New Rules for Obscenity?

By withdrawing from the Curious (Yellow) cases, Justice Douglas avoided involvement in a court-splitting headache. Indeed, the film has already split courts across the country. It has been shown m more than 125 communities without legal challenge; courts from New Jersey to New Mexico have approved it. But other judges, in such places as Boston, Baltimore, Kansas City

Phoenix and Spokane, have banned the movie as obscene.

In the Fanny Hill case (1966), Justice William Brennan, writing for a three-man plurality of the Supreme Court, held that a work is obscene only it meets three criteria simultaneously 1) the dominant theme of the material taken as a whole appeals to prurient interest; 2) the material is patently offensive because it affronts contemporary community standards; and 3) the material is "utterly" without redeeming social value. To what extent do worthy parts redeem the whole? In Curious the explicit sexual adventures of the films heroine, Lena, are only part of her activities; much of the movie is devoted to her episodic exploration of violence, indifference and social inequality in her society.

Immoral and Illicit. More than a year ago, the U.S. Court of Appeals in New York ruled that the film could be imported into the country. Judge Henry Friendly admitted that "a truly pornographic film would not be rescued by inclusion of a few verses from the Psalms." But Friendly found "a connection between the serious purpose and the sexual episodes."

By contrast, the Maryland Court of Appeals ruled Curious obscene on the ground that the unsexy parts "seem a contrived ruse to give the movie social value." Phoenix Superior Court Judge Paul W. La Prade was even more critical. In his December decision banning the film, he insisted that it "has no plot, no economic message and no religious dogma. Its only message is immoral copulation, public fornication and illicit habits."

Private Viewing. The case on which the Supreme Court heard oral arguments this week involves a ban on the mm in Massachusetts; the Maryland ban is waiting in the wings. Although these cases could divide the court, they could also enable it to provide more guidance than the standards set in Fanny Hill Justice Brennan is still on the bench, but Chief Justice Earl Warren and Justice Abe Fortas, who joined him in that opinion, are gone. Douglas, who concurred is now out of the argument, at least for the Massachusetts case. Brennan's only allies are likely to be Justice Potter Stewart who concurred in Fanny on the basis t his own test for hard-core pornography ("I know it when I see it"), and Justice Hugo Black, who, like Douglas argues that the First Amendment prohibits all censorship. Justices John M. Harlan and Byron White have argued that states should be allowed greater latitude in enforcing their own standards of obscenity and Chief Justice Warren Burger agrees. The key votes could be those of Thurgood Marshall, who joined the court after Fanny Hill, and Harry Blackmun who may well be confirmed before the Maryland case is disposed of.

The Massachusetts case is so encrusted with procedural problems that the court could dispose of it without giving states more power to set obscenity rules The court could also adopt reasoning that would give the states less responsibility. In Stanley v. Georgia last year the court ruled that the First Amendment gave an Atlanta man named Stanley the right to view an obscene movie in the privacy of his own home. Extending that decision, a three-judge federal district court m Boston held that adults have a similar right to view whatever they wish in movie theaters. To give them that right, as the federal court saw it, film exhibitors should not be prosecuted if they keep out children, do not use advertising that offends the sensibilities of the general public, and warn adults what they are in for before they pay their money.

Wrote Federal Judge Bailey Aldrich: "If a rich Stanley can view a film in his home, a poorer Stanley should be free to visit a protected theater."

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