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Citation: 8 St. Louis U. L.J. 279 1963-1964
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OBSCENITY AND CONSTITUTIONAL FREEDOM-
PART It
M. C. SLOUGH*
P. D. MCANANY, S.J.**
OBSCENITY: THE STANDARD
The Early Years

The very word "obscenity" invites disagreement, and necessarily
so because it can never have meaning out of context. It is a relative
term. A Latin word, it is possibly derived from ob (on account
of) and caenum (filth).' The common dictionary definition resorts
to a list of synonyms which simply attempts a description of very
human reaction to that which is obscene. As humans and cultures
differ, so will basic reactions differ; yet the mere fact of disagree-
ment should not suggest that framing a satisfactory definition in
any given case is an impossible task. The futility approach is as
2
unwise.as it is illogical.
Obscenity has generally been relegated to matters related to sex,
or more precisely, debasement of sex and the sex instinct. It may
also include exposure of the excremental, however this aberrant
behavior may well in most instances be classified as a sexual anom-
" This is the first of a two-part treatise. The second installment will appear
in the summer edition of this Journal.
* A.B. Columbia University; LL.B. Indiana University; Former Dean, University
of Kansas Law School.
A.B. Rockhurst College; M.A. Saint Louis University; LL.B. Harvard
University.
1. Closely allied in meaning is the word pornography, which is Greek in origin,
deriving from 7ropvoypa,0o, (the writing of harlots). "We may define pornography,
cross-culturally, as words or acts or representations that are calculated to stimulate
sex feelings independent of the presence of another loved and chosen human
being." Mead, Sex and Censorship in Contemporary Society, in NEw WORLD
WRITING 18 (Third Mentor Selection 1953). It is sometimes contended that
pornography has a narrower meaning than obscenity, being limited therefore to
sexual aberration or perversion. D. H. Lawrence has defined "genuine pornography"
as that which insults sex and the human spirit. LAWRENCE, PORNOGRAPHY AND
OBSCENITY 13 (1929). Heywood Broun equated "pornography" with "sheer nastiness."
BROtN AND LE.Ecii, ANTHONY COMSTOCK 268-69 (1927).
2. Many legal words or expressions in common use defy precise definition.
What, for example, constitutes justifiable homicide, or malice when employed in
connection with the offense of murder? What is to distinguish recklessness from
simple negligence? Who is the ordinary, reasonable, prudent man, -and who -can
draw a sketch signifying the preponderance of evidence? Has any living person
ever submitted such an inspiring definition of res gestae as to earn universal
acceptance?
SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 8:279
aly.5 ' Many and varied instigations to sexual desire have filtered
through the literature and drama of western civilization, but these
appeals to the erotic may qualify as works of art. It thus becomes
clear that many societies from the dawn of history have placed
their stamps of approval upon certain forms of eroticism in litera-
ture and other media; nevertheless, these same societies have
usually defined their own customary limits of candor beyond
which the erring citizen may not pass.
We are aware of the fact that western civilization has known
both pornography and obscenity at every stage of its development.
Erotic songs and poems were in a very real sense part of the fabric
of ancient'Greek culture. In Sparta, on the feast of Dionysius, it
was customary for poets to take part in public processions in which
they regaled the populace with ribald, obscene songs and pleasan-
tries. Greek drama, though closely connected with religion, was
frequently obscene, and this freedom or license granted to the
author may have derived from the fact that audiences were male,
and feminine sensibilities were not considered. Plutarch thought
some of the comedies of Aristophanes were obscene and Plato
was one who advocated expurgation of The Odyssey to make it
more suitable for juvenile readers. 4 Even the great Socrates, in his
relentless search for wisdom, was inclined to shiver when reflect-
ing upon the fearful and terrifying. titles chosen.by contemporary
writers. 5
Ovid was banished from Rome for writing Ars Amatoria, and
though his comments upon the arts of love may now be acceptable
in Latin, they are still obscene in English. Plautus and Terence
wrote obscene plays employing libertines and prostitutes as central
characters in a day when pornographic writers won patrons among
the upper classes."
Obscenity is conspicuous in the literature of early England,
particularly in the Anglo-Saxon Riddles.7 Ballads of the era were
3. In the condition recognized as coprophilia, the feces become a cause of
sexual stimulation, meaning that the sexual stimulus is displaced from the person
to his excrement. Similar displacement may occur to any bodily excretion. In a
related condition, coprophagia, the eating of the feces may serve as a sexual
stimulus. Likewise there may be a desire to eat or drink other secretions or
excretions as a source of sexual satisfaction. The American Law Institute's Model
Penal Code, Proposed Official Draft, (May 4, 1962), § 251.4(1), defines obscenity as
material whose predominant appeal is to prurient interest, which in turn is a
shameful or morbid interest in nudity, sex, or excretion.
4. THE REPUBLic 71 (Everyman Edition 1935).
5. Id. at 67.
6. The Golden Ass of Apuleius was banned in Cleveland as late as 1953 for the
reason that the title might give offense.
7. See, e.g., Anglo Saxon Riddles, Nos. 44 & 25.
1964] OBSCENITY AND CONSTITUTIONAL FREEDOM
as unashamed as they were ingenuous, and the court poet Chaucer

mirrored few inhibitions, as a reading of The Miller's Tale will
evidence. In medieval times, the Church acted as censor but the
major concern was heresy, not obscenity. Savanarola incinerated
The Decameron in 1497, yet his fanaticism was atypical of the age;
and Boccaccio was not to feel the sting of official rebuke until
1559 when The Decameron was banned because it satirized the
clergy. 8
Elizabethan England delighted in course and robust humor.
Hence, it might be expected that the Tudors and Stuarts censored
sparingly.9 During the Commonwealth period, a series of decrees
aimed at "abuse of printing" attended a rigorous campaign to
regulate the printing of books; 10 but during the Restoration era
to follow, literature and drama accurately reflected the immorality
of aristocratic patrons of the arts who formed a select circle
around the court at Whitehall." With the advent of the House of
Orange late in the seventeenth century, there developed a middle
class interest in reformation of public manners and morals; and
doubtless the seeds of a self-imposed censorship were sown in
those times, to take root during the century to follow and to
achieve full expression in the Victorian conscience of a still later
da .12 The heady current of Puritanism that has long filtered
8. The famous Index Librorum Prohibitorum was a fact at the close of the
Council of Trent in 1563. Few publications of the modern age, considered risque
by a contemporary reading public, are listed in its latest edition. For example,
names such as Joyce, Henry Miller, Proust, Genet, and D. H. Lawrence are missing.
Of Unamuno's total production, only The Tragic Sense of Life and The Agony of
Christianity are banned; of Simone de Beauvoir's efforts, only The Second Sex and
The Mandarins. Diderot's Jacques the Fatalist is listed, but his Religieuse (a lurid
expose of evils attendant upon placing unwilling girls in the convent) is not
included. Erasmus and Boccaccio are no longer listed.
9. There is no mention of obscene libel in Coke's report De Libellis Famosis
of 1606, nor does he refer to the offense when he treats of libel in his Institutes.
From 1640 until 1727, all obscenity offenses were relegated to the jurisdiction of
the ecclesiastical courts.
10. For a list of these decrees, see CATALOGUE OF THoarASON TRACrs (British
Museum 1908). They were issued in 1647, 1648, 1649, and 1655.
11. The world of Dryden, Rochester, and Sedley, and later Congreve and
Farquhar, saw scant reason for oppressing obscenity; nevertheless, the censor's
stamp was attached to Sodom, published in Antwerp in 1684, and public per-
formances of the drama were banned for all times.
12. The eighteenth century witnessed not only a significant increase of publica-
tion effort but likewise a rash of frank, uninhibited prose and verse. Among many
bawdy and suggestive pieces were Smollett's The Adventures of Roderick Random
(1748); Cleland's Fanny Hill or the Memoirs of a Woman of Pleasure (1748);
Fielding's Tom Jones (1749); Sterne's Tristram Shandy (1760). Public delight for the
"horror" novel was to bulge and wane during this century. In 1764 Horace Walpole
published The Castle of Otranto, followed by Clara Reeve who wrote The Old
English Baron. The Mysteries of Udolpho by Anne Radcliffe appeared in 1794,
and a year later Matthew Lewis published The Monk, a hastily written contribution
SAINT LOUIS UNIVERSITY LAH' JOURNAL [Vol. 8:279
beneath the bedrock of a stable English society overflowed with

full vigor during the nineteenth century only to nourish a newly
dedicated enthusiasm bent upon moral austerity. There may have
been toleration with respect to expressions of opinion in religion
and politics, but intolerance of free discussion about sexual re-
lationships and immoralities was the order of the day. Whether
the product of Evangelicalism, 13 Benthamism, t 4 or Bowdlerism, 15
the general feeling extant was that love of literature, and parti-
cularly the novel, might well be equated with skepticism, disbelief
in God, and neglect of private prayer.
Three immortal poets, Byron, Keats, and Shelley, knew almost
constant reproachment for their filth and pruriency.' 6 Even the
Brontfs were to feel the barbs of censure. Lady Eastlake attacked
Jane Eyre for its "horrid taste" and "coarseness of language,"
while heaping praise upon the subtler revelations of Thackeray's
notorious for its ghastliness. Fitting the pattern for all ages, the book achieved
success in direct proportion to the vehemence displayed by its critics.
Obscene libel was first recognized as a common law offense in Curl's Case, 2 Stra.
788 (1727). Curl had published a pornographic book, Venus in the Clositer or the
Nun in her Smock, and despite doubts as to the existence of a breach of the
peace, he was condemned to the pillory at Charing Cross. In this manner the
misdemeanor of obscene libel became part. of. the common law and has never
since been seriously challenged. Although Curl was condemned for publishing a
pornographic book, it must be noted that no attempt was made throughout 'the
century to prosecute publishers or authors of literary merit. An unsuccessful
attempt was made to enjoin circulation of The Monk by Matthew Lewis, but
prosecution was not in evidence. For a scholarly presentation of the subject in
broad compass, see ST. JOHN-STEvAs, OBSCENITY AND THE LAW (1956).
13. By the dawn of the ninteenth century, the strength of Evangelical Christi-
anity could not be questioned. The Methodists, a virile force, not only stirred up a
dormant Anglican communion, but vivified the Baptists, Congregationalists, and
Presbyterians. Within the spirit of the strict evangelical concept, literature deserved
no tolerance unless it promoted a moral purpose.
14. Benthamism attended cheek by jowl the growth of idealism in politics,
and neither literature nor the arts could play a major role in the achievement of
material well being. The fact that John Stuart Mill would reproach Hume for
allowing himself to become enslaved by literature, without regard for truth or
utility, served to illustrate the doctrinal lack-lustre of this school of thought.
15. The term "bowdlerize" traces its origin to the efforts of the great expurgator,
Thomas Bowdler (1754-1825). It was Bowdler who published The Family Shake-
speare in ten volumes, an edition conspicuous for its omission of words and expres-
sions which could not with propriety be read aloud in the family period. Also
expurgated by Bowdler was Edward Gibbons' History of the Decline and Fall of
the Roman Empire. In fairness to Bowdler, Swinburne was to comment that no
man had done a better service for Shakespeare than the man (Bowdler) who made
it possible to put him in the hands of intelligent and imaginative children. Yet
Swinburne, according to the pen of reviewer, John Morley, was an "unclean, fiery
imp from the pit"; "the libidinous laureate of a pack of satyrs"; with a mind
"aflame with the feverish carnality of a schoolboy. 22 SATURDAY REVIEW 145-7
(Aug. 4. 1866).
16. The British Critic branded Byron's Don Juan as "a narrative of degrading
debauchery in doggerel rhyme." When Keats published his poem Endymnion, he
was accused of creating immoral images and blatant impurity. Shelley's Queen
Mab incurred prosecution for blasphemy by the Society for the Suppression of Vice;
and Clarke, his publisher, was imprisoned for four months.
19641 OBSCENITY AND CONSTITUTIONAL FREEDOM
Vanity Fair.y Wuthering Heights, published in the same year as

Jane Eyre, was criticized for dwelling upon physical acts of cruelty
having their warrant in real annals of crime which true taste re-
jects. 8 George Eliot was taken to task for discussing the several
stages that precede the birth of a child and for dwelling upon love
and passion.19 If the English literary product attracted its share
of abuse, the French counterpart was to absorb even stronger
invective, notably in a day of growing nationalism when it would
be considered unforgivable to import prurient ideas that would
20
corrupt the minds of English readers.
.The Development of a Standard
A middle-class reaction against the easy morals of the Restora-
tion period gave impetus to organized efforts aimed at combatting
the purveyors of indecency. Typical of groups to be launched in
subsequent years was a society, founded in 1692, pledged to the
reformation of manners.2 1 This association was a forerunner of
the more formidable "The Society for the Suppression of Vice"
which was activated in 1802. The latter society was formed to
prosecute blasphemy, to halt the burgeoning trade in obscene
publications, and to suppress disorderly houses and fortune tellers.
The Society was also instrumental in the passing of the Vagrancy
Act of 1824 which punished public exhibitions of indecent prints
22
with not less than three months' hard labor.
17. 84 QUARTERLY REVIEW (Dec. 1848).
18. ATHENAEUM (Dec. 1847).
19. 7 SATURDAY REVIEW 250 (1859). This review likewise took Meredith to task
for daring to write of "the rotten places of our social system" in his poem Modern
Love (1862). 16 SATURDAY REVIEW 562 (1863). Tennyson's Maud drew adverse
criticism aimed at its extravagant sensibility. CHARLES TENNYSON, ALFRED TENNYSON
286 (1950). Elizabeth Barrett Browning's Aurora Leigh was first appraised as no
more than the hysterical indecencies of an erotic mind. See, HAIGHT, BANNED BOOKS
(1955).
20. In France, during the regime of Napoleon III, many distinguished authors
were hailed before the criminal courts. In 1857 an unsuccessful prosecution was
brought against Flaubert for writing Madame Bovary, while Baudelaire was
actually convicted for publishing Les Fleurs du Mal. Nearly a century later, on
May 31, 1949, the conviction of Baudelaire was annulled by the Court of Cassation
by authority of a court decision of September 25, 1946, holding that an obscene
book could be reviewed after twenty years. Vizetelly, publisher of Uncle Tom's
Cabin, more than once felt the English prosecutor's wrath for his publication of
French novels, notably those by Emile Zola. Curiously, two years after Vizetelly's
death, Zola was feted by literary London. ST. JOHIN-STEVAS, OBSCENITY AND TIlE
LAW 83 (1956).
21. This society attracted the royal patronage of the House of Orange and had
as its two-fold purpose the enforcement of existing laws against vice and the
poptlarization of virtue. The society actually expended its greatest effort com-
batting the common vices of drunkenness, whoring, and sabbath breaking, and
no mention was made of "obscenity" as such.
22. 5 Geo. 4, c. 83.
By 1857, The Society for the Suppression of Vice had initiated

159 prosecutions, securing convictions in all save five cases, and
the number of shops dealing in questionable literature had been
drastically reduced. Within that year a legislative milestone, Lord
Campbell's Act, was passed.2 3 Lord Campbell, himself, declared
that the measure was intended to apply exclusively to works
written for the single purpose of corrupting the morals of youth
and of a nature calculated to shock the common feelings of
24
decency in a well-regulated mind.
Lord Campbell's Act created no new criminal offense but gave
magistrates the power to order the destruction of books and prints
if, in their opinion, their publication would amount to a mis-
demeanor proper to be prosecuted as such. Magistrates were
further empowered to issue warrants to the police to search sus-
pected premises.
A decade later, in 1868, Sir Alexander Cockburn made the
second signal contribution to the law of obscene libel when he
formulated a test of obscenity in Regina v. Hicklin.25 This was not
a prosecution, but was an action brought under Lord Campbell's
Act against Henry Scott, a respected Wolverhampton metal broker,
who had sold copies of a pamphlet entitled The Confessional
Unmasked.2 6 The Watch Committee of the borough, regarding
the booklet as obscene, arranged to have Scott arrested; a police
officer seized 252 copies of the pamphlet, and the case came on for
trial at the Quarter Sessions, where the recorder revoked the
seizure and destruction order, holding that Scott's purpose had
not been to corrupt the public morals but solely to discredit the
Church of Rome. The case was appealed to the Court of Queen's
Bench presided over by Chief Justice Cockburn, who reversed
the decision of the recorder and restored the destruction order.
In the course of his judgment, Chief Justice Cockburn laid
down what had the appearance of being a simple legal test for
obscenity:
23. 20 & 21 Vict. c. 83 (1857). For an accurate commentary on the developments
leading to enactment of this law, see Alpert, Judicial Censorship of Obscene Litera-
ture, 52 H&itv. L. REv. 40, 50-52 (1938).
24. 146 Hansard Par]. Debs. 327 (3d series 1857).
25. [1868] 3 Q.B. 360.
26. The full title of the publication read: "The Confessional Unmasked: shew-
ing the depravity of the Roman Catholic Priesthood, the iniquity of the Confessional
and the questions put to females in confession." A second edition, expurgated and
amended, was published in 1869 under the title: "The Morality of Romish Devotion
or the Confessional Unmasked." Scott, far from being a professional publisher, was
simply a zealot for the Protestant cause and sold his pamphlets at cost.
OBSCENITY AND CO.NTITUTIONAL FREEDOM
I think the test of obscenity iS this, whether the tendency of the

matter charged as obscenity is to deprave and corrupt those whose
minds are open to such immoral influences,
27
and into whose hands
a publication of this sort may, fall.
The rule of Hicklin became the guiding rule for English and
American courts for several decades. The standard there applied
has generally been interpreted to incorporate two distinct ele-
ments: (1) the audience the publication is likely to attract; and
(2) the amount of obscene matter contained within the publica-
tion. The phrases "those whose minds are open to such immoral
influence, and into whose hands a publication of this sort may
fall" created as a standard the publication's effect upon youth,
the sensually inclined and the pathologically unbalanced. 28 In
addition, the rule permits a publication to be censored not because
it is predominantly obscene but because it contains some obscenity.
Theoretically one obscene passage will suffice.
The American Standard

In the United States prior to the Civil War, there were few
reported decisions directly concerned with obscene literature. 29
This fact alone, however, is no indication that the American
public and their reviewers were less censorious than their English
27. (1868] 3 Q.B. 360, 371. Chief Justice Cockburn was careful to note that not
everything that contains material that might be considered obscene is indictable,
for example, a medical or scientific treatise. But in the instant case, Scott had sold
his pamphlets indiscriminately on the corner in an effort to prevent the public
from falling into the clutches of the Pope when the probability was that 999 out
of every thousand into whose hands this work would fall would nevei be exposed
to the hazard of being converted to the Catholic religion. Scott's pamphlet had
been put together from the writings of theologians such as Peter Dens and Ligouri,
and at least half of the material was at most controversial or casuistic. The remain-
ing half consisted of a conglomerate pattern of impure and filthy words and ideas,
and in the view of the court. this sened to render the whole obscene.
28. This aspect of the Hicklir, rule has drawn severe criticism for its attempt
to apply juvenile standards in the interest of a salacious few while gravitating
against the interest of an enlightened majority. On the other hand, if obscenity
laws make sense at all, they make sense at least in terms of those "particularly
susceptible." The age old problem, still to be resolved, is that of preserving the
inalienable rights of the larger segment of society while protecting the interests
of the less fortunate and most vuinerable.
29. The first reported case is Commonwealth v. Holmes, 17 Mass. 336 (1821),
which was decided upon jurisdictional and procedural matters. However, the court
did note that "obscene libel" was a common law offense. The book under attack
was entitled Memoirs of a IIoyn o.*." Pleasure, very likely the notorious Fanny Hill
by John Cleland. The earliest case on record in the United States appears to be
Commonwealth v. Sharpless. 2 S, &:R. 91 (Pa. 1815). Jesse Sharpless was convicted
in Philadelphia for displaying an obscene picture which depicted a man in an
obscene, impudent, and indecent posture" with a woman. The defense claimed the
court lacked jurisdiction because the offense was one involving private morality,
which in England would be dealt with in the ecclesiastical court. Chief Justice
Tilghman ruled that the offense was criminally punishable.
contemporaries.3 0 The United States government first concerned

itself with obscene matters as an incident to its customs powers
by outlawing the importation of obscene materials. 3 1 A paucity
of criticism or overt legal action by officers, state or federal, did
not imply disinterest or a corresponding lack of problem, as it
must be recalled that America in pre-rebellion years was a
frontier world, relatively naive and unsaturated by the maturing
culture which obtained in English and continental society. In
reality, it would require several wars and the experience of several
generations to impress upon the American public a mature con-
sideration of the complexities inherent in its cultural and political
heritage.
An unsettled social situation occasioned by the Civil War and
the swift changes wrought by a postwar economy and way of life
served to nurture a blatant, crude immorality that would never
be countenanced by. a people who ostensibly revered the Bible,
church, and family solidarity. It was only natural that a confused
and aroused public should react to these excesses in a mood to
cleanse and reform.
In this age of threatened innocence, one man above all others
rose with vigor to declare his contempt for what appeared to be a
trend toward perdition in literature and the arts. Anthony Corn-
stock, reared in the harsh discipline of a Connecticut Congrega-
tionalist household, carried his moral precepts With him as a
volunteer in .the Union Army in 1863. During an uneventful
eighteen months of noncombatant duty, the young Comstock was
known to pray with fervor for the deliverance of his depraved
tentmates. Returning to his native New England in the postwar
years, he would not only continue his supplications 2
in behalf of
the wicked and insensate, he would act as well.
As early as 1868, Comstock,. inspired by a campaign of the
Young Men's Christian Association against obscene literature, had
30. In 1851, Nathaniel Hawthorne's The Scarlet Letter was attacked as an in-
decent, immoral book that degraded literature and encouraged social licentiousness.
31. 5 Stat. 548, 566 (1842). The present customs law may be found in 42 Stat.
937 (1922), 19 U.S.C. § 1305 (1930). Also of importance is 18 U.S.C. § 1462 (1950)
which punishes those who convey obscene matter in interstate or foreign commerce
by means of a common carrier.
32. Following the holocaust of civil war, Anthony Comstock commenced his
forty year campaign to purify the reading habits of the American public under the
slogan "Morals, Not Art or Literature." He would not openly condemn all literature
and art, but he distrusted what he called "light literature" and detested weekly
papers, half-a-dime magazines, lewd newspapers. lotteries, and gambling dens. In
short, he was dedicated to a program of solid but rapid reform. BROUN AND LEECH,
ANTHONY COMSTOCK: RoUNDSMAN OF THE LORD (1927); TRUMBULL, ANTHONY COM-
STOCK, FI, TER (1913).
OBSCENITY AND CONSTITUTIONAL FREEDOM
secured the arrest of two publishers. In New York he offered his

services as crusader to the Y.M.C.A. and helped form a committee
for the suppression of vice which subsidized him in his many
3
operations against booksellers and publishers.
Likely his greatest single achievement was the passage in 1873
of what is familiarly known as the Comstock Act,34 in which
Congress declared that no obscene, lewd, or lascivious book,
pamphlet, picture, print or other publication of an indecent
character shall be carried in the mails. For the first time it became
a felony for any person knowingly to deposit such materials in
the mails. Enforcement of the act became the immediate responsi-
bility of the Postal Inspection Service. 35
During the last quarter of the nineteenth century, an era rem-
iniscent of the Comstock ideal, the courts were to prepare for a
rising number of legal contests involving obscenity. The first
significant American decision announcing the rule of Hicklin
appeared in 1879 when circuit judge Samuel Blatchford, sitting
in New York, wrote his long opinion in United States v. Bennett.3 6
33. In 1873 Comstock received an appointment as special agent of the Post
Office Department, and during the period he was likewise made secretary of the
New York Society for the Suppression of Vice. He would remain agent and secretary
until his death in 1915, accepting no pay from the government until 1906 when
he was required to accept $1,500 a year. A notably unsubtle man, his methods of
attack were direct and ruthless, but as a prosecutor of frauds and quacks he did
useful work. His death occurred soon after his return from California where he
served as United States delegate, appointed by President Wilson, to the Inter-
national Purity Congress. He published two books, Frauds Exposed (1880) and
Traps for the Young (1883) and many pamphlets, of which Morals Versus Art
(1888) is most illuminating.
34. 18 U.S.C. § 1461 (1948).
35. The Postal Inspection Service is probably the oldest law enforcement agency
as inspectors may trace their lineage directly to Benjamin Franklin and the first
colonial postal system. In 1873 the inspectors obtained their first test case, United
States v. Bott, 11 Blatch. 346 (S.D.N.Y. 1873). In affirming the conviction of John
Bott and John Whitehead on charges of sending an abortion-producing powder
through the mail, a New York District Court held firmly that Congress had power
to define contraband materials in the mail. In 1878, a unanimous United States
Supreme Court, speaking through Mr. Justice Field, approved the basic principles
of the act of 1873. In re Orlando Jackson, 96 U.S. 727 (1878). It was the opinion of
the Court that the object of Congress was not to interfere with freedom of the
press, but only to refuse facilities for the distribution of matter injurious to the
public morals. The Court did state clearly, however, that no law of Congress can
place in the hands of postal officials.the authority to invade the secrecy of letters
and such sealed packages in the mail. As a matter of course, postal inspectors have
accepted this ruling as an article of faith: the fact that first class mail is private.
In Ex parte Rapier, 143 U.S. 110 (1892), the Supreme Court again unanimously
upheld the constitutionality of the Comstock Act. Through an opinion by Mr.
Chief Justice Fuller, the Court thought that there was no question about the
power of Congress to bar from the mails any instrument used in the promotion
of acts deemed universally wrong, including the offense of circulating obscene
books and papers.
36. 24 Fed. Cas. 1093 (No. 14571) (C.C.S.D.N.Y. 1879). Hicklin was adopted by
the New York Court of Appeals in People v. Muller, 96 N.Y. 408 (1884), but the
The defendant, Deboigne M. Bennett, had been convicted for

