13 N.Y.2d 119 | NY | 1963
Lead Opinion
Defendants, after a trial by jury, were convicted of selling an obscene book, to wit, “ Tropic of Cancer ” by Henry Miller, in violation of section 1141 of the Penal Law
It is by now well established that the State of New York, in the exercise of its police power, may enact legislation designed to suppress the sale and distribution of salacious literature (Smith v. California, 361 U. S. 147; Roth v. United States, 354 U. S. 476). This our Legislature has done by the enactment of section 1141 of the Penal Law, which embodies the recognition that the public interest demands protection against the damaging impact of obscenity on the moral climate of the community. The need for this protection has been highlighted in recent years as the People of this State have been exposed to an ever-increasing amount of printed material featuring sex and sensationalism which, aided by new methods of merchandising, are sold not only in bookstores but from open racks in candy stores and similar outlets. As the dissemination of this material has become more widespread, there has been an increased awareness of the serious problem it creates. Legislative committees of both the State
While the State’s right to enact such legislation cannot be doubted, the application of the legislative mandate to specific
The term “ obscenity ”, however, is not susceptible of precise definition. It must be viewed in juxtaposition to time, place and circumstance, so that whether a particular work falls within the ambit of constitutional protection or is subject to regulation by the State must be determined by a case by case process of inclusion and exclusion. But, while the exact boundaries of obscenity cannot be sharply drawn, the Supreme Court, in Roth v. United States (supra) and Manual Enterprises v. Day (370 U. S. 478), set forth guidelines and prescribed the essential elements which must conjoin before it can be found that a publication is obscene by constitutional standards. The first of these elements is the so-called “prurient interest” test set forth in Both, that is, “ whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest ” (Roth v. United States, supra, p. 489). The second, contained in Manual Enterprises, requires that, in addition to the “ prurient interest ” test, it is necessary to establish that the challenged material is also “patently offensive ” to current community standards of decency (Manual Enterprises v. Day, supra, p. 482). In addition to the foregoing tests imposed by the decisions of the Supreme Court, this court interpreted section 1141 of the Penal Law in People v. Richmond County News (9 N Y 2d 578, 586) as applicable only to material which may properly be termed “ hard-core pornography ”.
It is our opinion that, judged by all three of the established legal standards, “ Tropic of Cancer ” does not fall within the class of publications entitled to constitutional protection.
Significantly, the jury was instructed that to convict the defendants they must find the book to be obscene under all of the standards discussed above, that is, the tests of ‘ ‘ prurient interest”, “patent offensiveness” and “hard-core pornography”. Formerly their determination of this question would have been deemed conclusive unless as a matter of law the writing could be said to be so innocuous as to forbid its submission
In the exercise of our duty to make an independent constitutional appraisal, we have read the book carefully and conclude that it is nothing more than a compilation of a series of sordid narrations dealing with sex in a manner designed to appeal to the prurient interest.
Defendants contend that even if “Tropic of Cancer ” is obscene when judged by the established tests, it is nevertheless, under the Roth case (supra), entitled to protection because it has “ substantial literary merit”. We do not interpret Roth, or any other authority, as establishing any such rule of law. Defendants place reliance upon the court’s statement in Roth that “ implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance ” (354 U. S., supra, p. 484). But it does not follow that the converse is true; indeed, if such were the case the holding in Roth would be vitally eroded, for the test as pronounced there is the appeal to the prurient interest of the average person in the contemporary community. It does not follow, then, that because an alleged work of literature does not appeal to the prurient interest of a small group of intellectuals that it is not obscene under the prurient interest, or for that matter any other legal test of obscenity. This would permit the substitution of the opinions of authors and critics for those of the average person in the contemporary community. The fact that a few literary figures have commented favorably on this book and have lent it their prestige does not expunge from its pages the flagrantly obscene and patently offensive matter which dominates the book as a whole.
Moreover, if a publication may not be held obscene when it appeals to the prurient interest of (or is patently offensive to) only a particular segment of the community, such as children, the pious or the prudish, then, conversely, its nonobscenity may not be gauged by the lack of impact it has on the literary community.
