MEMOIRS v. MASSACHUSETTS 383 U.S. 413 (1966)

Nine years after roth v. united states, still unable to agree upon a constitutional definition of obscenity, the Supreme Court reversed a state court determination that John Cleland's Memoirs of a Woman of Pleasure, commonly known as Fanny Hill, was obscene. The three-Justice plurality opinion, written by Justice william j. brennan, held that the constitutional test for obscenity was: "(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."

Despite an obiter dictum in jacobellis v. ohio (1964), it was believed—and the Massachusetts courts had held—that Roth did not require unqualified worthlessness before a book might be deemed obscene. Justice Brennan twisted the Roth reasoning (that obscenity was unprotected because it was utterly worthless) into a constitutional test that was virtually impossible to meet under criminal standards of proof. Thus a finding of obscenity would become rare, even where the requisite prurient interest appeal and offensiveness could be demonstrated.

The Massachusetts courts had tried the book in the abstract; a host of literary experts testified to its social value. The circumstances of the book's production, sale, and publicity were not admitted. Justice Brennan noted that evidence that distributors commercially exploited Fanny Hill solely for its prurient appeal could have justified a finding, based on the purveyor's own evaluation, that Fanny Hill was utterly without redeeming social importance.

justices hugo l. black, william o. douglas, and potter j. stewart concurred in the result, Black and Douglas adhering to their view that obscenity is protected expression. Stewart reiterated his view that the First Amendment protected all but "hard-core pornography."

justice tom c. clark, dissenting, rejected the importation of the "utterly without redeeming social value" standard into the obscenity test, which he believed would give the "smut artist free rein." Reacting against the continuous flow of pornographic materials to the Supreme Court, he reasserted that the Court should apply a "sufficient evidence" standard of review of lower courts' obscenity decisions.

justice john marshall harlan, dissenting, argued that although the federal government could constitutionally proscribe only hard-core pornography, the states could prohibit material under any criteria rationally related to accepted notions of obscenity.

justice byron r. white, also dissenting, argued that Roth counseled examination of the predominant theme of the material, not resort to minor themes of passages of literary worth to redeem obscene works from condemnation.

Kim Mc Lane Wardlaw
(1986)