mailing an obscene booklet entitled Cupid Yokes, or, The Bind-
ing Forces of Conjugal Life. Bennett contended that Anthony
Comstock had no right or authority to prosecute him, that the
booklet as a whole was not obscene, that he had not intended to be
obscene, and that he was deprived of freedom of speech and of
the press. In affirming the conviction, the court: (1) ruled that
the matter must be regarded as obscene if it would have a tendency
to suggest impure and libidinous thoughts depraving and corrupt-
ing morals; (2) sustained the right to prosecute; (3) upheld the
trial court's instruction that obscene excerpts were sufficient; (4)
ruled that the object with which a book was written was not
material; and (5) stated emphatically that freedom of speech and
the press did not include freedom to use the mails for the purpose
of distributing obscene literature.
In Missouri in 1887 a defendant was convicted in federal court
for mailing a medical tract that might have been proper for mem-
bers of the medical profession, but highly improper when broad-
cast among all in the community, including young boys and
girls.3 Two years later, in another Missouri case, federal judge
Thayer expressed his opinion that the obscenity mail law was a
wholesome statute.83 One Doctor Clarke was adjudged guilty of
mailing a treatise on venereal disease, which he contended was not
obscene, or at least no more obscene than the writings of Sue-
rule did not find unqualified support in subsequent decisions. The prosecution
against August Muller for selling French photographs of nude women was inspired
by Comstock. A key issue involved Muller's effort to prove through expert witnesses
that the photographs were not obscene but works of art. Ruling that these were
matters falling within the range of ordinary intelligence, the court saw no com-
pelling need for expert testimony. In two later cases supreme court judges ruled
that standard works of high literary merit were not obscene. In re Worthington,
30 N.Y. Supp. 361 (Sup. Ct. 1894); St. Hubert Guild v. Quinn, 64 Misc. 336, 118
N.Y. Supp. (Sup. Ct. 1909). Among the titles discussed in Worthington were Payne's
edition of The Arabian Nights, Fielding's Tom Jones, Ovid's Art of Love, and
Boccaccio's Decameron. The Worthington company was suspending business opera-
tions and Comstock could envisage a torrent of classical filth being marketed at
public auction. St. Hubert's Guild involved a forty-two volume set of the works of
Voltaire. In People v. Eastman, 188 N.Y. 478, 81 N.E. 459 (1907), the Court of
Appeals held that a violent newspaper attack on the confessional was not indecent.
See, Alpert, Judicial Censorship of Obscene Literature, 52 HARV. L. REV. 40, 56-65
(1938); Grant and Angoff, Massachusetts and Censorship. 10 B.U.L. REv. 147, 173-
76 (1930); Lockhart & McClure, The Law of Obscenity, 38 MINN. L. REv. 295,
324-29 (1954).
37. United States v. Chesman, 19 Fed. 497 (C.C.E.D. Mo. 1887).
38. United States v. Clarke, 38 Fed. 500 (E.D. Mo. 1889). In the same year a
Philadelphia newsdealer was convicted for selling the National Police Gazette,
because its articles might suggest impure and libidinous thoughts in the young
and inexperienced. Commonwealth v. Havens, 6 Pa. County Ct. 545 (Allegheny
County 1889).
tonius. Noting that Suetonius was not on trial, the court found
that the book might excite sensual desires in the minds of the
young, the immature, the ignorant, and those who are sensually
inclined. Thus, in applying the law it would be error to use
as a standard the effect of a publication upon those steeled against
such influences.
Lew Rosen, publisher of Broadway, failed to arouse the sym-
pathy of the United States Supreme Court when it refused to
overrule his conviction of thirteen months for publishing a paper
that could suggest or convey lewd and lascivious thoughts to the
young and inexperienced.3 9 Approving a Hicklin type instruction
given in trial court, Mr. Justice Harlan was convinced that the
test prescribed was quite as liberal as the defendant had any
right to demand. The Court was also to define the words obscene,
lewd, and lascivious as being antonyms of decency, purity, and
chastity. Also clear was the fact that the Court was convinced of
the wisdom and constitutionality of obscenity legislation. 40
During the first two decades of the twentieth century, propo-
41
nents of Hicklin would encounter only scattered opposition.
39. United States v. Rosen, 161 U.S. 29 (1896). Responding to a decoy letter,
Rosen had mailed a copy of the "tenderloin number" of his newspaper to a postal
inspector in New Jersey. Included in this number were several photographs of
a nude female identified as a "tenderloineuse." Quite apparently, Broadway
represented a type of photo-magazine that Anthony Comstock resented as foul and
loathsome.
40. During this period the United States Supreme Court was to attempt gradual
clarification of the legal meaning of obscenity and to resolve certain ambiguities
inherent in recent legislation. It distinguished obscene from exceedingly coarse and
vulgar language. Swearingen v. United States, 161 U.S. 446 (1896). See also United
States v. Males, 51 Fed. 41 (D. Ind. 1892). The Court interpreted the word "writing"
in an obscenity statute to refer to a publication and not to a letter. United States
v. Chase, .135 U.S. 255 (1890). Congress responded to this decision by passing an
amendment which expressly included obscene letters in the category of the non-
mailable. Obscene letters are plainly forbidden today. United States v. Darnell,
316 F.2d 813 (2d Cir. 1963). The Court has also ruled that a letter, not obscene
in itself but containing information as to where obscene pictures can be obtained,
is illegal. Grimm v. United States, 156 U.S. 604 (1895). To the same effect, see
DeGignac v. United States, 113 Fed. 197 (7th Cir. 1902). The incorporation of
obscene material into the court record was declared unnecessary in Dunlop v.
United States, 165 U.S. 486 (1897), and Price v. United States, 165 U.S. 311 (1897).
In England, the Post Office Act of 1870, 33 & 34 Vict. c. 79, empowered the Post
Master General to make regulations for preventing the sending or delivery by mail
of "any indecent or obscene books, prints, engravings, cards, or postcards, having
on the covers thereof any words, marks or designs of an indecent, obscene, libellous
or grossly offensive character." No power was given, however, to open letters or
packages. The Post Office Act of 1953 made it an offense to send indecent books
or prints through the mail, punishable on indictment by a maximum of twelve
months' imprisonment or on summary conviction by a fine of ten pounds. The
enactment gave the Post Office power to detain any packet "suspected to contain"
obscene articles. The Post Office may also open such packets after giving notice of
its intention to the consignee. The Post Office Act, 1953, 1 & 2 Eliz. 2, c. 36. This
act replaces similar provisions of the Post Office Act of 1908, 8 Edw. 7, c. 48.
41. The Hicklin influence pervades the following decisions: Botsford v. United
Fairly typical of the times were two decisions by Mr. Justice Van
42
Devanter, then judge of the Court of Appeals, Eighth Circuit.
The central question in both cases was whether a publication
must be considered as a whole in order to justify the label of
obscenity, and in each instance conviction was affirmed without
regard to dominant theme or the nature of the publication in its
entirety. Even Judge Learned Hand felt constrained to follow
the Hicklin principle in United States v. Kennerley,43 which con-
cerned an indictment of Mitchell Kennerley for mailing an
allegedly obscene book entitled Hagar Revelly. 4 4 Although the
young, liberal Judge Hand did in fact overrule a demurrer to the
indictment, he protested against the mid-Victorian ideals ex-
pressed by the orthodox rule, indicating that his contemporary
society should not reduce its treatment of sex to the standard of
a child's library in the supposed interest of a salacious few. 45 His
personal rejection of the basic Hicklin principle, precocious as
it was in the twilight of the Comstock era, would gain widespread
46
approval within the next twenty years.
States, 215 Fed. 510 (6th Cir. 1914), cert. denied, 234 U.S. 763 (1914); Burton v.
United States, 142 Fed. 57 (8th Cir. 1906); United States v. Clifford, 104 Fed. 296
(C.C.D. W. Va. 1900); Griffin v. United States, 248 Fed. 6 (1st Cir. 1918); United
States v. Moore, 129 Fed. 157 (W.D. Mo. 1904).
42. Burton v. United States, 142 Fed. 57 (8th Cir. 1906); Demolli v. United States,
144 Fed. 363 (8th Cir. 1906). In Burton the defendant had published a book on
sex instruction written by a Minneapolis physician. When cited under the, postat
laws, the principal defense was that only part of the book was in fact obscene.
Granting that brief extracts would not compel censure, Judge Van Devanter saw
sufficient evidence of obscenity to warrant jury determination and ultimate con-
viction. Similarly, in the Demolli case he reiterated the fact that it was not essential
to the commission of the offense that the entire contents of a publication be
objectionable in character. In Konda v. United States, 166 Fed. 91 (7th Cir. 1908),
the court set aside a conviction on the basis that isolated passages could not be
ripped from their settings and full context.
43. 209 Fed. 119 (S.D.N.Y. 1913).
44. The book was concerned in main with the life and loves of a pleasure-
seeking young woman in New York City. Virtue was assailed and ultimately tar-
nished in this saga of loneliness, depicted with a frankness and in such detail as
to incur the wrath of the prosecutor.
45. United States v. Kennerley, 209 Feb. 119, 120-21 (1913):
46. Comstock died in 1915. However, during the latter years of that decade
(the so-called "roaring twenties,") the role of censor was not to be underplayed.
Among many great names and titles of the literary world to feel the sting of
community disapproval were: John Dos Passos for his Manhattan Transfer;
Theodore Dreiser for An American Tragedy, The Genius, and Sister Carrie;
F. Scott Fitzgerald, for The Beautiful and the Damned; Ben Hecht for Count
Bruga and Gargoyles; Sinclair Lewis for Elmer Gantry; Arthur Train for High
li'inds. For a more complete listing of banned books, see Grant & Angoff, 10
B.U.L. REV. 147 (1930).
In the early twenties, the New York Court of Appeals in Halsey v. New York
Society .for Su ppression of Vice, 234 N.Y. 1, 136 N.E. 219 (1922), demonstrated an
unmistakable trend toward the liberal ideal. Random D. Halsey was arrested for
selling a copy of Theophile Gautier's Mademoiselle de Alaupin. but he was ac-
quitted bi the jury and set free. Affirming an award for damages in a suit for mali-
1964] O1BCt,'ENITY AND CONSTITUTIONAL FREEDOM
Early in 1930, the Supreme Judicial Court of Massachusetts

upheld the conviction of bookseller David Friede for offering
Theodore Dreiser's An American Tragedy for public sale. 4T The
Massachusetts decision in giving approval to the "selected passages"
rule represents one of the last of a relatively unbroken line of
cases which had followed the Hicklin stereotype sans question.
Dreiser's references to the illicit love of Clyde and Roberta 48 were
read seriatim to the jury, and these few passages were deemed
sufficient to corrupt the morals of youth. Arthur Garfield Hays,
counsel for the defense, doggedly pressed the argument that the
scope of adult reading fare should not be reduced to the level of
a book club for juveniles, but without avail. H. L. Mencken,
among other reputable critics, hurled broadsides at the Mass-
achusetts opinion, and this surge of withering criticism was re-
sponsible for an amendment of the state obscene-literature
49
statute.
The prelude to a new age was also to begin in 1930 with the
cious prosecution by Halsey, the Court of Appeals noted that many paragraphs taken
by themselves were vulgar and indecent, yet ruled that no work would be judged
from a selection of such paragraphs alone. In a forthright dissenting opinion, Judge
Crane found abundant probable cause for the Halsey arrest and prosecution. Book-
seller Donald S. Friede received less sympathetic treatment in a New York magis-
trate's court seven years later. People v. Friede, 133 Misc. 611, 233 N.Y. Supp. 565
(1929). He was prosecuted for selling Radclyffe Hall's The Well of Loneliness, which
carried a preface by Havelock Ellis. and related the story of a lesbian while attempt-
ing to reveal her unnatural experiences with some degree of idealization. The court
discovered no moral value in the book and condemned its justification of the right
of the perverted to prey on a normal society. Finding that the theme of the novel
was antisocial and offensive to public morals, the court feared its potential to cor-
rupt and debase members of society susceptible to its immoral influence. The Well
of Loneliness, because of its alleged appeal to the susceptible, fitted neatly into the
vise of Hicklin.
47. Commonwealth v. Friede. 271 Mass. 318, 171 N.E. 472 (1930).
48. The novel, based upon the celebrated case of Chester Gillette and Grace
Brown, vintage 1908, appeared in 1k2.5 as a two volume work. The trial judge
refused to allow the two volumes in evidence, and in upholding this ruling, the
Supreme Judicial Court commented: "'E~en assuming great literary excellence,
artistic worth and impelling moral lesson in the story, there is nothing essential
.to the history of the life of its principal characters that would be lost if these
passages were omitted . . . the seller of a book which contains passages offensive
to the statute has no right to assume that children to whom the book might come
would not read the obnoxious passages. ..' Id. at 322, 171 N.E. at 474.
49. Prior to 1930 the Massachusetis statute referred to a book "containing
obscene, indecent or impure language. or manifestly tending to corrupt the morals
of youth." MAss. GEN. LAws ch. 272. s 28 (1921). In 1930 it was amended so as to
apply to a book "which is obscene, indecent or impure or manifestly tends to
corrupt the morals of youth." Mass. Acts 1930, ch. 162. It is interesting to observe
that H. L. Mencken, although silling to do battle for freedom of expression,
actually believed that the work An Am'erican Tragedy was a shapeless and for-
bidding monster. Personally adhering to the simple, direct approach, he envisaged
the tome as a heaping cartload o1 raw materials, a vast, sloppy, chaotic thing. See,
KILPATRICK, THE SMUT PEDDLERS 149 1160j.,
case of United States v. Dennett.5" As director of the Voluntary

Parenthood League, Mrs. Mary W. Dennett not only advocated
freer dissemination of birth control information, but was likewise
dissatisfied with the inadequacy of sex instruction books or man-
uals currently on the market. To fill the apparent void, she wrote
a pamphlet entitled the "Sex Side of Life" and 25,000 copies were
sold before the Post Office Department declared it unmailable.
Arrested and indicted for mailing an obscene publication, she
was convicted and fined three hundred dollars.
Judge Augustus N. Hand, speaking for the Court of Appeals,
Second Circuit, reversed Mary Dennett's conviction. After noting
that the pamphlet was intended to be given by parents to their
children and thus not distributed to children indiscriminately,
he discussed the central issues, namely, the scope and meaning of
prohibited obscenity. While expressing an opinion that any article
dealing with sex may well arouse lust under some circumstances,
he forcefully indicated that the law did not prohibit everything
-that might arouse sex impulses. Thus, despite the fact that the
court did not openly reject Hicklin, it did modify the rule by hold-
ing that what might arouse sexual impulses is not to be condemned
and' by emphasizing the main effect of the -pamphlet. "
If Dennett marked the prelude to a new era, the celebrated
.Uly.sses cases of 1933 and 1934 marked the realization. 5' In the
fall of 1922, five hundred copies of-James Joyce's Ulysses were
stopped at the port of New York by the United States Customs
Office and banned on the ground that the book was obscene. In
July 1926, one Samuel Roth who was to figure prominently in
subsequent 'litigation, 52 serialized a bowdlerized version of the
novel in a magazine entitled Two Worlds Monthly. Apparently
Mr. Joyce had neither authorized the serialization nor received
royalties, and this alleged violation of literary property drew the
50. 39 F.2d 564 (2d Cir. 1930). Mrs. Dennett supplied her own impressions of
the case in Dennett, Who's Obscene? (1930). The year following the Dennett deci-
sion, in the Southern -District of New York, Judge Woolsey dismissed a libel against
Dr. Marie C. Stopes's Married Love, thus frustrating the government's attempt under
the customs law to ban importation from England. Judge Woolsey could find
nothing about the book that would be obscene or immoral for the normal reader,
and in fact, was of the opinion that the book was informative and instructive.,
United States v. One Obscene Book Entitled "Married Love," 48 F.2d 821 (S.D.N.Y.
1931). Three months later Judge Woolsey declared another Stopes work not to be
obscene. United States v. One Book Entitled "Contraception," 51 F.2d 525 (S.D.N.Y.
1931).
51. United States v. One Book Entitled "Ulysses," 5 F. Supp. 182 (S.D.N.Y. 1933),
afi'd, United States v. One Book Entitled "Ulysses," 72 F.2d 705 (2d Cir. 1934).
52. See discussion of the Roth and Alberts cases dealt with at note 94 infra. For
an account of Roth's business operations, see MAKRIS, THE SILENT INVESTIGATORS
289-99 (1959).
AND CONSTITUTIONAL FREEDOM
OBS('i XIIT ,
ire of many distinguished authors including T.S. Eliot, Ernest

Hemingway, D.1. Lawrence, and Virginia Woolf. Mr. Joyce did
attempt to secure an injunction restraining Roth, but he was
unable to protect his literary property because the customs ban
precluded a copyright. Subsequently, Bennett Cerf of Random
House arranged for a copy of Ulysses to be sent to the United
States in such open manner that seizure would be certain.53
In the United States District Court for the Southern District
of New York, Judge Woolsey acknowledged that many believed
Joyce's characters to be poignantly preoccupied with sex; never-
.theless, he found Ulysses a sincere and honest book and concluded
that criticisms of it were entirely disposed of by its rationale. He
further found that reading it in its entirety, as a book must be
read to arrive at a fair test. did not tend to excite sexual impulses
or lustful thoughts. 54 According to Judge Woolsey, the audience
to be considered was the "person with average sex instincts-what
the French would call l'hoinme moyen sensuel-" 55 hence the
law would be -concerned only with the normal person, not the
most susceptible.
From this decision of the district court, the Attorney General
appealed, and on August 7, 1934, the ruling of the trial court was
affirmed by the Second Circuit. In the appellate court, Judge
Augustus N. Hand, writing for the majority, very clearly rejected
the Hicklin rule, and in doing so, created a new standard for
determining the meaning of obscenity:
While any construction of the statute that will fit all cases is
difficult, we believe that the proper test of whether a given book
is obscene is its dominant effect. In applying this test, relevancy of
the objectionable parts to the theme, the established reputation
of the work in the estimation of approved critics, if the book is
modern, and the verdict of the past, if it is ancient, are persuasive
pieces of evidence; for work- of art are not likely to sustain a
high position with no better warrant for their existence than
their obscene content. 56
53. For a detailed account of the early history of Ulysses, see GORMAN, JAMES
JOYCE 306-317 (1948); MURPHY, CENSOR.SHIP: GOVERNMENT AND OBSCENITY 1-5 (1963).
54. 5 F. Supp. at 185.
55. Id. at 184.
56. 72 F.2d at 708. Every major premise of the Woolsey solution was accepted by
the court of appeals. Although the court stressed the dominant-effect doctrine and
not the average-person standard, the majority opinion seems to imply that the
court was prepared to distinguish between the average and susceptible. Nor were
Augustus and Learned Hand so enthusiastic in their acceptance of Ulysses as was
Judge Woolsey. They were not at all certain that the novel would permanently
stand as a great work of literature and were frank to admit that the book contained
numerous passages that could be labeled obscene. However, the court did find that
the admittedly obscene passages had been introduced to give meaning to the whole,
Ulysses had discredited Hicklin, and doubtless most decisions

following Ulysses substituted the new standard for the orthodox
rule." This did not mean that the Post Office Department, the
vice societies, and related censorial groups would cease to func-
tion; but somehow the public became alert to the fact that authors
and playwrights could not always be expected to deal with nice
people.
Erskine Caldwell's God's Little Acre aroused the wrath of the
censor in People v. Viking Press,55 and it is significant that the
case was decided before the storm over Ulysses had subsided. The
Caldwell novel, noted for its super realism, related in detail what
is popularly known as the sex side of life, and much of the dia-
logue could be described as coarse and vulgar. Countering efforts
by the New York Society for the Suppression of Vice to effect the
conviction of Viking Press, many distinguished literary figures
offered testimony in behalf of the defendant publisher.59 Viewing
the novel as a whole, Judge Greenspan ruled that it was clearly
not a' work of pornography, nor was it a book where vice and
lewdness were treated as virtues, thereby tending to incite lustful
60
desires in the normal mind.
rather than to promote lust or portray filth for its own sake. In effect, the question
in each case would be whether a publication taken as a whole has a libidinous
effect. Dissenting, Judge Manton focused his attention upon the application of
the average-person.principle, -preferring to protect the morals- of the susceptible
rather than to benefit the highly developed and intelligent. No matter what could
be said on the side of letters, the effect on the community, he stressed, can and must
be the sole determining factor. And in the considered judgment of judge Manton,
no one could doubt the obscenity of this book after a reading of certain passages
which were too indecent to be added as a footnote to a legal opinion.
57. United States v. Levine, 83 F.2d 156 (2d Cir. 1936); Parmalee v. United
States, 113 F.2d 729 (D.C. Cir. 1940); Walker v. Popenoe, 148 F.2d 511 (D.C. Cir.
1945); Bantam Books v. Melko, 25 N.J. Super. 292, 96 A.2d 47 (1953); People v.
Dial Press, 182 Misc. 416, 48 N.Y.S.2d 480 (Mag. Ct. 1944); People v. Gotham Mart,
158 Misc. 240, 285 N.Y. Supp. 563 (Mag. Ct. 1936); People v. Viking Press, 147 Misc.
813, 264 N.Y. Supp. 534 (Mag. Ct. 1933); State v. Lerner, 81 N.E.2d 282 (Ohio C.P.
1948); Commonwealth v. Gordon, 66 Pa. D. & C. 101 (1949), afj'd sub nor. Com-
inonwealth v. Feigenbaum, 166 Pa. Super. 120, 70 A.2d 389 (1950).
58. 147 Misc. 813, 264 N.Y. Supp. 534 (Mag. Ct. 1933).
59. Among the literary 'figures were Franklin P. Adams, John Mason Brown,
Mark Connelly, James P. Farrell, Lewis Gannett, Sinclair Lewis, Elmer Rice and
Carl Van Doren.
60. Sixteen years later, God's Little Acre was declared obscene by the Supreme
Judicial Court of Massachusetts in Attorney General v. Book Named "God's Little
Acre," 326 Mass. 281, 93 N.E.2d 819 (1949). A year previously, the Massachusetts
court had placed the stamp of judicial approval on Kathleen Winsor's Forever
Amber. The defense showed that a reputable concern (Macmillan) had published
the book and expert witnesses were permitted to testify that it did not tend to
arouse sex impulses. The fact that the book rendered a reasonably accurate account
of Restoration England may have been in its favor.
God's Little Acre may have sinned in New York, but Tobacco Road felt the
pinch of censorship in Chicago when Mayor Kelly banned performances of the
play in 1935. Ruling that Mayor Kelly was not arbitrary or capricious in his
Parm'nalee v. United States,"' decided in 1940 by the Court of

Appeals for the District of Columbia, was a landmark decision in
that it cast light upon the problem of the nude photograph in
relation to obscenity. Parmalee had imported six books entitled
Nudism and Modern Life from England, and though it was
contended that the textual material was not obscene, the fact
remained that each book contained unretouched photographs of
nude men and women. The trial court's finding of obscenity was
overturned by the appellate court. Judge Miller, writing for the
majority, was not convinced that nudity was obscene in itself and
under all circumstances, and noted that civilization had advanced
far enough to permit picturization of the human body for scientific
and educational purposes. 6 -'
63
The Ulysses concept was followed in United States v. Levine,
but a note of refinement was added. Levine had been convicted
under an indictment for mailing obscene circulars advertising,
among other things, Secret illuseum of Anthropology, Crossways
of Sex, and Black Lust.6 4 A properly-instructed jury might well
have ruled all three obscene, but the conviction was reversed
because the trial court instructed the jury that the test of obscenity
was the effect of the book upon the minds of "the young and
immature, the ignorant and those who are sensually inclined."
On appeal, the court was careful to note:
Our reversal does not mean that on another trial the proper
standard can under no circumstances refer to the adolescent. It
assessment of community standards, the court of appeals upheld the mayor's edict.
City of Chicago v. Kirkland, 79 F.2d 963 (7th Cir. 1935).
61. 113 F.2d 729 (D.C. Cir. 1940).
62. Parmalee's Nudism in Modern Life may have possessed educational and
scientific qualities, and thus because of its dominant theme, managed to avoid the
mark of obscenity. Ever aware that nudism represents a deviation from the norm
even in these times, other courts have interpreted the dominant purpose of nudist
publications as one bent on promoting lust, ergo obscene and indecent. United
States v. 4200 Copies International Journal, 134 F. Supp. 490 (E.D.N.D. 1955);
Hadley v. State, 205 Ark. 1027, 172 S.W.2d 237 (1943); Sunshine Book Co. v.
McCaffrey, 8 Misc. 2d 327, 112 N.Y.S.2d 476 (Sup. Ct. N.Y. County 1952). Post
Master General Summerfield declared war against Sunshine and Health and Sun
Magazine in 1955, declaring that certain issues of these publications were obscene
and indecent. The District Court for the District of Columbia held that pictures
in these magazines offended the community conscience. Sunshine Book Co. v.
Summerfield, 128 F. Supp. 564 (D.D.C. 1955). The court of appeals concurred,
holding that the magazines dealt with sex in a manner appealing to prurient
interest, 247 F.2d 114 (D.C. Cir, 1957). In January 1958, nudism found its champion
in the United States Supreme Court which reversed the lower courts in a per
curiam decision, 355 U.S. 372 (1958).
63. 83 F.2d 156 (2d Cir. 1936).
64. The first of these was simply a pretension to being a professional contribu-
tion. The second was a questionable treatise on pathology which Judge Augustus
Hand found plainly obscene. The third was a patently erotic piece of fiction.
may appear that the prospective buyer in the eighth count was a
youth and that the accused had reason to suppose that he was.
The evil against which the statute is directed would then be the
possible injury to such a youthful reader. It is when the crime
consists of importing the work, or offering it for general sale, that
the test cannot be found in the interests of those to whom it is
sent, though abnormally susceptible, lest in their protection the
interests may be sacrificed of others who might profit by the
work .... The standard must be the likelihood that the work
will so much arouse the salacity of the reader to whom it is sent
as to outweigh any literary, scientific or other merits it may have
in that reader's hands. 65
Conservative Massachusetts all but rejected Hicklin in Com-
monwealth v. Isenstadt66 when the Supreme Judicial Court pro-
nounced that Lillian Smith's Strange Fruit should not be con-
demned simply because it might have a deleterious effect upon
the highly susceptible reader. Furthermore, the novel was con-
sidered as a whole and not on the basis of selected passages. How-
ever, the court was sufficiently impressed by the quantity of
prohibited matter to arrive at the conclusion that a trial court
conviction should be affirmed. 67 The author's sincerity of purpose
65. 83 F.2d at 158. Thus is introduced the problem of variable versus constant
obscenity. Within the concept of variable obscenity material is judged by its
appeal to and effect upon the audience to which it is primarily directed. Material
declared obscene when directed to one class of persons may not be labeled obscene
when directed to another. Taking into account diverse methods of distribution
and sales promotion, many courts have drawn attention to the probable audience
to be affected in any given case. See also, Parmalee v. United States, 113 F.2d 729,
731 (D.C. Cir. 1940); United States v. Nicholas, 97 F.2d 510 (2d Cir. 1938).
66. 318 Mass. 543, 62 N.E.2d 840 (1945).
67. The court actually tested the relevancy of the objectionable passages by
deciding whether they were necessary to convey the sincere message of the book.
Id. at 557, 62 N.E.2d at 847. This was certainly a deviation from the spirit of
Ulysses which would compel consideration of the "book as a whole." The opinion
likewise restricted the "average person" standard by including adolescents and
susceptible adults within the ranks of the general reading public. Id. at 552, 62
N.E.2d at 845. In a very real sense the Massachusetts formulation represents a
halting retreat back to the Hicklin test.
Isenstadt found solid support in a decision by the Superior Court of Los Angeles
in People v. IVepplo, 78 Cal. App. 2d 959, 178 P.2d 853 (1947). Indeed one could
suggest that both courts had in mind an identical concept of obscenity. The Cali-
fornia court reversed a conviction of bookseller Harry Wepplo for marketing
Edmund Wilson's Memoirs of Hecate County, though as far as the court was con-
cerned Wilson's graphic descriptions of the golden-haired princess so permeated
the Memoirs as to render the entire book obscene. Wepplo and his sales clerk
could thank the trial court for its error in eliminating scienter as an essential
element of the offense.
The Memoirs were destined to clash with the asserted principles of the New
York Society for the Suppression of Vice and the expected result was the prosecution
of Doubleday and Company for the publication of an obscene work. The initial
trial took place before three judges in the New York Court of Special Sessions.
Professor Lionel Trilling, noted literary critic from Columbia University, offered
evidence with respect to the literary and moral quality of the book, but despite
or artistic talents were not considered, although a statute had

already been enacted which would have sanctioned the admissi-
bility of evidence relating to cultural, educational, or literary
qualities.0 8
Isenstadt represented a luke-warm acceptance of the Ulysses
formula, but several decisions both contemporary and subsequent
reflected even greater reluctance to sever old ties. The very fact
that Henry Miller's Tropic of Cancer and Tropic of Capricorn
were the center of attention may have compelled the urge to
his expertise the book was condemned.. "The decision," Time Magazine reported,
"made thousands of citizens more impatient than ever to get their morals ruined."
48 Time 23-25 (December 9, 1946). When the case reached the United States
Supreme Court, counsel for the defense confronted the Court squarely with a
constitutional issue of freedom of expression, claiming that literature dealing with
sex was entitled to the same constitutional protection as any other literature and
could only be suppressed when constituting a clear and present danger to some
substantial interest of the state. In the oral argument the exclusive consideration
was the first amendment and the fourteenth insofar as the first may be read into
it. The Court upheld Doubleday's conviction by dividing evenly four to four,
with Mr. Justice Frankfurter abstaining because he had long been a friend of
author Edmund Wilson. Doubleday & Co. v. New York, 335 U.S. 848 (1948).
The clear and present danger thesis was also championed by Judge Bok in the
Philadelphia case of Commonwealth v. Gordon, 66 Pa. D. & C. 101 (Philadelphia
County Ct. 1949), aff'd sub nom. Commonwealth v. Feigenbaum, 166 Pa. Super. 120,
70 A.2d 389 (1950). In March 1948, members of the vice squad of the Philadelphia
police department seized a quantity of books from publishers and dealers. Criminal
proceedings were subsequently initiated and nine books were indicted, including
God's Little Acre, James Farrell's Studs Lonigan Trilogy, and Faulkner's Sanctuary.
Setting forth a new test, Judge Bok ruled that legal sanctions could not consti-
tutionally be applied to any writing unless it is sexually impure and pornographic,
and then such could be applied only when there is a reasonable and demonstrable
cause to believe that a crime has been committed or is about to be committed as
the perceptible result of the publication and distribution of the writing in question.
He would require that the causal connection between the book and subsequent
criminal behavior be proved beyond a reasonable doubt. Following this premise, a
conviction could be sustained only where some clear and present danger could be
proved to result from reading an obscene book, and he frankly doubted that such
a consequence could be demonstrated. In United States v. Roth, 237 F.2d 796
(2d Cir. 1956), concurring Judge Jerome Frank expressed approval of the Bok
rationale. He could sympathize with. the banning of obscene material which
actually caused antisocial conduct but would not countenance the banning of
material which might cause antisocial thoughts without more.
68. Mass. Acts 1945, c. 278, § 28(F). The court did not apply this statute since
it did not take effect until a later date. Commonwealth v. Isenstadt, 318 Mass.
at 561, 62 N.E.2d at 851. Noting that the purpose of the obscenity law was to
protect the public from harm and that most members of the public cared nothing
for literary values, it may be assumed that the court believed such values to be
relatively insignificant. See also People v. Wepplo, 78 Cal. App. 2d 959, 178 P.2d
853 (1947). Very likely because New York City is the center of the nation's publish-
ing efforts, New York courts have occasionallv held that legal sanctions are totally
inapplicable to works of genuine literarv value. People v. Miller, 155 Misc. 446, 279
N.Y. Supp. 583 (Mag. Ct. 1935); People v. Viking Press, 147 Misc. 813, 264 N.Y.
Supp. 534 (Mag. Ct. 1933). At the opposite extreme, some New York courts have
considered literary values irrelevant or iitually so. People v. Dial Press. Inc., 182
Misc. 416, 48 N.Y.S.2d 480 (Mag. Ct. 1944): People v. Friede, 133 Misc. 611, 233
N.Y. Supp. 565 (Mag. Ct. 1929). The subject of redeeming social importance is
discussed in Lockhart & McClure. Censorship of Obscenity, 45 MIINN. L. REv. 59,
95 (1960).
censor in United States v. Two Obscene Books.6 9 When Ernest

