Lead Opinion
This is an appeal from a final decree holding the book, “John Cleland’s Memoirs of a Woman of Pleasure” (Memoirs), more commonly known as “Fanny Hill,” obscene, indecent and impure under G. L. c. 272, §§ 28C, 28E, and 28F (inserted by St. 1945, c. 278, § l).
Memoirs was written in England in 1749. For over two centuries it has had for the most part a surreptitious circulation. Memoirs has, for example, previously been a source of litigation in this Commonwealth (see Commonwealth v. Holmes,
The sole question is whether the publication of Memoirs is protected by the First Amendment to the United States Constitution, as made applicable tо the States by the Fourteenth Amendment. Since a majority of the court held in Roth v. United States,
The book takes the form of two letters written by a prostitute in which she recounts her life since she, a country girl, was abandoned in London. It concentrates on her sexual experiences, both normal and abnormal, which are described in minute detail. Memoirs, as is conceded by the intervener, is erotic. Erotica and obscenity, however, are not synonymous. The fact that Memoirs may arouse sexual thoughts and desires is not, in itself, sufficient to de
The first Supreme Court case to face the obscenity issue squarely was Roth v. United States,
We have no doubt that the dominant theme of Memoirs appeals to prurient interest. The book is composed almost entirely of a series of episodes involving Lesbianism, voyeurism, prostitution, flagellation, sexual orgies, masturbation, fellatio, homosexuality, and defloration, all of which “goes substantially beyond customary'limits of candor in describing or representing such matters.” Am. Law Inst., Model Penal Code, § 251.4 (1) (Proposed Official Draft, May 4, 1962). Sеe Jacobellis v. Ohio,
There is one other possible test which must be considered. The majority opinion in the Roth case went on to say that “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance” (emphasis supplied) Id. at p. 484. While it does not clearly emerge from the opinion whether “soсial importance” is an independent standard, subsequent decisions shed some light on the matter.
In Jacobellis v. Ohio, supra, 191 (opinion of Brennan, J., concurred in by Goldberg, J.), the view was expressed that the constitutional status of material cannot ‘ ‘be made to turn on a ‘weighing’ of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance.” See Tralins v. Gerstein,
The trial judge, after an exhaustive and able discussion of the relevant decisions, ruled that the Attornеy General, to maintain his petition, must meet the following three tests: “First, the ‘prurient interest’ test, which, because of the holding in the ‘Tropic of Cancer’ (
It remains to consider whether the book can be said to be ‘ ‘ uttеrly without social importance. ” We are mindful that there was expert testimony, much of which was strained, to the effect that Memoirs is a structural novel with literary merit; that the book displays a skill in characterization and a gift for comedy; that it plays a part in the history of the development of the English novel; and that it contains a moral, namely, that sex with love is superior to sex in a brothel. But the fact that the testimony may indicate this book has some minimal literary value does not mean it is of any social importance. We do not interpret the “social importance” test as requiring that a book which appeals to prurient interest and is patently offensive must be unquali-fiedly worthless before it can be deemed obscene. Upon a consideration of all the evidence, including the book, we are of opinion that Memoirs is not endowed with constitutional protection.
We have not overlooked the fact that Memoirs was recently held not to be obscene in the constitutional sense by a closely divided court in Larkin v. G. P. Putnam’s Sons, 14 N. Y. 2d 399. But the Superiоr Court of Hew Jersey in a well considered opinion has reached a contrary conclusion with respect to this book in G. P. Putnam’s Sons v.
It follows that the entry must be
Decree affirmed.
Notes
Section 28C reads, in relevant part, “Whenever there is reasonable cause to believe that a book which is being imported, sold, loaned or distributed ... is obscene, indecent or impure, the attorney general . . . shaU bring an information or petition in equity . . . directed against said book by name.” Then follows a provision relating to a “reasonable cause” hearing, notice to
TMs ease, as well as all but the most recent authority, is fully discussed in Attorney Gen. v. “Tropic of Cancer,”
The same definition of “prurient” has been adopted by Am. Law. Inst., Model Penal Code, § 251.4 (1) (Proposed Official Draft, May 4¿ 1962)-.
A fourth criterion, whiсh involves determining whether material is hard core pornography, has been suggested. See Jacobellis v. Ohio, supra, pp. 184, 197 (opinion of Stewart, J.); Attorney Gen. v. “Tropic of Cancer,”
Dissenting Opinion
(dissenting, with whom Spiegel, J., joins) This book cannot be ruled to be “utterly without redeeming social importance.” Roth v. United States,
In the view of one or another or all of the following viz., the chairman of the English department at Williams College, a professor of English at Harvard Collegе, an associate professor of English literature at Boston University, an associate professor of English at Massachusetts Institute of Technology, and an assistant professor of English and American literature at Brandéis University, the book is a minor “work of art” having “literary merit” and “historical value” and containing a good deal of “deliberate, calculаted comedy.” It is a piece of “social history of interest to anyone who is interested in fiction as a way of understanding "society in the past.”