A book may not be judged by its cover, its introduction or the laudatory comments contained in the publisher’s blurbs — rather it must be judged by its actual contents. It requires little perception or imagination to conceive that the actual contents of a book may completely negate these testimonials and indorsements. Nor does the fact that the author enjoys Avide acclaim as a Avriter control, for the book must be judged, not by the reputation of the author, but by Avhat he writes in it. To hold otherwise Avould give recognized writers the freedom to traffic
There still remains for consideration and disposition the issue of scienter, for even though a publication is obscene, a conviction may not stand without proof of scienter on the part of those charged with a violation of section 1141 of the Penal Law.
We are without power to make a final disposition of this issue now. The County Court’s reversal of the defendants’ convictions and the dismissal of the information was on the law and the facts. Its opinion makes it evident that, while the dismissal of the information was based on its conclusion that ‘ ‘ Tropic of Cancer ” was not obscene as a matter of law, the jury’s finding on the issue of scienter was against the weight of the evidence. Accordingly, a new trial must be ordered.
The order appealed from should be reversed and a new trial ordered on the issue of scienter.
. § 1141. Obscene prints and articles.
“1. A person who sells, lends, gives away, distributes, shows or transmutes, or offers to sell, lend, give away, distribute, show or transmute, or has in his possession with intent to sell, lend, distribute, give away, show or transmute, or advertise in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, card, phonograph record, picture, drawing, photograph, motion picture film, figure, image, phonograph record or wire or tape recording, or any written, printed or recorded matter of an indecent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such character; or any article or instrument of indecent or immoral use, or purporting to be for indecent or immoral use or purpose, * * *
“ Is guilty of a misdemeanor ”.
. In 1963 the Report of the New York State Joint Legislative Committee to Study the Publication and Dissemination of Offensive and Obscene Material under “ Conclusions ”: “ That the wide availability of obscene and near obscene materials is undermining our standard of conduct, fostering disrespect for duly constituted authority and contributing to delinquency and crime.”
In 1962 report of the same committee (N. Y. Legis. Doc., 1962, No. 77, p. 11) : “As indicated in prior reports, it [the Committee] has specifically concluded that disseminations of this type [referring to glorifying and condoning immoral acts or which describe lurid, illegal or unnatural sex practices] are contributing to juvenile delinquency, inciting to sex crime, leading to perversion and posing a serious threat to our standards of morality.”
. “ Hearings before Subcommittee on Constitutional Amendments and Subcommittee to Investigate Juvenile Delinquency of the Committee on the Judiciary United States Senate Eighty-sixth Congress First and Second Sessions.”
. “ STATEMENT ON SALACIOUS LITERATURE
By
The New York Academy of Medicine Committee on Public Health
“ On the basis of the incomplete information submitted to it, the Academy is of the opinion that the reported increase in sales of salacious literature to adolescents is one of a number of social ills reflecting a breakdown in the home and an inadequate environment. Since adverse forces seem to be concentrated
“ The Academy believes that although some adolescents may not be affected by the reading of salacious literature, others may be more vulnerable. Such reading encourages a morbid preoccupation with sex and interferes with the development of a healthy attitude and respect for the opposite sex. It is said to contribute to perversion. In the opinion of some psychiatrists, it may have an especially detrimental effect on disturbed adolescents.
“ Behavior is complex. It is difficult, if not impossible, to prove scientifically that a direct causal relation exists between libidinous literature and socially unacceptable conduct. Yet, it is undeniable that there has been a resurgence of venereal disease, particularly among teen-age youth, and that the rate of illegitimacy is climbing. It may be postulated that there is a correlation between these phenomena and the apparent rise in the sale of salacious literature, and perhaps it is causal, but the latter observation cannot be definitely demonstrated. It can be asserted, however, that the perusal of erotic literature has the potentiality of inciting some young persons to enter into illicit sex relations and thus of leading them into promiscuity, illegitimacy and venereal disease.”
. Obscene and filthy passages are to be found on the following pages in the hard cover edition: 4, 5, 6, 7, 16, 18, 20, 24, 25, 28, 32, 36, 39, 40, 42, 43, 44, 45, 46, 47, 52, 53, 54, 56, 58, 59, 60, 62, 73, 80, 85, 87, 89, 92, 97, 100, 101, 102, 103, 104, 105, 107, 111, 112, 113, 114, 115, 116, 117, 118, 120, 121, 122, 123, 124, 126, 127, 134, 135, 139, 140, 141, 142, 144, 145, 146, 156, 159, 160, 171, 172, 175, 188, 190, 193, 202, 203, 207, 215, 216, 217, 220, 225, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 246, 247, 248, 249, 250, 256, 257, 258, 259, 272, 273, 274, 282, 283, 288, 289, 290, 291 and 292.