J. Besig, director of the American Civil Liberties Union in San
Francisco, attempted to import Miller's Tropics into the United
States, the government countered by libeling the books under
section 1305 of title 19 of the United States Code. Denying
Besig's motion to take depositions of nineteen literary critics,
Judge Louis E. Goodman observed with emphasis that both books
were filthy, revolting, and obscene. 0 His decision a year later in
the district court simply reinforced his original opinion that the
Miller efforts were filthy, scatological, and obscene. Noting that
the many obscene passages in the books had such an evil stench,
he refused to include them in his footnotes for fear of rendering
his own opinion pornographic. Affirming the decision and senti-
ments of the district court, the court of appeals saw no literary
71
imagination or value in the debased and morally bankrupt.
The United States Court of Appeals for the Ninth Circuit also
upheld the conviction of Irving Burstein on a charge of mailing
72
an obscene book entitled Confessions of a Prostitute. Burstein
had actually plagiarized a respectable book, Sterile Sun, published
by Macaulay for a select audience of psychiatrists, psychologists,
and social workers, and had "revitalized" the work in his own
inimitable fashion. Ruling that the Burstein version, refurbished
and retitled, was obscene matter, the court by implication asserted
that a book may not be obscene for a selective and limited audi-
ence of serious scholars but may well be obscene when sold to
attract the prurient interest of an audience interested only in
salacity. The Supreme Court of Missouri hewed closer to the
Hicklin line in an obvious effort to protect the morals of the sus-
ceptible.73 The defense attempted to offer expert testimony to the
effect that certain nudist magazines were not obscene, but the court
saw no compelling need for expert opinion since it was patent that
69. 99 F. Supp. 760 (N.D. Calif. 1951).
70. Note, 35 MINN. L. REV. 326 (1951). When evidence of literary value was
later entered into the record, neither the district court nor the court of appeals
would give it any weight.
71. "If an incident, integrated with the theme or story of a book, is word-
painted in such a lurid and smutty or pornographic language that dirt appears
as the primary purpose rather than the relation of a fact or adequate description
of the incident, the book itself is obscene." Besig v. United States, 208 F.2d 142,
146 (9th Cir. 1953). On the same page the court indicated that it neither approved
nor disapproved of United States v. One Book Entitled "Ulysses," 72 F.2d 705
(2d Cir. 1934) and United States v. Levine, 83 F.2d 156 (2d Cir. 1936), and that the
point was irrelevant anyway, since "we have adjudged each book as an integrated
whole."
72. Burstein v. United States, 178 F.2d 665 (9th Cir. 1949).
73. State v;Becker, 364 Mo. 1079, 272 S.W.2d 283 (1954).
OBSCENITY AND CO.NSTITUTIONAL FREEDOM
the publications in question might arouse lustful desires or en-

courage commission of crime by the susceptible man, woman, boy,
or girl.7 4 .
Stories and photographic studies, aimed at the lustful and
indecent, have drawn the preponderant share of community scorn
and legal sanction; however, society has also been disturbed by
the publication of books and periodicals which have concentrated
upon crime, bloodshed, and horror. One of the most significant
cases to deal with the legality of the grim and horrible was the
long-litigated cause of Murray Winters, a bookdealer in New
York City. Winters was convicted on information of a misde-
meanor for having in his possession, with intent to sell, certain
magazines, thus violating subsection 2 of section 1141 of the New
York Penal Code. Subsection 2 was directed at publications prin-
cipally made up of criminal news, police reports, accounts of
criminal deeds, or stories, and pictures of bloodshed, lust, or
crime. Appealing his conviction to the Court of Appeals of New
York, Winters contended that the subsection violated the right of
free speech and press because it was vague and indefinite. Affirm-
ing the conviction, the Court of Appeals limited the statute so as
not to outlaw all commentaries on crime, from detective stories to
scientific treaties, on the ground that the legislature did not
intend such literal construction. The court did rule the subsection
applicable to publications that arranged their collections of
pictures and stories of bloodshed and lust so as to become vehicles
for inciting violence and crime.7 5
In a 6-3 decision, the United States Supreme Court reversed,
holding that the statute was so vague and indefinite that it did
not serve to give adequate notice of the elements of liability, thus
violating the due process clause of the fourteenth amendment.70
74. The court stated that it could "not disregard an unambiguous enactment
which has as its obvious purpose the protection of the morals of the susceptible
into whose hands these publications may come." Id. at 1048, 272 S.W.2d at 286.
(Emphasis added.) Repudiating the Ulysses concept and those decisions embodying
such, the court added "The apparent rationale of those . . . cases . . . seem[s]
to be confounded of confusion and artificialities, and seem[s] not to have con-
sidered certain basic concepts and teachings which we deem important." Id. at
1085, 272 SAV.2d at 286. See also, Hadlev %.State, 205 Ark. 1027, 172 S.W.2d 237
(1943); King %.Commonwealth, 313 Ky. 741, 233 S.W.2d 522 (1950); Commonwealth
v. Donaducy. 167 Pa. Super. 611, 76 A.2d 440 (1950); Commonwealth v. New, 142
Pa. Super. 358, 16 A.2d 437 (1940).
75. 294 N.Y. 545, 63 N.E.2d 98 (1945). HeadquartersDetective, the chief vehicle
in dispute, mirrored little or no literary worth. Certainly the contributors claimed
no fame in the world of letters, and the only items that captured attention were the
florid pictures and prose which presented a conglomerate pattern of brutality and
gruesome crime.
76. Winters v. New York, 333 U.S. 507 (1948). Although the fourteenth amend-
The majority opinion by Mr. Justice Reed-scarcely a model of

clarity-at most stood for a pronouncement that the enlarged New
York definition of obscenity was unacceptable. 77 Far from creating
or even suggesting a standard for future decisions, the Court in
effect raised the expectations of many libertarians who hoped that
all obscenity legislation might be declared invalid for the reason
that obscenity was just too vague a concept to be capable of legal
definition.
The majority opinion in Winters did at least recognize that a
state may enforce a certain type of obscenity legislation; but does
the state have the power to go beyond enforcement of criminal
sanctions and interfere with the free circulation of a publication
found obscene? The issue of prior restraint was raised in the New
York courts in a case arising under a New York statute, passed in
1954, which authorized a court, following a judicial determination
that a book was obscene, to enjoin its further circulation and order
copies of the book destroyed. Under the authority of the new law,
a petition was duly filed requesting an injunction against the
circulation of a pornographic piece entitled Nights of Horror
ment was the official standard for judgment, the first amendment and free speech
protection prompted copious judicial comment. "Though we can see nothing of any
possible value to society in these magazines, they are as much entitled to the
protection of free speech as the best of literature . . . They are equally subject
to control if they are lewd, indecent, obscene or profane [citing- Chaplinsky v.
New Hampshire, 315 U.S. 568 (1942)]." Id. at 510. Commenting further: "Acts of
gross and open indecency or obscenity, injurious to public morals are indictable at
common law, as violation of the public policy that requires from the offender
retribution for acts that flaunt accepted standards of conduct. . . . When a
legislative body concludes that mores of the community call for an extension of
the impermissible limits, an enactment aimed at the evil is plainly within its
power, if it does not transgress the boundaries fixed by the Constitution for
freedom of expression." ld. at 515.
77. The last paragraph of Mr. Justice Reed's opinion was itself unnecessarily
vague. "To say that a state may not punish by such a vague statute carries no
implication that it may not punish circulation of 'objectionable printed matter,
assuming that it is not protected by the principles of the First Amendment, by the
use of apt words to describe the prohibited publications. Section 1141, subsection
I . . . is an example." Id. at 520. Subsection 1 prohibited "any obscene, lewd,
lascivious, filthy, indecent or disgusting . . . printed matter of an indecent
character." In essence, the Court was asserting that only the traditional concept
of the obscene would be censorable within the limits of the Constitution.
Mr. Justice Frankfurter, joined by Justices Burton and Jackson, dissented. He
pointed out that the Court had struck down an enactment which had been part
of the laws of New York for more than sixty years, and that New York was but
one of twenty states to adopt such legislation. This it dared to do on the basis of
its interpretation of the vague contours of the due process clause. Of the opinion
that local experience should carry the greatest weight, he indicated that the New
York Court of Appeals spoke out of extensive knowledge regarding incitements to
crime and violence. He inquired what the states could do to make the laws more
definite except perhaps to name the publications. The Court erred, he believed,
because it confused "want of certainty as to the outcome of different prosecutions
for similar conduct with want of definiteness in what the law prohibits." Id. at 535.
OBSCENITY AND CO.NSTITUTIONAL FREEDOM
which was offered for sale at several bookstores in the Times

Square area. The Supreme Court of New York County, speaking
through Judge Matthew M. Levy, in a lengthy opinion, upheld
the injunctive procedure but carefully restricted the decree to
the volumes already published. 78 Sustaining the action of the
trial court, the Court of Appeals likewise cautiously noted that
injunctive relief validly may be sought only against published
works, indicating that future issues of magazines or prospective
9
publication could not be enjoined.T
In the United States Supreme Court, as in the New York Court
of Appeals, the sole issue was whether the statute imposed an
unconstitutional prior restraint.8 0 Very evidently the porno-
graphic character of the publications in question placed the book-
78. Burke v. Kingsley Books, 208 Misc. 150, 142 N.Y.S.2d 735 (Super. Ct. N.Y.
County 1955). Judge Levy noted that Nights of Horror made one contribution to
literature, namely, a glossary of terms describing the private parts of the human
body. "Perverted sexual acts and macabre tortures of the human body are
repeatedly depicted .... These gruesome acts included such horrors as cauterizing
a woman's breast with a hot iron ...sucking a victim's blood was pictured . . .and
putting honey on a girl's breasts, vagina, and buttocks-and then putting hundreds
of great red ants on the honey." 208 Misc. at 158-59, 142 N.Y.S.2d at 742-43. And
these features, Judge Levy added, were not the most sordid features. Id. at 159, 142
N.Y.S.2d at 743.
79. Brown v. Kingsley Books, Inc., 1 N.Y.2d 177, 134 N.E.2d 461 (1956).
Affirmance of the lower court judgment was unanimous.
80. The Supreme Court has over the years, beginning with Near v. Minnesota,
283 U.S. 697 (1931), attached signal importance to freedom from prior restraint.
A Minnesota statute [Mason's Minn. Stat. 1927, §§ 10,123-1 to 10,123-3] provided for
the abatement as a public nuisance of a malicious, scandalous, and defamatory
newspaper, magazine, or other periodical and authorized abatement by court order
after hearing. Under the statute, the county attorney of Hennepin County sought
to enjoin J. M. Near from publishing an anti-Semitic newspaper known as The
Saturday Press. The Minnesota courts did in effect enjoin the defendant from
publishing any malicious, scandalous, or defamatory newspaper as established by
.prior publication. This was not prior restraint in the usual sense since the news-
paper was subject to restraint only after repeated publication supported the
finding that it was in fact a nuisance. Nevertheless, further publication of malicious,
scandalous and defamatory matter was enjoined and violation of court order would
result in criminal contempt sanctions. In the United States Supreme Court, Mr.
Chief Justice Hughes, writing for the majority, ruled that the statute not only
operated to suppress the offending newspaper or periodical but to put the publisher
under an effective censorship. The Court therefore held that the statute, so far as
it authorized the abatement pioceedings discussed, was an infringement of the
liberty of the press guaranteed by the fourteenth amendment. Mr. Chief Justice
Hughes did state, however, that the protection even as to prior restraint was not
absolutely limited, citing limitations applicable in exceptional cases.
The fact that prior control is not unconstitutional in all instances is well
demonstrated in the motion picture cases where required submission of a film for
review has been attacked as a form of prior censorship. A majority of five justices,
in Times Film Corp. v. City of Chicago, 365 U.S. 43, 46 (1961), ruled that the
ambit of constitutional protection did not include "complete and absolute freedom
to exhibit, at least once, any and every kind of motion picture." Certainly in
exceptional cases, the determination of the issue of prior restraint became a matter
of pragmatic assessment. See McAnany, Motion Picture Censorship and Constitu-
tional Freedom, 50 Ky. L.J. 427, 434,441 (1962).
dealers in a highly unstable position with respect to challenging

the initial finding of the trial court that the books were in fact
obscene. The Court, in a 5-4 decision, sustained the injunctive
procedure but, as was the case in Winters, failed to define a
standard for determining the constitutional limits for censoring
the obscene."'
Butler v. Michigan,8 2 decided in February 1957, represents the
first effort by the United States Supreme Court to face resolutely
the issues of the modern standards. The case arose in June 1954
with the prearranged sale of John H. Griffin's The Devil Rides
Outside, a paperback edition published by Pocket Books, Inc. of
New York. 83 Inspector Herbert W. Case, chief of the license and
censor bureau of the Detroit Police Department, arrived handily
on the scene to purchase the book, and the arrest of Mr. Butler
was inevitable.8 4 The sale had been devised to test the constitu-
81. Mr. Chief Justice Warren and Justices Black, Brennan, and Douglas
dissented. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 445-48 (1957). Mr. Justice
Brennan took issue with the statute for its failure to grant the defendant the
right to trial by jury. In his opinion, the jury represented a cross section of the
community and possessed a special aptitude for reflecting the view of the average
person. The right to trial by jury was not considered in the majority opinion as
the question-was-not raised by the appellant either in the New York Court of
Appeals or in the United States Supreme Court. Mr. Justice Brennan introduced
the issue.
It is important to observe that the New York statute in no sense hinted at
general- censorship.. Professor Paul G. Kauper has suggested that the New York
method is the preferred way of dealing with the problem. "Criminal sanctions
directed against retail vendors and distributors are clumsy, ineffective, and likely
to work unjust results. To punish a bookseller because he has held on his shelves
and sold the book which in a criminal proceeding is shown to be obscene is really
to reach the wrong person. If there is to be any criminal responsibility here it
should be directed against the publisher or author, but this presents other sticky
questions, including questions of jurisdiction." KAUPER, CIVIL LIBERTIES AND THE
CONSTITUTION 71 (1962).
82. 352 U.S. 380 (1957).
83. It has been indicated that the publisher actually sent Alfred E. Butler to
Detroit to supervise sale of the book. Record, p. 229, Butler v. Michigan, 352 U.S.
380 (1957). The book, far from being pornographic, relates the story of a young
man's sojourn as a guest in a French monastery. This highly introspective central
character is obsessed by his own human weakness and the theme of the novel
concerns in the main the young man's struggle against lust and sins of the flesh.
84. The Detroit license and censor bureau prepared -and dispatched to local
distributors a monthly list of books found to be in violation of the law. The
bureau likewise distributed its lists of objectionable books to all police chiefs in
Wayne County. It was the custom of local distributors to submit copies of paper-
bound books for review by police officers assigned to the bureau. The police officers
would then note objectionable passages, and if the police inspector in charge had
reason to believe that they were sufficiently numerous, he would submit the
publication to the county attorney for an opinion as to whether a violation of the
law was indicated.
In May 1952 the United States House of Representatives created a "Select
Committee on Current Pornographic Materials" (popularly called the Gathings
Committee) to determine the extent to which current literature containing immoral
or obscene matter was being made available to the people of the United States.
tionality of a Michigan obscenity statute which prohibited the

sale of a book or other thing containing obscenity which might
tend to incite minors to violent or depraved or immoral acts, or
tend to corrupt their morals.85
Judge John A. Ricca of the Detroit Recorder's Court ruled
that the book violated the Michigan statute, and finding Butler
guilty, explicitly stated that the Michigan statute was constitu-
tional, justifying his decision on the ground that the state had a
right to pass a statute under its police power for the purpose of
protecting the health and welfare of its citizens and its youth. 8
He found further that "the language contained in the book is
obscene and immoral and lewd and lascivious, and is such that it
tends to incite minors to violence or depraved acts, to the corrup-
'' 7
tion of the morals of youth."
Appeal was made to the Supreme Court of Michigan, but the
court denied Butler's application for leave to appeal.8 8 Appealing
to the United States Supreme Court, 89 Butler contended that the
Michigan statute violated the first and fourteenth amendments to
the Constitution of the United States for three reasons: (1) because
it prohibited the sale to an adult of a book unsuitable for minors;
(2) because its prohibitions were too vague and indefinite; and
H.R. REP. No: 2510, 82d Cong., 2d Sess. 1 (1952). Among other recommendations,
the committee called upon publishers to eliminate on their own initiative "border-
line" and "objectionable" literature, Id. at 120; and recommended the enactment
of legislation authorizing the Postmaster General to impound mail to a concern
which he had reason to believe to be disseminating obscene materials, Id. at 119.
Inspector Case appeared as a friendly witness before the Gathings Committee in
December 1952, Id. at 51-60. At the time of his appearance before the committee,
the Wayne County Attorney announced the results of current censorship activities
in the Detroit area. Of 1,039 books that had been inspected, 54 had been withheld
from circulation. Out of 453 magazines, 17 were banned. He further expressed the
opinion that 48 out of 380 comic books were in violation of the law. For more
detailed information with respect to the activities of the Gathings Committee and
the Detroit license and censor bureau, see MURPHY, CENSORSIP: GOVERNMENT AND
OBSCENITY 53 (1963); Lockhart & McClure. The Law of Obscenity, 38 MINN. L.
REV. 295, 306, 314 (1954); De Voto. The Case of the Censorious Congressman, 206
HARPER'S MACAZINE 42 (April 1953).
85. MicH. STAT. ANN. § 28.575 (1938). The pertinent provisions of the law read:
"Any person who shall sell any book ... or other thing . . . containing obscene,
immoral . . . language, or obscene ... pictures . . . or descriptions, tending to
incite minors to violent or depraved or immoral acts, manifestly tending to the
corruption of the morals of youth . . . shall be guilty of a misdemeanor." (Emphasis
added.)
86. Record, p. 291, Butler v. Michigan. 352 U.S. 380 (1957).
87. Ibid. (Emphasis added.)
88. Id. at 295-96.
89. Assisting in the appeal were several well-known civil liberties advocates.
Filing briefs as atmici curiae were Horace S. Manges for the American Book
Publishers, Inc.: Osmond F. Fraenkel for the Author's League of America, Inc.;
and Erwin B. Ellman for the Metropolitan Detroit Branch of the American Civil
Liberties Union.
(3) because it prohibited the sale of a book containing obscene

language and descriptions, thereby precluding considerations of
the book as a whole. 0° In an unusually laconic and pointed opinion,
Justice Frankfurter, speaking for an undivided Court, reversed
the conviction, relying solely upon Butler's first contention.
In his argument the appellant did not deny that the state
through its police powers could protect the juvenile audience, but
he contended that the State of Michigan had used its powers in a
manner that was "arbitrary and oppressive." 91 Justice Frankfurter
concurred, noting that to quarantine the general reading public
92
in order to protect youth "is to burn the house to roast the pig."
He also made clear the fact that the "adult standard" was not
merely a judicial device for statutory construction, but rather was
grounded firmly on the due process clause of the fourteenth
5
amendment.
Roth-A lberts
Samuel Roth, Austrian immigrant, came to the United States
when he was scarcely more than ten. Reared in New York City,
he embarked upon a career of selling erotica very early in life and
has published, distributed, and sold a wide assortment of material
ranging from vest pocket novelties to the near-classic. 94 No
90. In his-oral opinion in the recorder's court, Judge Ricca had observed that
"even viewing the book as a whole, it [the objectionable matter] was not necessary
to the proper development of the theme of the book nor the conflict expressed
therein." Record, p. 232, Butler v. Michigan, 352 U.S. 380 (1957). Judge Ricca's
viewing the book as a whole may explain why the United States Supreme Court
bypassed the "containing" issue. During the oral argument before the Court, it
was reported that Mr. Justice Reed assumed that the trial court had considered
the book as a whole. 25 U.S.L. WEEK 3117 (1956).
91. Brief for Appellant, p. 33, Butler v. Michigan, 352 U.S. 380 (1957). At
bottom what was at stake, countered the State of Michigan, was not the freedoms
of the-first and fourteenth amendments but rather the police power reserved to
the states by the tenth amendment.
92. 352 U.S. at 383.
93. Id. at 383-84. The advocates of the tenth amendment were to find some
solace in the majority opinion. Mr. Justice Frankfurter revealed that Butler was
not convicted for selling to a child under a narrower Michigan statute, MicH.
STAT. ANN. §§ 750.142-750.143 (1938), specifically prohibiting the sale of obscene
material to children. During oral argument, Mr. Justice Harlan had asked defense
counsel, "If the statute were limited to sales to minors you would have a
different case?" Counsel replied, "Yes, and I would have a much harder case." 25
U.S.L. WEEK 3117 (1956).
94. For years Roth maintained a mail order business from an old loft building
at 110 Lafayette Street in New York City. With a relatively small staff he created
a large volume business in borderline obscenity, mainly magazines, photographs, and
color slides. He operated at various times under an assortment of trade names or
titles: Gargantuan Books, Gargoyle Books, Paragon Books, Seven Sirens Press, to
name several. An expert at procuring mailing lists, he indiscriminatingly sent
advertising circulars across the country, even to schools and orphanages, and
usually his advertisements were as risqu6 as could be without violating the
stranger to the court room or the precinct station, Roth was

almost continually on the carpet for violating local, state, and
federal obscenity laws.9 5
During the latter part of 1952 and in the early months of 1953,
Roth's advertising campaigns became more daring and offensive.
The Post Office Department and members of Congress were
deluged with protests written by angry, concerned citizens who
had received a sampling of the advertising circulars. Following a
thorough investigation by postal inspectors, a federal grand jury
in New York indicted him on twenty-six counts for violating the
federal statute prohibiting mailing and advertising of obscene
matter.9 6
In January 1956, Roth went to trial on this indictment. Counsel
for the defense were permitted to offer expert testimony to prove
the harmless nature of the defendant's materials. Reputable liter-
ature, including the Bible, John O'Hara's Ten North Frederick,
and excerpts from Life MagaZine were exhibited to the jury for
the sake of comparison. The trial judge evidenced no lack of
sympathy for the defense efforts, but his charge to the jury was
vaguely reminiscent of the Hicklin stereotype. 97 The jury pro-
obscenity statutes. For an account of Roth's business operations, see MAKRIs, THE
SILENT INVESTIGATORS 289-99 (1959).
95. In 1928 he pleaded guilty to the charge of mailing obscene literature and
was sentenced to jail for six months. The sentence was suspended. Two years later,
for selling James Joyce's Ulysses, he spent sixty days in a Philadelphia jail. In
1936 he was sentenced to a federal prison for three years and ten years later was
sentenced to two years imprisonment. One of his more sensational encounters with
the Post Office Department occurred in 1948 when he sought to enjoin a New York
post master from executing five orders excluding' three publications front the
mails. Four of the orders were based on fraudulent advertising and the fifth order
excluded a book entitled Waggish Tales From the Czechs, obscene in content, but
dull by any standard. In Roth v. Goldman, 172 F.2d 789 (2d Cir. 1949) the court
of appeals with some reservations as to the Waggish Tales upheld the Post Office
Department, stating that "within limits it perhaps is not unreasonable to stifle
compositions that clearly have little excuse for being beyond their provocative
'obscenity and to allow those of literary distinction to survive." 172 F.2d at 789.
Judge Jerome Frank, although concurring, observed that stories such as the
Waggish Tales "are freely told at many gatherings of prominent lawyers." 172
F.2d at 796. He was not able to perceive that lawyers were corrupted or depraved
thereby, and he was not convinced that lawyers were a race apart from common
men.
96. 18 U.S.C. § 1461 (1948). The 26th count was not for a direct violation of
§ 1461 but rather for a conspiracy to violate that section. Record, pp. 20-21,
Roth v. Goldman, 172 F.2d 789 (2d Cir. 1949).
97. The word "obscene," he instructed, could be defined as "that form of
immorality which has relation to sexual impurity and has a tendency to incite lustful
thoughts." "The matter" he added, "must be calculated to corrupt and debauch
the minds and morals of those into whose hands it may fall. It must tend to stir
sexual impulses and lead to sexually impure thoughts." Record, pp. 25-26, Roth v.
Goldman, 172 F.2d 789 (2d Cir. '1949). Failing to refer to the importance of
artistic or literary values, he directed the attention of the jury to the bestsellers
introduced in evidence and remarked, "You may consider and compare the number
nounced a verdict of guilty on four counts, and Roth was given

a five year prison sentence and a fine of five thousand dollars on
one count and five years' imprisonment on each of the other three
counts as well as a one dollar fine, the prison terms to run con-
currently."" The court of appeals, Judge Jerome Frank reluctantly
concurring, affirmed the conviction."
David S. Alberts, nearly thirty years younger than Roth, oper-
ated a mail order house in Los Angeles County under the name of
Male Merchandise Mart. Assisted by his wife, Violet E. Stanard
Alberts, David S. Alberts exhibited the Roth devotion to industry
and cunning, but the calibre of his trade was at a distinctly lower
level. When the sheriff's deputies raided his warehouse, office, and
apartment they found booklets bearing such titles as The Prosti-
tute and Her Lover, The Picture of Conjugal Love, Male Homo-
sexuals Tell Their Stories, and The Love Affair of a Priest and a
Nun. Hundreds of items were seized, including indecent pam-
phlets, bondage pictures, photographs of nude and scantily clad
women, stereo slides, and mailing lists.
Charged with lewdly keeping obscene materials for sale and
advertising them in violation of California law, 1°0 Alberts was
tried without a jury in the municipal court of Beverly Hills. After
a finding of guilty he was fined five hundred dollars, sentenced
to sixty days, and placed on probation for two years. The convic-
tion was affirmed by the Appellate Department of the Superior
of people who read these books with the number of people who make up our com-
munity, and it may be your judgment that some or all the books introduced by the
defendant are obscene themselves .. " Id. at 27. Nevertheless, he did instruct them
that they were to abide by the "average person" standard and were to judge the
material as a whole, not by selected passages taken out of context.
98. Roth was found guilty on counts 10, 13, 17, and 24. Count 24 singled out
one issue of a quarterly entitled American Aphrodite which contained contribu-
tions by Herbert Ernest Bates, John Cournos, Pierre Louys, Henry Miller and other
authors of popular works. Counts 10 and 17 involved advertisements for American
Aphrodite, Photo and Body, and Good Times. Count 13 contained an advertisement
for Good Times. Apparently the jury was convinced that American Aphrodite was
obscene.
99. United States v. Roth, 237 F.2d 796 (2d Cir. 1956). The court, speaking
through Judge Charles E. Clark, evidenced a note of uneasiness about the con-
stitutionality of the statute.and were troubled by the serious consequences that
might arise were works of literary value to be banned from the mails. However,
since the record showed saleable pornography, the court decided against more
drastic action in this instance. Judge Frank as much as invited Supreme Court
review of the constitutional question, but concluded: "since ours is an inferior
court, we should not hold invalid a statute which our superior has thus often
said is constitutional (albeit without any full discussion)." 237 F.2d at 804.
100. CAL. PEN. CODE ANN. § 311 (1955). The California obscenity statute
provided, in brief, that every person who wilfully and lewdly sold, distributed or
exhibited any obscene or indecent book, writing . . . or published any notice or
advertisement of such, was guilty of a misdemeanor.
196,4] OBSCENITY AND CONSTITUTIONAL FREEDOM
Court of the State of California in and for the County of Los

Angeles.' 0
The United States Supreme Court decided the Roth and Alberts
cases together. 10 2 As a practical matter, Roth raised only four
issues: (1) whether the federal obscenity statute'0 3 violated free-
dom of speech guaranteed by the first amendment; (2) whether
the statute was too vague to meet requirements of due process
implicit in the fifth amendment; (3) whether the law was viola-
tive of the first, ninth, and tenth amendments by invading powers
reserved to the states and the people; and (4) whether the publica-
tions considered as a whole were obscene.10 4 Alberts, in his juris-
dictional statement raised two issues: (1) whether the California
statute abridged freedom of speech and violated procedural and
substantive due process of law; and (2) whether the statute as
applied to mailing of books and circulars infringed on an area
properly within federal control.' 0 As the cases reached the United
States Supreme Court, the Court would find that no issue was
presented in either case concerning the obscenity of the material
involved. 0 6 They would be decided "at a very high level of ab-
straction-a level so high that the facts of the two cases had be-
' 07
come literally irrelevant.'
Mr. Justice Brennan, writing for the majority, 08 declared that
the dispositive question was whether obscenity could be classed as
an utterance within the area of protected free speech. Observing
that this was the first time the question had been squarely pre-
sented to the Court, either under the first amendment or under
the fourteenth, he found ample authority to indicate that the
Court has always assumed that obscenity was not so protected.
All ideas having even the slightest redeeming social importance
101. People v. Alberts, 138 Cal. App. 2d 909, 292 P.2d 90 (1955). This was the
hilhest appellate court of the state available to the defendant. CALIFORNIA CONST.,
art. 6, § 5.
102. Roth v. United States; Alberts v. State of California, 354 U.S. 476 (1957).
In text discussion these cases will be cited as Roth or Roth-Alberts and in the
footnotes as Roth v. United States.
103. 18 U.S.C. § 1461 (1948).
104. Counsel for Roth diligently pursued the first three of these issues but with
respect to the fourth did little more than assert that American Aphrodite was not
in fact obscene and that other publications were not objectionable. Petition for
Writ of Certiorari, pp. 2-3, 55-57.
105. Jurisdictional Statement, pp. 4-5. In his reply brief Alberts argued that the
materials he sold were not obscene, but the issue was not considered by the
Court.
106. Roth v. United States, 354 U.S. at 4S1 n.8.
107. Lockhart & McClure, Censorship of Obscenity, 45 MINN. L. REv. 5, 25
(1960).
108. Mr. Justice Brennan was joined by Justices Frankfurter, Burton, Clark, and
Whittaker.
deserved the full protection of the guarantees, but "implicit in

the history of the First Amendment is the rejection of obscenity
as utterly without redeeming social importance."'0 0°
The majority opinion carefully pointed out that "sex and
obscenity are not synonymous."°10 It defined obscene material as
"material which deals with sex in a manner appealing to a pru-
rient interest,"'' and in a footnote to this sentence added, "i.e.
2
material having a tendency to excite lustful thoughts.' 1 Certainly
the mere portrayal of sex in art, literature, and scientific works
would not in itself be sufficient reason to deny such material the
constitutional protection of freedom of speech and press. Justice
Brennan, recognizing that the fundamental freedoms of expression
have contributed greatly to the development and well-being of
our free society, cautioned against any unnecessary encroachment
upon these interests. It was therefore vital that the standards for
judging obscenity safeguard all freedom of speech protection for
all material which does not treat sex in a manner appealing to
prurient interest." 3
Rejecting the Hicklin concept as an inadequate safeguard, he
accepted a standard previously adopted by some American courts:
"Whether to the average person, applying contemporary commu-
nity standards, the dominant theme of the material taken as a
whole- appeals to prurient interest.""14 Responding to the argu-
109. 354 U.S. at 484-85. Mr. Justice Brennan took notice of the argument that
obscenity statutes offend the constitutional guarantees because they punish incita-
tion to impure sexual thoughts unrelated to overt antisocial conduct. In reply he
stated that it was not necessary to prove that obscene material will perceptibly
create a clear and present danger of antisocial conduct. He cited as key to the
proposition, Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) (... "it is -unnecessary
either for us or for the state courts, to consider the issues behind the phrase 'clear and
present danger.' Certainly no one would contend that obscene speech, for example,
may be punished only upon a showing of such circumstances. Libel, as we have
seen, is in the same class.")
110. 354 U.S. at 487.
111. Ibid.
112. Id. at 487, n.20. The Court perceived no significant difference between the
meaning of obscenity developed in the case law and the definition of the American
Law Institute's Model Penal Code which reads: "A thing is obscene if, considered
as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid
interest in nudity, sex or excretion, and if it goes substantially beyond customary
limits of candor in description or representation of such matters." MODEL PENAL
CODE § 207.10(2) (Tent. Draft No. 6, 1957). The expression "appeal to prurient
interest" derived from an opinion by Mr. Justice McKenna in Mutual Film Corp.
v. Industrial Cornn'n, 236 U.S. 230, 242 (1915).
Actually, the Court's definition of obscenity and the American Law Institute's
definition do not reflect solid agreement. The Institute rejected "the prevailing
test of tendency to arouse lustful thoughts or desires" because it was unrealistically
broad for a society that tolerates considerable erotic interest in literature, advertis-
ing or art. MODEL PENAL CODE § 207.10(2), Comment, at 10.
113. 354 U.S. at 488.
114. Id. at 489. The Hicklin test, judging obscenity by the effect of isolated
ments that the statutes in question did not provide reasonably

