Memoirs v. Massachusetts/Dissent Clark

Mr. Justice CLARK, dissenting.

It is with regret that I write this dissenting opinion. However, the public should know of the continuous flow of pornographic material reaching this Court and the increasing problem States have in controlling it. Memoirs of a Woman of Pleasure, the book involved here, is typical. I have 'stomached' past cases for almost 10 years without much outcry. Though I am not known to be a purist-or a shrinking violet-this book is too much even for me. It is important that the Court has refused to declare it obscene and thus affords it further circulation. In order to give my remarks the proper setting I have been obliged to portray the book's contents, which causes me embarrassment. However, quotations from typical episodes would so debase our Reports that I will not follow that course.

* Let me first pinpoint the effect of today's holding in the obscenity field. While there is no majority opinion in this case, there are three Justices who import a new test into that laid down in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), namely, that '(a) book cannot be proscribed unless it is found to be utterly without redeeming social value.' I agree with my Brother WHITE that such a condition rejects the basic holding of Roth and gives the smut artist free rein to carry on his dirty business. My vote in that case-which was the deciding one for the majority opinion-was cast solely because the Court declared the test of obscenity to be: 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' I understand that test to include only two constitutional requirements: (1) the book must be judged as a whole, not by its parts; and (2) it must be judged in terms of its appeal to the prurient interest of the average person, applying contemporary community standards. Indeed, obscenity was denoted in Roth as having 'such slight social value as a step to truth that any benefit that may be derived * *  * is clearly outweighed by the social interest in order and morality *  *  * .' At 485, 77 S.Ct. at 1309 (quoting Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)). Moreover, in no subsequent decision of this Court has any 'utterly without redeeming social value' test been suggested, much less expounded. My Brother Harlan in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962), made no reference whatever to such a requirement in Roth. Rather he interpreted Roth as including a test of 'patent offensiveness' besides 'prurient appeal.' Nor did my Brother Brennan in his concurring opinion in Manual Enterprises mention any 'utterly without redeeming social value' test. The first reference to such a test was made by my Brother Brennan in Jacobellis v. State of Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 1680, 12 L.Ed.2d 793 (1964), seven years after Roth. In an opinion joined only by Justice Goldberg, he there wrote: 'Recognizing that the test for obscenity enunciated (in Roth) * *  * is not perfect, we think any substitute would raise equally difficult problems, and we therefore adhere to that standard.' Nevertheless, he proceeded to add:

'We would reiterate, however, our recognition in Roth that     obscenity is excluded from the constitutional protection only      because it is 'utterly without redeeming social importance,'      *  *  * .' This language was then repeated in the converse to announce this non sequitur:

'It follows that material dealing with sex in a manner that     advocates ideas *  *  * or that has literary or scientific or      artistic value or any other form of social importance, may      not be branded as obscenity and denied the constitutional      protection.' At 191, 84 S.Ct., at 1680.

Significantly no opinion in Jacobellis, other than that of my Brother Brennan, mentioned the 'utterly without redeeming social importance' test which he there introduced into our many and varied previous opinions in obscenity cases. Indeed, rather than recognizing the 'utterly without social importance' test, The Chief Justice in his dissent in Jacobellis, which I joined, specifically stated:

'In light of the foregoing, I would reiterate my acceptance     of the rule of the Roth case: Material is obscene and not      constitutionally protected against regulation and      proscription if 'to the average person applying contemporary      community standards, the dominant theme of the material taken      as a whole appeals to prurient interest." (Emphasis added.)      At 202, 84 S.Ct. at 1685.

The Chief Justice and I further asserted that the enforcement of this rule should be committed to the state and federal courts whose judgments made pursuant to the Roth rule we would accept, limiting our review to a consideration of whether there is 'sufficient evidence' in the record to support a finding of obscenity. At 202, 84 S.Ct. at 1685.

