Obscenity, Pornography and Censorship Author(s): Thomas R. Mulroy Source: American Bar Association Journal, Vol. 49, No.

9 (SEPTEMBER 1963), pp. 869-875 Published by: American Bar Association Stable URL: http://www.jstor.org/stable/25722510 . Accessed: 02/05/2013 12:13
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Obscenity,

Pornography
Although involving
area remain uncertain.

and
the Supreme and obscenity

Censorship
Court
recent

has decided half a dozen recent cases lines in this the legal guide pornography,
Mulroy examines the Court's pro

Mr.

nouncements and points out that, even if the Court is moving a test that would ban only so-called "hard-core" pornography, still no judicially approved definition of that term.

toward there is

by Thomas R. Mulroy

of the Illinois Bar (Chicago)

Censorship

in the

abstractis

ton, who helped win a battle against book censorship three centuries ago, asserted that there could be no good
all censors and are "either or ignorant, basely im

abhorrent under our sacred system of free speech and free press. Indeed, no one really admires a censor. JohnMil

Beginning in 1925 with Gitlow V. New York, 268 U.S. 652, theCourt held that the guarantees of liberty of speech and press under the First Amendment were safeguarded by the due process clause of the Fourteenth Amendment
from invasion by state action.

351). This should be. Justice

tablish that the film was obscene (page is, it seems to me, as it

Definition of Obscenity

Schaefer's

censors, his immortal blast being that

remiss, pecuni

And

in 1952

the Court

ruled

in

perious, ary".

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, that motion pictures were protected by the First and Fourteenth
because movies are Amendments a

Obscenity was then, as now, the principal basis for rejecting a movie, but up to this time there had been no meaningful standard for determining
when a movie was "obscene". This def

But because the task is onerous or the cause unpopular does not justify retreat?particularly in the light of the firm clarity of the repeated conclusion of the United States Supreme Court
that tures censorship is constitutional. of obscene motion pic

might conceivably be subject to com they may munity control because

"possess a greater capacity for evil,

significant medium for the communi cation of ideas. Then the Court went out of its way to remark that movies

inition developed by Justice Schaefer may be compared with the criteria fixed by the Supreme Court of the United States in Roth v. United States, 354 U.S. 476:
that a motion We therefore, hold, ... con is obscene if, when picture as a whole, its calculated sidered pur effect is substantially pose or dominant if the to arouse and sexual desires, is so great as average normal, person] or other to outweigh artistic whatever merits the film may possess.1

Just what
Are "prior

is obscenity?
restraints" lawful as to

particularly among the youth of a com

munity, sion". than other modes of expres

films? And, if so, why are movie ex hibitors deprived of the constitutional protection accorded newspapers in this
area ?

probability of this effect [upon the

are the current judicial trends vis-?-vis the public welfare? What Cases Background In 1915 the Supreme Court of the United States held inMutual Film Cor poration V. Industrial Commission of Ohio, 236 U.S. 230, thatmovies were not entitled to the safeguards protec tive of newspapers because they were not to be regarded as an organ of public opinion.

Two years later came Mr. Justice Schaefer's opinion in American Civil Liberties Union v. Chicago, 3 111. 2d 329.

ing that a censored picture was not obscene. Justice Schaefer shifted the burden from the exhibitor and placed it squarely on the censor board to es

ordinance were too vague and whether it was still appropriate to require the exhibitor to carry the burden of show

Justice Schaefer was in virgin territory in determining whether the standards of the Chicago censorship

and "nor 1. The terms "average person" mal person" are also used in the Roth case, 354 are the criteria for de U.S. 476, 489. What termining who is, or what the reactions would be of, a "normal, average person"? This issue, be the subject could alone, should) (and suffice here to matter of an article. It must 70-73 of Censorship refer to pages of Ob Stand Constitutional scenity: The Developing we may ards, 45 Minn. L.R. 5 (1960). Of this it clear that be sure: the courts have made the impact of questionable material upon per or sexually im sons particularly susceptible is not controlling. Butler, 352 U.S. 380, mature 172 383 (1957). See also Paramount Pictures, The Meta 69 (1959), and Kalven, F. Supp. Supreme Law the Obscenity, of of physics Court Review 7 (1960).

September,

1963

Vol.

49

869

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Obscenity,

Pornography

and Censorship "The Game of Love" a background Against

we cases, turn once to Times

The Chicago ordinance was upheld. We next turn to Roth V. United States, decided by the U.S. Supreme Court in 1957 and actually involving two cases, one from California (the and the other from case) New York. The defendants were both dealers in erotic books. Mr. Justice Brennan, in upholding Alberts both the California and federal ob scenity laws, stated that "implicit in the history of the First Amendment is the rejection of obscenity as utterly
redeeming social importance".

