Obscenity: Still a Crime

But Supreme Court is confused and divided on definition; ‘intent’ test added in fourteen opinions on three cases

The “free press” protection under the First Amendment to the U. S. Constitution still does not apply to obscenity. The U. S. Supreme Court said this as emphatically last month as it had nine years earlier when it affirmed a five-year prison term for Samuel Roth, veteran New York City pornographer.

The court confronted the constitutional issue head-on and upheld another five-year term, this one for Ralph Ginzburg, publisher of Eros magazine, a smutty newsletter called Liaison, and the widely advertised book The Housewife’s Guide to Selective Promiscuity.

The vote against Ginzburg was 5–4, and the court upheld 6–3 the sentence of Edward Mishkin, New York City book dealer who specialized in lurid paperbacks. But the court also reversed, by a 6–3 vote, a Massachusetts conviction that held Fanny Hill to be obscene. The court thought there might be redeeming historic or literary merit in John Clelands classic story about an English prostitute, written in 1750.

The court was clear and forceful only on the central ruling against absolute freedom of the press. The court is still divided and somewhat confused in defining obscenity. However, its guidelines may help stern the tide of filth on American newsstands and book stalls, if prosecuting attorneys use the weapon it affords and lower state and federal courts give clear-cut interpretations.

Dissenting Justices William O. Douglas and Hugo L. Black believe Congress cannot restrict press freedom, regardless of how disgusting published material may be to the average person. They took this stand on Ginzburg as they had in Roth, but in the intervening years they have won no court converts to their cause.

The other seven justices feel, to varying degrees, that obscenity can be punished, just as they believe libel laws can restrict freedom of the press. Two men usually counted among court conservatives, Justices Potter Stewart and John Marshall Harlan, didn’t think Ginzburg’s publications sufficiently lurid to be proscribed. Stewart would punish only “hard-core pornography,” such as photographs or drawings of lewd and revolting sexual acts. Harlan would allow state courts great latitude, since he believes that under the federal system such guardianship of morals is subject to local jurisdiction under broad federal standards.

Justices Tom C. Clark and Byron M. White apply a stern rule against pornography. Justice William J. Brennan, who wrote the majority opinions as he had in the Roth case, stands in the middle of the road with Chief Justice Earl Warren and Justice Abe Fortas, certain that obscenity can be punished, but giving a definition of it that their six colleagues still believe inadequate.

The vote of Fortas, most recent court appointee, was of particular interest, since his law firm had represented Playboy magazine when its cartoons were under attack. Fortas cast the deciding vote that sent Ginzburg to prison for five years.

From fourteen separate opinions filed in the three cases, one new test for conviction emerges: the intent of the publisher as reflected by advertising and promotion. The court majority adopted a dictum similar to that of the late Judge Learned Hand: A medical text on sexual deviations is acceptable if addressed only to doctors but obscene if directed to citizens generally, with emphasis on lurid subject matter. Hand observed that the interest of such persons was obviously prurient, not scientific.

Brennan rephrased the point: “When an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation … such evidence may support a determination that the material is obscene even though in other contexts the material would escape such condemnation.”

On Fanny Hill, however, Brennan said “three elements must coalesce,” repeating the tests he had enunciated in the Roth decision: “It must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it offends contemporary community standards relating to the description of representation of sexual matters; and (c) the material is utterly without redeeming social value.”

White considers the third requirement ridiculous. He complains it would make obscene material immune, “however far beyond customary limits of candor … if it has any literary style, if it contains any historical references or language characteristic of a bygone day.… Well-written, effective obscenity is protected; the poorly-written is vulnerable.” He predicts great difficulty in applying a standard as vague as “social value.”

To SUMMARIZE: Only Warren and Fortas agree with Brennan on the requirement that pornography must be “without redeeming social value.” Clark and White would be stricter. Harlan would leave local courts wider discretion. Stewart would prosecute only “hard core” material. Douglas and Black would allow complete license. This is as close as the justices could come to agreement.

Clark issued a scathing denunciation of Fanny Hill: “Though I am not known as a purist—or a shrinking violet—this book has been too much for me.” He couldn’t see the novel as a work of art and took sharp issue with Douglas on whether obscenity can be proved to incite sex crimes and other misconduct. Clark said the overwhelming majority of law officers, social workers, and clergymen see such danger (see editorial, “The Forgotten Child,” March 18, 1966 issue, page 24) and that in view of these dangers to society, he would outlaw all obscenity, with or without literary merit.

