Memoirs v. Massachusetts

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 if it were sold only to exploit its prurient appeal. However, he added that the decision 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 a book based on the way it was sold. He observed that it was "inexplicable how a book that concededly has social worth can nonetheless be banned because of the 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 Massachusetts found the book obscene, while a majority in New York did not. "It substitutes majority rule where minority tastes or viewpoints were to be tolerated," he said. 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 deciding what 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 opinion in Fanny Hill, stated simply that "[h]owever tawdry those books may be, they are not hard-core pornography."