Memoirs v. Massachusetts/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

Memoirs of a Woman of Pleasure, or, as it is often titled, Fanny Hill, concededly is an erotic novel. It was first published in about 1749 and has endured to this date, despite periodic efforts to suppress it. The book relates the adventures of a young girl who becomes a prostitute in London. At the end, she abandons that life and marries her first lover, observing:

'Thus, at length, I got sung into port, where, in the bosom     of virtue, I gather'd the only uncorrupt sweets: where,      looking back on the course of vice I had run, and comparing      its infamous blandishments with the infinitely superior joys      of innocence, I could not help pitying, even in point of      taste, those who, immers'd in gross sensuality, are      insensible to the so delicate charms of VIRTUE, than which      even PLEASURE has not a greater friend, nor than VICE a      greater enemy. Thus temperance makes men lords over those     pleasures that intemperance enslaves them to: the one, parent      of health, vigour, fertility, cheerfulness, and every other      desirable good of life; the other, of diseases, debility,      barrenness, self-loathing, with only every evil incident to      human nature.

' * *  * The paths of Vice are sometimes strew'd with roses,      but then they are for ever infamous for many a thorn, for      many a cankerworm: those of Virtue are strew'd with roses      purely, and those eternally unfading ones.'

In 1963, an American publishing house undertook the publication of Memoirs. The record indicates that an unusually large number of orders were placed by universities and libraries; the Library of Congress requested the right to translate the book into Braille. But the Commonwealth of Massachusetts instituted the suit that ultimately found its way here, praying that the book be declared obscene so that the citizens of Massachusetts might be spared the necessity of determining for themselves whether or not to read it.

The courts of Massachusetts found the book 'obscene' and upheld its suppression. This Court reverses, the prevailing opinion having seized upon language in the opinion of the Massachusetts Supreme Judicial Court in which it is candidly admitted that Fanny Hill has at least 'some minimal literary value.' I do not believe that the Court should decide this case on so disingenuous a basis as this. I base my vote to reverse on my view that the First Amendment does not permit the censorship of expression not brigaded with illegal action. But even applying the prevailing view of the Roth test, reversal is compelled by this record which makes clear that Fanny Hill is not 'obscene.' The prosecution made virtually no effort to prove that this book is 'utterly without redeeming social importance.' The defense, on the other hand, introduced considerable and impressive testimony to the effect that this was a work of literary, historical, and social importance.

We are judges, not literary experts or historians or philosophers. We are not competent to render an independent judgment as to the worth of this or any other book, except in our capacity as private citizens. I would pair my Brother CLARK on Fanny Hill with the Universalist minister I quote in the Appendix. If there is to be censorship, the wisdom of experts on such matters as literary merit and historical significance must be evaluated. On this record, the Court has no choice but to reverse the judgment of the Massachusetts Supreme Judicial Court, irrespective of whether we would include Fanny Hill in our own libraries.

Four of the seven Justices of the Massachusetts Supreme Judicial Court conclude that Fanny Hill is obscene. 349 Mass. 69, 206 N.E.2d 403. Four of the seven judges of the New York Court of Appeals conclude that it is not obscene. Larkin v. G. P. Putnam's Sons, 14 N.Y.2d 399, 252 N.Y.S.2d 71, 200 N.E.2d 760. To outlaw the book on such a voting record would be to let majorities rule where minorities were thought to be supreme. The Constitution forbids abridgment of 'freedom of speech, or of the press.' Censorship is the most notorious form of abridgment. It substitutes majority rule where minority tastes or viewpoints were to be tolerated.

It is to me inexplicable how a book that concededly has social worth can nonetheless be banned because of the manner in which it is advertised and sold. However florid its cover, whatever the pitch of its advertisements, the contents remain the same.

