Dirty Books In Spotlight Again

One day about a year ago, a 15-year-old boy in a small town in Massachusetts smuggled a small paperback into his house on his way home from school. It was only 95c, and he had heard from his friends that it was really a bargain at that price, so he thought he would take a look at it. the only trouble was that his mother happened to find it around his room, and she called a friend to tell her about her son's shocking purchase. This friend had a cousin who knew a lot about "dirty books," the mother learned, and so she called her, too.

It turned out that the cousin was indeed an authority on "dirty books;" she even helps select them for the Commonwealth of Massachusetts. As soon as she had all the details, she called the chairman and asked him to summon a meeting of the Massachusetts Obscene Literature Control Commission, in order that it might consider the case of the notorious Fanny Hill, which is chock full of tales of sexual experiences.

John Cleland's Memoirs of a Woman of Pleasure (Fanny Hill) is ideal prey for people who like to think about banning books. This subject of Massachusetts' most recent attack also figured in what is believed to be the first recorded suppression of literature on grounds of obscenity in the United States, Commonwealth v. Holmes, an 1821 case in which two Massachusetts men were indicted "for publishing a lewd and obsecene print, contained in a certain book entitled Memoirs of a Woman of Pleasure, and also for publishing the said book."

Case Reopens This Week

Massachusetts will have its last opportunity--for a while anyway--to pass judgment on this eighteenth century novel when its Supreme Judicial Court opens the January, 1965 term this week. On the docket will be the appeal of G. P. Putnam's Sons, publisher of the contested edition, in Edward W. Brooke (Attorney General) v. A Book Named "John Cleland's Memoirs of a Woman of Pleasure" (Commonly Known as Fanny Hill). Justice Donald M. Macaulay of the Massachusetts Superior Court finally ruled on Sept. 22 that "this book is utterly without redeeming social importance in the fields of art, literature, science, news or ideas of any social importance and that it is obscene, indecent and impure."

The book is officially illegal in the Commonwealth now; and it has become increasingly difficult to obtain a copy since the Obscene Literature Control Commission moved against it in January, 1964. Once the 15-year-old's purchase of Fanny had been reported to the Commission, it recommended prosecution to the Attorney General's office. Made up of three clergymen, a high school principle, a police chief, and a newspaper publisher, the Commission is chaired by Joseph Zabriskie, who insists that the "rank-and-file in the state" endorse its efforts to seek out obscene literature which is alien to prevailing community standards.

Attorney General Brooke's office received the recommendation of the Commission with marked restraint and set out for the Courtroom in early February with the half-hearted assertion that "it is at least an arguable issue" that the book should be banned. But it didn't take much work to convince the Courts; Justice Eugene A. Hudson of Suffolk County Superior Court read Fanny and promptly issued an "order of notice" that "there is reasonable cause to believe that (Fanny Hill) is obscene, indecent, and impure." On March 19, Putnam's answered the order and made it clear that it intended to fight Massachusetts on the issue. Putnam's president Walter J. Minton '45 retained Reuben Goodman '35, a prominent figure in the Civil Liberties Union of Massachusetts, and Charles I.Rombar '35, a New York lawyer who is well-known for his successful work in censorship cases, to defend the book.

In the meantime, Fanny Hill broke sales records in Harvard Square bookstores; whether titillating themselves or enjoying its literary and historic merit, members of the Harvard community bought an unprecedented number of copies. The Coop reported at the time that Fanny was selling "like mad." Not until their supplies were exhausted did local bookstores note that the Attorney General's office had suggested they would be "virtually defenseless" if the book were finally banned and criminal proceedings were brought against them for selling it.

Fanny and the Commonwealth met head on before Justice Macaulay on May 27 in Suffolk County Superior Court. A full day of testimony saw Assistant Attorney General John E. Sullivan call but one witness, as the publisher enlisted the assistance of five Massachusetts English experts, including John M. Bullitt '43, professor of English and Master of Quincy House.

Testifying for the book, Bullitt said that Cleland was "presenting here a moral situation in which he is affirming certain moral values, certain attitudes. The structure of this affirmation is to set somewhat in opposition the idea of sensual delight on the one hand to . . . prudence, or rationality, on the other. . . . The sense of the novel can be construed as the education of a young woman in moral life; she learns . . . the value of love." Bullitt suggested further that "this clearly is a piece of rather remarkable social history of interest to anyone who is interested in fiction as a way of understanding society in the past."

"Dirty, i.e. Esoteric"

John E. Collins, headmaster of the Newman Preparatory School, was the sole witness for the Attorney General's office. He testified that Fanny arouses "prurient interest" in a reader and that it is "hard core pornography." When Rombar queried him on his understanding of the meaning of prurient," Collins replied that "dirty," "sexual," and "esoteric" would all be acceptable definitions.

Reviewing the legal precedents for a decision in either direction, Macaulay decided Fanny Hill "goes far beyond and substantially beyond customary limits of candor and makes persistent appeals to shameful and morbid interests in prolonged, detailed and florid descriptions of sexual activities;" he also asserted his agreement with the dissent in the 4-3 New York Court of Appeals decision that the book is protected by the First Amendment.

Rombar and Goodman will take their case to the Supreme Judicial Court this week, with basically the same appeal brief that Putnam's has used on countless other occasions. It contends that Fanny cannot be denied the protection of free expression under the First Amendment when any of these tests established by the United States Supreme Court for it are applied:

* Social Value--Published opinions and testimony, says the publisher, have established that Fanny Hill has social value.

* Prurient Interest--Since "its subject matter is dealt with in daily newspapers" and there is not in the book a single objectionable word," this test does not disqualify it either, says Putnam's.

* Patent Offensiveness--Testimony confirms "the absence of the gross, the presence of elegance," and "elegance is the antithesis of offensiveness," according to the brief.

* Hard-Core Pornography--On the basis of distinction made in Federal and state courts, Fanny Hill does not qualify for exclusion here, the publisher argues.

It will not be easy, but the decision of the Supreme Judicial Court of Massachusetts must take into account that same Court's important ruling in the Tropic of Cancer case here. At that time it said "the First Amendment protects material which has value because of ideas, news, or artistic, literary or scientific attributes." There is also the influence of the recent New York decision permitting Fanny Hill to circulate, as well as that of recent cases in the United States Supreme Court that have leaned toward protection of the writing at issue.

Even a restrained prediction would have to say that it looks like Fanny will soon be loose in Massachusetts again. Fifteen-year-olds, beware.