The Catholic Lawyer Volume 13 Number 2 Volume 13, Spring 1967, Number 2 Article 4 Candor or Shame? Defining Obscenity yb Statute Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the First Amendment Commons This Article 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]. CANDOR OR SHAME? DEFINING OBSCENITY BY STATUTE* THE PROBLEM OF DEFINITION N 1960, Field and Stream Magazine contained a book review of D. H. Lawrence's controversial work Lady Chatterley's Lover. The reviewer concisely summarized the novel with the comment: This fictional account of the day-by-day life of an English gamekeeper is still of considerable interest to outdoor minded readers, as it cer- tainly contains many passages on pheasant raising, and apprehending of poachers, ways to control vermin and other chores and duties of the professional gamekeeper. Unfortunately, one is obliged to wade through many pages of extraneous material in order to discover and savor these sidelights on the management of a midland shooting estate. In this reviewer's opinion, this book cannot take the place of J. R. Miller's PRACTICAL GAMEKEEPER. However, New York sports enthusiasts wishing to judge the compara- tive merits of Miller and Lawrence were prohibited from purchasing this novel prior to 1960 by the decision of the New York City Postmaster. He banned the book from the mails on the grounds that it was replete with descriptions in minute detail of sexual acts engaged in or discussed by the book's principal characters. These descriptions utilize filthy, offensive and degrading words and terms. Any literary merit the book may have is far outweighed by the pornographic and smutty passages and words, so that the book, taken as a whole, is an obscene and filthy work. (Grove Press, Inc. v. Christenberry, 276 F.2d 434.) The ban on sale of the novel was removed following a decision of the U.S. District Court for the Southern District of New York, upheld by the United States Court of Appeals, Second Circuit (Grove Press, Inc. v. Christenberry, supra), declaring the book was not obscene. * Compiled by Sandra Edhlund, Research Analyst, Legislative Reference Bureau, Madison, Wis. Informational Bulletin 66-73, August 1966. 13 CATHOLIC LAWYER, SPRING 1967 The varying opinions displayed by a be deemed obscene if any portion of it sportswriter, postmaster and several tended to exert a corrupting influence on judges concerning a single novel empha- the most easily susceptible elements in size the vagueness of the term "obscenity" the society. Generally, the most easily and the difficulty of applying the term to corruptible element used for this test was specific works. As one man's pornog- youth, and materials could be determined raphy may be another's artistic master- obscene if any portion would tend to piece, devising a clear and concise def- corrupt youth. Although several lower inition by which to judge obscene content courts in the United States disputed the is clearly difficult. However, the general- legitimacy of this test, the Hicklin rule ly prevailing community opinion in the was used in determining obscenity for United States appears to favor some con- most of the century until the United trol of pornographic materials, and both States Supreme Court curtailed the prac- lawmakers and judges are faced with the tice by a decision in 1957. The case task of devising such a definition to pro- which finally contested the legality of the tect the public from grossly pornographic Hicklin rule was Butler v. Michigan, 352 materials without stifling artistic expres- U.S. 380 (1957). The United States sion or violating the First Amendment Supreme Court struck down a Michigan right of free expression. statute based on the Hicklin test, stating that it did so because the statute curtailed AND JUDICIAL TESTS the rights of due process. According to DEFINITIONS the court, by not limiting the legislation been histor- Defining the obscene has reasonably to the evil with which it was a legislative ically a judicial rather than intended to deal, the law forced the adult Early statutory prohibitions on problem. population of Michigan to read only what con- obscene or pornographic literature was fit for children. Having struck down tained vague descriptions of obscene ma- the traditional test for obscenity, the Su- terials as those which would tend to cor- preme Court in the same year accepted was set rupt youth. No further criterion a new one, in Roth v. United States and by statute, and determination of corrup- Alberts v. California, 354 U.S. 476 tive tendencies was left completely to the (1957). courts. For over one hundred years The Roth Test judges have sought general rules by which In Roth, supra, the Supreme Court to determine pornographic content. Sev- faced squarely for the first time the ques- eral major tests have been devised during tion of conflict between prohibiting ob- this period. scene publications and guaranteeing the The Hicklin Rule First Amendment right of free expression. The earliest U.S. court test for ob- The court stated that obscenity is exclud- scenity was devised in England by Sir ed from the protection of the First Alexander Cockburn in Regina v. Hicklin Amendment. (1868), L.R. 3 Q.B. 360. Basically, the All ideas having even the slightest re- decision stated that a publication could deeming social importance-unorthodox DEFINING OBSCENITY ideas, controversial ideas, even ideas Recent Obscenity Cases hateful to the prevailing climate of Since the Roth decision, several ques- opinion-have the full protection of the tions have been raised concerning the new guaranties. But implicit in the his- from the tory of the First Amendment is the definition. Basically, they derive rejection of obscenity as utterly without vagueness of the criteria. What commu- redeeming social importance. nity standards are to be used? Are they the standards of the nation, state, local court approved the jury in- Also the community or particular social segment structions given in the trial court, as a of the local community, i.e., sexual de- legitimate test for obscenity. viants, religious sects, etc.? How influen- 'The test is not whether it would arouse tial is the stipulation on redeeming social sexual desires or sexual impure thoughts importance? Must all material having a particular segment in those comprising some social importance be exempt from of the community, the young, the im- mature or the highly prudish or would judgment or does a judgment that such leave another segment, the scientific or material is obscene infer that it is with- highly educated or the so-called worldly- out redeeming social importance and is, wise and sophisticated indifferent and therefore, excluded from protection of the unmoved. First and Fourteenth Amendments? If 'The test in each case is the effect of the publication is to be considered as a book, picture or publication considered as the a whole, not upon any particular class, whole, can illustrations be judged pruri- but upon all those whom it is likely to ent without considering the text? How reach. In other words, you determine its much weight can be given to the manner impact upon the average person in the of sale or to the motives of the seller? community. The books, pictures and cir- Is prurient interest enough to bring a culars must be judged as a whole, in their entire context, and you are not to con- judgment of obscenity, or must the work sider detached or separate portions in be patently offensive as well? Unfortun- reaching a conclusion. You judge the ately, the Supreme Court has not an- circulars, pictures and publications which swered these questions by setting forth have been put in evidence by present- further strong precedents in this area. day standards of the community. You may ask yourselves does it offend the Three cases before the court in 1966 common conscience of the community by show a great division in the court on the present-day standards.' questions raised by Roth. The general criteria varied from the Memoirs v. Massachusetts Hicklin test in several important ways. In Memoirs v. Massachusetts, 383 U.S. Rather than the consideration of specific 413 (1966), the majority held that John portions of the material, the test was now Cleland's novel, Memoirs of a Woman of to view the dominant theme of the whole. Pleasure, commonly known as Fanny Material was to be viewed as to its effect Hill, was not obscene. Six justices con- on the mind of the average member of curred in this decision but based their the community, rather than on that of agreement on 3 separate opinions. Jus- the most susceptible. tices Warren, Brennan and Fortas con- 13 CATHOLIC LAWYER, SPRING 1967 curred in the majority opinion, holding restricted from enacting legislation which that a publication could be judged ob- impedes free expression of any idea, ob- scene only if all 3 elements of the Roth scene or not. They also argue that the test-patent offensiveness to community Fourteenth Amendment makes the pro- standards, dominance of a theme appeal- visions of the First applicable to the ing to the prurient interest and lack of states as well as the federal government, any redeeming social importance-were and therefore both state and federal laws shown to exist in the publication. Fanny banning obscene publications are uncon- Hill might be both patently offensive and stitutional.