Memoirs v. Massachusetts

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 a book 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 exception for 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 reveal the difficult nature of cases involving obscenity, an issue that would receive further attention in cases in later years.