ascertainable standards of guilt so as to be violative of the constitu-
tional requirements of due process, Justice Brennan declared that
the Constitution does not require impossible standards in terms of
precision. It thus became clear that the statutes, when applied
according to the proper standard for judging obscenity, would not
offend constitutional safeguards against convictions based upon
prohibited material; nor would they fail to give adequate notice
5
of what is prohibited."
Roth had charged that the federal obscenity statutes were un-
constitutional in that they encroached upon the powers reserved
to the states by the ninth and tenth amendments. He pressed the
contention that the provision within the first amendment, "Con-
gress shall make no law abridging the freedom of speech, or of
the press . . ." excluded federal power. "That argument," replied
Justice Brennan, "falls in light of our holding that obscenity is
not expression protected by the First Amendment."" 6 Conversely,
Alberts argued that because his was a mail order business, the
California statute was repugnant to article I, section 8, clause 7,
under which Congress allegedly pre-empted the regulatory field
by enacting the federal statute. Holding that the federal statute
deals only with actual mailing, the Court tersely disposed of the
question, indicating that the California law in no way imposed a
7
burden upon or interfered with the federal postal function."
Chief Justice Warren, in a separate opinion, accepted the result
reached by the Court in both cases but sharply limited the deci-
sion to the precise factual situation considered by the Court and
to the validity of the statutes in question. Assuming that a wholly
different result might be reached in a different setting, he reasoned
that "the conduct of the defendants is the central issue, not the
passages upon the most susceptible persons, was rejected as unconstitutionally
restrictive of the freedoms of speech and press because it might well encompass
material legitimately treating of sex. Lockhart and McClure have concluded that
the Court laid down two-and only two--constitutional requirements: (1) that
material be judged as a whole and (2) that it must be judged by its impact on
average persons. It is their considered opinion that the Court was concentrating on
"the two most criticized aspects" of the Hicklin rule. Lockhart & McClure, supra
note 107, at 53.
115. 354 U.S. at 491-92. The Court further ruled that both trial courts below
had sufficiently followed (1) the proper standard and (2) the proper definition of
obscenity.
116. Id. at 492. The Court held that the federal obscenity statute punishing
the use of the mails for obscene material is a proper exercise of the postal power
delegated to Congress by art. I, § 8, cl. 7. Likewise rejected was the argument that
there is greater latitude for state -action under the fourteenth amendment than is
allowed to Congress by the language of the first amendment.
117. Id. at 493-94.
obscenity of a book or picture." 118 The Chief Justice gave no hint

as to the consti4.utional standard he might apply; however, he
voted to affirm both convictions in the instant case, observing
that both defendants "were plainly engaged in the commercial
exploitation of the morbid and shameful craving for materials
'n
with prurient effect."
Mr. Justice Harlan, concurring in Alberts and dissenting in
Roth, struck at the heart of several crucial problems inherent in
federal-state regulation of obscenity. He interpreted the majority
decision as stating that the constitutional question before the
Court was simply "whether 'obscenity,' as an abstraction, is pro-
tected by the First and Fourteenth Amendments .... 120 This
being so, "the question whether.a particularbook may be sup-

pressed becomes a mere classification of 'fact,' to be entrusted to
a fact-finder and insulated from independent Constitutional judg-
ment.'' 1 2 1 Convinced that the suppression of a writing or other
form of expression involved an individual constitutional problem,
he reasoned that each case presented a question of constitutional
judgment, and registered his disapproval of the relegation of such
a problem-to a trier of fact, be it judge or jury. In short, it was the
duty of a reviewing court to make its own independent judgment
1 22
of the character of the material presented.
Recognizing that the domain of sexual morality: is pre-emi-
nently a matter of state concern and that the state can reasonably
draw the inference that certain types of erotica will have an
eroding effect on moral standards, Justice Harlan concurred in
upholding the Alberts conviction. He did so only upon an inde-
pendent perusal of the material involved and thus could agree
that the State of California had not subverted fundamental
liberties implicit in the due process clause of the fourteenth
amendment.':" Satisfied that state and federal powers in this area
118. Id. at 495. The nature of the materials would be relevant as an attribute
of the defendant's conduct; thus the materials would be judged in proper context.
119. Id. at 495-96.
120. Id. at 497-98.
121. Ibid.
122. To support his contention that the central question of deciding whether
a particular work is obscene does not involve a mere issue of fact but a question
of constitutional judgment, Mr. Justice Harlan commented:
Many juries might find that Joyce's "Ulysses" or Baccaccio's "Decanieron"
was obscene, and yet the conviction of a defendant for selling either book
would raise, for me, the gravest constitutional problems, for no such verdict
could convince me, without more, that these books are "utterly without
redeeming social importance." Id. at 498.
123. Id. at 503. Justice Harlan expressed disapproval of the Court's assimilation
of the various tests into one indiscriminate potpourri. The Roth and Alberts
OB.C0'W11tNIT AND CONSTITUTIONAL FREEDOM
of morality contnl are not coequal, he dissented in Roth. Assert-

ing that the interests which obscenity statutes purportedly protect
are primarily entrusted to the states, he denied that Congress
had substantive power over sexual morality. Such powers as the
federal government has in this field would be but incidental to
its other powers (here the postal power), and would not be of
the same nature as those possessed by the states. In sum, he voted
to reverse the Roth conviction on the basis of three fundamental
principles: (1) the attenuated federal interest in the field; (2) the
very real danger of a deadening uniformity which can result from
nation-wide federal censorship: and (3) the fact that the constitu-
tionality of the conviction must be weighed against the first and
1 4
not the fourteenth amendment. '
Justices Douglas and Black dissented on the ground that punish-
ment was being inflicted for thoughts provoked rather than for
unlawful actions or conduct. 21 Freedom of expression, therefore,
could not be suppressed unless it was so closely brigaded with
illegal action as to become an inseparable part of it. The .dissent-
ing opinion offered no evidence to disprove the majority position
that obscenity has traditionally been regarded as libel and pro-
fanity, hence outside- the circle of first-amendment protection. It
further denies the theory of "balancing interests" by rejecting the
implication that problems of freedom of speech and of the press
are to be resolved by weighing against values of free expression
the judgment of the Court that a form of expression has no
redeeming social importance.126
cases had involved two distinct statutes and neither presented an identical problem.
This confusion he considered compounded when the Court superimposed a third
definition drawn from the American Law Institute's Model Penal Code, Tentative
Draft No. 6, cited supra at note 112. He saw a significant distinction between the
definitions employed in the instant case and the formula presented by the American
Law Institute, so much so that if the latter was the correct standard, the con-
victions should be reversed. Id. at 499.
124. The Harlan rationale would not deny the federal government all power
with respect to obscenity control. He simply wanted to limit federal control to the
censorship of "hard-core pornography," while granting the states somewhat
broader powers. In his brief for the United States, the Solicitor General indicated
that "hard-core" or "black market" pornography accounted for ninety per cent of
the material "actually caught in the net of the federal obscenity statute." Brief
for the United States, p. 34. Such -hard-core" material would include erotic objects
and books, pamphlets, photographs, and motion pictures depicting normal and
abnormal sexual activity. Id. at 37-39.
125. The absence of dependable information on the effect of obscene literature
on human conduct should make us war'. It should put us on the side of
protecting society's interest in literature, except and unless it can be said
that the particular publication has an impact on action that the government
can control. 354 U.S. at 511.
126. The language of the firstamendment, when interpreted literally is
categorical. Justices Black and Douglas have assumed that the amendment means
The Wake of Roth-Alberts

The journey from Ulysses to Roth was long and uncertain,
yet it could not be expected that the Roth standard would serve
as an immediately practical guide for future judicial action.
Granted that a foundation had been laid and that it was at last
clear that the adjective "obscene" was constitutionally definite, it
was likewise clear that obscene material would not deserve con-
stitutional protection. Nevertheless, until the United States Su-
preme Court could determine by its own independent appraisal
whether allegedly objectionable material was suppressible within
constitutional standards, the abstract rule of Roth would not pro-
vide a workable test for implementing justice in the lower courts.
On the basis of the rush of litigation that has followed in the
wake of Roth, it may well be said that the decision has created
more questions than it has settled.
The first United States Supreme Court decision to cite either
Roth or Alberts raised conjecture, if nothing else. Adams Newark
Theater Co. v. City of Newark,1 27 representing another excursion
into the realm of the abstract, simply affirmed a judgment of the
New Jersey Supreme Court upholding the constitutionality of cer-
tain Newark ordinances prohibiting obscene performances. 128 Sus-
taining the ordinances against charges of vagueness and denial of
freedom of expression, the Court in a summary per curiam
opinion cited Kingsley Books and Roth-Alberts but shed no light
upon the standards or principles embodied by these authorities.'2
Proponents of stricter control, perhaps without reason, nurtured
shortlived hopes that the Court had put its best foot forward
in the name of decency, while those of libertarian conviction were
given to brooding and anxious reflection.
exactly what it says, namely, that Congress shall make no law respecting an
abridgment of speech or the press. Considerations of public interest would not
support legislation constituting such an abridgment. See also, Mr. Justice Black's
dissenting opinion in Konigsberg v. State Bar of California, 366 U.S. 36 (1961)
and the dissenting opinions of Justices Black and Douglas in Scales v. United
States, 367 U.S. 203 (1961). The Black thesis is contained in his lecture, "The Bill
of Rights," 35 N.Y.U.L. Rev. 865 (1960). Professor Paul G. Kauper has discussed
the balancing of interest concept in its relation to absolutism in KAUPER, CIVIL
LIBERTIES AND THE CONSrITUTION 111 (1962).
127. 345 U.S. 931 (1957).
"128. The City of Newark had recently amended its ordinances to prohibit
-lewd, obscene or indecent" performances, ostensibly aimed at the Adams and
I. Hirst enterprises which operated burlesque theatres in that city. Seeking a
declaratory judgment that the amended ordinances were unconstitutional, they
gained their objective in the state superior court, but lost on appeal to the state
supreme court. Adams Newark Theatre Co. v. City of Newark, 39 N.J. Super. 111,
120 A.2d 496, 22 N.J. 472, 126 A.2d 340 (1956).
129. Justices Black and Douglas dissented. Mr. Justice Brennan did not par-
ticipate.
In the October 1957 Term. the Court in a series of per curiam

decisions, citing only Roth or Alberts, reversed four United States
Court of Appeals' decisions that had approved censorship of
obscenity. 3 0 The controversy in the Times Film case centered
about a series of pornographic scenes in a French motion picture
entitled The Game of Love. 131 One, Inc. v. Olesen concerned a
postal order which had declared One-The Homosexual Maga-
zine nonmailable on the ground of obscenity. 3 2 Reversing the
court of appeals, the Supreme Court cited Roth and evidently
applied the Roth standard in holding that the magazine was not
obscene. In Sunshine Book Co. v. Summerfield, the Postmaster
General, district court, and court of appeals were convinced that
certain issues of Sunshine and Health and Sun Magazine were
nonmailable.'3 3 Possibly ruling that the Post Office Department,
district court, and court of appeals had misapplied the standards
of obscenity, the Court once again terminated the controversy
through the office of a complete reversal. Mounce v. United States
involved a forfeiture proceeding under the customs laws against
54
an imported collection of nudist and art-student publications.
130. Mounce v. United States, 355 U.S. 180, reversing, 247 F.2d 148 (9th Cir.
1957); One, Inc. v. Olesen, 355 U.S. 371 (1958), reversing, 241 F.2d 772 (9th Cir.
1957); Sunshine Book Co. v. Summerfield, 355 U.S. 372 (1958), reversing, 249 F.2d
114 (D.C. Cir. 1957); Times Film Corp. v. City of Chicago, 355 U.S. 35, reversing,
244 F.2d 432 (7th Cir. 1957).
131. The court of appeals, which had rejected the film as obscene, described
certain episodes of the motion picture:
[T~he thread of the story is supercharged with a current of lewdness generated
by a series of illicit sexual intimacies and acts . . . [A] flying start is made
when a 16 year old boy is shown completely nude on a bathing beach in
the presence of a group of younger girls [as a result of a boating accident].
On that plane the narrative proceeds to reveal the seduction of this boy by
a physically attractive woman old enough to be his mother . . .[T]he boy
thereupon engages in sexual relations with a girl of his own age. The erotic
thread of the story is carried, without deviation for any wholesome idea,
through scene after scene. The narrative is graphically pictured with nothing
omitted except those sexual consummations which are plainly suggested but
meaningfully omitted and thus, b%.the very fact of their omission, emphasized.
244 F.2d 432, 436.
132. The court of appeals had confirmed the opinion of the Post Office Depart-
ment that the magazine's pretense at being scientific, historical, and critical was a
sham. 241 F.2d 772, 777 (9th Cir. 1957). The opinion singled out one story in which
a "young girl gives up her chance for a normal married life to live with a lesbian,"
and directed attention to advertisements informing the reader where homosexual
literature and material could be obtained.
133. The district court had found that nude photographs, clearly showing male
and female genitalia and pubic areas, offended the community's conscience. Sun-
shine Book Co. v. Summerfield. 127 F. Supp. 564, 570-73 (D.D.C. 1955). When
the Supreme Court removed the post office ban, foreign nudist magazines and
similar pornographic material suddenly achieved approved prominence in this
country. In 1961 the Post Office Department issued a record number of 203 mail
block orders against foreign publications as compared to only two orders against
domestic firms. Files of the Judicial Office, Post Office Department (fiscal year 1961).
134. Neither the district court nor the court of appeals found the text material
The government made a "confession of error" that the test used

by the court of appeals was "materially different" from the Roth
standard, and the Supreme Court "reversed and remanded to the
United States District Court for consideration in the light of
' ' 13 5
Roth v. United States.
For a brief period following the four per curiam pronounce-
ments, the law and obscenity were in limbo. Fortunately, Mr.
Average American, whether he was a product of Fifth Avenue,
Michigan Avenue, Wilshire Boulevard, or Middletown, was not
aware of the impact of these reversals without benefit of explana-
tion. But a complex moral issue was presented; and a restive
public, consciously or unconsciously, would inevitably cast its
glance upward to the Supreme Court, trusting that a sane balance
between good and evil might be preserved. 36 The more astute
could explain three absolute reversals in terms of an independent
examination by the Court. 1 37 However, the less secure might well
have inferred that the Court was irresolute because: (1) time
would not permit refinement or delineation of the Roth standard;
or (2) a reluctance by the clear majority to accept review gravi-
tated against a thorough consideration of the issues. That the
Court was neither irresolute nor lacking in comprehension of the
sane limits of moral control would be evidenced in the structure
of subsequent decisions.
Obscenity when presented in blatant, concrete form does not
warrant constitutional protection. Accepting this position as a
verity, can it be inferred that the mere advocacy of obscenity-
detached from prurient portrayal-should fall within the same
category? A unanimous opinion by the United States Supreme
Court in Kingsley Int'l Pictures Corp. v. Regents of the Univ. of
New York t38 provided a firm negative response. The Motion Pic-
ture Division of the New York State Department of Education
had directed that three scenes should be cut from the French
objectionable. Accompanying photographs apparently placed too much emphasis
upon the front views of nudes to pass the judicial test.
135. 355 U.S. 180 (1957).
136. Good and evil as used in context do not refer to the attributes of the
censorious or the libertine. A strong, mature sense of balance between the two
implies good. An emotional, immature imbalance implies evil.
137. For an excellent discussion promoting the thesis that the Court, in its
three absolute reversals, must have made an independent examination of the
allegedly objectionable materials, see Comment, 26 U. Cm. L. REv. 279, 309-13
(1959). Lockhart and McClure likewise give credence to the independent examina-
tion concept. Supra note 107, at 34. To accept this thesis, however, one would have
to assume that the Court was concerned only with first amendment issues: which
was not a fact. Questions of due process were also in issue.
138. 360 U.S. 684 (1959).
1964] OBSCENITY AND CO.S TIT UTIOXA L FREEDOM
motion picture Lady Chatterley's Lover.'1 9 Kingsley Pictures ap-

pealed to the Regents of the State of New York, and the regents
approved the division's ruling on two grounds that: (1) the deleted
scenes were immoral; (2) the whole theme, presenting adultery as
a desirable, acceptable, and proper pattern of behavior, was im-
140
moral.
139. The motion picture was based on the bowdlerized version of D. H. Law-
rence's controversial novel. Record. pp. 2. 17-19, Kingsley Int'l Pictures Corp. v.
Regents of the Univ. of New York. 560 U.S. 684 (1959).
140. The regent's decision was based upon a New York statute which defined
an "immoral" motion picture as a film which in whole or in part "portrays acts
of sexual immorality, perversion. or lewdness, or which expressly or impliedly
presents such acts as desirable, acceptable or proper patterns of behavior." N.Y.
Enuc. LAW, § 122-a (1954). This law had been enacted in an effort to conform with
directions from the United States Supreme Court. The Court, in permitting exhibi-
tion of the motion picture La Ronde had implied that the term "immoral," standing
alone, was an inadequate standard. Accordingly the language of the motion picture
licensing statute was clarified in 1954. See Commercial Pictures Corp. v. Regents of
the Univ. of New York, 346 U.S. 5S7 (1954).
In Joseph Burstyn, Inc. v. lWilson. 343 U.S. 495 (1952), a unaminous Court had
ruled that motion pictures were protected by the first and fourteenth amendments.
Burstyn thus became a landmark in the progress of the industry toward full status
as a medium of communication. Bursti-n further condemned standards which were
too indefinite to provide a proper guide to censors. Within five years the Court
handed down five per curiam reversals, and in each case, the highest state court
or federal court of appeals had upheld censorship almost without dissent. Times
Film Corp. v. City of Chicago, 355 U.S. 35, reversing, 244 F.2d 432 (7th Cir. 1957);
Holmby Prods., Inc. v. Vaughan, 350 U.S. 870, reversing, 177 Kan. 728, 282 P.2d
412 (1955); Commercial Pictures v. Regents of the Univ. of New York, 346 U.S.
587 (1954), reversing, 305 N.Y. 336, 113 N.E.2d 502 (1953); Superior Films, Inc. v.
Department of Educ., 346 U.S. 587 (1954), reversing, 159 Ohio St. 315, 112 N.E.2d
311 (1953); Gelling v. Texas, 343 U.S. 960, reversing, 157 Tex. Crim. 516, 247 S.W.2d
95 (1952).
States and communities which have adopted film licensing techniques have
pleaded necessity as a justification for departure from the use of subsequent punish-
ment as a means of control. Censorship boards, state and local, reached their zenith
during the heyday of the movies in the '20's and '30's, but meanwhile the motion
picture industry had devised its own method for warding off official control by
creating the Production Code Administration (P.C.A.). Through the efforts of the
P.C.A. the industry regained a wide segment of the community respect it had
lost in earlier years and gradually the influence of the official censor declined.
At the turn of the half-century, only eight states could claim official boards of
censors: Florida, Kansas, Maryland, Massachusetts, New York, Ohio, Pennsylvania,
and Virginia. Ohio declared its own censorship law invalid in R.K.O. Radio Pictures,
Inc. v. Department of Educ., 162 Ohio St. 263, 122 N.E.2d 769 (1954). In deciding
William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 (1961), the
Supreme Court of Pennsylvania outlawed all prior censorship in that jurisdiction
despite the fact that the state legislature had just two years previously passed
legislation tailored to the specifications of the United States Supreme Court. By
1964, prior restraint censorship b% full-time state boards was maintained by only
four states: Kansas, Maryland, New York, and Virginia. Many local boards of
censorship continue to operate; however, recent judicial action has occasioned a
drastic overhaul of standards and rules of procedure. The most notable reform
effort to date has been accomplished by the City of Chicago through the enact-
ment of its new censorship law on December 27. 1961. ChICAGO, ILL., MUNICIPAL CODE,
ch. 155, §§ 155-1-155-7. Innovations include the creation of a motion picture appeal
board to consist of nine members, fie of whom shall be educated or experienced
in one of nine special areas of the arts, literature, or science. It is the responsi-
bility of the board to review motion pictures for which a permit has been denied
The Appellate Division of the New York Supreme Court re-

versed the regents' ruling and held that the statute failed to pro-
vide a permissible standard for prior restraint under the United
States Constitution. 141 The New York Court of Appeals reverseda42
the Appellate Division and reinstated the regents' ruling.
Mr. Justice Stewart, speaking for the majority of the United
States Supreme Court, held part of the statute unconstitutional
because it violated the first amendment's guarantee of freedom
to advocate ideas. "What New York has done," he wrote, "... is
to prevent the exhibition of a motion picture because that picture
advocates an idea-that adultery under certain circumstances may
be proper behavior. Yet the First Amendment's basic guarantee is
of freedom to advocate ideas.' ' 143 Disposing of the case on abstract
grounds, the majority did not even consider whether the motion
picture was in fact obscene.
A Los Angeles ordinance providing that it shall be "unlawful
for any person to have in his possession any obscene or indecent
... book ... in any place of business where ice cream, soft drinks,
by police censors. After viewing the film in its entirety, and before making deter-
mination, the board must offer to the exhibitor and his counsel an opportunity to
present testimony and statements in support of the film. If the board rejects the
film, it must state with reasons and with particularity the parts of the picture
deemed objectionable. The reform ordinance was likely prompted by a decision
of the court of appeals in Zenith International Film Corp. v. City of Chicago, 291
F.2d 785 (7th' Cir. 1961) which attacked ad hoc, unfair; and abortive municipal
licensing procedures. Merits of the motion picture ("The Lovers') were not dis-
cussed, the court preferring to concentrate on matters of due process which it
found lacking, thus reversing a lower court opinion upholding the censor. See,
McAnany, Motion Picture Censorship and Constitutional Freedom, 50 Ky. L.J. 427
(1962); Mulroy, Obscenity, Pornography and Censorship, 49 A.B.A.J. 869 (1963).
141. Kingsley Int'l Pictures Corp. v. Regents of the Univ. of New York, 4 App.
Div. 2d 348, 350, 165 N.Y.2d 681, 683 (1957).
142. Kingsley Int'l Pictures Corp. v. Regents of the Univ. of New York, 4 N.Y.2d
349, 151 N.E.2d 197 (1958). The Court of Appeals in effect ruled that the state
could refuse to license a motion picture that portrayed adultery as proper behavior.
Chief Judge Conway made the following observation:
Their [Lady Chatterley's and Mellors'] decision to live in adultery was quietly
heralded as a conquest of love over the "form" of marriage. And this entire
scene was woven about scenes which unmistakably suggested and showed acts
of sexual immorality. . . . Thus this film unquestionably presents adultery
as a proper pattern of behavior. And it does so employing several scenes of
obscenity. Id. at 352, 151 N.E.2d at 199.
143. 360 U.S. 684, 688. Mr. Justice Stewart was joined by Chief Justice Warren
and Justices Black, Brennan, and Douglas. Mr. Justice Harlan, joined by Justices
Frankfurter and Whittaker, wrote a separate concurring opinion. They could not
find that the New York law suppressed the advocacy of ideas and therefore would
allow the statute to remain intact. It was simply a case of misapplication of the
law. In short, they would allow both the film and the statute. Mr. Justice Clark
suggested that another revision of the New York statute was in order, that the law
should de-emphasize what the motion picture teaches or advocates and emphasize
the ills deriving from improper portrayal of immoral acts, Justices Black and
Douglas agreed with the result, but on the basis that the first amendment outlawed
all censorship.
1964] OBSCENI T AND ;O,,'NSTlTUTIONAL FREEDOM
candy ... magazines, books ... are sold or kept for sale, ' ' 144 sup-
plied the background for another landmark decision. Eleazer
Smith, bookdealer, maintained a stock of several thousand new
and used books, a majority of which were purchased from dis-
tributors and publishers located in New York City. A Los Angeles
police officer purchased a number of magazines and a book from
145
one of Smith's clerks and then proceeded to arrest the clerk.
Smith himself was charged with violation of the city ordinance.
At trial, the defense offered the testimony of two expert wit-
nesses, a literary critic, and a clinical psychologist. The critic was
to testify that Sweeter Than Life had literary merit, served a use-
ful purpose, and would not appeal to the prurient interest of the
average person. The psychologist would have testified that the
book was acceptable gauged by present day community standards,
and that within the bounds of reasonable psychological certainty,
the book would neither corrupt nor deprave its readers by arous-
ing lascivious thoughts or lustful desires. The testimony of both
experts was excluded. Smith himself testified that he had not read
Sweeter Than Life and furthermore had no reason to believe that
the book was objectionable. His clerk testified that Smith had
cautioned him against allowing anyone under the age of twenty-
one to handle any magazine or book in the store. Holding that
knowledge and intent were not ingredients of the offense, the
trial court found Smith guilty and sentenced him to thirty days
in jail. Affirming this judgment, the Appellate Department of the
Superior Court ruled: (1) that scienter was not required by the
ordinance; (2) that the exclusion of expert testimony was proper
under the circumstances.1 4 These were two among several issues
Smith would raise on appeal to the United States Supreme Court.
The Court unanimously reversed the California judgment, but 14 7
the majority considered only one issue, namely, lack of scienter.
By dispensing with any requirement of knowledge, the ordinance
on its face had violated the freedom of expression guaranteed by
the Constitution. 48 Some degree of scienter would be required,
144. Los ANCELES, CALIF., MUNICIPAL CODE § 41.01.1.
145. The book in question was Sweeter Than Life, written by one Mark Tryon,
published by Vixen Press.
146. People v. Smith, 161 Cal. App. 2d 860, 327 P.2d 636 (1958).
147. Smith v. California, 361 U.S. 147 (1959).
148. Said Justice Brennan, writing for the majority: "By dispensing with any
requirement of knowledge of the contents of the book on the part of the seller,
the ordinance tends to impose a severe limitation on the public's access to constitu-
tionally-protected matter. For if the bookseller is criminally liable without knowledge
of the contents . . . he will tend to restrict the books which he sells to those he
has inspected. Id. at 153. Chief Justice Warren, Justices Clark, Whittaker
and Stewart joined in the majority opinion.
but the Court did not indicate the requisite mental element or
determine whether Smith himself possessed sufficient knowledge
in this instance. Once again it produced an abstract ruling
divorced from the color of actual fact. 49 Questions as to the degree
of knowledge required and the quantum of evidence required to
prove awareness of content would be resolved in the future. These
elements and requirements, although troublesome, have not raised
insuperable obstacles. 150
149. Justice Frankfurter, in a separate concurring opinion, criticized the majority
for failing to give some indication of the scope and quality of scienter required. He
appreciated the advantages derived from the scienter requirement, but wanted the
Court to make it known that the decision was not intended to nullify the conceded
power of the states to prohibit booksellers from trafficking in obscenity. He also
considered the exclusion of expert witness testimony ground for reversal, feeling
strongly that the admissibility of expert opinion of contemporary community
standards was a constitutional requirement of due process. Expert opinion would
be restricted to community and literary standards, thus refraining from a discussion
of obscenity with respect to the material itself, which would trench upon the
ultimate issue in question. Id. at 162. Justices Black and Douglas concurred in
separate opinions, insisting as usual that obscenity should not be denied consti-
tutional protection. Id. at 156, 167-69. Justice Douglas, slightly less doctrinaire than
Justice Black, stuck to his position in Roth, that even obscenity must be protected
unless it has an impact on action that government can control. Justice Black would
not countenance censorship under any circumstances. Mr. Justice Harlan voted for
reversal and remand on the ground that all evidence relative to contemporary
community standards had been rejected. The other justices had voted for simple
reversal.
150. Where scienter has not been included as an express element within the
statutory definition of an offense, it has been held that the statute should be
interpreted as requiring such. State v. Andrews, 150 Conn. 92, 186 A.2d 546 (1963);
Demetropolos v. Commonwealth, 342 Mass. 658, 175 N.E.2d 259 (1961); State v.
Oman, 261 Minm. 10, 110 N.W.2d 514 (1961); People v. Finkelstein, 214 N.Y.S.2d
363, 9 N.Y.2d 342, 174 N.E.2d 470 (1961). Scienter is not made an express element
in a recently amended Kansas statute, § 21-1102 (Supp. 1961). A Missouri statute,
similarly constructed, was upheld in Search Warrant v. Marcus, 334 S.W.2d 119 (1960),
rev'd on other grounds, sub nom. Marcus v. Search Warrant, 367 U.S. 717 (1961).
See Note, 10 KAN. L. Rmv. 453 (1962).
Expert and comparison testimony has been accepted and rejected by the courts.
In People v. Finkelstein, 229 N.Y.S.2d 367, 11 N.Y.2d 300, 183 N.E.2d 611, cert. denied,
371 U.S. 863 (1962), defendant booksellers had been arrested for selling two
allegedly obscene books, Queen Bee and Garden of Evil. At trial, counsel offered
in evidence certain other publications on sale in New York bookstores to indicate
the current standard of community reading. Excluded, counsel appealed and the
ruling was affirmed. The court of appeals held the evidence correctly excluded as
irrelevant since the presence of other publications in bookstores would not indicate
that they were sold or read, or that they would not be considered equally obscene
by an average person applying contemporary community standards. Granted, some
evidence bears such a tangential relationship to the issues that it lacks probative
value for any purpose except to confuse, and on this basis, courts have excluded
comparison evidence in the form of books which neither have been acquitted of
obscenity nor are so widely accepted by the community as to be clearly not obscene.
Commonwealth v. Donaducy, 167 Pa. Super. 611, 76 A.2d 440 (1950), cert. denied,
341 U.S. 949 (1951).
In Yudkin v. State, 229 Md. 223, 182 A.2d 798 (1962), defendant was arrested
for selling Henry Miller's Tropic of Cancer in violation of the Maryland Obscenity
Statute. MD. ConE ANN., art. 27, § 418 (1957). At trial in circuit court the judge
periitted the jury to read copies of the book but only allowed defendant to sub-
mit one favorable book review and defendant's own testimony, refusing testimony
When the Postmaster General moved against the unexpurgated

