Argued April 1, 1964
Decided July 10, 1964
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ARTHUR G. KLEIN, J.
Charles Rembar for appellant. Leo A. Larkin, Corporation Counsel ( Seymour B. Quel and George H.P. Dwight of counsel), for respondents.
In this action maintained by the Corporation Counsel of the City of New York and by the District Attorneys of each of the five counties of the city in pursuance of section 22-a of the Code of Criminal Procedure, an injunction is sought to restrain defendant, a book publisher, from selling and distributing "Memoirs of a Woman of Pleasure" by John Cleland, written about 1749, and popularly known as "Fanny Hill".
The statute authorizes such an action as this by the public officials who have been joined as plaintiffs where a book is "obscene, lewd, lascivious, filthy, indecent or disgusting". After a trial the court at Special Term dismissed the complaint. The Appellate Division reversed by a divided court and, finding that the book comes "within the proscription" of section 22-a, granted the injunction and other relief sought by plaintiffs in full scope. From the resulting order the publisher appeals here.
The suppression of a book requires not only an expression of judgment by the court that it is so bad, in the view of the Judges, that it is offensive to community standards of decency as the Legislature has laid them down, but also that it is so bad that the constitutional freedom to print has been lost because of what the book contains. The history and tradition of our institutions stand against the suppression of books.
Judicial definitions of one sort or another have been fashioned to describe tests by which a book will be suppressed, giving due weight to constitutional considerations; but the experience of the profession demonstrates that definitions are unsafe vehicles in obscenity cases. The nature of the problem may be illustrated by a differential analysis of four significant decisions in this field, in two of which the suppression of the publication was judicially approved; and in two of which the suppression of the publication was annulled on constitutional grounds.
In Roth v. United States ( 354 U.S. 476) a criminal conviction for violating section 1461 of title 18 of the United States Code was sustained. This statute prohibits the mailing of material described almost literally as section 22-a of the New York Code of Criminal Procedure describes material which may be enjoined by action. The accused had mailed matter which CLARK, Ch. J., writing for the United States Court of Appeals, described as "salable pornography" ( United States v. Roth, 237 F.2d 796, 799).
But in Manual Enterprises v. Day ( 370 U.S. 478) the court reversed a determination by the Post Office Department which had barred a shipment of the publisher's magazines on the ground they were obscene within the definition of section 1461 of title 18 of the United States Code upon a finding, among others, that they were largely made up of photographs of male nudes, composed primarily for homosexuals, without literary merit, and appealing to the prurient interests of sexual deviates.
Some of the nude photographs were captioned "perfectly proportioned, handsome male models, age 18-26", and the president of the publisher admitted the magazines were planned for homosexuals, "designed to appeal to and stimulate their erotic interests" (pp. 527-528).
In People v. Richmond County News ( 9 N.Y.2d 578) the court affirmed an order reversing a judgment of conviction for violation, in the sale of a magazine, of section 1141 of the Penal Law, which makes criminal the sale of distribution of material described substantially in the terms of the two statutes which have been referred to.
The ground on which the conviction was reversed here, differing from that stated by the Appellate Division, was that the magazine was not obscene when due consideration was given to constitutional rights. There was in that case, however, among the "numerous" pictures of nude or partially nude women many which were "clearly sexually suggestive", one in which a totally nude woman was addressing another totally nude woman in terms suggesting lesbianism. There was detailed and graphic description of sexual intercourse and one suggesting brutality in sexual intercourse. These were cited as "illustrative of the general content" of the magazine (pp. 593-594).
In People v. Fritch ( 13 N.Y.2d 119), on the other hand, a book, "Tropic of Cancer", was held obscene and an order reversing a conviction under section 1141 of the Penal Law was in turn reversed against the argument there was a resulting impairment of constitutional freedom to print. It was observed that there could be found "a constant repetition of patently offensive words used solely to convey debasing portrayals of natural and unnatural sexual experiences" (p. 124).
The differential examination of these cases suggests at once the inherent difficulty in reaching consistency in any review of acts of censorship, criminal or administrative, and the large measure of judicial subjectivity inherent in the process.
It is not easy to distinguish the cases on the basis of real differences in the material under scrutiny. Still the decisions are not whimsical and haphazard judicial choices, but resulted in each case from earnestly searching out the significant constitutional issues. In Roth, for example, the discussion in the United States Court of Appeals and in the Supreme Court together reaches close to 30,000 words.
From a comparative study of the decisions the Bar must be able to form an intelligent professional judgment to predict, as well as it can, future judicial action in obscenity cases and advise those who would print books accordingly. And in this field, as in others, it is an essential judicial function to provide a reasonable measure of reckonability.
This may be helped along, perhaps, by placing a burden on the censor to bring himself within an area in which the exercise of his powers is constitutionally permissible and by resolving all doubtful cases in favor of the freedom to print.
When one looks carefully at the record since 1956 of what on constitutional grounds has been allowed to be printed and circulated, and what has been suppressed, "Fanny Hill" seems to fall within the area of permissible publications. It is an erotic book, concerned principally with sexual experiences, largely normal, but some abnormal.
