Massachusetts Superior Court Bans Sale of Miller's 'Tropic of Cancer'

To the emancipated, it will seem that ancient whiffs of brimstone still linger on Boston streets. And those who like to concern themselves with threats to the Commonwealth's morals will breathe a sigh of relief. But by far the largest group of people--those who have not yet purchased their copy of Henry Miller's Tropic of Cancer--won't even be able to find out what the fuss is all about.

For the Attorney General's office has won its suit to have Tropic of Cancer declared obscene, and the book is now permanently banned in Massachusetts.

In a blunt, five-page decision issued yesterday, Superior Court Judge Lewis Goldberg decreed the novel "obscene, indecent, and impure." The Judge's decision came six weeks after the hearings in which the lawyer for Henry Miller and Grove Press, Mr. Ephraim London, had tried to show that the book was not obscene.

Experts Defend Book

London brought in literary critics, such as Mark Schorer, Harry Moore, and Harry T. Levin, who had praised Tropic of Cancer's literary merit. Also, the defense raised some constitutional objections to the Massachusetts obscenity statute, arguing that the hearings were a violation of the First and Fourteenth amendment constitutional rights.

At the hearings, Goldberg had refused to rule on the constitutionality of the Massachusetts statute. In yesterday's decision, he returned to this point: "It should be here noted that this Court is not passing on the question whether literary censorship is or is not desirable. The Court has nothing to do with that issue. It does not have the power to legislate. Its function is to apply the laws enacted by the Legislature . . ."

Cites Precedent

And the law in this case, Goldberg said, has been determined by both the U.S. Supreme Court and the Mass. Supreme Judicial Court. In Roth v. United States, the Supreme Court held that obscenity is outside the protection of free speech and free press; and it had set a test for obscenity: "whether to the average person, applying contemporary community standards the dominant theme of the material taken as a whole appeals to prurient interest."

The Supreme Judicial Court of Massachusetts (in Commonwealth v. Isenstadt) laid down another definition of obscenity: "A book is obscene, indecent, or impure if it has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires."

"I have carefully and painstakingly read the book from cover to cover," Judge Goldberg concluded. "Applying the law applicable to the book. I am irresistibly led to the conclusion that the book is obscene, indecent, and impure."

"The Filthy Gutter"

Of the 313 pages of the book, there are sex episodes on 35 pages, some of which are described on two or more pages, and all of which are described "with precise detail and four-letter words," he said. "The author's descriptive powers one truly impressive, and he rises to great literary heights when he describes Paris. And suddenly he descends into the filthy gutter."

Grove Will Appeal

Barney Rosset, the head of Grove Press, said that the firm would certainly appeal Goldberg's decision to the Supreme Judicial Court of Massachusetts. Also, William P. Homans, Jr., a lawyer representing some Boston booksellers, said that he would appeal the ruling.