edition of D. H. Lawrence's Lady Chatterley's Lover, the attend-
ant publicity created an unprecedented demand for the book and
one of Lawrence's least impressive works became a best seller.
The arrest and conviction of Samuel Roth scarcely rated a head-
line, but Grove Press achieved instant notoriety. In Grove Press
v. Christenberry,'5' the Postmaster General contended that his
finding that Lady Chatterley was obscene had to be sustained if
supported by substantial evidence. The federal district court and
the court of appeals ruled otherwise, and after independent review,
found the novel not obscene on the basis of the Roth standards. 52
Reviewing the book as a whole, Judge Clark was of the opinion
that Lawrence could have omitted some of the objectionable pas-
sages; nevertheless he understood that these passages might serve
as highly useful elements in developing the author's purpose,
15 3
which purpose was not prurient.
Manual Enterprises
Herman L. Womack was a professional peddler of "way-out"
materials. On the executive side, he was president of three cor-
porations which published magazines entitled MANual, Trim,
and Grecian Guild Pictorial.Slanted toward homosexual consump-
tion and cravings, the magazines in question consisted largely of
photographs of nude or nearly-nude male models, handled in such
a manner as to focus attention on their genitals or buttocks or to
emphasize these parts.
of expert witnesses and exhibits of other books on sale in the area. Reversing, the
court of appeals held admissible all relevant evidence concerning contemporary
community standards and prurient interest, as well as interests bearing on literary
merit. Evidence would be admissible subject to one limitation, that the witnesses
qualify as experts. Cf. Womack v. United States, 294 F.2d 204 (D.C. Cir. 1961), cert.
denied, 365 U.S. 859 (1962) (comparison evidence rejected as having no probative
value); In re Harris, 56 Cal. 2d 879, 366 P.2d 305 (1961) (printed matter adjudicated
not obscene, admitted). Note 12 CATHOLIC U.L. REV. 53 (1963); Note, 76 HARv. L.
REV. 1498 (1963). The American Law Institute's Model Penal Code § 251.4(4) (Pro-
posed Official Draft, May 4, 1962), provides that expert testimony relating to factors
entering into the determination of the issue of obscenity shall be admissible.
151. 175 F. Supp. 488 (S.D.N.Y. 1959), afid, 276 F.2d 433 (2d Cir. 1960).
152. Judge Clark ruled that the court could review an administrative determina-
tion of obscenity both as to the law and to the facts because the question in this
case was one purely of law. "And courts, not post offices, are the proper places for
a determination of what is and what is not protected by the Constitution." 276 F.2d
433, 436. Cf. Alexander v. United States, 271 F.2d 140 (8th Cir. 1959); Big Table,
Inc. v. Schroeder, 186 F. Supp. 254 (N.D. Il. 1960).
153. "Obviously a writer can employ various means to achieve the effect he has
in mind, and so probably Lawrence could have omitted some of the passages found
smutty' by the Postmaster General and yet have produced an effective work of
literature. But clearly it would not have been the work he planned, because for
what he had in mind his selection was most effective, as the agitation and success
of the book over the years has pro%en." Id. at 438.
On March 25, 1960, six parcels containing 405 copies of these

magazines, destined from Alexandria, Virginia, to Chicago, were
detained by the Alexandria postmaster pending a ruling by his
superiors as to whether the magazines were "nonmailable." One
month and three days later, the Judicial Officer of the Post Office
Department, following an evidentiary hearing, ruled that the
magazines were obscene and "nonmailable. ' ' 15 4
This ruling was
sustained by the federal district court and court of appeals.',55
In the United States Supreme Court, Mr. Justice Harlan,
writing the "majority"'-5 6 opinion, found the magazines, on the
basis of independent examination, dismally unpleasant, uncouth,
and tawdry, but also found that they were not obscene.15 7 He
rationalized that Roth did not establish a single test 1 58 for deter-
mining whether challenged material is obscene and that there-
fore the court of appeals was mistaken in considering that Roth
made "prurient interest appeal" the sole test of obscenity. 5 9
According to Justice Harlan's thesis, one would have to find that
these magazines were so offensive on their face as to affront current
community standards of decency, a quality referred to as patent
offensiveness or indecency. "Lacking that quality," he wrote, "the
magazines cannot be deemed legally 'obscene,' and we need not-
consider the question of the proper 'audience' by which their
'prurient' interest appeal should be judged."' 60 Obscenity under
the federal statute would thus require proof of two distinct ele-
154. The administrative findings were as follows: (1) the -magazines were not
physical culture or body building magazines but composed primarily if not ex-
clusively for homosexuals; (2) they would appeal to the prurient interest of homo-
sexuals but would be of no interest to normal individuals; (3) the magazines were
read by homosexuals and possibly by a few adolescent males, but the ordinary
male adult would not purchase them.
155. The publishers brought suit for injunctive relief against the Postmaster
General. The United States District Court denied relief and the appellate court
affirmed. Manual Enterprises, Inc. v. Day, 289 F.2d 455 (D.C. Cir. 1961). In the
court of appeals, the tribunal interpreted "average person" to mean the "average
recipient," rejecting the publisher's contention that the average person was not a
homosexual. Reasoning thusly, the court experienced little difficulty fitting the
facts into the Roth standard relevant to prurient interest appeal.
156. Only Justice Stewart concurred. In United States v. Heinecke, 209 F. Supp.
526 (D.D.C. 1962), Judge Holtzoff suggests that Justice Harlan's opinion was not
a majority opinion, but rather a minority view of two members of the Court.
Heinecke had been indicted with Womack for dealing in materials in main com-
posed of photographs of stark nude males. Womack pleaded guilty and Heinecke
was declared guilty at trial upon evidence duly presented.
157. Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962).
158. "Whether to the average person, applying contemporary community stand-
ards, the dominant theme of the material taken as a whole appeals to prurient
interest." Roth v. United States, 354 U.S. at 489.
159. 289 F.2d 455 (D.C. Cir. 1961). Also see a discussion of the court of appeals
decision supra note 155.
160. 370 U.S. at 482.
196,4] OBSCENITY .4ND CONSTITUTIONAL FREEDOM
ments: (1) patent offensiveness; and (2) prurient interest appeal.81

With regard to standards for judging the element of indecency,
Roth gave little guidance. What would be required-hard-core
pornography or something less? Justice Harlan likewise made no
commitments. At least in Manual, he perceived no necessity for
going further than to hold that the magazines in question, taken
as a whole, could not under any permissible constitutional stand-
ard be deemed to go beyond the pale of contemporary notions of
rudimentary decency.11 2 His own independent examination un-
3
covered no obscenity.f'
The "majority" opinion touched upon a second issue: whether
the magazines were unmailable because certain advertising con-
tained within gave information as to where obscene matter could
be obtained. Some of the advertisements in question not only
supplied the names of male models who had posed for photo-
graphs, but also promised to reveal more in the nature of unre-
touched photographs. Ostensibly the purpose of the advertising
was to widen the circle of thrills and to stimulate a little more
prurient thinking in the homosexual community. Justice Harlan
avoided direct solution of the advertising issue on the ground that
there .was no evidence that the publisher knew that at least some
161. Id. at 486. It is interesting to observe that Justice Harlan made definite
reference only to the federal statute. He had noted that "the words of § 1461,
'obscene, lewd, lascivious, indecent, filthy, or vile,' connote something that is
portrayed in a manner so offensive as to make it unacceptable under current com-
munity mores." Id. at 482. He found support for this requirement in the wording
of the American Law Institute's Model Penal Code § 251.4(1), (Proposed Official
Draft May 4, 1962), which states: "Material is obscene if, considered as a whole, its
predominant appeal is to prurient interest . .. and if in addition it goes substan-
tially beyond customary limits of candor in describing or representing such
matters."
Stressing the importance of -patent offensiveness," Justice Harlan noted that
even among acknowledged masterpieces, one might find dominant themes appeal-
ing to the prurient interest. He commented: "To consider that the 'obscenity'
exception in 'the area of constitutionally protected speech or press,' Roth at 485,
does not require any determination of the patent offensiveness vel non of the
material itself might well put the American public in jeopardy of being denied
access to many worthwhile works in literature, science or art." Id. at 487.
162. In determining what is or what is not offensive, Justice Harlan did state
with emphasis that a national standard was in order. He referred to a 1958
amendment to 18 U.S.C. § 1461, authorizing criminal prosecution at place of de-
livery of objectionable material. This relaxation of venue requirements, he con-
sidered, evidenced no purpose to make the standard less than national. 370 U.S.
at 488.
163. The dispositive question-whether these magazines were patently offensive
-was decided on the basis of an independent examination of the material. As
Judge Clark had ruled in Groz e Press v. Christenberiy, 276 F.2d 433 (2d Cir. 1960),
Justice Harlan now saw no need to remand the case for initial consideration by
the Post Office Department or the lower courts. "That issue, involving factual
matters entangled in a constitutional claim, is ultimately one for this Court. The
relevant materials being before us, we determine the issues for ourselves." 370 U.S.
at 488.
of his advertisers were offering to sell obscene material. To predi-

cate nonmailability one would have to prove that the publisher
knew that the character of materials offered by his advertisers was
offensive. Observing that scienter would be required as an essential
element in a criminal prosecution, the opinion held firmly to the
belief that it should not be omitted in an altogether parallel civil
64
proceeding.
Justice Brennan, submitting a separate concurring opinion,
agreed to reversal of the decision by the court of appeals, but for
a substantially different reason. 165 The government had contended
that section 1461 had by inference conferred power upon the
postal authorities to exclude matters from the mails upon their
own determination of its obscene character. Tracing the origin of
the section, Justice Brennan disagreed. "Even granting," he as-
serted, "that these words on their face permit a construction allow-
ing the Post Office the power it asserts, their use in a criminal
statute, their legislative history, and the contrast with the words
and history of their provisions dealing with similar problems raise
the most serious doubt that so important and sensitive a power
was granted by so perfunctory a provision ,166
'....
Although Roth had sustained the criminal sanctions of section

1461, Justice Brennan emphasized that the government was not
free to adopt whatever procedures it pleases for dealing with
obscenity without regard to the possible consequences for constitu-
tionally protected free speech. 67 Congress could, he assumed,
constitutionally authorize a noncriminal process in the nature
of a judicial proceeding under closely defined safeguards; yet he
expressed grave doubt that Congress may sanction any procedure
short of a full judicial process.?68
164. Id. at 491-95. Womack was informed by the Post Office Department that sev-
eral of his advertisers were being prosecuted, but there was no evidence that any of
the advertising copy or material was shown to him. Inasmuch as advertising accounts
for a substantial share of the income derived from this type of publishing venture,
it would appear reasonable to assume that Womack, who had an eye for profit,
would also have had some visual perception of the advertising he accepted in the
process. Assertions to the contrary seem to compel an inference that Womack did
not know what was going on profit-wise, and this inference is as startling as it is
unconvincing.
165. Chief Justice Warren and Justice Douglas joined in the concurring opinion.
Mr. Justice Black concurred in the "majority" result, but did not write a separate
opinion. Justices Frankfurter and White took no part in the case.
166. 370 U.S. at 500.
167. Id. at 518, citing Marcus v. Search Warrant, 367 U.S. 717, 731 (1961).
168. Justice Brennan, in sum, reiterated the sentiments of Mr. Justice Douglas,
who in Hannegan v. Esquire, 327 U.S. 146 (1946), made clear the fact that the
Postmaster General was not clothed with summary powers to supervise the taste
of the reading public. Esquire was not attacked as an obscene publication, but the
Mr. Justice Clark, dissenting, observed that the "majority" had

actually split into three parts and cryptically noted that the instant
holding in Manual required the United States Post Office to be
the world's largest disseminator of smut as well as the Grand In-
former of the names and places where obscene material may be
obtained. He voted to affirm the court of appeals on the sole
ground that the magazines contained information as to where ob-
scene material could be obtained. He did not, therefore, consider
the question as to whether the magazines were themselves obscene.
In constructing a reply to Mr. Justice Brennan, he too traced
the history of section 1461, recognizing that the sponsors of the
original law (section 16 of the Act of March 3, 1865, 13 Stat. 507)
advised the Senate that the law had a two-fold effect. The first
part provided that if obscene publications should be put in the
mails, the postmaster could take them out. The second part pro-
vided a penalty for those who put the publications in the mails.
Justice Clark concluded, therefore, that the bill as finally passed
clearly allowed the postmaster to refuse matters which were known
by him to be obscene so long as seals were not broken. The postal
regulation of 1873, he claimed, reflected the power to exclude
obscene matters from the mails.
With reference to Justice Harlan's insistence upon a scienter
requirement, Justice Clark noted that section 1461 was explicit
in demanding that no information be conveyed in the mails if it
in fact tells how obscene' material can be obtained. If Congress
desired to inject a scienter requirement, he continued, it well
knew the words to use, as is evidenced by that part of section 1461
relevant to criminal sanctions making knowledge a condition
precedent to a determination of guilt. Reasoning thus he could
not fathom why the sender's knowledge should determine mail-
ability, nor did he see any reason why Congress in a civil action
should have wanted it any other way.'0 9
Post Office Department had denied second-class mailing privileges because Post-
master General Hannegan was of the opinion that the magazine failed to con-
tribute to the public good and to the public welfare. Justice Douglas, speaking for
a unanimous Court could not perceive that the postal act of 1879, 20 Stat. 358
(1855), 63 Stat. 1067 (1951), 39 U.S.C. § 221 (1879), vested the defendant with
censorial powers, for any requirement that literature or art need conform to a
norm published by a postal official would give credence to an ideology foreign to
our system. Thus Congress had granted the department no power to prescribe stand-
ards for the literature or art which a mailable article disseminates.
169. "To condition nonmailability on proof that the sender actually saw the
material being sold by his advertisers is to portray the Congress as the 'mother'
in the jingle, 'Mother, may I go out to swim? Yes, my darling daughter. Hang
your clothes on a hickory limb and don't go near the water.' " 370 U.S. at 529.
324 -SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 8:279
Refining the Standard

For the purpose of combatting juvenile delinquency, the State
of Rhode Island established a Commission to Encourage Morality
in Youth. 7 0 In practice, the Commission 'sent distributors and
local bookdealers lists of publications deemed objectionable for
sale to youths under eighteen, and the recipients of these lists
were notified that similar lists had also been sent to the police.
It could readily be inferred, by distributor and bookdealer alike,
that cooperation would eliminate the necessity of the Commis-
sion's recommending prosecution.
Max Silverstein & Sons, exclusive Rhode Island distributor for
several publishers, 171 having received one of the Commission's
lists, refused new orders for questioned publications and declined
to fill all orders pending. The publishers thereupon filed an action
in state court seeking a declaratory judgment and injunctive relief
on grounds (1) that the legislative resolution creating the Com-
mission was unconstitutional, and (2) that said resolution had
been unconstitutionally applied. The trial court found the reso-
lution constitutional but held the acts of the Commission un-
constitutional as a prior restraint upon publication. Reversing
in part, the Supreme Court of Rhode Island held that neither the
resolution creating the Commission nor the Commission's prac-
tice of threatening recommendation of prosecution, was unconsti-
172
tutional.
The United States Supreme Court, while upholding the con-
stitutionality of the legislative' resolution, held that the Commis-
sion's procedures abridged first amendment liberties protected
by the fourteenth.178 Justice Brennan, expressing the views of
seven members of the Court, could not abide the threat of invok-
ing legal sanctions and other subtle means of coercion, persuasion,
and intimidation.174 By such action the Commission had deli-
170. Oklahoma, Massachusetts, and Georgia have also passed legislation creating
state commissions with some authority to recommend prosecution of materials
found to be obscene. The Oklahoma commission has not been activated. The
Massachusetts Obscene Literature Control Commission derived its authority from
an act directing it to recommend to the attorney general that appropriate action
be taken whenever it appeared that a violation of obscenity laws had occurred.
Created in 1953, the Georgia State Literature Commission at first had power di-
rectly to prohibit the distribution of any literature found to be obscene. In 1958
the law was amended to leave final determination of obscenity within the jurisdic-
tion of the courts. The Rhode Island commission was created in 1956.
171. Bantam, Dell, Pocket Books, and New American Library.
172. Bantam Books, Inc. v. Sullivan, 176 A.2d 393 (R.I. 1961).
173. Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).
174. Threats of prosecution or of license revocation, listings, notification and
the like on the part of chiefs of police or prosecutors have been enjoined in a
berately set out to achieve the suppression of objectionable pub-

lications even though it had no power to apply formal sanctions.
This was, in essence, a system of prior administrative restraint
since the Commission was not a judicial body and its decisions
to list particular publications as objectionable did not follow
judicial determination that such publications may be banned.
Such a system, asserted Justice Brennan, "comes to this Court
bearing a heavy presumption against its constitutional validity."' 7 5
He observed, however, that a prior-restraint procedure would be
tolerated where it operated under judicial supervision and assured
an almost immediate determination of the validity of the re-
straint. 17 6
number of cases. H.M.H. Publishing Co. v. Garrett, 151 F. Supp. 903 (D.C.N.D.
Ind. 1957); Bantam Books, Inc. v. Melko, 25 N.J. Super. 292, 96 A.2d 47 (Chancery
1953), modified on other grounds, 14 N.J. 524, 103 A.2d 256 (1954); Bunis v. Con-
way, 17 App. Div. 2d 207, 234 N.Y.S.2d 435 (1962) (dictum); Kingsley Int'l. Pictures
Corp. v. Blanc, 396 Pa. 448, 153 A.2d 243 (1959).
175. 372 U.S. at 70.
176. He cited Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957) in which the
Court had held that limited prior restraint could be utilized to attack the problem
of obscenity. For information relative to the New York statute upheld in Kingsley
Books, see text supra accompanying notes 78-81. In contrast see Marcus v. Search
Warrant, 367 U.S. 717 (1961) where the Court unanimously held invalid a Missouri
statutory procedure which provided for an issuance of a warrant to seize literature
solely on an officer's allegation of its obscenity and without prior judicial deter-
mination of the issue. In that case, search warrants were issued by the circuit court
of Jackson County, Missouri, purporting to authorize the search for and seizure of
obscene magazines to be found on the premises of a Kansas City news distributor.
The warrants, general in nature, simply ordered the executing officers to search
within ten days after issuance and to seize obscene materials. Police officers there-
upon seized in a one-day foray 11,000 copies of 280 publications found at the
defendant's business outlets. The officers veritably seized all materials which, in
their opinion, were obscene. The statute did, however, provide that the judge or
magistrate issuing a warrant must fix a date not less than five nor more than
twenty days after the seizure, for a hearing to determine whether the seized material
was obscene. No time limit was imposed within which a decision had to be ren-
dered. The Court stated firmly that Missouri's procedures as applied in this case
lacked the safeguards which due process demands to assure non-obscene material
the constitutional protection to which it is entitled. The opinion naturally hit at
the broad discretion given to the executing officers, who, without guide to the ex-
ercise of informed discretion, were assigned the impossible task of separating the
obscene from the constitutionally protected. Since a fourteenth amendment viola-
tion infected the proceedings, the judgment below (upholding the procedures)
was reversed and the cause remanded for further proceedings not inconsistent with
the Court's opinion. 367 U.S. at 738.
Compare a decision by the Supreme Court of Kansas, State v. A Quantity of
Copies of Books, 191 Kan. 13, 379 P.2d 254 (1963), appeal pending United States
Supreme Court. This action was initiated on information by William M. Ferguson
as attorney general for Kansas. Carefully framing the procedure to be consistent
with the opinion of the United States Supreme Court in Marcus, the verified in-
formation, together with copies of seven different titles of allegedly objectionable
books, was furnished to a district judge at his home. Approximately three hours
later the district judge held a short ex parte proceeding at which time he ordered
a warrant issued commanding the searching for and seizure of specific books listed
by title in the caption of the warrant. The sheriff, in executing the warrant, seized
only books so listed. The warrant also contained a notice of hearing to determine
Concurring, Mr. Justice Clark recognized that the majority had

dropped a demolition bomb on the Commission's procedure with-
out clearly indicating what might be salvaged from the wreck-
age. 177 As he understood the Rhode Island situation, the Com-
mission would still be free to publicize its findings, to solicit the
support of the public in preventing obscene publications from
reaching juveniles, to furnish its findings to publishers, distrib-
utors, retailers and law enforcement officers, and to seek the aid
of such officials in prosecuting offenders. Actual issuance of orders
would be delegated to enforcement officials, and criminal regula-
tory matters would properly rest within the domain of the prose-
cutor.
Mr. Justice Harlan, dissenting, did not believe that the Court
should interfere with state legislative judgments except upon the
clearest showing of unconstitutionality. 178 In answer to the allega-
tion that the state procedures lacked adequate -safeguards against
the suppression of the non-obscene, he noted that the Commission's
pronouncements in any given case were not self executing. Thus
any affected distributor or publisher or dealer could test the Com-
mission's action by means of a declaratory judgment or a suit for
injunctive relief, or simply by refusing to accept the Commission's
opinion and awaiting criminal prosecution in respect to the ques-
tioned work.17 9
Tropic of Cancer, a semi-autobiographical novel, written in
semi-prurient style and of semi-literary content, has consumed
whether the books seized were obscene and hearing was set for the following week.
In a memorandum decision the trial court found all of said books obscene and
ordered their destruction. Affirming, the Kansas Supreme Court held that the
seized books were in fact obscene, and while not stating so explicitly, by implica-
tion confirmed the constitutionality of Kansas procedures. The case is discussed in
broader context, infra pp. 330-32.
United States v. Peisner, 311 F.2d 94 (4th Cir. 1962) presents a related problem.
Defendants were transporting allegedly obscene books by automobile from Mary-
land to New York. Successfully eluding the F.B.I., they were stopped by the New
Jersey state patrol and were arrested after the arresting officer had read several
passages from a book resting on the back seat. The court of appeals in the instant
decision ruled that the arresting officer did not have reasonable cause to search or
to seize the materials in question. The arresting officer should have been acquainted
with the constitutional standards and have read substantially all of a given publica-
tion prior to making search and seizure. This decision perforce requires that the
arresting officer be both literary critic and constitutional scholar.
177. 372 U.S. at 74.
178. Id. at 76.
179. Although a courageous bookdealer might allow threats to ripen into actual
prosecution, undoubtedly most threats would have a desired effect upon unre-
sistant dealers and prosecution would rarely occur. The problem of standing to
sue would make declaratory judgment and injunctive procedures doubtful remedies
and many bookdealers would lack motivation to act.
if not wasted, an unfair share of judicial effort and attention.18 0

Zeitlin v. Arnebergh,'18 a recent decision by the Supreme Court
of California, mirrors the current legal conflict. A bookseller and
prospective purchaser filed an action against the Los Angeles City
Attorney in which they requested a declaratory judgment that the
novel Tropic of Cancer was not matter defined as obscene by
section 33 of the California Penal Code. In a memorandum
opinion, the trial judge sustained a demurrer to the complaint
because, having read the book, he determined it to be obscene and
because the plaintiffs had failed to state a cause of action. Revers-
ing, the State Supreme Court ruled: (1) that declaratory relief was
appropriate; (2) that the state obscenity statute exorcised only
hard-core pornography; and (3)that the book did not constitute
hard-core pornography.' 2 Arriving at this decision on the basis
180. Henry Miller's Tropic of Cancer and Tropic of Capricorn, composed in
the mid and late thirties, chronicle the author's experiences in Paris and New
York City. Written in a style suggestive of a phlegmatic, sometimes bromidic
stream of consciousness, both volumes express the writer's thoughts in their most
rimitive aspects, often crude and overtly blunt and consistently addicted to a
our-letter word vocabulary.
181. 59 Cal. 2d 901, 31 Cal. Rptr. 800, 383 P.2d 152 (1963). On December 16,
1963, petition for writ of certiorari was denied by the United States Supreme
Court, Arnebergh v. Zeitlin, 375 U.S. 957 (1963). The denial undoubtedly derived
from an intention of the Court to await decision in another California contest in-
volving criminal prosecution and a jury verdict of obscenity. In People v. Smith,
one Bradley Reed Smith was charged with a misdemeanor violation of California
Penal Code, § 311.2 in that he knowingly exhibited and distributed obscene ma-
terial, to wit, Tropic of Cancer by Henry Miller. Following a plea of not guilty
and a trial that endured for twenty-seven days,' the jury rendered a verdict of
guilty. The appellate department of the Superior Court of California affirmed on
October 24, 1962. On April 29, 1963, the United States Supreme Court granted
certiorari in Smith v. California and the case was placed on summary calendar.
373 U.S. 901 (1963). On December 16, 1963, the Supreme Court in a per curiam
opinion, vacated the judgment in Smith and remanded the case to the appellate
department of the Superior Court of California, County of Los Angeles, for further
consideration in light of the decision by the Supreme Court of California in
Zeitlin v. Arnebergh, cited supra.
182. In arriving at its descriptive definition of obscenity, the court called special
attention to a decision by Judge Fuld of the New York Court of Appeals in People
v. Richmond County News, Inc., 9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 68
(1961). Defendant, wholesaler of some 700 odd items, was prosecuted under New
York Penal Code, § 1141, for the sale and distribution of a magazine entitled Gent,
Convicted in the Court of Special Sessions, the defendant appealed. The Supreme
Court Appellate Division found: il)that the magazine was obscene, but reversed
because (2) proof failed to establish that the defendant had knowledge of the
magazine's obscene character. 11 App. Div. 2d 799, 205 N.Y.S.2d 94 (1960). On the
state's appeal, the Court of Appeals reversed, but for a different reason-that the
magazine Gent was not obscene.
In the opinion of the court. the Roth formula merely indicated the broad
boundaries of any permissible definition of obscenity. It did not pretend to give
specific content to the meaning of the term "obscene" as it appeared in the New
York statute. Commented Judge Fuld: -Mindful of the constitutional necessity to
open the door barring state intrusion into this area 'only the slightest crack neces-
sary,' and desirous of erecting a standard which embodies the most universal moral
sensibilities and may be applied objectively. we are of the opinion that the pro-
of its own independent examination of the text,'13 the court

stressed the fact that the published work was not utterly without
184
redeeming social importance.
What California has accepted, New York has rejected. In
People v. Fritch,'8 5 the Court of Appeals of New York concluded
hibition of § 1141 of the Penal Law should apply only to what may properly be
termed 'hard core pornography' . . . . 9 N.Y.2d at 586, 216 N.Y.S.2d at 375, 175
N.E.2d at 76. Chief Judge Desmond in a separate concurring opinion observed:
"Law in a pluralistic society does not regulate literary standards or give expression
to lofty virtues . . . 'Human law cannot prohibit everything which the Natural
Law prohibits' (St. Thomas Aquinas, seven hundred years ago in Summa Theo-
logica, I-II, q. 96, a. 2 & 3) but must take full measure of human nature and cur-
rent traditions." 9 N.Y.2d at 590, 216 N.Y.S.2d at 378-79, 175 N.E.2d at 80. Judge
Froessel dissented, joined by judges Burke and Foster. The dissenters found nothing
in the first amendment or in the language of Roth which dictated the strict con-
struction of § 1141 proposed by the majority. They saw no redeeming social worth
in Gent, nothing more than a distribution of smut-dirt for dirt's sake-by a
wholesaler who viewed selfish commercial exploitation as his sole purpose. Stressing
the "average person" standard, they warned that if only hard-core pornography
may be proscribed, purveyors of smut will, with almost free rein, be at liberty to
flood the news stands and candy stores with materials the "average person" would
condemn as obscene.
Lockhart & McClure, supra note 107, at 58-60 have concluded that the concept
of obscenity held by most members of the United States Supreme Court, is probably
hard-core pornography. In three out of four per curiam decisions announced in
the 1957 term, they feel that the Court must have made an independent examina-
tion of the materials and found that censorship violated constitutional require-
ments. Supra note 107, at 34. On the basis that no substantial issue, other than- the
first amendment freedoms, was involved, it could be validly assumed that the
Court must have been thinking abstractly of hard-core pornography when it de-
fined obscenity in Roth. It could thus be deduced that the Game of Love, Sun-
shine and Health, and One, The Homosexual Magazine escaped the-ban- of Roth
because they were not in fact hard-core subjects. On the other hand, all three per
curiam cases involved administrative prior-restraint proceedings rather than crim-
inal trials and both first amendment and due process issues were involved. There
is, then, cause for doubting the almost automatic assumption that the Court,
through its per curiam reversals, has adopted a "hard-core" standard. See text
accompanying notes 130-137 supra. Chief Judge Desmond, concurring in Richmond
County News seems to have accepted the per curiam reversals as authority for his
acceptance of the hard-core restriction.
183. Judge Tobriner, writing the majority opinion, agreed with Justice Harlan
who in Roth announced that the question whether a particular work is obscene
is not an issue of fact alone but a question of constitutional judgment and that a
reviewing court must make an independent examination. See text accompanying
notes 121-22 supra. The California opinion also noted that the American Law Insti-
tute has recognized that in the interests of conformity the question of obscenity
must be left to the independent judgment of appellate courts.
184. Culling out the intent of the California legislature, the court ventured an
opinion that the draftsmen recognized that a wider proscription (than hard-core
pornography) would trespass upon an area which was constitutionally protected.
The legislative addition in 1961 of the phrase "matter which is utterly without
redeeming social importance" to the California Penal Code § 311, was considered
of signal importance in terms of legislative intent to censor only the worst.
185. 13 N.Y.2d 119, 243 N.Y.S.2d 1 (1963). Defendants, after a trial by jury,
were convicted of selling Tropic of Cancer. From an adverse judgment of the Court
of Special Sessions of Syracuse, the defendants appealed. The County Court,
Onondaga County, 38 Misc. 2d 333, 236 N.Y.S.2d 706 (1963), reversed. The Court of
Appeals, Scileppi, J. writing for the majority, was without power to make final
disposition of the case as the issue of scienter remained for consideration and the
county court's reversal would indicate that it determined the jury finding on the
1964] OBSCENITY .4ND CO.VSTITUTIONAL FREEDOM
that Tropic of Cancer is obscene within the meaning of section