It has a slight literary value and it affords some insight into the life and manners of mid-18th Century London. It is unlikely "Fanny Hill" can have any adverse effect on the sophisticated values of our century. Some critics, writers, and teachers of stature testified at the trial that the book has merit, and the testimony as a whole showed reasonable differences of opinion as to its value. It does not warrant suppression.
Moreover, we are bound by the decisions of the Supreme Court of the United States on the subject of what is within the range of permissible publication under the freedom of the press provision of the Constitution. This court must respect those decisions and must follow them. The Supreme Court has indicated with growing judicial resolution that New York's obscenity statute may not constitutionally be invoked to suppress a book of the standard and content of "Fanny Hill".
The decision of this court last year, for example, holding "Tropic of Cancer" to be obscene and subject to criminal prosecution ( People v. Fritch, supra) has been now overruled by Grove Press v. Gerstein ( 378 U.S. 577) in which the Supreme Court reversed the judgment of the District Court of Appeal of Florida ( 156 So.2d 537). Under the Florida obscenity statute the State court had enjoined the sale and distribution of "Tropic of Cancer".
On the same day the Supreme Court reversed another State court decision under the Florida obscenity statute ( Tralins v. Gerstein, 378 U.S. 576) which had held "Pleasure Was My Business" obscene. The State court had enjoined its distribution holding it was condemned by the Florida statute ( 151 So.2d 19).
Dealing, as it is described as doing (32 U.S. Law Week 3437), with "numerous descriptions of abnormal sex acts and indecent conversations supposed to have taken place in a Florida brothel" we would regard it as being in a class with "Fanny Hill" and perhaps as going somewhat farther in utilization of objectionable material. If that work could not be restrained by Florida because of the interdiction of the Constitution, New York would quite obviously be left without authority to restrain "Fanny Hill". To similar effect in the area of obscene motion pictures see Jacobellis v. Ohio ( 378 U.S. 184) also decided June 22, 1964.
It had become increasingly clear in a long line of decisions which foreshadowed those of June 22 that State obscenity statutes would no longer afford a constitutionally sound basis for the suppression of a book of the type of "Fanny Hill" ( Roth v. United States, supra; Kingsley Books v. Brown, 354 U.S. 436; Alberts v. California, 354 U.S. 476; One, Inc., v. Olesen, 355 U.S. 371; Kingsley Pictures Corp. v. Regents, 360 U.S. 684; Smith v. California, 361 U.S. 147, and Manual Enterprises v. Day, supra).
The order should be reversed and the complaint dismissed, without costs.
The majority holds as matter of law that "Memoirs of a Woman of Pleasure" ("Fanny Hill") is not obscene although for centuries it has been cited throughout the world as the very prototype and archetype of obscenity, "the pornographic best seller of all time" (Loth, The Erotic in Literature, 1961, p. 32). Its prostitute-heroine "meets with just about every conceivable sexual adventure" (Loth, p. 110) in this explicit "how to do it" manual of illicit sex (Loth, p. 110). In "An Unhurried View of Erotica" (1958) Ginzburg describes its "utmost salaciousness" (p. 72; see, also, pp. 64-74, 109-110).
Under our decisions ( People v. Richmond County News, 9 N.Y.2d 578) pornography is the essential element of obscenity but "Fanny Hill" easily passes the test since it describes to the last intimate physical detail numerous instances not only of prostitution but of voyeurism, transvestism, homosexuality, lesbianism, flogging, seduction of a boy, etc., etc. Indeed, the book is "pornography" in the strictest philological and etymological sense of the word since it is, quite literally, the narration by a prostitute of the particulars of her trade. The very "Introduction" to the new American edition labels the work as "priapic" and boasts that it has been suppressed in many places over the years. The extensive history of its production and distribution shows that it was never anything more than an 18th Century potboiler written (see Ginsburg, p. 64, supra) and sold as under-the-counter pornography. Yet the majority says that its sale cannot legally be enjoined in this State.
The court's reasons for reversal are as unclear as its description of the book is inadequate. "It is an erotic book," blandly admits the opinion, "concerned principally with sexual experiences, largely normal, but some abnormal", surely a euphemistic labeling of this journal of brothel life. It seems that since some critics testify that the book has merit, it cannot be suppressed, particularly since the Supreme Court has reversed State court action banning some vaguely similar books and magazines. If such reasons justify the reversal of this injunction, no such injunction can ever stand and section 22-a of our Code of Criminal Procedure disappears. Here there was no suppression by a censor, no unconstitutional prior restraint ( Brown v. Kingsley Books, 1 N.Y.2d 177, affd. 354 U.S. 436) but a judicial declaration as to alleged obscenity. Every element of due process was satisfied and yet the Appellate Division's finding of obscenity, as to a book regarded for centuries as obscene, is being reversed because critics found in it some good writing and some slight literary value. Hereafter, pornography no matter how gross (see Grove Press v. Gerstein, 378 U.S. 577, validating "Tropic of Cancer") is immune and safe so long as critics praise its writing style and discover "social significance", whatever that may mean.
