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COMMONWEALTH v. DELL PUBLICATIONS (09/29/67)

decided: September 29, 1967.

COMMONWEALTH
v.
DELL PUBLICATIONS, INC., APPELLANT



Appeal from decree of Court of Common Pleas No. 8 of Philadelphia County, Dec. T., 1964, No. 3167, in case of Commonwealth of Pennsylvania v. Dell Publications, Inc., Parliament News Company, Publishers Distribution Corp. et al.

COUNSEL

Albert B. Gerber, with him Gerber, Galfand & Berger, for appellants.

David L. Creskoff, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones, Mr. Justice Eagen and Mr. Justice O'Brien join in this opinion of the Court. Mr. Justice Cohen took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Jones. Mr. Justice Eagen and Mr. Justice O'Brien join in this concurring opinion. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Musmanno.

Author: Roberts

[ 427 Pa. Page 191]

In response to a complaint in equity filed by the District Attorney of Philadelphia County, the court of common pleas of that county held a hearing to determine whether the book "Candy" was obscene within the meaning of the Act of June 1, 1956, P. L. (1955) 1997, as amended, September 22, 1961, P. L. 1587, 18 P.S. § 3832.1*fn1 and the First and Fourteenth Amendments to the Constitution of the United States.*fn2

A hearing on the district attorney's complaint was held in March 1965, but the court below withheld its adjudication pending the disposition by the Supreme Court of the United States of three obscenity cases then on appeal to that Court.*fn3 On June 9, 1966, the

[ 427 Pa. Page 192]

    court below, obviously frustrated because the long awaited decisions did not materially ease its task,*fn4 found "Candy" to be an obscene publication within the meaning of the Pennsylvania Act and hence not entitled to the protection of the First and Fourteenth Amendments. See Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304 (1957). Exceptions were filed but they were overruled by the court en banc. The Dell Publishing Company, and the five additional defendants in the action below, have appealed from the issuance of a permanent injunction enjoining the sale and distribution of "Candy" in Philadelphia County.

We reverse, for the reasons stated hereinafter, because we conclude that the court below erroneously interpreted the standards for determining obscenity set forth by the Supreme Court of the United States and, in particular, viewed the book from a perspective inconsistent with these opinions. Our decision in this case, however, should not, in any manner, be construed as an approval of "Candy" -- indeed some members of this Court personally find the book to be revolting and disgusting. While we respect the views of those who believe this book is "obscene" we hold it does not fall within the class of "legal obscenity" so that, in a free society, its circulation may be indiscriminately prohibited.*fn5

[ 427 Pa. Page 193]

The Constitution has thrust upon the judiciary the obligation of acting as a Board of Censors which requires us to consider each challenged work on a case-by-case basis.*fn6 Yet in approaching this arduous and unpleasant task we must be mindful of our inherent limitations. For as Mr. Justice Douglas has reminded us, "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 . . . [and a conclusion reached] irrespective of whether we would include [the challenged work] in our own libraries."*fn7 The necessity of such an approach was articulated by Judge Moore of the Second Circuit in an opinion holding, largely on the basis of expert testimony, that, despite his obvious adverse reaction, the Swedish Film "491" was not constitutionally obscene:*fn8 "I [Judge Moore] personally found '491' repulsive and revolting. . . . Were I to be vested with dictatorial powers, I would ban and destroy the trash (in my opinion) which infests the news kiosks and the movie theatres in certain areas of New York City. I would do all this

[ 427 Pa. Page 194]

    in the vainglorious belief that I was acting as a Beneficent Tyrant for the good of all Mankind. But the very utterance of these thoughts is more than sufficient reason to shy away from censorship except in extreme cases. If we are to survive, we should probably survive on the Darwinian theory which should include the ability to cope with our current books, stage and cinema."

In the instant litigation, however, both the comments made during the hearing and the formal adjudication indicate that the hearing judge proceeded on the premise that, in the final analysis, his own subjective reaction, in and by itself, was the determining factor.*fn9 As the law of obscenity now stands the judge's subjective analysis is of course relevant to the ultimate issue,*fn10 but the mere donning of judicial robes does not make us the embodiment of the "average person" nor do our tastes necessarily parallel those of the "contemporary community."

The totally subjective approach adopted by the court below was palpable error. "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 history and tradition of our institutions stand against the suppression of books." Larkin v. G. P. Putnam's Sons, 14 N.Y. 2d 399, 401, 200 N.E. 2d 760, 761 (1964).

