A LEGAL HISTORY OF 0330mm m MASS
sconmumcmom MEDIAAND rrs
ammusmp To TELEVISION

THESIS FOR THE DEGREE-OF m. A.
MmeAN STATE umvmsm; .

mmmcx mamas Kauai; ' .
i958 ’ .

 

" .6... 41-; ‘.I5‘.vf\M"Qfi"

LIBRAR Y 5"

.1

[Michigan 3 t3. t6
University ’

   

ABSTRACT

A LEGAL HISTORY OF OBSCENITY IN MASS
COMMUNICATION MEDIA AND ITS
RELATIONSHIP TO TELEVISION

By

Frederick Charles Kolloff

The concept of obscenity, chiefly as it applies to
<fifensive sexual expression through mass media, has
become a matter of increasing concern to television's
audience, government officials, and the members of the
television industry. According to a portion of the
general public as well as to a number of government offi-
cials, there is a trend in some television programs to
present an increased amount of questionable sexual material
bordering on the obscene. Television's exhibition of
”adult” motion pictures has been especially criticized..
The broadcaster is aware that the institution of govern-
mental control over programming may be a result of this
criticism. The broadcaster is also aware that he is sub-
Ject to penalties under the provisions of Section 1A6A of
the United States Code which prohibits the broadcasting
Of profanity, indecent language, or obscenity.

On the other hand, in view of the broadcaster's
present freedom to program as he wishes under Section 326
of the Communications Act Qf 193A, critics inside and out-

side the television industry have pleaded for a more

Frederick Charles Kolloff

creative and meaningful, less bland and innocuous type of
programming. This programming would furnish the televi-
sion audience with more mature and socially valuable
themes, including a realistic treatment of sex.

In view of these contradictory criticisms, the
broadcaster should understand as clearly as possible what
constitutes obscenity on television. Section 1A6A, how-
ever, offers no definition of obscenity in broadcasting.
Also, in the absence of positive scientific evidence con-
cerning the effects of alleged instances of obscenity on
audiences, opinions regarding what is harmful tend to
vary from individual to individual. Furthermore, what
society in general considers offensive can vary with the
progress of time.

in view of the relativity of the concept of obscenity
as well as the necessity for the broadcaster to understand
what program material might be considered legally obscene,
this study reviews the legal regulation of obscenity, not
only in radio broadcasting, but also in two of the older
mass communication media. By these means it is the pur—
pose of this study to explain what materials have legally
been determined obscene and also the reasoning behind the
determinations. This information provides valuable insight
into the reasoning to be used by the Federal Communica—
tions Commission and the courts if, and when, a legal deci-
sion is necessary concerning a case of obscenity on tele-

vision.

Frederick Charles Kolloff

One section of the study reviews the legal regula-
tion of obscenity in books of fiction and non-fiction,
including not only American but also English regulation,
since the latter greatly influenced court decisions and
attitudes in the United States. A second section, re-
stricted to the United States, deals with the regulation
of obscenity in motion pictures. This regulation was
influenced by that of literature and in turn influenced
that of television. Each new medium introduces character—
istics not contemplated by the regulations imposed on the
previous media and therefore poses new challenges for the
courts. A third and final section contains the major
cases which have dealt with indecent language in radio
broadcasting.

Although the decisions applied to older media serve
as a basis for regulating an emerging one, the unique
characteristics of the emerging medium appear to prevent
the older regulations from being completely binding on it.
This study indicates that the degree of leniency legally
allowed regarding what constitutes obscenity in literature
and, to a lesser degree, in the motion picture, cannot, at
the present time, be applied to television in the United

States.

A LEGAL HISTORY OF OBSCENITY IN MASS
COMMUNICATION MEDIA AND ITS

RELATIONSHIP TO TELEVISION
By

Frederick Charles Kolloff

A THESIS

Submitted to
‘ Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS.
Department of Television and Radio

1968

Accepted by the faculty of the Department of Tele-
vision and Radio, College of Communications Arts,
Michigan State University, in partial fulfillment of

the requirements for the Master of Arts degree.

(EDEN-{W Lon—w
Director 9:: Thesis ..

 

ii

ACKNOWLEDGEMENTS

The author would like to express his appreciation
to those individuals whose assistance has brought this
thesis to its completion.

The valuable suggestions of Dr. Walter Emery con-
cerning the legal aspects of this thesis as well as his
continuing enthusiasm and encouragement are gratefully
acknowledged.

The author owes special thanks to Dr. J. Colby
Lewis for his excellent constructive criticism, interest'
and guidance.

Finally, the author is deeply indebted to his wife,
Penny, without whose patience and understanding this

thesis would not have been completed.

iii

TABLE OF CONTENTS

'ACKNOWLEDGMENTS. . . . . . . . . . . . .
Chapter
I. INTRODUCTION . . . . .

Obscenity--A Potential Television Problem
Purpose and Assumptions of the Study
Previous,Research

II. THE CONCEPT OF OBSCENITY . . .

Theoretical Background
Development of the Concept of Obscenity

III. THE LEGAL HISTORY OF OBSCENITY IN LITERATURE

The Roots of English Literary Control

The DevelOpment of English Obscenity Law

The Development of Obscenity Law in the
’United States

Summary

IV. THE LEGAL HISTORY OF OBSCENITY IN MOTION
PICTURES . . . . . . . . . . . .

Early Motion Picture Regulation

The Legal Rights of the Motion Picture
Motion Picture Obscenity Cases

Age Classification Censorship

Summary

V. OBSCENITY AND TELEVISION . . ,

The Nature of Television

"Indecent Language" Legal Cases in
Broadcasting

Summary and Conclusion

BIBLIOGRAPHY, . . . . . . . . . . . .
APPENDICES . . . . . . . . . .

Appendix A: The Motion Picture Association of
America Production Code. .

Appendix B: The National Association of Broad-
caster' 5 Television Code .

Appendix C: Sample Text of "Indecent" Material
as cited in Palmetto Broadcasting
Case . . . . . . . . . .

iv

Page

iii

17

28

79

113

146
158

158
160

163

CHAPTER I

INTRODUCTION

Since television broadcasts are viewed in the home,
potentially by all members of the family, the sexual
morality of their content is an important concern of the
general public, including, on one hand, those who would
protect the young and impressionable from bad influences
and, on the other, those who expect television to present
life as it is and to expose its viewers frankly to sig-
nificant moral issues.

Also concerned with sexual morality on television
are the members of legislative, judicial, and regula—1
tory bodies who are expected to insure that communication
media Operate in the public interest and who recognize
that rules which were devised to control the morality of
older media are/not necessarily appropriate to the rela- .irme.
tively new and obviously different medium of television.

Naturally the sexual morality of television pro-

‘ gramming is also a concern of the broadcasters, who
jealously defend the freedom of expression granted their

programming, yet are liable to penalties for presenting

material which is legally determined to be obscene. As
evidence of its ability to police its industry without
outside interference, the National Association of Broad-
casters includes moral guidelines in its professional

1 But the existence of this code does not

"N.A.B. Code.”
allay some members' apprehension that, starting with a
possible effort to prevent obscenity, the government might
exercise increasing censorship over television program-
ming. Not only to avoid this eventuality, but also, of
course, to know more certainly what constitutes pro-
gramming in the public interest, broadcasters need to
recognize as clearly as possible the boundary between
legitimate program content and the legally obscene.

Obscenity—-A Potential
Television Problem

 

Although this boundary has not yet been crossed by
any television program, it is likely to be approached
ever more closely/by telecasts of the more recent motion
pictures.

Broadcasters have been scheduling an increasing
number of motion pictures, having found them both popu-

lar and profitable. Sponsors have been attracted to the

films by reports such as the TVQ survey of evening

 

1This study refers to the National Association of
Broadcasters' Television Code but does not examine it at
length since the Code is not legal in nature. However,
those portions of the Code dealing with sex are ennum-
erated in Appendix B.

network programs, conducted annually for Broadcasting

 

magazine by the Home Testing Institute, a marketing
research firm.2 When this survey compared the size of
audiences attracted by various program types during
October in the years 1963-1967 inclusive, it found that
network movies scored highest in 1963, 1966, and 1967,
and second highest in 196A and 1965.
Furthermore, films are economical for the adver- Tn.m-
tiser, as reported in the October 3, 1966 issue of

Broadcasting magazine:

 

Are feature films still a safe bet for the TV
advertiser? Yes, says BBDO [advertising agency,]
the agency that last winter issued a report docu-
menting film efficiency in terms of cost, the
relative freedom of risk to the advertiser, and
the favor they attract among young adults.

They are cost-efficient. From October 1965
to January 1966 the media analysts computed cost-
per-thousand ranging from $3.59 to $3.75, 10% to
15% lower than average costs. ,

Movies show no sign of audience saturation
since increases in the number of features on 3
network TV have not lowered the average rating.

For reasons such as those Just cited, television
has been using motion pictures at an extremely rapid
rate. In fact, during the present average week, all
seven evenings contain one network film feature.

As broadcasters turn to Hollywood for new film

features, however, they must face the problem that a

 

2"Movies Hold Lead as Viewers' Favorites," Broad-
casting, vol. 73, no. 19, November 6, 1967, pp, A€IEI? e.

3"Feature Good for Advertising," Broadcasting,
vol. 71, no. 14, October 3, 1966, p. 32.

great percentage of those available are "sophisticated"
productions for "adult" audiences. The trend toward the
production of such pictures has been encouraged by a
shift in control of the film industry from major studios
to independent producers, a relaxation of the Motion
Picture Association of America (M.P.A.A.) Production
Code, a relaxation of ratings by the National Catholic
Office for Motion Pictures (NCOMP), and by increased
competition with television and with the foreign film,
both here and abroad. Coincidental with these factors
are films containing nudity, suggested and actual sexual
activity, and other morally questionable situations
which, if exhibited on television for lack of alternative
choices, may well raise charges of obscenity and the
threat of increased government control.

Several members of the legislature have already
raised the possibility of government interference in
television programming due to an increased exhibition of
"adult" motion pictures on television. When interviewed
by magazine writer Leslie Raddatz, Senator Thomas J. Dodd
(D., Conn.), chairman of the Senate Subcommittee to
Investigate Juvenile Delinquency, said:

. . . if the trash of the film industry gets on

television, it will add a new complexity to an
already complex situation. It will require a

5

whole new look at the television industry by
Congress and the F.C.C.“

7% —-.—‘__7...

Other members of the legislature, while respecting
the freedom of broadcast programming from government con-
trol as set down in Section 326 of the Communication Act
of 193A, have warned the broadcaster of his-responsi-
bility to broadcast in the public interest or else to
expect increased government control over programming. A
sample of these warnings appears below:

Representative Oren Harris (D., Ark.), chairman of
the House Interstate and Foreign Commerce Com-
mittee, said, "We are against controlled communi-
cations and for freedom. But if some of these
people [broadcasters] continue behaving the way
they are, they're going to have the Government on
their necks. The television stations are in the
business of operating in the public interest, and
if they don't know what the public interest is,
they should lose their licenses."

O O O O O O O O O O O O I O O O O O O O O O O 0 .1

Senator John O. Pastore (D., R.I.) chairman,
Senate Communications Subcommittee, has said,
"Congress will not and cannot stand idly by and
allow excesses or abuses to dominate this great
medium, nor will it be stampeded by the cries of
censorship every time an observation of a construc-
tive nature is made to improve the quality of pro-
gramming." .\ one m

Former Senator Kenneth Keating (R., N.Y.) has
said, "As a lawyer, I am fully cognizant of the
First Amendment rights enjoyed by communications
media in this country, and I do not advocate
Government control of the airwaves. As a father
and a grandfather and a public servant, however,
I know the Government cannot afford to turn its
back on this problem as neglect will harm our
young people and our society."5

 

“Leslie Raddatz, "Coming Attractions: Smut in the
Living Room?," TV Guide, vol. 13, no. 16, April 17, 1965,
pp. 17-20.

SIbid.

 

Senator Keating's concern for the potential harm to
children caused by television's exhibition of sexually
stimulating material (a basic element of legal obscenity)
is shared by a portion of the general public. For
instance, Detroit Free Press television critic, Bettelou

Peterson cites a number of complaints from sincere and

concerned parents:

". . . As a mother of teen—agers, I'm very much ii_ii.
concerned with the moral state of our society.

At least in the past you could relax a little when
your family was together at home. Now, the 'new
morality.' New morality my foot, the correct name
is 'no morality.'" says Mrs. Earl Essenmacher.

". . . It is almost impossible to raise children
with good morals with the strong outside influence
of movies and TV. They are told that unless they
drink, smoke and lead an immoral life, they just
aren't living." - Mrs. John R. Mann, Farmington.

Turning off the set at home isn't always effec-
tive, many point out. Other parents are more per-
missive or supervising adults are not at hand when

children go visiting.

