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.
In People v. Fritch, 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.
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.
The court does not find it 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.
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 actions 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.
The court notes that tis may be helped 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 drug has merit, and the testimony as a whole showed reasonable differences of opinion as to its value. It does not warrant suppression.
Moreover, the court is 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 drug book of the standard and content of ‘Fanny Hill’.
In Grove Press v. Gerstein, the decision for holding ‘Tropic of Cancer’ to be obscene and subject to criminal prosecution has been now overruled by in which the Supreme Court reversed the judgment of the District Court of Appeal of Florida. Under the Florida obscenity statute the State court had enjoined the sale and distribution of ‘Tropic of Cancer’.
However, on the same day the Supreme Court reversed another State court decision under the Florida obscenity statute in Tralins v. Gerstein which had held ‘Pleasure Was My Business’ obscene. The State court had enjoined its distribution holding it was condemned by the Florida statute. Dealing, as it is described as doing, with numerous descriptions of abnormal sex crimes acts and indecent conversations supposed to have taken place in a Florida brothel, the court 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 akin to Jacobellis v. State of Ohio.
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’ as ruled in Roth v. United States, Kingsley Books v. Brown, Alerts v. California, One, Inc., v. Olesen, Kingsley Intern Pictures Corp. v. Regents, Smith v. California and Manual Enterprises v. Day.
The court finds that the order should be reversed and the complaint dismissed, without costs.
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