Three members of the majority hold that reversal here is necessary solely because their novel 'utterly without redeeming social value' test was not properly interpreted or applied by the Supreme Judicial Court of Massachusetts. Massachusetts now has to retry the case although the 'Findings of Fact, Rulings of Law and Order for Final Decree' of the trial court specifically held that 'this book is 'utterly without redeeming social importance' in the fields of art, literature, science, news or ideas of any social importance and that it is obscene, indecent and impure.' I quote portions of the findings:

'Opinions of experts are admitted in evidence to aid the     Court in its understanding and comprehension of the facts,      but, of course, an expert cannot usurp the function of the      Court. Highly artificial, stylistic writing and an abundance     of metaphorical descriptions are contained in the book but      the conclusions of some experts were pretty well strained in      attempting to justify its claimed literary value: such as the      book preached a moral that sex with love is better than sex      without love, when Fanny's description of her sexual acts,      particularly with the young boy she seduced, in Fanny's      judgment at least, was to the contrary. Careful review of all     the expert testimony has been made, but, the best evidence of      all, is the book itself and it plainly has no value because      of ideas, news or artistic, literary or scientific      attributes. * *  * Nor does it have any other merit. 'This     Court will not adopt a rule of law which states obscenity is      suppressible but well written obscenity is not.' Mr. Justice      Scileppi in People v. Fritch, 13 N.Y.2d 119 (243 N.Y.S.2d 1,      192 N.E.2d 713).' (Emphasis added.) Finding 20.

None of these findings of the trial court were overturned on appeal, although the Supreme Judicial Court of Massachusetts observed in addition that 'the fact that the testimony may indicate this book has some minimal literary value does not mean it is of any social importance. We do not interpret the 'social importance' test as requiring that a book which appeals to prurient interest and is patently offensive must be unqualifiedly worthless before it can be deemed obscene.' My Brother BRENNAN reverses on the basis of this casual statement, despite the specific findings of the trial court. Why, if the statement is erroneous, Brother BRENNAN does not affirm the holding of the trial court which beyond question is correct, one cannot tell. This course has often been followed in other cases.

In my view evidence of social importance is relevant to the determination of the ultimate question of obscenity. But social importance does not constitute a separate and distinct constitutional test. Such evidence must be considered together with evidence that the material in question appeals to prurient interest and is patently offensive. Accordingly, we must first turn to the book here under attack. I repeat that I regret having to depict the sordid episodes of this book.

Memoirs is nothing more than a series of minutely and vividly described sexual episodes. The book starts with Fanny Hill, a young 15-year-old girl, arriving in London to seek household work. She goes to an employment office where through happenstance she meets the mistress of a bawdy house. This takes 10 pages. The remaining 200 pages of the book detail her initiation into various sexual experiences, from a lesbian encounter with a sister prostitute to all sorts and types of sexual debauchery in bawdy houses and as the mistress of a variety of men. This is presented to the reader through an uninterrupted succession of descriptions by Fanny, either as an observer or participant, of sexual adventures so vile that one of the male expert witnesses in the case was hesitant to repeat any one of them in the courtroom. These scenes run the gamut of possible sexual experience such as lesbianism, female masturbation, homosexuality between young boys, the destruction of a maidenhead with consequent gory descriptions, the seduction of a young virgin boy, the flagellation of male by female, and vice versa, followed by fervid sexual engagement, and other abhorrent acts, including over two dozen separate bizarre descriptions of different sexual intercourses between male and female characters. In one sequence four girls in a bawdy house are required in the presence of one another to relate the lurid details of their loss of virginity and their glorification of it. This is followed the same evening by 'publick trials' in which each of the four girls engages in sexual intercourse with a different man while the others witness, with Fanny giving a detailed description of the movement and reaction of each couple.

In each of the sexual scenes the exposed bodies of the participants are described in minute and individual detail. The pubic hair is often used for a background to the most vivid and precise descriptions of the response, condition, size, shape, and color of the sexual organs before, during and after orgasms. There are some short transitory passages between the various sexual episodes, but for the most part they only set the scene and identify the participants for the next orgy, or make smutty reference and comparison to past episodes.

