318 Mass. 543 | Mass. | 1945
The defendant has been found guilty by a judge of the Superior Court sitting without jury upon two complaints charging him respectively with selling and with having in his possession for the purpose of sale, exhibition, loan, or circulation a book published under the title “Strange Fruit,” which is “obscene, indecent or impure, or manifestly tends to corrupt the morals of youth.” G. L. (Ter. Ed.) c. 272, § 28, as amended by St. 1934, c. 231, and St. 1943, c. 239. The section (except the part describing the penalty) is reproduced in the footnote.
The complaints are in disjunctive form, but this point was not taken. The defendant could therefore be convicted if he committed any one of the several offences set forth in so far as such offences are susceptible of differentiation. G. L. (Ter. Ed.) c. 278, § 17. Commonwealth v. McKnight, 283 Mass. 35, 38-39. Commonwealth v. McMenimon, 295 Mass. 467, 470-471.
We do not pretend ignorance of the controversy which has been carried on in this Commonwealth, sometimes with
We are fully aware of the uselessness of all interpretations of the crucial words of this statute which merely define each of those words by means of the others or of still other words of practically the same signification. We do not now attempt by any single formula to furnish a test for all types of publications, including scientific and medical treatises, religious and educational works, newspapers and periodicals, and classical and recent literature, as well as phonograph records, prints, pictures, paintings, images, statuary and sculpture, artistic or otherwise, all of which are within the literal words of the statute and might conceivably fall within its prohibitions. In this case we are dealing with a recent work of fiction — a novel. We shall, in general, confine our observations to the case in hand, without necessarily binding ourselves to apply all that is here said to entirely different forms of writing or to representations by picture or image.
We deal first with a number of pertinent propositions advanced in the able briefs filed in behalf of the defendant. We agree with some of them.
(1) We agree that since the amendment of the section as it appeared in the General Laws by St. 1930, c. ’ 162, the « book is to be treated as a whole in determining whether it
(2) We agree withjfhe weight of authority that under each of the prohibitions contained in the statute the test of unlawfulness is to be found in the effect of the book upon its probable readers and not in any classification of its subject matter or of its words as being in themselves innocent or obscene.
Although in their broadest meaning the statutory words "obscene, indecent or impure” might signify offensive to refinement, propriety and good taste, we are convinced that the Legislature did not intend by those words to set up any standard merely of taste, even if under the Constitution it could do so. Taste depends upon convention, and sometimes upon irrational taboo. It varies "with the period, the place, and the training, environment and characteristics of persons.” Reddington v. Reddington, 317 Mass. 760, 765. A penal statute requiring conformity to some current standard of propriety defined only by the statutory words quoted above would make the standard an uncertain one, shifting with every new judge or jury. It would be like a statute penalizing a citizen for failing to act in every situation in a gentlemanly manner. Such a statute would be unworkable if not unconstitutional, for in effect it would “license . . . the jury to create its own standard in each case,” ex post facto. Herndon v. Lowry, 301 U. S. 242, 263. Such a test must be rejected. The prohibitions of the statute are concerned with sex and sexual desire. The statute does not forbid realistically coarse scenes or vulgar words merely because they are coarse or vulgar, although such scenes or words may be considered so far as they bear upon the test already stated of the effect of the book upon its readers.