Case of these defi

to motion Corpora

Justice Jackson's indictment of certain

per curiam decisions: Court's concurring ... one-word decision of re three

nitions, picture

again Film

tion v. City of Chicago involving the movie "The Game of Love", which had been censored in Chicago. States District Judge Perry, after viewing the picture with an ad visory jury of twelve persons, found it to be obscene (139 F. Supp. 837 United

The verses

highly respected a single case. owed fession to an those

judgments . . . courts I and more think the than

[by citing] this Court pro legal reference [Brownell

courts

something inapplicable

v. Singer, 347 U.S. 403 (1954)].

decision

without

The

Supreme

Court's

Definition
In Roth mining
"... son,

the Court's test for deter obscenity is darkly opaque:

to the average per contemporary commun

whether applying

bandy about the word "prurient", the Court sought to spare us a trip to the dictionary by setting forth various def initions. You may take your pick of these: "Itching; longing; uneasy with desire . . . Quality of being prurient", (page 487). Indeed, the only really understand able definition given by the Court is this excerpt from a draft of theAmer ican Law Institute'sModel Penal Code:
interest [Prurient is] a morbid interest in nudity, cretion, yond [which] customary goes shameful sex, or

ity standards, the dominant theme of the material taken as a whole appeals to prurient interest" (page 489). Since the average person does not

On appeal, the Court of Appeals affirmed, applying the Schaefer test, gents of the University of the State of after detailing the incidents in the New York, 360 U. S. 684, where the film which led to the observation that Court reversed the New York State itwas "supercharged with a current of censor board which had denied a per lewdness generated by a series of illicit mit for the film "Lady Chatterley's sexual intimacies and acts" (244 F. 2d Lover" because it presented adultery 432, 436). as a proper of behavior. pattern I cannot leave this case without quot The Court felt that the censors had ing this observation by Judge Schnack aborted the free expression of an idea, enberg, one of the truly pungent char however distasteful itmight be to the acterizations in the legal lore of ob moral standards of the community, scenity : the Constitution "protects that saying of the opinion that adultery The narrative is graphically pictured advocacy
with ual and

(1956)).

Lover" "Lady Chatterley's we turn to the 1959 case of Next Kingsley International Pictures V. Re

suggested but meaningfully

thus, by the very emphasized.

omitted those sex except nothing are plainly consummations which fact of omission,

may

sometimes

be

proper,

no

less

than

omitted

advocacy tax" (page 689).

of socialism

or

the single

However, versed, without

the

Supreme oral

Court in

re a

The Court9s Refusal To View the Film

The distressing element of Kingsley Pictures is that the Court declined to view the picture. Mr. Justice Black said that
an and

argument,

or ex be . . .

substantially limits of candor

had been consolidated with Roth. Reliance on the single authority of Roth in reversing Times Film is sur prising. Roth did not involve a prior
restraint, for

per curiam opinion in which itmerely cited theAlberts case (Times Film Cor poration v. City of Chicago, 355 U. S. 35). It will be remembered thatAlberts

Such tion fixed

individualized be

determina

cannot

guided by reasonably certain Accord standards. States can moving pic in know possibly fair degree of cer be done in nor

ingly, neither ture makers advance, with tainty, what ing.

[page 487]. In commenting upon the definition of obscenity in Roth, Professor Harry Kalven, Jr., of the University of Chi cago Law School, surely one of the three leading commentators in the na tion on the law of obscenity, has said:
The peals obscene, then, to an interest is that which in the ap

it did not involve a motion picture as to which the Court had in Burstyn given some indication that different standards might apply. Furthermore, in Roth the Court upheld the convic tion under the California obscenity
law.

example,

and

above

all

any can or cannot

the field ofmovie making and exhibit But what about the scores of other due process cases which find their way to the Court? These require, and re ceive, a case-by-case application of that

obscene,

[page 15, The Supreme Court Review, I960]. It is interesting to compare the defi nition in Roth with that of Justice Schaefer
Union.

Now, I am not dismayed by the reversal, qua reversal, but simply by the failure of the Court to say why the movie was not obscene?by its failure to light at least one beacon for the future guidance of courts and cen
sor bodies.

clause to all varieties of situations? whether a confession has been coerced so as to invalidate the conviction; whether the trial was unfairly con ducted for want misconduct

in American

Civil Liberties

empirical reversal of a case, without comment, brings to mind Mr. This

of counsel; whether the prosecutor vitiated by the fairness of the trial; whether an in flamed state of public opinion had un dermined the right to due process. All

870

American

Bar Association

Journal

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Obscenity, of these, and many more, require the court to inquire into the particulars of each situation, into the mass of ger
mane evidence.