The broadcaster Who is aware of the criticism of a
number of concerned parents and members of the legisla-
ture, is also aware of a different viewpoint, held by
another portion of the public as well as by many televi-
sion performers, writers, producers, and at least one
member of the FCC. This group believes that television
cannot continuously exhibit only the bland, the unrealis-

tic, and the family type of programming. To do so, they

 

6Bettelou Peterson, Detroit Free Press, November A,
19679 p0 7-D-

say, is to ignore life as it is as well as to stifle
television's creativity in drama and documentary presen-
tations which may include sex and sexual relationships.
The feelings of television's suppressed writers are
expressed by television producer E. Jack Neuman:

These dictums to eliminate sex and violence from
drama are destroying drama. There's absolutely no
serious work of literature that does not have vio~
lence and sex. And it's up to a writer to make the
judgment as to how it is to be used ~ not a con-
gressman! What are we trying to protect human
beings from, anyway? Themselves? Sex is the driv—
ing force of every man and woman in this country.7

Likewise, the Smothers Brothers, of the Smothers

 

Brothers'Comedy Hour, feel that the television comedian
has a right to escape the confines of comic fantasy and,
through satire, to furnish the television audience with
material that enables their audience to examine its own
actions and attitudes, including attitudes toward sexual
Hatters. Tim; reports:

The overriding problem as far as the brothers
are concerned is that CBS, with its large com-
mitment to the blandest sort of family shows, is
out of tune with the times and with its audiences.
"The whole country's in trouble," exclaims Tommy,
”and we've started getting a kind of renaissance,
in the arts, in living. Painters can reflect
their society. And writers can. Why can't TV
comedians?"

Television broadcasters have also been criticized in

a.similar vein by former FCC Chairman E. William Henry.

‘

7Edith Efron, "Can TV Drama Survive?," TV Guide, ..-
vol. 13, no. 39, September 25, 1965, p. 18.

8"Shippers v. Snipers." Time, February 23 1968’
p. 57.

~ —..—.—~...- ._._,

In a speech delivered before the National Association of
Broadcasters in 1966, Henry said television broadcasters
have too often ignored common sense and their own artis-
tic integrity, in spite of their legal freedom, by
deciding not to program socially important material pro-
duced by honest and creative artists, because they fear
that the audience or government officials might complain.

Consider the troublesome question of artistic
integrity and good taste. In this area where the
frontiers of freedom are always the scene of skir-
mishes, how have you acted? Too often, I suggest,
routed by shadows, you break and run before a shot
is fired in anger. Too often you surrender to
pop-gun complaints as if they were the crack of
doom. Too often the record here shows not only
a lack of courage, but a lack of common sense.

In other words, you have often failed to demon-
strate the courage and maturity that we now expect
of an industry that takes second place to none as
a force in American life.

Let me give you but one illustrative example. I
recently watched an evening television movie called
Room at the Top, a film that won many awards and
received much praise several years ago. Those of
you who saw it may remember that at one point the
blustery, plain-spoken father of a young girl
calls in the girl's suitor for lunch at the
father's club. His daughter has become pregnant
by the young man, and the father now insists that
marriage is in order. He also insists that the
young man dismiss forever an older woman with whom
he has been having an affair. On the latter point,
the dialogue thought not exactly as quoted here,
went something like this:

 

Father: And by the way, young man, I
know your relationship with
that older woman, and I'm
telling you straight; Get
rid of that (bloop)!

 

Young Man: Don't ever use the word_i ..s
(heatedly) (bloop) when you speak of

her!

9

Father: When I have a word that fits,
I believe in using it.

And there sits the poor audience, wondering what in
the name of all that's artistically honest the
bloody word is!

This bloop-blip technique may be fine for selling
razor blades, but is scarcely appropriate in an
adult film on a controversial theme.

The freedom you enjoy today in programming your
stations is unparalleled anywhere in the world.

No government official can tell you what programs
you should or should not put on the air--and none
I know would want to. Though critics may wail and
gnash their teeth, and F.C.C. Chairmen breathe
fire and brimstone, the basic programming decisions
remain yours. Under the magnificent unbrella of
the First Amendment, the American broadcaster, and
he alone, determines what our millions of listen-
ers and viewers shall have the opportunity to see
and hear. From sign-on to sign-off you are in the
driver's seat. Your license puts you there.9

Coincidental with the criticism above, television
has attacked many of society's taboos. Time magazine
reviews television's attack by citing recent television

comedy material:

(Johnny) Carson brought out a female imperson-
ator in an ape's costume who did a striptease
that was not merely questionable but overly
graphic. At one point, a bouquet of flowers
sprouted from the ape's crotch.

~.
0 O O I O O O I O O O O O O O O O O O O O O O O

The talk shows, by Virtue of their late—night

time slots, have always been determinedly naughty.
Thus the chesty starlets, having nothing else to
offer in the way of talent, feel that, to be
invited back, they must devise new and more sug-
gestive performances. On the same Carson show,
for instance, Starlet Lee Meredith bounced out .
and did a bump-and-grind dance that all but singed
the screen.

 

9Address by E. William Henry, Chairman Federal Com-
munications Commission before the National Association
of Broadcasters, Chicago, Illinois, March 29, 1966.

10

With NBC's new Show, Laugh—In, starring comics
Dan Rowan and Dick Martin, the pitch for new blue
cheer has moved into prime time. Their material,

 

is alternately good, bad and just plain

irreverent. . . . Guest Star Robert Culp explains
his role as secret agent in I Spy, "I do a lot of
undercover work," and girl replies: "Oh, don't

you men ever think of anything else?" . . . Silly:
”Tinkerbell is a fairy." Topical: "The pill

stOps inflation." Or childish: "Of all the fishes
in the sea/ The one I like the best is bass/ He
climbs on all the rocks and trees/ And slides‘down“
on his . . . hands and knees." On the Johnny Cara
son show last week he portrayed a newlywed couple
on their wedding night. She (wonderingly): "Oh
Harry, are we really married?" He (leeringly):
"You're going to find out in a minute when I get
this shoelace untied."lO

Undoubtedly, Time summarizes, complaints concerning“

Offensive television material will arrive on the televi-

sion executive's desk. Many of these complaints will be

from the predictable minority of oversensitive viewers

while an increasing number will come from normal viewers.

Thus, continues Time, "the real question is now how the

taboos can be broken without bruising common sensibili-

ties."ll

judgment

ards) of

Since one test of legal obscenity demands a
as to whether the common sensibilities (or stand-

the community have been broken, a blatant attack

of taboos may lead television to the courts.

The broadcaster, although still free of an obscenity

charge, must carefully examine the alternatives to the

criticism that television presents bland and uncreative

 

lo"Programming: Reasonable v. Raunchy," Eifli:

February
11

9: 1968: pp- 53‘5“-

Ibid 0

ll

programming. The alternatives, if practiced, may make
television's potential problem of obscenity charges a
reality. Stockton Helfrich, Director of the NAB Code
Authority, cautions the broadcaster:
Interestingly, broadcasting's not having been
a target for obscenity charges indireCtly requires
evaluation along side the familiar criticism that
broadcast fare is too bland. I doubt strongly
that anyone so criticizing broadcasting would in
the next breath outright argue for obscenity but
such a critic might argue for more controversy,
more daring and so on, all of which, depending on
one's point of View, might lead to types of free-
dom of speech which some might consider to falli ..1
under obscenity.l2
Television, then, has encountered a number of cir-
cumstances and pressures which have forced the medium
closer to the potential problem of obscenity charges..
The increased use of "adult" films, the increasing
exploration of "reality" through drama and comedy, and
the more frequent attack by television of society's
taboos have made the subject of sex on television a con-
cern of the general public, government officials and the
broadcaster.
Both literature and the motion picture, even in
their most responsible efforts to.sincerely reflect and
provoke society, have, in their histories, lost their free-

dom through obscenity court convictions.

 

l2Personal letter from Stockton Helffrich, Manager,
New York, The Code Authority of the National Association
of Broadcasters, June 19, 1967.

12

Thus, in order that the responsible broadcaster may
continue to broadcast in the public interest, retain his
freedom of broadcast speech, and remain free from charges
of obscenity, he must be aware of the legal considerations
in determining previous mass media material obscene and

the relationship of these considerations to television.

Purpose andAssumptions of the Study

It is the purpose of this study, therefore, to
establish in the mind of the broadcaster an understanding
of legally defined "obscenity" and its potential rela-
tionship to television. This purpose will be accomplished
by tracing the legal history of obscenity in literature
and motion picture cases, as well as by reviewing Federal.
Communication Commission and court decisions involving
free speech and indecent language in broadcasting.' ,

The study must be based upon several assumptions.

A primary assumption is that an obscenity charge against
television may arise because of the uncertain limits of
expresSive freedom present in today's television.

A second assumption is that a future charge of
obscenity against television must consider the existing
legal principles concerning obscenity in the field of mass
communication media. With this assumption, it-follows

that these legal principles should be gathered and pre-

sented and that they should not, and cannOt, be ignored.

13

‘A third assumption must be made concerning the rela-
tionship between literature, motion pictures and televi-
sion. All may be placed in the category of mass communi-
cation; that is, each exists for, and is rapidly available.
to, a large and undifferentiated number of peOple for the
purpose of transmitting information or thoughts through
some mechanical means at a relatively low cost per con-
sumer. Each medium, however, differs in nature.

The relationship between these mass media may be
understood when one considers the content of each medium.
For instance, Marshall McLuhan in his book, Understanding
Media: The Extensions of Man, observes any new medium in
two ways. First the new medium produces a new environment
which is imperceptible to society: it changes a persOn's
way of perceiving events-and, as a result, one's view of
the world changes. This theory is only indirectly rele-
vant to this study. However, McLuhan's further observa-
tions, based upon the first, depict the content of the new
medium as the old medium.

.The ”content" of any medium is always another

medium. The content of writing is speech, just as
the written word is the content of-print, and
print is the content of the telegraph. If it is
asked, "what is the content of speech?" it is
necessary to say, "It is an actual process of
thought, which is in itself nonverbal."

The close relation, then, between the reel [sic]

world of film and the private fantasy experience
of the printed word is indispensable to our
Western acceptance of the film form. Even the.

film industry regards all of its greatest
achievements as derived from.novels, nor is this

lA

unreasonable. Film, both in its reel form and in
its scenario or script form is completely involved
with book culture.13

Similarly, ". . . the 'content' of TV is the movie."lu
Each medium, then, depends upon its predecessor(s).
Television's content depends upon the motion picture
(directly and indirectly) and the motion picture upon the
print medium. In View of this theory, one may surmise
that the basic literary theme of sexual expression,
already a predominant motif inAthe motion picture, may
well be transferred to television. Therefore, it may be
hypothesized that, to a certain extent, the legal deci-
sions reached concerning one medium could affect the
decisions to be reached in another medium.

Fourth and finally, it is assumed that the sections
reprinted below from the Communications Act of 193A and
Title 18 of the United States Codedo not give adequate
definition or legal direction to television's necessary
concern with questions as to the limits (especially
visual limits) of "good taste" in program material.

Section 326 of the Communications Act of 193A:

Nothing in this Act shall be understood or

construed to give the Commission the power of

censorship over the radio communications or

signals transmitted by any radio station, and
no regulation or condition shall be promulgated

 

v

13Marshall McLuhan, UnderstandingmMedia: The Exten-
sions of Man (New York: McGraw-Hill Book Company, 1964),
p. 8.

1H

 

Ibid., p. vii.

15

or fixed by the Commission which shall inter-
fere with the right of free speech by means of
radio communication.

Section iu6u of Title 18, United States Code:
Broadcasting Obscene Language. Whoever utters
any obscene, indecent, or profane language by
means of radio communication shall be fined not
more than $10,000 or imprisoned not more than
two years, or both.

It is therefore necessary to study previous legal deci-
sions concerning mass media and the sexual aspects of
obscenity in order to better define the limits of sex on

television.

Previous Research

Previous research in the field of obscenity in
television has been extremely limited. Only recently has
there been comment on the "bad taste" exhibited on some
television programs, usually of a subjective nature from
viewers and critics.

Extensivematerial has been written concerning
obscenity in literature and in motion pictures by authors
such as Zechariah Chafee, Alec Craig, H. Montgomery Hyde,
Morris L. Ernst and Terrence J. Murphy. This material
has not to any great degree related to television.
Answers to questions of the limits of television self-
regulation have only been hinted by sources other than
the National Association of Broadcasters' Television Code

and the networks' own codes.

16

As a preliminary to the study of the legal history
of obscenity in the communication media and its relation-
ship to broadcasting, it is necessary to better define
the concept to be used in the following study and to

briefly trace a history of obscenity.

