*1 Í89 Comm on wealth v. Dell Publications, Inc.,

Appellant. *2 C. J., Mus- Before 1967. Bell, April 25, Argued JJ. Roberts, O’Brien Eagen, manno, Jones, Albert B. him Ber- with Gerber, é Gerber, Galfand for appellants. ger,

David L. with Assistant District Creskoff, Attorney, him Alan J. Assistant District Rich- Davis, Attorney, ard A. First Sprague, Assistant District Attorney, Arlen Specter, District Attorney, Commonwealth, appellee.

Opinion September Mr. Justice Roberts, 1967:

In response to a complaint filed by equity District Attorney court of Philadelphia County, common pleas of that held a to deter county hearing *3 mine whether the book “Candy” was obscene within the of meaning the Act of June P. L. 1, (1955) 1956, as 1997, September amended, P. L. 18 22, 1961, 1587, P.S. and the First and §3832.11 Fourteenth Amend ments to the Constitution of the United States.2

A hearing the district complaint attorney’s was in held March but the court 1965, below withheld its adjudication disposition the pending by the Supreme Court of the United of States three cases obscenity on appeal then to that Court.3 On June 9, the 1966, 1 1, 1956, (1955) The Act 1997, of June P. L. amended, 18 provides: attorney any county §3832.1 P.S. “The district in any person sells, distributes, any book, magazine, . . . comic book, obscene, may proceedings equity . . . which is institute in in pleas county purpose the court of common of said for the en- sale, preliminary joining injunction may .... A [its] resale issue upon hearing thereafter be held . . . and a the averment of the attorney sale, resale, consignment the distribution district or danger publication peace constitutes to the or of such welfare community.” of the 2 Const., I, Compare §7. Art. Pa. 3 York, 502, ; (1966) 383 U.S. v. New 86 S. Ct. 958 Mishkin States, 463, (1966) Ginzburg ; 383 U.S. 86 S. Ct. v. United Massachusetts, (1966). 383 U.S. 86 S. Ct. 975 Memoirs long because court frustrated obviously below, task,4 its ease awaited did not materially decisions within “Candy” publication found to be an obscene not en hence Act and Pennsylvania meaning Fourteenth protection titled to the of the First Roth v. See United Amendments. Statesy they filed but were (1957). Exceptions Ct. 1304 S. Dell Pub were the court en bane. overruled by defendants and the additional five lishing Company, aof from issuance appealed have action below, distribu permanent injunction enjoining sale tion “Candy” Philadelphia County. be for the stated hereinafter,

We reasons reverse, in erroneously cause conclude court below we set terpreted standards determining and, forth Court of the United Supreme States in from perspective viewed book particular, opinions. with these Our decision in this consistent should be construed case, however, not, any manner, approval “Candy” as an some members —indeed this Court find the book personally to be revolting While disgusting. respect we views those who book believe this is “obscene” we hold it does not fall class “legal obscenity” within the so a free that, its circulation be may society, proh indiscriminately ibited.5 *4 suggested, “respectfully firmly” lias commentator One but trilogy by “the- Court has turned its 1966 the law of Magrath, Obscenity disaster area.” into a constitutional The Roth, 7, Grapes ap- 1966 S. Review Ct. 59. This view Cases: by others, Monaghan, Obscenity,

parently see The shared 1966: Obscenity Obscenity Quod, Marriage Per Per Se Yale 76 Dirty Books, Note, ; (1966) More Ado About 75 Yale L.J. L.J. 127 (1966). 1364 5 again point opinion, Although will be made in this we this case does not an at at the outset involve to stress wish injunction carefully scope of the to a defined tempt limit 70, Robin, juveniles. Commonwealth See v. 421 Pa. as group such

193 upon judiciary The Constitution has thrust obligation acting as a Board of Censors which re case-by-case quires challenged us to consider each on a work approaching s.6 inYet this arduous basi unpleasant task we must be mindful our inherent limitations. For as Mr. reminded Justice has Douglas judges, literary experts “we are us, or historians philosophers. competent or We are not to render an independent judgment any as to the of this or worth except other capacity private book, our citi zens. ... If censorship, there is to be wisdom experts on literary such matters as merit and his significance torical must be evaluated . . . con [and a irrespective clusion reached] of whether we would in challenged clude [the in our work] own libraries.”7 necessity approach such an was articulated Judge opinion Moore of the Second Circuit in an hold ing, largely expert on the testimony, basis of de that, spite his obvious Film adverse reaction, the Swedish “491” constitutionally was not [Judge obscene:8 “I personally repulsive found F‘49 and revolt Moore] ing. . . . Were I to be vested powers, with dictatorial I destroy would ban and (in my opinion) trash which infests the news kiosks and the movie theatres certain City. areas of New York I would do all this 72, 540, (1966) (concurring 218 A. 2d 547 opinion) ; cf. Act of August 14, 1963, 829, P. L. (Supp. 18 1966) §3831 P.S. ; Memoirs Massachusetts, n.8, v. 383 at 421 U.S. 86 S. Ct. at 978 n.8. See Redrup York, 767, v. also New 386 U.S. (1967). 87 S. Ct. 1414 6 See, e.g., Massachusetts, supra v. 3; Memoirs note Jacobellis Ohio, 184, (1964) ; v. 378 U.S. 84 S. Ct. Enterprises, 1676 Manual Day, 478, 488, 1432, (1962). Inc. v. 82 370 U.S. S. Ct. 1437 Massachusetts, 427, v. Memoirs 383 U.S. at 86 S. Ct. at 981-82 opinion). (concurring California, 147, also See Smith 215, 222, (1959) (Frankfurter 169, Harlan, 80 S. Ct. & concurring). JJ., v. One Carton Positive States Motion Picture Film United (2d 1966). "491”, F. 2d 897 n.3 Cir. Entitled

194 Bene- aas acting I that was belief vainglorious the the But Mankind. of all for the good ficent Tyrant suffi- than more thoughts utterance of these very ex- except censorship from away reason to shy cient probably should we survive, If are to treme cases. we include should theory on the Darwinian survive stage books, with our current cope the ability cinema.” com both the however,

In the instant litigation, adju formal and the hearing made during ments proceeded hearing judge that dication indicate sub his own in the final analysis, the premise that, determining in and was by itself, jective reaction, of stands obscenity As the law now factor.9 relevant of course subjective analysis is judge’s 10 robes judicial donning ultimate but the mere issue, per “average not the embodiment of the does make us parallel those necessarily son” nor do our tastes “contemporary community.” subjective approach adopted by

The totally suppression “The palpable was error. court below expression judgment by an requires only book Judges, in the the court that it is so view bad, decency community it is offensive standards has laid them but also Legislature down, as the has bad that the constitutional freedom to print is so of what the book contains. The his been lost because of our and tradition institutions stand against tory Larkin of books.” v. Putnam’s suppression P.G. 2d 200 N.E. 14 N.Y. 2d 761 399, 401, (1964). Sons, finding fact is an essential Constitutional element case11 because “all obscenity ideas even any having 71a, e.g., 51a, 159a, 257a, Record, 267a, 382a. See Douglas Black, of Justices the views and Stewart But see supra note 3. cited cases in the relationship finding of constitutional fact law definitively forth in set Mr. Justice Br'ennan’s Ohio, supra, note 6. ellis Jacob opinion in redeeming importance slightest social —unortho *6 dox hateful controversial even ideas ideas, ideas, pro opinion prevailing full climate —have guaranties, tection of excluda [constitutional] unless they upon more ble because encroach the limited area of important Roth v. States, interests.” United (1957). 77 Roth 476, S. Ct. 1309 1304, But, “implicit history Court First in continued, rejection utterly obscenity Amendment is the importance.” redeeming without social Thus Ibid. the determination that a book is with obscene carries speech it the conclusion that the book is not within meaning of the First Amendment. quoted log the last from Roth is

However, sentence ically interpreted circular and can be in two either of ways. On the one can Jus hand, one as do conclude, obscenity by tices Clark definition White,12 redeeming importance. has no social On other hand, Justice believes that a work has Brennan importance by even a minimum of social definition a view shared obscene, Chief Justice Warren and Justice Fortas.13 Since Justices Black, Douglas approach and Stewart believe that the Brennan accept analysis too we must restrictive, the Brennan respect obscenity as “settled law” with vel non, agree least until five members of the Court newa simple definition. This is because arithmetic shows along that the votes of the “Brennan block” with that of “Black-Douglas-Stewart axis” of neces will, sity, finding result that the work, the absence pandering,14 protection.15 is entitled to constitutional 12 Massachusetts, supra v. (dissenting opin See Memoirs note S ions). 13 Massachusetts, supra v. Memoirs See note 3. 14 Ginzburg States, supra 3; v. United See note cf. Mishkin v. supra York, note 3. New believes that Mr. different Justice Harlan standards should obscenity opinions apply and state cases. in federal See his Mr. analysis Justice Brennan’s impact fact constitutional determining

means that vel non the evidence must be viewed read we book’s circulation. light favorable As approach his in Roth other opinions Memoirs, any with provide would not first amendment freedoms space to survive.” NAACP necessary “breathing (1963). Button, U.S. 83 S. Ct. 415, 433, The Marriage 1966: Compare, Monaghan, Obscenity, Yale Per Per 76- Se and Obscenity Obscenity Quod, L.J. 127, (1966). 150-55 in' before presented the evidence

Finally, turning the instant neither should be out that case, pointed *7 v. United Ginzburg Ct. 942 States, 383 U.S. 86 S. 463, nor Mishkin v. New 383 U.S. 86 S. (1966), York, 502, Ct. 958 is, decided the (1966), day Memoirs, same as as the court below at relevant to the case recognized, In bar. Ginzburg a the majority adopted the Court approach variable had been obscenity16 long which advocated Mr. Chief Justice Warren.17 The Court Massachusetts, 455, Memoirs v. 383 U.S. at 86 at S. Ct 996 476, States, 496, 1304, Roth v. United 354 U.S. 77 1315 S. Ct. (1957). 16 exposition obscenity & For full of variable Lockhart a see Obscenity Censorship: McClure, The Core Constitutional Issue— (1961) Obscene?, ; Mc- L. Rev. Lockhart & 7 289 What is Utah Obscenity: Censorship Developing Clure, The Constitutional The (1960). Standards, L. Rev. 5 Minn. 45 17 trial; person. The that is on is the book “it is obscenity issue, not the the is central of the defendant conduct course, is, picture. nature of materials or of a book conduct, ma defendant’s but attribute an as relevant they color placed from which draw in context are thus terials might wholly dif be result reached different A character. 476, 495, States, Ct. 77 354 U.S. S. United setting.” v. Roth ferent Ginzburg X, concurring). (1957) C. (Wabben, 1304, See. 1314-15 942, (1966). 474-76, 463, States, 86 Ct. 949-50 S. U.S. 383 v. United Brown, 445, 436, S. Books, v. 354 U.S. 77 Inc. Kingsley also See dissenting). X, ( (1957) Wabben, C. 1325, 1330 Ct.