Pornography

and Censorship

It is not for this court to limit the State in its selection of the remedy it
deems a most effective to cope with such problem a course, strictures [obscenity], of showing individual absent, unreasonable of

What,
They, too,

then, of
involve

obscenity
due process.

cases?

on

Justice Frankfurter severely chided the Court in Kingsley Pictures for re fusing to view the film, for striking down the New York statute
whether to escape the task of deciding a particular is entitled picture to the protection of expression under .... The Amendment the Fourteenth in order is onerous it does ing as demand and exacting, in the utmost discipline control of per the severest But by it cannot disavowing be es that even

from its application sulting lar circumstances.

re liberty in particu

Chief JusticeWarren, in a scholarly thirty-page dissent, traced the history of free speech with particular regard to the abhorrence of the Court toward
prior restraints.

task

But in 1963 the Supreme Court, in a rather grudging but nonetheless clear reaffirmation of its conclusion in Times

objectivity, sonal predilections. caped, not

Film, said: Nothing in the Court's opinion in

Times Film

such is the nature of our task [360 U.S. 696, 697]. Mr. Justice Harlan expressed strong views to the same effect in both Kings ley, 360 U. S. 684, 708, and Roth, 354 U.S. 476, 498. Prior
Now

365 U. S. 43, is inconsistentwith the

Court's favor traditional toward prior attitude restraints of of dis ex

Corporation

v.

Chicago,

The pression. to the Court a

only question in that case was

tendered whether

Thomas R. Mulroy is Chairman of the Motion Picture Appeal Board of the City of Chicago in addition to his service as President of the mem Crime A Commission. Chicago ber of a Chicago law firm, he is a 1928 graduate of the University of Chicago Law School. In conclusion, Judge Hastings
not tion cipal provide for ad carte hoc, blanche

was un restraint prior necessarily all circumstances. constitutional under to hold per restraints prior did se, the Court

Restraints
we come to two recent deci

In declining unconstitutional not uphold specific motion such

permit without submission of the film. He lost in the district court and in the court of appeals (180 F. Supp. 843 Here the single issue before the Su preme Court was whether the Chicago
ordinance was invalid as a

he filed suit seeking a mandatory in junction ordering the issuance of a

in the second Times Film case, 365 U.S. 43, the exhibitor de clined to submit the movie for review to the censors. When denied a permit,

sions which met head-on the questions of prior restraint and due process with respect to the Chicago ordinance. In 1960

the holding was expressly confined to

pictures. [Bantam Books, Inc.

of any the constitutionality restraint. Furthermore,

said:

The recent Times Film decision does

authoriza muni re-em We unfair, procedures. abortive

v. Sullivan, 372 U.S. 58, 70 (1963); italics added in final sentence.] Due Process and

has

phasize that it does hold that a city

a system of to impose the power on movie restraints distribution, prior so properly. if it does pro Chicago's as followed in the case at bar, cedure, is lacking procedural in the due requisite elements of process.

licensing

the Zenith Case

But the decision which apparently triggered the drafting of the present Chicago ordinance is Zenith Interna tional Film Corporation V. City of Chi

(1959); 272 F. 2d 90 (1959)).

straint on
five-to-four

freedom of speech.
decision, the

prior

re

cago, decided in June of 1961 by Chief Judge Hastings and Judges Duffy and Knoch (291 F. 2d 785). The merits of themotion picture (a film entitled "The Lovers") played no part in the court's determination, Chief Judge Hastings stating that the sole issue with which he would deal was whether due process had been accorded the exhibitor. From a procedural point of view,

The New Chicago Ordinance

The new Chicago
censorship most modern law

ordinance?the
extant?

was

enacted on December 27, 1961 155-1 through 155-7 of (Sections 155 of the Municipal Code of Chapter

In a
af

Court

firmed, saying that not all prior re straints on speech are invalid. In this case the exhibitors contended that even if the film contained the basest type of pornography it could be shown with out prior submission for review.

had said:
tion hibit

But Mr. Justice Clark rejected this, pointing out that in Burstyn the Court It does not follow that the Constitu
requires every absolute motion freedom picture of to ex every

Judge Hastings's opinion is definitely the censor's bible. Instead of merely reversing with a brief opinion, Judge Hastings detailed the respects in which due process had been denied. For ex ample,
that

Judge Hastings
are no standards

pointed
for

out

literature or science. The other four members of the board?all selected personally by the Mayor of Chicago without regard to political affiliations ?are richly qualified formembership: Dr. Ner Littner is medical director of the child therapy program of the Institute of Psychoanalysis and profes sor of psychiatry at the University of

Chicago). The innovations of the ordinance include the creation of a motion pic ture appeal board to consist of five members experienced or educated in one of nine specified areas of the arts,

"there

selec

kind at all times and all places, and that

tion of [the members of the censor] board and no safeguards to preclude an entirely arbitrary judgment on its
part".