CHAPTER II

THE CONCEPT OF OBSCENITY

It has been stated that the purpose of this study
is to provide an understanding of obscenity as it is
legally defined today. However, the study of legally
defined obscenity must be prefaced with an explanation
cn‘the term "obscenity" in order to properly introduce
the reader to the subject matter.

The apparent difficulty in defining Obscenity
legally can be explained by the recognition of obscenity
asaiconcept of the mind rather than a fixed reality.

Ifimn a communication is criticized as obscene, it is being
;hmged in accordance with a meaning in the mind of the
mfitic. If a consensus among critics werepossible, it
wnud not even then fix the meaning of obscenity. Rather,
the meaning of obscenity may vary between one period or
cwm society and another. Or, to put it another way, the
referents of the term are subject to change; what is

called obscene in one set of/circumstances may not be so

called in another.

17

18

There is some disagreement about the antecedents of
the term. According to The Oxford English Dictionary, it
comes from the Latin obscaenus, which meant "adverse,
inauspicious, ill-omened." Morris L. Ernst, however,
inaces the term "obscene" to the Latin obscena, which
meant "that which may not be seen on the stage." Despite
their disagreement, both of these antecedents imply some-
thing injurious to society, hence subject to moral con-
demnation.

At present, "obscene" is defined by The American
College Dictionary as "offensive to modesty or decency,"
and by Webster's Third International Dictionary as "dis-
gusting to the senses, usually because of some filthy,
grotesque, or unnatural quality."

Normally, the word is applied today only to
exrnremental functions and to sexual matters; and of these,
onlgr the latter have figured in questions of morality in
broadcasting. ‘

Norman St. John-Stevas makes a distinction between
'Vfibscene" and some related terms. If "'immodest' is
takeni as the positive, 'indecent' may be described as the

cOm-Darative, and 'obscene' as the superlative." He also
\

lMorris L. Ernst and William Seagle, To The Pure
-_;~___A Study of Obscenity and the Censor (New York: The

Viking Press, 1928), p. 21.

( 2Norman St. Johns- Stevas, Obscenity and the Law
Lculdon: Secker and Warburg, 1956), p. 2.

19

suggests that "obscene" is not necessarily equivalent to
"pornographic." In current usage, that which is porno-
graphic is purposely designed to stimulate sexual feel-
ings and to act as an aphrodisiac, whereas that which is
obscene excludes this intention, although it may have the

same effect.

Theoretical Background

A broader concept of obscenity than-that~presented
in dictionary definitions may be obtained from two books
on censorship.

One of these, Censorship: Government and Obscenity
by Terrence J. Murphy, cites the preference for reason
over passion espoused by political philOSOphers from the
ancient Greeks to the present day. An individual should
be able to choose in a rational, non-emotional manner
‘between alternatives which affect his destiny. Sexual
arousal, however, tends to lower the sensibilities and
encourage a neglect of long-term goals for'the pleasures
Of the moment. Therefore, it is feared that the man who
is constantly subjected to sexual arousal will increasingly
disregard his responsibility for self-determination.3

As an early expression of this attitude, Murphy

cites Plato's Republic, wherein Socrates, arguing about

 

 

3Terrence J. Murphy, Censorship: Government and
Obscenity (Baltimore: Helicon Press, Inc., 1963), p. v.

20

the kind of persons suited to rule their city, asks a

companion:

"Is there any communion between temperance and
excessive pleasure?"

"How could there be," said he (the companion),
"when excessive pleasure sends a man out of his
~mind no less than pain!"

"Can you name any pleasure greater and keener
than bodily love?"

"No," said he, "and none madder."

"But the right love is to love the orderly and
the beautiful soberly and in the spirit of music?"

"Indeed it is," he said.“

As a later advocate of reason over passion in the
body politic, Murphy quotes Abraham Lincoln:

Passion has helped us; but can do so no more. ii_iw

It will in future be our enemy. Reason, cold,
calculating, unimpassioned reason, must furnish
all the materials for our future support and
defense. Let these materials be molded into
general intelligence, sound morality. . .

According to Murphy, the greater number of reasonable
citizens a society develops, the stronger will be that
society. That strength depends, however, upon some regu-
lation of the press, for a free press disseminates not
only information for intelligent participation in a

democratic society, but also emotional distractions. The

 

“Eric H. Warmington and Philip G. Rouse, efs., Great
Dialogues of Plato (New York: The New American Library of

World Literature, Inc., 1956), p. 202.

5Murphy, op. cit., p. v.

21

problem becomes one of limiting emotional distractions
while disseminating information to promote reason. Hence
there is need for laws against the arousal of sexual emo-
tions by published obscenity.

The other book referred to is Censorship: The

Search for the Obscene by Morris L. Ernst and Alan U.

 

Schwartz. These authors View moral attitudes regarding

sexual behavior as being influenced by population balances, ~m-~
considered in relationship to economic welfare and terri-
torial security. Two examples will suffice to explain
this View.

First, as recently estimated, the number of Jews
who left Egypt with Moses was approximately 3,600. This
number was very small in oomparison_to the potential pro-
ductivity of the Promised Land and to the numbers of
enemies on its borders. ‘

Hence it became the way Of life among the Jews,
written into their laws and Bible, to frown upon.
and forbid all sexual relations and attitudes that
would tend to limit the population. What the Jews
needed was more people; thus, Solomon-with his
thousand wives and concubines, a real bit of
extreme polygamy, was held up for admiration. On
the other hand, the Hebrew ethic and law condemned
adultery, onanism, masturbation, homosexuality,
and all other practices unlikely to produce off-
spring and thereby give more fighting strength to
the tiny tribes of Israel.

The opposite situation was in effect later in his-

tory during the high period of Greek civilization:

‘\ ~- ‘\‘ 5-5

 

6Morris L. Ernst and Allan U. Schwartz, Censorship:
The Search for the Obscene (New York: The Macmillan
Company, 1964), p. A.

 

22

It was not much later that the Greek culture
reached its fabulous heights. The Greeks pos-
sessed a large population for their relatively
small land. We may surmise that they did not
want a population explosion. Accordingly, their
law condoned sexual relations such as homo-
sexuality and lesbianism, which could not pos-
sibly produce off-spring. Thus we read of Sappho
and the prestige of Lesbia. Male homosexuals -i_i-
held positions of highest esteem. There was no
legal prohibition of adultery or fornication
because, in some way that we have not yet been

. able to discern, it was recognized that mis-
tresses were not so likely to become pregnant
as were wives.7

Evident in these examples is the relative, changing
nature of moral codes and, consequently, of the referents
to which the term "obscenity" may be applied. In View of
this relativity, obscene material might be defined in
general terms as that which gives offense by reason of its
variance from the accepted moral code, especially as

applied to sexual behavior.

Development of the Concept
of Obscenity

The concept of obscenity, at least as it exists
today, could hardly have existed in the Greco-Roman world
prior to the first century A.D. By today's standards,
the ancient Greeks had an uninhibited attitude towards
sex. Legal historian H. Montgomery Hyde reports,*for~i r

instance, that:

Representations of men and women enjoying various.
forms of sexual intercourse were depicted on the

 

7Ibid.

m

23

bottoms of children's drinking bowls and plates,

so that they could have something amusing go

look at when they were having their meals.
The phallas was a standard part of comic actors' cos-
tumes. Statues in the form of phallic symbols were
common on street corners, sometimes serving as altars
before which young girls and married women prayed for

fertility.9 The gods (especially Zeus) were given to

numerous infidelities. Sexual license marked the Bac-

chanalia and carried over into some of the ancient Roman

religious celebrations.

But in time a new religion came to speak out against

fleshly lust in the words of St. Paul:

This I say then: walk in the Spirit, and ye
shall not fulfill the lust of the flesh. For the
flesh lusteth against the Spirit, and the Spirit
against the flesh: and these are contrary the
one to the other.

Now the works of the flesh are manifest, which
are these: adultery, fornication, uncleanness,
lasciviousness, idolatry, witchcraft, hatred,
variance, emulations, wrath, strife, seditions,
heresies, envyings, murders, drunkenness, revel-
lings, and such like: of which I tell you before,
as I have also told you in time past, that they
which do such things shall not inherit the king-

dom of God.10
It is well known how Christianity became established as

the state religion of the Roman Empire and survived after

—_k

8H. MOntgomery Hyde, A History offiPornography
(London: William Heinemann Ltd., 196A), p. 35.
9Ibid.

10Epistle to the Galatians

2”

that Empire as the sole authority which linked the crumbled
segments of that empire.‘ Claiming domination over men's
souls, it was able to preach the ideal of chastity through-
out the western world, despite variations in its practice
of that ideal. Some members of the clergy practiced
extreme asceticism and mortification of the flesh, but
there were also periods in which moral laxness has been
reported, even among the highest prelates.

Such moral laXness was in part a stimulus for the
Reformation and, in particular, for the rise of Puritanism,
with which came a strict condemnationzof earthly pleasure
and a demand for its suppression. In the words of literary
historian, George Ryley Scott, "The essence of Puritanism
'is suppression: it expresses itself in the denunciation
and suppression of anything calculated to give pleasure
to others."11

Thomas Wertenbaker, author of The Puritan Oligarchy,
explains that:

To the Puritans this world was little more than

a testing ground for the next, God's people were
to share in the divine, the eternal pleasures of
Heaven; they must not permit themselves to be

cheated of this supreme prize by reaching for the
temporary, unreal pleasures of human existence. . .

This expression of life found its expression in
the Puritan moral code. God in His mercy had
plainly marked every one of Satan's booby-traps.

llGeorge Ryley Scott, "Into Whose Hands" An Exami-
ggtion of Obscene Libel in its Legal, Sociological and
Literary Aspects (London: Gerald G. Swan Ltd., 19H5),
p. 21.

25

He had given to mankind not only the Ten Command-

ments, but He had pointed out the narrow path to

safety by tracing the journey of the saints along

it. It was the duty of the State as well as of

the Churches to protect the unwary and the weak

by adding to God's admonitions man's prohibition

of every sinful action, and to anticipate God's

punishment by earthly punishments, the stocks,

the whipping post, the branding iron, or the

gallows. 2

In line with the paragraphs just quoted, Puritan
attitudes, as they are considered to survive today, are
often blamed by contemporary liberals for unreasonable
intolerance in matters of sex, for an exaggerated inter-
pretation of obscenity, and for an overzealous insistence
on subjecting obscenity, as they interpret it, to strict
social control. A
With respect to Puritanism in the seventeenth.cen-

tury, however, one must note a difference between preach-
ing and practice of the theological ideals. Even in New
England, as Wertenbaker indicates, it proved impossible
to develOp an ideal state wherein the morals of the Elect
nmmbers of the congregations could be enforced on the
many. And to the extent that Protestantism was an expres-
sion of developing individualism, it had to speak out
against some kinds of governmental regulation. Thus, it
was the Puritan John Milton who, in 16““, wrote Areo-

pagitica, a strong plea to Parliament to repeal its order

for the regulation of printing.

*

12Thomas Jefferson Wertenbaker, The Puritan Oli-
Eégghy_(New York: Grosset & Dunlap, 1947), p. 159.

-KM-

26

When the Puritan is considered in the light of his
ractical concerns, rather more than his theology, it is
possible to reach the following interpretation of his.
motives:

It is no paradox to say that the Puritan had
little conception of the modern sex censorship of
literature. What attention he paid to obscenity
in books arose merely from his inability as an
earnest and practical-minded man to distinguish
between lewdness in books and lewdness in life.
He was against sexual immorality in life because‘
he knew that a profligate life led to the under-
mining of the virtues of sobriety, frugality and
industry which were indispensable to his labors
for civilization. Thus he was always concerned
about the bad example which a lewd book or play
might set. He had no objections to the depiction
of vice and sin provided it was bound up with the
prOper indignation. His attitude toward obsceniw
ties consequently differed little from the pro-
hibitionist's objections to intoxicating liquor
in its effects upon a man's efficiency. It had
as yet no connection with the censorship of ideas
and did not constitute part of the political
function.l3 ‘

If these were indeed the Puritan's views, they would seem
to be reasonably similar to those of many modern Ameri-
cans who support the legal control of obscenity‘in the
public media of communication.

It is probable that the development of such public (
media of communication strengthened and expanded the
concept of obscenity. Before the invention of printing,
the production and consumption of literature had been
virtually restricted to the clergy and was largely con-

cerned with religious and moral texts. Similarly,

 

13Ernst and Seagle, op. cit., p. 15A.

27

medieval drama was developed under the auspices of the
Church. But with the growing forces of individualism,
the breakdown of feudalism, and the growing economic
power of the bourgeoisie, literary and dramatic communi-
cation became more secular in content and authorship, and
nmre widely consumed. Hence, there was mere need to be
concerned with its moral influence on the public. Simi-
larly, there was more need to control its political
influence on the public. Both interests, political and
moral, had reason to establish legal regulation of the
public media of communication. The history of that regu-
lation, as it pertains to obscenity, will be commenced in

the next chapter.

