GROVE PRESS, INC., and Readers’ Subscription, Inc., Plaintiffs-Appellees, v. Robert K. CHRISTENBERRY, Individually and as Postmaster of the City of New York, Defendant-Appellant.
No. 182, Docket 25861
United States Court of Appeals Second Circuit
Argued Dec. 2, 1959. Decided March 25, 1960.
276 F.2d 433
Charles Rembar, of Rembar, Zolotar & Leavy, New York City (Morton E. Yohalem and Sigmund Timberg, Washington, D. C., on the brief), for plaintiff-appellee Grove Press, Inc.
Jay H. Topkis, of Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for plaintiff-appellee Readers’ Subscription, Inc.
Edgar W. Holtz, Acting Gen. Counsel, Max D. Paglin, Asst. Gen. Counsel, and Ruth V. Reel and Edward W. Hautanen, Counsel, F. C. C., Washington, D. C., for Federal Communications Commission, as amicus curiae.
Before CLARK, WATERMAN, and MOORE, Circuit Judges.
D. H. Lawrence completed the third manuscript version of his novel “Lady Chatterley‘s Lover” in Italy in 1928, and it was then published in Florence for private distribution. It is this version which has now been published by the plaintiff Grove Press, Inc., in a sumptuous edition selling for $6.00, with a prefatory letter of commendation by Archibald MacLeish, poet, playwright, and Boylston Professor of Rhetoric and Oratory at Harvard University, and with an extensive Introduction and a concluding Bibliographical Note by Mark Schorer, Professor of English Literature at the University of California and a Lawrence scholar.1 The book (together with circulars showing its availability by Readers’ Subscription, Inc., the second plaintiff2) has been detained as unmailable by the New York Postmaster and, after a hearing before the Judicial Officer of the Post Office Department and reference to the Postmaster General for final dеpartmental decision, was held by the latter to be “obscene and non-mailable pursuant to
“The contemporary community standards are not such that this book should be allowed to be transmitted in the mails.
“The book is replete with descriptions in minute detail of sexual acts engaged in or discussed by the book‘s principal characters. These descriptions utilize filthy, offensive and de-
grading words and terms. Any literary merit the book may have is far outweighed by the pornographic and smutty passages and words, so that the book, taken as a whole, is an obscene and filthy work.”
The plaintiffs then sought a declaratоry judgment and an injunction from the court below to reverse this decision. On cross motions for summary judgment, Judge Bryan gave a declaration that the Grove Edition here involved “is neither obscene, lewd, lascivious, indecent nor filthy in content or character, and is not nonmailable matter within the meaning of
The important question on the merits is whether this now famous book is obscene within the meaning of
But before we reach the merits, we must consider the procedural aspects of the issue involved, since the government on this appeal has directed much the greater force of its argument to a reliance upon the principle of administrative law that an agency action supported by substantial evidence is beyond judicial review. Its major contention is that the statute obligates the Post Office Department to prevent the conveyance of obscene matter through the mails and that, since the Postmaster General has made a finding of obscenity based upon substantial evidence, the district court erred in reviewing it. The district court rejected this contention of agency finality, and so do we.
Preliminarily we should note the query whether the statute, being one defining a crime with criminal penalties, may afford justification for the acts of seizure by the Postmaster General in any event, or whether its sanction is not limited to criminal prosecution for crimes already committed. This is an issue which divided the court in Sunshine Book Co. v. Summerfield, 101 U.S.App.D.C. 358, 249 F.2d 114, summarily reversed in 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352 (1958). It is one of serious difficulty; but we shall not attempt to resolve it here, since we think the result is clear on other grounds.
