A civil proceeding initiated by the Massachusetts attorney general declared Memoirs of a Woman of Pleasure (more commonly known as Fanny Hill) to be obscene. The publisher, G. P. Putman, appealed and lost. The Supreme Court, with Justice Brennan writing for a three-judge plurality (Justices Warren and Fortas joining him), reversed the lower court in a short opinion—one of three dealing with obscenity questions handed down on the same day. Justices Douglas and Black wrote opinions concurring with the judgment. Justices Clark, Harlan, and White wrote separate dissents.
The sole issue in Memoirs was the appellate court’s application of the Roth (Roth v. United States, 354 U.S. 476, 1957) standard. Justice Brennan concluded the court erred by not applying each element separately before declaring a publication obscene. The Massachusetts appellate court in affirming the lower court decision that Memoirs was obscene on two of Roth’s criteria applied the third standard according to its view that it did ‘‘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.’’
Justice Brennan disagreed and asserted that all three elements must be met. Moreover, he explained the third criterion, in accordance with his opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964), meant that the book must be ‘‘utterly without redeeming social value’’ (italics in original). The justice’s restatement of this criterion had the effect of shrinking the zone of sexually explicit material that would not be protected under the First Amendment. It constituted a liberalization of this criterion in Roth because prosecutions for obscenity would be made more difficult.
Moreover, the social value of allegedly obscene material cannot be weighed against the other two elements; material failing any one standard, therefore, is sufficient to consider the material not obscene. Even if Memoirs of a Woman of Pleasure possessed ‘‘only a modicum of social value,’’ the Massachusetts judgment would have to be reversed. Then, referring to the majority’s contemporaneous decision in Ginzburg v. United States, 383 U.S. 463 (1966), Justice Brennan added that the circumstances of production, sale, and publicity might be pertinent when determining the obscenity of material. Commercial exploitation of the book’s prurient appeal, ‘‘to the exclusion of all other values,’’ might indicate the book lacks redeeming social importance. In this instance, however, the courts were not asked to judge Memoirs against this background.
In an angry dissent, Justice Clark, reporting that he supplied the deciding vote in Roth, complained that the ‘‘utterly without redeeming social value’’ standard added a new element to Roth. In his view, Roth required only that a book be judged ‘‘as a whole’’ and in terms of ‘‘its appeal to the prurient interest of the average person, applying contemporary community standards.’’ Prior to Jacobellis, Justice Clark pointed out, no previous decisions referred to the ‘‘utterly without redeeming social value’’ test, and Justice Brennan’s position in Jacobellis won only Justice Goldberg’s vote, which did not give it precedential weight. Justice White, agreeing with Justice Clark, claimed that this element ‘‘is not an independent test of obscenity but is relevant only to determining the predominant prurient interest of the material.’’ In other words, evidence of prurience implies something that is ‘‘utterly without redeeming social value.’’
Justice Harlan lamented that Roth produced ‘‘no stable approach’’ to the obscenity problem. Moreover, the concept of pandering, suggested first by Justice Warren in his Roth concurrence and subsequently adopted in Ginzburg, provided no more than ‘‘an uncertain . . . interpretative aid’’ in sorting out ‘‘this tangled state of affairs.’’ Furthermore, Brennan’s suggestion that pandering may create a context that offsets social value ‘‘wipes out any certainty the latter term might be given . . . and admits into the case highly prejudicial evidences without appropriate restrictions.’’
The companion cases to Memoirs are Ginzburg vs. United States and Mishkin v. New York, 383 U.S. 502 (1966).
ROY B. FLEMMING
Reference and Further Reading
Cases and Statutes Cited