Memoirs v. Massachusetts

Petitioner
A Book Named "John Cleland's Memoirs of a Woman of Pleasure," G. P. Putnam'sSons
Respondent
William I. Covin, Assistant Attorney General of Massachusetts
Petitioner's Claim
That the book John Cleland's Memoirs of a Woman of Pleasure, better known as Fanny Hill, was entitled to protection under the First and Fourteenth Amendments, and that the Massachusetts Supreme Judicial Court erred when it found that a book which appealed to the prurient interest was not required to be completely worthless to be ruled obscene.
Chief Lawyer for Petitioner
Charles Rembar
Chief Lawyer for Respondent
William I. Cowin
Justices for the Court
Hugo Lafayette Black, William J. Brennan, Jr. (writing for the Court), William O. Douglas, Abe Fortas, Potter Stewart, Earl Warren.
Justices Dissenting
Tom C. Clark, John Marshall Harlan II, Byron R. White
Place
Washington, D.C.
Date of Decision
21 March 1966
Decision
The Supreme Court found that the book was not obscene, and that the First andFourteenth Amendments prevented Massachusetts from prohibiting its publication or distribution. However, the justices did not agree on why the book constituted protected speech, and no majority opinion was delivered.
Significance
The case added to the debate among First Amendment scholars concerning definitions of obscenity and the authority to deem printed materials as works without merit.
Lower Court Found Fanny Hill Obscene
John Cleland wrote Memoirs of a Woman of Pleasure in about 1750. In the 1960s, the attorney general of Massachusetts filed a suit against the bookitself to declare it obscene, an unusual proceeding permitted under Massachusetts law. Publisher G. P. Putnam's Sons, who had published the book, intervened in the suit. A hearing was held before a trial judge, who reviewed the book and took evidence from experts to assess its literary, cultural, and educational character. The trial judge found the book obscene and therefore not entitled to the protection of the First and Fourteenth Amendments. The Massachusetts Supreme Judicial Court affirmed the trial court's ruling.
Justice Douglas noted in his opinion that Fanny Hill was "concededly .. . an erotic novel." As described by Douglas, the book is the story of a young girl who becomes a prostitute in London, but eventually abandons that life to marry her first lover. He noted that expert witnesses at the trial introduced "considerable and impressive testimony to the effect that this was a work of literary, historical, and social importance." Rev. John R. Graham observed, in a speech appended to Douglas's opinion, that the book was feared morebecause it raised serious questions about what is, and is not, moral, ratherthan because of its sexual scenes. Douglas noted that the book had survivedfor over 200 years despite many efforts to ban it, and that libraries and universities sought to purchase copies when it was published. However, Justice Clark said in his opinion that the book was solely about sex, noting the explicitness of the sexual activities portrayed in it.
The case was decided along with two other obscenity cases, Ginzburg v. United States and Mishkin v. New York. Both of those cases involved criminal charges, and in both cases the Supreme Court upheld convictions for violation of obscenity laws. In those cases, Justices Brennan, Warren, and Fortas agreed with the dissenters in the Fanny Hill case that the materials in question were obscene. In his opinion, Brennan set out the three pointtest the Court had defined in its earlier decision in Roth v. United States: "(a) the dominant theme of the material taken as a whole appeals to aprurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters, and (c) the material is utterly without redeeming social value."
Justice Douglas Noted Definition of Obscene Objective
Brennan concluded that the Massachusetts court misinterpreted the social value standard, noting that it erred in determining that a book could be considered obscene even if it were not "unqualifiedly worthless." Brennan wrote that"[E]ach of the three federal constitutional criteria is to be applied independently." He added that the "social value can neither be weighed against nor canceled by its prurient appeal or patent offensiveness." Brennan also suggested, however, that it might be possible to find that a book that would otherwise be constitutionally protected would have no redeeming social importance ifit were sold only to exploit its prurient appeal. However, he added that thedecision before the Court was based solely on an abstract review of the book, and not on the circumstances of its publication.
Douglas disagreed with Brennan on the idea that it might be possible to ban abook based on the way it was sold. He observed that it was "inexplicable howa book that concededly has social worth can nonetheless be banned because ofthe manner in which it is advertised and sold. However florid its cover, whatever the pitch of its advertisements, the contents remain the same."
Douglas also questioned the wisdom of leaving the review of books for obscenity in the hands of judges, noting that a majority of judges in Massachusettsfound the book obscene, while a majority in New York did not. "It substitutesmajority rule where minority tastes or viewpoints were to be tolerated," hesaid. He also noted that there is no definition of obscene in the common law,no unity in the definitions of what is, and is not, obscene. He concluded that the First Amendment "demands more than a horrible example or two or the perpetrator of a crime of sexual violence, in whose pocket is found a pornographic book, before it allows the Nation to be saddled with a regime of censorship." The First Amendment, he added, does not give the government power over the expression of ideas.
In his dissent in the companion cases of Mishkin and Ginzburg,which he listed as his reason for concurring in the result, Black stated firmly that the First Amendment, which was made applicable to the individual states by the Fourteenth Amendment, gives the states "no power at all . . . to make the expression of views a crime." In his interpretation, the wording of the First Amendment means literally what it says: governments can pass "no law"that restricts the freedom of speech or the press. While Black held to his opinion that the First Amendment completely prohibits censorship, he noted that the Court was an inappropriate organization for deciding what is, and is not, obscene. Black wrote: "If censorship of views about sex or any other subject is constitutional, then I am reluctantly compelled to say that I believe the tedious, time-consuming and unwelcome responsibility for finally decidingwhat particular discussions or opinions must be suppressed in this country should . . . be vested in some governmental institution or institutions other than this court."
Stewart's dissent in the two companion cases, cited as his concurring opinionin Fanny Hill, stated simply that "[h]owever tawdry those books may be, they are not hard-core pornography."
Dissenting Justices Find Differing Conclusions
Clark, writing in dissent, argued that the other justices had misinterpretedRoth. Quoting from Roth, he said the test for obscenity was, "whether, to the average person, applying contemporary community standards, thedominant theme of the material, taken as a whole, appeals to prurient interests." Clark also noted that he found the book, "too much even for me." He suggested that allowing "utterly without redeeming social value" to be the deciding factor would allow the "smut artist free rein."
Clark also examined the book and testimony. He concluded that it had "no substance," adding that the "sole response evoked by the book is sensual." He also suggested that the idea that pornographic materials may cause antisocial behavior should be incorporated into the social value test.
Harlan's dissent argued that the First Amendment permitted federal suppression of hard core pornography. While he agreed that Fanny Hill did not meet that definition, he said that the application of the First Amendment by the states allowed for a looser definition. Under his view, states could prohibit obscene material if they applied "criteria rationally related to the accepted notion of obscenity," and reached "results not wholly out of step with current American standards."
White concluded in his dissent that the social value test should not be applied separately from a determination of whether the book appealed to the prurient interest.
Impact
Six justices of the Supreme Court agreed that Fanny Hill was not obscene and that its publication and distribution was protected by the First and Fourteenth Amendments. However, their lack of agreement on why publication should be permitted left the law on obscenity unclear. Justice Brennan applied the obscenity test set in Roth v. United States (1957) requiring that abook appeal to the prurient interest, be patently offensive, and "utterly without redeeming social value," and determined that the book was not obscene.Justice Douglas concluded that the First Amendment does not make an exceptionfor obscenity. Justices Black and Stewart referred to their dissenting opinions in two companion cases, Ginzburg v. United States (1966) and Mishkin v. New York (1966), in which works were found obscene. Black said the Court had no constitutional power to censor speech. Stewart said the material in question was not obscene. Their diverse opinions on the manner revealthe difficult nature of cases involving obscenity, an issue that would receive further attention in cases in later years.
Related Cases

