To Roast the Pig

Under a state law designed to protect youngsters from printed matter "tending to incite minors to violent or depraved or immoral acts," the Detroit Police Department's censor bureau in the past decade has banned some 250 books, mostly paperbacks, from local bookstores and other outlets. Included, along with a lot of trash, were works by such fictioneers as Ernest Hemingway (Across the River and Into the Trees), John Dos Passes (1919), John O'Hara (Ten North Frederick), James T. Farrell (Studs Lonigan). Last week, in a unanimous decision, the Supreme Court struck down the Michigan law--and, indirectly, similar laws in eleven other states--as a violation of the due-process clause of the 14th Amendment.

In the case under appeal, Alfred E. Butler, Detroit distributor for Pocket Books, Inc., deliberately got himself arrested and fined $100 for selling a police inspector a 50-c- paperback copy of John Howard Griffin's The Devil Rides Outside, an earnest, if second-rate, novel about the sexual torments of a young man trying to attain monkish chastity. The fine was rescinded, however, and both Butler and the cops pushed the test case toward the Supreme Court for an answer. They got it in a pungent opinion written by aging (74) Justice Felix Frankfurter:

"The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women, in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig . . . We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society."

The decision left unquestioned the authority of states (often acting earnestly at the behest of many an anxious parent) to protect youth against pornography as long as the laws do not limit adults to "what is fit for children." Deliberately sidestepped by the court: the general question raised by Appellant Butler, whether it is permissible for a state or local authority to ban a nonpornographic book on the ground that it contains some obscene words or passages.

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