197 proceeded on assumption materials question were not themselves obscene it all but (indeed conceded this but held method point) Ginzburg’s of “pandering” his wares made In them obscene. Mishkin the defendant’s rather than the ma conduct, terials was also the themselves, focus the Court’s concern. Moreover, Mishkin’s sole contention regard ing nature of books his was not their vel non but rather whether prurient appeal work was to be judged terms of its effect on the average person or tois be assessed in terms of its ef fect members the “intended probable recipient group.”18

No evidence whatsoever presented was pro ceedings below concerning the conduct of the present appellants. The procedural posture of this case identical with that of for in Memoirs, both instances it was the book which was on trial.19 In his opening 18 York, 502, 509, Mishkin v. New 383 U.S. 86 S. Ct. 964 (1966). “Candy’s” community-at-large audience was the rather than deviate sector in Mishkin. -vye recognize litigation of course that the instant in- was against “Candy’s” publisher stituted However, and distributor. upon clearly focus of whole §3832.1 P.S. the book itself and it book, publisher distributor, was the not the or trial. was on Kingsley Books, Brown, Cf. Inc. S. Ct. *8 (1957). introduced which No evidence was below even alluded to any suggestion any any there issue. was that the other Nor business with “the leer of went about their the sensual- defendants remotely by any similar to those made statements made ist” or Ginzburg proved in which so decisive their Mishkin defendants appeals. respective attempt “Candy” bring its brief does in Commonwealth The pandering arguments Ginzburg-Mishlevn but rationale its the within suggests ap that point the absurd. First it the on border this “Candy” pandering guilty because was also sold were pellants Ginzburg emphatically The itself Court paperback edition. in a 474-75, pandering, profit equation with 383 U.S. at rejected the York, Redrup 767, v. New 87 S. See also at 949. Ct. 86 S. opinion, Mr. Justice in Memows sentence emphasized Brennan importance made difference this the crucial pointedly case “This is an said: when he adjudged in a [“Fanny obscene was Hill”] in which put proceeding itself, the book on trial that publisher S. 383 IT.S. at or distributor.” its necessarily it does not And in Memoirs, Ct. at 975. as holding determina- “that a in case from our follow [“Candy”] in the constitutional is obscene tion that improper all see circumstances,” under sense would be id. at 86 S. Ct. at 978.

Candy Roth-Memoirs Test and the “Candy” description purpose lengthy For our plot unnecessary. to note that It is sufficient exclusively abnor- the normal and is devoted almost named mal a coed sexual adventures of its heroine, Candy de- are and that these adventures Christian, Every in detail. one of its scribed considerable chapters particular incident centers around a sexual generally It heroine’s life. conceded, least book’s friends and that it is satire or at foes, attempt upon con- an satire the cultural our ideals of society. temporary

Roth, following obscenity defines which terms, incidentally given are identical with the definition paperback (1967) (involving publications). Secondly, the Ct. 1414 may argues pandering one Commonwealth be found because “Candy” in a witnesses advertised defense brochure “blatantly purchase at an aimed audience solicited was prurient appeal only.” interest man for their books various witness, however, question, not a defendant and it was was any any way suggested were re- defendants never Moreover, although advertisement. this brochure sponsible “Candy” legitimately clas- other books which are advertise did contained also advertisements for such literature erotic as sified Dictionary” Everyday and Thoreau’s “American books “Walden.”

199 ap- 18 P.S. to the average person, §3833: “[WJhether domi- plying contemporary community standards, nant theme of appeals the material taken as a whole to prurient interest.” 354 S. Ct. U.S. 77 476, 489, 1304, 1311 (1957). “Under this as elaborated definition, subsequent cases, three elements coalesce: it must must be established that the dominant theme of the (a) material taken inter- appeals prurient as whole to a in sex; est (b) material offensive be- patently cause it affronts contemporary community standards relating description representation or of sexual matters; and (c) the material without re- utterly deeming social value.” Memoirs v. 383 Massachusetts, U.S. 413, 86 S. Ct. 418, J.). 977 975, (1966) (Bkennan, in mind Keeping must meet each of the “Candy” above mentioned tests before it can be declared legally we shall obscene, consider the evidence ad- separately duced below each of the three elements.

A. Appeal to Prurient Interest: This is perhaps the most difficult of the three elements to what define; appeals the prurient interest of one individual may appeal to the prurient interest of another.20 Some may pose problem cases of group it definition,21 but is conceded that “Candy’s” appeal is to the commu nity large and thus we must prurient judge its ap peal person.” “average

Unfortunately, there was no practically testimony offered concerning “Candy’s” appeal prurient to the in terest the average adult citizen.22 Most of the Com- 20 See, e.g., Douglas dissenting opinions Black, of Justices Ginzburg States, 463, and Stewart v. United Ct. 86 S. (1966). 942 21 E.g., York, (1966) v. Mishkin New U.S. Ct. 958 383 86 S. : Enterprises, Day, Manual Inc. cf. Ct 1432 U.S. S. (1962). appeal judged ordi- “Predominant shall be with reference nary appears or character the material adults from the unless *10 himself, judge well as witnesses,

mon wealth’s ef- adverse book’s with the concerned primarily were unstable emotionally on and children, teenagers, fect by conceded is point generally which individuals, the Common- time At the some the defense. same prurient book’s witnesses conceded wealth’s de be adult would mature appeal emotionally to minimis most. ago Judge

Over half a century Hand Learned obscenity, test of out then spoke against prevailing derived from Regina v. Hicklin, ^[1868] 3 Q.B. 360, most a work in terms of its effect on judged leash susceptible “To recipient put thought group: tolera perhaps to the conscience of time is average of the lowest but to fetter the necessities ble, by v. seems a fatal United States capable least policy.” 121 1913). 209 Fed. Kennerley, (S.D.N.Y. 119, Su HiekUn has been rejected test subsequently advo- preme Court United States and the one Roth by Judge cated substituted therefor. See Hand States, (1957); United 354 77 Ct. 1304 476, U.S. S. (1964); Jacobellis v. 378 Ct. Ohio, 184, U.S. 84 S. 1676 Smith v. Ct. California, 361 U.S. 80 S. 160, 147, 169, 222, (1959) JJ., 227 215, (Frankfurter Harlan, This may does not mean that concurring). society ob- prevent drawn statutes from by carefully juveniles literature which on taining may have an adverse effect Commonwealth v. 421 them. See Robin, Pa. 70, 72, A. (1966) 218 2d 547 cf. 546, (concurring opinion); v. New Redrup York, 386 87 1414 U.S. S. Ct. 767, to But (1967). destroy solely literature because on possible its effect “reduce children, thus designed its dissemination to be the circumstances children susceptible Code, specially audience.” A.L.I. other Model Penal or 1962). 476, States, §251.4(1) (O.D. Roth v. See United 1304, (1957). n.20, Ct. 1310 n.20 77 S. 487

201 the adult fit population ... only what reading for children,” as Mr. Justice Frankfurter surely, “to observed, burn the See pig.” house roast Butler v. Ct. Michigan, 383, 524, U.S. S. 380, 526 (1957), holding that could not constitu- Michigan prevent tionally any circulation book be- merely of a cause of its potential influence deleterious on youth. Cf. Ginzburg v. United States, n.3, U.S. 86 S. Ct. 944 n.3 in the absence (1966). Thus, attempt any prohibit “Candy’s” children, sales testimony its concerning largely effect children was *11 irrelevant. we

Nevertheless, shall assume that the Common- wealth has shown adequately “the dominant theme . . . taken in- appeals as a whole a prurient terest in sex.” This area is one sub- where judge’s jective reaction is most relevant; hearing judge, the court en banc and the below, members of this Court agree that requisite has the “Candy” prurient appeal.

