G. P. Putnam's Sons v. Calissi
235 A.2d 893
N.J.
1967
Check Treatment

*1 real es- such any purpose, may buildings acquire tate or lease. buildings by is affirmed. judgment Wedstteatjb For Justice and Justices affirmance —Chief

Jacobs, Francis, Proctor, Goldmann Schettino —-6 For reversal—-None. SONS, CORPORATION,

G. P. PUTNAM’S PLAINTIFF-AP- PELLANT, CALISSI, v. GUY W. BERGEN COUNTY PROS- ECUTOR, DEFENDANT-RESPONDENT. Argued 23, 1967 21, 1967. October November —Decided Rembar, Mr. Charles of the New York Bar, for plaintiff- Parisi, appellant (Messrs. Evers & Greenfield, attorneys). de Prosecutor, for Assistant Mr. Harold N. Springstead, *2 Calissi, County W. Bergen Guy (Mr. fendant-respondent Prosecutor, attorney). was delivered of the court

The opinion Division, Court, Chancery The Superior Pee Cueiam. or selling P. from publishing, Putnam’s Sons enjoined G. Memoirs John Cleland’s Jersey in New distributing of Hill. Pleasure, Fanny more known commonly Woman of that the finding that court’s upon The was based injunction Calissi, 86 N. J. v. G. P. Putnam’s Sons book is obscene. P. Putnam’s appealed 82 Div. G. Sons Super. (Ch. 1964). before argument to the Division and we certified Appellate there. the United States

Under the standards enunciated sell Court, publishing, it must be concluded Supreme in is protected the book ing, distributing question from the First and Fourteenth supression by governmental York, 87 767, v. New 386 Amendments. U. S. Redrup 1414, Ct. 18 L. Ed. 2d 515 see Book Named (1967); S. “John Memoirs a Woman Pleasure” v. Cleland’s At of Massachusetts, 413, General 383 U. S. 86 S. Ct. torney 975, 16 L. Ed. 2d 1 (1966); see also Potomac News Co. v. States, 47, 233, Ct. 19 L. United U. S. S. Ed. 2d 23, 373 F. 2d 635 1967), Cir. (Oct. reversing (4th Central Ltd. v. 1967); Magazine Sales 50, 235, Ct. 19 L. Ed. 2d 49 U. S. (Oct. 1967), 373 F. 2d 633 Cir. reversing (4th 1967).

Accordingly, judgment Chancery Division is reversed. J. I would affirm

Francis, (dissenting). the judgment for the substantially reasons expressed by Di Chancery vision. the recent refinement of Applying test ob scenity promulgated by United States Supreme Court, my the dominant judgment (1) theme of the material Hill taken as a Fanny whole to a appeals prurient interest, the material (2) patently offensive because it affronts to the relating descrip standards community contemporary the mate matters, (3) of sexual tion or representation A Book value. rial without See utterly redeeming Pleasure” “John Memoirs a Woman Named Cleland’s General, 418, 86 S. Ct. Attorney 383 U. S. test, on L. Ed. 2d 1 This (1966). although expounded of the Massachusetts Supreme from the appeal judgment obscene, Court, which had condemned the book as Judicial was not United States actually applied because, were ordered the case. remand to the court had mis plurality opinion, the state according criteria, which the third of the three interpreted opinion said co-exist if a novel is must to be declared obscene. Con there was no occasion if the sequently, to decide dominant theme an appeal interest, or whether it prurient *3 affronts the contemporary community standards to relating of sexual description representation matters.

Mr. Justice Clark review in book, dissent, did the and his with which I he found it to be the heartily agree, beyond limits of constitutional one when protection judged by any S., or all three of the of at components obscenity. U. 441-455, 86 S. Ct. 975. The Justice that pointed out. 200 of the book’s are to pages devoted Hill’s Eanny in a experiences house of prostitution, and he said: “* * * presented through uninterrupted This is to the reader an descriptions by Fanny, partici succession of an either as observer or pant, expert of sexual adventures so vile that of the male one wit repeat nesses in the case was hesitant one of the them in gamut possible experience courtroom. These scenes run the of sexual lesbianism, masturbation, homosexuality such as female between young boys, consequent gory the destruction of a maidenhead with descriptions, young virgin boy, flagellation the seduction of a the of by female, versa, by engagement, male and vice followed sexual fervid acts, including separate and other abhorrent over dozen two bizarre descriptions of different sexual intercourses between and male female sequence girls bawdy required In characters. one four in a house are presence in of the one another to relate lurid loss the details of their virginity glorification of and their of it. This is followed same the evening ‘publick girls engages trials’ in which each of the four in witness, sexual intercourse with a different man while the others Fanny giving description with a detailed of the movement reac couple.” S., pp. 445-446, tion of Ct., each 383 U. at 86 S. at 991. with buyer the prospective of the solicits cover book