CHAPTER III.

THE LEGAL HISTORY OF OBSCENITY

IN LITERATURE

The development of obscenity law in the United
States is intimately related to England's literary his-
tory. Therefore, it is necessary here to cite the
developments of English obscenity law prior to the study
of obscenity law in the United States. The following
only briefly describes the developments of obscenity law
in England and the United States through important legal
cases. There are, of course, many sociological events
which have influenced public and legal thought as it
concerns the definition of obscenity. Indeed, legal
decisions cannot be divorced from these important events.
It is hoped that the following chapter will not Only give
a brief history of obscenity law as reflected in litera-
ture, but will also aid the reader in understanding the
continual change that is inherent in such a subjective

concept as "obscenity."

28

29

The Roots of English Literary Control

As previously noted, references to sex through
erotic songs, jokes, drama, poems and riddles were
accepted in the Grecian, Roman and Middle Age periods
as legitimate aspects of culture. This was also the case
in Anglo-Saxon culture.

In the Anglo-Saxon literature, obscenity made its
printed appearance in the Exeter Book, the Vercelli Book
and the Julian manuscript. These books were filled with
obscene riddles as well as devotional and didactic works.1
The Medieval Church warned its faithful members against
the writing of heresy but made no mention of obscenity.
Official ecclesiastical censorship was.not instituted
until after the Reformation. The concern of the church
courts, again, was with the writings against the faith of
the church but not against morals. For instance, Tpe
Decameron was banned in 1559, not because of its obscenity,
but because of its satiric treatment of the clergy. By
revision, the monks became magicians and the nuns of the
story were suddenly noblewomen. These changes enabled
the church to authorize the new edition although the
obscenities remained.

The book production of England increased steadily

during the fifteenth century with the invention of

 

lNorman St. John-Stevas, Obscenity and The Law

(London: Seeker and Warburg, 1956), pp. 3-A.

30

printing. The Church, fearful of printing's influence and
possible domination over the thought of the people,
endeavored to take control of the books being printed.
Therefore, in 1557, the Inquisition under Pope Paul IV
drew up the first Index Librorum Prohibitorum, containing
the titles of those books forbidden to be in the posses-
sion of any layman. The latest edition of the EEQEE was

2 Yet the concern of the

released in 19A8 by the Vatican.
Ipdeg appears to remain today as a guard against heresy
and a protection of church prestige and not so must as a
concern against obscenity.

In the Reformation countries, the control of books
was taken over by Renaissance princes and the Reformed
Church. It was this inclusion of the aristocracy that
eventually led to the concept of government licensing.

In 1538 Henry VIII gave the power of licensing control to
the Star Chamber._ The little power given to the Star
Chamber does not appear to have been enforced. In 1556,
however, Philip and Mary gave the Stationers' Company
exclusive rights to printing under the agreement that they
would search out all undesirable and illegal books.

Unlike the Star Chamber, the Stationers' Company was very

strong. Later, in 1559, Elizabeth confirmed the charter

and further decreed that all books must be approved by

g

2Alec Craig, Suppressed Books: A History of the
Conception of Literary Obscenity (New York: The World

—¥

Publishing Company, 1963), pp. 18-19.

 

31

the ArchbishOps of Canterbury and York. The decree also
provided for the punishment of offenders and for the col-
lection of licensing fees.3

The Elizabethans did not object to the obscenity
contained in the writings of Shakespeare or his contem-
poraries during the sixteenth century. Indeed the Eli-
zabethans took delight in coarse and robust writing. In
View of these standards of taste, the state did little
to surpress obscenity. However, during the latter part
of Elizabeth's reign, the Puritans became more and more
vocal-concerning the immorality displayed on the stage
and thereby prepared the way for a change in the public's
taste.

In 1640 the Star Chamber was abolished, as were
the ecclesiastical courts. Literature was briefly free
of state and church control. In 16A3, however, licensing
was reintroduced by the Long Parliament and, as a result,
John Milton, a Puritan, wrote Areopagitica in which he
agreed that although certain books should be proscribed,
censorship should be generally condemned. Although ‘
Milton's writing was ignored and licensing continued for
the time being, the expression of the Puritan philosophy
did result in a new seriousness in literature and was an

influence in the discontinuation of licensing in the late

seventeenth century.

 

3St. John—Stevas, Op. cit., pp. 7-8.

32

Meanwhile, the disbanded Star Chamber was replaced
by the Licensing Act of 1662. This act continued the
tradition of literary control against heretical and "gen-
erally offensive" books and pamphlets until it was
allowed to expire in 1695 by a Parliament which thought
the Act unenforceable. This expiration is generally con-
sidered to be the termination of the licensing era.“

During the early eighteenth century literature began
to mirror the immorality of its aristocratic patrons. At
the same time, the middle and lower classes replaced the
private patrons as the reading majority. Due in part to
Oliver Cromwell's Puritans during the seventeenth century,
however, the new reading public of the eighteenth century
became conscious of modesty and the sense of shame cone
nected with sex. This attitude was to influence_future
English legal decisions regarding obscenityl’

The Development of English
Obscenity Law

 

 

With the termination of the Licensing Act of 1662,
which had previously restrained the printing and distri-
bution of pornographic books to some extent, the undis-
ciplined literary underworld of England's Grubb Street
flourished. One Grubb Street publisher of plagiarized
and pornographic materials, Edmond Curl, was brought

before the King's Bench at Westminster Hall in November

k

“Craig, op. cit., p. 21.

33

of 1727 for publishing Venus in the Cloister or the Nun

 

in her Smock.

 

The main result of Curl's arrest was the establish-
ment of the new offense of common law called "obscene ‘
libel." (According to legal historian, St. John-Stevas,,
the word "libel" has no connection with its popular mean-
ing but is used here as a result of its original deriva—
tion "libellus," a diminutive of "liber" or literally "a
little book.")5 Previously, in 1708, there had been an
attempt to establish the new offense when a man names

James Read published the pornographic The Fifteen Pleagues

of a Maidenhead. However, Mr. Justice Powell dismissed

 

the case with the following statement:

This is for printing bawdy stuff, but reflects

on no person or persons or against the Government.
It is stuff not fit to be mentioned publicly; if
there should be no remedy in the Spiritual Court,
it does not follow there must be a remedy here.
There is no law, to pun%sh it. I wish there were
but we cannot make law. ,

However this statement was overruled by the Curl
case twenty years later and the courts took over the jur-
isdiction of the ecclesiastical courts in the matter of
pornography. During the trial, counsel for the defense
based his argument on the Read decision. The prosecution,

however, put forth the following statement:

 

5St. John-Stevas, op. cit., p. 24.

6Ibid., p. 23.

3“

What I insist upon is that this is an offence
at common law as it tends to corrupt the morals
of the King's subjects and is against the peace
of the King. Peace includes good order and
government and that peace may be broken in many
instances without an actual force: (1) if it be
an act against the constitution of civil govern-
ment, (2) if it be against religion, (3) if
against morality. I do not insist that every
immoral act is indictable such as telling a lie
or the like, but if it is destructive of moral—
ity in general, if it does or may affect all the
King's subjects, then it is an offence of a pub?
lick nature. And upon this distinction it is,
that particular acts of fornication are not pun—
ishable in the Temporal courts and bawdy houses
are.

The argument was finally accepted by the court and Curl
was condemned for publishing a pornographic book.

This judgment is of major importance because Curl's
prosecution established the publication of obscenity as a
misdemeanor of English common law. Previously obscenity
had only been indirectly punished when and where it
occurred with any criticism of religion or the State, or
where it was suggested that some specific person had
acted in an immoral or obscene manner. Moreover, never-
before had the general morals of the public been con-
osidered in a judgment.

In the years following Edmond Curl's legal landmark
case, little concern for obscenity was expressed in~the*
courts. Pornographic material flowed freely and those
cases concerning obscene libel were treated lightly by

the English Courts. John Cleland's Memoirs of a Woman of

 

71bid.

a-‘F—fi“

35

Pleasure, although brought to court, was dismissed after
the court guaranteed Cleland one hundred pounds each year
if he would not repeat the offense.8

Therefore, obscenity, in a literary form, was less
recognized by the state as a problem in the latter years
of the eighteenth century. According to Alec Craig, the
illiterate mass of England, ruled by an educated and
sexually licentious aristocracy, provided an atmosphere
for the spread of puritanism among the lower classes.
The Industrial Revolution had created a new class of
wealthy citizens who rose from the same lower classes
and who subsequently brought their ideas of puritanism
with them. The Evangelical Movement further restricted
pleasure from the View of life of the new class. This
restricted view grew. In 1787 George III issued a pro-
clamation against all types of vice, including obscenity.
Thankful citizens carried out the Proclamation by forming
groups of their own for the same suppressive purpose.9
Utilitarian ideals and Methodism, although separated on
doctrinal grounds, were both common in their individual-
ism, humanitarianism, and antietraditionalism as well as

their advocacy of a restricted View of life.10

 

8Craig, op. cit., p. 33. li_i-

91bid., pp. 36-37.

10St. John-Stevas, op. cit., p. 32.

 

 

36

The trade in obscene books had increased greatly
during the last years of the eighteenth century. Thus
the Society for the Suppression of Vice, founded in 1802,
was to seek out the publishers and distributors of obscene
books as well as other-blasphemous offenses.

After the Napoleonic Wars, a new flow of obscene
literature found its way into England. In 1824 the
Society won in its attempts to have inserted within the
new Vagrancy Act a clause stating that a trial before the
magistrate with fine and imprisonment was due.anyone who
had shown indecent or obscene material in public places.
The effects of the Act were two-fold. First, prosecutions
were indeed carried out under the new law‘(averaging
approximately three per year) as well as sentence for
imprisonment and fines (averaging one every eight months).11
The second important effect was that the Act made the con-
cealment of obscene materials neCessary and, as a result,
drove the distribution of the material underground. The
addition to the Vagrancy Act, however, did not allow the
destruction of the obscene materials by the court.

During the trial of a particularly lurid piece of
material, Lord Campbell, Lord Chief Justice of England,
felt that the court should be concerned only with thosefl

books which intended to corrupt the morals of youth and

 

llH. Montgomery Hyde, A History of Pornography
(London: William Heinemann Ltd., 1964), p. 167.

37

~\ -' ‘\‘

shock the common decencies. This consideration, Campbell
thought, would eliminate books Of acknowledged literary or
artistic merit from being condemned. Lord Campbell intro-
duced a bill in the House of Lords embodying this point.
Following extensive amendments by the Commons, the bill
became the Obscene Publications Act of 1857. The Act pro-
vided that in case obscene materials were being kept on
the premises for the purpose of distribution, and an
actual sale had been made, a search warrant could be
issued and the material seized. The proprietor Of the
premises was then held responsible to show cause why the
material should not be destroyed. This Act did not change
the law as to what was obscene but rather strengthened it.
The sale of obscene materials was also reduced to some
degree by the destruction Of the materials themselves.l2
Books with literary merit, however, were still in

.jeopardy. The Act gave magistrates the power to order
tflie destruction Of books and prints if in their Opinion
tnieir publication would amount to a "misdemeanor prOper
tc> be prosecuted as such."13 Reputable authors writing
f2 r the educated public began to fear any publication of
tkueir works which included material that might have been
considered obscene by the courts.

l2St. John-Stevas. Op. cit., p. 66.?
lBlEiQ-

 

38

A change in the test of obscenity was initiated by
a case involving a Protestant pamphlet, the purpose of
which was to discredit the Roman Catholic Church by quot-
ing some confessors' works on moral theology. These
works entered into detailed illustrations of married life.
Henry Scott, a metal broker, received from the Protestant
Electoral Union copies of these pamphlets, called Th3
Confessional Unmasked, Shewing the depravity Of the Roman
Priesthood, the iniquity of the Confessional and the
questions put to females in Confession. Scott sold them
for religious purposes. Under.the Campbell Act, two hun-
dred and fifty copies were seized in 1867 by the justices
of Wolverhampton. Scott was summoned to show cause why
the pamphlets should not be destroyed. The Wolverhampton
magistrate, Benjamin Hicklin, found that although the
pamphlet was obscene and that the indiscriminate sale waS
contrary to the public moral good, Scott's motive in sel-
ling the pamphlets was an innocent one. The Roman Catholic
church officials of England, however, did not appreciate.
the decision and asked for an appeal to the Queen's Bench.
This appeal became the important The Queen v. Hicklin case.
The Catholic churchmen challenged the lawfulness of the
pamphlet's publication even though Scott's motive was
judged excusable. The Court answered that the material

was still considered to be obscene and therefore

 

r-——.—~.——l

39

unpublishable.ll4

During this expected decision, Lord
Chief Justice Cockburn gave his far-reaching and restric-
tive Opinion as to the test of obscenity under the Camp-
bell act.