Chicago.

September,

1963

Vol.

49

871

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Obscenity,

Pornography

and Censorship In Manual Enterprises it was ad mitted?and this should be stressed? that the magazines involved had no they appealed to the prurient interest of homosexuals and that they were read chiefly by homosexuals and adolescent
males. literary, scientific or other merit, that of nude males with . . . to view. exposed ... re at the studios Investigations in the discovery of . . . photo sulted en of groups of nude males graphs the pubic photographs area in homosexual activities. gaged v. Day, ual Enterprises 289 F. [Man 2d 455, sers

of Books Fair for children, each year by the Chicago sponsored and Tribune, public relations counsel for theArt Institute.Mrs. King recent ly resigned because of illness in her theMiracle

Dr. Matthew Schoenbaum is profes sor of sociology and dean of the school of social work at Loyola University. Martha Bennett King is director of

456.] the Court reversed on both Yet issues, Justice Harlan saying that an examination of these magazines merely "leads us to conclude that the most that can be said of them is that they are dismally unpleasant, uncouth, and Justice Harlan relied on Roth-, but how does his evaluation of these mag azines square with the Roth doctrine, where the test of obscenity was:
Whether plying ards, terial to the average contemporary the dominant taken as a interest person, ap stand community of the ma theme appeals 489]. to tawdry".

family. Dr. Henry Rago is editor of Poetry and a former professor of Magazine at the University of Chicago. English The responsibility of the board is to review pictures for which a permit has by the police censors. After seeing the picture "in its en tirety" and before making any deter mination, the board must afford the exhibitor and his counsel an opportun been denied

B. Lockhart, Dean of the Minnesota Law School, perhaps the nation's fore most authority on the law of obscen

the Court reversed, Nevertheless, veering for the first time toward a drastic narrowing of the obscenity test to "hard-core pornography". William

ity, had forecast that the Court would soon do just this and, indeed, Justice
mentioned in Manual Enter

Harlan

ity to present testimony and statements in support of the exhibition of the film. If the board then rejects the movie, itmust state with particularity the parts of the picture deemed in vio lation of the ordinance?and why.2

prises that Dean Lockhart had con strued theRoth test to be, very simply, whether hard-core pornography was

The Curious Case of

"Manual The Enterprises" last decision which we shall consider isManual Enterprises v. Day, 370 U. S. 478. This is indeed a curious case from almost every point of view. the conclusion of the Post Here Office Department, the District Court and the United States Court of Ap peals for the District of Columbia Circuit was that three magazines were nonmailable because they violated the federal statute on two grounds: First, they were obscene, and, second, they
contained mation as advertisements to where giving obscene infor matter

find what it had meant, especially since nothing whatever was said in Roth about pornography. Justice Harlan ruled that, whether or not hard-core pornography is the single test, these magazines were not because they could not "be deemed to be beyond the pale of con
temporary decency". notions of rudimentary

depicted. It seems extraordinary for the Supreme Court to turn to a law to professor (however knowledgeable)

whole

prurient

[page

And where "prurient" was defined to

mean a shameful [or] beyond sex interest in nudity if it goes substantially of candor limits customary ... or morbid

[page 487]. In Roth the Court held (with Jus tice Harlan concurring) that "implicit in the First Amendment is the rejec tion of obscenity as utterly without

obscene

Here are a few of the facts as set forth in a footnote to the opinion:
The ual magazine contained little text with material, models dominating of male pictures almost every page

redeeming social importance" (page 484). But in Manual Enterprises this test is ignored because, quite obvi
ously, any these social magazines significance.3 new were barren of