B. Contemporary Standards: Before Community finding can legal obscenity be sustained the evi dence must show “the material offen is patently sive because it affronts stand contemporary community ards relating description or representation of sex ual matters.” Memoirs v. at Massachusetts, 383 U.S. 86 S. Ct. at 977 418, (1966); see Commonwealth v. 209 Pa. Baer, Ct. Superior 227 A. 2d 915 349, (1967); Manual cf. Enterprises, Inc. v. 370 U.S. 82 Day, 478, 1432 S. Ct. (1962) debate J.). Most (Harlan, over term “contemporary community standards” has centered around the question whether the rele vant is be defined in community terms of the na or tion-at-large some smaller sector. Compare Jaco bellis v. 378 U.S. 84 Ohio, 184, S. Ct. (1964) 1676 J.) with id. S. Ct. at 1684 (Brennan, (War- the instant since dissenting).23 However, C. J., ken, na one Philadelphia County, case arose out of more the resolution sophisticated tion’s areas, Cf. Com disposition. debate to our is essential A. 2d at v. at 353 Baer, supra n.3, monwealth n.3. which aspect obscenity litigation

One that contem Supreme Court to be unanimous is seems by be judged standards are to porary community by of the current rather than year standards See Jaco or 100 ago.24 standards 5, 10, 50, years Ohio, supra; bellis v. Smith California, 227 (1959) 80 S. Ct. 160, 169, 215, 222, (Frankfurter test This also concurring). JJ. Harlan, Code Penal of The American Institute Model Law the Court approval which has been cited with Common Both and cases. Indeed the subsequent hundred devotes than one brief, wealth’s which less prob community words to the standards contemporary lem, point. conceded this contemporary

There are two yardsticks by com- standards be One community may judged. have pare the book to other books which challenged either been held to the First protection entitled *12 in the which meet Amendment absence or, litigation, standards and are similar contemporary substantially book. The other is to consider challenged the book reception received from the when community 23 Doug- Supreme Court, Blaoic, Four members Justices clearly they Stewart, have stated that believe Brennan las. community nation. votes of is the Justices White the relevant 1967, cases decided June discussed Fortas adopted imply they infra, view. that too have seem classics, 24 books, which are now considered number A vast Judge See, e.g., list Common time banned. Bok’s were one 101, (1949). Gordon, D. & 115-17 Pa. C. v. 66 wealth

203 it was released.25 Regardless personal our own under views, either undisputed test, evidence clear ly demonstrates the court below erred when concluded that went “Candy” far beyond customary limits of candor.26

The Commonwealth presented practically no evi dence whatsoever concerning relationship to “Candy’s” contemporary community standards.27 While its witn esses28 testified that in their personal view “Candy” far exceeded customary limits of admitted they candor, being totally unfamiliar with fiction. contemporary Two of the witnesses had indeed read “Tropic Can but cer,” despite a clear Supreme Court holding to the contrary29 they continued to believe the book ought be banned. While we respect these personal opinions, it does indicate their views of contemporary 25 yardstick This second will not be available in all instances. See, e.g., constitutionally books held to be not obscene Redrup York, v. 767, Now (1967) 386 U.S. 87 S. Ct. 1414 and its progeny discussed infra. Baer, See also Commonwealth v. Pa. 209 Superior 349, (1967). Ct. 227 A. 2d 915 26Compare United States v. One Carton Positive Motion Pic “491”, 889, ture (2d 1966) ; Film Entitled 2d 367 F. 896-98 Cir. Baer, supra Commonwealth v. note 25. 27 cross-examination, ‘'Under [Commonwealth’s] most of they outpouring witnesses admitted had read little of the modern compare novels, ‘Candy’ not able of erotic and hence were with general Opinion contemporary of its kind.” other works hearing judge, p. Record 380a. 28 Kane, witnesses, called as its Dr. J. John The Commonwealth Larkin, Sociology Dame, at Notre Rev. Paul G. a Professor English App, priest, Dr. Austin J. a Professor of Roman Catholic minister, Merbreier, College, a Lutheran W. Rev. Carter at LaSalle anti-pornography group, O’Donnell, of a small the head J. James problem psychologist, who with Ryan, dealt a court R. Frank children. Gerstein, Press, 84 S. Ct. 1909 v. Inc. Grove Robin, A. 2d Pa. ; Commonwealth (1964) see (1966).

204 Supreme standards' differ from those of the markedly 0 Court.3 n -1 On the - showed the defense witnesses31 contrary, lit contemporary with erotic familiarity considerable have erature. They might testified that while “Candy” 1960’s early exceeded of in the limits candor customary it In did not in 1964. published exceed them when books, comparing other obscene “Candy” allegedly one com witness it tale” when “fairy described as a and pared Lunch” with William “Naked Borroughs’ superior “Fanny another found it to be a far book to Hill”. he pornographic described as “purely sub junk.’,’ Both these concluded books, litigation sequent to this be have been held testimony, obscene.32 legally country When published was first “Candy”

.. pe- was reviewed in newspapers over hundred de- many of which were introduced riodicals, by fense in the of proceedings below. While these many panned reviews the book and some showed utter distaste for almost without it, they it as exception, recognized Lunch", Ct. heimer, U.S. pendix B) English Professor Redrup Stuart, the Ohio Court scription Court Coast (“Eanny (1965), 2095 31 ^[30] 453, Memoirs News For of a New aff’d 7 v. New literature (1967) of Appeals Hill”) 87 S. Professor rev’d illustrative defense Mass. Co., English York Ohio sub ; York and its Ct. 2105 book, 357 Massachusetts, Attorney at Columbia Appeals witnesses nom; publisher, St. at F. 2d “Sex Life of 218 N.E. Sociology 2d description Aday (1967). Sixth 136, comparison General 855, University consisted State v. progeny Dr. Albert v. University, 2d 571 218 N.E. Circuit 857-58 United See H’averford A U.S. v. A. Book Mazes, infra. generally Cop,” by (1966). purposes States, (1966) 2d Goldman, Dr. Morse Pennsylvania, Mr. and Dr. United States v. West book, “Orgy 725 209 College. (reprinted the discussion S. Ct. 975 see, e.g., (1966), N.E. 2d Named Martin a Professor United Peckham, 447, Club,” rev’d 496, “Naked Oppen- (1966) States 87 Lyle Ap 388 498 de S. *14 attempt again a serious and almost without satire, exception, Typical pornography. concluded it was not published of these reviews were those in mass media the magazines of “Life,” and ex “Time,” “Newsweek,” cerpts reprinted Appendix of which we have in A.33 relatively following In within a addition, time short publication “Candy” its sold over half mil two and a copies lion appeared in the hard cover edition and the New York Times dur Best Seller List for 35 weeks; ing period Philadelphia department this sales stores popularity. reflected during the book’s For two weeks September 1964 it was the number two best seller the nation. Since if not most, the books all, dis part cussed in the opinion, last of this which have legally been held be are never reviewed obscene, approach and never “Candy’s” category, the best seller reception by press public the highly American significant. Redeeming Importance:

C. Following Social the “Fanny conclusion of the litigation, Hill” in which the Supreme Judicial Court of Massachusetts was reversed by Supreme the Court of the United the Mas- States, sachusetts Court had occasion to consider the Borroughs’ vel non of William “Naked Lunch.” Al- though “grossly the Court the book was offensive” and was “what says, the author himself obscene ‘brutal, ” disgusting,’ per it nevertheless held in a curiam opinion protected that the book by was the First Amendment: “As to any whether the book has redeem- ing social many the record value, contains reviews and literary publications articles and other discussing magazines While we do not consider these arbiters contemporary community standards, certainly not the standards communities, avant-garde they probably average reflect any community tangible mores as well as other standard. Nor are magazines equated to be views of these with what constitutes importance. redeeming social hal- book seriously controversial portraying it appears lucinations of a addict. Thus drug be- community substantial and group intelligent Al- book literary significance. lieves the to be some con- others opinions we are not bound though accept- ignore we serious cerning cannot book, commu- literary ance of it in the by many persons so has Lunch’ ‘Naked nity. say we cannot Hence, no the hands those ‘redeeming importance social that value.’ it on basis of who or distribute publish at p. Ct. See the Memoirs case at S. *15 p. 979].” [86 Lunch”, v. A Book General Named “Naked Attorney (1966). 351 Mass. N.E. 2d 571-72 218 298, 299, con under From what has been said in the section be evident should temporary community standards of modicum that a minimum or “Candy” has at least evi that absent value, social which is all is required, protec of with the dence to shield a book pandering, ' tion Justice of First Amendment. Mr. For, as Ct. U.S. 86 S. stated 383 Memoirs, 419, 'Brennan “A be at 978 : book cannot (emphasis original) re proscribed it' without is found to be utterly unless though so even social value. This is deeming prurient appeal book found to possess requisite is of the three federal to be offensive. Each patently independently; to be applied constitutional criteria is book be weighed value of the can neither social prurient or patent nor its by appeal canceled against- offensiveness.”34

n In of own several the Commonwealth’s addition, indicates that testimony “Candy” has a. witnesses’ of value, although social felt they “modicum” 34 Arnebergh, 901, 920, v. Cal. 2d Zeitlin 59 Cal. also 31 See (1963) People 152, ; Bruce, 813, 800, Rptr. 2d 165 v. P. 31 Ill. 383 497, (1964) ; Distributing 461, 459, 2d 498 Trans-Lux N.E. 202 2d Censors, 98, 104-05, Maryland Md. Corp. Bd. 213 A. 2d v. of (1965). 235, 238-39 value far outweighed the book’s decadence that its impact is destructive rather than construc tive. One witness, “Candy” conceded that example, was “reputed spoof on sex” and admitted many emotionally mature “average adults, although person” would so view it. Another witness stated “Candy’s” authors “intended to portray a philosophy life” which sex was glorified as “a way life, standard that should be living embraced dis by all, regard for any discipline whatsoever.” A third [sic] who felt “sex is dynamite” and “not play something with or joke about” viewed the book as “slander against proper Yet authority.” the essence of the First Amendment protection of free ideas advocacy —“unorthodox ideas, controversial even ideas ideas, hateful to the climate prevailing Roth v. opinion,” United States, 354 U.S. 476, 484, 77 S. Ct.

