On Sex & Obscenity

"Sex." wrote U.S. Supreme Court Justice William J. Brennan, has "indisputably been a subject of absorbing interest to mankind through the ages." But sex and obscenity, he pointed out, are not synonymous--and there has been plenty of disagreement about when the subject of absorbing interest becomes one of prurient*interest. It was in a first major attempt to settle that issue that the Supreme Court, in a split decision, last week upheld U.S. and California criminal obscenity statutes.

Before the court were the combined cases of 1) New York Trashmonger Samuel Roth, convicted (and sentenced to five years in prison and fined $5,000) for violating federal law by mailing obscene circulars and an obscene book (American Aphrodite), and 2) Los Angeles Mail-Order Salesman David Alberts, convicted (and sentenced to 60 days in prison, fined $500 and placed on probation for two years) under a California statute for "lewdly keeping for sale" and advertising indecent books (e.g., Sword of Desire, She Made It Pay). In the Roth case, the major question was whether the U.S. law abridged the First Amendment (freedom of speech and press). In the Alberts case, it was whether the California statute violated the 14th Amendment restriction against any state's depriving any citizen of life, liberty or property without due process of law.

The Literati's Battle. Four Supreme Court Justices (Felix Frankfurter, Harold Burton, Tom Clark and Charles Evans Whittaker) joined Brennan in the majority opinion affirming the convictions. Mail-Order Man Alberts' 14th Amendment claim was tossed out the window in short order. But the majority dealt searchingly with Roth's First Amendment argument. Wrote Brennan: "All ideas having even the slightest redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance . . . We hold that obscenity is not within the area of constitutionally protected speech or press."

Just what is obscenity? The old test, said Brennan, allowed "material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons." That standard was rejected, and the Supreme Court instead approved this test: "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests." Justice Brennan quoted with approval a lower court's charge to the jury: "You and you alone are the exclusive judges of what the common conscience of the community is."

Chief Justice Earl Warren concurred in the result of the majority opinion, but fretted lest Brennan's "broad language" might "eventually be applied to the arts and sciences and freedom of communication generally." Justice William Douglas (joined by Justice Hugo Black) dissented, arguing that the majority test of obscenity made for "community censorship in one of its worst forms. It creates a regime where, in the battle between the literati and the Philistines, the Philistines are certain to win." Wrote Douglas: "I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics or any other field."

Lady Chatterley's Lover. Traveling a middle road was Justice John Marshall Harlan. On the ground that the states "bear direct responsibility for the protection of the local moral fabric" but the U.S. Congress "has no substantive power over sexual morality," he concurred in rejecting Alberts' 14th Amendment plea, but dissented in the First Amendment Roth case. Wrote Harlan: "The danger is perhaps not great if the people of one state, through their legislature, decide that Lady Chatterley's Lover goes so far beyond the acceptable standards of candor that it will be deemed offensive and non-sellable, for the state next door is still free to make its own choice. At least we do not have one uniform standard. But the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the nation on such a book."

Last week the Supreme Court also: York law: "It savors too much of book burning."

July i), the convictions of 14 defendants who had variously been prosecuted as Communists under the Smith Act or found guilty of contempt of Congress or of state antisubversive investigating groups.

-f From the Latin prurire, to itch.

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