(4) So, too, we think it proper to take into account what we may call the probable “audience” of the book, just as the effect of a, lecture might depend in large degree upon the character of those-to whom it is addressed. . At one extreme may be placed a highly technical medical work, sold at a great price and advertised only among physicians. At the other extreme may be placed a rather well 'known type of the grossest pornography obviously prepared for persons of low standards and generally intended for juvenile consumption and distributed where it is most likely to reach juvenile eyes. Most questioned books will fall between these extremes. Moreover, the statute was designed for the protection of the public as a whole. Putting aside for the moment the reference in the statute itself to that which manifestly tends to corrupt the morals of youth, a book placed in general circulation is not to be condemned merely because it might have an unfortunate effect upon some few members of the community who might be peculiarly susceptible. The statute is to be construed reasonably. The fundamental right of the public to read is not to be trimmed down to the point where a few prurient persons can find
(5) We cannot accept the proposition which seems to have been accorded hospitality in a few of the more recent cases in another jurisdiction and which perhaps has been
In taking this position, to which we believe ourselves compelled by the words of the statute, the necessity of enforcing it to accomplish its purposes, and our own previous construction of it, we do not go so far as to say that sincerity of purpose and literary merit are to be entirely ignored. These elements may be considered in so far as they bear upon the question whether the book, considered as a whole, is or is not obscene, indecent, or impure. It is possible that, even in the mind of the general reader, overpowering sincerity and beauty may sometimes entirely obscure or efface the evil effect of occasional questionable passages, especially with respect to the classics of literature that have gained recognized place as part of the great heritage of humanity. The question will commonly be one of fact in each case, and if, looking at the book as a whole, the bad is found to persist in substantial degree alongside the good, as the law now stands, the book will fall within the statute.
A brief description of the book “Strange Fruit” now seems necessary. The scene is laid in a small town in Georgia. A white boy, Tracy Been, who lacks the forcefulness to get ahead in the world, and an educated but compliant colored girl, Nonnie Anderson, fall genuinely in love, but because of race inhibitions and pressures they cannot marry. Nonnie supplies to Tracy the sympathy and the nourishment of his self-esteem which his other associations deny him. Illicit intercourse occurs, resulting in pregnancy. Tragedy follows in the form of the murder of Tracy committed by Nonnie’s outraged brother and the lynching of an innocent colored man for that crime. Distributed through this book (consisting of two hundred fifty pages in the edi
The principal question in the case is whether, consistently with the principles hereinbefore stated, we can say as matter of law that an honest jury, or an honest trial judge taking the place of a jury with the consent of the defendant, as in
It is urged that this book was written with a serious purpose; that its theme is a legitimate one; that it possesses great literary merit; and that it has met with a generally favorable reception by reviewers and the reading public. We agree that it is a serious work. It brings out in bold relief the depth and the complexity of the race problem in the South, although, so far as we can see, it offers no remedy. We agree that the theme of a love which because of social conditions and conventions cannot be sanctioned by marriage and which leads to illicit relations is a permissible theme. That such a theme can be handled with power and realism without obscenity seems sufficiently demonstrated in George Eliot’s "Adam Bede,” which we believe is universally recognized as an English classic. We assume that the' book before us is a work of literary merit. « We are also prepared to assume for the purposes of this opinion that it has been favorably received by reviewers generally and widely sold to the public, although we do not find it necessary to decide 'whether the opinions of reviewers and the extent of sale are such well known facts that we ought to take judicial notice of them, if the result of the case depended upon our doing so. We hold, however, that the matters mentioned in this paragraph are not decisive of the issue before us. _
Regarding the book as a whole, it is our opinion that a jury of honest and reasonable men could find beyond a reasonable doubt that it contains much that, even in this post-Victorian era, would tend to promote lascivious thoughts and to arouse lustful desire in the minds of substantial numbers of that public into whose hands this book,
For the same reasons we are of opinion that an honest and reasonable judge or jury could find beyond a reasonable doubt that this book “manifestly tends to corrupt the morals of youth.” The statute does not make fitness for juvenile reading the test for all literature regardless of its object and of the manner of its distribution. Yet it cannot be supposed that the Legislature intended to give youth less protection than that given to the community as a whole by the general proscription of that which is “obscene, indecent or impure.” Rather it would seem that something in the nature of additional protection of youth was intended by proscribing anything that manifestly tends to corrupt the morals of youth, even though it may not be obscene, indecent, or impure in the more general sense. At any rate, we think that almost any novel that íb obscene, indecent or impure in the general sense also “manifestly tends to corrupt the morals of youth,” if it is likely to fall into the hands of youth. The judge could find that the book in question would be read by many youths. Many adolescents are avid readers of novels.
