This constituted the entire evidence, as neither side availed itself of the At the hearing before a justice of the Superior Court, which was conducted, under § 28F, "in accordance with the usual course of proceedings in equity," the court received the book in evidence and also, as allowed by the section, heard the testimony of experts and accepted other evidence, suchĪs book reviews, in order to assess the literary, cultural, or educational character of the book. Putnam's Sons intervened in the proceedings in behalf of the book, but it did not claim the right provided by that section to have the issue of obscenity tried by a jury. Putnam's Sons, alleged to be the publisher and copyright holder of the book.Īs authorized by § 28D, G. Section 28C requires that the petition commencing the suit be "directed against book by name" and that an order to show cause "why said book should not be judicially determined to be obscene" be published in a daily newspaper and sent by registered mail "to all persons interested ill the publication." Publication of the order in this case occurred in a Boston daily newspaper, and a copy of the order was sent by registered mail to G. The proceeding was a civil equity suit brought by the Attorney General of Massachusetts, pursuant to General Laws of Massachusetts, Chapter 272, §§ 28C-28H, to have the book declared obscene. This is an obscenity case in which Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), written by John Cleland in about 1750, was adjudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and MR. 431-433.ĪPPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS No interest of society justifies overriding the guarantees of free speech and press and establishing a regime of censorship. There is no basis in history for the view expressed in Roth that "obscene" speech is "outside" the protection of the First Amendment. Since there is no power under the First Amendment to control mere expression, the manner in which a book that concededly has social worth is advertised and sold is irrelevant. Even under the prevailing view of the Roth test the book cannot be held to be obscene in view of substantial evidence showing that it has literary, historical, and social importance. Since the First Amendment forbids censorship of expression of ideas not linked with illegal action, Fanny Hill cannot be proscribed. JUSTICE STEWART concur in the reversal for the reasons given in their respective dissenting opinions in Ginzburg v. Might in different proceeding justify the conclusion that the publication and distribution of Memoirs was not constitutionally protected. On the premise, not assessed here, that it has the requisite prurient appeal, is patently offensive, and has only a modicum of social importance, evidence of commercial exploitation of the book for the sake of prurient appeal to the exclusion of all other values Since a book cannot be proscribed as obscene unless found to be utterly without redeeming social value, the Supreme Judicial Court erroneously interpreted the federal constitutional standard. 476, as elaborated in subsequent cases, each of three elements must independently be satisfied before a book can be held obscene: (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 affronts contemporary community standards relating to the description or representation of sexual matters, and (c) the material is utterly without redeeming social value. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. The Massachusetts Supreme Judicial Court affirmed, holding that a patently offensive book which appeals to prurient interest need not be unqualifiedly worthless before it can be deemed obscene. Following a hearing, including expert testimony and other evidence, assessing the book's character but not the mode of distribution, the trial court decreed the book obscene and not entitled to the protection of the First and Fourteenth Amendments. 413 (1966)Ī Book Named "John Cleland's Memoirs of a Woman of Pleasure"Īppellee, the Attorney General of Massachusetts, brought this civil equity action for an adjudication of obscenity of Cleland's Memoirs of a Woman of Pleasure (Fanny Hill), and appellant publisher intervened.
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