The test of obscenity is this, whether the ten-
dency of the matter charged as Obscenity is to
deprave and corrupt those whose minds are Open
to such immoral influence and into whose hands
a publication of this sort may fall.1

This test said, in effect, that a piece of material

must be considered Obscene if it could possibly corrupt
the morals Of a school girl. It could be judged upon
individual passages regardless of its literary merits as
a whole. If this definition was arbitrarily applied, it,
would condemn even scientific literature. Such was the
case ten years later.

In 1877 Charles Bradlaugh and Annie Besant published

an early edition Of Charles Knowlton's Fruits of Philoe" r

sophy: An Essay on the Population which contained an

 

explanation of the physiology of sex in simple language
and discussed the use of some methods of contraception.
Both Bradlaugh and Besant were arrested. The trial took
place on June 18, 1877. The jury found the publication
obscene but did not condemn the publishers, Bradlaugh and-

Besant. The Lord Chief Justice instructed the jury that

 

l”Craig, Op. cit., p. 44.

15Ibid.

40

their finding was a verdict of guilty and fined the
16

defendants and sentenced them to imprisonment.

Following the Bradlaugh and Besant case, an eminent
junist, Sir James Stephen, wrote the following in the
Digest of the Criminal Law in 1877:

I leave this note unaltered, but since it was
written the case of R. v. Bradlaugh may be con-
sidered to have_gone some way towards establish-
ing a different principle, and to have invested
juries to a certain extent with the powers Of
pg post facto censors of the Press so far as
such publications on the relations of the sexes
are concerned. I think that juries ought to
exercise such a power with the greatest caution
when a man writes in good faith on a subject
of great interest and open to must difference:
Of Opinion, and when no indecency ofslanguage
is used, except such as is necessary to make
the matter treated of intelligible. 7

 

 

Literature with merit was again on trial when on
October 31, 1888, in the Central Criminal Court before
the Recorder Of London, Henry Vizetelly was charged with
Obscene libel with his publication of an English trans-.

lation of Zola's La Terre.

 

Zola was a naturalistic writer and depicted the
lives of his characters in all their selfishness, cruelty
and.sordidness. Although Zola's novels are now considered
literary classics, an article in the April 21, 1888

.hvurnal Society called La Terre, "dirt and horror pure

 

and simple," and continued; "In the French original its

———

l6Ibid., pp. 45-u6.

17Ibid., p. 48.

'1

41

sins were glaring enough in all conscience, but the

English version needs but a chapter's perusal to make one

sigh for something to take the nasty taste away."18

Through increasing pressure for prosecution by the
public and critics, the trial began. The Solicitor-

General, Mr. Poland, explained that twenty-one separate

passages of "bestial obscenity" had been found and although

the book was written with a "wholesome purpose of teach-
ing, or with an innocent purpose of amusing, . . . this
book was filthy from beginning to end."19 After the
Solicitor-General had read some Of the marked passages
from the book, the Recorder,or magistrate, made the fol-
lowing statement:

There is a great distinction between this case and
the Queen v. Hicklin. There the object of the
publIcation was no doubt extremely good, but it
was held, and very properly so, to be no answer.
This book has been published for the sake of gain,
and it is not necessary for me to say that it was
deliberately done in order to deprave the minds

of persons who might read the books. In my Opin-'
ion they are of the most repulsive description.
They are not Of a seductive or a fanciful charac-
ter, but repulsive and revolting to the last
degree. Therefore, when a man who had a good
character - which you say and which I am quite
prepared to admit you deserve — finds that the
Opinion is entertained by the authorities that
they are of this description, he could not do
otherwise than express himself as you have done
and undertake to withdraw them from circulation.
This is the great object of such an inquiry as

18George Ryley Scott, "Into Whose Hands" An Exami-
EEEEQB of Obscene Libel in its Lega1,_SociOlogical and
Literary Aspects (London: Gerald G..Swanthd., 1945),
p. 950 .

l9Ihid., p. 96.

 

42

this. The sentence is that you be fined one hun-

dred pounds and enter into your own recognizances

in two hundred pounds to keep thezpeace and be Of

good behaviour for twelve months.
Vizetelly resumed publication of translations Of Zola's
works and was subsequently prosecuted and sent to prison.

The turn Of the century brought the beginning of

cnmhge to the society which had been so immersed in
Victorian propriety. Education had been constantly on
the rise and writings such as Ibsen's plays affected edu-
cated people's ideas about the relations of the sexes.
People became aware of Freud's ideas_as well as of the
emancipating ideas of H. G. Wells and Bernard Shaw.
Matters of sexual ethics were not bluntly put forth in
this period but rather implied as matters that should be
considered in the future. The law intervened sporadically
in its role as arbiter of public taste. Many prosecu-
tions were carried out only to keep publishers and authors
"in—bounds." The Old Society for the Suppression of I
Vice was dead but was replaced by the National Vigilance
Association as well as a Law Church body and the Public
Morality Council.21 As a result of the general relaxa-
tiOl’},-the circulation of Obscenity began to increase.

In View of the increase, it was requested of the

Secretary that the Lord Campbell Act be made more

——_

20Ibid., p. 97.

21St. John-Stevas, op. cit., p. 87.

43

stringent. In 1903 the Headmasters' Conference appealed
for the suppression of the pornography that had been cir-
culating in their schools and was readily available to
boys and girls. And in 1907 the Council was busy sup-
pressing "1iving statuary" in music halls. In 1908 a
conference concerning indecent literature was held with
members of Parliament, both Commons and Peers, in an
effort to outline new legislation against Obscenity. In
the same year a Joint Select Committee of both the Houses
of Parliament was appointed to investigate "lotteries and
indecent advertisements." In general the Committee advo-
cated the repeal Of the many statutes dealing with porno-
graphy and the enactment of an act which would make all
offenses summary under a uniform procedure. Thus for the
first Offense, all violators would be fined twenty pounds
or receive one month's imprisonment and for the second1
Offense, or sale to anyone under sixteen, would be fined
one hundred pounds or receive six monthS' imprisonment.22
The Committee also recommended the following;
A provision should also be inserted to exempt from
Operation Of the Act any book of literary merit of
reputation or any genuine work of art. The Com-
mittee thinks it would be almost impossible to
devise any definition that would cover this excep-
tion. In their Opinion the decision in such cases
should be left to the magistrate, but they believen
that if a provision such as they recommend were

inserted in the Act, a magistrate would be enabled
to take into consideration all the circumstances

22Ibid., p. 87.

 

44

of the case and would be free from a supposed Obli-
gation to decide upon the decency or indecency of
the particular literary or artistic work brought
to its notice.2
With the outbreak of World War I, the proposed Bill was
forgotten.

In view of the lack Of enactment of the suggested
bill, the National Vigilance Association carried on the
traditions of the former organizations. For example, the
Association urged the Government to charge John Long with

unlawfully selling and uttering certain indecent and

obscene libel in the book The Yoke by Hubert Wales. On

 

December 14, 1908 Long's soliciters provided the Court
with the promise to discontinue the sale of the book.2u
Again in 1910 John.Lane, a publisher of the English

translation of Hermann Sudermann's Das Hone Lied (The Song

 

of Songs) agreed to withdraw the book from publication.
The story was that of a prostitute named Lily Czepanek who
did not receive proper puritan retribution for her -sins
but instead made a success of her profession. This fact
and two or three incidents which were shocking to the

public, condemned the book.25

The withdrawal Of the book from publication was

thus not uncommon in the early twentieth century. An
23Ibid., p. 88.

2“Scott, Op. cit., p. 99.

25Ibid., p. 100.

45

order for the withdrawal of an "Obscene" book was given
regardless of the degree Of creativity or the signifi-
cance of the material.

In view of the above actions by the courts, it was
not surprising that in 1923 Guy and Rose Aldred were pro-
secuted for publishing Margaret Sanger's Family Limita-
pipp, a sixteen page booklet giving the answers and
explanations to several methods of birth control. Evi-
dently the objectionable material was one of three line
illustrations showing the proper placement of birth con-

trol equipment. The drawing, said Mrs. Sanger, had been

copied from a medical textbook. The pamphlet had pre-
viously been published in the United States in 1914 as

welj.as in countries including Spain, Italy, Poland,

Thungary, China, Japan, Russia and Denmark. In Mexico,

aeuzording to Mrs. Sanger, it had been distributed with

evexry marriage license.? These facts, however, did not

Change the court's decision.

Public awakening as to the stringent and overpower-
ing; suppression of literature of worth began five years
aftwar the ruling against Mrs. Sanger's pamphlet, with the
case} against Miss Radclyffe Hall and her book, The Well

2£_lg9meliness. The main character, Stephen Gordon, is

 

a leesbian and is presented as a martyr to the cause of

horrNDsexuality. The story's ending, which in literary
\
26
Ibid., pp. 106-107.

46

Opinion appears to be the book's redeeming factor, has a
sincere and sympathetic appeal to society for the victims
of nature. The book, upon its publication in 1928, was
well received and praised. The Daily Telegraph Of August
7, 1928 said: "The book must be accepted as a whole, and
so accepted it is likely to excite two Opposite Opinions,
according as the reader admits or denies the subjecgs as”
legitimate material for art."27 The praise was consistent
until the August 19, 1928, edition of the Sunday Express
printed an article by James Douglas in which he said, "I.
would rather put a phial of prussic acid in the hands of
a healthy girl or boy than the book in question. . . .

What then is to be done? The book must be at once with-

drawn."28

In View of the growing criticism to the book.and
the possibility of prosecution, publisher Jonathan Cape
Offered to withdraw the book. The Home Secretary agreed
to the action and the book was withdrawn. The response
to this action was rapid and loud. The Daily Herald
campaigned against the government. Among the advocates
for~the continuance of the novel were Bernard Shaw and
Ii. G. Wells.

A new edition of the novel was published in Paris.

Itz'was shipped to Dover and there Customs seized the

g

27St.‘John-Stevas, op. cit., p. 98.

28Ibid., p. 99.

47

shflpment. On November 9 the gOvernment applied for a
destruction order under Lord Campbell's Act.

Following are excerpts from that trial that most
clearly show the attitude of the law at that time:

Norman Birkett . . . spoke in defense of the book:
"Nowhere is there an obscene word or a lasci-
vious passage. It is a sombre, sad, tragic,
artistic revelation of that which is an un-
doubted fact in this world. It is the result
of years of labour by one of the most distin-
guished novelists alive, and it is a sincere and
high minded effort to make the world more tol-
erable for those who have to bear the tragic
consequences of what they are not to blame for
at all. In the course of the case I hope to
be allowed to quote the views Of critics in
various reviews and newspapers, which consti-
tute a chorus of praise from those well quali-
fied to speak upon matters affecting literature
in general. Further than that, there are in
court people of every walk of life who desire
to go into the witness box and to testify that
this book is not obscene, and that it is a
misuse of words for the prosecution to des-
cribe it as such."

At this point he was interrupted by the magis-
trate:

"The test is whether it is likely to deprave
or corrupt those into whose hands it is
likely to fall. How can the opinion ofra
number of people be evidence?"

Norman Birkett: "I want to call evidence from
every conceivable walk of life which bears on
the test whether the tendency of this book was
to deprave and corrupt. A more distinguished
body of witnesses has never before been called
in a court justice."

'The Magistrate: "I have the greatest doubt
whether the evidence is admissible."

Norman Birkett: -"If I am not allowed to call
evidence it means that a magistrate is vir-
tually a censor of literature."

48

The Magistrate: "I don't think people are
entitled to express an Opinion upon a matter
which is for the decision of the court."

Norman Birkett: [In questioning Mr. Desmond
MacCarthy, then editor of "Life and Letters"]
"In your View is it Obscene?"

The Magistrate: "No I shall disallow that. It
is quite clear that the evidence is not admis-
sible. A book may be a fine piece of litera-
ture and yet Obscene. Art and Obscenity are
not disassociated at all. There is a room at
Naples to which visitors are not admitted as a
rule, which contains fine bronzes and statues, ‘
all admirable works of art, but all grossly
Obscene. It does not follow that because a
book is a work of art it is not obscene. I
shall not admit the evidence."29

In the course Of the judgment, Sir Chartres Biron, the

Magistrate, said the following:

With regard to the point that the book is well
written and therefore should not be subjected
to these proceedings, that is an entirely
‘untenable position. I agree that the book has
some literary merits, but the very fact that
'the book is well written can be no answer to
‘these proceedings because otherwise we should
13e.in the preposterous position that the most
(abscene books would be free from stricture.
.ITt must appear to anyone Of intelligence that
lihe better an Obscene book is written the
Eareater the public to whom it is likely to
Eippeal. The mere fact that the book deals
VVith unnatural offences between women does not
rnake it obscene. It might even have a strong
Inoral influence. But in the present case there
fi.s not one word which suggests that anyone with
izhe horrible tendencies described is in the
Ileast degree blameworthy. All the characters
Eire presented as attractive people and put
:forward described in alluring terms.30

\

29Ihid., p. 101.
30Ibid., p. 102.