Thus,
prises

regrettably, inManual
no bench marks

Enter
were

could be obtained. When the first Times Film case (the "Game of Love") was, on the sole of reversed Roth, per curiam, authority along with two cases involving alleg mentators
of Court edly obscene magazines, certain com

of the photographs were of Many nude male models, usually posed with some object in front of their genitals . . . ; a number were or par of nude their bare model's buttocks. . . . Although none

tially nude males with emphasis on the

did not take the definitive step for anticipated giant ward. Contrariwise, the Roth guide lines were frayed and disarrayed. carved?the Court
2. Section 155-5 of the new ordinance con the isuance of a special templates permit the of movies to persons limiting showing over 16. Obviously, the draftsmen of this clause had in mind Justice Schaefer's test of Judge Sullivan's obscenity and also Federal decision the former "adults striking down Film case, 172 only" section in the Paramount F. Supp. 69 (1959), on the ground that it was indefinite" and that the then age "hopelessly limit of 21 years was unreasonable and capri cious. Censorship of films unfit for children a with is here, subject too vast to be dealt but Dean Lockhart's challenging theory of if it should receive judi "variable obscenity", remove all doubt of would cial acceptance, fashioned the constitutionality of censorship to protect minors. of Obscenity, Censorship 45 Minn. L.R. 95 (1960). 3. For a discussion of the factor of "re see Lockhart, social deeming importance", 95 45 Minn. L.R. Censorship of Obscenity, (1960).

applauded
in not

the restraint of
reasons?

precise test for determining obscenity. Apparently, in Manual Enterprises the Court felt that it was
a test.

the thought being that the Court was feeling its way slowly and responsibly until itwas ready to propound a more

advancing

some showed his pu genitals, bic hair and others suggested what ap . . . ; to be a semi-erect peared penis others showed male models reclining with their legs . . . spread wide apart. ... Two of the magazines had pictures

of the pictures directly exposed

of pairs of models posed together sug

gestively.

Court of Appeals, which held to be obscene on both counts, had said: these magazines
A he postal received testified inspector from appellants' that . . .

The

ready to

prescribe

such

adverti

872

American

Bar Association

Journal

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Obscenity, Beginning with the fount of all wisdom in this area of free speech, 283 U.S. Near V. Minnesota, 697, Chief Justice Hughes said in 1931: "The primary requirements of de
cency may be enforced against obscene publications."

Pornography
were art students

and Censorship
or art teachers

Justice Clark9s Dissent in "Manual Enterprises" Mr. Justice Clark, in a withering? but lonely?dissent,
pause were was to discuss obscene so patently azines issue not whether because the mag

said that he need

the second i.e.,

be constitutionally prevented and pun

ished.

In 1942 in Chaplinsky v. New Hamp shire, 315 U. S. 568, the Court held that "the lewd and obscene" were two of the classes of speech which could

that the advertisements unlawfully in formed their readers where obscene material could be obtained. Of the evidence, he said:
advertisements and photogra . . .[furnished homosexuals] names and addresses where nude . . . may male be obtained." pictures ... some a picture of a nude captioned pher "with lists or scantily legend attired young man with the hand "perfectly proportional, some, male models, age 18-26." Others a photograph featured of a nude male with viously genitals the area around so retouched . . . and as the privates to cover to furnish photo." ob the an The

dispositive,

In Roth in 1957, the Court specifi cally held "that obscenity is not within the area of constitutionally protected speech or press" (354 U. S. 476, 485). In the Roth case Chief JusticeWar ren said:
were

could permit them." The Court Supreme apparently agreed, since it denied certiorari, 365 U.S. 859. But less than a year later Manual Enterprises
themselves?not spect circulars?are

that if they were not, a home in "figure drawing" study course would be recommended to them. The Court affirmed the jail sentence on the authority of Roth, stating: "No con cept of art as art could include them. No concept of community standards and

they

held

that the magazines

the

circum relatively not obscene and

The defendants in both these cases

engaged textual veying ly advertised interest plainly of engaged in the business or graphic to appeal customers. matter to the of pur open erotic were ex

must be carried in the mails.5 I trust it is within the realm of fair comment to inquire, with all respect to the Court: Are not these magazines dirt for dirt's sake or, as Mr. Justice Frankfurter
money's sake"?

offered

their

They in the commercial with

"original print of this . . . Mr. Womack . . . informed want their one

phrased

it, "dirt

for

ploitation of themorbid and shameful

for materials craving fect. I believe that Governments such punish ef prurient and Fed the State constitutionally can

in his publications that "physique fans

'truck driver showered, . . . himself types' already for and ready had been con

[the publisher] of the studios listed

The Public Welfare

eral

cleaned up, . . ." bed. Womack

conduct.

And, finally, in 1959 Mr. Justice Frankfurter in Kingsley Pictures, 360 U. S. 684, 692, after pointing out that
even D. H. Lawrence, censor the author of

victed

via photographs v. United States,

[in 1961] of selling obscene

the mails. Womack D.C. 8, 111 U.S. App.

