Guessing About Obscenity

Among the many issues to be considered by the Supreme Court this term, few are more in need of the court's attention than the matter of obscenity. In related cases last week, the court summarily applied the First Amendment to protect a group of girlie magazines banned by Louisiana, and a group of Danish homosexual magazines impounded by U.S. Customs because they were illustrated almost entirely by front views of nude males. On the other side of the ledger, the court refused to review the conviction of a sculptor in Miami who had been fined $100 for displaying in his backyard six large statues of couples engaged in various normal and aberrant sex acts. The court broke no new ground, but neither did it give the lie to the often-repeated prediction that it will eventually allow virtually any publication or motion picture, so long as it is not sold to children, sold in a pandering manner, or sold in such a way that it intrudes upon the individual's right of privacy.

Just where the Supreme Court is going to wind up on obscenity is a matter of no little interest to state courts. The Pennsylvania Supreme Court has just tried reading the misty message of the Supreme Court and has ruled that Candy, the 1964 novel, is not obscene. The Pennsylvania court noted that Candy was not "utterly without redeeming social importance." Nor did it think that the book's dominant theme necessarily appealed to a prurient interest. Its most interesting finding was that having been ordered by the Supreme Court to judge the book in the light of contemporary community standards, it was impressed by the fact that the book was a bestseller. Its conclusion, therefore, seemed to be that anything that sells obviously does not offend community standards.

The New Jersey Supreme Court, too, will try to second-guess the nation's highest court. Last week it heard oral arguments in an appeal of a 1964 lower court ban of Fanny Hill.* As he picked his way among the piebald pronunciamentos of the U.S. Supreme Court, New Jersey Chief Justice Joseph Weintraub plaintively confessed, "I don't know what they mean."

*Though the Supreme Court in 1966 struck down Massachusetts' ban on Fanny Hill, New Jersey's attorney general contended that the court's action had carefully left room for a new attack on different grounds.

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