Memoirs v. Massachusetts/Dissent White

Mr. Justice WHITE, dissenting.

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the Court held a publication to be obscene if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor. Material of this kind, the Court said, is 'utterly without redeeming social importance' and is therefore unprotected by the First Amendment.

To say that material within the Roth definition of obscenity is nevertheless not obscene if it has some redeeming social value is to reject one of the basic propositions of the Roth case-that such material is not protected because it is inherently and utterly without social value.

If 'social importance' is to be used as the prevailing opinion uses it today, obscene material, however far beyond customary limits of candor, is immune if it has any literary style, if it contains any historical references or language characteristic of a bygone day, or even if it is printed or bound in an interesting way. Well written, especially effective obscenity is protected; the poorly written is vulnerable. And why shouldn't the fact that some people buy and read such material prove its 'social value'?

A fortiori, if the predominant theme of the book appeals to the prurient interest as stated in Roth but the book nevertheless contains here and there a passage descriptive of character, geography or architecture, the book would not be 'obscene' under the social importance test. I had thought that Roth counseled the contrary: that the character of the book is fixed by its predominant theme and is not altered by the presence of minor themes of a different nature. The Roth Court's emphatic reliance on the quotation from Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, means nothing less:

" * *  * There are certain well-defined and narrowly limited      classes of speech, the prevention and punishment of which      have never been thought to raise any Constitutional problem.      These include the lewd and obscene *  *  * . It has been well observed that      such utterances are no essential part of any exposition of      ideas, and are of such slight social value as a step to truth      that any benefit that may be derived from them is clearly      outweighed by the social interest in order and morality *  *      * .' (Emphasis added.)' 354 U.S., at 485, 77 S.Ct., at 1309.

In my view, 'social importance' is not an independent test of obscenity but is relevant only to determining the predominant prurient interest of the material, a determination which the court or the jury will make based on the material itself and all the evidence in the case, expert or otherwise.

Application of the Roth test, as I understand it, necessarily involves the exercise of judgment by legislatures, courts and juries. But this does not mean that there are no limits to what may be done in the name of Roth. Cf. Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793. Roth does not mean that a legislature is free to ban books simply because they deal with sex or because they appeal to the prurient interest. Nor does it mean that if books like Fanny Hill are unprotected, their nonprurient appeal is necessarily lost to the world. Literary style, history, teachings about sex, character description (even of a prostitute) or moral lessons need not come wrapped in such packages. The fact that they do impeaches their claims to immunity from legislative censure.

Finally, it should be remembered that if the publication and sale of Fanny Hill and like books are proscribed, it is not the Constitution that imposes the ban. Censure stems from a legislative act, and legislatures are constitutionally free to embrace such books whenever they wish to do so. But if a State insists on treating Fanny Hill as obscene and forbidding its sale, the First Amendment does not prevent it from doing so.

I would affirm the judgment below.