1141 of the penal law and is not within the area of constitutional
protection. This conclusion was reached upon consideration of
the "prurient interest" test of Roth, the "patently offensive" addi-
tion by Manual, and the "hard-core pornography" restriction of
Richmond County News.'8" Having read the book carefully, the
issue of-scienter was against the weight of the evidence. The order appealed from
was, therefore, reversed and a new trial ordered on the scienter issue.
186. Sober Massachusetts in a four-to-three decision has refused to attach the
hard-core label to Henry Miller. Attorney-General v. Book Named "Tropic of
Cancer," 345 Mass. 11, 184 N.E.2d 328 (1962). The Supreme Judicial Court placed
stress on opinion testimony--disclosing views competent critics have maintained
since 1934-verifying the fact that the book has literary merit despite its repulsive
features. As a serious work the author was entitled to constitutional protection, and
only hard-core pornography without redeeming social significance would be ob-
scene in the constitutional sense. Chief Judge Wilkins, dissenting, classified the
work as pornography, pitched at the nadir of scatology.
Similarly, the Supreme Court of Wisconsin has found, with respect to the Miller
novel, that where a work of apparent serious purpose is involved, the scale will not
readily be tipped toward a determination of obscenity. McCauley v. "Tropic of
Cancer," 20 Wis. 2d 134, 121 N.W.2d 545 (1963). Citing Roth and the per curiam
decisions of the 1957 term, the court was seemingly convinced that the United
States Supreme Court would confine obscenity censorship within very narrow
limits. Casting a positive vote for independent review, the opinion states: "That
a judgment of obscenity is not a fact issue of the ordinary type is obvious. Issues
of legal and constitutional interpretation dominate the process of determination."
121 N.W.2d at 552. Judge Hallows in an exceedingly colorful dissent could not
agree that Roth included only hard-core material in its definition of obscenity.
The difference between obscenity, pornography, and hard-core pornography he en-
visaged as "an extra-legal mythical distinction hyperbolized by disseminators of
obscene literature" to undermine the Roth definition. Rejecting the often-stated
view that writing ability softens the rude shock of obscenity, he pointed out that
obscenity is only increased and heightened by being couched in literary artistry.
Satisfied that the phrase "patently offensive" was but another distinction of
degree, not of nature, he observed that the less patent obscenity becomes, the
more insidious is the appeal to prurient interest. 121 N.W.2d at 557.
Grove Press has lately felt the scars of battle in Florida. In an injunction
proceeding under a Florida obscenity statute, a circuit court jury found Tropic of
Cancer obscene and the injunction was granted. The District Court of Appeal
affirmed, holding that the jury finding that the book, which narrated a succession
of sexual episodes and into which filth was packed, was obscene, was not contrary
to law. The appellate court ruled that it would not substitute its judgment on
these questions for that of the trier of fact absent compelling reason to do so
apparent in the record. Grove Press v. Florida, 156 So. 2d 537 (Fla. 1963).
The ever expanding list of cases relating to the merits and demerits of Tropic of
Cancer is impressive. To date, several jurisdictions have either approved or dis-
approved and, as the pattern goes, most juries reject it as obscene: California-
Zeitlin v. Arnebergh, 59 Cal. 2d 901, 31 Cal. Rptr. 800, 383 P.2d 152 (1963); People
v. Smith (Los Angeles County-book obscene); People v. Pershina (Marin County-
bookseller acquitted on failure to prove scienter but jury voted 11 to 1 that book
was obscene); People v. McGilvery (San Diego County-scienter was issue-no
record of jury sentiment re book,; Connecticut-State v. Huntington (Supreme
Court Hartford County-book obscene); Florida-Grove Press v. Florida, 156 So. 2d
537 (Fla. 1963); Illinois-Haiman v. Morris (No. 61s19718, Superior Ct. Cook
County-book not obscene); Indian.-State v. Cuffel (Cir. Ct. Marion County-
conviction on appeal to Supreme Court of Indiana); Maryland-Yudkin v. State,
229 Md. 223, 182 A.2d 798 (1962) dury rejected book as obscene but reversed on
other grounds); Levine v. Moreland (Cir. Ct. Montgomery County-rejected by
judge as obscene); Massachusetts-Attorney-General v. Book Named "Tropic of
SAINT LOUIS UNIVERSITY LAW JOURNAL [
[Vol. 8:279
court, exercising its own independent constitutional appraisal,

found overwhelming proof of its incompatability with current
community moral standards. Substantial literary merit alone,
without other redeeming features, would not compel a different
solution. To admit that a book is obscene, because as an alleged
work of art it does not appeal to the prurient interest of an intel-
lectual few, would permit substitution of the opinions of authors
and critics for those of the average person in the contemporary
community. Tropic of Cancer was hard-core pornography, dirt
for dirt's sake, and dirt for money's sake. Chief Judge Desmond,
concurring, asserted that if the book had not been written by a
recognized author, did not contain some good writing, and had not
been approved by well-known reviewers, no one would deny that
it was obscene by any conceivable definition, narrow or tolerant.
Something, he added, must remain of the ancient police power
18 7
of the states to ban filthy stuff.
Two decisions, both emanating from state supreme courts, are
presently on appeal to the United .States Supreme Court. 18 On
July 24, 1961, an injunction verified by William M. Ferguson,
Attorney General of the State of Kansas, was filed in the District
Court of Geary County, Kansas. The specific titles of fifty-nine
allegedly objectionable books were set forth in the caption to-
gether with a statement that each of the books had been published
Cancer," 345 Mass. 11, 184 N.E.2d 328 (1962); New York-People v. Fritch, 13 N.Y.2d
119, 243 N.Y.S.2d 1 (1963); Pennsylvania--Commonwealth v. Grove Press (Ct. Com-
mon Pleas, Philadelphia County-book obscene); Wisconsin-McCauley v. Tropic
of Cancer, 20 Wis. 2d 134, 121 N.W.2d 545 (1963).
187. Judges Dye and Fuld concurred in their dissent. They found the book not
without importance as tested by recognized critics and scholars, and considering
the test as a whole, they did not feel that it met the test of "hard-core" pornog-
raphy recently announced in People v. Richmond County News, 9 N.Y.2d 578, 216
N.Y.S.2d 369, 175 N.E.2d 68 (1961).
New York's neighboring state, New Jersey, has recently rejected the hard-core
restriction. State v. Hudson County News, 78 N.J. Super. 327, 188 A.2d 444 (1963). De-
fendant was convicted in trial court for possession and sale of obscene magazines
containing photographs of nude and almost-nude female models in provocative
poses and episodes of sexual perversion such as masochism, sadism, and voyeurism.
Defendant argued that the only workable definition for criminal obscenity was
"'hard-core" pornography, which the Superior Court, Appellate Division, did not
accept. The court admitted that the federal or state government may limit the
meaning of obscenity to such, but was secure in the belief that New Jersey was not
obliged to follow. Affirming, the Supreme Court of New Jersey has lately held that
iii the absence of any substantial concurrence as to the meaning of hard-core por-
nography, its adoption would not increase clarity. State v. Hudson County News,
32 U.S.L. AVEEK 2312 (Dec. 31, 1963).
188. State v. A Quantity of Copies of Books, 191 Kan. 13, 379 P.2d 254 (1963);
State v. Jacobellis, 173 Ohio St. 22, 179 N.E.2d 777 (1962). The Ohio case was ar-
gued before the United States Supreme Court on March 26, 1963 but has been
restored to the calendar for reargument. Miscellaneous Order No. 164, 373 U.S. 901
(1963). Procedural aspects of the Kansas case are discussed supra note 176.
lW4] OBSCENITY AND CONS TI TUTIONA L FREEDOM
as an original Night Stand Book.'8 The prayer of the information

requested that a warrant be issued directing that the books be
brought before the court and ultimately destroyed. Following a
short ex parte proceeding, the trial judge ordered the warrant
issued which contained a notice of hearing set for August 7.110
After a hearing on the merits, which included presentation of
expert testimony, the trial court found all books seized to be
obscene material and ordered their destruction."'"
On appeal, the appellants in main asserted: (1) that the books
were not legally obscene; (2) that the information, being verified
upon information and belief, did not justify the issuance of a
search warrant in that it did not give the magistrate reasonable
grounds upon which to issue a search warrant; (3) that the statute
was defective in failing to make provision for notice and hearing
prior to issuance of the warrant; (4) that the issuance of such war-
rant, together with an ex parte hearing was an unconstitutional
procedure in that it constituted an unconstitutional prior restraint
in contravention of the first and fourteenth amendments; and (5)
that the statute on its face and as construed and applied, by reason
of the absence of a provision for jury trial, was unconstitutional
and violative of the first and fourteenth amendments.
189. The authors have examined and read several of the books listed as objec-
tionable. They are unqualifiedly pornographic and just as obviously "thrown to-
gether" for a "quick sale." Lacking literary merit, they neither shock nor offend
because they are so blatant and blunt. Written in a dull and slimy style, they are
void of subtlety and spare nothing for the imagination. Among the books ex-
amined are: Born For Sin (story of a nymphomaniac who works her way from small-
town truck stops to big city and back peddling her body); Lesbian Love (following
seduction by female school teacher heroine tries heterosexual love but returns to
lesbianism); Lover (story of a nineteen-year old male whore who progresses from
Bowery to Fifth Avenue); Orgy Town (central character visits teenage vice dens
and takes part in orgies on the beach, in the bushes, and in the bedroom); Sex
Jungle (juvenile gangs in New York and sexual intercourse en masse); Sex Spy
(story of a female spy in a Latin American setting-lesbianism, sadism, and rape);
Trailer Trollop (theme includes abuse of prostitute by men which forces her to try
lesbianism, but virtue triumphs in the end and she returns to illicit heterosexual
activities.
190. Kansas General Statutes § 21-1102(c) (Supp. 1961) established the procedure
followed by the attorney-general. It provides for an in rem proceeding whereby
items may be seized upon proper warrant issued by a judge, and further provides
for a hearing to be had at a time not less than ten days after seizure. At such
hearing, the judge should determine whether the items seized are in violation
of the law as stated in subsections (a) and (b) of the statute, and if he so finds he
shall order the items destroyed by the sheriff. Subsection (a) provides that "anyone
who shall . . . publish, sell . . . or distribute any book, magazine, newspaper,
writing . . . containing obscene, immoral, lewd, or lascivious language . . . or . . .
prints, pictures . . . shall be guilty of a misdemeanor." Subsection (b), defining the
test to be applied in cases under subsection (a), states the Roth standard.
191. The sheriff seized and took into custody 1,715 volumes of 31 titles of
books each bearing the inscription "This is an Original Nightstand Book" described
in the caption of the warrant. At the hearing, the state introduced in evidence
exhibits 1 through 31, consisting of 31 separate titles of the indicted books.
.SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 8:279
The Supreme Court of Kansas, in a brief opinion by Judge

Jackson, considered the vital question to be whether the books
were in fact obscene. 19 2 Appraising the books as a whole, the court
found that they were simply attempts to carry pornography to
the "n'th" degree-trash in other words. Recognizing that this
was a civil case deriving from statutory authority, and that no
form of action at common law was available, the court ruled that
the defendant was not entitled to a trial by jury as a matter of
right. Having thus covered the issues as raised, the ruling of the
trial court was affirmed. 198
192. Judges Price and Robb dissented without opinion.
193. Whether any rational analysis of the first amendment can reveal a require-
ment of trial by jury is a question which remains unanswered. Granted, an action
in rein of this nature was not known to the common law. This was a summary
proceeding in the exercise of the police power of the state under a statute designed
to suppress the nuisance of keeping obscene material for sale or distribution. It
may be argued that a judicial officer is no less capable than a jury to determine
what is essentially a mixed question of law and fact. It would be interesting to
determine how the appellant in this case would have reacted to a verdict arrived
at by the citizens of Geary County, Kansas. On the other hand it can be asserted
with some authority that first amendment principles prohibit suppression by a
single person of any book or periodical. Justice Brennan in Kingsley Books, Inc. v.
Brown, 354 U.S. 436, 445-48 (1957) took issue with in rem procedures provided for
by a New York statute because of a failure to grant the defendant a trial by
jury. In his opinion, only a jury representing a cross-section of the community can
fairly reflect the view of the average person. The right to trial by jury was not
considered by the majority nor was it raised by the appellant in the New York
Court of Appeals. Mr. Justice Brennan introduced the issue.
While the Kansas provisions for seizure of allegedly obscene materials are far
less objectionable than the ad hoc provisions of the Missouri statute (see Marcus v.
Search Warrant, 367 U.S. 717 (1961)) they are not as explicit as the New York statute
approved in Kingsley Books v. Brown, supra. Section 22(a) of the New York Code
of Criminal Procedure provides that "the person, firm or corporation sought to be
enjoined shall be entitled to a trial of the issues within one day after joinder of
issues and a decision shall be rendered by the court within two days of the
conclusion of the trial." The Kansas counterpart provides that at hearing the
judge shall determine whether or not the items seized are violative of the provisions
of the law. Though not couched in terms of a decision, it may reasonably be
inferred that a determination shall evoke a decision without delay. Mr. Stanley
Fleishman, counsel for the appellant in the instant case, openly states that the
Kansas procedures are permeated with even more constitutional infirmities than
in Marcus. This is nonsense. Jurisdictional Statement, p. 30, A Quantity of Copies
of Books v. State of Kansas, 191 Kan. 13, 379 P.2d 254 (1963) (On appeal from the
Supreme Court of Kansas).
Mr. Fleishman also indicts the Kansas statute for its failure to provide for
an adversary proceeding on the issue of the unlawfulness prior to seizure. Juris-
dictional Statement, supra at 30. If this procedure were followed there would be no
need for a search warrant because there would, in most cases, be nothing left
to search or to seize. Search warrants traditionally are issued as a result of ex parte
proceedings, conducted as a rule in secrecy. Should the person to be searched be
advised in advance of the search and of its necessity for the public good, he would
very likely consider his own well being in advance and dispose of or ship out
suspect material to the least likely destination.
Advancing the argument that the Kansas statute attempts to impose prior restraint,
the appellants cite Near v. Minnesota, 283 U.S. 697 (1931), and claim that no
safeguards are apparent comparable to those found in the New York statute
approved in Kingsley Books. Quite obviously, Near v. Minnesota, supra, is not in
1964] OBSCENITY AND CONSTITUTIONAL FREEDOM 333
Defendant Jacobellis exhibited a film entitled Les Amants

("The Lovers") at the Heights Art Theatre located in Cleveland
Heights, Ohio. Charged in two counts with knowingly possessing
and exhibiting an obscene motion picture, 9 4 he was convicted
in the Court of Common Pleas, Cuyahoga County. The defendant
having waived trial by jury, both orally and in writing, the judg-
ment was rendered by a three judge court. The cause came be-
fore the Supreme Court of Ohio because the court of appeals, in
affirming the judgment below, found its judgment in conflict with
the ruling of another court of appeals.
Affirming, Judge Radcliff, writing the majority opinion, noted
that the court reached its decision with deliberate caution. He
considered it infelicitous for the judicial branch of the govern-
ment to seek out constitutional infirmities which enable courts
to thwart the actions of that segment of government closest to the
people.
Viewing the film, which ran for ninety minutes, the court lived
through "eighty-seven minutes of boredom induced by the vapid
drivel appearing on the screen and three minutes of complete
revulsion during the showing of an act of perverted obscenity." 195
Les Amants was, in the opinion of the court, worse than hard-core
pornography-it was filth for money's sake.
The court reasoned that the knowledge requirement indicated
that a holder of such matter should be aware of the contents of
the objectionable features, but also observed that dealers in hard-
core pornography and purveyors of obscenity can be presumed to
know what they are dispensing. In any event, the community
standards must be the test.
With regard to the statutory terms "in his possession" and
"under his control," the court was of the opinion that the legisla-
ture intended to penalize dissemination of obscenity for profit,
rather than mere private possession for personal gratification.
Thus it was not conceivable within the meaning of the statute
point, for the Court there considered the power to enjoin dissemination of future
issues. Ironically, Mr. Justice Frankfurter alluded to this glaring distinction in
the majority opinion in Kingsley Books. Writing of prior restraint, Professor
Paul Freund has said: "What is needed is a pragmatic assessment of its operation
in the particular circumstances. The generalization that prior restraint is particu-
larly obnoxious in civil liberties cases must yield to more particularistic analysis."
Freund, The Supreme Court and Civil Liberties, 4 VAND. L. REV. 533, 539 (1951).
Mr. Justice Frankfurter likewise referred to this quotation in his opinion aforemen-
tioned.
194. Ohio Revised Code § 2905.34 provides that: "No person shall knowingly ...
exhibit . . . or have in his possession or under his control an obscene, lewd, or
lascivious * . . motion picture film."
195. 173 Ohio St. at 28, 179 N.E.2d at 781.
that a violation would be committed the moment an individual

discovered that a book, picture, or film in his possession was por-
nographic. One could be guilty only when and if he formed the
purpose to use, exhibit, or sell it wrongfully-when he formed
the mens rea and acted accordingly.' 96
OBSCENITY: THE CONSTITUTIONAL ISSUE
Nobility of character has never been a prerequisite for standing
in constitutional litigation.19 7 Yet the uneasiness expressed re-
cently in an opinion by Justice Harlan is symptomatic of the
crucial nature of the speech issue before the Court in obscenity
cases. After having found that certain magazines portraying nude
and semi-nude male figures were not obscene, he added:
In conclusion, nothing in this opinion of course remotely implies
approval of the type of magazines published by these petitioners,
still less of the sordid motives which prompted their publication. 198
What the Court was in effect saying was that its judgment went
to the larger issues of society's interest in freedom, and that one
of the prices of this freedom was the toleration of such obnoxious
characters as Herman L. Womack, publisher of the magazines in
question. 99 It was very easy to speak in general terms of freedom
196. Judge Taft concurring in part, agreed that reasonable minds could deter-
mine beyond a reasonable doubt that Les Amants, to use the words of,the-statute,
was "obscene, lewd, or lascivious." He also agreed that the word "knowingly" in the
statute related not -merely to possession and control of the film but also to what
was in the film. Basically he concurred in the judgment as it related to the second
count of the indictment, namely, exhibition of the film. But he disagreed with the
judgment to the extent that it affirmed conviction of the defendant on the first
count charging him with knowingly possessing and having control of the film. In
his opinion, under the statute, anyone who looks at a motion picture that he has
lawfully acquired to determine whether he should exhibit it, and finds it to be
obscene, is forthwith at that instant guilty. "As a result," he comments, "some
whomight otherwise look at movie films that are not obscene to determine whether
they should exhibit these films may well be discouraged from doing so, and free
circulation and exhibition of movie films will be impeded." Id. at 30, 179 N.E.2d
at 782.
197. Free speech cases seem to have more than their share of unsavory types.
One could create a whole gallery of characters from such litigants as the editors
of The Saturday Press (Near v. Minnesota, 283 U.S. 697), Carl Kunz (Kunz v. New
York, 340 U.S. 290), Walter Chaplinsky (Chaplinshy v. New Hampshire, 315 U.S. 568),
Murray Winters (Winters v. New Yo'k, 333 U.S. 507) and others of kindred nature.
198. Manual Enterprises, Inc. v. Day, 370 U.S. 482, 495 (1962).
199. Herman L. Womack, as president of the three petitioning publications,
MANual, Grecian Guild Pictorial, and Trim, had been convicted in two prior
obscenity trials (Womack v. United States, 294 F.2d 204 (D.C. Cir. 1962); United
States v. Heinecke, 209 F. Supp. 526 (D.D.C. 1962), and though Justice Harlan
could discover no formal scienter in the present case as to the nature of the materials
advertised in his magazines, id. at 495. still he knew the type of person with whom
he was dealing. Justice Clark's dissent plays upon this background of Womack
in the pornography trade to conclude that the president-editor was fully aware
of what his magazines were advertising. Id. at 528.
of speech, but when it came to concrete cases, obscenity took a

20 0
good deal of stomach to promote and defend.
Yet the Court had gone on record in a series of decisions defend-
'2
ing what in the minds of many was nothing more than "filth. ,1
Implicit in these determinations, however, was a mature concern
for that freedom spoken of by Justice Brennan in Roth: "[Sex]
is one of the vital problems of human interest and public con-
cern . . . 'Freedom of discussion, if it would fulfill its historic
function in this nation, must embrace all issues about which
information is needed or appropriate to enable the members of
society to cope with the exigencies of their period.' "202 If by no
other standard than interest alone, sex would surely rate very high
among man's chief concerns. It was in order to protect this right
that the Supreme Court gave its ruling in Roth that obscenity,
the distorted treatment of sex, should have no protection under
the first and fourteenth amendments. But laws designed to protect
society against obscenity must not be extended to those materials
treating of sex in a legitimate way. The line between protected
and unprotected material was the speech issue in Roth, and it is
submitted that the issue has not been basically altered by that
decision.
In commenting on Roth and cases decided since, many have
implied that the larger issues of speech have been settled and that
the only question remaining is one of the determination of the
exact meaning of the standards laid down in that case. 20 3 But this
200. Most of the literati were satisfied to stop their campaign for freedom
of the press at the edge of artistic merit, but some libertarians felt that such dis-
crimination between good art and bad was irrelevant constitutionally. The American
Book Publishers Council was divided on this issue and settled for the following
compromise statement: "There is no place in our society for extra-legal efforts
to coerce the taste of others, to confine adults to the reading matter deemed suit-
able for adolescents, or to inhibit the efforts of writers to achieve artistic expres-
sion .... We deplore the catering to the immature, the retarded, or the maladjusted
taste. But those concerned with freedom have the responsibility of seeing to it that
each individual book or publication, whatever its content, price, or method of
distribution, is dealt with in accordance with due process of law." Freedom-to-Read
Bulletin, Fall, 1963, p. 3.
201. Apparently Catholics, at any rate, are growing used to the Supreme Court's
habit of reversing the censor's ban of such items as One, Sunshine and Health, Lady
Chatterley's Lover and the like. After the Manual decision to open the mails to
professedly homosexual -magazines, hardly a flurry was raised. As Judge Roger Kiley
observed, "The Court thinks we have created a fleshy atmosphere and that ab-
normals are entitled to live in it. If we have been content to look the other way
while our mores were slipping, we cannot restrain Mr. Womack from his progressive
enterprises. Kiley, Obscenity and the Supreme Court, The Critic, Oct.-Nov.,
1963, p. 48.
202. Roth v. United States, 354 U.S. 476, 487-88 (1957). (Emphasis in original.).
203. Lockhart & McClure, Censorship of Obscenity, 45 MINN. L. REV. 5 (1960).
The tone set in this article has become almost normative for other commentary in
the field of constitutional obscenity. One recent article (admittedly not a scholarly
SAINT LOUIS UNIVERSITY LAW JOURNAL (Vol. 8:279
is to avoid the context in which obscenity has constitutional rele-

vancy. As Justice Harlan pointed out, the determination of
whether any particular item is obscene or not is a "question of
20 4
constitutional judgment of the most sensitive and delicate kind."
Now this judgment is an assessment of a factual situation against
the background of one's understanding of the constitutional
guarantees of the first amendment. It is not at all clear that the
Court is expressing unanimity in their understanding of this
background as is evidenced by their disagreement over the ob-
scenity cases themselves. 20 5 It would seem an important function
of any investigation of obscenity as a free speech issue to focus
attention first on the larger picture in order to see the nature of
the unique issue raised by obscenity.
The purpose of this section will be twofold: (1) to put the
obscenity question in the context of larger free speech issues, and
(2) to analyze the Court's treatment of the specific cases to deter-
mine what approaches it has developed in treating obscenity as a
form of expression.
Freedom of Speech as a Relative Absolute and the Mystery of
Obscenity ..
The nature of the constitutional process in determining free
speech cases has never been a clear one,20 6 but when the speech
involved deals with the public expression of sex, the issue becomes
doubly clouded. This in extremis state of confusion prompted
Justice Black to remark (in one phase of his private war with
venture) quoted from these authors exclusively. Elias, Obscenity: The Law, a
Dissenting Voice, 51' Ky. L.J. 611 (1963). The Supreme Court has frequently
referred to the work of these two authors, as recently as Manual Enterprises v. Day,
370 U.S. at 489. Although an earlier article of theirs, Literature, The Law of
Obscenity and the Constitution, 38 MINN. L. REV. 295 (1954), treated the larger
question of free speech in the context of clear and present danger, their present
tendency is to concentrate on the standards set out in the Roth case. This tendency
has directed most efforts in the field solely to the problem of standards. For a
broader view of the matter, see Kalven, The Metaphysics of the Law of Obscenity,
1960 SuP. CT. REV. 1.It should be noted here that the authors of this article are
indebted to Professors Lockhart and McClure, as -must all who have researched
this area, for their detailed and comprehensive scholarship.
204. Roth v. United States, 354 U.S. at 498.
205. In five major obscenity cases, the Court has produced an amazing twenty-
two separate opinions: Roth (four); Kingsley Pictures (six); Smith (five); Manual
Enterprises (three); Bantam Books (four). The lines of division have tended to
follow the polarities of Justices Black and Douglas, on the one hand, and Justices
Frankfurter and Harlan, on the other. For a r6sum6 of the status of first amendment
approaches current on the Court, see KAUPER, CIVIL LIBERTIES AND THE CONSTITUTION
111 (1962).
206. For an excellent treatment in depth of the multiple factors which courts
must face and reconcile in any speech decision, see Richardson, Freedom of Expres-
sion and the Function of Courts, 65 HARV. L. REV. 1 (1951).
Justice Frankfurter): "This Court should not permit itself to

get into the very center of such policy controversies [i.e. deter-
mination of obscenity], which have so little in common with law
20 7
suits. But the very question which Justice Black finds so little
to his liking is the type of thing which the Court has obliged it-
self to in the interpretation of a constitution; for the policy deter-
mination within the document itself is no more than an indica-
tion of emphasis which invites-indeed demands-a specific 208
determination according to the principles of judicial process.
To expect the Constitution somehow to be self-interpreting is to
overlook its nature as a statement of general law.
The fact that the Court remained in relative silence about the
nature and meaning of the first amendment speech provisions
until the second decade of the twentieth century20 9 does not in-
dicate a period of prior agreement. The conflict between freedom
and order had never before been cast in terms of such broad sig-
nificance until government control of expression became a domi-
nant pattern of legislative choice. 210 It was at that time that Justice
Holmes attempted to answer the question of how far the protec-
tion of the first amendment ran in terms of his "clear and present
danger" test.21 1 In formulating this test, Holmes indicated that
any determination of the issue depended on the close scrutiny of
the speech in the circumstances of its utterance, 212 what more
207. Black, J. concurring in Kingsley Int'l Pictures Corp. v. Regents of Univ. of
New York, 360 U.S. 684, 691.
208. Griswold, Absolute Is in the Dark-a Discussion of the Approach of the
Supreme Court to Constitutional Questions, 8 UTAH L. REv. 167 (1963).
209. For a comprehensive review of the first twenty years of speech litigation under
the first and fourteenth amendments, see CRAFx, FREE SPEECH IN THE UNITED
STATES (1941).
210. Chafee, id. at 36-107. At the end of World War I, the Supreme Court
reviewed a series of decisions involving sedition statutes, Schenck v. United States,
249 U.S. 47 (1919); Abrams v. United States, 250 U.S. 616 (1919); Gilbert v. Minne-
sota, 254 U.S. 325 (1920), in which the safety of organized government against the
threat of Bolshevist revolution was protected. The repression of speech in the
political order was the cause of serious concern for those who saw in it a direct.
threat to all forms of expression.
211. Schenck v. United States, 249 U.S. 47 (1919). Chafee notes that Judge
Learned Hand had preceded Holmes by several years in moving toward the "certain
danger" test in Masses Publishing Co. v. Patten, 244 Fed. 535 (S.D.N.Y. 1917). But
his opinion was reversed by the court of appeals who reinstated the "dangerous
tendency" test for speech cases. Chafee, op. cit. supra note 209, at 42-51.
212. "We admit that in many places and in ordinary times the defendants in
saying all that was said in the circular would have been within their consti-
tutional rights. But the character of every act depends upon the circumstances
in which it is done. . . . The question in every case is whether the words used
are used in such circumstances and are of such a nature as to create a clear and
present'danger that they will bring about the substantive evils that Congress has
a right to prevent. It is a question of proximity and degree." Schenck v. United
States, 249 U.S. at 52.
SAINT LOUIS UNIVE.RSITY LAW JOURNAL [Vol. 8:279
recently has been called the test of "pragmatic assessments.."213

Whatever additions to or mutations have been made of the initial
Holmesian formula, 21 4 the fact remains that the Court recognized
early its call to decide exactly the type of policy questions which
Justice Black finds so distressing, by a process of judicial deter-
mination that can be called by many names, 215 but which involves
216
at the core a balancing of conflicting social interests.
But once it has been determined that speech is not an absolute
in ihe constitutional context, it needs to be immediately asserted
that the social interest invested in freedom of expression is great,
and that other social interests must be of proven worth to society
before they can outweigh speech. 217 This earnest regard for speech
is indicated by an almost unbroken line of decisions reaching back
into the early thirties in which the Court has upheld freedom of
expression over every type of governmental control. 218 Justice
Brennan was merely following a reflex action of long judicial
standing when he cautioned in his Roth opinion: "The door
barring federal and state intrusion into this [freedom of speech
and press] area cannot be left ajar; it must be kept tightly closed
213. Frankfurter, J., in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 442 (1957).
214. The controversy raised by the Dennis case (Dennis v. United States, 341 U.S.
494 (1951)), and the present status of the clear and present danger test is surveyed
in Mendelson, Clear and Present Danger-From Schenck to Dennis, 52 COLUM. L.
REV. 313 (1952). It is not without irony that what Judge Hand began in 1917 (supra
note 211), he succeeded in finishing in 1950 when he gave the definitive gloss to
Holmes' test: "In each case [courts] must ask whether the gravity of the evil, dis-
counted by its improbability, justifies such an invasion of free speech as is neces-
sary to avoid the danger." United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950).
215. The one favored by Justice Harlan is "balance of interest." See his opinion
in Konigsberg v. State Bar of California, 366 U.S. 36 (1961). Justice Frankfurter,
though using "pragmatic assessments" as a descriptive title, supra note 213, fre-
quently referred to his technique as a case by case "due process" method. See his
opinion in Kingsley Int'l Pictures Corp. v. Regents of Univ. of New York, 360 U.S.
684, 691 (1959).
216. Chafee claims that this balance of interests is the true meaning of the first
amendment protection, op. cit. supra note 209, at 31. Cf. Lockhart & McClure,
Literature, The Law of Obscenity and the Constitution, 38 MINN. L. REV. 295,
363-68. Professor Kauper indicates that such a method underlies even the opposing
school of Justices Black and Douglas, op. cit. supra note 205, at 115.
217. The Court has been split for some years over the exact nature of this
constitutional preference for speech. It began with the "preferred position" of
Justices Black, Murphy, and Rutledge, and has continued in the "absolutism" of
j, ustices Black and Douglas. See, SCHWARTZ, THE SUI'REME COURT: CONSTITUTIONAL
REVOLUTION IN RETROSPECT ch. 7 (1957). But whatever name is used, the fundamental
issue raised is the treatment given legislation which conflicts with speech and press
guarantees. Whether such statutes are given the usual judicial presumption of
validity or not depends ultimately upon one's philosophy of judicial activism or
self-restraint. But even here perhaps a reconciliation can be effected, more in action
than in semantics; for the determination of the degree of interference with speech
must be made on the basis of a factual situation. See KAUPER op. cit. supra note 205,
at 59-60. Cf. Note, 1961 Wis. L. REV. 659.
218. For a brief, if weighted, survey, see Warren, Ch. J., dissenting in Times
Film Corp. v. City of Chicago, 365 U.S. 43, 50 (1961).
and opened only the slightest crack necessary to prevent encroach-

ment upon more important interests.''21 Thus the balance-of-
interest approach so essential to free speech cases is not an open
market of freely competing values in which all social interests
receive the same quantitative measure; for speech remains at
least -a relative absolute under any circumstances. But it is here
of course where the policy nature of the process lies, in the deter-
mination of how much weight to give to the various types of
speech involved in individual cases.
For those who have accepted a unitary notion of the freedom
guarantees of the first amendment, there are many unhappy
22
anomalies in the Court's free speech precedents. To mention
only one which has caused a great deal of dismay, the Court in
Times Film Corp. v. City of Chicago,221 upheld the motion pic-
ture censorship review board of Chicago against an attack on
grounds that it violated free speech by being prior restraint. It
is evident that it was a prior restraint in the classical sense of that
term; 222 but the Court was unwilling to strike it down because,
as it noted, "each method [of expression] tends to present its
own peculiar problems. ' -
_
3
There can be no doubt that such a
review board of books would have fallen before a first amendment
challenge,224 and the fact that the board was tolerated by a
majority of the Court indicates that speech is not a univocal con-
stitutional notion, subject to an absolute law. Nor on the other
hand is there an indication in such a case as Times Film that the
Court disregards the importance of motion pictures as a form of
225
public discussion.
219. Roth v. United States, 354 U.S. 476, 488 (1957).

