The Supreme Court: The Obscenity Chore

Obscenity is a relatively new crime.

Not until 1727 was it made punishable under English common law; not until 1 957 did the U.S. Supreme Court hold that it was not covered by the First Amendment guarantees of free speech and press. But even in that decision (Roth v. U.S.), which upheld a federal obscenity statute, the court was clearly unclear about the “dim and uncertain” line between obscenity and protected expression. Painfully, the court decreed three tests:

> Whether the material is “utterly with out redeeming social importance.”

> “Whether to the average person, applying contemporary community standards, the dominant theme taken as a whole appeals to prurient interest.” > Whether it also “goes substantially beyond customary limits of candor” to the point of “patent offensiveness.”

Not only were the tests difficult to devise; they have proved almost impossible to apply. The court has yet to find a single piece of writing obscene—largely because even the worst smut seems able to meet the test of social importance simply because it seems like literature to some readers, however socially unimportant they may be. And to compound the confusion, in Jacobellis v. Ohio (1964), the court spelled out what it meant by “community” standards. Because the Constitution is involved, the community is the whole country; the standard must be “national”—as defined by the Supreme Court. As a result, the nine learned Justices (average age: 63) are apparently doomed to curl up with every allegedly dirty book in the country and subjectively decide on its merits for themselves.

“We’re In Trouble.” Last week the Justices all but begged for mercy during the oral arguments in three obscenity cases involving no fewer than 144 publications. How could the court rule without reading all of them? “If the final burden is on this court,” groaned Chief Justice Earl Warren, who dissented in Jacobellis, “then it looks to me as though we’re in trouble.” ^ In the first case, Publisher Ralph Ginzburg appealed a five-year federal sentence for putting the now defunct magazine Eros in the mails, along with a “newsletter” called Liaison and a socalled psychological study titled The Housewife’s Handbook on Selective Promiscuity. Ginzburg’s Lawyer Sidney Dickstein argued that the court could find “social importance” merely by reading the testimony of assorted literary eminences. While conceding that Liaison was “vulgar” and “sophomoric” (“But that’s no reason to put a man in jail”), Dickstein called Handbook “useful” to women “whose normal sexual drives beset them with anxiety.”

Government Lawyer Paul Bender, on the other hand, pointed to unanimous lower court decisions that “these publications are obscene, filthy, vile, lewd and lascivious.” Justice William O. Douglas asked Bender about a Baptist minister who had testified earlier that he used the Handbook in “counseling.” The lower court, said Bender, “either found he was lying—or that he wasn’t a typical minister.” When pressed further, though, Bender conceded that while Liaison is “a collection of dirty jokes,” Ginzburg’s other works are “borderline material.” In short, he was saying that the Justices must read them.

No End to Headaches. That job seemed even more unavoidable in the second case, in which Edward Mishkin appealed a three-year New York sentence for publishing 140 weird -little books (Sex Switch, Raw Dames, etc.) devoted to sadism and masochism—typically spiced by scenes of naked girls whipping one another. Mishkin’s New York lawyer, Emanuel Redfield, confronted the Supreme Court with a new headache: “Only obscene books can be proscribed. Are sadism and masochism synonyms for obscenity? If so, there is no end to the literature that may be prohibited.”

Moreover, Redfield argued that the books cannot be tested according to the Roth decision as appealing to the “average person’s” prurient interest. “They appeal to the elderly, the impotent and the perverse. Must one be judged by what offends others?” Indeed, can books that actually bore the average person be adjudged obscene because they rouse the prurient interest of what Justice Abe Fortas delicately called “special groups”?

Dreary Chore. With a sigh, Earl Warren called for arguments in the third case: Publisher G. P. Putnam’s Sons’ appeal from Massachusetts’ ban on Fanny Hill, the enduring (1749) erotic bestseller that has been ruled non-obscene in New York. For the publisher, Lawyer Charles Rembar breezily announced: “I bring you a case in which it is not necessary to read the book.” Commented Justice John M. Harlan: “Maybe I wasted my time reading it in advance.” Undaunted, Rembar argued that all sorts of experts have long since attested to Fanny’s social importance in “the development of the English novel.” Publishers should not be saddled with conflicting state opinions, insisted Rembar.

By contrast, Massachusetts Assistant Attorney General William I. Cowin urged the court to view Fanny as an obscene “narration by a prostitute of the particulars of her trade”—a nonstop romp through 50 acts of sexual inter course, or one every 51 pages. Whatever experts say, Cowin insisted, the Justices must plow through Fanny themselves. “I know it’s a dreary chore,” he said. Worse than that, fretted Justice Hugo Black, as he asked “how the court is going to do all this censorship and do anything else.”

Needed Laughter. Justices Black and Douglas would solve the problem by declaring that the First Amendment is no more embarrassed by the publication of prurient pornography than by pink politics. Both activities are fully protected, the two dissenters argued in Roth. While they recognize state power to regulate public morals, they would draw the line when state prohibitions go beyond overt behavior, such as public nudity, and enter the realm of ideas. In their view, obscenity lies in that realm and is thus protected by the national Constitution.

Notre Dame Law School Dean Jo seph O’Meara offered another way out. In a recent comment on Jacobellis, O’Meara urged the court to restore local option in obscenity cases and “recognize the jury as the authentic alter ego of the community, reflecting its morals and mores more truly than even the wisest of judges.”

The Black-Douglas position might open the court to criticism for seeming to encourage pornography. Conversely, the O’Meara position might encourage local censorship of legitimate literature. The court needs an honorable compromise—but what is it?