(1957) a book not be may banned because simply — and it is ideologically obscene.35 See Kingsley Internation al Pictures Corp. Regents the State University New York, 360 U.S. 79 S. Ct. 1362 (1959).36 example, suggest Por no one would that books like Marx’s Manifesto”, Kampf”, *16 “Communist Tse-tung’s Hitler’s “Mein or Mao “Quotations from constitutionally the Red Book” could be banned they though very even society seek to undermine the essence of our Robin, 70, 90, 546, But cf. Commonwealth 421 Pa. 218 A. 2d 555- J., dissenting). (1966) 56 (Musmaetno, 36Although Kingsley picture admittedly involved a motion not obscene, speaking Court, pertinently Mr. Justice for the Stewart, 688-89, observed, at Ct. at “It 79 S. 1365: is contended justified picture was because the motion at that action the State’s contrary portrays relationshij) tractively which to the moral a is legal citizenry. religious precepts, standards, of and code its pro it argument is that the Constitution what misconceives This expression guarantee of that to the ideas not confined is tects. Its advocacy protects majority. by a It or shared conventional are may proper, adultery no less be opinion sometimes that of the single advocacy realm tax. And or the of socialism than eloquent expression no less than that which protects it ideas unconvincing.” which 208

Tbe saved “modicum” of social which importance Hill” “Fanny expert testimony, was that: “there was much of was Memoirs to the effect that strained, is a book structural novel merit; with that literary for displays skill characterization gift and a that de comedy; plays a in the part history velopment of the that it contains English and novel; sex moral, namely, superior with love is sex in a brothel.” Attorney v. A Book named “John General Cleland’s Memoirs a Woman Pleasure,” Mass. 206 N.E. 69, quoted 2d 403, (1965), Memoirs v. at Ct. at Massachusetts, U.S. 86 S. 977-78. The expert in the instant went testimony case at. least as far.37 Indeed the trial court’s evalua own tion of the testimony offered at the proceeding below this, quote To trial demonstrate all we need do is from the judge’s summarization of the two addressed defense witnesses who D., pro- themselves to book’s value: “A Ph. social Princeton University Pennsylvania, English it ‘a called fessor of very though, conceded, good It one. not a work he literature’ — problem, he moral emotional was concerned with- serious be upheld of the satisfaction in our culture said—the idea brought others, into giving which the book oneself to found ‘Fanny funny. reasonably Hill’ question. He considered It was ‘Candy’ not, he declared.” outright pornography, if was so be p. hearing judge, 380a. Record Opinion of the University tes- English professor literature at Columbia “A great book, important ‘Candy’ but an that he considered tified presenting a new satire but of Roman tradition significant, in the said, on attack importance, bitter as a he technique. social had It hypocritical idea in the false goodness’ inherent ‘specious pure, stereotype of woman as girl’ Dream ‘American —the everyone’s but welfare wholesome, and devoted beautiful, sweet sexu- said, to arouse scenes, not written he were sex own. her caricatures. improprieties rather but to advocate or desires al young might some however, stimulate book concede, didHe ‘Candy’ might he believed Nevertheless improper acts. people to reading college course in a likely recommended very be review the book also 381a. See Id. at fiction.” comic *17 modern A. Appendix excerpts is the the court did adhére best evidence that approach the standards or outlined above: “Summed in the comprises up, Commonwealth’s testimony main personal merely of with judgments witnesses, dash of literature, measurement against contemporary testi ‘Candy’ book’; is a while defense ‘dirty book mony is rather of the more erudite assessment as a possessed satire Under importance. social piece law as we do not regard we together, however, testimony binding witnesses either way (cid:127)the Court. The testify assessment a book those is ing guide and an aid to or less more Court, and persuasive valuable and apparent knowledge as the stature the individual judge witness merits. The not be may motivated his solely by personal predilec tions but must strive possible as far as to be objective. Yet in his final cannot wrestling put with his soul he aside entirely his subjective must determination. He read book into himself, take account the views and witnesses the reviews of critics and the arguments counsel, then up ultimately come with his own reaction to Despite his reading. impressive testi mony defense witnesses, despite the prodigious diligence the defense counsel prece marshaling dents and our arguments, conclusion is definitely unequivocally that ‘Candy’ It legally obscene.” thus evident the court below considered only first of three sine qua non elements set forth in Mem oirs.

Obscenity Litigation During October

1966 Term One constant aspect of obscenity litigation in the Supreme Court of the United States during past decade seems be that action speaks louder than words. Thus the convictions of Messrs. Mishkin

210 did they wbat more because upheld were Ginzburg al Moreover, they published. than because of what aon to agree Court has yet of the though majority summary their for determining obscenity, test precise just the term during of a number of cases reversal ultra-prag the completed provide guide does some Sig in this area. Court is taking the approach matic work find published the yet Court has nificantly, obscene se.38 per 1966 the fanfare its

On without May 8, 1967, curiam per the Court handed a cryptic down trilogy, Redrup opinion cases, of three consolidated disposing may Ct. New 87 S. York, 1414, prove obscenity to be the of its yet significant most those of this opinions. impact along with opinion, of the Term, cases decided on the last summarily day comes to a of the holding as close the that, eyes present “Candy” constitutionally is not se Court, per on the possible obscene as is ruling without direct bock Although itself. the Court had granted originally review to consider Redrup problems up- scienter assumption on the that the materials involved were obscene the constitutional it sense, decided dis- pose the the upon case not ground they that were companion case, California, In Roth and its Alberts v. the proceeded by assumption, challenged on Court not the defend- ants, properly involved ob- that materials were classified as only being obscenity protected scenity, whether was issue n.8, at Amendment. 354 U.S. at 481 77 S. Ct. First assumption Ginsbura, proceeded In the Court n.8. constitutionally per obscene se but were not involved materials Finally, Mishkin, made them so. conduct defendant’s opinion af- only has written an where the Court other case evidently conviction, chal- did not firming Mishkin an findings material consisted that his lenge York Court’s the New question appeal to the pornography, limited his but hard-core prurient appealed interest of the the material of whether at 963. 86 S. Ct. person. U.S. average See obscene under Amendments.39 the First and Fourteenth split The Court noted concern badly that while was seven precise definition of ing each obscenity, justices who reached the merits40 that under agreed le their approaches individual the materials were obscene. Red gally Involved the cases decided by rwp were two “Lust Pool” and “Shame paperbacks, and ten so-called such Agent”, “girlie” magazines *19 “High Heels”, “Swank.” “Gent”,

Redrup seems to final abandon the Court’s signify ment of its futile search for obscenity a definition of vel non. For instead of significantly, attempting determine what constituted the Court ap obscenity, proached the in problem circumstances terms those under which the publication unobjection otherwise able material be 87 might constitutionally restricted, S. Ct. “In at 1415: none the cases was claim there a in statute question specific reflected a limited state concern for juveniles. Com See Prince v. monwealth of 321 Massachusetts, U.S. 64 S. Ct. 158, 88 L. Ed. 438, cf. Butler 645; v. State of 352 Michigan, U.S. 77 S. Ct. 1 L. 380, Ed. 2d 412. In 524, none was there any suggestion an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. City 341 Alexandria, U.S, 71 Ct. S. 95 L. Ed. 622, 920, 1233; Public Utili ties Comm’n of District of Columbia v. 343 Pollak, U.S. 72 Ct. 451, S. 96 L. Ed. 813, 1068. in And none was there evidence of the sort of ‘pandering’ 39 Douglas Black, granted Justices and Stewart would have any Arkansas, review without such limitation. See Gent v. 384 U.S. 937, 1454; Redrup York, 916, S. Ct. v. New 384 86 U.S. Ct. 86 S. (1966). 1362 40 objected and Harlan Justices Clark the Court’s decision grounds specifically dispose on of the cases from re- excluded view. States,

Court v. United significant Ginzburg found Ct. L. Ed. 2d 31.” 942, 86 S. none As has in this opinion, been indicated already of the in Redrup present three situations described are in the case to ob importance at bar. Redrup case scenity litigation and to instant general, in. particular., demonstrated eleven decisions amply by handed down the Court on last day In June 1967.41 Term, granted each case the Court certiorari con summarily reversed an obscenity viction Redrup as In other citing authority.42 its sole words, none of the litiga materials involved these tions was, the Court’s constitu obscene view, tional sense. Thus en Redrup Court suggests banc and each of the adopted individual judges have “I an know it I when see it”43 test for Nev obscenity. ertheless, at the glance pro of books to be type held tected Redrup’s aegis under demonstrates clearly divergence between the Supreme Court’s utilization non-Redrup Two other cases were reversed *20 Publications, grounds, Wesberry, 418, Cornith Inc. v. 87 388 U.S. (1967) Virginia, 450, and Rosenbloom v. S. Ct. 2096 87 388 U.S. 2095, appeals moot, and two were Jacobs v. S. Ct. dismissed York, 431, 2098, New 388 87 S. Ct. and Tannenbaum v. New U.S. York, 439, 87 388 U.S. S. Ct. 2107. 42 ; (1967) California, 454, 87 S. Schackman v. 388 U.S. Ct. 2107 (books); Books, 453, Ohio, Inc. v. 87 Ct. 2105 Mazes 388 U.S. S. reversing 449, (books; States, 87 2098 v. 388 U.S. S. Ct. United 447, States, ; Aday Cir.) Ct. 2095 388 U.S. 87 S. v. United 1st 446, York, Cir.) ; reversing U.S. v. New 388 (books; Avansino 6th 444, York, Sheperd ; 87 S. (books) 388 v. New U.S. Ct. 2093 87 S. York, 443, 2092 S. Ct. (books); U.S. 87 v. New 388 Cobert 2093 Ct. 442, California, 2092 Ct. ; U.S. 87 S. 388 (movies) v. Ratner 441, York, Ct. 2091 87 S. 388 U.S. ; v. New (movies) Friedman ; (books) 440, York, Ct. 87 S. 2091 388 U.S. Keney (books); v. New (books). 452, Kansas, 87 S. 2104 Ct. 388 U.S. Quantity v. Books A of 1676, 197, 184, 43 1683 Ohio, S. 84 Ct. 378 U.S. Jacobellis J.). (Stewart, (1964)