It is contended that the conviction of the defendant vio-
The defendant complains of the exclusion of testimony offered by him through three witnesses —a writer and teacher of literature, a child psychiatrist, and a professor of theology who was the editor of “Zion’s Herald” and who
We cannot regard this exclusion as error. The principal matter about which expert opinion was sought was nothing more than the reaction of normal human beings to a kind of stimulation which is well within the experience of all mankind. Since the inquiry relates to the probable effect upon the general public who may read the book, there is reason to believe that a jury, being composed of men drawn from the various segments of that public, would be as good a judge of the effect as experts in literature or psychiatry, whose points of view and mental reactions in such matters are likely to be entirely different from those of the general public. If expert testimony is to be admitted in "this instance it is difficult to see why it would not likewise be competent in a vast number of civil and criminal cases where issues of fact depend upon the emotions and reactions of normal persons in the conditions to which they are exposed. If such evidence becomes competent it will follow that an immense number of cases now submitted without hesitation to the good sense of juries and of trial judges performing the functions of juries cannot be adequately tried without an expensive array of experts on both sides. Experience in those fields in which expert testimony is now admittedly necessary does not lead us to look with favor upon such a sweeping extension. Without prejudging the indefinite future, we are not convinced that the time has come for it. In this we agree with People v. Muller, 96 N. Y. 408, and St. Hubert Guild v. Quinn, 64 Misc. (N. Y.) 336, 341-342. See Commonwealth v. Buckley, 200 Mass. 346, 352; United States v. Harmon, 45 Fed. 414, 418, Compare Parmelee v. United States, 113 Fed. (2d) 729, 732.
What has already been said covers all of the defendant’s requests for rulings that were refused, excepting numbers fourteen and sixteen. Request fourteen was rightly refused on the ground stated by the judge that it makes the effect upon youth the sole test of applicability of the statute. Request sixteen asked the judge “as a matter of law” to “take into consideration the attitude of the community in accepting or rejecting the book . . ..” Since there was no evidence bearing upon the “attitude of the community,” this seems to be a request that the judge take judicial notice of that “attitude.” We do not feel called upon to prolong this opinion by entering upon a discussion as to whether “attitude of the community” in any of its possible aspects might have any bearing upon any of the issues before the judge. • Some courts seem to have favored the taking of judicial notice of literary reviews and criticisms. Halsey v. New York Society for the Suppression of Vice, 234 N. Y. 1. United States v. One Book Entitled Ulysses, 72 Fed. (2d) 705, 708. In one case it was said that published reviews of qualified critics might reasonably be allowed “in evidence,” which was said to be “quite another thing . . . from expert witnesses at the trial.” United States v. Levine, 83 Fed. (2d) 156, 158. Whether these decisions are consistent with our own rules, we need not determine. Neither need we determine whether the views of literary critics show the “attitude of the community” or merely that of a very specialized part of the community, or whether they bear upon anything more than the literary value of' the work. For purposes of the present case we are satisfied that the defendant could not compel the judge to commit himself to a ruling upon such vague and sweeping generalities as .“attitude of the community” and “accepting or rejecting the book.” These seem to us to be composite conclusions
In closing this opinion it is proper to call attention to St. 1945, c. 278, which is to take effect October 1, 1945, and which makes substantial changes in the law and adds a new procedure directed against the book itself by which a judicial determination can be had whether or not a book is obscene, indecent, or impure. This statute should go far . to remedy complaints that the present law has operated unjustly in that salespeople or clerks in stores may be convicted for selling a book when the seller does not know and perhaps as a practical matter cannot know whether or not he is violating the law.
Exceptions overruled.
Lummus, J. The opinion seems to me to construe the statute rightly. My dissent is only from the conclusion that the evidence warranted a finding of guilty.
It must be conceded that the book in question is blemished by coarse words and scenes, some of which appear irrelevant to the plot. Yet in them I can discover no erotic allurement such as the opinion makes necessary for a conviction. On the contrary, their coarseness is repellent.