And what of the public welfare?? a factor raised thirty-seven years ago in Gitlow and mentioned as recently as Times Film in 1961. (In consider ing this problem we shall wish to keep inmind that the attacked material must be judged by its effectupon the "aver age person" and not upon susceptible
or young people alone.)

Lady Chatterley9s Lover, had declared

that he "would

raphy rigorously", went on to say:

He a knew [Lawrence] thing as pornography, or to be more sake. there dirt was dirt

genuine

pornog

to like charges. Washington of insanity . . . Feb. Post, 1, 1962, p. D-3. one can fail to see the obvious How in this record sion. noon." In

294 F. 2d 204 (1961). More recently he has pleaded not guilty by reason

persons

such for

for dirt's

dark, dark, dark amid the blaze of

[370 U.S. 478, 527-528].

is beyond my comprehen of Milton: the words "Oh,

Dr. Kinsey found that 46 per cent of all men interviewed had experienced
at least one homosexual

sake, money's

accurate,

Now, it is true that, of the seven justices wTho heard this case, only one (Justice Stewart) joined in the reasons for the re given by Justice Harlan
versal. Justice Black

In Womack, to which Justice Clark this refers, 294 F. 2d 204 (1961), same publisher was sentenced to jail for soliciting sales of pictures of nude
indiscriminately, mailing circu men

(1959), (Pornography and the Law Kronhausen, page 160.) Curiosity and
experimentation are,

experience.

the inherent human drives, particularly in the young.

that sex

I suppose,

two

of

I believe [J. Edgar Hoover has said]

is a major pornography I believe violence. that the distribution impressionable cause if we can items child of such school-age

in

the

adopted

opinion not even advanced by the defendants? that the Post Office Department had not conducted a proper hearing under

other justices Brennan's Justice concurring in which he raised an issue result. Two

merely

concurred

lars to boys 13, 15, 18 and 19 years of age. The boys were told that they must sign a statement certifying that
same statute had been expressly 4. This in Roth, 354 U.S. 476; and in Kingsley, upheld said that? Mr. Justice Frankfurter it possible that the I hardly conceive strike down as unconstitu Court would tional the federal statute against mailing lewd, obscene and lascivious matter, which has been the law of the land for nearly . . . [360 U.S. a hundred 684, 696]. years was ill when Manual Justice Frankfurter was heard and decided. Enterprises 5. It should be noted that only the benign law civil sections of the federal obscenity were in Manual Enterprises. being enforced No criminal charges were brought but merely to the the refusal to admit these publications con were not even The magazines mails. fiscated.

of

eliminate among

the federal law about which he indi cated doubt as to its constitutionality.4 However, the fact remains thatMr.
Harlan was selected to an

Justice

the decision in behalf of the majority and dealt with the only issue properly before the Court.

nounce

Under the civil provisions it is not neces to establish that the sary for the prosecution that ad publisher had knowledge (scienter) vertisers in the magazine were informing the readers where and how obscene material could be obtained. The criminal sections ex pressly require that scienter be proved before the publisher may be convicted. Justice Har lan exonerated Womack on the ground that he did not have knowledge of the hard-core in the magazine pornography being advertised as being available from the advertisers?Just ice Harlan of feeling that the requirement proof of scienter should be read into the civil of the law. Mr. Justice Clark at provisions this interpretation vigorously tacked in his dissent.

September,

1963

Vol.

49

873

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Obscenity,
ren, we ening Against azine,

Pornography
shall

and Censorship
fright Fight Mag

sex May,

our reduce greatly rate. crime ["The American Legion 1961].

time stressing that "the holding was

expressly confined to motion

can

Filth",

With

further regard
the Court

to "informal
in Bantam

pictures".

which

Mr.
rapes

Hoover
occurred

reports that in 1961

every thirty-three min

Books

censorship",

a type of sexual induce conduct a State deem obnoxious may . . . to the moral of society. fabric even assuming that por Furthermore,

took pains to say this: do not hold that law enforce

officers contacts Where must with renounce persons all suspected in

utes, that young people under 18 com mitted 19 per cent of them, and those under 25 committed 41 per cent of them. ("Crime in the United States", July 12, 1962, by J. Edgar Hoover, page 95). in observed Justice Frankfurter

We
ment formal

cannot ever to be deemed nography in an immediate cause, sense, criminal . . . the State sexual can conduct, draw the inference that over reasonably nate dissemination . . . will have of an [such] materials effect on

a long period of time the indiscrimi

eroding

of violating valid
obscenity.

such

laws prohibiting
consultation for the purpose is

with

of aiding
such under

genuinely

undertaken laws and it need

the distributor to comply

avoid not prosecution retard the

moral conduct [372 U.S. 58, 76]. See also Justice Harlan's dissent in
Bantam Books.

