Tom C. Clark

“ From a legal standpoint, we must remember that obscenity is no less obscene though it be expressed in 'elaborate language.' Indeed, the more meticulous its presentation, the more it appeals to the prurient interest. To say that Fanny is an 'intellectual' is an insult to those who travel under that tag. ”

“ In my view evidence of social importance is relevant to the determination of the ultimate question of obscenity. But social importance does not constitute a separate and distinct constitutional test. Such evidence must be considered together with evidence that the material in question appeals to prurient interest and is patently offensive. Accordingly, we must first turn to the book here under attack. I repeat that I regret having to depict the sordid episodes of this book.
Memoirs is nothing more than a series of minutely and vividly described sexual episodes. ”

“ Massachusetts now has to retry the case although the 'Findings of Fact, Rulings of Law and Order for Final Decree' of the trial court specifically held 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.' I quote portions of the findings:
'Opinions of experts are admitted in evidence to aid the Court in its understanding and comprehension of the facts, but, of course, an expert cannot usurp the function of the Court. ”

“ Another item offered by the defense described Memoirs as being 'widely accredited as the first deliberately dirty novel in English.' However, the reviewer found Fanny to be 'no common harlot. Her 'Memoirs' combine literary grace with a disarming enthusiasm for an activity which is, after all, only human. What is more, she never uses a dirty word.' The short answer to such 'expertise' is that none of these so-called attributes have any value to society. On the contrary, they accentuate the prurient appeal. ”

“ Whatever the scope of the social value criterion-which need not be defined with precision of fact will weigh evidence of the material's influence in causing deviant or criminal conduct, particularly sex crimes, as well as its effect upon the mental, moral, and physical health of the average person. Brother DOUGLAS' view as to the lack of proof in this area is not so firmly held among behavioral scientists as he would lead us to believe. For this reason, I should mention that there is a division of thought on the correlation between obscenity and socially deleterious behavior. ”

“ Other experts produced by the defense testified that the book emphasizes the profound 'idea that a sensual passion is only truly experienced when it is associated with the emotion of love' and that the sexual relationship 'can be a wholesome, healthy, experience itself,' whereas in certain modern novels 'the relationship between the sexes is seen as another manifestation of modern decadence, insterility or perversion.' In my view this proves nothing as to social value. ”

“ While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior or other antisocial conduct. [5] For example, Dr. George W. Henry of Cornell University has expressed the opinion that obscenity, with its exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person. ”

“ There are obviously dynamic connections between art and sex-the emotional, intellectual, and physical-but where the former is used solely to promote prurient appeal, it cannot claim constitutional immunity. ”

“ Indeed, rather than recognizing the 'utterly without social importance' test, The Chief Justice in his dissent in Jacobellis, which I joined, specifically stated:
'In light of the foregoing, I would reiterate my acceptance of the rule of the Roth case: Material is obscene and not constitutionally protected against regulation and proscription if 'to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. ”

“ I think the central character is * * * what I call an intellectual * * * someone who is extremely curious about life and who seeks * * * to record with accuracy the details of the external world, physical sensations, psychological responses * * * an empiricist * * *. ”