Appeals from decree of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1961, No. 3177, in case of Commonwealth of Pennsylvania v. Herman Robin, trading as Robin's Book Store, and Grove Press, Inc.
John Rogers Carroll and Howard Gittis, with them Alan H. Molod, and Wolf, Block, Schorr and Solis-Cohen, for appellants.
David L. Creskoff, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Julian E. Goldberg, with him Gilbert M. Cantor, for amicus curiae.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Chief Justice Bell. Mr. Justice Jones and Mr. Justice O'Brien join in this Concurring Opinion. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice O'Brien join in this concurring opinion. Dissenting Opinion by Mr. Justice Musmanno.
The Supreme Court of the United States held in Grove Press, Inc. v. Gerstein, 378 U.S. 577, 12 L. Ed. 2d 1035, 84 S. Ct. 1909 (1964), that it is an unconstitutional abridgement of the First and Fourteenth Amendments of the Constitution of the United States for the State of Florida to enjoin, pursuant to its obscenity statute, the circulation of the book "Tropic of Cancer". In State v. Huntington, 204 A.2d 411 (Conn. 1964); Larkin v. G. P. Putnam's Sons, 14 N.Y. 2d 399, 200 N.E. 2d 760 (1964); State v. Locks, 97 Ariz. 148, 397 P. 2d 949 (1964); City of Chicago v. Kimmel, 31 Ill. 2d 202, 201 N.E. 2d 386 (1964), the courts of those jurisdictions had occasion, subsequent to the Gerstein
case, to comment on the book "Tropic of Cancer" and in each instance held Gerstein was controlling and the circulation of the book could not be enjoined.
This Court held in Commonwealth v. Blumenstein, 396 Pa. 417, 153 A.2d 227 (1959), that in determining the constitutionality of state obscenity statutes, the decisions of the federal courts are conclusive. Hence, even if we were to conclude that "Tropic of Cancer" is obscene we still would be required to reverse the lower court's holding since the Supreme Court of the United States has determined that the material involved is constitutionally protected and the circulation of the book may not be enjoined.
Concurring Opinion by Mr. Chief Justice Bell:
I consider "Tropic of Cancer" a lewd, obscene book, which should be banned. However, I reluctantly concur in the result reached by a majority of this Court. My decision is mandated by the United States Supreme Court decisions in Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, and Grove Press, Inc. v. Gerstein, 378 U.S. 577, 84 S. Ct. 1909.
Concurring Opinion by Mr. Justice Roberts:
The decision of the Supreme Court of the United States in Grove Press v. Gerstein, 378 U.S. 577, 84 S. Ct. 1909 (1964) (per curiam), has made clear that the sale or distribution of the "Tropic of Cancer" may not be absolutely proscribed. We are bound by that decision.
However, I do not view the decision in Grove Press v. Gerstein or the decision of this Court today to preclude governmental action designed to shield our juvenile population from the potentially adverse effect of
premature exposure to the "Tropic of Cancer" or like material.
Carefully drawn restrictions on the sale or distribution of such material to juveniles would in no way embody a novel approach. Courts have traditionally sanctioned policies which seek to accord special protection and treatment to our youth in such areas as the sale of intoxicating beverages, cigarettes and firearms; the operation and ownership of motor vehicles; the trial of juvenile offenders; and in many matters relating to their health, welfare, education and employment.
I share the concern of those who seek to protect our juvenile population and am of the view that such a policy in this area would have socially beneficial results. Neither the decisions of the Supreme Court of the United States nor the decisions of this Court prohibit governmental action which, while not inhibiting the right of adults to exercise their First Amendment privilege, insulates juveniles from material such as the "Tropic of Cancer", which they may lack the emotional maturity and judgment to place in proper perspective.
Dissenting Opinion by Mr. Justice Musmanno:
The decision of the Majority of the Court in this case has dealt a staggering blow to the forces of morality, decency and human dignity in the Commonwealth of Pennsylvania. If, by this decision, a thousand rattlesnakes had been let loose, they could not do as much damage to the well-being of the people of this state as the unleashing of all the scorpions and vermin of immorality swarming out of that volume of degeneracy called the "Tropic of Cancer." Policemen, hunters, constables and foresters could easily and
quickly kill a thousand rattlesnakes but the lice, lizards, maggots and gangrenous roaches scurrying out from beneath the covers of the "Tropic of Cancer" will enter into the playground, the study desks, the cloistered confines of children and immature minds to eat away moral resistance and wreak damage and harm which may blight countless lives for years and decades to come.
From time immemorial civilization has condemned obscenity because the wise men of the ages have seen its eroding effects on the moral fiber of a people; history is replete with the decadence and final collapse of mighty nations because of their descent into licentiousness and sloth.
Justice Fox of the District Court of Appeal of California in the case of California v. Williamson, 207 Cal. App. 2d 839, in discussing obscene and pornographic literature, said: "The effect of such 'literature' is to dull the moral sensitivity of many, if not most, of the people who read it. It serves to erode our moral standards and tends to bring about the moral decay of our people. If the time ever comes when the average person, applying contemporary standards, does not look upon such a book as detrimental to the public welfare, it will be a signal that our society has deteriorated to a low level and that our civilization is in danger of collapsing as other civilizations have in the past which have overindulged their appetites and cast aside decent standards of behavior."
