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Obscenity: Significance of Literary Value The Catholic Lawyer Volume 10 Number 1 Volume 10, Winter 1964, Number 1 Article 10 Obscenity: Significance of Literary Value Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the First Amendment Commons, and the Supreme Court of the United States Commons This Recent Decisions is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. 10 CATHOLIC LAWYER, WINTER 1964 tions ''-6 were necessary, and that there was The fact situation in the principal case no clear yardstick by which the permissible seems clearly to fall within the spirit of the area could be delineated from that consti- types of activity which are not violative of 7 tutionally prohibited. 2 Mr. Justice Gold- the first amendment. Although the examples berg reasoned that "the First Amendment in Abington are specific, they were certainly does not prohibit practices by which any not intended to be exhaustive. It would realistic measure create none of the dangers clearly be unreasonable not to distinguish which it is designed to prevent and which between the recitation of a prayer or the do not so directly or substantially involve reading of a Bible in a classroom and the the state in religious exercises ...."12 authorization given to a group of people The Court presented a few examples to erect a religious display on public which are indicative of the intimacy which grounds at their own expense. The signifi- exists between religion and the federal gov- cant recognition by the Court in the principal ernment. 2 9 Oaths of office from President to case is that some distinction must be made alderman conclude with the humble state- regardless of what the distinction is branded. ment "So help me God." Likewise each The Court here has chosen to label the session of Congress is opened with a prayer degrees of involvement as "active" and provided by its chaplain. Each session of the "passive." These labels may not necessarily Supreme Court is commenced by a crier, be the most appropriate. The Supreme Court who in a short ceremony invokes the grace in subsequent cases may refuse to adopt of God. Furthermore, chaplains are pro- this precise language-whether or not they vided in our military forces for spiritual do is not of major concern. The case under guidance.? discussion points up at least this-whether there has been a violation of the "establish- ment clause" is a question of the degree of 26 School Dist. of Abington Township v. Schempp, state involvement in a particular religious 374 U.S. 203, 305-306 (1963) (concurring opin- activity. The Supreme Court, if faced with ion of Justice Goldberg). a similar fact situation, might very well 27 Id. at 306. 28 Id. at 308. (Emphasis added.) categorize the degree of involvement here 2 Id. at 213. present among its enumerations of sanc- It is interesting to note that the Congress which tioned activities and might well conclude provided for chaplains in the Houses of Congress and in the armed forces, was the same Congress that such a determination was implicitly that wrote the first amendment. mandated by A bington. Recent Decision: have tried to balance the basic constitu- Obscenity: Significance tional rights of the individual and the state's of Literary Value police power of censorship. In recent years obscenity has been the In the case of People v. Fritch,' the de- source of frequent litigation. There have 1 13 N.Y.2d 119, 192 N.E.2d 713, 243 N.Y.S.2d been conflicting decisions in which the courts 1 (1963). NOTES AND COMMENTS fendants were convicted of selling an ob- interest," various cases, both before and scene book in violation of Section 1141 of after Roth, have advanced diverse solutions the New York Penal Law.' The book, to this problem. Henry Miller's Tropic of Cancer, abounded In the case of Grove Press, Inc. v. Chris- in narrations dealing with sex in the most tenberry, a post-Roth case, it was held that colloquial sordid terms. The defendants con- the general theme of Lady Chatterly'sLover tended that the passages had literary value did not appeal to the "prurient interest." In depicting the depressed post-World War I support of its holding the court stressed the conditions in Paris. The Court of Appeals, in literary value, of the book as a whole.' a 4-3 decision, held that the book was ob- However, in the case of Commonwealth v. scene despite the fact that it might possess Isenstadt, a pre-Roth case, the court found "substantial literary merit." the defendant guilty of selling an obscene There is no precise definition