ATTORNEY GENERAL vs. THE BOOK NAMED "TROPIC OF CANCER."

CUTTER, J. The Attorney General proceeds under G. L. c. 272, Sections 28C-28G (inserted by St. 1945, c. 278, Section 1 [Note 1]), against a book by Henry Miller, "Tropic of Cancer" (Tropic), published by Grove Press, Inc. (Grove). Answers were filed by Grove, Miller, and other interveners, alleging that c. 272, Sections 28C through 28H, "as applied herein . . . violate rights of the intervenor[s] guaranteed . . . by the . . . Constitution of the United States," under the First Amendment, "as embraced in the Fourteenth Amendment," and under the Constitution of the Commonwealth, Part I, arts. 10, 12, and 16. The case was heard by a judge of the Superior Court, who made a report of material facts. A final decree was entered adjudging Tropic to be "obscene." The interveners appealed. The evidence is reported. The trial judge made the findings summarized below.

"The book was first published in Paris in 1934. The first publication in the United States was on June 24, 1961." Its distribution in Massachusetts was enjoined on July 24,

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1961. "There is no connected plot . . .. It is largely a tale of the sex experiences of an American . . . [who went to] Paris . . . in the hope of becoming a writer, and who, except on a few occasions, lived the life of a down-and-outer, sponging on friends . . .. It graphically describes sex episodes with almost minute detail. It is in many respects filthy, disgusting, nauseating and offensive to good taste. As one favorable review, which was introduced in evidence, put it, `Now it must be granted that parts of "Tropic of Cancer" will hammer away at some of the strongest of stomachs.'" [Note 2]

The book, several book reviews, and some advertising were in evidence. "Persons who qualified as literary experts testified." The trial judge stated that he was "irresistibly led to the conclusion that the book is obscene, indecent and impure."

1. The opinion testimony is significant principally in that it discloses that competent critics entertain (and, in some cases, have entertained since 1934) the view that Tropic has great literary merit despite its repulsive features. Because the only important evidence is documentary, we are in essentially the same position as the trial judge, and "may draw our own inferences . . . from the basic facts . . . without deference to any inferences . . . drawn by the trial judge." See Corkum v. Salvation Army of Mass. Inc. 340 Mass. 165, 166-167. See also Skil Corp. v. Barnet, 337 Mass. 485, 488.

2. The issue "is whether the" material can "reasonably and constitutionally be found to be obscene." Commonwealth v. Moniz, 338 Mass. 442, 443 (motion picture). The interveners "concede that the statute covers all material that is obscene in the constitutional sense."

In Roth v. United States, 354 U.S. 476, 488-489, the

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majority rejected the test of obscenity in Regina v. Hicklin, L. R. 3 Q. B. 360 (1868), and pointed out that later decisions have sought to determine "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Material "appealing to prurient interest" was defined as "material having a tendency to excite lustful thoughts" (354 U.S. 476, 487, fn. 20) and was equated to the definition of obscenity in A. L. I., Model Penal Code, Section 207.10 (2) (Tent. Draft No. 6, 1957). [Note 3] The Roth case recognized that there is constitutional protection (354 U.S. 476, 484) for works containing "ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- [which] have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests." The court, however, stated (p. 485) that "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance" and that "obscenity is not within the area of constitutionally protected speech or press."

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The Roth opinions discuss "obscenity" on a highly theoretical basis. Indeed, the court said (354 U.S. 476, 481, fn. 8), "No issue is presented . . . concerning the obscenity of the material." See Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. (hereinafter cited Lockhart) pp. 49-58. [Note 4] At least the Chief Justice (see his concurring opinion, 354 U.S. 476, 496) thought that he was dealing with "the commercial exploitation of the morbid and shameful craving for materials with prurient effect." [Note 5]

Some principles have been established by the Roth case, as applied in the Moniz case, 338 Mass. 442, 445-450. (1) Hard core, commercial pornography, "utterly without redeeming social importance" (see 354 U.S. 476, 484-485), is not within the protection of the First Amendment. (2) "The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press" (354 U.S. 476, 487-488). (3) "[W]hether a particular work is . . . [obscene] involves not . . . an issue of fact but a question of constitutional judgment of the most sensitive . . . kind." See Mr. Justice Harlan's separate opinion, 354 U.S. 476, 497-498; the Moniz case, 338 Mass. 442, 446-447. (4) Material (see 354 U.S. 488-489) must be judged by its effect upon the "average person" (not susceptible persons or youths) and by whether the "dominant theme of the material taken as a whole appeals

