Memoirs v. Massachusetts

383 U.S. 413

Case Year: 1966

Case Ruling: 6-3, Reversed

Opinion Justice: Brennan

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Black, Douglas, Fortas, Stewart, Warren


1st Concurring Opinion

Author: Douglas


1st Dissenting Opinion

Author: Clark

Joiner(s): Harlan, White

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In Roth v. United States (1957), the Supreme Court articulated a test for obscenity that placed emphasis on the "dominant theme of the material taken as a whole," rather than a small piece of the work. In Jacobellis v. Ohio (1964) Justice Brennan provided insight into what the justices meant by that phrase. He suggested that only work "utterly without redeeming social value," perhaps hard-core pornography, represented unprotected expression.

Even with that admonition, prosecutors were uncertain about the Court's intent. Could books and movies that were generally obscene, but had some element of artistry or social value still be banned? Or could only works completely devoid of merit be banned? The Court tried to address these questions in Memoirs v. Massachusetts (1966). The state urged the Court to find obscene the book Memoirs of a Woman of Pleasure, popularly known as Fanny Hill. Written by John Cleland in 1749, Memoirs is an erotic novel that traces the escapades of a London prostitute. The highest state court in Massachusetts held that a book need not be "unqualifiedly worthless before it could be deemed obscene"; that is, just because Memoirs contained some nonerotic passages did not mean that it had redeeming value.



... We defined obscenity in Roth in the following terms: "[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (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. The Supreme Judicial Court purported to apply the Roth definition of obscenity and held all three criteria satisfied. We need not consider the claim that the court erred in concluding thatMemoirs satisfied the prurient appeal and patent offensiveness criteria; for reversal is required because the court misinterpreted the social value criterion. The court applied the criterion in this passage:

"It remains to consider whether the book can be said to be `utterly without social importance.' We are mindful that there was expert testimony, much of which was strained, to the effect that Memoirs is a structural novel with literary merit; that the book displays a skill in characterization and a gift for comedy; that it plays a part in the history of the development of the English novel; and that it contains a moral, namely, that sex with love is superior to sex in a brothel. But the fact that the testimony may indicate this book has some minimal literary value does not mean it is of any social importance. We do not interpret the `social importance' test as requiring that a book which appeals to prurient interest and is patently offensive must be unqualifiedly worthless before it can be deemed obscene."...

The Supreme Judicial Court erred in holding that a book need not be "unqualifiedly worthless before it can be deemed obscene." A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three federal constitutional criteria is to be applied independently; the social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness. Hence, even on the view of the court below that Memoirspossessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous interpretation of a federal constitutional standard.

It does not necessarily follow from this reversal that a determination that Memoirs is obscene in the constitutional sense would be improper under all circumstances. On the premise, which we have no occasion to assess, that Memoirs has the requisite prurient appeal and is patently offensive, but has only a minimum of social value, the circumstances of production, sale, and publicity are relevant in determining whether or not the publication or distribution of the book is constitutionally protected. 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 importance. It is not that in such a setting the social value test is relaxed so as to dispense with the requirement that a book be utterly devoid of social value, but rather that, as we elaborate in Ginzburg v. United States, where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation at its face value. In this proceeding, however, the courts were asked to judge the obscenity of Memoirs in the abstract, and the declaration of obscenity was neither aided nor limited by a specific set of circumstances of production, sale, and publicity. All possible uses of the book must therefore be considered, and the mere risk that the book might be exploited by panderers because it so pervasively treats sexual matters cannot alter the fact - given the view of the Massachusetts court attributing toMemoirs a modicum of literary and historical value--that the book will have redeeming social importance in the hands of those who publish or distribute it on the basis of that value.



MR. JUSTICE DOUGLAS, concurring in the judgment.