Every time an obscenity case is to be argued here, my office is flooded with letters and postal cards urging me to protect the community or the Nation by striking down the publication. The messages are often identical even down to commas and semicolons. The inference is irresistible that they were all copied from a school or church blackboard. Dozens of postal cards often are mailed from the same precinct. The drives are incessant and the pressures are great. Happily we do not bow to them. I mention them only to emphasize the lack of popular understanding of our constitutional system. Publications and utterances were made immune from majoritarian control by the First Amendment, applicable to the States by reason of the Fourteenth. No exceptions were made, not even for obscenity. The Court's contrary conclusion in Roth, where obscenity was found to be 'outside' the First Amendment, is without justification.

The extent to which the publication of 'obscenity' was a crime at common law is unclear. It is generally agreed that the first reported case involving obscene conduct is The King v. Sir Charles Sedley. Publication of obscene literature, at first thought to be the exclusive concern of the ecclesiastical courts, was not held to constitute an indictable offense until 1727. A later case involved the publication of an 'obscene and impious libel' (a bawdy parody of Pope's 'Essay on Man') by a member of the House of Commons. On the basis of these few cases, one cannot say that the common-law doctrines with regard to publication of obscenity were anything but uncertain. 'There is no definition of the term. There is no basis of identification. There is no unity in describing what is obscene literature, or in prosecuting it. There is little more than the ability to smell it.' Alpert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40, 47 (1938).

But even if the common law had been more fully developed at the time of the adoption of the First Amendment, we would not be justified in assuming that the Amendment left the common law unscathed. In Bridges v. State of California, 314 U.S. 252, 264, 62 S.Ct. 190, 194, 86 L.Ed. 192, we said:

'(T)o assume that English common law in this field became     ours is to deny the generally accepted historical belief that      'one of the objects of the Revolution was to get rid of the      English common law on liberty of speech an of the press.'      Schofield, Freedom of the Press in the United States, 9      Publications Amer.Sociol.Soc. 67, 76.

'More specifically, it is to forget the environment in which     the First Amendment was ratified. In presenting the proposals     which were later embodied in the Bill of Rights, James      Madison, the leader in the preparation of the First      Amendment, said: 'Although I know whenever the great rights,      the trial by jury, freedom of the press, or liberty of      conscience, come in question in that body (Parliament), the invasion of them is resisted by able advocates, yet their      Magna Charta does not contain any one provision for the      security of those rights, respecting which the people of      America are most alarmed. The freedom of the press and rights     of conscience, those choicest privileges of the people, are      unguarded in the British Constitution."

And see Grosjean v. American Press Co., 297 U.S. 233, 248 249, 56 S.Ct. 444, 448-449, 80 L.Ed. 660.

It is true, as the Court observed in Roth, that obscenity laws appeared on the books of a handful of States at the time the First Amendment was adopted. But the First Amendment was, until the adoption of the Fourteenth, a restraint only upon federal power. Moreover, there is an absence of any federal cases or laws relative to obscenity in the period immediately after the adoption of the First Amendment. Congress passed no legislation relating to obscenity until the middle of the nineteenth century. Neither reason nor history warrants exclusion of any particular class of expression from the protection of the First Amendment on nothing more than a judgment that it is utterly without merit. We faced the difficult questions the First Amendment poses with regard to libel in New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686, where we recognized that 'libel can claim no talismanic immunity from constitutional limitations.' We ought not to permit fictionalized assertions of constitutional history to obscure those questions here. Were the Court to undertake that inquiry, it would be unable, in my opinion, to escape the conclusion that no interest of society with regard to suppression of 'obscene' literature could override the First Amendment to justify censorship.