220. The crucial ones for Professor Kalven, supra note 203, are of course Roth
and its libel counterpart, Beaiharnais v. Illinois, 343 U.S. 250 (1952). The unitary
concept of speech under the Constitution is based on the assumption that all speech
is equally protected. When taken in the context of the absolutist judicial philosophy
of Justices Black and Douglas, the results are a protection of the same kind for
all speech in all circumstances. This the Court has refused to follow. See, e.g.,
Breard v. Alexandria, 341 U.S. 622 (1951). But where the unitary notion is taken
within the context of a balance-of-interest approach, it results in the protection of
speech according to the balance between gravity and probability which includes
due regard for the type of speech involved. See, Richardson, supra note 206, at 25.
221. Supra note 218.
222. Emerson, The Doctrine of Prior Restraint, 20 LAW & CONTEMP. PROB. 648
(1955).
223. 365 U.S. at 49.
224. See, Kingsley Books, Inc. v. Brown. 354 U.S. 436 (1957), and Warren Ch. J.,
dissenting in Times Film Corp. v. City of Chicago, 365 U.S. at 50. Cf. Bantam Books,
Inc. v. Sullivan, 372 U.S. 58 (1963).
225. This was recognized in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952),
and has been the basis of all the motion picture cases since. See, McAnany, Motion
Picture Censorship and Constitutional Freedon, 50 Ky. L.J. 427 (1962).
What is important to understand is the nature of the determina-

tion taking place when the Court rules that a governmental con-
trol so interferes with freedom of expression that it violates the
first or fourteenth amendments. 226 The Court is called upon to
weigh the conflicting interests of society and to determine whether
the strong prejudice in favor of free expression of ideas has been
overcome by a stronger necessity for control of the by-products
of this particular speech. Each interest involved must be given
separate attention and investigation so that its full social relevance
is correctly appreciated. 22 7 And in the end there is no warranty
that the Court's determination of how the balance stands is a
perfect one. But constant practice in the judicial process in other
areas less delicate may insure them against error too frequent or
egregious.
Understood in this context of judicial process, obscenity as a
free speech issue takes on a unique significance. Many of the
problems which the Court has had to face in individual cases in
the past history of speech litigation are concentrated in this one
type of expression-whether ideas, however noxious, must be
tolerated; whether clear and present danger is an adequate notion
for all speech or must be applied analogously; whether advocacy
involves incitement or mere discussion; whether state and federal
government are equally bound by the first amendment; whether
the norm set down is sufficiently clear to protect due process in
a penal statute controlling speech; and whether prior restraint
is legitimate in any circumstances applied to speech. 228 Faced with
226. In the obscenity issue after Roth the interference is not with "unprotected"
speech, but with that speech which lies close to, but outside of, the obscenity excep-
tion. See Smith v. California, 361 U.S. 147, 152 (1959).
227. One has the feeling from reading briefs before the Supreme Court that not
even here does the investigation of these interests get beyond a citation of unmean-
ingful precedents or out-of-context quotations. If the Court had only this informa-
tion to form its opinion on, there would be great fear that freedom is in jeopardy.
For assurance of independent research on the part of the justices, one can always
turn to one of the long concurrences of Mr. Justice Frankfurter. Yet it must be
recognized that the social dimensions of imponderables such as free speech are
very difficult to determine. The testimony in the Dennis case was immense and still
left room for debate as to what it actually showed. The outlines of such a careful
analysis for obscenity were made by Lockhart 9: McClure, supra note 216, at 368-87.
But since the evidence on obscenity is still in the making, infra note 232, the process
has to be constantly renewed by every judge or jury involved in such cases.
228. Kunz v. New York, 340 U.S. 290 (1951); cf. Kingsley Int'l Pictures Corp. v.
Regents of the Univ. of New York, 360 U.S. 684 (1959) (obnoxious ideas & freedom
of expression); Dennis v. United States, 341 U.S. 494 (1951); cf. Yates v. United
States, 354 U.S. 298 (1957) (clear and present danger test and analogous application):
Palko v. Connecticut, 302 U.S. 319 (1937); cf. Beauharnais v. Illinois, 343 U.S. 250
(1952) (state and federal control of speech and first amendment); Thornhill v. Ala-
bama, 310 U.S. 88 (1940); cf. Winters v. New York, 333 U.S. 507 (1948) (statutory
norms and vagueness under due process clause); Lovell v. Griffin, 303 U.S. 444
these numerous questions massed under the simple problem of

whether obscenity is constitutionally protected or not, the Court
naturally would be looking for a way out that would tend to
answer only one question without predetermining the others left
unanswered.
Considered as a free speech case, Roth-Albers 229 is a sword that
cuts both ways. It decided that a whole category of speech was
not included in the protective guarantees of the first and four-
teenth amendments. Yet it also attempted to narrow the incidence
of obscenity control to that type of expression that was socially
worthless. Having been asked a direct question, Justice Brennan
answered for the Court with a firm negative. The first amendment
had not intended historically to include obscene speech. 2 0 The
reason for this exclusion, as it appeared to Justice Brennan, was
the fact that obscenity was socially worthless. But this does not
seem to go far enough, for the states which had laws against ob-
scene libel did not control it because it was worthless. Rather
there was a factor that Justice Brennan chose not to bring out-
the social detriment which this type of speech involved. 231 No
doubt this hesitation was due to the fact that many people had
come to question the exact nature of this detriment, 232 but this
(1938); cf. Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961) (prior restraint
and free speech).
229. 354 U.S. 476 (1957).
230. The difficulty with the historical evidence adduced by the Court was its
true significance for the judgment that obscenity was not protected. Justice Brennan
seemed to argue that because obscenity was controlled by some state statutes that
it was ipso facto not included in the first amendment protection. This does not
seem to take into consideration the fact that the amendment was at the time of
ratification applicable only to Congress. But even granting the historical exclusion,
the position could be maintained that it was time for the Court to rewrite history.
For a critique on this aspect of the opinion, see Kalven, supra note 203, at 9.
231, Obscenity is spoken of as "utterly without redeeming social importance,"
but there is never a positive statement of why it should be subject to social control.
This same quality of constitutional neutrality was found in an earlier case. In
Winter v. New York, 333 U.S. 507 (1948), Justice Reed had stated that although
the magazines (Headquarters Detective) before the Court were of no possible value
to society, still they were as much entitled to the protection of free speech as the
best literature. To which Justice Frankfurter responded in his dissent with the
following distinction: "Wholly neutral futilities, of course, come under the protec-
tion of free speech as fully as do Keats' poems or Donne's sermons. But to say
that these magazines have 'nothing of any possible value to society' is only half
the truth. This merely denies them goodness. It disregards their mischief. As a
result of appropriate judicial determination, these magazines were found to come
within the prohibition of the law against inciting 'violent and depraved crimes
against the person,' and the defendant was convicted because he exposed for sale
such materials. The essence of the Court's decision is that it gives publications which
have 'nothing of any possible value to society' constitutional protection but denies
to the states the power to prevent the grave evils to which, in their rational judg-
ment, such publications give rise." Id. at 528.
232. In the appellate court this question was the burden of Judge Frank's long
concurring opinion. United States v. Roth, 237 F.2d 796, 801 (2d Cir. 1956). Backed
SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol, 8:279
silence did not dissolve the dispute. As a matter of fact the ma-
jority opinion seems to have indulged in a cryptic balancing of
interests, of setting the value of the type of speech involved over
against the need for some control of its bad social effects, without
238
openly facing the issue.
Having answered the first question with a negative, the several
other questions involved in the case were easily disposed of. The
clear and present danger test did not apply simply because this
type of speech was not protected. 234 The fact that the meaning
by what he considered accurate empirical research, the Judge argued that there
is no evidence that reading obscene books produces any antisocial behavior. Since
that time, however, the case has been put back into perspective by social scientists
themselves who admit that no reliable empirical evidence either way exists at
present. See Cairns, Paul, & Wishner, Sex Censorship: The Assumptions of Anti-
Obscenity Laws and the Empirical Evidence, 46 MINN. L. REV. 1009 (1962). There
is interest from both sides of the question in discovering what connection there is
between obscenity and behavior. Recently the American Civil Liberties Union and
the National Organization on Decent Literature backed a bill to establish a Presi-
dential Commission to investigate this connection. See Hearings on H.R. 11454
Before the Subcommittee on Special Education of the Committee on Education
& Labor, 86th Cong., 2d Sess. (1960).
233. Obscene speech, like libel, was quoted as having "such slight social value
as a step to truth that any benefit that may be derived from them is clearly out-
weighed by the. social interest in order and morality." 354 U.S. at 485. (Emphasis
added.) Also contained in his characterization of obscenity as "utterly without
redeeming social importance" there is-implied a reference to the evils thought
to accompany obscenity. Otherwise we must ask "redeeming" from what? But it is
also clear that Justice Brennan by his chosen approach of historical exclusion is
being true to his inclination toward the Black-Douglas-absolutism as regards free
speech. For although absolutism seems to allow no exceptions, even these two
Justices are inclined to bow in the face of hard cases and adopt some technique for
saving reason. One way, as suggested by Professor Kauper, supra note 205, at 114-
117, is by defining free speech as to exclude the item at hand. This, it seems, is
the type of rational indulged in by Justice Brennan, even though the balance of
interests shows itself as an inevitable logic for the existence of the exception in
the first place.
234. This answer was lifted from the earlier cognate case of Beauharnais v.
Illinois, 343 U.S. 250, 266 (1952), where libel was declared to be unprotected
speech. We suggest that although "clear and present danger" has been ruled out
as a legitimate test for obscenity, the Court is forced to return to it in its present
decisions, in altered form to be sure. For no matter how neutral the test for ob-
scenity appears to be (cf. American Law Institute's Model Penal Code § 207.10,
Comment (Tent. Draft No. 6, 1956)), there must be a policy decision based on a
balance of the benefits and detriments deriving from each item taken in itself.
This seems to be, in last analysis, what Justice Harlan is saying in his Roth-Alberts
opinions. That clear and present danger would not rule out all control over ob-
scenity, at least in its more violent forms, is indicated by the analysis given by
Lockhart and McClure in their pre-Roth article, supra note 216, at 368-87. The
problem of course is how to modify clear and present danger to fit the facts of
obscenity. Judge Bok did not succeed to the satisfaction of the Pennsylvania
Supreme Court. His. determination in Commonwealth v. Gordon, 66 Pa. D. & C.
101 was affirmed by the Pennsylvania Supreme Court in Commonwealth v. Feigen-
baum, 166 Pa. Super. 120, 70 A.2d 398 (1950), with the special exception of his
application of clear and present danger to obscene materials. Since Chafee sees
in the clear and present danger test a general rule for all first amendment free-
doms, see op. cit. supra notes 209, 216, this implies an analogous application of
the rule to the type of speech involved.
1964] OBSCENITY AND CONSTITUTIONAL FREEDOM 343
of obscenity is essentially relative did not prevent the Court from

deciding that it did not violate due process because of excessive
vagueness. 28 5 Then, too, since it was not protected speech, either
federal or state government might control obscene expression, due
26
deference being made for the sovereignties of each.
The limitation on the broad disenfranchisement of obscenity
was made in terms of a "definition." Now it is evident that Justice
Brennan did not hope to define something which all others in the
past had failed to do.237 But for purposes of protecting speech, he
set up several procedural techniques which would guarantee a
more uniform result. First he demanded that the item at hand
be taken as a whole, so that a random "blue" passage not be
fixed on to destroy the larger work. 238 He also insisted that the
norm of the item's obscene appeal be the average person's reac-
tion, not that of the most susceptible.239 But having set up these
235. Obscenity, though not defined by Justice Brennan, was given a more
structured content. Yet the heart of the test itself is still the "average -man," which
leaves the term about as vague as it was before Roth. Clarification given to the
term by precedent is tricky in this area since the concrete item before the court is
judged by first hand experience and immediate reaction. This may lead to a false
comparison of items on which a defendant may risk sale. The problem of course
is that most items passed on by the courts are not now available to individuals and
only left to us in cryptic descriptions in the court record or opinion. To argue, as
does one court, from nudity in genere to nudity in the particular instance, is a
dangerous sort of illation to make. See, Excellent Publications, Inc. v. United
States, 309 F.2d 362 (1st Cir. 1962). But the danger runs both ways, and an in-
dividual may find himself convicted for selling a publication which he felt was
far less offensive than an item exonerated before the courts. Some limitation was
placed on this vagueness danger by the Smith decision, 361 U.S. 147 (1959), which
required that a defendant knowingly sell obscenity. It may happen that a man
who operates constantly on the borders of obscenity may fall victim to such a
vaguely worded statute, since the vagueness resides more in the fluid community
mores than in the law. But where profit is measured by sex and not intrinsic
value, such an operator can be presumed to have calculated his chances by his
profit margin and to have insured against such a possible conviction. Apparently
Ralph Ginzburg resented being the first victim of new and expensive standards
set by courts when his publication of Eros, Liaison, and the book The Housewife's
Handbook on Selective Promiscuity won him a five year prison term and a
$42,000 fine from Judge Ralph C. Body in a United States District Court in
Philadelphia. See, Obscenity's Price, Time, Dec. 27, 1963, p. 32.
236. The defendants involved in both cases had fashioned neatly contradictory
arguments in which Alberts pleaded federal occupation of the field (United States
postal laws) excluding state law, and Roth maintained that the tenth amendment
prevented the federal government from controlling obscene publications at all.
354 U.S. at 492-94. Justice Brennan indicated much in his footnote answer to
Harlan's proposal that state power is larger in the area of sexual morality and
obscenity control. He answered that since obscenity was not protected at all, the
control of both was equal. Id. at 492, n.31. But his later decisions relating to the
danger that arises from obscenity control impinging on protected areas of speech
indicate a distinction not compatible with his argument here.
237. For problems of defining obscenity, see Part II of this article.
238. There is question of the wording of this part of the test-"dominant
theme of the material taken as a whole"-which raises problems with ideological
obscenity, but these will be treated in a separate section in Part II.
239. Lockhart and McClure have questioned whether this "average" applied to
guidelines, he left the results to the determination of the trial

court applying his test in the first instance. It was, so it seemed,
up to this grass-roots source to weigh the conflicting social interests
involved in each item and to determine whether it was worthless
to society. 240
In sharp contrast to the Brennan approach was Justice Harlan's
insistence on an open and thorough balance-of-interest tech-
nique.241 He feared that speech would suffer if automatically all
obscene speech were "by label" declared unprotected and open
to governmental control. Having insisted on the individualnature
of the constitutional judgmentinvolved,2 42 the Justice proceeded
to analyze the variety of social interests present in the control
of obscenity. One result of such an analysis was a distinction be-
tween the type of control permissible to federal and state author-
ities.2 43
For Justice Harlan there was a constitutional difference
between state control over obscenity (however you choose to define
it) and federal control. For the former he would. apparently ac-
cept the majority's obscenity norm. But in the latter case he in-
sisted on a higher standard which he termed "hard-core pornog-
a general average of the whole community, an average as "normal". adults, or
average as applied within a particular group. See, Lockhart & McClure, supra note
203, at 72-79.
240. Justice Brennan had insisted in a dissenting opinion on the same day,
Kingsley Books, Inc. v. Brown, 354 U.S. 436, 447 (1957), that the obscenity issue be
decided by a jury rather than a single judge. "The jury represents a cross-section
of the community and has a special aptitude for reflecting the view of the average
person. Jury trial of obscenity therefore provides a peculiarly competent applica-
tion of the standard for judging obscenity which, by its definition, calls for an ap-
praisal of material according to the average person's application of contemporary
community standards." Id. at 448. That this pattern would persist in later Brennan
opinions is indicated by his constant reference to the criminal trial as the model
of judicial procedure which must be guaranteed to obscenity for proper determina-
tion. See text infra pp. 350 et. seq., and notes accompanying.
241. Roth v. United States, 354 U.S. at 496. For a more expanded view of the
same technique in the context of subversive associations, see Justice Harlan's
majority opinion in Konigsberg v. State Bar of California, 366 U.S. 36 (1961).
. 242. Adopting as he does the due process technique so long advocated by Justice
Frankfurter, Harlan is forced to admit that the constitutional standards demanded
in such a case as obscenity are too general to be neatly capsuled-his main problem
with the Brennan approach. "Since those standards do not readily lend themselves
to generalized definitions, the constitutional problem in the last analysis becomes
one of particularized judgments which appellate courts must make for themselves."
354 U.S. at 497. Cf. his own opinion and that of Justice Frankfurter in Kingsley
Int'l Pictures Corp. v. Regents of the Univ. of New York, 360 U.S. at 691 and 702
(1959). This whole approach raises the issue that haunts Justice Black. If there are
no generalized standards except the wisdom of the appellate courts, then by allow.
ing obscenity laws to stand, the Supreme Court becomes in essence a Supreme
Board of Censors and substitutes its opinions for those made at the grass-roots
level of Justice Brennan's jury. 360 U.S. at 690.
243. Of a piece with the interest-power analysis, Harlan employed the argu-
ment that the fourteenth amendment did not apply the full first amendment
restrictions to the states, so that there is a different standard for state and federal
government. 354 U.S. at 504. The theory, proposed by Justice Jackson in his dissent
raphy. ' 2 44
" On the basis of these individually assessed factors, he
then turned to the items at hand and, by way of independent
judgment, 245 determined that the Alberts materials were properly
judged obscene, but that the Roth publications were not within
the category of hard-core pornography. Justice Harlan had also
refused to define obscenity, but he had insisted on the pragmatic
approach of taking each item in its circumstances to determine
the issue. 24 6 The protection against local malpractice in applying
the balance of interests was the independent appellate review
whereby the constitutional issue could be-indeed had to be 247 -
determined again by the reviewing judge since its content, though
partially factual, was fundamentally constitutional. 24 8
in Beauharnais v. Illinois, 343 U.S. 250, 287 (1952), has raised interesting questions.
See, Note, Limiting State Action by the Fourteenth Amendment, 67 HARV. L. REV.
1016 (1954). But it is submitted that the basic technique employed by Justice
Harlan would end in the same results without adding this theory of partial in-
corporation. See Rogge, State Power Over Sedition, Obscenity, and Picketing, 34
N.Y.U.L. REV. 817 (1959).
244. This is an important point in understanding what the majority took to
be the obscenity standard. Lockhart and McClure contend that what the Court in
Roth intended to define as unprotected was really hard-core pornography because
(1) they intended to narrow the incidence of obscenity control; (2) they had this
type of smut in mind during their decision, since the government officials had
presented them with a bouquet of this muck during the oral argument; (3) they
seem to have applied only a hard-core standard in cases since Roth. See Lockhart
& McClure, Obscenity Censorship, 7 UTAH L. REV. 289 (1961). Yet it is not at all
evident how Justice Harlan could have judged that he was applying a higher
standard to the federal statute if what the majority intended was hard-core
pornography. That the Court may have wavered in later cases as to the exact
limit of their own definition may be true, but this does not say that they have put
the constitutional limit at hard-core pornography.
245. See discussion supra note 242. As Harlan saw it, the judgment was a
mixed one of law and fact, and therefore subject to the de novo review by appel-
late courts. Contrasting would be the Brennan trust in the initial determination of
the jury. For further elaboration, see text and notes infra pp. 350 et. seq.
246. In a later decision he adopted the Brennan test, but there he added his
own gloss to its meaning, see Manual Enterprises, supra pp. 319 et. seq.
247. "The suppression of a particular writing or a tangible form of expression
is, therefore, an individual matter, and in the nature of things every such sup-
pression raises an individual constitutional problem in which the reviewing court
must determine for itself whether the attacked expression is suppressible within
constitutional standards." 354 U.S. at 497 (emphasis added).
248. Richardson, supra note 206, at 24-31 deals with this point in his treatment
of clear and present danger as applied in the Dennis case. His distinction between
facts relating to the immediate "causal" nature of the expression and the larger
context of the problem does not give very much help to the independent review
of obscenity, since probability of causing depends on a clearer understanding of
obscenity than we now have. Perhaps a wiser ground for allowing independent
review in these cases is the immediate availability of the primary evidence-the
book, pictures, film, etc.-which the judge is in a position to review in the same
condition that it was presented to the trier of fact. The constitutional judgment
made in the first instance is able to be placed before the appellate court in its
fullness, due deference being made for the variation in community standards as
far as this is constitutionally permissible. See Manual Enterprises, 370 U.S. 478,
where Justice Harlan imposed a national standard on the federal mailing ob-
scenity bar. This question of community standards is now before the Court in
State v. A Quantity of Copies of Books, 191 Kan. 13, 379 P.2d 254 (1963).
The question persists whether Roth-Alberts ultimately decided

anything. Obscenity to be sure, had been given a new title-
"appeal to prurient interest"-but it had not been removed from
the realm of policy determination which justice Black disliked.
It had been set about with several procedural demands which
voided the dangers of Hicklin, viz. taking the work as a whole
and using the average person as the norm. Yet the issue for free
speech purposes still remained that delicate task of deciding
whether the conflicting interests tipped one way or another. At
heart Justice Harlan seemed more ready to admit this state of
affairs, yet it may have been Justice Brennan, for all his talk of
categories of speech, who really understood the matter best. At
least he seemed most willing to recognize the need for the judg-
ment of balancing to be one for the average man, at a point where
the relevance of the decision had context..2 49 One danger which
probably .made Harlan insistent on independent review was the
fact that most juries and many judges were not readers of books
and that the social worth of more complex expression might
escape them. 25° Whatever meaning Roth-Alberts had in itself, it
raised a speech issue that was destined to splinter the already-
25
dividedCourt into subgroups of twos and threes. '
What makes the obscenity speech issue unique? Sometime ago
Professor.Chafee suggested that the elements of obscene speech
were a complex overlay of at least three distinct social factors: sex
as seductive; sex as offensive; and sex as idea-content. 252 The prob-
lem in any determination of the freedom of individuals to express
249. This is the other issue before the Court in State v. A Quantity of copies of
Books, 191 Kan. 13, 379 P.2d 254 (1963). In the jurisdictional brief for appellant, the
argument is made that the determination of an obscenity issue is an in ren pro-
ceeding against books on the issue of obscenity and requires a jury trial since the jury
is the only true representative of community standards. Id. at 22, 379 P.2d 261.
But this seems to give the jury a type of expertise which denies independent re-
view. Ultimately it may be that this is the issue dividing the Harlan and Brennan
approach.
250. This fear has been voiced by others. See Lockhart & McClure, Censorship
of Obscenity, 45 MINN. L. REV. at 72, nn.398 & 399. The opposing problem of allow-
ing an "aesthetic minority" of judges to be the norm for a society of average in-
dividuals has merit only when the minority allows literary factors to .favor a
notable advance on present standards. No one should object that the courts give
protection to something of great intrinsic worth. Cf. MURPHY, CENSORSHIP: GOVERN-
MENT AND OBSCENITY 46 (1963).
251. Op. cit. supra note 205. Most curious of all was the recent "majority"
opinion of Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962).
There the opinion of the Court was shared only by Justice Stewart, the other con-
curring justices being themselves split into two groups, Justice Black expressing
no opinion and Justice Brennan winning the support of Chief Justice Warren and
Justice Douglas. Justice Clark dissented alone.
252. I CHAFEE, GOVERNMENT AND MASS COMMUNICATIONS 211 (1947).
1964] OBSCENITY AXD CONSTITUTIONAL FREEDOM
themselves about sex publicly is exactly summed up in -the

mystery of what constitutes the main emphasis and total effect
of any individual statement. A lecture delivered by D. H. Law-
rence to a mature group of intellectuals on the mystique of sexual
intercourse may or may not suffer public infirmity as a breach of
public order. But a hack production put out in paperback which
purports the same "idea" by an artist far less accomplished than
Lawrence may well run afoul of the law. In all speech theories
the critical point is the watershed between speech and action.
But in obscenity the usual obscurity of any human expression
and its aftermath on a man's action is doubly confused. For at
heart the sexual appetite is less the slave of reason than any other,
and the results of sexual expression on each person will tend to
vary according to the hidden norm of each man's self-control. It
is the very hiddenness of the depth of a man's personality which
is involved. Legislation consistent in every state and in federal
government indicates a strong need to allow for that type of
protection of each man's internal freedom which obscenity legis-
lation is framed to accomplish. The problems raised by a plural-
istic society are serious, and the Court is faced with a policy
determination that must depend in great measure on the stand-
ards which society itself expresses in its laws and customs. It is
at this point that the broad issues of representative democracy
versus individual freedom are approached, and the Court is left
with no more than a bare suggestion as to which direction the
25 3
tide is flowing.
If the main issue of freedom here is the accurate test of what
the critical point is between shame and candor, as Judge Hand
suggested,254 then the Court is faced with a unique task of trying
to catch a shadow on the fly. Cast in terms of the original clear
and present danger test, obscenity presents the Court with anoma-
253. The problem was put this way by Professor Kauper, op. cit. supra note
205, at 73-74:
It must be remembered that obscenity legislation may effect all readers and
that it does not operate with discriminatory effect upon one particular group
of persons as in the case of legislation directed against expression of political
or religious views by unpopular minority groups. Here is a case where the
ordinary legislative processes are adequate to deal with the problem and
where a preponderant public sentiment should indeed play a controlling part.
If people do not care to have obscenity legislation, their efforts should be
directed to repeal of this legislation. Obscenity laws may be ill-conceived and
inadequate to achieve the purpose of promoting public morals. But it is not
the business of the courts to condemn as unconstitutional legislation they re-
gard as unwise or ineffective.
Cf. Murphy, op. cit. supra, note 250, at 153-65.
254. United States v. Kennerley, 209 Fed. 119, 121 (1913).
lous problems. For though there are no immediate acts (ordinarily)

against the body politic as such, acts there are whose significance
for the social well-being of the community may not be ignored.255
Again as regards the expression of ideas, most works mustered
under the title of obscenity do not come within a mile of any
advancement of truth. 256 Yet, according to Holmes' delphic quip
that every idea is an incitement, some have argued the converse
so that every incitement in this area is somehow an idea.257 We
might end these conundrums with the query of how Brandeis'
dictum applies-that errors in speech should be overcome by
more speech, not by enforced silence. 258 For it is difficult to ,see
how anti-sex speech would do more than create2 59the very condi-
tions on which obscenity builds in the first place.
The Court has given implicit recognition to the fact that
obscenity is a speech mystery by a series of per curiam reversals in
which the disagreement must have been sufficient to prevent
getting even the bare unanimity expressed in other obscenity
cases. 260 It may be that the Court has gone far along the road
255. Exactly what obscenity does to a person is a highly disputed point. Every
author who writes on the subiect has a different, yet definite, conception of what
effects obscenity has on individuals. Compare Lockhart & McClure, Obscenity in
the Courts, 20 LAw & CONThMpr. PROB. 587 (1955), with Schmidt, A Justification of
Statutes Barring Pornography from the Mail, 26 FORDHAM L. REV. 70 (1957). Yet
neaxly all will agree that some sort of sexual stimulation is the primary function
from which a variety of acts can take their motive force. Depending on the in-
dividual and the type of obscenity he employs, the acts will have more or less
permanent effect and wider or narrower social circumference. It should be made
clear here that the authors are not convinced by the argument that obscenity is at
best (or worst) an erotic stimulant, the effects of which are purely personal.
256. Nudity divorced from art by erotic arousal seems the antithesis of idea-
content. Sex may be, as Lawrence insisted, close to mysticism, but it is very far
from reason.
257. The problem was brought out clearly in Justice Harlan's dispute with the
majority in Kingsley Pictures. Ordinarily one would not consider the depiction of
sexual intercourse as related to the exposition of ideas, yet perhaps there is a rare
sort of exception to be found in Lawrence's Lady Chatterley's Lover where the
theme bears directly on the act itself. Cf. Grove Press v. Christenberry, 276 F.2d
433, 438 (2d Cir. 1960).
258. Whitney v. California, 274 U.S. 357, 377 (1927): "If there be time to expose
through discussion the falsehood and fallacies, to avert the evil by the process of
education, the remedy to be applied is more speech, not enforced silence. Only the
emergency can justify repression." But Richardson has added qualifications to this
statement in light of Dennis. See Richardson, supra note 206, at 8.
259. KRONHAUSEN, PORNOGRAPHY AND THE LAW (1959). One of the few points on
which the authors can agree with the Kronhausens is the belief that obsessions can
be implanted in adolescents by sex-is-dirty instructions. It is better not to instruct
the young at all than to convey the dishonest idea that any sexual feeling is un-
wholesome. For some clarification of Catholic ideas on sex, see Part II of this article.
260. Thurman Arnold is quoted as suggesting that the Court should never talk
about its obscenity decisions. It should decide and say no more since there is no
more to be said. See Kalven, 1960 Sup. CT. REV. 1, 42-44. But it is evident that the
Court has not heeded the advice of its critic, for not only has the Court spoken
since the per curiam period, but has spoken in many tongues. The basic disagree-
toward emancipating the press in this matter of obscenity for the