 

49

Protests followed the final judgment but the deci-
sion was upheld and not until 1949 was the book repub-
lished and distributed in England.

Also in the year 1929 further attacks were made
upon D. H. Lawrence. Lady Chatterley's Lover, published
in Florence, was attacked by reviewers, as was his book,

John Bull. The Post Office seized a manuscript Of his

 

poems Pansies and, in the same manner, his Introduction
to his Volume of Paintings. However, as a result of a
recommendation, the poems were not published and there-
fore no legal action was taken. In another instance,
Lawrence's picture exhibition at Warren Galleries was
raided by the police in July, 1929. As in the defense
of The Well Ovaoneliness, expert testimony as to the
[artistic merits of the paintings was excluded from the
court. The defendants promised to close the exhibition
and the case was dismissed.31

This type of decision continued through the thir-
ties in famous cases concerning James Hanley's B21 in
1934, Wallace Smith's Bessie Cotter in 1935, and Edward
Charles' The Sexual Impulse in 1935.

The publication of Norman Mailer's The Naked and
the IDead, the novel about American service life, brought
an airtempt to suppress the book in 1949. The Attorney-

Generual, Sir Hartely Shawcross, however, refused to take

g

3lIbid., p. 105.

 

50

action and on May 23, 1949 made the following rather
ironic statement concerning government policy after a

Sunday Times editorial accusing the book of being Obscene:

 

In cases of the kind involved here [said Sir
Hartley] there are two public interests to which
I must have regardp It is important that no
publisher should be permitted to deprave or
corrupt morals, to exalt vice or to encourage
its commission. It is also important that
there should be the least possible interference
with the freedom of publication, and that the
Attorney-General should not seek to make the
criminal law a vehicle for imposing a censor-
ship On the frank discussion or portrayal of
sordid and unedifying aspects of life simply on
the grounds of offense against taste or manners.
While there is much in this most tedious.and
lengthy book which is foul, lewd and revolting,
looking at it as a whole I do not think that its
intent is to corrupt or deprave or that it is
likely to lead to any other result other than
disgust as its contents.32

The above statement appears to scorn.those traits
that the English magistrates, under the established
obscene libel law interpretation, had been practicing for
years. Here the Opposite is considered instead, that is,
that a publisher should be free from interference from
the government, that the Attorney-General should not use
the law as a device for censorship Of frank discussions
of the undesirable, and that the book should be judged
as a whole.

It might well have been the effect of a 1953 Oslo
conference of the International Criminal Police Commission

that prompted a full-scale campaign against publishers

E

32Ibid., pp. 110-111.

51

once again. It was concluded at this Conference that
Obscene literature was a contributory cause of the
increase in sexual offenses since World War 11.33 What-
ever the reason, it was this heavy attack as well as the
growing public resentment of suppression beginning with

Hall's The Well of Loneliness that finally brought reform

 

to England's Obscene libel law.

The Philanderer was a novel tracing the amorous
adventures of Russell Conrad. Its release in the United
States brought favorable reviews. However, a review pub-

lished in New Statesman brought out the moral attitude of

 

the book's main character, Conrad. In September of 1953
its circulation in certain libraries in the Isle of Man
brought the book to trial, and the High Bailiff found the
bOOk obscene. Later in England the book was prosecuted
once again and although the publisher, Werner Laurie,
pleaded guilty to publishing Obscene libel, the Chairman
of Secker and Warboury, Frederic Warburg, decided to
fight the outcome of the case.3u
On June 29, the trial began at Old Bailey. The
defendants pleaded not guilty. The judge, Mr. Justice
Stable, instructed the jury to go heme to read the entire

book rather than the certain questionable paSsages. The

33Ihid., p. 111.

3“Ibid., p. 113.

 

52

charge to the jury offered a new interpretation of the

term "obscene."

He [Mr. Justice Stable] stressed the value to
the reading public of accurate pictures of con-
temporary social conditions in other countries
at a time like the present when ideas were in
the melting pot, and pointed out that although
the law was the same as in 1868 the Jury had
not to consider the effect of publishing the
book at that time but its effect on society as
it is today. Just because a book was not suit-
able reading for the decently brought-up young
female of fourteen or a child in the nursery

to read it was not, the Judge declared, a crimi-
nal offense to make it available to the general

public.35 .

Although the judgment was praised, it did not change
future decisions. The case concerning September in
Quinze was a case in point. The Magistrate, Sir Gerald
Dodson, completely contradicted the standards that had
been so promising in The Philanderer case. Lively public
interest in three other cases, concerning the books, The
lflgge and the Search (acquitted), The Man In Control
hicquitted), and Julia (convicted) brought wide discussion.

Newspapers, periodicals, and radio reviews and dis-
<Hlssion augmented the interest in the law of obscenity.
Ir1 195u Graham Green feared the freedom of writers was
J-Ost and warned that the attitude then displayed was con-
dfnnning any description of man's sexual nature as if sek

itself was repulsive. Bertrand Russell, Harold Nicolson,

CcDInpton Mackenzie, J. B. Priestley, W. Somerset Maughan

 

 

3SCraig, op. cit., pp. 117-118.

53

among others, believed that the prosecutions were an

attempt to deny authors, by police censorship, the right

36

of describing real life. In view of this controversy,

the stage was set for reform.

In November of 195“ the Society of Authors demanded
review of the obscene libel law and set up The Herbert
Committee (originally presided over by Sir Alan Herbert)
to recommend reforms. The Committee was made up of

authors, publishers, printers, critics, lawyers and a

\ \ r \‘

Member of Parliament. The group drafted a Bill containing
their recommendations. On February 3, 1955, these pro-
posals were made public. Norman St. John-Stevas recalls
the elements of the Bill:

The principal reform proposed was to make the
state of mind of the accused person an essential
element in the offense, thus shifting the empha-
sis from "tendency" to "intention." The Bill '
made no attempt to define obscenity, but in-
structed Juries and magistrates to take into
account literary or artistic merit in all cases
of obscene publication. On this point the Bill
provided for the admission of expert evidence.
‘Ihe Bill repealed all existing obscenity sta-
tutes, but re-enacted the provisions of the
Obscene Publications Act of 1857 with certain
important modifications. Authors, publishers
and printers were given a locus standi in the
court to enable them to give and call evidence,
and proceedings under the Act were speeded up.
Destruction of obscene publications by the cus-
toms authorities was made dependent on the
issuing of a destruction order by a magistrate,
and uniformity in administration of the law was
provided for by making all proceedings subject.
to consent of the Attorney-General.3

 

36St. John-Stevas, Op. cit., p. 120.

37Ibid., p. 121.

5“

Acceptance was widespread for the proposed bill.
However, the Bill was pushed aside because of its involve-
ment with a "horrorfcomics" controversy. It was through
similar complications that the Bill was waylaid from
passage from its first introduction in March of 1955 to
its final passage in 1959. On August 29, 1959, the Bill
became the Obscene Publications Act of 1959 replacing the
Obscene Publications Act of 1857.

The new Act contained basically what the Herbert
Committee Bill had outlined. The Act made it an offense
to publish an obscene article for gain (an "article"
being defined as any matter to be read or viewed). An
"article" would therefore include sound recordings and
motion pictures. "Publishing" meant any attempt to make
public any of the aforementioned "articles." Also a per-
Son, said the Act, could not be tried if he could prové"
that he had not been fully aware of the content of the
DUtfilished article. And, most important, the Act also
eStablished a new test of obscenity which was as follows:

An article shall be deemed obscene if its effect
r (where the article comprises two or more dis-
tinct items) the effect of any one of its items
is, if taken as a whole, such as to tend to
deprave and corrupt persons who are likely, hav-

ing regard to all relevant circumstances, to read,
see or hear the matter contained or embodied in

it.38 ‘

\

38Craig, op. cit., p. 121.

 

55

It was also specified in the Act that no conviction would
take place if it could be proved that the matter of the
article was for the public good. This would include those
works of science, literature and art, or learning.
Finally, the new Act would admit as evidence the testi-
monies of literary, artistic or scientific experts.

The new law actually did little more than give sta-
tutory authority to that which had previously been held

by Judges such as Mr. Justice Stable in the Philanderer

 

case. One of the important elements omitted was the lack
of the need for a sworn statement by the police that an
actual sale of obscene materials had taken place. Accord-
ing to the Act the police had only to convince the issuing
Justice of a reasonable ground for suspecting the sale.
The new Act also brought the actions of giving, lending,
or showing within the realm of "publishing" which endan-
gered private collections. Finally, the Post Office and
Customs were not mentioned in the Law thus maintaining
the seizure power to both.39 .
This is the present stage of the English law con—
cerning obscenity. It is this history of English obscenity
law that provided the basic_foundation for obscenity law
in the United States. ’

39Ibid., p. 121-122.

 

56
The Development of Obscenity Law
in the United States

Obscenity first appeared in American courts in 1815
when Jessie Sharpless was arrested and found guilty in a
Philadelphia court for exhibiting for money the picture
of a man and a woman in an "imprudent position." At that
time there was no obscenity law; therefore, the case was
decided upon Judge-made principles. The case, in the
’opinion of the Judge, was against public decency and
tended to corrupt public morals.“0

In 1821 the first obscenity case involving a book

was brought to court in Massachusetts. The book was

Fanny Hill or Memoirs of a Woman of Pleasure by John

 

Cleland, published by Peter Holmes. With the book's repu-
tation in England well known, Holmes was immediately found
guilty.”1

With the increase in literacy in America and the
simultaneous decrease of clerical domination over the com-
munity, both the individual states and Congress began to
enact statutory law concerning obscenity. Vermont was
first in 1821. Connecticut and Massachusetts followed

“2-

Vermont's example in 183A and 1835 respectively. These

States had, under the United States Constitution, full

 

 

quorris L. Ernst and Alan U. Schwartz, Censorship:
2£§_Search for the Obscene (New York: The Macmillan Com—
pany,-l964), p. lu).

ullbid., p. 15.

uzIbid., p. 18.

57

power over regulations concerning education, the family,
and sexual behavior. However, it was up to the Federal
Government to enact laws concerning interstate transpor-
tation of obscene material as well as its foreign import.
Thus in l8u2 the first limited Federal regulation against
importation of obscenity was enacted.

Lord Campbell's Act of 1857 became the basis for
obscenity law in America as well as in England. Basically
what Sir Alexander Cockburn as Lord Chief Justice did to
distort the philosophy of the Campbell Act in England, so
Anthony Comstock, a young grocery clerk, did in America.

Comstock was fanatic in his drive against obscenity.
His drive prompted him to form, with the YMCA, a Committee
for the Suppression of Vice in 1872. Due to his lobbying,
a Federal law governing obscenity in the mails (still in
effect today) was passed (Section 1&81 of Title 18, Ch. 71
United States Code).

The United States' definition of obscenity was simi-
lar1to that in England. {The first case to come before a
United States court was in 1896. It defined obscenity as

follows:

The test of obscenity is whether the tendency of

the matter is to deprave and corrupt the morals

of those whose minds are open to such influence

and into whose hands a publication of this sort *m_g
may fall. 3

“31b1d., p. 35.

58

For years to follow, the Judicial reasoning behind
obscenity law in the United States closely resembled that
of England. For instance,.the courts refused to discuss
the particular parts of a book charged with being obscene
lest the court records be exposed. Therefore, publishers
and authors were often left completely ignorant of
exactly what portions of their publications were being
Judged "obscene."

The United States Supreme Court began to establish

its own definition of obscenity as a result of a decision

in 1895 by a lower court which found Dan K. Swearingen
guilty of mailing a copy of The Burlington Courier con-
taining an "obscene" article. The United States Supreme
Court, on the other hand, decided that the language of
the article was course, vulgar and libelous but its rela—
tionship to sexual impurity was not present. Therefore
the article was Judged not to be obscene (because it
lacked sexual references) and Swearingen was freed of the

charge.uu

Like the early history of English obscene libel law,

publishers in the United States accepted the Comstock
laws (as the laws instituted by Anthony Comstock were
called) as did publishers in England when faced with the
Cookburn ruling. It was not until 1913 that an American

Imblisher named Mitchell Kennerley decided to defend his

—_¥

414Ibid., p. #2.