The censor is always quick to justify his function in terms that are protective of society. But the First Amendment, written in terms that are absolute, deprives the States of any power to pass on the value, the propriety, or the morality of a particular expression. Cf. Kingsley Int'l Pictures Corp. v. Regents of University, 360 U.S. 684, 688-689, 79 S.Ct. 1362, 1365-1366, 3 L.Ed.2d 1512; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098. Perhaps the most frequently assigned justication for censorship is the belief that erotica produce antisocial sexual conduct. But that relationship has yet to be proven. Indeed, if one were to make judgments on the basis of speculation, one might guess that literature of the most pornographic sort would, in many cases, provide a substitute-not a stimulus-for antisocial sexual conduct. See Murphy, The Value of Pornography, 10 Wayne L.Rev. 655, 661 and n. 19 (1964). As I read the First Amendment, judges cannot gear the literary diet of an entire nation to whatever tepid stuff is incapable of triggering the most demented mind. The First Amendment demands more than a horrible example or two of the perpetrator of a crime of sexual violence, in whose pocket is found a pornographic book, before it allows the Nation to be saddled with a regime of censorship.

Whatever may be the reach of the power to regulate conduct, I stand by my view in Roth v. United States, supra, that the First Amendment leaves no power in government over expression of ideas.

APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING.

DR. PEALE AND FANNY HILL.

An Address by Rev. John R. Graham, First Universalist Church of Denver.

December 1965.

At the present point in the twentieth century, it seems to me that there are two books which symbolize the human quest for what is moral. Sin, Sex and Self-Control by Dr. Norman Vincent Peale, the well-known clergyman of New York City, portrays the struggle of contemporary middle-class society to arrive at a means of stabilizing behavior patterns. At the same time, there is a disturbing book being sold in the same stores with Dr. Peale's volume. It is a seventeenth century English novel by John Cleland and it is known as Fanny Hill: The Memoirs of a Woman of Pleasure.

Quickly, it must be admitted that it appears that the two books have very little in common. One was written in a day of scientific and technological sophistication, while the other is over two hundred years old. One is acclaimed in the pulpit, while the other is protested before the United States Supreme Court. Sin, Sex and Self-Control is authored by a Christian pastor, while Fanny Hill represents thoughts and experiences of a common prostitute. As far as the general public seems to be concerned, one is moral and the other is hopelessly immoral. While Dr. Peale is attempting to redeem the society, most people believe that Fanny Hill can only serve as another instance in an overall trend toward an immoral social order. Most parents would be pleased to find their children reading a book by Dr. Peale, but I am afraid that the same parents would be sorely distressed to discover a copy of Fanny Hill among the school books of their offspring.

Although one would not expect to find very many similarities between the thoughts of a pastor and those of a prostitute, the subject matter of the two books is, in many ways, strangely similar. While the contents are radically different, the concerns are the same. Both authors deal with human experience. They are concerned with people and what happens to them in the world in which they live each day. But most significantly of all, both books deal with the age-old question of 'What is moral?' I readily admit that this concern with the moral is more obvious in Dr. Peale's book than it is in the one by John Cleland. The search for the moral in Fanny Hill is clothed in erotic passages which seem to equate morality with debauchery as far as the general public is concerned. At the same time, Dr. Peale's book is punctuated with such noble terms as 'truth,' 'love,' and 'honesty.'

These two books are not very important in themselves. They may or may not be great literature. Whether they will survive through the centuries to come is a question, although John Cleland has an historical edge on Norman Vincent Peale! However, in a symbolic way they do represent the struggle of the moral quest and for this reason they are important.

Dr. Peale begins his book with an analysis of contemporary society in terms of the moral disorder which is more than obvious today. He readily admits that the traditional Judeo-Christian standards of conduct and behavior no longer serve as strong and forceful guides. He writes:

'For more than forty years, ever since my ordination, I had     been preaching that if a person would surrender to Jesus      Christ and adopt strong affirmative attitudes toward life he      would be able to live abundantly and triumphantly. I was     still absolutely convinced that this was true. But I was also     bleakly aware that the whole trend in the seventh decade of      the twentieth century seemed to be away from the principles      and practices of religion-not toward them.' (Page 1.)

Dr. Peale then reflects on the various changes that have taken place in our day and suggests that although he is less than enthusiastic about the loss of allegiance to religion, he is, nevertheless, willing to recognize that one cannot live by illusion.