very reason that, though worthless, obscenity is thought to be
equally negligible.2 61 If this is so, then there seems to be need for a
more sophisticated and intensive research of obscenity, lest the
Court unwittingly be perpetuating a popular error fostered by
the mass media.
Obscenity as a Speech Issue: Diverging Philosophieson the Court
Obscenity as a speech issue is a complex set of factors which
has stimulated a great deal of writing and thought. 262 Unfortu-
nately the courts are not in the enviable position of the law pro-
fessor, who can end the matter with the rising inflection of an
interrogative. Their nature demands no less that they face difficult
questions than that they give them answers.26 3 Theirs is the
inevitably minimal and gradualist approach, however, because of
the nature of the grant of judicial power. 264 In learning to listen
to the courts, one must become aware of reading the meaning of
any one decision in light of other decisions in the same line. So
with obscenity and the Supreme Court, it is important and
necessary to see where the Court is going from Roth-Alberts by
reading succeeding cases in light of the initial holding and
later modifications.
The working philosophies of the Court on obscenity appear to
have been fixed with a strong degree of stability in the Roth
precedent. That decision was dominated by three sets of premises
on the.nature of the speech issue, and later decisions have tended
to solidify rather than dissolve them. The Black-Douglas position
ment that the silence of the per curiam decision covers over has come to light with
a vengeance.
261. One cannot escape this feeling when Justice Harlan, committed as he is to
the balance-of-interest approach, would approve (constitutionally only, to be sure)
such magazines as Womack sought to sell to his homosexual clientele.
262. Like a good number of other constitutional issues, writing on this question
has not been confined to the legal field. Many popular articles and books have ap-
peared, not all of equal worth and contribution, But since this subject of obscenity
has immediate impact on public life in the sensitive area of sex, there is reason-
indeed necessity-that people speak up on the topic, observing at the same time
the rules of a proper dialogue for public consensus. See Murray, The Bad Argu-
ments Intelligent Men Make, 96 A.iERICA 120 (November 3, 1956). See Part 11 of
this article for a further elaboration of the public issue.
263. But the Supreme Court is not obliged to answer all questions, even re-
lating to civil rights. See Bickel, The Passive Virtues: Foreword to the Supreme
Court, 1960 Term, 75 HARv. L. Rav. 40 (1961). The problem of review and ability
of a minority of the Court to control the grant of certiorari has contributed to the
deadlock on the Court resulting in per curiam reversals. For the general problem,
see Leiman, The Rule of Four, 57 COLUMi.L. REa'. 975 (1957).
264. See Bickel, supra note 263, whose discussion of the nature of the Court's
"discretion" is very enlightening.
is the clearest and most stable. It states the case in terms of a

unitary theory of speech for the first and fourteenth amendments,
into which obscenity fits as well as any other type of speech. The
only exception to prohibition of any control is that allowed by a
rigid application of the clear and present danger test.2 6
Justice Brennan, on the other hand, seems to have endorsed a
limited exception to first amendment protection by way of con-
stitutional definition, i.e. that strong (indeed absolute) protection
runs up to the very borders of obscenity as a type of speech. 266 To
determine what is obscene (and thus unprotected), one must see
to it that the trier of fact uses the right standard. But as to the
decision itself, that is for the trial court; and higher courts should
leave the speech issue to the jury, where, of right, it belongs.26 7
Finally, Justice Harlan cast the speech issue in terms of a
balance of interests. He would recognize the duty of the Court
in each instance to scrutinize the particular item suppressed to
determine whether the control was within the due limits of the
265. Justice Black concurred in a dissenting opinion by Justice Douglas in

Roth, 354 U.S. at 508. Although one can distinguish the two justices in free-speech
theory in a few particulars, by and large they are at one in their rejection of ob-
scenity censorship. One can perceive now and again a weakening in the Douglas
absolutism, such as his joining in an opinion by Justice Brennan in the Manual
Enterprises case, 370 U.S. at 495. A different tone is set in their separate opinions
in two other cases: Kingsley Int'l Pictures Corp. v. Regents of Univ. of New York.,
360 U.S. at 690 (Black) and 697 (Douglas); Smith v. California, 361 U.S. at 155
(Black) and 167 (Douglas).
266. This was Justice Harlan's characterization of the Brennan majority at the
time: "The Court seems to assume that 'obscenity' is a peculiar genus of 'speech
and press,' which is as distinct, recognizable, and classifiable as poison ivy is among
other plants. On this basis the constitutional question before us simply becomes, as
the Court says, whether 'obscenity' as an abstraction is protected by the First and
Fourteenth Amendments...." 354 U.S. at 497. The constitutional technique of
definitional exclusion of certain types of speech seems necessary for any con-
ceptual approach to the Constitution. Otherwise there is no latitude for the ex-
ceptions which hard cases demand. See KAUPER, CIVIL LIBERTIES AND THE CONSTrru-
TION 58-59 (1962). Another reason for Justice Brennan's attempt at the historical
out on obscenity seems to be an implicit recognition of state power in this area,
which power would otherwise be subject to the same narrow confinement of the
full first amendment. By freeing the states to operate in this area, of course he also
freed the federal government since his doctrine on the equal application of the first
to both is clear. See Ohio ex rel. Eaton v. Price, 364 U.S. 263 (1960); and his lecture,
Brennan, The Bill of Rights and the States, 36 N.Y.U.L. REV. 761, 771 (1960).
267. This impression was strong in the Roth case where Justice Brennan passed
over Justice Harlan's invitation to look at the material before the Court to de-
termine whether the standards had been applied properly. Even as to the standards
given by the trial courts, there seems to have been more confidence than was
judicially permissible that they were the same constitutionally as the one laid
down by Justice Brennan. But perhaps Justice Harlan misapprehended the whole
thrust of the Brennan approach when he complained that the Roth majority was
opening the door to the censor. Although the language of Roth appeared
broad, the exception itself was very narrow as came to light in later Brennan
opinions.
constitutional guarantees (whether first or fourteenth). 268 Since

Justice Black and Douglas seemed destined to leave no progeny
on the Court, and have consistently expressed a minority position,
this analysis will be confined to the other two positions dominant
2 9
on the Court.
If one reads Justice Brennan aright in Roth-Alberts, there is a
clear-cut, if difficult-to-determine, line running between obscene
and non-obscene speech. This line represents the constitutional
border of protection. The obscene as such 270 is excluded from the
Bill of Rights and thus open to any type of control the govern-
ment may wish to exert against it.271 There is no degree of inness
or outness in this area. Either an item is obscene or not. It becomes
paramount then to insure that the decision on the obscenity issue
be integral, since once the determination is made, all or none of
the constitutional armory is behind the speech in question.
In his search for integrity of the initial decision, Justice
Brennan has championed a series of procedural measures which
insist on the full judicial process for any obscenity determination.
Starting with the necessity of a jury determination in all obscenity
268. The balance-of-interest technique does not necessarily imply a different
speech standard for state and federal government, but since the power and func-
tions of the two bodies are widely divergent, the balance struck will naturally
be altered. But in Roth what Harlan seemed to imply by his language was an adop-
tion of the earlier stated thesis of Justice Jackson in his Beauharnais dissent, 343
U.S. at 287. See supra note 243.
269. Justice Warren is certainly akin to Justices Black and Douglas in speech
cases, but he has not adhered to the full doctrine of ther absolutist view of the first
amendment. In Roth his position was set out in terms of what we can call an
"obscene people" theory. 354 U.S. at 494. He felt that government had the power to
control the disseminators of obscenity by a criminal action in which the main
focus was upon the man and his action, not on the materials themselves. Of course
he admits that ultimately the materials have to come into the question, but even
then they are judged obscene or not in the context of their dissemination. If they
are sold as an appeal to the morbid craving of individuals, then the seller is
guilty of the crime of obscenity. For an elaboration of this theory, see Lockhart &
McClure, supra note 250, at 68 et seq.
270. See Brennan, supra note 266. The historical argument, put forward in an
off-hand fashion by Justice Brennan in Roth, hardly argues for exclusion of ob-
scenity from the first amendment. At the time of its ratification only Congress was
clearly bound by the limitations therein, and the federal government had no laws
against obscenity. The evidence points rather to the conclusion that society felt
that expressions on sex, like sex itself, must be subject to some control. To pass
from these facts to the exclusion Of obscenity by way of definition seems an im-
plausible leap. For a critique of Brennan's history, see Kalven, The Metaphysics of
the Law of Obscenity, 1960 Sup. CT. REV. 1, 9.
271. The word "unprotected" appears the equivalent, for constitutional pur-
poses, of speech involving such a danger to society that it automatically is subject
to policing. But if one takes the word for what it says, then the statement makes
no sense. For no speech is controllable because it is "unprotected"-nor, we might
add, because it is worthless. Social utilit,. the conception seen by Professor Kalven
as the major contribution of the Brennan opinion, supra note 270, at 11, has not
become an active part of the Justice's later decisions. Cf. Regan, Freedom of the
Mind and Justice Brennan, 9 CATHOLIC LAW. 269 (1963).
cases,2' 7 2 he has added other requirements. In Smith v. California27 3

his majority opinion found a Los Angeles ordinance wanting
because it contained no scienter clause. It was not the fact that
the state could not place strict requirements on individuals, even
in the area of speech, but that this could not result in an en-
croachment on protected expression.27 4 Obscenity indeed could be
controlled, but only after it had been determined by full judicial
process that such items were obscene. Not every method of control
was legitimate since the knife's edge between protected and un-
protected allowed for no leeway at all. The self-censorship imposed
(or at least encouraged) by law in California made the bookseller's
decision pre-judicial and open to serious encroachments on pro-
275
tected areas of expression.
Again in the Bantam Books case, 276 Brennan's opinion turns on
the protection of the initial judgment of obscenity by judicial
process. There an administrative decision that was non-judicial
in nature was substituted by the book-seller for his own judgment
2 77
(as in the Smith case) or for the judgment of a fully judicial trial.
To be sure, there was no physical or legal constraint, but the
tendency of the factual situation pointed toward a nonintegral
determination of the obscenity issue and the concomitant invasion
272. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 447 (1957). Justice Brennan
dissented alone in this case, but he may have picked up support for his views. While
not. alluding directly to jury trial, this Kingsley Books dissent is the background
to his opinions in the Smith, Marcus, and Manual cases. The issue seems to be
now before the Court in the.Kansas case, State v. A Quantity of Copies of Books, 191
Kan. 13, 379 P.2d 254 (1963).
273. 361 U.S. 147 (1959).
274. It is difficult to imagine what type of restriction Justice Brennan would
allow unless it were within the area of obscenity already so determined. Such a
case might be the strict liability of a bookseller who sold a book already declared
obscene by a jury determination. But whether the bookseller could be presumed
to know the nature of the book during an appeal from the initial determination
is also a problem for other justices, as well as Justice Brennan. Justice Frankfurter
left the question open in Kingsley Books.
275. The prior-restraint question implicit in Justice Brennan's quest for an
initial jury determination was brought out in Times Film Corp. v. City of Chicago,
365 U.S. 43 (1961). There he joined Chief Justice Warren in dissent over the
issue of the constitutional legitimacy of prior review of films by a municipal
board. The majority opinion of Justice Clark brought forward the argument that
prior review might be justified on the grounds of obscenity. Id. at 49. To this the
Chief Justice countered that the decision as to obscenity was to be made -by the
prior reviewing board itself. Id. at 54-55. Thus it became a question, as in all
matters of obscenity, of who makes the decision and when. The issue sharpens in
the area of search and seizure. See Marcus v. Search Warrant, 367 U.S. 717 (1961);
cf. United States v. Peisner, 311 F.2d 94 (1962), treated supra note 176.
276. 372 U.S. 58 (1962).
277. The issue of course was whether the Commission's determinations were
'enforced." The fact that a police officer can warn individual booksellers of pos-
sible prosecution for selling certain titles does not guarantee that every such
warning is constitutionally permissible. Id. at 71. Cf. Butler v. Michigan, 352 U.S.
.380 (1957).
of possible areas of protected speech.27 8 In Marcus v. Search

Warrant279 there was unanimity on the Court because there the
initial decision was not only pre-judicial and nonjury, but
occurred on the mere suspicion of already-suspicious police officers.
A final gloss on his obscenity doctrine can be gained from his long
concurrence in Manual Enterprises v. Day28 0 where the issue dis-
cussed was the factual one of whether Congress had actually
granted the Post Office Department the powers of determining
the obscene nature of items to be mailed. Behind Justice Bren-
nan's negative conclusion lies the feeling that any such power
belongs primarily to courts of law, where proceedings before a
jury are carefully guarded by uniform regulations and are open to
28
review. '
To summarize the Brennan obscenity jurisprudence, one might
say that the central issue is WHO made the initial decision and
WHEN. If obscene speech is unprotected and subject to full
government control, all other speech (libel of course excepted) is
fully protected. States and federal government are equally bound
by the first amendment, and there seem few restrictions in the
Brennan universe which could be justified. This black/white
situation demands as accurate and early a determination of the
obscenity issue as is possible. But if the restrictions are rigorous
outside the obscenity area, there is a lenience in the Brennan view
toward the control on items once the jury has spoken. For it
would appear that Justice Brennan leaves the decision as to what
is obscene to the countrymen of the jury. Once they have, in full
trial and with due knowledge of the proper standards, made their
278. How far Justice Brennan is willing to carry his belief in a full trial for
any obscenity determination is hard to say. See possibilities of an ad absurdum
conclusion, supra note 193. Certainly Justice Brennan's emphasis on jury trial has
had its influence in choice of methods by several bodies interested in curbing ob-
scenity. Citizens for Decent Literature (CDL) has taken more effective criminal
prosecution as its battle cry to replace the much abused "lists" of NODL. See
Lockhart & McClure, supra note 250, at 9. The Post Master General indicated a
change of policy in 1961 in his anti-obscenity campaign. Abandoning the adminis-
trative hearing to bar the mails to items considered obscene by Post Office officials
(the technique involved in Manua,, he ordered the Department to concentrate on
criminal prosecution instead. See, Wharton, The Battle Against Mail-Order Por-
nography, Reader's Digest, Feb. 1964, p. 147.
279. 367 U.S. 717 (1961).
280. 370 U.S. 478, 495 (1962).
281. The problem of what safeguards the Post Office hearings provided the
petitioner was increased by the fact that the Office did not come under the Ad-
ministrative Procedure Act. Thus a determination -of their own regulations for
obscenity hearings could well be directed more toward efficiency than toward
justice. Id. at 516. Justice Brennan admitted that not all administrative determina-
tion of obscenity was denied to government, but it must be, he indicated, "in the
nature of a judicial proceeding under closely defined procedural safeguards." Id.
at 519.
judgment, then the matter is closed. There will be exceptions to

this general rule, to be sure; for Justice Brennan does not abdicate
judicial review altogether, but by and large there is no friendly
interest in the case-by-case review as proposed by Justice Frank-
furter and adopted by Justice Harlan..2 812 Clearly for Justice
Brennan, obscenity is a matter for the common good sense of the
average man, helped in his decision by eleven of his peers.2 8 3
The opposing philosophy has been articulated by Justice
Harlan. 2 4 His general thesis can be stated as a balance-of-interest
approach, more akin to the general technique at the heart of the
original clear and present danger test. This theme was enunciated
in his Roth opinion and has been reinforced by each addition
since.2 8 5 In this first obscenity decision the balancing is most
explicit, and later cases draw their meaning from the earlier
one.28 6 Since every restriction on speech must be justified by a
competing social interest of relatively greater importance, any
decision to suppress this expression must be judged in its full
282. See Kingsley Int'l. Pictures Corp. v. Regents of Univ. of New York, 360
U.S. 684, 696 (1959).
283. Justice Brennan has not abdicated review of the decision entirely, but his
latitude with jury determinations as indicated by Roth, combined with his dissent
in Kingslev Books, was essentially narrower than that of Justice Harlan. He seems
to have adopted a position on the jury competence in the matter of obscenity
advocated earlier by Professor Chafee. See I CHAFEE, GOVERNMENT AND MASS COM-
MUNICATIONs 220 (1947).
284. - By far themost consistently articulate positions have been Justice Brennan's
and Justice Harlan's. In the seven major obscenity decisions that the Supreme Court
has decided since 1957, the two justices were almost never silent: In Kingsley
Books, Brennan wrote the dissent, Harlan concurred without opinion in majority;
In Roth-AIberts, Brennan wrote the majority, Harlan wrote a concurrence in Al-
berts and a dissent in Roth; In Kingsley Pictures, Brennan concurred without
opinion with the majority, Harlan wrote a concurring opinion; In Smith, Brennan
wrote the majority opinion, Harlan wrote a concurrence; In Marcus, Brennan
wrote the majority, Harlan concurred without opinion; In Manual Enterprises,
Brennan wrote a concurring opinion, Harlan wrote the opinion of the Court; In
Bantam Books, Brennan wrote the majority, Harlan wrote a dissent.
285. Justice Harlan purports to apply the balance-of-interest approach to all
speech questions, not only to obscenity. But one wonders whether there is not a
necessary difference which the nature of obscenity itself forces on him. For the
nature of the legislative choice in matters of obscenity is peculiar to it alone, and
a court considering the matter in its balance of interests would naturally weigh
such a judgment somewhat differently than in other matters. The results in ob-
scenity cases also show this different balance. Justice Harlan seems fond of
saving the allegedly obscene speech in question by way of independent judgment
without destroying the statute. Cf. Roth v. United States, 354 U.S. 476, 496 (1959) and
Konigsberg v. State Bar of California, 366 U.S. 36 (1961).
286. This is particularly true as regards the different elements involved in state
and federal control of obscenity. Although the Manual decision never alludes to
the earlier analysis, there is a constant use of limiting language which confines the
decision to "this statute," a federal one. The conclusion that the Womack magazines
were not obscene fits the standard he laid down in Roth for federal statutes, not
that indicated for state laws. This distinction is bolstered by his attitude in the
Bantam Books dissent, where state authority was impugned by the majority. He
explicitly mentioned the distinction in his Smith concurrence. 361 U.S. at 170.
existential context of interest-danger-circumstances.2 8 7 The pro-

tection of public morals lies with the several states by right; and
this right has been exercised in the passage of various obscenity
laws, based on the not irrational judgment that obscenity is harm-
ful to the public welfare. 288 But since each suppression of speech
requires a constitutional judgment involving a balance of in-
terests, the determination must be individual. In order to insure
against an inaccurate assessment of these multiple factors at the
primary level, appellate courts should review the decision de novo,
in effect remaking the same inquiry and judgment that any con-
stitutional determination demands.2 8 9 In Roth itself this indi-
vidualized balance resulted first in a different set of standards for
state and federal control, 29 0 and secondly in differing results when
2 91
applied to the items before the Court.
Since Roth Justice Harlan has pursued the same patterned
approach. Kingsley Pictures v. Regents292 was an opportunity to
emphasize the importance of independent review, for by an artful
287. Justice Harlan became particularly critical of the Brennan approach for its
overriding simplicity in Bantam Books v. Sullivan, 372 U.S. 58 (1963). There the
majority did not acknowledge either the interest of the state or the danger thought
probable from pornographic books. The balance, as Harlan envisaged it, had. to
take into consideration the interest of the state in protecting its youth against
obscene and pornographic books and the interest of the public in free access to
reading materials. To eliminate one or the other was to destroy the balance.
288. Roth v. United States, 354 U.S. at 501.
289. Id. at 498. Justice Harlan followed his principle of independent review
to its ultimate stage in Manual Enterprises. In deciding the obscenity of the maga-
zines in question, he seems to have acted independently of any evidence at all in
determining the issue of "patent offensiveness." He admits that the point was not
argued to any court below, and was therefore not in any prior determination. But
since he saw the power to review independently as the power to redecide con-
stitutional fact determinations, -he had no qualms about settling this issue of
offensiveness at the highest level of review instead of remanding it. The magazines
were before the Court and he felt himself competent to raise and resolve the ob-
scenity question on this single point of patent offensiveness. Id. at 488. This atti-
tude is hard to reconcile with his demand for evidence of community standards
in his Smith concurrence. 361 U.S. at 171-72.
290. See supra note 243. Starting from an interest analysis, Justice Harlan dis-
covered in the states the primary right to regulate sexual morality of their citizens
and only an indirect federal interest granted in the postal power. Furthermore, his
analysis showed the necessarily larger dangers inherent in the federal power of
censorship since it runs to all the people, not just the inhabitants of a single state.
Finally, the balance is further altered between state and nation by the greater con-
stitutional impediment to federal control in the first amendment.
291. He would have reversed the Roth conviction on the basis of his higher
standard since he did not find the materials sent by Roth through the mails were
hard-core pornography. Because he is not one given to labels, we cannot say
whether there is a basic change of attitude in this remark in Manual Enterprises
where he indicated that the Court left open the question raised by Professors
Lockhart and McClure that Roth defined hard-core pornography as the constitu-
tional test. See Lockhart & McClure, supra note 250, at 58. If Justice Harlan is
now ready to accept the higher standard for states, does it imply a yet higher
standard for any federal control--or no federal control at all?
292. 360 U.S. 684 (1959).
SAINT LOUIS UNIVERSITY LAW JOURNAL [
[Vol. 8:279
use of it, the Court could save an item of expression without

invalidating the state statute. 2 3 This same concern for judicial
respect of state action in balance with freedom of expression was
manifested in Smith v. California,294 where a Los Angeles ordi-
nance without a scienter clause for the punishment of selling
obscenity was found wanting by the Brennan majority. For
Justice Harlan the fault lay not with the ordinance itself, but with
the trial procedure in applying it.295 Again in Manual Enter-
prises26 and Bantam Books 297 the emphasis was on leaving the
federal government and Rhode Island with their means of control
2° 8
while turning back a particular application of it.
To point up the contrast between the Harlan and Brennan
philosophies on obscene speech, it is suggested that the former
does not care when or who decides the obscenity issue, but HOW.
Any judgment that decides to control this particular speech must
take into account not so much whether it is obscene or not, but
whether the conflicting interests of freedom and protection of
public morality are carefully counter-balanced. It is a matter of
degrees, and the difficulty of coming to a constitutional judgment
demands that the decision be re-made at various levels of review.
This puts a burden on the appellate courts to police the efforts of
lower courts in this matter, but it also provides a particularized
protection of both interests at stake. Although there should be a
test for judging when an object is obscene or not, its application
must itself be a constitutional judgment. Triers of fact are not
always aware of the full dimensions of the problem of free expres-
sion and have to be checked out by minds more accustomed to such
nice distinctions as first amendment litigation demands. Obscenity
293. Deference to legislative action even in the area of speech seems to be the
burden of the following remark: "It is difficult to understand why the Court should
strain to read those opinions [New York Court of Appeals] as it has. Our usual
course in constitutional adjudication is precisely the opposite." Id. at 707. His
preservative approach to state legislation carries over into federal. In Manual, he
not only avoided the Brennan conclusion that the Post Office had no grant of
power, but he obviously strained to put a scienter clause in the civil section of the
statute to immunize it from attack on that ground.
294. 361 U.S. 147 (1959).
295. His concurrence was based on the fact that the trial judge had excluded
all evidence offered by the defendant to show community standards, Id. at 171.
This defect he saw as sufficient to remand, without affecting the ordinance itself.
The mere lack of a scienter clause did not prove, he felt, that the state demanded
strict liability of booksellers, for courts had a way of reading in such fundamental
requirements of criminal justice.
296. 370 U.S. 478 (1962).
297. 372 U.S. 58 (1963).
298. Of course in Bantarn there was not a statutory invalidation, but the re-
imposition of a broad injunction issued by the superior court did raise doubts as
to the effectiveness of the Commission's work. Id. at 64.
is not protected, but the state is justified in its control of it only by

bringing foward an interest which in each case outweighs the
suppression sought.
These working rules, as the Court has developed them in decid-
ing obscenity cases, clarify the basic speech issue dividing the
Justices. Obscenity as speech cannot be handled as simply as the
Roth majority would have implied. Before Roth and after, there
is the necessity of making a policy decision on the nature of
obscenity as free expression in each particular instance. This
necessity lies hidden behind the concern for standards. If Justice
Brennan is right in wanting to leave the ultimate decision with
the jury, then freedom of expression will be determined in this
area by the general tolerance each jury brings to the judgment
before it, protected to be sure by the safeguards of the judicial
process of jury trial. If, on the other hand, one follows Justice
Harlan in his concern for particularized judgments open to
vertical revision by appellate courts no matter where initiated,
then freedom will depend more heavily on alert inspection
methods of reviewing courts. For anyone aware of the public
nature of the issue, both approaches have features that are inviting.
Were Justice Brennan more openly conscious of the right of
states in this area to protect public morality, 299 his faith in the
common man to make a good decision would have great merit.
Justice Harlan, despite the general validity of his balancing ap-
proach, shows a certain weakness in his system when he quietly
overturns a series of decisions by lower courts on the unexpressed
30 0
-indeed unexpressable-basis of "particularized judgments."
Thus obscenity remains, because of its intrinsic denseness, a
speech enigma. Until more minds have brought to light its con-
tours for the Court to grapple with, it must inevitably be decided
on grounds of basic speech attitudes and not on the merits of
obscenity itself.
299. He alludes to this right in various of his opinions, but the so-called right
seems narrowly confined to the area of judicially determined obscenity. See supra
notes 274-78.
300.' See Manual Enterprises v. Day, 370 U.S. 478 (1962), his most controversial
decision to date. The fact that he decided the obscenity issue on the basis of an
element that was introduced by him at the highest level of review, see supra note
289, gave some pause as to whether or not Justice Harlan had taken seriously the
position of being on a "Supreme Board of Censors" (Justice Black's remark in
the Kingsley Picture case, 360 U.S. at 690). Then, too, he settled the scienter
question by finding it in the statute where it was not expressed and settling the
issue of fact as to scienter also. Justice Clark found this hard to understand when
the normal thing would have been to remand the case for further determination.
Id. at 526. For Harlan's reply to the charge, see id. at 495 n.17.

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OBSCENITY: THE STANDARD

The Early Years

as unashamed as they were ingenuous, and the court poet Chaucer

beneath the bedrock of a stable English society overflowed with

Vanity Fair.y Wuthering Heights, published in the same year as

By 1857, The Society for the Suppression of Vice had initiated

I think the test of obscenity iS this, whether the tendency of the

The American Standard

contemporaries.3 0 The United States government first concerned

secured the arrest of two publishers. In New York he offered his

The defendant, Deboigne M. Bennett, had been convicted for

Early in 1930, the Supreme Judicial Court of Massachusetts

case of United States v. Dennett.5" As director of the Voluntary

ire of many distinguished authors including T.S. Eliot, Ernest

Ulysses had discredited Hicklin, and doubtless most decisions

Parm'nalee v. United States,"' decided in 1940 by the Court of

or artistic talents were not considered, although a statute had

censor in United States v. Two Obscene Books.6 9 When Ernest

the publications in question might arouse lustful desires or en-

The majority opinion by Mr. Justice Reed-scarcely a model of

which was offered for sale at several bookstores in the Times

dealers in a highly unstable position with respect to challenging

tionality of a Michigan obscenity statute which prohibited the

(3) because it prohibited the sale of a book containing obscene

stranger to the court room or the precinct station, Roth was

nounced a verdict of guilty on four counts, and Roth was given

Court of the State of California in and for the County of Los

deserved the full protection of the guarantees, but "implicit in

ments that the statutes in question did not provide reasonably

obscenity of a book or picture." 118 The Chief Justice gave no hint

being so, "the question whether.a particularbook may be sup-

of morality contnl are not coequal, he dissented in Roth. Assert-

The Wake of Roth-Alberts

In the October 1957 Term. the Court in a series of per curiam

The government made a "confession of error" that the test used

motion picture Lady Chatterley's Lover.'1 9 Kingsley Pictures ap-

The Appellate Division of the New York Supreme Court re-

When the Postmaster General moved against the unexpurgated

On March 25, 1960, six parcels containing 405 copies of these

ments: (1) patent offensiveness; and (2) prurient interest appeal.81

of his advertisers were offering to sell obscene material. To predi-

Although Roth had sustained the criminal sanctions of section

Mr. Justice Clark, dissenting, observed that the "majority" had

Refining the Standard

berately set out to achieve the suppression of objectionable pub-

Concurring, Mr. Justice Clark recognized that the majority had

if not wasted, an unfair share of judicial effort and attention.18 0

of its own independent examination of the text,'13 the court

that Tropic of Cancer is obscene within the meaning of section

court, exercising its own independent constitutional appraisal,

as an original Night Stand Book.'8 The prayer of the information

The Supreme Court of Kansas, in a brief opinion by Judge

Defendant Jacobellis exhibited a film entitled Les Amants

that a violation would be committed the moment an individual

of speech, but when it came to concrete cases, obscenity took a

is to avoid the context in which obscenity has constitutional rele-

Justice Frankfurter): "This Court should not permit itself to