59

own publication of Daniel Goodman's book, Hagar Revelly.
The book was basically concerned with two shopgirls, one
of whom turned to prostitution while the other remained
pure. The story suggested that it was not-mainly eco-
nomic background that determined sexual vice as was the
popular attitude of the time. Comstock read the seduc-
tion scenes within the book and felt that the book was
obscene, apparently missing the moral of the book.“5

The decision of the newly appointed Judge, Learned
Hand, in the Kennerley case shifted the American develop-
ment of obscenity law from the test of obscenity pro-
nounced by Lord Chief Justice Cockburn half a century
earlier. Judge Hand's decision read as follows:

I hope it is not improper for me to say that
the rule as laid down, however consonant it may
be with mid-Victorian morals, does not seem to
me to answer to the understanding and morality of
the present time, as conveyed by the words,
"obscene, lewd or lascivious." I question whether
in the end men will regard that as obscene which
is honestly relevant to the adequate expression of
innocent ideas, and whether they will not believe
that truth and beauty are too precious to society
at large to be mutilated in the interests of those
most likely to pervert them to base uses. Indeed,
‘it seems hardly likely that we are even today so
lukewarm in our interest in letters or serious dis-
cussion as to be content to reduce our treatment
of sex to the standard of a child's library in the
supposed interest of a salacious few, or that
shame will for long prevent us from adequate por-
trayal of some of the most serious and beautiful
sides of human nature. . . . [TJhe word "obscene"

usIbid., pp. 53-5u.

 

60

should be allowed to indicate the present criti-
cal point in the compromise between candor and
shame at which the community may have arrived
here and now.“
Even though a different interpretation had been raised
through the Kennerley decision, Judge Hand felt that he
had no choice but to find the defendant guilty because
of the precedents and the fact that he was a low-court
judge.

Further progress in obscenity law was made when
Raymond D. Halsey, a bookstore clerk, was arrested and
brought to court by the Society for the Suppression of-
Vice for selling Mademoiselle de Maupin-by Théophile
Gautier. The Book had been written by a world renowned
author of the nineteenth century. Halsey was acquitted
at the trial but had decided to take the case to the
Court of Appeals in New York for damages against the
Society. Halsey won this battle, too.”7

What was significant in this appeal was the Court's
examination of the bOok. The Court took into considera-
tion the reputation of the author, the fact that literary
critics had held the book in high esteem since its first
publication in 1835, and a reading of the whole.book as

opposed to limited passages.

 

u6United States v. Kennerley, 209F. 119 (1913).

“7Ernst and Schwartz, op. cit.,~p. 56.

61

In 1929 People v. Friede dealt with The Well of

 

Loneliness but the Judgment was based upon The Queen v.

 

Hicklin, mentioned above. However, the publisher,
Friede, carried the fight to a three-man appellate court.
and won. The complete difference in Judgments clearly
shows the lack of a standard upon which an obscenity

case was to be judged. The theme, one of lesbianism, was
shocking to the public at the time. This theme, as well
as the consideration of the community taste and the
Cockburn test, gave the lower court a reason to condemn ‘
the_book. Yet the higher court judges, with perhaps more.
sophisticated tastes, found the theme unobjectionable.
Taste, then, could not be a standard for Judgment.

The subject of sex had long been considered the
prime ingredient of obscenity. But it was the United
States v. Dennett case in 1930 that narrowed the subject
of sex down to its prOper place as far as the courts were
concerned. In 1919, Mrs. Mary Dennett, having two grow-
ing sons of her own, believed that the emotional side of
sex was being neglected both by the literature and by the
parents of the time. She wrote a pamphlet, The Sex Side
of Life, in an effort to furnish parents with material to
give their youngsters. The pamphlet was well received by
religious leaders, youth organizations, and parents alike.
However, after the distribution of some twenty-five thou-

sand pamphlets, the Post.Office found the pamphlet

62

linmailable in 1926. Mrs. Dennet was charged with mailing

obscenity, brought to court, found guilty and fined three

Inlndred dollars.148 The case was appealed to the Federal

Ciipuit Court of Appeals in March of 1930. Judge Augustus
Ii. Hand presided and, after hearing the facts, acquitted

Iflrs. Dennett.

This decision aided in determining what constituted
obscenity. Briefly, Judge Hand explained that Mrs. Dennett
had written a pamphlet for parents to give to children at
the parents' discretion. Most important, Judge Hand
explained, any article that dealt with sex might indeed
artnise sexual desire under some circumstances but.that-the

lamr did not prohibit everything that might arouse sexual

implilses.

We hold that an accurate exposition of the relevant
facts of the sex side of life . . . cannot ordi-
narily be regarded as obscene. Any incidental
tendency to arouse sex impulses which such a
pamphlet may perhaps have is apart from and sub-
ordinate to its main effect. The tendency can

only exist in so far as it is inherent in sex
instructions, and it would seem to be outweighed
by the elimination of ignorance, curiosity, and
morbid fear. 9

With the decisions of the Dennett and the Kennerley
casxes, there began a clearer definition of what consti-

tuteni objectionable material as related to obscenity. Yet

—¥

u81bid., p. 81.

ugUnited States v. Dennett, 39~F 2d 564 (1930), 569.

 

63

it was the case of the United States v. One Book Called

'Ulysses' (1933) that established a landmark decision in
the fight for artistic freedom.

The book Ulysses by James Joyce was first published I
in 1922 in Paris. The book had a long history of legal
problems prior to its entrance into the United States.
Many critics thought Joyce's stream of consciousness work
an important literary experiment. Yet, in spite of this
thought, many men were imprisoned for publishing the book.
Random House Publishing Company, in 1930, purposely sent
a copy through United States Customs to be.seized for vio-
lation of the Tariff Law of 1930 which allowed seizure of
obscene books entering the country. This action by Random
House allowed authorities to try the book itself rather
tharzthe seller or the publisher. The book was indeed
seized for its use of Anglo-Saxon four-letter words and
fine bluntness of the stream of thought which involved many
sexual allusions .

The case was tried by Judge Woolsey at the District
Court in New York in 1933. The decision by Woolsey
affirmed the use of expert testimony and a discussion of
the book's purpose during a trial. In answer to the
charge of its bluntness and of its use of four-letter

words, Woolsey said:

 

su

. , . in "Ulysses," in spite of its unusual frank-
ziess, I do not detect anywhere the leer of the

sensualist. I hold, therefore, that it is not
Iaornographic.

For his attempt sincerely and honestly to
:realize his [Joyce's] objective has required him
incidentally to use certain words which are gen-
erally considered dirty words and has led at times
to what many think is a too poignant preoccupa-
tion with sex in the thoughts of his characters.

Accordingly, I hold that "Ulysses" is a sincere
and honest book and I think that the criticism
of it are entirely disposed by its rationale.50

Later'in the decision Judge Woolsey said:

The meaning of the word "obscene" as legally
defined by the courts is: tending to stir the
sex impulses or to lead to sexually impure and
lustful thoughts.

Whether a particular book would tend to excite
such impulses and thoughts must be tested by the
Court's opinion as to its effect on a person with
average sex instincts - what the French would
call l'homme moyen sensuel - who plays, in this
branch of legal inquiry, the same role of hypo-
thetical reagent as does the "reasonable man"
in the law of torts and "the man learned in the
art" on questions of invention in patent law.51

It should be noted at this point that the emphasis for the.
test of the obscenity is whether a "person with average
sex instincts" is affected rather than Hinto whose hands
it might fall," or a school-girl.
. . reading "Ulysses" in its entirety, as a book
must be read on such a test as this, did not tend

to excite sexual impulses or lustful thoughts‘but
that its net effect on them was only that of

50United States v. One Book Called "Ulysses," 5 F
Supp. 182 (1933), 183.

5llbld., p. 185.

 

65

somewhat tragic and very powerful commentary on
the inner lives of men and women.

It is only with the normal person that the law
is concerned. Such a test as I have described,
therefore, is the only proper test of obscenity
in the case of a book like "Ulysses" which is a
sincere and serious attempt to devise a new
literary method for the observation and descrip-
tion of mankind.52 ‘

Judge Manton dissented:
The decision to be made is dependent entirely upon
the reading matter found on the objectionable.
pages of the book. . . . Who can doubt the obscen-
ity of this book after a reading of the pages
referred to, which are too indecent to add as a
footnote to this opinion? Its characterization
as obscene should be quite unanimous by all who
read it. . . . No matter what may be said on the
side of letters, the effect on the community can
and must be the sole determining factor. . . .
If we disregard the protection of the morals of
the susceptible, are we to consider merely the
benefits and pleasures derived from letters by
those who pose as the more highly developed and
intelligent? To do so.wou1d show an utter dis-
regard for the standards of decency of the com-
munity as a whole and an utter disregard for the
effect of the book upon the average less SOphis-
ticated member of society — not to mention the
adolescent.

The book was found to be admissible to the United

Stéltes. However, the United States took the case to the.
CjJr‘cuit Court of Appeals, but the decision was upheld by

Cj~Ir'cuit Judges Learned Hand and Augustus N. Hand.

This case, then, continued or established the prin-

cjfiples that a book must be read as.a whole, that the

all‘thor's purpose is important, that critical opinions in

 

521bid.

53St. John-Stevas, op. cit., p. 165.

 

66

judging a piece of literature are important and admis-
sible, that words of all kinds may be used because they
are only undesirable relative to time, and that the test
is whether the "average man" of the community is affected
rather than the test using the school-girl criterion.
V The standard of the "average man" was, however, not
followed in the United States v. Levine case of 1936.
Esar Levine had sent advertisements for a number of books
through the mail to a "blue-ribbon" list of people, that
is, professional people. These books, he said, couldmnotv
be "obscene" in the hands of those professiona1.people.
In the lower court the test was not admissible evidence
since the Judge held that the standard for obscenity was
absolute. Levine was convicted.5u
The case was.appealed and Judge Learned Hand spoke

for the majority of the court. The decision for reversal
of the lower court Opinion was primarily based upon Judge
Hand's statement:

The standard must be the likelihood that the work

will so much arouse the salacity of the reader to

whom it is sent as to outweigh any literary,

scientific or other merits it may have in that

reader's hands.55

In 1938 Li£g_magazine published an article, accom-

panied with many photographs, entitled "The Birth of a

Baby." Although the magazine's publisher, Roy Larsen,

5“Ernst and Schwartz, 0p. cit., pp. 108-109.

55United States v. Levine, 83 F 2d 156 (l9u6).

67

defended the article, a Catholic lay organization charged
obscenity. The case was brought before the lower Criminal
Court in New York City. The decision of the court
included the following meaningful passages:

Conceptions of what is decent or indecent are
not constant. The early attitude of the Courts
upon this subject is not reflected in the recent
cases. The trends to be observed in the cases
have mirrored changing popular attitudes. Recent
cases illustrate the caution with which Courts
have proceeded in this branch of the law to
avoid interference with a justifiable freedom of
expression.

The gravamen of obscenity is the tendency of
the matter to corrupt morals or to lower the
standards of right or wrong concerning sexual
behavior. The normal person must serve as a
criterion, not the abnormal.

Upon the trial of this action, Larsen produced
as witnesses responsible public health authorities,
welfare workers and educators who testified to
the sincerity, honest and educational value of the
picture story complained of. The prosecutor ob-
jected to the admission of this testimony. Strictly
speaking, the contention of the People is correct.
In a case such as this the jury or the triers of
the facts must declare what the standard shall be.
Such evidence is, however, rationally helpful and
in recent years Courts have considered the Opin-
ions of qualified persons.56 *w*““

The decision was for the acquittal of Larsen. The change
in the community standards was re-enforced as was the
principle of expert witnesses. .

In 19H6 the United States Supreme Court was con-
fronted with a case involving the second class mailing
privileges of Esguire magazine. The mailing privileges

vmre denied by the Postmaster General on the grounds that

F

56Ernst and Schwartz. opl cit., p. 116.

68

the articles and pictures contained in Esguire were
"morally improper and not for the public welfare."57 The
injunction against the Postmaster General's order was
sustained by the Court stating that "a requirement that
literature or art conform to some norm prescribed by an
official smacks of an ideology foreign to our system."58

Several questions were raised as a result of the
previous judgment. One of the first was the question of
the constitutionality of the laws against obscene litera-
ture. Tests of the constitutionality received their high-
est attention when the publishers of Memoirs of Hecate
County by Edmund Wilson were charged with obscenity.59
The case was brought before a New York court in 1948:‘
The lower court found the book obscene despite the testi-
mony of Professor Lionel Trilling. The judgment was
upheld on appeal and finally the case came before the
United States Supreme Court. The issue at this point was
that the constitutional guarantee of freedom of the press
had not been allowed in the lower court's decisions. The
court was equally divided (J. Frankfurter disqualified
himself because of his friendship with Wilson) and judgment
of the lower court held.