After much struggle, Dr. Peale then says that he was able to develop a new perspective on the current moral dilemma of our times. What first appeared to be disaster was really opportunity. Such an idea, coming from him, should not be very surprising, since he is more or less devoted to the concept of 'positive thinking!' He concludes that our society should welcome the fact that the old external authorities have fallen. He does not believe that individuals should ever be coerced into certain patterns of behavior.

According to Dr. Peale, we live in a day of challenge. Our society has longed for a time when individuals would be disciplined by self-control, rather than being motivated by external compunction. Bravely and forthrightly, he announces that the time has now come when self-control can and must replace external authority. He is quick to add that the values contained in the Judeo-Christian tradition and 'the American way of life' must never be abandoned for they emanate from the wellsprings of 'Truth.' What has previously been only an external force must now be internalized by individuals.

In many ways, Dr. Peale's analysis of the social situation and the solution he offers for assisting the individual to stand against the pressures of the times, come very close to the views of Sigmund Freud. He felt that society could and would corrupt the individual and, as a result, the only sure defense was a strong super-ego or conscience. This is precisely what Dr. Peale recommends.

Interestingly enough John Cleland, in Fanny Hill, is concerned with the same issues. Although the question of moral behavior is presented more subtly in his book, the problem with which he deals is identical. There are those who contend that the book is wholly without redeeming social importance. They feel that it appeals only to prurient interests.

I firmly believe that Fanny Hill is a moral, rather than an immoral, piece of literature. In fact, I will go as far as to suggest that it represents a more significant view of morality than is represented by Dr. Peale's book Sin, Sex and Self-Control. As is Dr. Peale, Cleland is concerned with the nature of the society and the relationship of the individual to it. Fanny Hill appears to me to be an allegory. In th story, the immoral becomes the moral and the unethical emerges as the ethical. Nothing is more distressing than to discover that what is commonly considered to be evil may, in reality, demonstrate characteristics of love and concern.

There is real irony in the fact that Fanny Hill, a rather naive young girl who becomes a prostitute, finds warmth, understanding and the meaning of love and faithfulness amid surroundings and situations which the society, as a whole, condemns as debased and depraved. The world outside the brothel afirms its faith in the dignity of man, but people are often treated as worthless and unimportant creatures. However, within the world of prostitution, Fanny Hill finds friendship, understanding, respect and is treated as a person of value. When her absent lover returns, she is not a lost girl of the gutter. One perceives that she is a whole and healthy person who has discovered the ability to love and be loved in a brothel.

I think Cleland is suggesting that one must be cautious about what is condemned and what is held in honor. From Dr. Peale's viewpoint, the story of Fanny Hill is a tragedy because she did not demonstrate self-control. She refused to internalize the values inherent in the Judeo-Christian tradition andthe catalog of sexual scenes in the book, fifty-two in all, are a symbol of the debased individual and the society in which he lives.

Dr. Peale and others, would be correct in saying that Fanny Hill did not demonstrate self-control. She did, however, come to appreciate the value of self-expression. At no time were her 'clients' looked upon as a means to an end. She tried and did understand them and she was concerned about them as persons. When her lover, Charles, returned she was not filled with guilt and remorse. She accepted herself as she was and was able to offer him her love and devotion.

I have a feeling that many people fear the book Fanny Hill, not because of its sexual scenes, but because the author raises serious question with the issue of what is moral and what is immoral. He takes exception to the idea that repression and restraint create moral individuals. He develops the thought that self-expression is more human than self-control. And he dares to suggest that, in a situation which society calls immoral and debased, a genuine love and respect for life and for people, as human beings, can develop. Far from glorifying vice, John Cleland points an accusing finger at the individual who is so certain as to what it means to be a moral man.

There are those who will quickly say that this 'message' will be missed by the average person who reads Fanny Hill. But this is precisely the point. We become so accustomed to pre-judging what is ethical and what is immoral that we are unable to recognize that what we accept as good may be nothing less than evil because it harms people.