The permitted been finally its sale has the announcement re the introduction of And years suppression.” “after may graphic descrip he expect the reader that tells peatedly 383 U. exploits. p. and sexual genitals tions of edition present The of the Ct., publisher 995. p. In the introduction “frankly book erotic.” describes the as Quennell a it is Peter edition, says “priapic to the paperback aim the and end which “treats of as pleasure novel” the epitome satisfaction as existence, and sexual of the other book only In the introduction pleasure.” most Cleland, labeled “the written Obviously in literature.” English sensational erotica piece novel about kind of he was had no illusions the Cleland in The tells us edition publisher present writing. wrote it author, bohemian,” a in “never-do-well in a more than succeeding make quick guineas, had, two since first it has for the appearance, centuries its an occasional but As surreptitious publication. most part, of his his indication of the about feeling contemporaries Messner, effort, Loth in Erotic Literature (Julian Inc. records when was called 1961) Cleland before the for Earl book, Council of Gran- Privy authoring ville a “offered obtain for still author impecunious of one if pension year hundred he would under pounds take write never to this sort story again.” (at 111).

Massachusetts the virtue of consistency. has In 1831 reported the first decision of censorship obscenity Judicial *4 of that affirmed the commonwealth conviction of one Peter for Holmes Hill. Commonwealth v. publishing Eanny Holmes, 17 Mass. 335 (1831). One hundred forty-four years later the same court found the book again porno graphic. Attorney v. General Book Named “John Cle Pleasure”, land’s Memoirs a Woman 349 Mass. 206 N. E. 2d In so, the (1965). of the doing majority court said it had no doubt that the dominant theme of the novel was an appeal to prurient interest, the or that it was to In con offensive current standards. patently community nection with the that it be without requirement must utterly the to redeeming value, majority, social after some referring literary “strained” the had testimony some suggesting merit, declared fact “the the indicate testimony may this book has some minimal not mean literary value does is of the interpret We do not importance. a ‘social test as book which importance’ requiring ap to peals prurient interest and is offensive must be patently unqualifiedly worthless before it can be deemed obscene.” Book, etc., 2d, v. A Attorney General 206 N. E. at (1965). plurality the United opinion Supreme States reviewing finding obscenity said: concluding “We need not consider the claim that court erred in prurient appeal patent satisfied

that Memoirs criteria; offensiveness required misinterpreted is because the court social value criterion. * * * proscribed utterly A book cannot be unless it is found be to redeeming though without social value. This is so even the book is possess requisite prurient appeal patently found to and to be offensive. Bach of the three federal constitutional is to be criteria independently; applied social value the book can neither be weighed against prurient appeal patent nor canceled its or of pp. 418-420, Ct., fensiveness.” U. 86 S. 977-978. I recognize view of Although the United States Court as courts, state controlling I feel bound my record with it. To disagreement grant constitutional asylum a book like because it may have “minimal” social value in eyes some literary sophisti cates, even its dominant though appeal to the prurient interest and patently offensive the “average person, applying contemporary community standards,” (Roth U. S. Ct. 1 L. Ed. 2d just too much. (1957)), Minimal means of the i. minim, e., character of or smallest possible least particle; part jot. (Webster’s New International Dic Ed. tionary (3d Unabridged, 1961) In 1438.) no other *5 fashion. this de minimis sanctified of the law is area the book the minim is because supplied that It is suggested Clark, aptitude Cleland’s Mr. Justice Like well written. is S., Ct. 975. 449, 383 U. S. me. escapes in that field talent, dignified if it can be his kind of display Hill is at best festered Eanny context of name, in the that New York moreover, And as the the mud. lily growing no is out a few there years ago, pointed Court of Appeals but well- obscenity suppressible rule of law holding Fritch, 13 not suppressible. People obscenity written 192 N. F. 2d N. Y. 2d N. Y. 2d S. 717 (1963). dirty no matter how book view that

Adoption be covers, its sale cannot public pro- is between its value, “minimal” when judged hibited if has test, in effect eliminate some and indefinable amorphous all tests, say goes.” “anything has a novel like regretted

It is to be free judicial protected received approval constitutionally authority There is the view such speech. respectable literary books are connected with aphrodisiacs causally many crimes that our 383 U. presently plague people. 452-454, Ct. 975, footnotes 4-12.

Eor stated, the reasons I would sustain the trial court’s ban on the distribution or publication, sale Jersey. the State New —

For Chief Justice and Justices Weintraub Jacobs, Proctor, Goldmann, Schettino and Hane man —6.

For Francis — 1. affirmance—Justice