213 in tbe court subjective and that analysis indulged below.44

Because of the on the opinion wide difference of Supreme perhaps to obtain a sense Court, only way for the Court’s attitude Court is to consider qua views of each Justice. A breakdown of individual individual re votes in the eleven related cases Redrup veals the Douglas Justices following: Black, in predictably instance, voted to reverse each Stewart but so did Justices White Justice Fortas. Bren nan voted to reverse the convictions in seven cases, affirm two (both cases movies) giv without involving ing any and to reason, affirm one the authority case on of Ginzburg to vacate and remand one case on authority Memoirs. Chief Justice Warren voted reverse two cases, to affirm in in (both two cases volving movies) without giving any to affirm reason, two on cases authority Mishhin and on the one authority Ginzburg, vacate and remand one case light and to Memoirs, set down three cases oral argument. Justice Clark45 voted to reverse two to affirm in cases, five cases without his giving reasons, affirm two cases on the authority Mish- 44 (June 13, summary 1967) See 35 Law Week 3430-31 for a supra. issues raised the cases cited notes 41 and Ex 42 amples paperbacks held not to be obscene in constitu Job”, “Orgy Club”, Cop”, tional sense are: A “Lust “Sex Life of Priestess”, especially descrip and “Sin See “Passion Warden.” Cop” A States v. Coast Life of United West News tion of “Sex (6th 1966), nom, Aday Co., rev’d sub F. 2d 857-58 Cir. States, (1967), reprinted in Ct. S. v. United Appendix B. Term, resignation end of the 1966 his Because longer obscenity may personal bo no views Justice Glabk’s *21 Moreover, con- has been the most important. Justice Clark since obscenity eases, if even Court vis-a-vis of the member servative ap- views, no would have have the same were his successor obscenity law. status of the current on preciable effect 214

kin and on one tbe authority Ginzburg set down one for case oral Harlan argument. Justice voted to reverse all cases coming from the federal courts and to affirm all those from state coming courts.46

None of published the works in involved the Red rup related cases comes close to having achieved national recognition afforded “Candy.” our Indeed, none of knowledge, them were in publi reviewed any cation and none certainly appeared on any best seller lists.47 Moreover, reported opinions of the lower 46 separate opinion See Justice Harlan’s v. Memoirs Massa chusetts, 413, 455, 975, (1966) 383 U.S. 86 S. Ct. 996 and Roth v. States, 476, 496, United 1304, (1957). 354 U.S. 77 S. Ct. 1315 day Term, Two other cases decided on the last in of the both volving distributing allegedly movies, convictions for de obscene passing one, Pitchess, 912, serve mention. In Wenzler v. 388 U.S. (1967), simply 87 S. 2096 the Court denied certiorari with Jus Ct. Douglas they noting Black, tices that were Stewart opinion granted that writ of certiorari should be and a habeas corpus authority case, Redrup. In the other Lan issued on Fording, (1967), dau the Court v. 388 87 Ct. U.S. S. 2109 Doug affirmed, granted certiorari and Portas, Stewart, Justices noting majority nor. dissent Neither las and Black dissents. any authority respective ing judges their votes. cited App. 1966) Reptr. (Cal. Landau, opinion 177 54 Cal. lower court upheld alternative on conviction was the defendant’s reveals constitutionally question viz., ob grounds, was the movie Signifi pandering. guilty of was the defendant and that scene important between distinction cantly an court noted however nature of the “Because and books: of movies vel non may picture scenes of sexual medium, motion think a we long guarantee before constitutional the bounds transcend 54 word.” written description scenes the same frank of Chief Justice the votes Warren Reptr. Of. 181. Cal. authority of reversed cases the eleven Justice Brennan Redrup. Co., 228 Coast News v. West States example, in United For (6th aff’d, Cir. 1964), F. 2d 855 (W.D. Mich. Supp. 171 F. States, S. Aday United nom, 1966), sub rev’d B), Appendix Cop”) (see A (“Sex Life (1967) Ct. *22 made attempt courts indicate tliat no serious was im- defend them on the ground redeeming social portance. We can conclude therefore that under only both Redrup and the Rolh-Memoirs court test be- in erred obscene. finding “Candy” constitutionally low Decree each reversed; own costs. party pay Mr. Justice Eagen Mr. and Mr. Jus- Justice Jones, tice O’Brien join opinion of the Court.

Mr. Justice Cohen took no part the considera- tion or decision of this case. Opinion

Appendixes op to the the Court : A Appendix Excerpts from three of “Candy”: reviews 1. Life 1964. review Magazine, May 8, (A signed by Nelson American : “I don’t Algren, author) know how reviewers reacted to Alice Wonderland when it first published. was I Something, along suspect, the same lines as the brass when Navy first confronted with Admiral Rickover’s I fantasies. do know how the professional critics ducked when Joseph Heller’s Catch 22 was published: and that it took a great wave praise from England to upon force it their frighted sightlines. So far Southern Terry has suffered the same fate in this country. argued challenged defendants that work did not con- affront temporary community sought standards fol- introduce

lowing support “Fanny Hill”, “Tropic books in of this contention: Capricorn”, “Lady Chatterly’s Lover”, Lunch”, “Naked “The Carpetbaggers”, “Clip Cutie”, August”, “Cold Wind Joint Binge.” them, “Sin The district court refused to admit first they ground they six on the that were irrelevant because were because, question, similar to the book and the last two eoncededly similar, proof they there was no had become while acceptable by community standards. reproaching Alice like that, understands “One note- her holding he is for the way Humpty-Dumpty upside- holding ‘You’re too is Candy saying, book, in our insistence !’ us Candy telling that, down love upside-down. holding we are something foul, sex is the fact disguises comic wildly sense of the Southern’s today in the U.S. no writer there is more serious *23 than himself. is that sex

“The truth he is presents awkward to reviewers— but innocent. And yet worse sick, now writer. So is an first-rate absolutely Southern too begrudgers, bicycling throng literary whole can- too to too to obsequious oppose praise, yet chintzy pedal to and too to will have hate careful ny love, precon- acceptable like mad to fit Southern to some ception. be one

“‘He’s like Nathanael is sure to West!’ insist. ‘No! he’s Bruce!’ another will guess. Lenny another about “A ‘Hey! How Beat Dean Swift”?’ yet of Or- venture. ‘Not at all! He’s a combination may None Heller well, Evelyn Waugh.’ Joe and Burroughs, - of which will be accurate. Nor will the inevitable comparisons tyran- Miller. Miller Henry fought But two ny puritanical puritanical sex with fury. passed possible have since and it is generations then, to be more about lighthearted such matters today. and Dr. are the Magic Christian, Strangelove Candy of major work satirist. as- each are' Furthermore, pects of the In holding same novel. Southern is short, up a mirror triple-angled given America which, sense of rudimentary we are enabled to see humor, ourselves as we are. really

“Nowhere has sex been sicker than the U.S., for have long sick so we be- forgotten supposed is When sex is a healthy. joyous fulfillment instead people can wasting affliction, see that the most event history hilarious mankind was the divi- sees; and sion sexes. That is what Southern Candy says.” that is what pornog- Magazine,

2. Time 1964: “Since June 12, bookshop neighborhood raphy every available at now pornographic satirizing drugstore, the idea of If done with novel was bound to occur to someone. well on moral as Swiftian it could be defended skill, easily literary grounds, though descend it could as even wet-lipped to the level of a discourse vice crusader’s the evils of vice. postcard

“Candy is far from a French Swift as Hogarth. Candy is from Its Christian, heroine, supposedly girl fictitious character —the was who glad-glanded college girl, A be- ruined a book. she everything her lieves she reads or is thus told, pretty every head current is filled cliché with just Unhappily liberal establishment of there is ideas. thing country, one for free- she can do for her colonial enlightenment, for Zen for minorities, dom, Freud, certainly example, and this she For she takes does. *24 improbable the most a her a cretin with lovers, humped ‘radish-white’ loath- because he is so back, superminority some that he constitutes a one.