• Roth v. United States, 354 U.S. 476 (1957).
  
• Ginzburg v. United States, 383 U.S. 463 (1966).
  
• Mishkin v. New York, 383 U.S. 502 (1966).

Banned Books
The 1994 book Banned in the U.S.A., offers a list of the 50 books mostoften banned or challenged in the 1990s. In the number-one slot is Impressions by Jack Booth and others (1984-87), a series of language-arts textbooks for children from kindergarten through sixth grade. Used in 34 states, it has been the basis of numerous challenges from parents who hold that it teaches "witchcraft, mysticism, and fantasy [along with] themes of rebellion against parents and authority figures."
The remainder of the top-five list includes Of Mice and Men, by John Steinbeck (1937), challenged mainly on the basis of the profanity contained init; The Catcher in the Rye, by J. D. Salinger (1951); The Adventures of Huckleberry Finn, by Mark Twain (1885), for its racial epithets; and The Chocolate War, by Robert Cormier (1974), because it portrays school and church in a negative light.
A significant number of books on the list have won Newbery, National Book, Pulitzer, or even Nobel prizes: A Wrinkle in Time, by Madeleine L'Engle,I Know Why the Caged Bird Sings, by Maya Angelou, and One HundredYears of Solitude, by Gabriel Garcia Marquez.
Sources
Foerstel, Herbert N. Banned in the U.S.A: A Reference Guide to Book Censorship in Schools and Public Libraries. Westport, CT: Greenwood, 1994.