Concurrence Opinion
(concurring). I concur for reversal. If this book had not been written by a recognized author, if it did not contain some “ good writing” and if it were not approved by well-known reviewers, no one, I venture, would deny that it is obscene by any conceivable definition, narrow or tolerant. Its own cover blurb boasts of its “ unbridled obscenity ”. From first to last page it is a filthy, cynical, disgusting narrative of sordid amours. Not only is there in it no word or suggestion of the romantic, sentimental, poetic or spiritual aspects of the sex relation, but it is not even bawdy sex or comic sex or sex described with vulgar good humor. No glory, no beauty, no stars — just mud. The whole book is “sick sexuality”, a deliberate, studied exercise in the depiction of sex relations as debasing, filthy and revolting. On page 483 of 370 U. S., Justice Hablan’s opinion in Manual Enterprises v. Day quotes the New International Dictionary’s long series of definitions of “ obscene ”. It is a remarkable fact that “ Tropic of Cancer ” fits every single one of those numerous meanings.
Nowhere in the controlling decisions of the United States Supreme Court is there to be found a concise, objective legal definition of unconstitutional obscenity and it is not disrespectful or uncharitable to say that the efforts to articulate such a definition have been unsuccessful. Tersely it is written in Roth
But though left without a sure definition we have been provided in Roth v. United States (354 U. S. 476, supra) and Manual Enterprises v. Day (370 U. S. 478, supra) with a listing of marks or tests the presence of which will, apparently, call down the obscenity ban and cast the material outside First Amendment protections. Let us apply this checklist to “ Tropic of Cancer ”.
(1) —“ Predominant appeal to prurient interest” — to a “ shameful or morbid interest in nudity, sex, or excretion” (Roth, 354 U. S., supra, p. 487). If the “ appeal ” — that is, the main thrust or idea or motif or scheme■ — of this book is not directed at such an 1‘ interest ’ ’, then the work has no purpose or meaning at all.
(2) —“ Goes substantially beyond customary limits of candor in description or representation of such matters ” (Roth, 354 U. S., supra, p. 487). I will assume this refers to the limits observed in reasonably civilized society, not in stews. “ Tropic of Cancer ” is a conscious and persistent shock treatment and only the shock-proof will escape the impact. On at least half its pages it overleaps candor’s limits by a measurable distance.
(3) —“ Contemporary community standards” (Both, 354 U. S., supra, p. 489) or “ contemporary notions of rudimentary decency ” (Manual Enterprises, 370 U. S., supra, p. 489) —this gloss or excrescence on the Model Penal Code definition of obscenity is difficult to understand or apply since “ predominant appeal ” is an objective quality of the material and “ community standards” are the subjective reactions of the citizenry of a place or region. If we are to use community standards as a test, the only feasible testing method is by submission to a jury as was recognized by our own court long ago in People v. Pesky (254 N. Y. 373). Of course a jury cannot repeal the First Amendment but when a jury (as here) makes a finding of obscenity as to material not unreasonably deserving that epithet, there can be no violation of the Constitution. Where the book taken as a whole can under permissible constitutional standards be reasonably
(4) —“Patent offensiveness” (Manual Enterprises, 370' U. S., supra, p. 486) — how could this book be characterized as less than “ patently offensive ”?
(5) —“ Taken as a whole ” — that is, the material must be judged as a whole and not condemned by reason of isolated offensive passages. It is to be “ approached as an aggregate of different effects, and the determination turns on whether the salacious aspects are so objectionable as to outweigh whatever affirmative values the book may possess ” (American Civil Liberties Union v. City of Chicago, 3 Ill. 2d 334, 346). The caveat to look at the whole record is really unnecessary here since “ Tropic of Cancer ” (on about half its pages by count) is crowded with filth and the ‘ ‘ isolated excerpts ’ ’ are the connecting, interspersed ruminations of the author on life and liberty. The Illinois Supreme Court in the opinion just above cited held that a book is not be judged obscene because of over-frank sexy language or incidents if ‘ ‘ considered in the light of the work as a whole ” those objectionable segments “ do not represent a calculated exploitation of dirt for dirt’s sake, but are fairly incidént to some other artistic purpose ” (pp: 345-346). Here there is no discernible artistic purpose, no development of any theme or idea except plain, old-fashioned filth.
