Memoirs v. Massachusetts

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 book itself 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 more because it raised serious questions about what is, and is not, moral, rather than because of its sexual scenes. Douglas noted that the book had survived for 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 point test 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 a prurient 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."