Judge Bryan ruled that the issue was one of law fully reviewable by a court of law, since there was no dispute in matters of evidence and hence there was no occasion for the application of the substantial evidence rule. Although this conclusion is vigorously attacked by the government, it is difficult to see why it is not sound, particularly as reinforced by the constitutional overtones implicit in the issue. There can be no doubt that in large areas of postal activity involving the delivery of the mail the Post Office Department exercises discretion not to be controlled by courts. But to determine whether a work of art or literature is obscene has little, if any, thing to do with the expedition or efficiency with which the mails are dispatched. And here it is clear that no question of evidence was involved. In fact the Departmental officials considered only the novel itself against the background of the statute and declined to consider the expert opinion proffered by
Passing then to the merits we must of course be cognizant of the risk run by judges in enforcing obscenity statutes such as this and thus perchance condemning what become classics of our intellectual heritage. Some of the present Justices of the Supreme Court revolt against all this supervision as violative of constitutional precepts. But since the statute has been upheld by majority vote, Roth v. United States, supra, 354 U.S. 476 (1957); and see Smith v. People of the State of California, supra, 361 U.S. 147 (1959), and Kingsley International Pictures Corp. v. Regents of the University of New York, 360 U.S. 684 (1959), it remains the duty of those of us who sit in inferior courts to enforce it as best we may. And we need have no illusions but that a large business is done in exploiting “hard core pornography” for money‘s sake. In general this trash is easily recognized, with its repetitive emphasis (usually illustrated) upon purely physical action without character or plot development; and even if its direct connection with crime or incitement to juvenile or other delinquency is not proven—as many now assert—it cannot arouse sympathy because of its essentially repulsive, as well as fraudulent, character. It is when we come to more genuine works of literature that troublesome issues arise.
At the outset we may well recall the classic warning by a great American judge in probably the leading case on the subject prior to the recent utterances of thе Supreme Court, Judge Augustus N. Hand in United States v. One Book Entitled Ulysses by James Joyce, 2 Cir., 72 F.2d 705, 708 (1934):5 “The foolish judgments of Lord Eldon about one hundred years ago, proscribing the works of Byron and Southey, and the finding by the jury
For present purposes our test must be based upon that prescribed by the majority in Roth v. United States, supra, 354 U.S. 476, 487 (1957). Justice Brennan said:
“However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the сonstitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.”
And he gave support to the definition in the A.L.I. Model Penal Code thus:
“We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957), viz.:
“‘* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in dеscription or representation of such matters. * * *’ See Comment, id., at 10, and the discussion at page 29 et seq.”
Examined with care and “considered as a whole,” the predominant appeal of “Lady Chatterley‘s Lover” in our judgment is demonstrably not to “prurient interest,” as thus defined. By now the story of the novel is well known. It is thus succinctly summarized in Professor Schorer‘s Introduction: “Constance Chatterley, the frustrated wife of an aristocratic mine owner who has been wounded in the war and left paralyzed and impotent, is drawn to his gamekeeper, the misanthropic son of a miner, becomes pregnant by him, and hopes at the end of the book to be able to divorce her husband and leave her class for a life with thе other man.” But of course the story is a small part of the work. Actually the book is a polemic against three things which Lawrence hated: the crass industrialization of the English Midlands, the British caste system, and inhibited sex relations between man and woman.
What has apparently given surprise over the years—probably less so now than formerly in view of the changing climate of opinion—is the degree or extent to which thе author has carried his plan. Undoubtedly to these critics of morals a little description of sex goes a long way; and judging by other examples, classical and modern, less directness would have left the work unchallenged. Obviously a writer can employ various means to achieve the effect he has in mind, and so probably Lawrence could have omitted some of the passages found “smutty” by the Postmaster General and yet have produced an effective work of literature. But clearly it would not have been the book he planned, because for what he had in mind his selection was most effective, as the agitation and success of the book over the years have proven.7 In these sex descriptions showing how his aristocratic, but frustrated, lady achieved fulfillment and naturalness in her life, he also writes with power and indeed with a moving tenderness which is compelling, once our age-long inhibitions against sex revelations in print have been passed. In actuality his thesis here is only that pressed continuously in the modern marriage-counseling and doctors’ books written with apparently quite worthy objectives and advertised steadily in our most sober journals and magazines. Of course it is old in literature; one may recall, for instance, the passionate love scenes between the young tutor and his employer‘s wife in Stendhal‘s classic, Le Rouge et Noir (The Red and the Black), published in 1830. Actually in present-day literature suсh descriptions of physical relations appear as regular staples of literary diet and quite without Lawrence‘s straightforward and somewhat refreshing candor.8
The same is true of the so-called four-letter words found particularly objectionable by the Postmaster Gen-
Judgment affirmed.
MOORE, Circuit Judge (concurring in the result).