I am aware that the Supreme Court in three Per Curiam decisions (One, Inc., v. Olesen, Sunshine Book Co. v. Summer-field and Times Film Corp. v. City of Chicago, all in 355 U. S.) has held unconstitutional the suppression of two magazines and a movie film each of which went well beyond the customary limits observed in civilized society. But something must remain of the ancient police power of the States and their Legislatures and their juries to ban stuff as filthy as “ Tropic of Cancer ”. Local communities and their governance are not helped by a literal, doctrinaire reading of “ Freedom of the Press ”, Sound ideas should not be stretched to extreme lengths and unworkable results. It is just unthinkable that the practical political thinkers who wrote the Bill of Bights ever intended to protect downright foulness.
The County Court’s opinion as incorporated into its order held as matter of law that the book is not obscene. However, the court held also that the finding as to scienter was against the weight of evidence. Therefore, there must be a new trial on the latter issue.
Dissenting Opinion
(dissenting). In order to sustain the judgment of conviction rendered in the Court of Special Sessions of the City of Syracuse against these defendants for the sale of the book ‘ ‘ Tropic of Cancer ’ ’ in violation of subdivision 1 of section 1141 of the Penal Law, a majority of this court is about to rule that the book, however viewed, is obscene within the meaning of the statute. This ignores a fundamental and basic concept of justice that a conviction had for violation of that section, like a conviction had for the violation of any other penal statute, must rest upon proof of guilt beyond any reasonable doubt, and this must include proof beyond any reasonable doubt that this book was obscene within the meaning of the statute. "Whether the book is obscene as a matter of constitutional judgment is indeed questionable, so questionable in fact that the court below had no difficulty in setting aside the conviction, dismissing the information and remitting the fine.
That doubt still persists for, however analyzed, the decision now being rendered is no more than an expression of individual view having no support aside from its own pronouncement. Respected and eminent book reviewers have found it ‘£ not obscene the British government has announced that it will not prosecute its dissemination under the Obscene Publications Act (New York Times, April 12,1963) and wherever considered in the high appellate courts of our sister States the book has been held to be not obscene (see Zeitlin v. Arnebergh, 59 Cal.
The book, first published in 1934, is to be found on the shelves of public libraries and libraries of institutions of learning. It has been and is being sold freely throughout the United States and foreign countries. In light of the acceptance by eminent men of letters, government administrators and rulings from high courts of appeal, it is reasonable to assume that, when the proprietors and employees of one of the largest retail book stores of the State sold it freely and openly across the counter, they did so believing that such sale was in harmony with contemporary community standards and in no way violative of a criminal statute. Under such circumstances scienter became an essential element of proof. That such fact can ever be established in this instance seems very doubtful in light of other judicial pronouncements on the same work by the highest courts of other States (see Zeitlin v. Arnebergh, supra; McCauley v. “ Tropic of Cancer ”, supra; Attorney General v. Book Named “ Tropic of Cancer ”, supra) as well as the pronouncements of the Supreme Court of the United States on other occasions. 2 The community cannot, where liberty of speech and press are at issue, condemn that which it generally tolerates.” (Smith v. California, 361 U. S. 147, 171.)
The concept of obscenity, as we have heretofore stated, is “ imprecise ” (Brown v. Kingsley Books, 1 N Y 2d 177, 181-182, affd. 354 U. S. 436); if a publication is to be suppressed for reasons of obscenity the question “ whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment ” (Roth v. United States, 354 U. S. 476, 497-498 [Harlan, J.]). There are no better standards available defining the meaning of the free press guarantees of the First Amendment as applied to publications than those laid down by the Supreme Court of the United States (Bantam Books v. Sullivan, 372 U. S. 58; Manual Enterprises v. Day, 370 U. S. 478; Marcus v. Search Warrant, 367 U. S. 717; Smith v. California, 361 U. S. 147, supra; Roth v. United States, 354 U. S. 476, supra; Kingsley Books v. Brown, 354 U. S. 436, supra [cf. People v. Richmond County News, 9 N Y 2d 578]).