United States Supreme Court Justice Harlan said in the case of Roth v. United States, 354 U.S. 476: "The State can reasonably draw the inference that over a long period of time the indiscriminate dissemination of materials, the essential character of which is to degrade sex, will have an eroding effect on moral standards."
In the case at bar the Commonwealth brought an action in equity to restrain the defendants from selling and offering for sale the book, "Tropic of Cancer," under the Act of June 1, 1956, P. L. (1955) 1997, as amended, 18 P.S. § 3832.1. After a long and exhaustive hearing, the court below found "Tropic of Cancer" obscene and issued the prayed-for injunction. The defendants appealed. This Court has reversed.
In the court below the defendants contended that the book "Tropic of Cancer" (hereinafter referred to for convenience in expression as "Cancer") was not obscene, that if obscene it was a work of social importance protected under the First Amendment to the Constitution of the United States, and that there was no proof that there was any association between obscenity and deleterious effects to society as a result thereof.
What is obscenity? Rivers of ink have flowed in an attempted definition of this word, and, more often than not, the greater the attempt at specificity, the more ambiguous has been the resulting language. The fact of the matter is that there is nothing complicated or puzzling about the word obscenity. It is a word as simple as cat. No person with reasonable intelligence and a modicum of human decency and dignity has any trouble in determining what is obscene. The determination does not require any long study in the laboratory, no working out of a mathematical formula. One sees at a glance whether a given exhibit or situation is obscene or not. In the case of Roth v. United States, the Supreme Court said: "Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '. . . [T]he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by
common understanding and practices. . . .' . . . These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark '. . . boundaries sufficiently distinct for judges and juries fairly to administer the law.'"
The Court then defined obscenity as follows: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest . . . 'and if it goes substantially beyond customary limits of candor in description or representation of such matters.'" Is "Cancer" obscene?
Dr. Austin Joseph App teaches English and English Literature at LaSalle College. He obtained his Ph.D. at the Catholic University in English literature and philosophy, he is the author of some seven books. He was asked if, after reading "Cancer," it came within the definition of obscenity as laid down in the Roth case. He replied that it was his impression that Henry Miller, the author of the book, "wrote it precisely to fit that definition. It is obscene."
Mrs. Sigrid Craig is a graduate of the University of Pennsylvania, having majored in English and minored in psychology. She taught English in the Philadelphia High School for Girls, and for 24 years headed several of the citywide "committees interested in the welfare of my city." She was asked whether, under the obscenity definition of the United States Supreme Court, she thought that "Cancer," after having read it, was obscene. She replied: "There is no question about it the fact that the book is obscene, none whatever. . . There is no question, I think, that the entire recountal has to do with sex experiences that are unpleasant and filthy in the extreme. There is certainly no question that the love element, as we know it and like to think
of it, is completely devastated. The angle, as far as women are concerned, is entirely prostituted; there is as far as I could see, nothing but obscenity in his approach to life. I abhor the book."
The district attorney quoted Life magazine as classifying "Cancer" as "unbridled obscenity." The trial court found, as a fact, after the hearing, and after reading the book, that it was obscene.
The book "Tropic of Cancer" with its lewd companion "Tropic of Capricorn" was considered by the United States Court of Appeals for the Ninth Circuit, under an Act of Congress prohibiting the importation of obscene books, in the case of Besig v. United States, 208 F. 2d 142. The Court found the books obscene. It would appear that the "Tropic of Capricorn," although coming from the same author as "Tropic of Cancer" somehow was regarded by the district attorney in this case as "less objectionable." Thus what is said by the Circuit Court about obscenity applies in full force to "Cancer." Judge Stephens declared: "The vehicle of description is the unprintable word of the debased and morally bankrupt. Practically everything that the world loosely regards as sin is detailed in the vivid, lurid, salacious language of smut, prostitution, and dirt. And all of it is related without the slightest expressed idea of its abandon. . . The author conducts the reader through sex orgies and perversions of the sex organs, and always in the debased language of the bawdy house. Nothing has the grace of purity or goodness. These words of the language of smut, and the disgraceful scenes, are so heavily larded throughout the books that those portions which are deemed to be of literary merit do not lift the reader's mind clear of their sticky slime. . .
"The civilization of our times holds to the premise that dirt in stark nakedness is not generally and at all times acceptable. And the great mass of the people
still believe there is such a thing as decency. Indecency is easily recognizable. . .
"The statute forbidding the importation of obscene books is not designed to fit the normal concept of morality of society's dregs, nor of the different concepts of morality throughout the world, nor for all time past and future, but is designed to fit the normal American concept in the age in which we live. It is no legitimate argument that because there are social groups composed of moral delinquents in this or in other countries, that their language shall be received as legal tender along with the speech of the great masses who trade ideas and information in the honest money of decency.
". . . If an incident, integrated with the theme or story of a book, is word-painted in such lurid and smutty or pornographic language that dirt appears as the primary purpose rather than the relation of a fact or adequate description of the incident, the book itself is obscene . . .
". . . We share the general antipathy to censorship and we are aware that individual tastes and special occasions and different times and different peoples differ as to what is offensive language. Yet we risk the assertion that there is an underlying, perhaps universal, accord that there is a phase of respectable delicacy related to sex, and that those compositions which purposefully ...