I know of no book which more beautifully describes meaningful relationships between a man and a woman than does Fanny Hill. In many marriages, men use a woman for sexual gratification and otherwise, as well as vice versa. But this is not he case in the story of Fanny Hill. The point is simply that there are many, many ways in which we hurt, injure and degrade people that are far worse than either being or visiting a prostitute. We do this all in the name of morality.

At the same time that Dr. Peale is concerned with sick people, John Cleland attempts to describe healthy ones. Fanny Hill is a more modern and certainly more valuable book than Sin, Sex and Self-Control because the author does not tell us how to behave, but attempts to help us understand ourselves and the nature of love and understanding in being related to other persons. Dr. Peale's writing emphasizes the most useful commodities available to man-self-centeredness and self-control. John Cleland suggests that self-understanding and self-expression may not be as popular, but they are more humane.

The 'Peale approach' to life breeds contentment, for it suggests that each one of us can be certain as to what is good and true. Standards for thinking and behavior are available and all we need to do is appropriate them for our use. In a day when life is marked by chaos and confusion, this viewpoint offers much in the way of comfort and satisfaction. There is only one trouble with it, however, and that is that it results in conformity, rigid behavior and a lack of understanding. It results in personality configurations that are marked with an intense interest in propositions about Truth and Right but, at the same time, build a wall against people. Such an attitude creates certainty, but there is little warmth. The idea develops that there are 'my kind of people' and they are 'right.' It forces us to degrade, dismiss and ultimately attempt to destroy anyone who does not agree with us.

To be alive and sensitive to life means that we have to choose what we want. There is no possible way for a person to be a slave and free at the same time. Self-control and self-expression are at opposite ends of the continuum. As much as some persons would like to have both, it is necessary to make a choice, since restraint and openness are contradictory qualities. To internalize external values denies the possibility of self-expression. We must decide what we want, when it comes to conformity and creativity. If we want people to behave in a structured and predictable manner, then the ideal of creativity cannot have meaning.

Long ago Plato said, 'What is honored in a country * *  * will be cultivated there.' More and more, we reward people for thinking alike and as a result, we become frightened, beyond belief, of those who take exception to the current consensus. If our society collapses, it will not be because people read a book such as Fanny Hill. It will fall, because we will have refused to understand it. Decadence, in a nation or an individual, arises not because there is a lack of ability to distinguish between morality and immorality, but because the opportunity for self-expression has been so controlled or strangled that the society or the person becomes a robot.

The issue which a Dr. Peale will never understand, because he is a victim of it himself and which John Cleland describes with brilliant clarity and sensitive persuasion is that until we learn to respect ourselves enough that we leave each other alone, we cannot discover the meaning of morality.

Dr. Peale and Fanny Hill offer the two basic choices open to man. Man is free to choose an autocentric existence which is marked by freedom from ambiguity and responsibility. Autocentricity presupposes a 'closed world' where life is predetermined and animal-like. In contrast to this view, there is the allocentric outlook which is marked by an 'open encounter of the total person with the world.' Growth, spontaneity and expression are the goals of such an existence.

Dr. Peale epitomizes the autocentric approach. He offers 'warm blankets' and comfortable 'cocoons' for those who want to lose their humanity. On the other hand, Fanny Hill represents the allocentric viewpoint which posits the possibility for man to raise his sights, stretch his imagination, cultivate his sensitiveness as well as deepen ad broaden his perspectives. In discussing the autocentric idea, Floyd W. Matson writes,

'Human beings conditioned to apathy and affluence may well     prefer this regressive path of least resistance with its      promise of escape from freedom and an end to striving. But we     know at least that it is open to them to choose otherwise: in      a word, to choose themselves.' (The Broken Image, page 193.)

In a day when people are overly sensitive in drawing lines between the good and the bad, the right and the wrong, as well as the true and the false, it seems to me that there is great irony in the availability of a book such as Fanny Hill. Prostitution may be the oldest profession in the world, but we are ever faced with a question which is becoming more and more disturbing: 'What does a prostitute look like?'

Mr. Justice CLARK, dissenting.