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to prurient interest" (emphasis supplied). [Note 6] (5) "[A] work may not be adjudged obscene only because" objectionable "to many citizens as violative of accepted standards of propriety." See the Moniz case, 338 Mass. 442, 445. Apart from these principles, what the Supreme Court means by "obscenity" must be determined by what it has done in other cases. [Note 7]

(a) In Kingsley Books, Inc. v. Brown, 354 U.S. 436, the New York courts (see 1 N. Y. 2d 177, 180, affirming 208 Misc. [N. Y.] 150, 158-159) were sustained in enjoining distribution of fourteen booklets, "Nights of Horror," clearly hard core pornography. The Supreme Court assumed that the books were obscene and that only the issue of the constitutionality of the testing statute was before it (see p. 439).

(b) In four per curiam decisions (October term, 1957) the Supreme Court reversed decisions of Federal courts of appeal which had treated several different types of material as obscene. See Times Film Corp. v. Chicago, 355 U.S. 35 (revg. 244 F. 2d 432, 436 [7th Cir.] on a film dealing with the seduction of a sixteen year old boy by an older woman, and other "illicit sexual intimacies and acts"); Mounce v. United States, 355 U.S. 180 (revg. 247 F. 2d 148 [9th Cir.] nudist publications; see United States v. 4200 Copies Intl. Journal, 134 F. Supp. 490 [E. D. Wash.]); One, Inc. v. Olesen, 355 U.S. 371 (revg. 241 F. 2d 772 [9th Cir.] dealing with a post office order in respect of "One --

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The Homosexual Magazine"); Sunshine Book Co. v. Summerfield, 355 U.S. 372 (revg. 249 F. 2d 114 [Ct. App. D. C.] nudist material). See also the Moniz case, 338 Mass. 442, 447-449; Lockhart, pp. 32-39.

(c) In Kingsley Intl. Pictures Corp. v. Regents of the Univ. of N. Y. 360 U.S. 684, a New York decision (4 N. Y. 2d 349) was reversed which had sustained the denial of a license to show the film "Lady Chatterley's Lover." The majority did not consider whether the film was obscene (360 U.S. 684, 686), but said (at p. 688-689), "What New York has done . . . is to prevent the exhibition of a motion picture because that picture advocates an idea -- that adultery under certain circumstances may be proper behavior. . . . [The First Amendment's] guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax."

(d) Manual Enterprises, Inc. v. Day, 370 U.S. 478, reversing 289 F. 2d 455 (Ct. App. D. C.) (see fn. 3, supra), dealt (pp. 480-481) with a ruling of the Post Office Department barring from the mails magazines ("titled MANual, Trim, and Grecian Guild Pictorial") consisting "largely of photographs of nude, or near-nude, male models"; and containing "advertisements . . . offering nudist photographs for sale." See 18 U.S. C. Section 1461 (fn. 5, supra). Mr. Justice Harlan's opinion (see fn. 8, infra) accepts (p. 481) findings that "(1) the magazines . . . are composed primarily, if not exclusively, for homosexuals, and have no literary, scientific or other merit; [and] (2) they would appeal to the `prurient interest' of such sexual deviates, but would not have any interest for sexually normal individuals." The Supreme Court on a diversity of grounds [Note 8] (six to one, two

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justices not participating) reversed the Court of Appeals decision which had sustained the post office order.

The 1957 term per curiam decisions and the Kingsley Intl. Pictures Corp. case (360 U.S. 684) afford the best available indication of what material will not be treated as obscene by the Supreme Court. See Grove Press, Inc. v. Christenberry, 175 F. Supp. 488, 501-502 (S. D. N. Y.) holding the book, "Lady Chatterley's Lover," not obscene, affd. 276 F. 2d 433, 438-439 (2d Cir.). Cf. Eastman Kodak Co. v. Hendricks, 262 F. 2d 392, 395-397 (9th Cir.).