Constitutional fact finding is an essential element of any obscenity case*fn11 because "all ideas having even

[ 427 Pa. Page 195]

    the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of [constitutional] guaranties, unless excludable because they encroach upon the limited area of more important interests." Roth v. United States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1309 (1957). But, the Roth Court continued, "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." Ibid. Thus the determination that a book is obscene carries with it the conclusion that the book is not speech within the meaning of the First Amendment.

However, the last quoted sentence from Roth is logically circular and can be interpreted in either of two ways. On the one hand, one can conclude, as do Justices Clark and White,*fn12 that obscenity by definition has no redeeming social importance. On the other hand, Justice Brennan believes that a work which has even a minimum of social importance is by definition not obscene, a view shared by Chief Justice Warren and Justice Fortas.*fn13 Since Justices Black, Douglas and Stewart believe that the Brennan approach is too restrictive, we must accept the Brennan analysis as "settled law" with respect to obscenity vel non, at least until five members of the Court agree on a new definition. This is because simple arithmetic shows that the votes of the "Brennan block" along with that of the "Black-Douglas-Stewart axis" will, of necessity, result in a finding that the work, in the absence of pandering,*fn14 is entitled to constitutional protection.*fn15

[ 427 Pa. Page 196]

The impact of Mr. Justice Brennan's analysis means that in determining the constitutional fact of obscenity vel non the evidence must be viewed in a light favorable to the book's circulation. As we read his opinions in Roth and Memoirs, any other approach would not provide first amendment freedoms with the necessary "breathing space to survive." NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 338 (1963). Compare, Monaghan, Obscenity, 1966: The Marriage of Obscenity Per Se and Obscenity Per Quod, 76 Yale L.J. 127, 150-55 (1966).

Finally, before turning to the evidence presented in the instant case, it should be pointed out that neither Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942 (1966), nor Mishkin v. New York, 383 U.S. 502, 86 S. Ct. 958 (1966), decided the same day as Memoirs, is, as the court below recognized, relevant to the case at bar. In Ginzburg a majority of the Court adopted the variable approach to obscenity*fn16 which had long been advocated by Mr. Chief Justice Warren.*fn17 The Court

[ 427 Pa. Page 197]

    proceeded on the assumption that the materials in question were not themselves obscene (indeed it all but conceded this point) but held that Ginzburg's method of "pandering" his wares made them obscene. In Mishkin the defendant's conduct, rather than the materials themselves, was also the focus of the Court's concern. Moreover, Mishkin's sole contention regarding the nature of his books was not their obscenity vel non but rather whether the prurient appeal of the work was to be judged in terms of its effect on the average person or is to be assessed in terms of its effect on the members of the "intended and probable recipient group."*fn18

No evidence whatsoever was presented at the proceedings below concerning the conduct of the present appellants. The procedural posture of this case is identical with that of Memoirs, for in both instances it was the book which was on trial.*fn19 In his opening

[ 427 Pa. Page 198]

    sentence in the Memoirs opinion, Mr. Justice Brennan emphasized the crucial importance this difference made when he pointedly said: "This is an obscenity case in which ["Fanny Hill"] was adjudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor." 383 U.S. at 415, 86 S. Ct. at 975. And as in Memoirs, it does not necessarily follow from our holding in this case "that a determination that ["Candy"] is obscene in the constitutional sense would be improper under all circumstances," see id. at 420, 86 S. Ct. at 978.

Candy and the Roth-Memoirs Test

For our purpose a lengthy description of "Candy" is unnecessary. It is sufficient to note that the plot is devoted almost exclusively to the normal and abnormal sexual adventures of its heroine, a coed named Candy Christian, and that these adventures are described in considerable detail. Every one of its 15 chapters centers around a particular sexual incident in the heroine's life. It is generally conceded, by the book's friends and foes, that it is a satire or at least an attempt at satire upon the cultural ideals of our contemporary society.

Roth defines obscenity in the following terms, which incidentally are identical with the definition given in

[ 427 Pa. Page 19918]

P.S. § 3833: "[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." 354 U.S. 476, 489, 77 S. Ct. 1304, 1311 (1957). "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." Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S. Ct. 975, 977 (1966) (Brennan, J.). Keeping in mind that "Candy" must meet each of the above mentioned tests before it can be declared legally obscene, we shall consider separately the evidence adduced below on each of the three elements.

