Memoirs v. Massachusetts, 383 U.S. 413 (1966)

A Book Named "John Cleland’s Memoirs of a Woman of Pleasure"

v. Attorney General of Massachusetts
No. 368

Argued December 7-8, 1965
Decided March 21, 1966
383 U.S. 413

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

Syllabus

Appellee, 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. 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. 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.

Held: The judgment is reversed. Pp. 415-433.

349 Mass. 69, 206 N.E.2d 403, reversed.

MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE FORTAS, concluded that:

1. Under the test in Roth v. United States, 354 U.S. 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. P. 418.

2. 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. Pp. 419-420.

3. 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 might in different proceeding justify the conclusion that the publication and distribution of Memoirs was not constitutionally protected. Ginzburg v. United States, post, p. 463. Pp. 420-421.

MR. JUSTICE BLACK and MR. JUSTICE STEWART concur in the reversal for the reasons given in their respective dissenting opinions in Ginzburg v. United States, post, p. 476 and p. 497 and Mishkin v. New York, post, p. 515 and p. 518. P. 421.

MR JUSTICE DOUGLAS concluded that:

1. Since the First Amendment forbids censorship of expression of ideas not linked with illegal action, Fanny Hill cannot be proscribed. Pp. 426; 427-433.

2. 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. P. 426.

3. 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. P. 427.

4. There is no basis in history for the view expressed in Roth that "obscene" speech is "outside" the protection of the First Amendment. Pp. 428-431.

5. No interest of society justifies overriding the guarantees of free speech and press and establishing a regime of censorship. Pp. 431-433.