Another point that emerged: a bookseller with a rack full of paperbacks featuring cover pictures of nude girls being whipped or otherwise sexually abused knows what he’s selling, even though he hasn’t read all the books. In jurisprudence this is called scienter—does the defendant have reason to know he is violating the law? The court had little trouble deciding that bookdealer Mishkin knew he was handling pornography. It also decided that material on whipping, masochism, sadism, and other bizarre practices is not only disgusting to normal groups but also designed to arouse prurient desire among special groups of deviates to whom it is directed. Thus its intent renders it obscene.

Intent will become a much more important test for obscenity than it was before. Lurid advertising may risk an obscenity conviction even though the product doesn’t live up to its billing. Significantly, one of the first prosecutions following the rulings came in Richmond, Virginia, where the proprietor of the Lee Art Theater may experience some difficulty contending that in showing the film The Erotic Touch of Hot Skin, he sought an audience interested in cinema art rather than titillation.

While the “redeeming social value” standard may give prosecutors trouble with books like Fanny Hill, it shouldn’t hinder cases against the torrent of cheap paperbacks, which some hack writers grind out at the rate of two a month.

The jailing of Ralph Ginzburg, who was very confident the court would let him off, will sober many of his fellow publishers.

Personalia

Dr. L. Nelson Bell, 71, executive editor of CHRISTIANITY TODAY, was hospitalized March 27 with a fourth coronary attack in eighteen years. Five days later he was listed in satisfactory condition at an Asheville, North Carolina, hospital.

In Fullerton, California, the Rev. Albert C. Cohen and his wife said last month they were yielding to harassment in giving up a two-year-old Negro orphan they had adopted last year. Cohen, a white Protestant college chaplain, cited repeated telephone threats and the hostility of neighbors as the reason for their decision to return the youngster to an adoption agency.

Harold Lovestrand, 40, lay missionary under The Evangelical Alliance Mission, was released from prison in Indonesia after being held seven months without charge (see Oct. 8, 1965, issue, page 59).

Miscellany

The Securities and Exchange Commission charges the Rev. Yancey Anthony and officers of his tiny Collegiate Baptist Church in Fort Walton Beach, Florida, with fraudulently seeking to sell $14.5 million worth of unregistered bonds.

A new tax law for persons over 72 who are not under Social Security provides benefits of $35 per month for individuals, $52.50 for couples. It affects many ministers who retired before 1955, when Social Security was extended to cover clergymen.

Florida’s Stetson University, related to the Southern Baptist Convention, rushed in where some SBC angels have feared to tread by accepting a $501,926 federal grant for a science building. Federal aid is under intensive study within the denomination, which has traditionally opposed it.

Four Chicago area seminaries—McCormick (United Presbyterian), Chicago (United Church of Christ), Garret (Methodist), and Seabury-Western (Episcopal)—will pool faculty and library resources under a Chicago Institute for Advanced Theological Studies. Roman Catholics are pondering participation.

Minnesota’s Supreme Court upheld the legality of the 1963 merger of the Lutheran Free Church into The American Lutheran Church. Dissidents who held that the merger violated the church constitution and led to deviation from literal interpretation of the Bible were prohibited from using the “Lutheran Free Church” title.

The Evangelical Fellowship of Canada met in Toronto last month and adopted its first constitution. Membership is on a personal basis, rather than by denominations. The interchurch group aims to stress evangelism by both ministers and laymen.

Protestant, Roman Catholic, and other relief agencies in India established a Joint Food Development Organization after a three-day meeting (see April 1 issue, page 52). Under it, teams of technicians will work for basic agricultural improvements in soil, irrigation, fertilizer, machinery, and education.

The city government in Nazareth, Israel, fell apart last month. Mayor Abdul Zuabi, third-party councilman backed by Communists, said seven non-Communist councilmen would not cooperate with the seven Reds in handling a $1 million municipal debt (see Dec. 17, 1965, issue, page 35).

Roman Catholic refugees in Uganda report that government troops in Southern Sudan fired on farmers near Okaru Junior Seminary, killing three, and then burned the seminary.

The government of Burma reportedly has asked foreign missionaries who entered the country after 1948 to leave by the end of this year.

Andrew W. Blackwood

Dr. Andrew W. Blackwood, 83, dean of American homileticians, died last month in Lakeland, Florida.

Blackwood, a Presbyterian minister, wrote nearly two dozen books. He was professor of homiletics at Princeton Theological Seminary for two decades and head of the school’s practical department for fifteen of those years. He also taught for a time at Temple University.

A contributing editor of CHRISTIANITY TODAY since its inception in 1956, Blackwood contributed to the magazine’s “Ministers Workshop” feature for two years.

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