A. Appeal to Prurient Interest : This is perhaps the most difficult of the three elements to define; what appeals to the prurient interest of one individual may not appeal to the prurient interest of another.*fn20 Some cases may pose a problem of group definition,*fn21 but it is conceded that "Candy's" appeal is to the community at large and thus we must judge its prurient appeal to the "average person."

Unfortunately, there was practically no testimony offered concerning "Candy's" appeal to the prurient interest of the average adult citizen.*fn22 Most of the Commonwealth's

[ 427 Pa. Page 200]

    witnesses, as well as the judge himself, were primarily concerned with the book's adverse effect on children, teenagers, and emotionally unstable individuals, a point which is generally conceded by the defense. At the same time some of the Commonwealth's witnesses conceded that the book's prurient appeal to the emotionally mature adult would be de minimis at most.

Over half a century ago Judge Learned Hand spoke out against the then prevailing test of obscenity, derived from Regina v. Hicklin, [1868] 3 Q.B. 360, which judged a work in terms of its effect on the most susceptible recipient group: "To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy." United States v. Kennerley, 209 Fed. 119, 121 (S.D.N.Y. 1913). The Hicklin test has been subsequently rejected by the Supreme Court of the United States and the one advocated by Judge Hand substituted therefor. See Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304 (1957); Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676 (1964); Smith v. California, 361 U.S. 147, 160, 169, 80 S. Ct. 215, 222, 227 (1959) (Frankfurter and Harlan, JJ., concurring). This does not mean that society may not by carefully drawn statutes prevent juveniles from obtaining literature which may have an adverse effect on them. See Commonwealth v. Robin, 421 Pa. 70, 72, 218 A.2d 546, 547 (1966) (concurring opinion); cf. Redrup v. New York, 386 U.S. 767, 87 S. Ct. 1414 (1967). But to destroy literature solely because of its possible effect on the children, and thus "reduce

[ 427 Pa. Page 201]

    the adult population . . . to reading only what is fit for children," is surely, as Mr. Justice Frankfurter observed, "to burn the house to roast the pig." See Butler v. Michigan, 352 U.S. 380, 383, 77 S. Ct. 524, 526 (1957), holding that Michigan could not constitutionally prevent any circulation of a book merely because of its potential deleterious influence on youth. Cf. Ginzburg v. United States, 383 U.S. 463, 465 n.3, 86 S. Ct. 942, 944 n.3 (1966). Thus, in the absence of any attempt to prohibit "Candy's" sales to children, the testimony concerning its effect on children was largely irrelevant.

Nevertheless, we shall assume that the Commonwealth has adequately shown that "the dominant theme . . . taken as a whole appeals to a prurient interest in sex." This area is one where a judge's subjective reaction is most relevant; the hearing judge, the court en banc below, and the members of this Court agree that "Candy" has the requisite prurient appeal.

B. Contemporary Community Standards : Before a finding of legal obscenity can be sustained the evidence must show that "the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters." Memoirs v. Massachusetts, 383 U.S. at 418, 86 S. Ct. at 977 (1966); see Commonwealth v. Baer, 209 Pa. Superior Ct. 349, 227 A.2d 915 (1967); cf. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S. Ct. 1432 (1962) (Harlan, J.). Most of the debate over the term "contemporary community standards" has centered around the question of whether the relevant community is to be defined in terms of the nation-at-large or some smaller sector. Compare Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676 (1964) (Brennan, J.) with id. at 199, 84 S. Ct. at 1684 (Warren,

[ 427 Pa. Page 202]

C. J., dissenting).*fn23 However, since the instant case arose out of Philadelphia County, one of the nation's more sophisticated areas, the resolution of this debate is not essential to our disposition. Cf. Commonwealth v. Baer, supra at 353 n.3, 227 A.2d at 918 n.3.

One aspect of obscenity litigation in which the Supreme Court seems to be unanimous is that contemporary community standards are to be judged by the standards of the current year rather than by the standards of 5, 10, 50, or 100 years ago.*fn24 See Jacobellis v. Ohio, supra; Smith v. California, 361 U.S. 147, 160, 169, 80 S. Ct. 215, 222, 227 (1959) (Frankfurter and Harlan, JJ. concurring). This is also the test of The American Law Institute Model Penal Code which has been cited with approval by the Court in Roth and subsequent cases. Indeed the Commonwealth's brief, which devotes less than one hundred words to the contemporary community standards problem, conceded this point.

