Ginzburg v. United States ex rel. Mishkin/Dissent Douglas

by William O. Douglas

United States Supreme Court

383 U.S. 463

Ralph GINZBURG et al., Petitioners,  v.  UNITED STATES. Edward MISHKIN, Appellant,

Mr. Justice DOUGLAS, dissenting in Nos. 42 and 49.

Today's condemnation of the use of sex symbols to sell literature, engrafts another exception on First Amendment rights that is as unwarranted as the judge-made exception concerning obscenity. This new exception condemns an advertising technique as old as history. The advertisements of our best magazines are chock-full of thighs, ankles, calves, bosoms, eyes, and hair, to draw the potential buyer's attention to lotions, tires, food, liquor, clothing, autos, and even insurance policies. The sexy advertisement neither adds to nor detracts from the quality of the merchandise being offered for sale. And I do not see how it adds to or detracts one whit from the legality of the book being distributed. A book should stand on its own, irrespective of the reasons why it was written or the wiles used in selling it. I cannot imagine any promotional effort that would make chapters 7 and 8 of the Song of Solomon any the less or any more worthy of First Amendment protection than does their unostentatious inclusion in the average edition of the Bible.

The Court has, in a variety of contexts, insisted that preservation of rights safeguarded by the First Amendment requires vigilance. We have recognized that a 'criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms.' Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22. Where uncertainty is the distinguishing characteristic of a legal principle-in this case the Court's 'pandering' theory-'the free dissemination of ideas may be the loser.' Smith v. People of State of California, 361 U.S. 147, 151, 80 S.Ct. 215, 218, 4 L.Ed.2d 205. The Court today, however, takes the other course, despite the admonition in Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, that '(t)he separation of legitimate from illegitimate speech calls for * * * sensitive tools.' Before today, due regard for the frailties of free expression led us to reject insensitive procedures ^[1] and clumsy, vague, or overbroad substantive rules even in the realm of obscenity. ^[2] For as the Court emphasized in Roth v. United States, 354 U.S. 476, 488, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, '(t)he door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.'

Certainly without the aura of sex in the promotion of these publications their contents cannot be said to be 'utterly without redeeming social importance.' Roth v. United States, supra, 354 U.S. at 484, 77 S.Ct. at 1309. ^[3] One of the publications condemned today is the Housewife's Handbook on Selective Promiscuity, which a number of doctors and psychiatrists thought had clinical value. One clinical psychologist said: 'I should like to recommend it, for example, to the people in my church to read, especially those who are having marital difficulties, in order to increase their tolerance and understanding for one another. Much of the book, I should think, would be very suitable reading for teen age people, especially teen age young women who could empathize strongly with the growing up period that Mrs. Rey (Anthony) relates, and could read on and be disabused of some of the unrealistic notions about marriage and sexual experiences. I should think this would make very good reading for the average man to help him gain a better appreciation of female sexuality.'

The Rev. George Von Hilsheimer III, a Baptist minister, ^[4] testified that he has used the book 'insistently in my pastoral counseling and in my formal psychological counseling':

'The book is a history, a very unhappy history, of a series of sexual and psychological misadvantures and the encounter of a quite typical and average American woman with quite typical and average American men. The fact that the book itself is the history of a woman who has had sexual adventures outside the normally accepted bounds of marriage which, of course for most Americans today, is a sort of serial polygamy, it does not teach or advocate this, but gives the women to whom I give the book at least a sense that their own experiences are not unusual, that their sexual failures are not unusual, and that they themselves should not be guilty because they are, what they say, sexual failures.'

I would think the Baptist minister's evaluation would be enough to satisfy the Court's test, unless the censor's word is to be final or unless the experts are to be weighed in the censor's scales, in which event one Anthony Comstock would too often prove more weighty than a dozen more detached scholars, or unless we, the ultimate Board of Censors, are to lay down standards for review that give the censor the benefit of the 'any evidence' rule or the 'substantial evidence' rule as in the administrative law field. Cf. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Or perhaps we mean to let the courts sift and choose among conflicting versions of the 'redeeming social importance' of a particular book, making sure that they keep their findings clear of doubt lest we reverse, as we do today in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, because the lower court in an effort to be fair showed how two-sided the argument was. Since the test is whether the publication is 'utterly without redeeming social importance,' then I think we should honor the opinion of the Baptist minister who testified as an expert in the field of counseling.