“Candy, originally Olympia for Paris’ written specializes por- lubricity, which sheer is not Press, nography. may all It antisexual; even be described as goes everything too the crucial often, moment, panties, slips flimsy Candy and her back into askew, crying grief!’ conspicuous ‘Good intent is to Its most outrageous be more than what it is satiriz- detail ing, days, and these In effort, that is hard to do. up dirty Candy ends as hell.” Magazine, May

3. Newsweek 1964: “Stand Franny Zooey; age Hadj Zoon and aside. and upon promises good deal is us. The new era be a quite scatological honest to be old, and, than the

more lot about a more fun. it, story episodic,

“Eager: Vol- like The form of the Candy name, the heroine’s ‘Candide,’ taire’s up-to- very purposely But a recalls. she is Christian, eager peachy, pneumatic, for deflora- date and heroine, debauchery, is able and all sorts of which she tion accept good as well to others conscience as service mystical self-realization. “ pre- duty give fully—-is merely ‘To oneself— by prurient superstition,’ Pro- an scribed outmoded Mephesto aphrodisiac sherry her over an fessor assures privilege!’ thrilling study, ‘it and his is a beautiful privileged doctors After encounters with libidinous Candy ca-' a cretinous attains the esoteric hunchback, progressive maraderie of the Cracker Foundation, underground near coal mine like kibbutz, some sort lecherously by Minn. From inflamed Mohawk, there, demanding guru (‘. path mystic arduous an . . the path .’), pilgrimage Tibet and . . she undertakes a surely marvelously must scabrous what be the most G-reek denouement modern letters —the climax of a tragedy rewritten Nathanael and S. J. Perel- West man. stylistic

“The mixture sounds is. fantastic, surpris- uncomfortably yet, lumpy, It sounds also ingly, Although, alter- it isn’t. the two write authors nately, remarkably the texture is and Southern even, script polish.” gave the whole a final fond erotic

Appendix B *25 comparison purposes For with the reviews ex- Appendix (see cerpted in A also *26 supply of dully repeats imagery out of fresh and his police adjectives. leering ser- The chief are a actors appropriately geant occupant the his of and fellow named, ‘prowl except some for car’. These officers, of their most needed. rest from their devote amours, on-duty off-duty encounters hours to successful sex Their their view. with whatever females come within prosti- conquests range virgin to ‘100 dollar’ from a a tute, Mayor the of Police and The wives the Chief friendly police dispatcher, the new female town, promptly off their take two nurses who waitresses, busy unheralded, clothes when the otherwise officers, ‘society’ open through drunken climb their a window, lamppost lady from a corner who is first rescued prowl raped a then in the back car, seat up miscellany willing other the east. make ladies, easy prey Every story female identified away, married With their some officers. husbands by night gain ladies the officers’ sexual services false ‘prowler.’ dispatcher police complaining of to the calls by response prowl by Chivalrous car is rewarded receptions. offi- Even the of his fellow amorous wife by Sergeant Thorne. The drama not overlooked cer is smashing denouement when the ser- concludes with geant eyewitness, his beloved an that own discovers, prowl-car-pal’s enjoying Alice has been his outranked, offerings. de- The moral lesson of retribution, experts gives claim this value, book social fendants’ sergeant’s plaintive subtly emerges in the cuckolded soliloquy world I de- ‘What have ever done to play.” this?’ serve Thus ends Opinion Concurring Mr. Justice Jones: join reluctantly, majority I with the . Most this n Court .reversing the decree of the court below. Were Supreme decisions for the United (cid:127)it States area law—decisions Court which are upon binding in deter- us—I would no have hesitation mining “Candy” Although is an obscene book. Supreme specifically United held States Court has not pro- “Candy” my is not review of its obscene, nouncements on what is and not obscene con- what is “Candy” satisfy vinces me that does not its definition of an obscene book. *27 reaching my

In I to want reiterate conclusion, agreement expressed by with the view Mr. Justice Rob opinion concurring in his in Commonwealth v. erts (1966) Robin, 421 Pa. 218 A. 2d 72, 73, Supreme that the decisions of the Court United States “preclude governmental designed do not action to juvenile population potentially shield our from the ad premature exposure verse effect of to” books such as “Tropic “Candy”, easy etc. The Cancer”, access juvenile age such books to those is matter of a seri problem Legislature ous concern and to this our should my opinion, Legislature In address itself. not has only power prevent duty but the access to such maturity books of those who “lack the emotional judgment place proper perspective”. [such books] (Rohin, p. 73). supra, Eagen

Mr. Justice and Mr. Justice O’Brien join this concurring opinion.

Dissenting Opinion by Mr. Chief Justice Bell: reading pages I dissent. The of even a few of or ex- cerpts “Candy” clearly very from discloses that it ais filthy single redeeming obscene, without lewd, book, portrayal feature. It a is vivid of sexual life in which glorified way sex is as a of life. light Supreme

In the of recent decisions Court no of the United one can be States, sure is “ob- what scenity.” Supreme It clear whether the Court protects First Amendment believes freedom speech any absolutely,* or limitations, without publication merely any it or whether holds that a book following- is not obscene it each of the unless violates three tests: “pruri- publication appeal

1. The book or must ent” interests in than handful sex—not more prurient every persons thousand understand what means. required by apparently

2. ma second test finding jority Supreme that before a Court is legal obscenity must can be evidence sustained, patently it material is because show “the offensive relating contemporary community affronts standards** description representation matters.” or of sexual Memoirs v. Jaco Massachusetts, 418; 383 U.S. 413, bellis v. U.S. Roth v. United Ohio, 184; States, U.S. 476. publication proscribed A un-

3. book or cannot be redeeming “utterly social less is found to be without *28 value.” supra,

In Memoirs v. the Massachusetts, U.S., 418) (page obscenity Court said : “We defined ‘[Wjhether following Both in the aver- terms: to the age applying contemporary person, community stand- the theme dominant of the material taken as a ards, appeals prurient whole to interest.’ 354 at 489. U.S., subsequent this as elaborated in definition, Under three must it elements coalesce: must be estab- cases, (a) the dominant theme of the lished material * speech not and ex is absolute unlimited. For Freedom by protected person if he ample, First the Amendment is (with nonpertinent exceptions), certain or libels someone slanders any place yells or crowded without in a theatre if he “fire” or Oountry. against justification, treason our or if he advocates ** agree meaning com- to the been unable Court has The large apply to the Nation munity the words standards —whether sector. local or smaller to some or appeals prurient in sex;

taken as a interest whole to (b) patently is it af- material offensive because relating contemporary community fronts standards description representation matters; or of sexual redeeming (c) utterly and the material is without social value.” briefly Supreme

To The Court cannot summarize: language majority define which Judges lawyers laymen or of or of understand. How notwithstanding high on fact it ever, popularity, “Candy”* “best sellers list” its wide very dirty single is a book obscene, “sex” without a redeeming slightest or feature and no social value, legal applied matter what test is it should be banned. Dissenting Opinion Mu. Justice Musmanno: Supreme oppor- Pennsylvania The Court of had an tunity heavy artillery this case unlimber some fighting morality; for free- American unlimited it had pour devastating dom to fire into the forces that would destroy very purity decency, foundations of upon society wholesome conduct our which American it founded; had the from clearest chance draw armory weapons of the law the would beat greed poison back those who, would lucre, youth minds of our Commonwealth. The Su- preme things. did none of Court, however, these Majority Court retired from the field of battle firing encouraged without a shot. It did more. It effectively foul foe more smash at the bastions of decency; flag impeccability American unfurled a *29 authority invading filthy over the battalions; it supplied putrid to each hoodlum in expeditionary * See, example, Magazine approves TIME apparently which though “dirty it describes book as even as Hell.” according made him, of Soap

force a Ivory bar pure! to the Majority’s reasoning, 1/2% intellectually, I as far as I can, disassociate myself, deci- from the jurisprudentially, philosophically, of in this Court this case. sion de- have could Here where this Court was case a devoid under consideration was so clared that the book its of in presentation so odious its literary merit, appeal obviously designed immoral so theme, distribu- that sale baser animalism its man, Whom Pennsylvania. tion should be outlawed one No or a decision have hurt offended? would such rake as a are sordid heaping up dollars, but those who and unseeded rotten in an abandoned up leaves gathers garden.

The that “our decision Majority Opinion says . be construed this case . . should any manner, not, ” be con as else can it approval ‘Candy.’ an How that The is like Majority’s saying strued? statement a entering snake approve Court does not a forbids build a fence around nursery anyone but out. I untenable keep serpent reject nursery approve not statement that does pious Majority oozes with opinion when the “Candy” oleaginously “Candy”* out points book. It that praise filthy edition. over million the hard cover copies sold 1/2 that it is not There How does that establish obscene? admit persons who use narcotics which are millions nar ruinous to health. that that say are Does tedly freely?1 cotics should be sold central Majority Opinion calls the character prosti- the “heroine.” This “heroine” is a “Candy” and a defiler of truth. deviate, degenerate,

tute, Kampf” million. reached of over ten Hitler’s “Mein sale say Majority in- book did have an evil Would perpetrated to the horrible not contribute atrocities and did fluence people? the Jewish *30 Opinion Majority appends glowing of The testimonials quotes periodicals. from one book from tlie certain It in the review: sex than “Nowhere has been sicker long forgotten is U.' and it sick so have S., we supposed healthy.” to be healthy “Candy”?

How book is What salubrious- na- ness does it contribute to the moral health of the revoltingly tion? The book a sexual describes detail portrays daughter, act a father between and his it debauching of a niece her it relates a dis- uncle, gusting perversion depraved, girl de- between a and speaks practices formed it man, unnatural which would make the beasts Sodom Gomorrah periodical Majority ashamed. And this is what the approval healthy cites with calls sex! quoted by Majority

One book book declares the pornographic is “dirty but it concedes as hell.” Opinion Majority generally The con- states: “It is by the book’s friends ceded, that it is a satire foes, attempt upon or at least an at satire the cultural ideals contemporary society.” of our wholly unsupported by

This statement is the facts. certainly I can be listed as one of the book’s I foes and regard upon do not it as a “satire the cultural ideals contemporary society.” of our nothing There contemporary ideal society culture of our re- motely reprehensible resembles the the bestial conduct, practices “Candy.” described Majority quotes

Then the from one the defenders “Candy” “spoof the book who said that is a on sex.” “Candy” spoof garbage dump is as much a on sex as a spoof dump. garbage “Candy” is a on a garbage is dump. pornography. It is rotten-core It is not a satire spoof pornography, on plainly is not it is sex, an outrageous display depravity in its most loathsome attempt forms. Those who defend the book aas literary or culture, work satire, art would never ad- upon they children favor their mit look with would reading it. quote Majority from reviews is not content to opinion, “Candy.” gratuitously into its shovels It contaminates, further as well as burdens, thus *31 Reports,

pages Pennsylvania libidinous the State of appeared they Fed in a on comments another as book, points Majority there out that The eral court case.2 “Candy.” In this, more obscene other books than are theory Majority apparently proceeds that the the surpassed degeneracy by “Candy” vile other in since is injunction subject un “Candy” not to should be works, per Pennsylvania saying that a This is like der laws. contagious early stages disease of venereal son the waiting dining may table from on the not be excluded syphilitics working in kitchen. the because there are purveyors Majority of sew- of other tells Thus, age, Pleasure,” of a as “Memoirs Woman such porno- “Tropic Cancer” and similar “Naked Lunch,” they graphic argues not junk, were that since modicum “Candy” minimum or has least banned, give Majority not But the does “social value.” ap- slightest is. It hint that “social value” of what community parently that advances the theme object pushed people being mud into a not should per- pond there are other communities because cesspools frogs in natatorial mit and lizards revel where slime. Majority “Candy” an admits that is obscene