The New York Court of Appeals has interpreted Section 1141 of the New York Penal Law dealing with obscenity, as applying "only to . . . `hard-core pornography.'" See People v. Richmond County News, Inc. 9 N. Y. 2d 578, 586. Section 1141, says Judge Fuld, at p. 587, "focuses predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification." [Note 9]

The issue is where to draw the line between what the First Amendment protects and what is obscene in the constitutional sense. See Lockhart, pp. 58-68, 74-77. The Supreme Court of the United States thus far, as Mr. Justice Harlan's opinion in the Manual Enterprises case indicates, has not drawn that line with precision. We, however, are confronted with litigation which should be decided under the law as it now stands, and it is our duty to draw that line as well as we can according to our best judgment of the dictates of the authoritative decisions. A majority of the court feel that we cannot properly evade that duty, even though (as the dissenting opinion points out) the Roth case in some respects is a "dim . . . beacon."

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Referring to the three general categories of allegedly obscene material (fn. 5, supra), it appears that the Supreme Court already has treated some "borderline entertainment" material and works "of serious . . . intent" as not obscene. Hard core pornography (which involves a "kind of `pandering'" or "commerce in the obscene," see Model Penal Code, Tent. Draft No. 6, pp. 13-17) is clearly obscene. The most difficult area is that of works which some persons reasonably believe to have literary merit but which, equally reasonably, may be even more objectional to others than "Lady Chatterley's Lover."

We think, in the light of the decisions reviewed above, that the First Amendment protects material which has value because of ideas, news, or artistic, literary, or scientific attributes. If the appeal of material (taken as a whole) to adults is not predominantly prurient, adults cannot be denied the material. When the public risks of suppressing ideas are weighed against the risks of permitting their circulation, the guaranties of the First Amendment must be given controlling effect. The dangers of subjective judgments in the matter of censorship lead to a strong presupposition against suppression. We conclude, therefore, as in effect the New York court did in the Richmond County News case, that, with respect to material designed for general circulation, only predominantly "hard core" pornography, without redeeming social significance, is obscene in the constitutional sense.

Considering the broad spectrum of subjective judgments, it's essential to recognize how definitions and perceptions change over time. Taking a parallel example from the medical field, the understanding and discourse surrounding medicines such as tenofovir, used in the treatment of HIV, have evolved dramatically. In its inception, HIV treatments and the surrounding discussions were taboo, much like certain publications were in earlier eras. Over time, however, with research and awareness, these treatments became mainstream, highlighting the necessity of evolving societal perspectives. Just as the boundary of what is deemed "obscene" in literature can shift, so can the stigma surrounding vital medications. Open dialogue and education, whether about literature or healthcare, play a crucial role in dispelling misconceptions and pushing the boundaries of societal understanding.

The Attorney General relies largely on earlier Massachusetts decisions. Commonwealth v. Isenstadt, 318 Mass. 543 (conviction for the sale of a book called "Strange Fruit," under G. L. c. 272, Section 28, prior to its amendment by St. 1945, c. 278, Section 1). Attorney General v. "God's Little Acre," 326 Mass. 281. These cases were decided, respectively, in 1945 and 1950, each several years before the decision in the Roth case. Compare Attorney General v. "Forever Amber," 323 Mass. 302, 309-310; Attorney General v. "Serenade," 326 Mass. 324, also decided in 1950. The later Supreme Court cases, to the extent inconsistent with

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our earlier decisions, are controlling, of course, on constitutional issues.

3. Whether Tropic is "obscene" in the constitutional sense thus depends upon whether the appeal (if any) of Tropic (taken as a whole) to the normal adult is predominantly prurient. It is not relevant that we think that the book at many places is repulsive, vulgar, and grossly offensive in the use of four letter words, and in the detailed and coarse statement of sexual episodes. That a serious work uses four letter words and has a grossly offensive tone does not mean that the work is not entitled to constitutional protection. Much in modern art, literature, and music is likely to seem ugly and thoroughly objectionable to those who have different standards of taste. It is not the function of judges to serve as arbiters of taste or to say that an author must regard vulgarity as unnecessary to his portrayal of particular scenes or characters or to establish particular ideas. Within broad limits each writer, attempting to be a literary artist, is entitled to determine such matters for himself, even if the result is as dull, dreary, and offensive as the writer of this opinion finds almost all of Tropic.