of obsce- book and stated that it was irrelevant nity.' The Supreme Court, however, in the whether the book possessed literary merit." case of Roth v. United States,4 set down the In United States v. Levine,- another pre- following standard: "whether to the average Roth case, a third approach was adopted. person, applying contemporary community The test used was the weighing of the liter- standards, the dominant theme of the ma- ary merit of the material against its effect terial taken as a whole appeals to the pru- on "the salacity of the reader to whom it rient interest." ' The Roth case also held is sent. '1 2 Thus the above three cases follow that ideas of even "the slightest redeeming different standards in determining obscene social importance" are protected by the first literature. While the Isenstadt case finds amendment.' Because of this apparent con- literary merit of no importance, Grove Press tradiction as to the weight to be given lit- emphasizes this. The Levine case's balanc- erary value vis-a-vis appeal to "prurient ing approach falls somewhere in the middle.1 3 T276 F.2d 433 (2d Cir. 1959). 2N.Y. PENAL LAW § 1141 provides: "A person 8 Id. at 437. who sells ... any article or instrument of indecent 318 Mass. 543, 62 N.E.2d 840 (1945). or immoral use, or purporting to be for indecent or Id.I at 847. immoral use or purpose ... is guilty of mis- a 1 83 F.2d 156 (2d Cir. 1936). demeanor .. " 2 Id. at 158. '1Lockhart & McClure, Censorship of Obscenity: 13 For cases holding literary value irrelevant, see The Developing Constitutional Standards, 45 People v. Dial Press, Inc., 182 Misc. 416, 48 MINN. L. REV. 5, 48 (1960). N.Y.S.2d 480 (Magis. Ct. 1944); People v. Friede, 354 U.S. 476 (1957). 133 Misc. 611, 233 N.Y. Supp. 565 (Magis. Ct. Id. at 489. The standards expounded in Roth 1929); People v. Seltzer, 122 Misc. 329, 203 N.Y. are essentially the same as those advocated by the Supp. 809 (Sup. Ct. 1924). For cases declaring American Law Institute in its Model Penal Code literary value of utmost importance, see St. Hubert of 1962. MODEL PENAL CODE § 251.4 (Proposed Guild v. Quinn, 64 Misc. 336, 118 N.Y. Supp. Official Draft, May 4, 1962). However, in that 582 (Sup. Ct. 1909); People v. Gonzales, 107 N.Y. same year the Supreme Court expanded its re- S.2d 968 (Magis. Ct. 1951). For cases consider- quirements for a finding of obscenity. Not only ing literary value to be of varying degrees of im- must a work appeal to the "prurient interest," but portance, see Capitol Enterprises v. City of Chi- it must also be "patently offensive to current com- cago, 260 F.2d 670 (7th Cir. 1958); American munity standards of decency." Manual Enter- Civil Liberties Union v. City of Chicago, 3 Ill. 2d prises, Inc. v. Day, 370 U.S. 478, 482 (1962). 334, 121 N.E.2d 585, appeal denied, 348 U.S. 979 G Id. at 484. (1954). 10 CATHOLIC LAWYER, WINTER 1964 Recently there have been three decisions In the present case, however, the majority contrary to People v. Fritch on the same opinion found Tropic of Cancer obscene, subject - Henry Miller's Tropic of Cancer. stating that it appeals to the "prurient in- First, in Zeitlin v. Arnebergh,'14 the Cali- terest," is "patently offensive," and is "hard fornia Supreme Court held that this book core pornography." 21 The Court rejected was not obscene. The City of Los Angeles, the defendants' contention of "substantial the defendant, contended that "redeeming" literary merit" stating that this is not the test should be the word emphasized in the as laid down in Roth. The majority reasoned phrase "utterly without redeeming social that although Roth stated that " 'implicit in importance" (the test from the Roth case), the history of the First Amendment is the re- and thus, the true test is the weighing of the jection of obscenity as utterly without re- social importance of the material against its deeming social importance'. it does not "prurient appeal." The court rejected this follow that the converse is true; indeed, if contention and emphasized the word "ut- such were the case the holding in Roth terly," a term which permits no such balanc- would be vitally eroded. ."..,,2 In its deci- ing. The California court stated that if any sion the majority relies on a report by the matter of social importance exists, this will New York Academy of Medicine Com- "recover for the material its position as con- mittee on Public Health which states that the 1 5 stitutionally protected utterance.' sale of salacious literature to the adolescent In McCauley v.
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