The subject matter of this case is a book completed in 1928 in Italy. It is significant that it was then published only “for private distribution.” For almost thirty years it remained unpublished in this country except for an expurgated edition which enjoyed comparative obscurity. The unexpurgated edition has been barred from the mails since 1928. In 1959, and undoubtedly relying upon the changing “climate” of community standards, plaintiffs (the publisher and the distributor) decided to publish the unexpurgated edition and test the book‘s “nonmailable” character. Suddenly, with the restoration to the text of “coarse and vulgar” expressions and play-by-play descriptions оf extra-marital sexual activities, the book (properly called “this now famous book“) becomes “a major and a distinguished novel.” Certain critics, apparently for years unconcerned with it absent the vulgarisms and the questionable scenes, now hail the book as a great contribution to our literary heritage.1 The public, ever anxious to read in print certain words which they can so easily see written in public toilets and other public places,
The plot of the book has no bearing on the obscenity issue. Its first two messages (as analyzed by the majority), if they be directed against the “crass industrialization of the English Midlands” and “the British caste system,” could be delivered effectively without the objectionable material. The third message of “repression of the natural man,” said to be inveighed against by the author, is the “inhibited sex relations between man and woman.” Whether “natural man” should be somewhat inhibited in this activity presents a sociological and moral problem thus far not solved by society. If the author wishes to plead “for greater freedom and naturalness” for man and woman in their sexual diversions uninhibited by law or convention, it is for the lawmakers and not the courts to rule how far this objective should properly be pursued.
The fallacy of “the changing climate of opinion” argument is that it rotates in a circle. During recent years authors of the so-called school of “realism” have vied with each other to depict with accuracy all that could be observed by peeking through hypothetical keyholes and by hiding under beds. The last war offered an excellent opportunity to employ the entire register of Anglo-Saxon four-letter words via the medium of realistic soldier conversations. Many such books became best sellers. After this phase of literary effort palled, it became necessary to go beyond this stage into the sordid and more perverted sexual field—all under the guise of telling an allegedly powerful and moving story about various characters or families which had better remained unborn. One normal adultery per book was quite insufficient to create a best seller. And an eager public, possibly bored by the monotony of monogamy, seized upon each literary contribution to enjoy vicariously—and quite safely—bold but rather impractical daydreams of a life which could be found in fictional actuality in these books. Each book contributed a few additional degrees to the temperature and by its unchallenged existence created the “contemporary community standards” which, in turn, are to justify its acceptance as consistent with such standards. Into this climate ever increasing in warmth came “Lady Chatterley‘s Lover” which plaintiffs sought to distribute through the mails.
Charged by law with the responsibility of enforcing (initially at least) a statute presumably representing the will of the people, the Postmaster General adhered to the policy of the Post Office Department for some thirty years and refused to transmit the book and literature relating thereto through the mails. Hearings were duly held and after reviewing various criteria, particularly those mentioned by the Supreme Court in the case of Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the Postmaster General concluded that “The contemporary community standards are not such that this book should be allowed to be transmitted in the mails.” [175 F.Supp. 497.]
The applicable statute declares nonmailable every “obscene, lewd, lascivious, indecent, filthy or vile article * * *” (
The majority, in my opinion, are overly influenced by “the risk run by judges in enforcing obscenity statutes” and believe that “Some of the present Justices of the Supreme Court revolt against all this supervision as violative of constitutional precepts.” This obviously is the easiest (and possibly the best) solution. In effect, repeal the statute by judicial failure to enforce it or overrule all decisions as to its constitutionality. Then, at least, the Postmaster General would be relieved of an unenviable burden and each community could enact such protective ordinances as it might deem best suited to its own standards subject always to constitutional limitations. In substance, literary local option. However, so long as the statute remains upon the books it should be interpreted and enforced according to some standards.
