Justice Potter Stewart, usually described as a moderately conservative member of the Court, in dissenting from the Ginzburg decision...
...The votes were seven to two, Justices John M. Harlan and Tom C. Clark dissenting...
...Supreme Court indicated, with what might be described as prudent clarity, that it had not intended to sponsor a field day of vigilanteism on the subject of obscenity...
...In the Ginzburg case especially, the court developed a new criterion, not for obscenity per se but for the manner in which erotic material was merchandised...
...In May, however, the U.S...
...In all their individual and collective wisdoms the judges and the justices have never been able to come up with a satisfactory one themselves...
...Indeed, The New York Times has reported that a member of the John Birch Society recently elected to the board of trustees of the Farmingdale, Long Island, Public Library, one Carl E. Gorton, confiscated on his own authority a library copy of the Paris Review because he found a short story in it objectionable and "obviously obscene...
...Just a year ago, in sharply divided opinions which alarmed a number of responsible Americans—including dissenting Justices, who considered the decisions a threat to the freedom of speech if not the press—the Supreme Court upheld two convictions for obscenity...
...It is possible that the Court is suggesting a future distinction to protect tender young minds: that if it is specifically contended, as it was not in these cases, that juvenile morals are openly threatened by such material, perhaps sterner lines must be drawn...
...The Court ruled that they were protected by the free speech guarantee in the First Amendment to the Constitution...
...Some legal observers concluded that this meant content might escape classification as obscene if undue promotional attention were not called to it...
...As indicated, the reason is quite clear: Obscenity involves emotional reactions and these are mercurial, not reducible to accurate measurements by any standard test...
...It still is, but something new is being added in the living room and the classroom: the belated realization that sex is not inherently ugly or evil...
...The defendants were New York publishers Ralph Ginzburg and Edward Mishkin...
...If this sophistication continues, obscenity will continue to lose its secret, lurid thrill, and the only real losers will be the self-appointed guardians of other people's morals who will face unemployment...
Vol. 31 • June 1967 • No. 6