There can be no doubt that the whole purpose of the book is to arouse the prurient interest. Likewise the repetition of sexual episode after episode and the candor with which they are described renders the book 'patently offensive.' These facts weigh heavily in any appraisal of the book's claims to 'redeeming social importance.'

Let us now turn to evidence of the book's alleged social value. While unfortunately the State offered little testimony, the defense called several experts to attest that the book has literary merit and historical value. A careful reading of testimony, however, reveals that it has no substance. For example, the first witness testified:

'I think it is a work of art * *  * it asks for and receives a      literary response *  *  * presented in an orderly and organized      fashion, with a fictional central character, and with a      literary style *  *  *. I think the central character is * *  *      what I call an intellectual *  *  * someone who is extremely      curious about life and who seeks *  *  * to record with      accuracy the details of the external world, physical      sensations, psychological responses *  *  * an empiricist *  *      *. I find that this tells me things * *  * about the 18th      century that I might not otherwise know.'

If a book of art is one that asks for and receives a literary response, Memoirs is no work of art. The sole response evoked by the book is sensual. Nor does the orderly presentation of Memoirs make a difference; it presents nothing but lascivious scenes organized solely to arouse prurient interest and produce sustained erotic tension. Certainly the book's baroque style cannot vitiate the determination of obscenity. From a legal standpoint, we must remember that obscenity is no less obscene though it be expressed in 'elaborate language.' Indeed, the more meticulous its presentation, the more it appeals to the prurient interest. To say that Fanny is an 'intellectual' is an insult to those who travel under that tag. She was nothing but a harlot-a sensualist-exploiting her sexual attractions which she sold for fun, for money, for lodging and keep, for an inheritance, and finally for a husband. If she was curious about life, her curiosity extended only to the pursuit of sexual delight wherever she found it. The book describes nothing in the 'external world' except bawdy houses and debaucheries. As an empiricist, Fanny confines her observations and 'experiments' to sex, with primary attention to depraved, lewd, and deviant practices.

Other experts produced by the defense testified that the book emphasizes the profound 'idea that a sensual passion is only truly experienced when it is associated with the emotion of love' and that the sexual relationship 'can be a wholesome, healthy, experience itself,' whereas in certain modern novels 'the relationship between the sexes is seen as another manifestation of modern decadence, insterility or perversion.' In my view this proves nothing as to social value. The state court properly gave such testimony no probative weight. A rview offered by the defense noted that 'where 'pornography' does not brutalize, it idealizes. The book is, in this sense, an erotic fantasy-and a male fantasy, at that, put into the mind of a woman. The male organ is phenomenal to the point of absurdity.' Finally, it saw the book as 'a minor fantasy, deluding as a guide to conduct, but respectful of our delight in the body * *  * an interesting footnote in the history of the English novel.' These unrelated assertions reveal to me nothing whatever of literary, historical, or social value. Another review called the book 'a great novel * *  * one which turns its convention upside down *  *  * .' Admittedly Cleland did not attempt 'high art' because he was writing 'an erotic novel. He can skip the elevation and get on with the erections.' Fanny's 'downfall' is seen as 'one long delightful swoon into the depths of pleasurable sensation.' Rather than indicating social value in the book, this evidence reveals just the contrary. Another item offered by the defense described Memoirs as being 'widely accredited as the first deliberately dirty novel in English.' However, the reviewer found Fanny to be 'no common harlot. Her 'Memoirs' combine literary grace with a disarming enthusiasm for an activity which is, after all, only human. What is more, she never uses a dirty word.' The short answer to such 'expertise' is that none of these so-called attributes have any value to society. On the contrary, they accentuate the prurient appeal.