The book is a serious study of the relations of different races in a small southern town. It is a grim tragedy, not relieved even by humor. Virtue is not derided, neither is vice made attractive. In the book, the wages of sin is literally death. The reader is left depressed, unable to solve a tragic problem.
The opinion rests its support of the conviction upon the
Such knowledge as I have leads me to believe that without such artificial stimulation novels of the class into which the book in question falls are read by few girls and by practically no boys. The great mass of readers are mature women. Plainly the book was not written for juveniles. They would find it dull reading. Under normal conditions I think the book could do no substantial harm to the morals of youth, for few juveniles would ever see it, much less read it. And if by chance some should wade through it, I think it could not reasonably be found to have any erotic allurement, even for youth.
“Whoever imports, prints, publishes, sells or distributes a book, pamphlet, ballad, printed paper, phonographic record or other thing which is obscene, indecent or impure, or manifestly tends to corrupt the morals of youth, or an obscene, indecent or impure print, picture, figure, image or description, manifestly tending to corrupt the morals of youth, or introduces into a family, school or place of education, or buys, procures, receives or has in his possession any such book, pamphlet, ballad, printed paper, phonographic record, obscene, indecent or impure print, picture, figure, image or other thing, either for the purpose of sale, exhibition, loan or circulation or with intent to introduce the same into a family, school or place of education, shall ... be punished The germ of this statute is to be found in Prov. St. 1711-12, c. 6, § 19, 1 Prov. Laws, 682. It assumed a form approximating its present form in Rev. Sts. c. 130, § 10. Changes introduced by St. 1862, c. 168, § 1, St. 1880, c. 97, Pub. Sts. c. 207, § 15, St. 1890, c. 70, St. 1894, c. 433, R. L. c. 212, § 20, St. 1904, c. 120, § 1, St. 1913, c. 259, St. 1934, c. 231, and St. 1943, c. 239, require no comment in this case. Reference will be made later to St. 1930, c. 162, and to St. 1945, e. 278. The statute last mentioned adds an entirely new procedure.
See “Massachusetts and Censorship,” by S. S. Grant and S. E. Angoff, 10 Boston Univ. L. Rev. 147; “Judicial Censorship of Obscene Literature.” by L. M. Alpert, 52 Harv. L. Rev. 40.
Before this amendment the section read, “Whoever . . . sells ... a book . . . containing obscene, indecent or impure language, or manifestly tending to corrupt the morals of youth . . . .” After the amendment it read, “Whoever . . . sells ... a book . . . which is obscene, indecent or impure, or manifestly tends to corrupt the morals of youth (Italics ours.) See Commonwealth v. Friede, 271 Mass. 318, 321-322.
The Queen v. Hicklin, L. R. 3 Q. B. 360, 371. Commonwealth v. Allison, 227 Mass. 57, 61. Commonwealth v. Friede, 271 Mass. 318, 321. Rosen v. United States, 161 U. S. 29, 43. Dunlop v. United States, 165 U. S. 486, 500. Dysart v. United States, 272 U. S. 655. United States v. Bennett, 16 Blatchf.
It is for this reason, if not for others, that we think it was not error to deny the defendant’s fifteenth request for ruling, which reads, “As a matter of law the defendant cannot be found to be guilty of violating the provisions of General Laws (Ter. Ed.) Chap. 272, sec. 28 as amended, unless it is found that the manifest tendency of the book is to corrupt the morals of the normal youth or adult as compared to the abnormal.” This request seeks to classify rigidly all persons with respect to susceptibility as “normal” or “abnormal” and overlooks the possible harmful effect upon a substantial proportion of readers who may be less than a majority and therefore overlooks the possible harm to the mass.
See United States v. One Book Entitled Ulysses, 72 Fed. (2d) 705, 707-708: United States v. Levine, 83 Fed. (2d) 156, 158: Parmelee v. United States, 113 Fed. (2d) 729, 736.