In almost every other field of the law in which neither judge nor administrator boast of any special competence in subjects beyond their knowledge expert testimony is usually required. So here the courts should receive evidence “to allow light to be shed on what those ‘contemporary community standards’ are.” Smith v. State of California, 1959, 361 U.S. 147, 80 S.Ct. 215, 225, 4 L.Ed.2d 205. In coping with a problem difficult at best both as to procedure and proof, the portion of the opinion of Mr. Justice Frankfurter in the Smith case seems particularly apt:
“Their interpretation [the courts’ or juries‘] ought not to depend solely on the necessarily limited, hit-or-miss, subjective view of what they are believed to be by the individual juror or judge. It bears repetition that the determination of obscenity is for juror or judge not on the basis of his personal upbringing or restricted reflection or particular experience of life, but on the basis of ‘contemporary community standards.’ Can it be doubted that there is a great difference in what is to be deemed obscene in 1959 compared with what was deemed obscene in 1859. The difference derives from a shift in community feeling regarding what is to be deemed prurient or not prurient by reason of the effects attributable to this or that particular writing. Changes in the intellectual and moral climatе of society, in part doubtless due to the views and findings of specialists, afford shifting foundations for the attribution. What may well have been consonant ‘with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time.’ United States v. Kennerley, [D.C.] 209 F. 119, 120. This was the view of Judge Learned Hand decades ago reflecting an atmosphere of propriety much closer to mid-Victorian days than is ours. Unless we disbelieve that the literary, psychological or moral standards of a community can be made fruitful and illuminating subjects of inquiry by those who give their life to such inquiries, it was violative of ‘due process,’ to exclude the constitutionally relevant evidence proffered in this case. The importance of this type оf evidence in prosecutions for obscenity has been impressively attested by the recent debates in the House of Commons dealing with the insertion of such a provision in the enactment of
the Obscene Publications Act, 1959 , 7 & 8 Eliz. 2, Ch. 66 (see 597 Parliamentary Debates, H. Comm., col. 1009-1010, 1042-1043; 604 Parliamentary Debates, H. Comm., No. 100 (April 24, 1959), col. 803), as well as by the most considered thinking on this subject in the proposedModel Penal Code of the American Law Institute” (361 U.S. at pages 166, 167, 80 S.Ct. at pages 225, 226, 4 L.Ed.2d 205) .
Whether such an approach would satisfy those who, marching under the banner of freedom and tolerance, are themselves often the most intolerant of the views of others, I do not know. Surely this minority group which preaches freedom of the press without restraint would probably nоt be willing to honor “contemporary community standards” if these differed from their own.
Nor do I find solace in the knowledge and in the thought suggested by the majority that there are other books just as bad. Following the majority‘s example and referring to the public press “No democratic society has ever yet been able to come up with a foolproof definition of the thin line between liberty and license. One of the weariest cliches in this battle is to point out that there are passages in the Bible and Will Shakespeare that are not for Little Pitchers.” (Inez Robb in the New York World-Telegram, December 15, 1959.) Many an advertisement seeking to peddle pornographic material to be sent surreptitiously through thе mails offers choice passages from well recognized Greek and Roman authors. But should the literary merit of the product of an author‘s pen give him carte blanche in case he chooses to venture into forbidden fields? Both the trial court and the majority suggest that the reputations of author and publisher should weigh heavily in deciding the issue. And so they should, were intent involved.2
Then there is the doctrine of the “book as a whole” (Parmelee v. United States, 1940, 72 App.D.C. 203, 113 F.2d 729, 737). In other words, if out of some four hundred pages there were three or four pages which clearly are in the “obscene” category, they constitute merely a de minimis one per cent and hence the good overwhelms the bad. The very proposal of such a principle should suffice to demоnstrate its impracticability as a test of whether the statute has been violated because obscenity could then parade abroad under the protective cloak of a quantity of innocuous pages.
Another Lawrence3 is more pessimistic as to the effect of the trial court‘s decision in saying “So it does look as if the sky is the limit now on the sale and distribution through the mails of pornographic books and pictures.” There would seem to be some justification for this prophecy judging by the recent book reviews and an apparent attempt to bring to light hitherto smuggled undercover poems of a well-known poet.
However, this case must be decided in accordance with contemporary judicial standards4 and therefore I reluctantly concur.
Notes
We also have the application of the Federal Communications Commission to file a brief amicus curiae. The brief may be filed; but, since we do not find before us any issue affecting that agency, we make no ruling as to it.
A point of view at least entitled to consideration appears in the book review pages of “America,” pp. 416-417, June 6, 1959, by Harold C. Gardiner (Father Gardiner), under the title “Good Intentions Can‘t Justify Results.” The reviewer differs with some of the majority‘s literary critics, saying: “For the book, despite the testimonials solicited from eminent literary figures, is simply not great literature, and that not merely because of the extremely frank passages which, it is charged, mаke the novel obscene. If the book did not carry the name of Lawrence, no one would bother too much about condemning or defending it.” As to motive he adds, “It must be said at the same time, if we are to be fair, that Lawrence, as we know him through his letters, essays and personal life, was not a ‘dirty-minded lecher,’ as has been charged and will certainly now be repeated.” He concedes “that Lawrence‘s attitudes toward sex were really the result of a fairly well-thought-out philosophy.” And believes that “Had he lived in the days of pagan Rome, one feels, Lawrence would have defended the ‘liturgical’ character of some of the obscene religious rites, and he would have defended them with a religious fervor.”