... We are judges, not literary experts or historians or philosophers. We are not competent to render an independent judgment as to the worth of this or any other book, except in our capacity as private citizens.... If there is to be censorship, the wisdom of experts on such matters as literary merit and historical significance must be evaluated. On this record, the Court has no choice but to reverse the judgment of the Massachusetts Supreme Judicial Court, irrespective of whether we would include Fanny Hill in our own libraries. Four of the seven Justices of the Massachusetts Supreme Judicial Court conclude that Fanny Hill is obscene.... Four of the seven judges of the New York Court of Appeals conclude that it is not obscene.... To outlaw the book on such a voting record would be to let majorities rule where minorities were thought to be supreme. The Constitution forbids abridgment of "freedom of speech, or of the press." Censorship is the most notorious form of abridgment. It substitutes majority rule where minority tastes or viewpoints were to be tolerated. It is to me inexplicable how a book that concededly has social worth can nonetheless be banned because of the manner in which it is advertised and sold. However florid its cover, whatever the pitch of its advertisements, the contents remain the same.

Every time an obscenity case is to be argued here, my office is flooded with letters and postal cards urging me to protect the community or the Nation by striking down the publication. The messages are often identical even down to commas and semicolons. The inference is irresistible that they were all copied from a school or church blackboard. Dozens of postal cards often are mailed from the same precinct. The drives are incessant and the pressures are great. Happily we do not bow to them. I mention them only to emphasize the lack of popular understanding of our constitutional system. Publications and utterances were made immune from majoritarian control by the First Amendment, applicable to the States by reason of the Fourteenth. No exceptions were made, not even for obscenity. The Court's contrary conclusion in Roth, where obscenity was found to be "outside" the First Amendment, is without justification....


It is with regret that I write this dissenting opinion. However, the public should know of the continuous flow of pornographic material reaching this Court and the increasing problem States have in controlling it. Memoirs of a Woman of Pleasure, the book involved here, is typical. I have "stomached" past cases for almost 10 years without much outcry. Though I am not known to be a purist--or a shrinking violet--this book is too much even for me. It is important that the Court has refused to declare it obscene and thus affords it further circulation....

Let me first pinpoint the effect of today's holding in the obscenity field. While there is no majority opinion in this case, there are three Justices who import a new test into that laid down in Roth v. United States (1957), namely, that "[a] book cannot be proscribed unless it is found to be utterly without redeeming social value." I agree with my Brother WHITE that such a condition rejects the basic holding of Roth and gives the smut artist free rein to carry on his dirty business. My vote in that case--which was the deciding one for the majority opinion--was cast solely because the Court declared the test of obscenity to be: "whether to he average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." I understood that test to include only two constitutional requirements: (1) the book must be judged as a whole, not by its parts; and (2) it must be judged in terms of its appeal to the prurient interest of the average person, applying contemporary community standards. Indeed, obscenity was denoted inRoth as having "such slight social value as a step to truth that any benefit that may be derived ... is clearly outweighed by the social interest in order and morality...." Moreover, in no subsequent decision of this Court has any "utterly without redeeming social value" test been suggested, much less expounded.... The first reference to such a test was made by my Brother BRENNAN in Jacobellis v. Ohio (1964), seven years after Roth. In an opinion joined only by Justice Goldberg, he there wrote: "Recognizing that the test for obscenity enunciated [in Roth] ... is not perfect, we think any substitute would raise equally difficult problems, and we therefore adhere to that standard." Nevertheless, he proceeded to add:

"We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is `utterly without redeeming social importance,' ...."

This language was then repeated in the converse to announce this non sequitur:

"It follows that material dealing with sex in a manner that advocates ideas ... or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection."...

Significantly no opinion in Jacobellis, other than that of my Brother BRENNAN, mentioned the "utterly without redeeming social importance" test which he there introduced into our many and varied previous opinions in obscenity cases. Indeed, rather than recognizing the "utterly without social importance" test, THE CHIEF JUSTICE in his dissent in Jacobellis, which I joined, specifically stated:

"In light of the foregoing, I would reiterate my acceptance of the rule of the Roth case: Material is obscene and not constitutionally protected against regulation and proscription if `to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'"...

THE CHIEF JUSTICE and I further asserted that the enforcement of this rule should be committed to the state and federal courts whose judgments made pursuant to the Roth rule we would accept, limiting our review to a consideration of whether there is "sufficient evidence" in the record to support a finding of obscenity....