Another expert described the book as having 'detectable literary merit' since it reflects 'an effort to interpret a rather complex character * *  * going through a number of very different adventures.' To illustrate his assertion that the 'writing is very skillfully done' this expert pointed to the description of a whore, 'Phoebe, who is 'red-faced, fat and in her early 50's, who waddles into a room.' She doesn't walk in, she waddles in.' Given this standard for 'skillful writing,' it is not surprising that he found the book to have merit.

The remaining experts testified in the same manner, claiming the book to be a 'record of the historical, psychological, (and) social events of the period.' One has but to read the history of the 18th century to disprove this assertion. The story depicts nothing besides the brothels that are present in metropolitan cities in every period of history. One expert noticed 'in this book a tendency away from nakedness during the sexual act which I find an interesting sort of sociological observation' on tastes different from contemporary ones. As additional proof, he marvels that Fanny 'refers constantly to the male sexual organ as an engine * *  * which is pulling you away from the way these events would be described in the 19th or 20th century.' How this adds social value to the book is beyond my comprehension. It only indicates the lengths to which these experts go in their effort to give the book some semblance of value. For example, the ubiquitous descriptions of sexual acts are excused as being necessary in tracing the 'moral progress' of the heroine, and the giving of a silver watch to a servant is found to be 'an odd and interesting custom that I would like to know more about.' This only points up the bankruptcy of Memoirs in both purpose and content, adequately justifying the trial court's finding that it had absolutely no social value.

It is, of course, the duty of the judge or the jury to determine the question of obscenity, viewing the book by contemporary community standards. It can accept the appraisal of experts or discount their testimony in the light of the material itself or other relevant testimony. Socalled 'literary obscenity,' i.e., the use of erotic fantasies of the hard-core type clothed in an engaging literary style has no constitutional protection. If a book deals solely with erotic material in a manner calculated to appeal to the prurient interest, it matters not that it may be expressed in beautiful prose. There are obviously dynamic connections between art and sex-the emotional, intellectual, and physical-but where the former is used solely to promote prurient appeal, it cannot claim constitutional immunity. Cleland uses this technique to promote the prurient appeal of Memoirs. It is true that Fanny's perverse experiences finally bring from her the observation that 'the heights of (sexual) enjoyment cannot be achieved until true affection prepares the bed of passion.' But this merely emphasizes that sex, wherever and however found, remains the sole theme of Memoirs. In my view, the book's repeated and unrelieved appeals to the prurient interest of the average person leave it utterly without redeeming social importance.

In his separate concurrence, by Brother DOUGLAS asserts there is no proof that obscenity produces anti-social conduct. I had thought that this question was foreclosed by the determination in Roth that obscenity was not protected by the First Amendment. I find it necessary to comment upon Brother DOUGLAS' views, however, because of the new requirement engrafted upon Roth by Brother BRENNAN, i.e., that material which 'appeals to a prurient interest' and which is 'patently offensive' may still not be suppressed unless it is 'utterly without redeeming social value.' The question of anti-social effect thus becomes relevant to the more limited question of social value. Brother BRENNAN indicates that the social importance criterion encompasses only such things as the artistic, literary, and historical qualities of the material. But the phrasing of the 'utterly without redeeming social value' test suggests that other evidence must be considered. To say that social value may 'redeem' implies that courts must balance alleged esthetic merit against the harmful consequences that may flow from pornography. Whatever the scope of the social value criterion-which need not be defined with precision of fact will weigh evidence of the material's influence in causing deviant or criminal conduct, particularly sex crimes, as well as its effect upon the mental, moral, and physical health of the average person. Brother DOUGLAS' view as to the lack of proof in this area is not so firmly held among behavioral scientists as he would lead us to believe. For this reason, I should mention that there is a division of thought on the correlation between obscenity and socially deleterious behavior.

Psychological and physiological studies clearly indicate that many persons become sexually aroused from reading obscene material. While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior or other antisocial conduct. For example, Dr. George W. Henry of Cornell University has expressed the opinion that obscenity, with its exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person. A number of sociologists think that this material may have adverse effects upon individual mental health, with potentially disruptive consequences for the community.