Then there is the newsletter Liaison. One of the defendants' own witnesses, critic Dwight Macdonald, testified that while, in his opinion, it did not go beyond the customary limits of candor tolerated by the community, it was 'an extremely tasteless, vulgar and repulsive issue.' This may, perhaps, overstate the case, but Liaison is admittedly little more than a collection of 'dirty' jokes and poems, with the possible exception of an interview with Dr. Albert Ellis. As to this material, I find wisdom in the words of the late Judge Jerome Frank:

'Those whose views most judges know best are other lawyers. Judges can and should take judicial notice that, at many gatherings of lawyers at Bar Association or of alumni of our leading law schools, tales are told fully as 'obscene' as many of those distributed by men * * * convicted for violation of the obscenity statute. * * * 'One thinks of the lyrics sung * * * by a certain respected and conservative member of the faculty of a great law-school which considers itself the most distinguished and which is the Alma Mater of Many judges sitting on upper courts." ^[5]

Liaison's appeal is neither literary nor spiritual. But neither is its appeal to a 'shameful or morbid interest in nudity, sex, or excretion.' The appeal is to the ribald sense of humor which is-for better or worse-a part of our culture. A mature society would not suppress this newsletter as obscene but would simply ignore it.

Then there is EROS. The Court affirms the judgment of the lower court, which found only four of the many articles and essays to be obscene. One of the four articles consisted of numerous ribald limericks, to which the views expressed as to Liaison would apply with equal force. Another was a photo essay entitled 'Black and White in Color' which dealt with interracial love: a subject undoubtedly offensive to some members of our society. Critic Dwight Macdonald testified:

'I suppose if you object to the idea of a Negro and a white person having sex together, then, of course, you would be horrified by it. I don't. From the artistic point of view I thought it was very good. In fact, I thought it was done with great taste, and I don't know how to say it-I never heard of him before, but he is obviously an extremely competent and accomplished photographer.'

Another defense witness, Professor Horst W. Janson, presently the Chairman of the Fine Arts Department at New York University, testified:

'I think they are outstandingly beautiful and artistic photographs. I can not imagine the theme being treated in a more lyrical and delicate manner than it has been done here.

'I might add here that of course photography in appropriate hands is an artistic instrument and this particular photographer has shown a very great awareness of compositional devices and patterns that have a long and well-established history in western art.

'The very contrast in the color of the two bodies of course has presented him with certain opportunities that he would not have had with two models of the same color, and he has taken rather extraordinary and very delicate advantage of these contrasts.'

The third article found specifically by the trial judge to be obscene was a discussion by Drs. Eberhard W. and Phyllis C. Kronhausen of erotic writing by women, with illustrative quotations. ^[6] The worth of the article was discussed by Dwight Macdonald, who stated:

'I thought (this was) an extremely interesting and important study with some remarkable quotations from the woman who had put down her sense of love-making, of sexual intercourse * * * in an extremely eloquent way. I have never seen this from the woman's point of view. I thought the point they made, the difference between the man's and the woman's approach to sexual intercourse was very well made and very important.'

Still another article found obscene was a short introduction to and a lengthy excerpt from My Life and Loves by Frank Harris, about which there is little in the record. Suffice it to say that this seems to be a book of some literary stature. At least I find it difficult on this record to say that it is 'utterly without redeeming social importance.' ^[7]

Some of the tracts for which these publishers go to prison concern normal sex, some homosexuality, some the masochistic yearning that is probably present in everyone and dominant in some. Masochism is a desire to be punished or subdued. In the broad frame of reference the desire may be expressed in the longing to be whipped and lashed, bound and gagged, and cruelly treated. ^[8] Why is it unlawful to cater to the needs of this group? They are, to be sure, somewhat offbeat, nonconformist, and odd. But we are not in the realm of criminal conduct, only ideas and tastes. Some like Chopin, others like 'rock and roll.' Some are 'normal,' some are masochistic, some deviant in other respects, such as the homosexual. Another group also represented here translates mundane articles into sexual symbols. This group, like those embracing masochism, are anathema to the so-called stable majority. But why is freedom of the press and expression denied them? Are they to be barred from communicating in symbolisms important to them? When the Court today speaks of 'social value,' does it mean a 'value' to the majority? Why is not a minority 'value' cognizable? The masochistic group is one; the deviant group is another. Is it not important that members of those groups communicate with each other? Why is communication by the 'written word' forbidden? If we were wise enough, we might know that communication may have greater thereapeutical value than any sermon that those of the 'normal' community can ever offer. But if the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be 'utterly without redeeming social importance'? 'Redeeming' to whom? 'Importance' to whom?

We took quite a different stance in One, Inc. v. Olesen, 355 U.S. 371, 78 S.Ct. 364, 2 L.Ed.2d 352, where we unanimously reversed the decision of the Court of Appeals in 9 Cir., 241 F.2d 772 without opinion. Our holding was accurately described by Lockhart and McClure, Obscenity Censorship: The Core Constitutional Issue-What is Obscene? 7 Utah L.Rev. 289, 293 (1961):

'(This) was a magazine for homosexuals entitled One-The Homosexual Magazine, which was definitely not a scientific or critical magazine, but appears to have been written to appeal to the tastes and interests of homosexuals.' ^[9]

Man was not made in a fixed mould. If a publication caters to the idiosyncrasies of a minority, why does it not have some 'social importance'? Each of us is a very temporary transient with likes and dislikes that cover the spectrum. However plebian my testes may be, who am I to say that others' tastes must be so limited and that other tastes have no 'social importance'? How can we know enough to probe the mysteries of the subconscious of our people and say that this is good for them and that is not? Catering to the most eccentric taste may have 'social importance' in giving that minority an opportunity to express itself rather than to repress its inner desires, as I suggest in my separate opinion in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S., at 431-432, 86 S.Ct., at 984. How can we know that this expression may not prevent antisocial conduct?