Kingsley:
It may be . . . "that more protection [Kingsley our than public ever be govern Pictures,

full enjoyment of First Amendment freedoms [372 U.S. 58, 71-72]. Theory the espouses ? that "variable obscenity" doctrine the impact upon the primary audience should be the criterion. For example, he suggests: Professor Obscenity" Lockhart
We edition assume of "Lady obscene that the unexpurgated Lover" Chatterley's at an when directed

them,

"Hard
Let us

Core"
assume

Pornography
for

a moment

that

morality, possibly fore, needs every ment can

"Variable

360 U.S. 702].

give."

the Supreme Court may be headed toward?as Dean Lockhart is certain it is and should be?a testwhich would
ban

"Informal Censorship" The Supreme Court has recently de clared unconstitutional a Rhode Island statute which empowered the Rhode Island Commission To Encourage Mo rality in Youth to "educate the public
any book,

concerning

taining obscene,
language recommend . . . and the

indecent or
to investigate

picture,

. . . con

be might audience of sexually we take Otherwise, the book is not For to an any material of audience

impure
and of pur

immature persons. it for granted that . . . obscene. directed the sexually primarily imma

to be the most authoritative and the Law, by the ?Pornography Doctors Eberhard and Phyllis Kron hausen, also of the University of Minnesota. There we find these criteria Lockhart
for recognizing "hard-core" pornog

You will find no judicial definition of hard-core pornography, so I have turned to the source cited by Dean

only

"hard-core"

pornography.6

such materials. (Bantam Books, Inc. V. Sullivan, 372 U. S. 58 It was the commission's prac (1963).) tice to write distributors and sellers of books and magazines deemed by the commission objectionable "for youths veyors
under 18 years

of

prosecution"

for erotic craving considered obscene, trinsic nature when ture adult audience.

ture for the purpose of feeding their

would fantasy whatever its directed at be in a ma

raphy: to disregard the plot, to disregard the

theme and Is the author asking the reader on . . .

The prises
doomed

magazines I would,
under such

in Manual Enter should think, be

a test.

the pages to look for "dirt for dirt's sake"? Or did he intend to awaken
in the reader story because tive thoughts ?including a desire to pursue the of sobering and provoca of one nature or another reflections upon sex and

merely

to keep

turning

that the specified publications be with drawn from sale. One of the notices concluded by stating that "proper ac tion will eliminate the necessity of our recommending prosecution to the At
torney General's

of age"

with

request

Review 295, 309-316

for Citing Lockhart and McClure their discussions of the problem of "in formal censorship" (45 Minn. Law Re view 5, 6-22 (1960); 38 Minn. Law

department."

that many (per haps most) psychiatrists assert that sex crimes and juvenile delinquency do not stem from pornography. But on this Mr. Justice Harlan said in Roth in 1957 (354 U. S. 475), after advert ing to this consensus of psychiatrists:
It seems rational, edge, to to me in our clear that it is not ir state of knowl present consider that pornography

Now

I am aware

sexual relations? [page 150].

Justice (1954)), Brennan, speaking for the majority, ruled that the operation of the Rhode Island commissioners "was in fact a scheme of state censorship effectuated by extralegal sanctions; they acted as an agency not to advise but to sup

stitutional protection) and "hard-core" pornography, which even they believe to be beyond the constitutional pale:

How would the magazines in Man ual Enterprises fare under this test? The Doctors Kronhausen distinguish for us "erotic realism" (which they deem clearly within the ambit of con

Bantam Books is significant in the area of motion pictures in that the Court reaffirmed its conclusion in the second Times Film case, at the same

press".

6. Recently in a four-to-three decision, the Supreme Judicial Court of Massachusetts held that "with respect to material for designed general circulation, only predominantly 'hard core' pornography, without social redeeming is obscene in the constitutional significance, sense." (Attorney General v. The Book Named 184 N. E. 2d 328 (1962).) "Tropic of Cancer", The opinion was undoubtedly written before Manual was Enterprises because published Manual is not mentioned. On April 29, 1963, the Supreme Court of the United States granted certiorari in Smith v. in which the California California, Superior Court (Appellate Division) upheld on October 24, 1962, a jail sentence, under a Los Angeles of a book ordinance dealer obscenity for selling Tropic of Cancer.