The central development that emerges from the aftermath of Roth v. United States is that no stable approach to the obscenity problem has yet been devised by this Court. Two Justices believe that the First and Fourteenth Amendments absolutely protect obscene and nonobscene material alike. Another Justice believes that neither the States nor the Federal Government may suppress any material save for "hard-core pornography." Roth in 1957 stressed prurience and utter lack of redeeming social importance; as Roth has been expounded in this case, in Ginzburg v. United States, and in Mishkin v. New York, it has undergone significant transformation. The concept of "pandering," emphasized by the separate opinion of THE CHIEF JUSTICE in Roth, now emerges as an uncertain gloss or interpretive aid, and the further requisite of "patent offensiveness" has been made explicit as a result of intervening decisions. Given this tangled state of affairs, I feel free to adhere to the principles first set forth in my separate opinion in Roth, which I continue to believe represent the soundest constitutional solution to this intractable problem.

My premise is that in the area of obscenity the Constitution does not bind the States and the Federal Government in precisely the same fashion....

Federal suppression of allegedly obscene matter should, in my view, be constitutionally limited to that often described as "hard-core pornography."...

State obscenity laws present problems of quite a different order. The varying conditions across the country, the range of views on the need and reasons for curbing obscenity, and the traditions of local self-government in matters of public welfare all favor a far more flexible attitude in defining the bounds for the States. From my standpoint, the Fourteenth Amendment requires of a State only that it apply criteria rationally related to the accepted notion of obscenity and that it reach results not wholly out of step with current American standards. As to criteria, it should be adequate if the court or jury considers such elements as offensiveness, pruriency, social value, and the like. The latitude which I believe the States deserve cautions against any federally imposed formula listing the exclusive ingredients of obscenity and fixing their proportions. This approach concededly lacks precision, but imprecision is characteristic of mediating constitutional standards; voluntariness of a confession, clear and present danger, and probable cause are only the most ready illustrations. In time and with more litigated examples, predictability increases, but there is no shortcut to satisfactory solutions in this field, and there is no advantage in supposing otherwise....


In Roth v. United States, the Court held a publication to be obscene if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor. Material of this kind, the Court said, is "utterly without redeeming social importance" and is therefore unprotected by the First Amendment. To say that material within the Rothdefinition of obscenity is nevertheless not obscene if it has some redeeming social value is to reject one of the basic propositions of the Roth case--that such material is not protected because it is inherently and utterly without social value.

If "social importance" is to be used as the prevailing opinion uses it today, obscene material, however far beyond customary limits of candor, is immune if it has any literary style, if it contains any historical references or language characteristic of a bygone day, or even if it is printed or bound in an interesting way. Well written, especially effective obscenity is protected; the poorly written is vulnerable. And why shouldn't the fact that some people buy and read such material prove its "social value"?

A fortiori, if the predominant theme of the book appeals to the prurient interest as stated in Roth but the book nevertheless contains here and there a passage descriptive of character, geography or architecture, the book would not be "obscene" under the social importance test. I had thought that Roth counseled the contrary: that the character of the book is fixed by its predominant theme and is not altered by the presence of minor themes of a different nature....

In my view, "social importance" is not an independent test of obscenity but is relevant only to determining the predominant prurient interest of the material, a determination which the court or the jury will make based on the material itself and all the evidence in the case, expert or otherwise.

Application of the Roth test, as I understand it, necessarily involves the exercise of judgment by legislatures, courts and juries. But this does not mean that there are no limits to what may be done in the name of Roth.... Roth does not mean that a legislature is free to ban books simply because they deal with sex or because they appeal to the prurient interest. Nor does it mean that if books like Fanny Hill are unprotected, their nonprurient appeal is necessarily lost to the world. Literary style, history, teachings about sex, character description (even of a prostitute) or moral lessons need not come wrapped in such packages. The fact that they do impeaches their claims to immunity from legislative censure.

Finally, it should be remembered that if the publication and sale of Fanny Hill and like books are proscribed, it is not the Constitution that imposes the ban. Censure stems from a legislative act, and legislatures are constitutionally free to embrace such books whenever they wish to do so. But if a State insists on treating Fanny Hill as obscene and forbidding its sale, the First Amendment does not prevent it from doing so.

I would affirm the judgment below.