Thе sole question is whether Gustave Flaubert’s. book “ November ” is or is not obscеne or indecent within the meaning of section 1141 of the Penal Law.
The criterion of decency is fixed by time, place, geography and all the еlements that make for a constantly changing world. A practice regаrded as decent in one period may be indecent in another. The рractice of “ bundling ” approved in Puritan days, would be frowned upon todаy.
Although section 1141 of the Penal Law has been on our statute books since 1884, the test that the book is required to meet is the measure of public oрinion in the city of New York in the year 1935.
Judge Learned Hand, in United States v. Kennerley (
In St. Hubert Guild v. Quinn (
Twenty-five years ago women were arrested and conviсted for appearing on the beach attired in sleeveless bathing suits, оr without stockings.
The language of the law under which they were convicted is identical with the language of the statute today. The ordinance required thе wearing of bathing suits that would not “indecently” expose the body. While the language of the ordinance has remained unchanged, the public point of view has undergone distinct change.
In 1906 the play “ Sappho ” was suppressed because the leading lady was carried up a flight of stairs in the arms of a man. In 1907 Mary Garden was prevented from appearing in the opеra “ Salome.” I could multiply such examples endlessly. Whether we like it or not, the fact is that the public concept of decency has chаnged. What was regarded as indecent in the days of the Floradora Sextette is decent in the days of the fan and bubble dances.
It is not my function as a judge to express agreement or disagreement with the present accepted standards.
To change standards of morals is the task of school and church; the task of the judge is to record the tides of public opinion — not to emulate King Canute in an effort to turn back the tide. My duty is to act as оbserver and recorder — not as regulator.
As Mr. Justice Cardozo has observed in “ Paradoxes of Legal Science ” (at p. 37): “ Law accepts as the pattern of its justice the morality of the community whose conduct it assumes to regulate. * * * The law will not hold the crowd to the morality of saints аnd seers.”
I have read the book carefully. Viewing it in the 1935 mirror of public opinion, it reflects no violation of section 1141 of the Penal Law. In every community, public opinion of the day should con-1 trol the judicial application of “ decency ” statutes. If the court fаils to adopt this standard, then the law becomes, as Prof. Wormser has said (Cоlumbia Law Review, Dec. 1923): “ not a true mirror of life as it should be, but a bewildering distortion, alike perplexing and misleading, of which the ordinary man or woman beсomes properly distrustful.”
The obscenity statute was not intended to suppress bona fide literary effort but rather to prohibit the exploitаtion of smut — dirt in the raw. (People v. Wendling,
For the reasons above stated, I hold as a matter of law that there is not sufficient cause to hold the defendant for trial.
Complaint dismissed, defendant discharged.