The book, according to its publisher, has been purchased by a considerable number of college libraries including the Harvard and Massachusetts Institute of Technology libraries.
It is not the court’s function to consider whеther to agree or disagree -with the appraisal of the book by academic witnesses. The controlling circumstance is that the work is evaluated by representative scholars and teachers of English literature as a work of some literary and historical significance notwithstanding its patently pornographic aspects. I construe the concept embodied in the term “social importance” as used by the United States Supreme Court to include the literary and historical field. Hence, I believe that the publication of this book is protected by the First Amendment as expounded in the Supreme Court decisions. Larkin v. G. P. Putnam’s Sons, 14 N. Y. 2d 399.
I assume that the book would be offensive to some, perhaps a grеat many, readers. So are numerous other books now published that use four letter words freely, portray sexual encounters explicitly and with a detail of description far beyond anything used by Cleland, and often appear intended to degrade and debase the sexual relationship. A purpose of some such books appears to bе the destruction of concepts deemed basic to the existing social and moral order. If the measure intended by the Both case, supra, were of possible effect on prevailing values, books like “Tropic of Cancer” would, I submit, be banned. But on such a scale “Fanny Hill” appears of slight, if any, weight
Freedom to read, as I construe it, means that such a book as this is to be available to those who wish to read it and that the persisting urge of others to bar its publication is effectively restrained. There is, of course, no obligation uрon any member of the general public to read this book.
One of the witnesses testified in part as follows: ‘ ‘ Gleland is part of what I should call this cultural battle that is going, on in the 18th century, a battle between a restricted Puritan, moralistic ethic that attempts to suppress freedom of the spirit, freedom of the flesh, and this ■ element is competing with a freer attitude towards life, a more generous attitude towards life, a more wholesome attitude towards life, and this very attitude that' is manifested in Fielding’s great novel .‘Tom"Jones’-is also evident in Cleland’s novel.'. . . [Bichardson’s] ‘Pamela’ is the story of a young country girl; [his] ‘Clarissa’ is the story of a woman trapped' in a house of prostitution. Obviously, then, Cleland takes both these themes, the country girl, her initiation into life and into experience, and the story of a woman in a house of prostitution, and what he simply does is to take the. situation and reverse the moral standards. Richardson believed that chastity-was the most important thing in-the world; Cleland and Fielding obviously did not and thought there were more important significant moral values.”;
In. the opinion of the other academic witness, the headmaster of a private school, whose field is English literature, the book is without literary merit and is obscene, impure, hard core pornography, and is patently offensive.
Dissenting Opinion
(dissenting) I disagree with the majority opinion for reasons in part somewhat different from those stated by Mr. Justice Whittemore and Mr. Justice Spiеgel.
The book seems to me offensive and unpleasant in numerous respects. In my opinion, it could reasonably be found that distribution of the book to persons under the age of eighteen would be a violation of G. L. c. 272, § 28,
I would (a) limit the relief granted to a declaration that distribution of this book to persons under the age of eighteen may be found to constitute a violation of c. 272, § 28, if that section is reasonably applied, and (b) expressly declare that, in view of the First Amendment, the book cannot be adjudged “obscene” in the sense in which that term has been used in recent constitutional decisions of the Supreme Court of the United States.
Section 28 (as amended through St. 1959, c. 492, § 1), reads in part as follows: “Whoever sells or . . . publishes for the purpose of selling or distributing, tо a pérson under the age of eighteen years a book . . . which is obscene ... or manifestly tends to corrupt the morals of youth . . . shall be punished by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one half years, or by a fine of not . . . more than five thousand dollars, or by both such fine and imprisonment in jail or the house of correction. In order to obtain a conviction under this section, it shall not be necessary to prove that the book . . . has been adjudged to be obscene . . . under the provisions of” §§ 280 to 28H.
This, as a practical matter, might cause some booksellers to refuse to sell the book to persons recognizable as minors and to be somewhat cautious about its distribution. See Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 84-87. Although no declaration was expressly sought that sale of the book might be a violation of § 28, a determination that the book may not be sold to certain minors is a lesser form of relief which may be reasonably regarded as included in the greater equitable relief asked for under § 28C.