There are two yardsticks by which contemporary community standards may be judged. One is to compare the challenged book to other books which have either been held entitled to the protection of the First Amendment or, in the absence of litigation, which meet contemporary standards and are substantially similar to the challenged book. The other is to consider the reception the book received from the community when

[ 427 Pa. Page 203]

    it was released.*fn25 Regardless of our own personal views, under either test, the undisputed evidence clearly demonstrates that the court below erred when it concluded that "Candy" went far beyond customary limits of candor.*fn26

The Commonwealth presented practically no evidence whatsoever concerning "Candy's" relationship to contemporary community standards.*fn27 While its witnesses*fn28 testified that in their personal view "Candy" far exceeded customary limits of candor, they admitted being totally unfamiliar with contemporary fiction. Two of the witnesses had indeed read "Tropic of Cancer," but despite a clear Supreme Court holding to the contrary*fn29 they continued to believe the book ought to be banned. While we respect these personal opinions, it does indicate that their views of contemporary

[ 427 Pa. Page 204]

    standards differ markedly from those of the Supreme Court.*fn30

On the contrary, the defense witnesses*fn31 showed considerable familiarity with contemporary erotic literature. They testified that while "Candy" might have exceeded customary limits of candor in the early 1960's it did not exceed them when published in 1964. In comparing "Candy" to other allegedly obscene books, one witness described it as a "fairy tale" when compared with William Borroughs' "Naked Lunch" and another found it to be a far superior book to "Fanny Hill" which he described as "purely pornographic junk." Both these books, in litigation concluded subsequent to this testimony, have been held not to be legally obscene.*fn32

When "Candy" was first published in this country it was reviewed in over a hundred newspapers and periodicals, many of which were introduced by the defense in the proceedings below. While many of these reviews panned the book and some showed utter distaste for it, almost without exception, they recognized it as

[ 427 Pa. Page 205]

    a serious attempt at satire, and again almost without exception, concluded it was not pornography. Typical of these reviews were those published in the mass media magazines of "Life," "Newsweek," and "Time," excerpts of which we have reprinted in Appendix A.*fn33 In addition, within a relatively short time following its publication "Candy" sold over two and a half million copies in the hard cover edition and appeared on the New York Times Best Seller List for 35 weeks; during this period sales in Philadelphia department stores reflected the book's popularity. For two weeks during September 1964 it was the number two best seller in the nation. Since most, if not all, of the books discussed in the last part of this opinion, which have been held not to be legally obscene, are never reviewed and never approach the best seller category, "Candy's" reception by the American press and public is highly significant.

C. Redeeming Social Importance : Following the conclusion of the "Fanny Hill" litigation, in which the Supreme Judicial Court of Massachusetts was reversed by the Supreme Court of the United States, the Massachusetts Court had occasion to consider the obscenity vel non of William Borroughs' "Naked Lunch." Although to the Court the book was "grossly offensive" and was "what the author himself says, 'brutal, obscene and disgusting,'" it nevertheless held in a per curiam opinion that the book was protected by the First Amendment: "As to whether the book has any redeeming social value, the record contains many reviews and articles in literary and other publications discussing

[ 427 Pa. Page 206]

    seriously this controversial book portraying the hallucinations of a drug addict. Thus it appears that a substantial and intelligent group in the community believes the book to be of some literary significance. Although we are not bound by the opinions of others concerning the book, we cannot ignore the serious acceptance of it by so many persons in the literary community. Hence, we cannot say that 'Naked Lunch' has no 'redeeming social importance in the hands of those who publish or distribute it on the basis of that value.' See the Memoirs case at p. 421 [86 S. Ct. at p. 979]." Attorney General v. A Book Named "Naked Lunch ", 351 Mass. 298, 299, 218 N.E. 2d 571-72 (1966).

From what has been said in the section under contemporary community standards it should be evident that "Candy" has at least a minimum or modicum of social value, which is all that is required, absent evidence of pandering, to shield a book with the protection of the First Amendment. For, as Mr. Justice Brennan stated in Memoirs, 383 U.S. at 419, 86 S. Ct. at 978 (emphasis in original): "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."*fn34

In addition, several of the Commonwealth's own witnesses' testimony indicates that "Candy" has a "modicum" of social ...


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