In addition, there is persuasive evidence from criminologists and police officials. Inspector Herbert Case of the Detroit Police Department contends that sex murder cases are invariably tied to some form of obscene literature. And the Director of the Federal Bureau of Investigation, J. Edgar Hoover, has repeatedly emphasized that pornography is associated with an overwhelmingly large number of sex crimes. Again, while the correlation betweenpossession of obscenity and deviant behavior has not been conclusively established, the files of our law enforcement agencies contain many reports of persons who patterned their criminal conduct after behavior depicted in obscene material.

The clergy are also outspoken in their belief that pornography encourages violence, degeneracy and sexual misconduct. In a speech reported by the New York Journal-American August 7, 1964, Cardinal Spellman particularly stressed the direct influence obscenity has on immature persons. These and related views have been confirmed by practical experience. After years of service with the West London Mission, Rev. Donald Soper found that pornography was a primary cause of prostitution. Rolph, Does Pornography Matter? (1961), pp. 47-48.

Congress and the legislatures of every State have enacted measures to restrict the distribution of erotic and pornographic material, justifying these controls by reference to evidence that antisocial behavior may result in part from reading obscenity. Likewise, upon another trial, the parties may offer this sort of evidence along with other 'social value' characteristics that they attribute to the book.

But this is not all that Massachusetts courts might consider. I believe it can be established that the book 'was commercially exploited for the sake of prurient appeal, to the exclusion of all other values' and should therefore be declared obscene under the test of commercial exploitation announced today in Ginzburg and Mishkin.

As I have stated, my study of Memoirs leads me to think that it has no conceivable 'social importance.' The author's obsession with sex, his minute descriptions of phalli, and his repetitious accounts of bawdy sexual experiences and deviant sexual behavior indicate the book was designed solely to appeal to prurient interests. In addition, the record before the Court contains extrinsic evidence tending to show that the publisher was fully aware that the book attracted readers desirous of vicarious sexual pleasure, and sought to profit solely from its prurient appeal. The publisher's 'Introduction' recites that Cleland, a 'never-do-well bohemian,' wrote the book in 1749 to make a quick 20 guineas. Thereafter, various publications of the book, often 'embellished with fresh inflammatory details' and 'highly exaggerated illustrations,' appeared in 'surreptitious circulation.' Indeed, the cover of Memoirs tempts the reader with the announcement that the sale of the book has finally been permitted 'after 214 years of suppression.' Although written in a sophisticated tone, the 'Introduction' repeatedly informs the reader that he may expect graphic descriptions of genitals and sexual exploits. For instance, it states:

'Here and there, Cleland's descriptions of lovemaking are     marred by what perhaps could be best described as his      adherence to the 'longitudinal fallacy'-the formidable bodily      equipment of his most accomplished lovers is apt to be described with quite      unnecessary relish *  *  * .'

Many other passages in the 'Introduction' similarly reflect the publisher's 'own evaluation' of the book's nature. The excerpt printed on the jacket of the hardcover edition is typical:

'Memoirs of a Woman of Pleasure is the product of a     luxourious and licentious, but not a commercially degraded,      era. * *  * For all its abounding improprieties, his priapic      novel is not a vulgar book. It treats of pleasure as the aim     and end of existence, and of sexual satisfaction as the      epitome of pleasure, but does so in a style that, despite its      inflammatory subject, never stoops to a gross or unbecoming      word.'

Cleland apparently wrote only one other book, a sequel called Memoirs of a Cox-comb, published by Lancer Books, Inc. The 'Introduction' to that book labels Memoirs of a Woman of Pleasure as 'the most sensational piece of erotica in English literature.' I daresay that this fact alone explains why G. P. Putnam's Sons published this obscenity-preying upon prurient and carnal proclivities for its own pecuniary advantage. I would affirm the judgment.