The astonishing sequitur an non declares then in but book, go. not it banned because it does “far cannot be customary beyond limits candor.” What does regard Majority as the limits candor? Is it custo- people mary for decent candor discuss intimate only pornography deals with but it defames book That profligates police sensualists. officers conduct described detail incestuous dung-covered in the book? Do people society employ decent radish-white spoken the execrable gutter language ob- humped back in the book? The answer cretin lan- finds this vious, yet Majority maggoty In neighborhood candor. guage customary what does the hear candor” bil- this Majority “customary lingsgate? it is Majority Opinion one; erudite, is a long

complicated, and as studded with citations and foot- notes as a broken with bent but never plank nails, problem comes with the grips litigation presents. The Act of June P. L. as amend- (1955) 1997, ed, Attorney P.S. under which District §3832.1, proceeded or case, proclaims sale against distribution a book which a danger “constitutes the welfare” of Nowhere the 28- community. *32 page Opinion is there discussion Majority slightest the the of baleful on effects communities of an obscene book. One of specific the fact of the court findings of reads: below “Circulation and of the book distribution a com- ‘Candy’ constitutes to the of danger welfare the munity.” Opinion mention of Majority makes no this

formidable which has the of finding standing a jury’s It of disposes verdict. the case saying that the de- of the court below cision was “subjective.” What else could it be? A judge a murder case trying does not out and commit a murder go order learn what murder is. He reaches conclusion after the hearing and what that is the lower evidence, court and that did, what the of Majority is did Court not do. If opinion there is an is it is the subjective, Majori- Opinion. It not only ty subjective, is academic, and discursive, theoretical with considerable hypothesis it contains even dash of prediction and as to what a dar- do, will Court of the United States Supreme the proposition indeed. ing matter only not against obscenity

Prohibition com- health godliness; cleanliness in thou- has been established is involved. It munity direct connection can be a sands cases there Those crimes. sex books and sex between abnormal are either this connection profess who see I the truth. accept or refuse abysmally ignorant Nich- Dr. subject: from authorities quote some Court County G-. Frignito, Psychiatrist olas inducing Philadelphia: “The factor singular most lewd adolescent to sexual activities is pornography; play- pictured picture, smutty obscenely book, fosters . . pornography . ing card, girlie magazines ag- sexually . .'. it cause impure habits desires can slaying to the acts and some instances lead gressive maga- of the victim”. J. “Sex-mad Edgar Hoover: be are than can creating jails zines criminals faster Karp- Benjamin built them”. The late Dr. house Hospital, Elizabeth’s Chief St. man, Psychotherapist, relationship there direct D.C.: “. . . is a Washington, juvenile pornographic between sex life and delinquency, Court literature”. The National of Juvenile Council in a resolution: “The character of Judges, juvenile has as a stimu- consequence delinquency changed lation salacious no publications, longer being acts of but armed mischievous acts children, violence, even torture for which robbery, rape, homicide, publications the vicious condition our the minds of *33 Inspector Herbert Detroit De- Police Case, children”. “I have to see a murder in the yet : sex case partment Detroit Police I history Department but what obscene can show literature . . .” Detective Lt. you B. St. Louis Duke, Austin Police: “I County have picked up sex juvenile never offender didn’t who with his him, this stuff car or in have his house”. Superintendent: Chicago “Ob- O. W. Wilson, Police problem primary scene United literature is a today. literature States from obscene Sexual arousals responsible have from vi- been for criminal behavior Psychia- cious assaults homicide”. Dr. Max Levin, pornography York: “I is un- trist, New am convinced dermining young- the mental health of countless personalities being warped by sters . .. whose harm- are Unscrupulous early years ful influences . . . their publishers hungers, lurid cater to their their sex candy books hot are stores numbers newstands, gather”. teenagers and wherever

Why against have there reach- been laws ing antiquity? days back into the It because obscenity, very lasciviousness strike lewdness, people disintegrates, moral fiber when that and, perishes. nation Justice Harlan said the Roth-Al- berts case reason- U.S. that “The State can (354 502), ably long period draw of time inference over a the indiscriminate dissemination of the es- materials, degrade sential character of which is to have will sex, eroding an effect on moral standards.” know that We great Home was and went into Greece decline; finally grew was the flower of and that weeds culture, Acropolis; Babylo- in the Egyptian, that the Persian, powerful, nian and numerous other civilizations were something happened rich and indomitable but them they decay moldered into because of armed —not gates, from invasion without their but from moral de- terioration within their walls. speaking

In 1874 Justice an unanimous Swayne, Supreme United States Court, declared: founda- “The republic tion of a They is the virtue of its citizens. are sovereigns subjects. at once As the foundation is undermined, structure is weakened. When it is destroyed, the fabric must fall. Such is the voice of history.”: Trist v. Child, Wall. 441, 450. *34 Supreme contemporary Court United States

The dem- fundamental and far from wisdom has drifted quotation. philosophy in the above inherent ocratic justify Opinion Majority at bar seeks the case The citing Court of the from decisions recent its conclusions Washington. Capitol are decisions ITill in Those on opinions majority lighthouse beams. with broken subject Supreme of present on the Court, U. S. obscenity, confusion constitute a land never-never aggregate, those in the and Taken self-contradiction. drifting fogs, opinions suggest region hazy beset with laby- contrary with with wind criss-crossed currents, pitfalls perforated with foot tortuous rinthian, trails, legal quicksands, traveler no and tortured with which hope emerge awith could therefrom traverse and precise knowledge he what been, to where he had going. re- It is had he with where was now seen, gret say on I it but based conviction, that is with this, Supreme study I intensive of late Court decisions, say where the Court does not seem to know itself going subject on this the homes, affects and the moral nation. standards welfare, again Supreme I with state, reluctance, up Court of the United has States failed to measure responsibilities to its I have area the law. this respect highest I am for the Court in the bound land, up by its I mind but wish it would decisions, make its jurisprudence. toas is its realm what decision point my quoting Majority I will illustrate from the Opinion namely: in this case, wide “Because opinion Supreme perhaps difference Court, way only obtain sense the Court’s attitude qua Court is consider the views of each individual A Justice. breakdown the individual in the votes Redrup following: eleven related cases reveals the predictably Douglas Justices Stewart Black, to reverse each voted instance, but did Justices so to reverse Justice voted White Brennan Fortas, conviction to affirm cases (both seven two cases, without and to involving movies) giving any reason, *35 affirm to one on the of and authority Ginzburg case vacate and on of Mem- authority remand one the case oirs. Chief in Justice Warren voted to reverse two affirm cases, (both involving movies) two cases without any to affirm on the giving reason, two cases of Mishkin on of authority authority and one the Ginz- of burg, vacate remand one case in Mem- light oirs, and to set down three cases for oral argument. Justice Clark voted to reverse to affirm cases, two in five cases his affirm without two giving reasons, cases on the of Mishkin au- authority and one the of for thority Ginzburg and to oral set down one case argument . . .” (Emphasis supplied)

The reason so for Justices no reason many gave their decisions is that is no to the deci- there reason sions. The conglomeration personal decisions are a of views, individual tangents private predilections, without much thought apparently to the being given effect those decisions will have on the nation as a whole. I state, again with the disinclination, Supreme Court of the United States has failed live up to its solemn of responsibility protecting, through interpretation serious firm of the enforcement, laws of the the of land, ramparts moral the standards, crumbling of which bring will disaster to our country. The Supreme Court has simply refused to meet its obligations which af- considering grave situation fects American into destiny whose hands the youth, our nation will one day be committed.

When case court was considered the be- being by decision low, was delayed awaiting clarification the whole problem obscenity highest court land. On March Supreme spoke Court opinions handed down though three cases. Supreme “a decisions Court

lower court called “in pronouncements,” congeries it looked in which anticipated feel “we Also, illumination.” vain brought forth labored and the mountain has litter of mice.” spoken by many periodicals

Dismay land. was in a headline: Tribune declared The “Supreme York Herald New Obscenity Compounds Confusion;” Court “Muddy Philadelphia Inquirer Issue headlined: Washington Legal Obscenity”; Post described “murky”; “The Leader: Court’s The New decisions concept already rickety been reduced has “Dizzying . . . rubbles”; to constitutional Newsweek: puzzling leaving body already tangled law more an astonishing deci- London “An than Economist: ever;” Chicago Daily Court sion;” News: more, “Once *36 obscenity;” Li- has to find of failed a definition brary jumbled “Incredibly Toledo decision;” Journal: Chicago of Blade: “A “A lot Morass.” Tribune: logic.” tortuous judicial discharge if the failure to its Court’s