The reach of this decision, great as it is, becomes incalculable when read with today's companion reversal in People v. Bookcase, Inc. ( 14 N.Y.2d 409). Here the court holds that "Fanny Hill" is not obscene. People v. Bookcase, Inc., going much further, says that the sale of "Fanny Hill" to children cannot be prevented or punished since the prohibitory statute (Penal Law, § 484-h) is unconstitutional. Too vague for enforcement, it is said, is the Legislature's language: "which exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality". Since no clearer or more explicit a statement is conceivable, it seems to follow from the Bookcase decision, plus this one, that in New York State from now on there are not and cannot be any barriers to the general sale to purchasers of any age of the most blatant and unmistakable pornography provided there be discoverable therein some social or stylistic significance. It would be as easy as it is unnecessary to resort to superlatives in describing this extraordinary result but it speaks for itself.
It is today's fashion to find literary values in any sexy writing and to ridicule as blue-nosed prying Puritans and enemies of art and literature all those who try to preserve a modicum of public decency in our society. And into the law itself there has come from nowhere a new constitutional theory which licenses the most unrelieved sexual filth either on the theory of "prevailing community standards" ( Larkin v. G.I. Distrs., 14 N.Y.2d 869) or on a finding of literary merit or social values ( Grove Press v. Gerstein, supra). The "literary merit" ground has slowly evolved from an exception in favor of recognized literary classics into an exception for any writing which can command the praise of a recognized critic. As to "community standards", who measures and discovers them? When local courts with or without juries find that a book or movie is below standard, the appellate courts reject the findings because the court "cannot avoid making an independent constitutional judgment on the facts of the case" ( Jacobellis v. Ohio, 378 U.S. 184, 190).
I refuse to believe that all this can continue to be the law. I predict that the wheel will turn and the pendulum swing back. Some time and somehow we will return to the historical meaning of "Freedom of the Press". On that awaited day the courts will find it possible in at least some extreme cases not only to announce but to apply their oft-repeated holding that obscenity is an exception to the First Amendment's protections. As things now stand, New York State has obscenity statutes of the sort consistently held to be constitutional ( Roth v. United States, 354 U.S. 476) but with equal consistency refused application by the highest Federal court to any particular book or movie.
The order should be affirmed.
It is inconceivable that judicial thinking can become so beclouded by unwarranted fears and spurious cries of censorship as to result in giving constitutional protection to "Memoirs of a Woman of Pleasure" (also known as "Fanny Hill"), by John Cleland. It is one of the foulest, sexually immoral, debasing, lewd and obscene books ever published, either in this country or abroad. It was written in the middle of the 18th Century and for many years was barred as an obscene book in Europe as well as in this country.
"Fanny Hill" reeks with disgusting descriptions of natural and unnatural sexual experiences of a prostitute, so dealt with as to portray those baser instincts normally to be found in the animal kingdom. In my view, it is obscene by any of the established legal standards. If this classic example of pornography is not obscene, then I doubt if any written matter can ever be found to be obscene.
The growing tendency to narrow the definition of obscenity and to demand impossible standards makes it virtually impossible to enforce any existing obscenity law or to enact any new legislation which can adequately protect our people from indecent and obscene publications. This is an incredible result which cannot long stand, for an aroused public is sure to bring about a change in the attitude that "anything goes" in the area of printed material and motion picture productions.
It is important to remember that the history of control of obscenity has deep roots in Anglo-Saxon traditions, and laws forbidding obscene publications are at least as old as printing. Obscenity is not the nebulous, indefinite thing which libertarians claim it is, and which some authors want it to be. It is well settled that obscenity is not entitled to constitutional protection ( Roth v. United States, 354 U.S. 476). Our courts have dealt with this problem in the past. All we need do is apply existing law realistically.
The majority opinion here, in my view, sounds the death knell of the long-honored standards of American decency which have remained an integral part of our national heritage. I cannot agree that our society, even in 1964, has become so depraved that it has come to accept the kind of trash represented by "Fanny Hill" and similar books, the publishers and purveyors of which are now given unbridled permission to advertise obscenity for sale with complete immunity. It is difficult to believe that our forebears, in adopting the Constitution and the amendments that followed, ever intended this result. Freedom of the press is not an absolute — it must be balanced against the State's inherent powers to enact legislation to protect its people. The First Amendment, guaranteeing freedom of speech and of the press, was never designed or intended to protect the purveyors of filth against the more important interests of our society as a whole. In balance, public decency and morality are more important than the deprivation resulting from the banning of noxious publications which seem to appeal to that small segment of our people whose baser instincts make reading of obscenity and pornography their favorite pastime.
The order herein should be affirmed.
Judges DYE, FULD and VAN VOORHIS concur with Judge BERGAN; Chief Judge DESMOND dissents in an opinion in which Judges BURKE and SCILEPPI concur, the latter in a separate opinion in which Chief Judge DESMOND and Judge BURKE concur.
Order reversed, etc.