I find it difficult to say that a publication has no 'social importance' because it caters to the taste of the most unorthodox amongst us. We members of this Court should be among the last to say what should be orthodox in literature. An omniscience would be required which few in our whole society possess.

This leads me to the conclusion, previously noted, that the First Amendment allows all ideas to be expressed-whether orthodox, popular, offbeat, or repulsive. I do not think it permissible to draw lines between the 'good' and the 'bad' and be true to the constitutional mandate to let all ideas alone. If our Constitution permitted 'reasonable' regulation of freedom of expression, as do the constitutions of some nations, ^[10] we would be in a field where the legislative and the judiciary would have much leeway. But under our charter all regulation or control of expression is barred. Government does not sit to reveal where the 'truth' is. People are left to pick and choose between competing offerings. There is no compulsion to take and read what is repulsive any more than there is to spend one's time poring over government bulletins, political tracts, or theological treatises. The theory is that people are mature enough to pick and choose, to recognize trash when they see it, to be attracted to the literature that satisfies their deepest need, and, hopefully, to move from plateau to plateau and finally reach the world of enduring ideas.

I think this is the ideal of the Free Society written into our Constitution. We have no business acting as censors or endowing any group with censorship powers. It is shocking to me for us to send to prison anyone for publishing anything, especially tracts so distant from any incitement to action as the ones before us.

Notes

1. Marcus v. Search Warrants etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649.
2. Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412; Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215; Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (opinion of Harlan, J.).
3. The Court's premise is that Ginzburg represented that his publications would be sexually arousing. The Court, however, recognized in Roth: '(S)ex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest * * * i.e., a shameful or morbid interest in nudity, sex, or excretion * * *.' Id., 354 U.S. 487 and n. 20, 77 S.Ct. 1310 (emphasis added). The advertisements for these publications, which the majority quotes (ante, at 468-469, n. 9), promised candor in the treatment of matters pertaining to sex, and at the same time proclaimed that they were artistic or otherwise socially valuable. In effect, then, these advertisements represented that the publications are not obscene.
4. Rev. Von Hilsheimer obtained an A.B. at the University of Miami in 1951. He did graduate work in psychology and studied analysis and training therapy. Thereafter, he did graduate work as a theological student, and received a degree as a Doctor of Divinity from the University of Chicago in 1957. He had extensive experience as a group counselor, lecturer, and family counselor. He was a consultant to President Kennedy's Study Group on National Voluntary Services, and a member of the board of directors of Mobilization for Youth.
5. United States v. Roth, 2 Cir., 237 F.2d 796, 822 and n. 58 (concurring opinion).
6. The Kronhausens wrote Pornography and the Law (1959).
7. The extensive literary comment which the book's publication generated demonstrates that it is not 'utterly without redeeming social importance.' See, e.g., New York Review of Books, p. 6 (Jan. 9, 1964); New Yorker, pp. 79-80 (Jan. 4, 1964); Library Journal, pp. 4743-4744 (Dec. 15, 1963); New York Times Book Review, p. 10 (Nov. 10, 1963); Time, pp. 102-104 (Nov. 8, 1963); Newsweek, pp. 98-100 (Oct. 28, 1963); New Republic, pp. 23-27 (Dec. 28, 1963).
8. See Krafft-Ebing, Psychopathia Sexualis, p. 89 et seq. (1893); Eisler, Man Into Wolf, p. 23 et seq. (1951); Stekel, Sadism and Masochism (1929) passium; Bergler, Principles of Self-Damage (1959) passim; Reik, Masochism in Modern Man (1941) passim.
9. The Court of Appeals summarized the contents as follows:
10. See, e.g., Constitution of the Union of Burma, Art. 17(i), reprinted in I Peaslee, Constitutions of Nations, p. 281 (2d ed. 1956); Constitution of India, Art. 19(2), II Peaslee, op. cit. supra, at p. 227; Constitution of Ireland, Art. 40(6)(1)(i), II Peaslee, op. cit. supra, at p. 458; Federal Constitution of the Swiss Confederation, Art. 55, III Peaslee, op. cit. supra, at p. 344; Constitution of Libya, Art. 22, I Peaslee, Constitutions of Nations, p. 438 (3d ed. 1965); Constitution of Nigeria, Art. 25(2), I Peaslee, op. cit. supra, at p. 605; Constitution of Zambia, Art. 22(2), I Peaslee, op. cit. supra, at pp. 1040-1041.