Now, only duties in this field in verbal confusion, resulted syntax, study, vo- one could overlook nebulous shallow de- cabular circumlocution and indifference stare tragedy the confusion at the cisis, but with that, gate, pornographic sentinel the into the thieves steal security. citadel of our moral of Because unconcerned laxity explosives ramparts, at the fashioned pornographer being Henry arch are America, Miller, very under Com- maneuvered foundation of the Ten principle Decalogue . not one mandments. There is Henry Miller has not his books de- defiled, despoiled yet Supreme and defamed. And nounced, unspeakably no Court found violation the law in his “Tropic degenerate of Cancer.” “Tropic Judge described the of Cancer” Stephens “Tropic companion Capricorn”, its and as follows: description unprintable “The vehicle of word is the bankrupt. every Practically morally the debased and thing loosely regards detailed that the world sin is prosti language in the of smut, salacious vivid, lurid, and dirt. tution, And all of it is related without slightest expressed . The author idea of its abandon. . perversions through orgies conducts the reader sex language organs, always of the sex in the debased bawdy purity Nothing grace of the house. has the goodness. language or These words of the of smut disgraceful through heavily are scenes, so larded portions out the books that deemed to those which are literary be of merit do not lift the reader’s mind clear sticky (Besig 142.) of their slime.” v. 208 F. 2d U.S., publishers “Tropic of Cancer” referred Henry “respected Judge its author Miller as a writer.” Philadelphia Court of Common Pleas Carroll replied: respected “I can’t believe man is a writer say give pants who would he would a kick who God, would call the Jews and the colored kikes, people niggers. image very . . He insults the of Chris- tianity, apart he insults the Jewish race—and this is obscenity.” (Com. 70.) from Robin, Pa. Supreme

But the Court of found the United States “Tropic worthy lodgment of Cancer” and circula- public allowing tion libraries of the land, festering monstrosity foul and to circulate with the Pilgrim’s Progress, Bible, Homer’s Iliad and Shake- *37 speare’s Works. Supreme

The Court of the United States has writ- obscenity. ten scores decisions on It has laid down expounded principles, rules, established standards and ignored then later or dismissed them all. It draws community fine line distinctions the areas of stand- prurient appeal, contemporary society, ards, social proceeds, and then value, etc., to offer in one effect, passport every form or a to free which another, book may degraded it no or vile comes before matter how it, significant Ma- the It as admitted fact, be. opin- Opinion quote jority I the from case, States) (Supreme ion: “The Court of the United Court per published yet se.”! ! has to find a obscene work nation’s I the framers our do not believe judges of the Su ever intended that the Constitution preme perform super-censors on books. Court to as were question propriety of the distribution the questioned the where literature should be left to States prior no time ever it to 1787 which one at that was transferring thought In to the nation. 1887 the Su preme acknowledged province of it Court that was department legislative government to exercise public police powers guard necessary over to stand questions power morality: to “The determine such (what public morality) all, is offensive to bind to so as mercy society must exist else be at somewhere; will appetites regarding only or of the their own few, who, imperil peace passions, may willing be and se to permitted provided only they curity many, of the are please. power they system to do as Under our lodged legislative government. with the branch of the department belongs It are known to that exert what primari police powers of the and to determine state, appropriate ly for the are or needful what measures public public protection or health, morals, 623.) public safety.” (Mugler Kansas, Supreme deliberately has Court Nevertheless, jurisdiction pam- over the millions of books, assumed newspapers juris- magazines phlets, in the land, possibly cope And it cannot with. then make diction attempts yardstick apply worse, matters application to no realities. The standard can have determining obscenity, as laid down in Roth case, average person, applying contem- is “whether community porary the dominant theme of standards, *38 in- prurient to appeals the material taken as a whole terest.”

What is a It is a a circum community? region, In its scribed area as neighborhood. a town, village, broadest it but concept possibly envelop State, could a to common to word contrary apply the usage a “community” Supreme to and this is what the nation, Court has done. (Jacobellis 184.) Ohio,

But, even after to community arbitrarily giving national Court has Supreme ignored significance, the moral standards of people the American as a whole. It has fashioned most of its decisions on views of an attitudes infinitesimal minority, and book ad- literary critics with their reviewers, who, mitted cannot speak the masses talents, possibly not sophisticated so as those the reviewing who make of books their profession. summary

This seizure jurisdiction the Su- preme Court in this field has and continues worked, in havoc work, the individual states which are fre- compelled to quently wait for from decisions Washing- ton whether a certain book or be may may sold newstand North And village Dakota. more often than not, expected decision turns out be so cloudy exposition and disposition that culprit pornographic escapes under cover the rhetori- cal smoke.

The decisions the United Supreme States Court in obscenity cases have raised alarm the most vener- places able the nation —the home, church, the school. Philadelphia Inquirer published in September year four articles written by Joseph C. Goulden

of the Inquirer entitled Staff, “Merchants of Smut.” No can one read this well extremely written series extent of appalling pornographic literature being and consumed Philadelphia sold and the vastness of 236- na- the mails

mail order pornography polluting happen over what without concerned tion, being *39 briefly I quote in America. to. the minds of the youth for reading which should be required from this series of “The legalization and prosecuting judges: officers smut off commercialized has touched pornography books the bringing dirty in it is Philadelphia boom that places. hiding under-the-counter from their traditional because . . thrives pornography . Commercialized um- same under operate smut dealers low-grade Court Supreme that rights brella of constitutional na- literary for of a serious unfolded works originally ture.” nnn a coveted Court missed Supreme Pennsylvania de- a blow in the bar to strike case at opportunity yet Supreme Court has since U. S. cency, of the current subject is the passed the book which could imagine that, Of one well legislation. course, the British Supreme after the U. Court allowed S. temple Hill into the pass whore pandering Fanny it not bar to the frowzy, would entrance purity, of “Candy.” harlot Still, subterranean streetwalking, Penn- effort a few Court could have made the to save because from the of “Candy” children stench sylvania it and elapse banning a-little time our might between Court’s down the ban. Supreme striking could be the as possibility, And then there always Court Supreme that the U. S. as seems today, remote respect pronouncements its historical that free might publication of the does not include the of press dom In v. New obscenity. Chaplinski Hampshire, Court said: . cer high “. . There are (1942), and limited narrowly tain well-defined classes punishment prevention which have speech, to raise thought any prob never been constitutional include lewd . It These obscene. . has lem. . observed such utterances are no essen- been well part tial exposition such any and are ideas, slight step social value as a to truth that benefit any be may outweighed derived from them is clearly the social interest order and morality.”

Ten declared years Supreme the U. Court later, S. no Beauharnais v. “Certainly U.S. 250: Illinois, one would contend that obscene for example, speech, punished be may upon a circum- only showing such stances (clear present . .” danger).

Then 1957 the Court Roth v. U.S., said, “implicit U.S. 476 that First history Amendment is the rejection utterly without importance.” social But about redeeming what 1967? Does em- present Supreme its with Court, phasis on ad hoc ancient consider 1957 too reasoning, *40 to control 1967? Majority Opinion this to went a case, great

deal care to dissect and describe the above discuss, quoted sentence from the Roth and said it was case, circular.” it “logically Then “On said: the one hand, one can as do Justices Clark conclude, and White, that obscenity definition has by no redeeming social importance. On the other Justice Brennan be- hand, lieves that a work which has even minimum of a social importance is definition not by shared view obscene, Chief by Justice Warren and Justice Fortas. Since Douglas Justices Black, and Stewart believe that approach is too accept we must Brennan restrictive, the Brennan analysis as ‘settled respect law’ with vel least until non, five members Court on a definition. agree new This is simple because arithmetic shows that the votes of the block’ ‘Brennan ‘Black-Douglas-Stewart that of the with along Axis’ result will, necessity, finding that the work, the absence entitled pandering, to constitutional protection.”

From all this we conclude that the Majority into Court, taking the chamber of consideration consultation an arithmetic an ax, table, block, circular arrived at there logic, the conclusion that Supreme could be no use to see what waiting Court a circular might say “Candy,” with thus, it saw, away sawed of the of Penn- rights people sylvania to be saved from the inundation of filth gush- from ing of a finds pages Majority book which the possesses a minimum of social but never importance explains why.

Because, cannot! course, From Pittsburgh from' Dan Philadelphia, and from ramparts Beersheba, Bible Samuel Eliot Morison’s Oxford History of the Ameri- can I dissent! People, Appellant.

Moore v. Osser, notes 30, 44, accompanying text) we have included the Court of description Appeals’ Cop”, of “Sex Life A held not constitutionally Aday obscene United States, ap- (1967). description U.S. 87 Ct. 2095 S. pears in United States v. West F. Coast Co., News (6th 1966) attempt 2d 857-58 Cir. “We : will not by illumination extensive recital of contents. the book’s description Cop This short will suffice. of A Sex Life paperback (the picturing is a awith cover a woman Mayor town) unsuccessfully trying wife of the of the grotesque, to hide her nakedness behind the underwear- figure clad of the town’s Chief of both of them Police, having interrupted been in their lovers’ lane dalliance police pair two of the town’s officers. The latter are the discovery heroes of the narrative. Their of the lady product Chief and his was not the of zeal to en- beguile force the but of their law, effort to the monoto- ny duty by surprise of their round of such intrusions. pages “Inside covers are which the defendants’ experts call cerpts from other meaty, ‘blurbs’. These are but ex- short, publishers, books available from the give prurient promise They of the books’contents. publisher, demonstrate that the from suffered least, no illusions as to the interests to which the book was directed. One of the blurbs, has an intellec- however, tual flavor. It identifies as an Wallace De- author, Ortega Maxey, Divinity, Doctor of whom we assume to be the Maxey’ defendant the same name. ‘Dr. described as a minister who has cast off the shackles prudery, (now evangelist freedom) an whose sharp ‘views are in contrast with those of most minis- but so were ters, views Columbus with those navigators the other replaces of his time. The new idea old; world flat.’ pages alleged “The 147 generously novel are promises faithful palliat- the blurbs. Without ing interruption, story quickly moves from one enterprise to sexual another. So numerous are these practiced events even skill of the author runs