Bad News for Smut Peddlers

The Supreme Court seems to be catching up with the moral election returns. In three major decisions last week, it joined the growing body of Americans revolted by the growing body of U.S. pornography -- the books, films, plays and magazines hawked on count less street corners with lurid sales pitches promising all manner of sex, all imaginable deviations, combinations and permutations. Ruling on three cases involving no fewer than 144 publications, the court handed down some bad news for U.S. smut peddlers.

Startling even Justice Department lawyers, the court voted 5 to 4 to up hold Publisher Ralph Ginzburg's $28,000 fine and five-year federal sentence for selling the now defunct magazine Eros and two other obscene publications through the mails. By a vote of 6 to 3, the court upheld Edward Mishkin's three-year New York sentence for planning and peddling 140 weird little "bondage" books (Screaming Flesh, House of Torture, etc.) devoted to sadism and masochism and typically spiced with scenes of naked girls whipping each other. By another 6-to-3 vote, the court struck down Massachusetts' ban on Fanny Hill--yet it clearly left that enduring (1749), erotic bestseller open to possible further prosecution.

Stiff Rule. The big news was the new obscenity standard laid down in the Ginzburg decision--which was based not so much on the content of his publications as on the way he peddled them. Speaking for the court in all three cases, Justice William J. Brennan said that Ginzburg's "titillating" advertising was so permeated with "the leer of the sensualist" that he was guilty of "the sordid business of pandering." Brennan took dead aim at "those who would make a business of pandering to the widespread weakness for titillation by pornography." The result: a stiff new rule for obscenity cases that may make a peddler's conduct more important than his product. "Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity."

The three cases produced 14 opinions--a sure sign of how intensely the Justices had wrestled with their constitutional duty to guard freedom of speech and press even as they sought a way to suppress the smut before them. In hot dissent, Justices Hugo Black and " William O. Douglas urged the court for the umpteenth time to quit all censorship on the ground that the First Amendment protects all expression, including obscenity, that does not actually incite antisocial conduct. "Sex is a fact of life," declared the 80-year-old Black. "I find it difficult to see how talk about sex can be placed under the kind of censorship the court here approves without subjecting our society to more dangers than we can anticipate at the moment." The new pandering rule, added Douglas, makes unconstitutional "an advertising technique as old as history." However "florid" a book's cover, he argued, "the contents remain the same."

Even more scathing were the usually restrained Justices John M. Harlan and Potter Stewart. Harlan called the new pandering rule "an astonishing piece of judicial improvisation" that may inspire new censorship attacks on long permissible classics. If an ad is now adjudged obscene, he suggested, the result could ban Joyce's Ulysses, which was cleared for U.S. sale 33 years ago. "Censorship reflects a society's lack of confidence in itself," said Stewart. "The Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself."

Stewart was especially incensed by what he viewed as the court's decision to jail Ginzburg (who is also the publisher of a magazine called Fact) for reasons other than the charges against him. "Ginzburg was not charged with 'commercial exploitation,'" he said. "He was not charged with 'pandering'; he was not charged with 'titillation.' " Not only did the court thus "deny him due process of law," Stewart continued, but Ginzburg was going to prison for crimes that no federal statute condemns.

Harried Justices. What the Justices were really bothered by was the court's difficult decision in Roth v. U.S. (1957), which held for the first time that obscenity is not protected by First Amendment guarantees of free speech. In Roth, which upheld a federal antiobscenity statute, the court classified obscenity as a kind of "non-speech" --no longer protected by the familiar test that bars only those words that carry a "clear and present danger" of inciting anti-social conduct. Roth also carefully declared: "Sex and obscenity are not synonymous." And in later cases, the court refused to censor sexual expression unless 1) "the material is utterly without redeeming social importance," 2) "the dominant theme of the material taken as a whole appeals to prurient interest" in the "average" adult, and 3) "the material is patently offensive because it affronts contemporary community standards," meaning national standards defined by the Supreme Court.

Applying those painfully honed tests soon forced the nine harried Justices (average age: 64) to read shelves of allegedly dirty books. But though the court has accepted at least half a dozen obscenity cases since the Roth decision, it was unable to find a single piece of writing obscene. Meanwhile, the nation's smut peddlers flourished. For what Roth overlooked was the fact that "obscenity" may depend less on the material than on how the seller uses it.

Conduct v. Thought. Having reached exactly that conclusion, Justice Brennan last week tried to push the Roth decision, which he also wrote, far closer to a manageable test of conduct rather than thought. At issue in the Ginzburg case were Eros, whose chef-d'oeuvre in the disputed edition was a color portfolio of a white woman and Negro man, both naked, in multiple embraces; Liaison, a sex-front "newsletter" that was a compendium of sex jokes; and The Housewife's Handbook on Selective Promiscuity, a Tucson woman's clinical account of her increased pleasure with unconventional sex techniques.

Justice Brennan refused to endorse the trial judge's ringing condemnation of all three Ginzburg products as themselves obscene and "a gross shock to the mind." Instead, Brennan nailed Ginzburg for salacious sales pitches. In one Eros brochure, he blatantly promised articles on "Incest in the American Midwest," "Was Shakespeare a Homosexual?" and "Sex in the Supermarket." Before Ginzburg acquired Handbook, its author, "Rey Anthony," printed it privately, sold 12,000 copies to assorted therapists, several of whom had testified at the trial that it proved useful in professional practice. Ginzburg's companies, said Brennan, went beyond this "neutral environment" and "deliberately emphasized the sexually provocative aspects of the work in order to catch the salaciously disposed." As for Eros, Brennan implied that merely reading the magazine would not have led him to regard it as obscene. Instead, he noted that Ginzburg revealed his "obvious" motives by mailing it from Middlesex, NJ.--having failed to get postal privileges at Intercourse and Blue Ball, Pa.

New Rules. In the second case, New York Pornographer Edward Mishkin argued that his books were not legally obscene because they excited only sick rather than normal people. Brennan agreed--and duly "adjusted" Roth's prurient-appeal standard from the "average adult" to the average members of any "probable recipient group," including sadists and masochists.

In the third case, which cleared Fanny Hill, Brennan noted expert testimony in the Massachusetts trial that Fanny "belongs to the history of English literature rather than the history of smut." All the same, added Brennan, in an apparent invitation to further litigation, "evidence that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values, might justify the conclusion that the book was utterly without redeeming social value."

All this toughened Roth by adding three new rules:

> "In close cases, evidence of pandering may be probative with respect to the nature of the material."

> A book or film need not have a "prurient appeal" to the public at large to be declared obscene. It can be so judged even if it panders merely to a "clearly defined deviant sexual group," such as homosexuals or masochists.

>An otherwise offensive book is not obscene if it has "a modicum of social value." But this anti-censorship rule may be vitiated by evidence of a publisher's pandering.

Summing up for the dissenters, Justice Harlan still insisted that "no stable approach to the obscenity problem has yet been devised by this court." For the majority, however, Ginzburg, Mishkin and Fanny had developed a new combination of rules that seemed to offer a workable, constitutional way to leave serious literature uncensored but combat the pornographic racketeers.

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