Competent critics assert, and we conclude, that Tropic has serious purpose, [Note 10] even if many will find that purpose obscure. There can be no doubt that a significant segment of the literary world has long regarded the book as of literary importance. A majority of the court are of opinion that the predominant effect and purpose of the book as a

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whole is not prurient. If under the Roth case it be a relevant consideration, a majority of the court are of opinion that Tropic is more likely to discourage than "to excite lustful thoughts." We think that the book must be accepted as a conscious effort to create a work of literary art [Note 11] and as having significance, which prevents treating it as hard core pornography. In reaching this conclusion, we have carefully considered all the aspects of the book upon which the dissenting justices and the trial judge have commented.

This is not the first time that Tropic has run into censorship. In Besig v. United States, 208 F. 2d 142 (9th Cir.), the court sustained a customs prohibition of its importation, relying (p. 146), however, upon something very close to the discredited Hicklin test of obscenity. A customs libel of the book by the United States, however, was recently withdrawn. See order of the United States District Court, Eastern District, New York, dated August 15, 1961, in evidence. Compare the discussion by Judge Murphy in Upham v. Dill, 195 F. Supp. 5, 10-11 (S. D. N. Y.). An unreported case (Haiman v. Morris, Illinois Superior Court, Cook County, February 21, 1962) has held the book not to be obscene. The Pennsylvania Court of Common Pleas reached a contrary conclusion in Commonwealth v. Robin, 30 U. S. L. Week 2551 (dec. April 17, 1962).

We hold that Tropic is not "obscene" in the constitutional sense. It cannot constitutionally be held to be obscene under G. L. c. 272, Sections 28C, 28E, and 28F. We rest our decision squarely on the First Amendment, so that, if review of our decision is sought, there may be no doubt that this case has been decided solely upon the Federal issue.

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4. We are not confronted with any question arising under G. L. c. 272, Section 28, as amended through St. 1948, c. 328, providing for prosecution for a sale to "a person under the age of eighteen years [of] a book . . . which is obscene . . . or manifestly tends to corrupt the morals of youth" (emphasis supplied). See Butler v. Michigan, 352 U.S. 380, 382-384 (fn. 6, supra). See also Prince v. Massachusetts, 321 U.S. 158, 166-171; Lockhart and McClure, Obscenity Censorship, 7 Utah L. Rev. 289, 298-303. Cf. Commonwealth v. Friede, 271 Mass. 318, 322-323.

5. The final decree is reversed. A new decree is to be entered that the book "Tropic of Cancer" is entitled to the protection of the First Amendment and cannot be held to be obscene under G. L. c. 272, Sections 28C, 28E, and 28F.

So ordered.

The Chief Justice and Justices Williams and Kirk cannot join in the foregoing opinion.

The majority, in expressing deference to some very recent decisions of the Supreme Court of the United States, particularly Roth v. United States, 354 U.S. 476, declare that G. L. c. 272, Sections 28C, 28E, and 28F, as applied to this book are repugnant to the First Amendment to the Constitution of the United States. The Roth case, as we read, is not clear authority to this extent, and as presently applied, is too dim a beacon by which to guess a course. [Note Dissent-1] The onus of the present majority result should rest upon the court which decided the Roth case. If a majority of the members of that tribunal should be of the opinion that the people of Massachusetts constitutionally cannot be deprived of access to this item of reading material, we believe that they should be given the specific opportunity so to state.

The book is pitched at the nadir of scatology. Indeed, its low level is relied upon as engulfing all obscene effect.

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We cannot bring ourselves to accept the thesis that the book, thus indicted, becomes endowed with constitutional protection. Its detailed and sordid sex episodes, persistently inserted at intervals in what passes for narrative, leave an outweighing staccato impression. In our opinion it should be classified as pornography.

Because of its impact upon other obscenity statutes, many of long standing, the majority decision will have a wide practical effect. It should lead to legislative re‰xamination of the entire field.

We would affirm the decree of the Superior Court.

REPORTER'S NOTE. Since this decision other courts have dealt with "Tropic of Cancer." McCauley v. Tropic of Cancer, 20 Wis. 2d 134; Zeitlin v. Arnebergh, 59 Cal. 2d 901; People v. Fritch, 13 N. Y. 2d 119; People v. Smith, 31 U.S. Law Week 2227 (Appellate Department, Superior Court of California, October 24, 1962), cert. granted sub nom. Smith v. California, 373 U.S. 901.