It cannot be gainsaid that the profusion of four-letter words used by the author to portray the mental and moral slough into which some of his characters had sunk is unsuited for the drawing room. In “Tropic”, as in Joyce’s “Ulysses” however, the erotic passages are “ submerged in the book as a whole and have little resultant effect ” (United States v. One Book Entitled Ulysses, 72 F. 2d 705, 707). Like “ Ulysses ”, it is a “ tragic and very powerful commentary” on the inner lives of human beings caught in the throes of a hopeless social morass. Written in Paris in 1934 at a time when Europe was reeling from the aftermath of the devastating moral and material destruction of World War I, the book reflects the debasing experiences and problems known to many in a city such as Paris in the 1930s. In an effort to escape the clutching insistence of an all-engulfing miasma, the author describes his own and his companion’s sexual indulgences, tediously repeated, to rediscover that surrender to such demeaning conduct was not the antidote to the underlying human unhappiness caused by the poverty, filth, disease, loneliness and despair in a world in flux. In dealing with Gautier’s “Mademoiselle de Maupin ” in Halsey v. New York Soc. for Suppression of Vice, (234 N. Y. 1, 4) we said “ No work may be judged from a selection of [a few] paragraphs alone. Printed by themselves they might, as a matter of law, come within the prohibition of the statute. So might a similar selection from Aristophanes or Chaucer or Boccaccio or even from the Bible ”. The book should neither be appraised nor condemned by the tone of a few passages wrested from context and viewed in a vacuum. It “ must be considered broadly as a whole ”. (Halsey v. New York Soc. for Suppression of Vice, supra, p. 4.)
When so read, its content does not meet the test of “ hard-core pornography” which we announced in People v. Richmond County News (9 N Y 2d 578, 586, supra), nor does the book contain, in the words of Mr. Justice Harlan, “ patently offensive ” material and have its predominant appeal to the “prurient interest ’ ’— the criteria enunciated by the Supreme Court in Manual Enterprises v. Day (370 U. S. 478, 486, supra).
The order appealed from should be affirmed.
Dissenting Opinion
(dissenting). A discussion of the meaning of “ obscene ” under section 1141 of our Penal Law (see People v. Richmond County News, 9 N Y 2d 578, 585-587) is unnecessary in this case, since in our judgment “ Tropic of Cancer ” finds protection under the minimal standards laid down by the United States Supreme Court under the First Amendment. Applying such standards, a book — which is to be judged in its entirety and not by focusing attention on particular words and passages contained in it — may be stamped as obscene, and beyond the pale of constitutional protection, only if it is ‘ ‘ utterly without redeeming social importance ’ ’ and only if its ‘ ‘ dominant theme ” is an appeal to “prurient interest ”. (See Roth
value, if it is a serious work of literature or art, then it possesses redeeming social importance and obtains the benefit of the constitutional guarantees.” (Zeitlin v. Arnebergh, 59 Cal. 2d 901, 918; see, also, United States v. One Book Called Ulysses, 5 F. Supp. 182, affd. 72 F. 2d 706; Commonwealth v. Gordon, 66 Pa. Dist. & Co. B. 101, affd. sub nom. Commonwealth v. Feigenbaum, 166 Pa. Super. Ct. 120.)
Since ‘1 Tropic ” is a serious expression of views and reactions toward life, however alien they may be to the reader’s philosophy or experience, and since the book is not without literary importance as attested by recognized critics and scholars, the First Amendment does not permit its suppression.
The order of the Onondaga County Court reversing the convictions and dismissing the information should be affirmed.
Opinion by Judge Scileppi in which Chief Judge Desmond and Judges Burke and Foster concur; Chief Judge Desmond concurs in a separate opinion in which Judges Scileppi, Burke and Foster concur; Judges Dye and Fuld dissent in separate opinions in each of which the other concurs, Judge Van Voorhis concurring in both dissenting opinions.
Order reversed, etc.
. For an analysis and critique of the book, see discussion in Zeitlin v. Arnebergh (59 Cal. 2d 901, 921-922, supra).
