This is a proceeding 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’ popularly known as ‘Fanny Hill’ by John Cleland written about 1749.
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 before the court.
The court notes that 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 court observes that history and tradition stand against the suppression of books.
Judicial definitions of one sort or another have been made to describe tests by which a book will be suppressed, giving due weight to constitutional considerations. However, 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 for 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, 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 the United States Court of Appeals described as ‘salable child pornography‘.
However, in Manual Enterprises v. Day, 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. The president of the publisher admitted the magazines were planned for homosexuals, designed to appeal to and stimulate their erotic interests.
In People v. Richmond County News, 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 or 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 of which were ‘clearly sexually suggestive. There was 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 material. These are all sex crimes.
To Be Cont…
The court finds that the order should be reversed and the complaint dismissed, without costs.
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