On the other hand, on July 2, 1963, the Cali fornia Supreme Court held unanimously, after finding that the statutory prohibition against obscene material was applicable to hard only core pornography, that Tropic of Cancer is en titled to the protection of the First Amend ment because a it is literary work of social importance. (Zeitlin v. Arnebergh, 32 U. S. Law Week 2044.) on July 10, 1963, the New York However, Court of Appeals in a four-to-three split, ruled that the dominant theme of Tropic of Cancer to the appeals prurient interest of the average person in the community and as such consti tutes hard-core under New pornography York's the book statute, although obscenity is considered of "substantial literary merit" by competent critics. (People v. Fritch, 32 U. S. Law Week 2044.)

874

American

Bar Association

Journal

This content downloaded from 14.139.86.166 on Thu, 2 May 2013 12:13:51 PM All use subject to JSTOR Terms and Conditions

Obscenity, main In [hard-core] pornography the

response In erotic of the truthful

Pornography

and Censorship

erotic is to stimulate purpose that is all. in the reader. And realism, description

ual Enterprises may be held inapplica ble tomovies. On the other hand, Manual Enter prises may conceivably presage the doom of all regulation of obscenity, however benign the regulation be, how ever consonant with the most rigid

basic realities of life, as the individual

experiences it, is of the essence.7

But in the meantime, Justice Clark gloomily observes thatManual Enter

obscene unless it is hard-core pornog raphy? And, if so, should we not have a judicial definition of this term?

"Manual

Enterprises" and Motion Pictures The reason I have dealt with Man ual Enterprises so extensively is be cause it may impinge upon the area of motion pictures. For, after all, the test of obscenity for movies was fash ioned in Roth, which involve a film. also did not

prises requires the United States Post Office

to be the world's and

judicial standards, however faithfully due process may be accorded the dis
seminators.

of smut and Grand

names places

largest

disseminator obscene

Informer of the
ma

where

Now, I am aware that in Burstyn it was said that motion pictures are not "necessarily subject to the precise rules governing any other particular method of expression" because movies may "possess a greater capacity for evil, particularly among the youth of
a community". And, as mentioned ear

be accorded the Court for the exciting progress made in the field of letters, in the nourishing and flourishing of provocative ideas and philosophies? or unorthodox however unpopular No they might be. knowledgeable, ra man would either tinkerwith or tional tolerate the slightest trespass upon these freedoms?freedoms which may very well have been the greatest single factor in establishing this nation as the leader of the free world. But the Court has admonished us since 1931 that obscenity is not to be admitted to the constitutional sanctu
ary.

Every lawyer applauds the dynamic vigor with which the Supreme Court has through the decades protected and extended the constitutional guarantees of free speech. Enormous credit must

of the day. And this responsibility should begin at home, at the local level in the deliberations and decisions of
boards of censors.

terial may be obtained [370 U.S. 478, 519]. Responsibility should be the order

It is not for them to blaze new trails

or weave new concepts but, very sim

ply, to heed the germane judicial pre cepts and to conform faithfully to what I consider
The

to be

the censors5 creed

and exacting,

fashioned by Mr.
task

Justice Frankfurter:

is onerous

it in upholding the Chicago censorship ordinance in the Times Film case was that "the hold ing was expressly confined to motion pictures". Thus, the doctrine of Man

lier, in 1963 the Supreme Court seemed to underscore that one of the key fac tors which motivated

demanding as it does the utmost discipline in objectivity, [and] the

severest control of

tions [Kingsley Pictures, 360 U.S. 684, 697].

on hard 7. For the most recent observations core pornography and on the Supreme Court's trend toward it as being the sole criterion, see and in "To Deprave and McClure Lockhart in the Nature and Corrupt", Original Studies Press, 53, Association of Obscenity Definition London (1962).

personal

predilec

What,

then, is obscenity? Is nothing

Photographs

of the Chief Justices of the United

States

Harlan

in all?is made up of photographic reproductions, This collection?fourteen on art-portrait paper, of the following: Gilbert Stuart painting of John Jay; Trumbull painting of John Rutledge; painting by Earle of Oliver Ellsworth; painting by Peale of JohnMarshall; engraving of Roger B. Taney; photographs Salmon P0 by the famous Brady, who recorded the Civil War in pictures, of W. Melville of studio and Morrison R. favorite Chase and Waite; photographs Evans Charles Hughes, Fuller, Edward Douglass White, William Howard Taft, F. Stone, Fred M. Vinson and Earl Warren? in size, is designed for framing and would greatly Each reproduction, 8"xl0" enhance the attractiveness of your law office or library. If you cannot use a full set, individual prints are available. Set of fourteen . . . $15.00; individual ... $1.50. prints American Bar Association Journal 1155 East 60th Street, Chicago 37, Illinois

September,

1963

Vol.

49

875

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