57Hannegan v. Esquire, Inc., 327 USle6 (1946).
581219-

( A8 59Doubleday and Company v. New York, 355 US 8A8
19 ). .

 

69

The question of constitutionality was continued in

1949 by Judge Curtis Bok in the Pennsylvania Supreme Court

at Philadelphia in the case of Commonwealth v. Gordon.6O

Nine authors had been accused of obscenity. Judge Bok's
decision dismissed the indictments of the nine novels.
Judge Bok reasoned that any statute penalizing obscenity
could be applied only

. where there is reasonable and demonstrable
cause to believe that a crime or misdemeanour has
been committed or is about to be committed athhe
perceptible result of the publication and distri-
bution of the writing in question; the opinion of
anyone that a tendency thereto exists or that such
a result if self-evident is insufficient and irre-
levant. The causal connection between the book,
and the criminal behaviour must appear beyond a
reasonable doubt.

.—- _H...4

However in June, 1957, Judge Bok's ruling (as it con-'
cerned the constitutional position of obscenity statutes)
was defeated by the United States Supreme Court in the

Roth v. United States62 case. Samuel Roth had been charged

 

and found guilty of violating postal laws by sending
obscene circulars and advertising through the mails. A
second case was to be decided upon with the Rptpcase.
This case involved a man named Alberts who had been con-

victed in California for selling obscene writings.

‘

6O
61

62Samuel Roth v. United States: David S. Alberts v. “
§§ate of California, 354 US 476_(1957).

Commonwealth v. Gordon, 66 D & C. 101 (1949).

 

Graig, OB. Cite, pp. lul-lu2o

 

 

7O

.berts maintained that the Fourteenth Amendment guar-
Lteed him, within the state, the protection of the First
xendment.

Judge Brennan delivered the opinion of the court:

The dispositive question is whether obscenity is
utterance within the area of protected speech and
press. Although this is the first time the ques-
tion has been squarely presented to this Court,
either under the First Amendment or under the
Fourteenth Amendment, expressions found in numer-
ous opinions indicate that this Court has always
assumed that obscenity is not protected by the
freedoms of speech and press.6

 

Judge Brennan argued that the original meaning of
le First Amendment protected the free interchange of
ieas having the slightest redeeming social importance.
iscenity, however, is without redeeming social importance
1d therefore is not protected by the First Amendment.
at, as the lawyers for Roth and Alberts pointed out, the
ederal and State obscenity laws punish communications
1at incite impure sexual thoughts even though those com-
1nications have not been proven to be connected with any
vert antisocial action. If thoughts are to be judged,
aid the lawyers, can one indeed determine what will sexu-
1ly arouse one person and not another? And, the lawyers
sked, is it really the function of the government to

ldge thoughts? Possibly obscene writing is denied the

,1- .‘fldr—fl‘.‘

se of tests to which other kinds of writings, (i.e.,

63Ibid., 487.

71

writings with redeeming social importance) are entitled.

These very tests should have been applied to the material

in order to determine its obscenity.6u

Judge Brennan made this statement:

The door barring federal and state intrusion into
this area cannot be left ajar; it must be kept
tightly closed and opened only the slightest
crack necessary to prevent encroachment upon more
important interests. It is therefore vital that
the standards for judging obscenity safeguard the
protection of freedom of speech and press for
material which does not treat sex in a manner
appealing to prurient interest.

Brennan then gave the new test for obscenity:
Obscene material is material which deals with

sex in a manner appealing to prurient interest,

and the test is whether to the average person,

applying contemporary community standards, the

dominant theme of t2e materials appeals to '

prurient interest.6
The convictions of both cases were affirmed. The opinion
of the majority generally eliminated obscenity from the
protection of the First Amendment and denied the applica-
tion of the "clear and probable danger" test which would
require a causal relationship between the supposedly
offending material and the antisocial behavior.

Justice Harlan, however, took issue with the "pru-

riency" definition of obscenity in the Roth case:.

 

6”Ernst and Schwartz, op. cit., p. 205.

 

65Roth v. United States, op. cit., 487.

66Ibid.

“x: ' -

72

The point is that this statute, as here con-
strued, defines obscenity so widely that it
encompasses matters which might very well be
protected speech. I do not think that the
federal statute can be constitutionally con-
strued to reach other than what the Government
has termed as "hard-core pornography." Nor do
I think the statute can fairly be read as
directed only at PERSONS who are engaged in the
business of catering to the prurient minded,
even though their wares fall short of hard-
core pornography. Such a statute would raise
constitutional questions of a different order.
That being so, and since in my opinion the
material here involved cannot be said to be
hard-core pornography, I would reverse this 67
case with instruction to dismiss the indictment.

Interestingly, in 1961 the highest court in New York
adopted Harlan's "hard-core pornography" test rather than
the "pruriency" test given by Brennan in the PeOple v.
Richmond County News, Inc.

Justices Douglas and Black further argued against a
basic assumption of the Rpph case, that is, obscenity is
not included under the protection of the First Amendment.

I do not think that government, consistently with
the First Amendment, can throw its weight behind
one school or another. Government should be con-
cerned with anti-social conduct, not with utter-
ances. Thus, if the First Amendment guarantee of
freedom of speech and press is to mean anything in
this field, it must allow protests even against
the moral code that the standard of the day sets
for the community. In other words, literature
should not be suppressed merely because it
offends the moral code of the censor. -.

The legality of a publication in this country
should never be allowed to turn on the purity of
thought which it-instills in the mind of the
reader or on the degree to which it offends the

67Ibid., 500.

73

community conscience. By either test the role of
the censor is exalted, and societ§'s values in
literary freedom are sacrificed.6
Finally Douglas and Black_issued the following state-
ment concerning the First Amendment and its relationship
to obscenity:
I would give the broad sweep of the First Amend-
ment full support. I have the same confidence in
the ability of our people to reject noxious litera-
ture as I have in their capacity to sort out the
true from the false in theology, economics, poli-
tics, or any other field.6
In 1956 a Mr. Butler was arrested for selling "a
book containing obscene, immoral, lewd, lascivious lan-
guage or description, tending to incite minors to violent
or depraved or immoral acts, manifestly tending to the
corruption of the morals of youth." This was the language
of the Michigan law (Section 343 of the Michigan Penal
Code) enacted in order to prevent obscene material from'
falling into the hands of youth. However, the United
States Supreme Court perceived the law not as simply for-
bidding direct sale of obscene materials_to children, but
also aimed at that material which might corrupt children.
Butler was convicted in a lower court in Detroit.
The State Supreme Court refused to hear his appeal and, as

a result, Butler took the case to the United States Supreme

Court on the grounds that his rights under the Fourteenth

 

68Ibid.

69Ibid.

74

Amendment (free speech and state interference) had been
violated. On February 25, 1957, nine judges agreed to
reverse the previous decision. Judge.Frankfurter de-
livered the opinion:

The State insists that, by thus quarantining the
general reading public against books not too
rugged for grown men and women in order to shield
juvenile innocence, it is exercising its power to
promote the general welfare. Surely, this is to
burn the house to roast the pig.

We have before us legislation not reasonably
restricted to the evil with which it is said to
deal. The incidence of this enactment is to
reduce the adult population of Michigan to read-
ing only what is fit for children. It thereby
arbitrarily curtails one of those liberties of
the individual, now enshrined in the Fourteenth
Amendment, that history has attested as the indis-
pensable conditions for the maintenance and pro-
gress of a free society. We are constrained to
reverse this conviction.70

Another consideration was the "community standards"
criterion which was included in Brennan's opinion of the
323p case. Harlan again takes issue with this standard
by saying:

It has often been said that one of the great
strengths of our federal system is that we have,
in the forty—eight States, experimental social
laboratories. "State statutory law reflects
predominantly this capacity of a legislature to
introduce novel techniques of social control.
The federal system has the immense advantage of
providing forty-eight separate centers for such.
experimentation." Different States will have~
different attitudes toward the same work of
literature. The same book which is freely read
in one State might be classed as obscene in
another. And it seems to me that no overwhelming

70233125 v. Michigan, 352 US 380 (1957), 383.

 

75

danger to our freedom to experiment and to
gratify our tastes in literature is likely to
result from the suppression of a borderline
book in one Of the States, so long as there is
no uniform nation-wide suppression of the book,
and so long as other States are free to experi-
ment with the same or bolder books.7l

Even though the concept of community standards was
strengthened by Harlan's Opinion, the.concept Of the
freedom of speech became endangered. If states had con-
trol over deciding which books would be considered
obscene and which would not, no publisher could afford
national distribution, fearing obscenity action in one
state even though his publication was allowed in another.
As a result, a publisher might drop the publication of a
potentially questionable boOk, even though it was inher-
ently not obscene, simply out Of fear. On the other hand,
Federal Judgment is_a oneetime-only Judgment.72
Even more probing a consideration Of the community
standard was put forth by Justices Douglas and Black in
their opinion against the majority and Justice Harlan.
The standard of what offends "the common con—

science Of the community" conflicts, in my Judg—

ment, with the command Of the First Amendment

that "Congress shall make no law . . . abridging

the freedom of speech, or of the press." Cer-

tainly that standard would not be an acceptable

one if religion, economics, politics or philo-

sophy were involved. How does it become a con-

stitutional standard when literature treating
with sex is concerned?

 

71Roth v. United States, op. cit., 487.

72Ernst and Schwartz, op. cit., p. 213.

 

76

Any test that turns on what is offensive to the
community's standard is too loose, too capri-
cious, too destructive of freedom of expression
to be squared with the First Amendment. Under
that test, juries can censor, suppress, and
punish what they don't like, provided the matter
relates to "sexual impurity" or has a tendency
"to excite lustful thoughts." This is community
censorship in one of its worst forms.7

Yet another interpretation of "community standards,"
resulting from the Roth case and as far back as the

Kennerlgy case, came from Mr. Justice Brennan's Opinion

 

in Jacobellis v. Ohio in which he described the phrase in

 

the Kennerley case to mean not individual States and local

 

communities but-rather "the community," or the society at
large or people in general. Thus the meaning of obscenity
would change from time to time but not from town to town
or community to community.

The tests laid down by the Rpth case were made
clearer in Manual Enterprises v. Qay7g in 1962. The com-
pany published certain homosexual magazines which were
charged "Obscene" under Federal postal censorship law.
Justice Harlan delivered the opinion that these magazines
were adjudged obscene because the lower courts thought
that the Rpph decision had established only one test of
obscenity. That test was "whether to the average person,‘
applying contemporary community standards, the dominant

theme of the material as a whole appeals to prurient

 

73Roth_v,._,United States, op. cit., p. 487.
7”Manual Enterprises v. Day, 82 S. Ct 1432 (1962).

77

interest." However, Harlan also included, as established
in the Roth case, the concept of "patent-offensiveness."

To consider that the "Obscenity" exception in
"the area of constitutionally protected speech or
press," does not require any determination as to
the patent offensiveness of the material itself
might well put the American public in jeopardy Of
being denied access tO many worthwhile works in
literature, science, or art. For one would not -
have to travel far even among the acknowledged
masterpieces in any Of these fields to find works
whose "dominant theme" might, not beyond reason,
be aimed to appeal to the "prurient interest" Of
the reader or observer. We decline to attribute
to Congress any such quixotic and deadening pure
pose as would bar from the mails all material,
not patently offensive, which stimulates impure
desires relating to sex. It is only material
whose indecency is self-demonstrating and which,
from the standpoint of its effect, may be said
predominantly to appeal to the prurient interest
that Congress has chosen to bar from the mails by
the force of the statute.75

Summary

The controversy continues, but in general the
courts have enabled literature to include the exploration
of sex-~as an inherent part of man's nature. It is well
to review briefly the present characteristics of obscenity
law in the United States as they have developed from the~
above cases: 4

1. Classics or those influential pieces, usually

written in the past, are now relatively free

from suppression.

 

75Ernst and Schwartz, op. cit., p. 224.

2.

78

A book is no longer judged upon portions of

its contents; it is Judged as a whole.

If a book can be proven to be of social impor-
tance, it will not be suppressed;

A book is judged as to its effect on the average
men and not upon the most innocent, the abnormal
or the young.

A book is Judged according to its acceptability
to "community standards," a term which, because
of its subjectivity, remains legally undefined.
Obscenity differs from hard-core pornography
through the "intent" of the author in writing
the book.

The theme of the book is no longer a concern

for judgment. _
Scientific works and those dealing with sex edu-

76

cation are no longer subject to seizure.

 

761bid., pp. 2u5-246.

CHAPTER IV

THE LEGAL HISTORY OF OBSCENITY
IN MOTION PICTURES

The legal history of Obscenity in motion pictures
concerns not only Obscenity in films, but also licensing
cases which have clarified the legal rights of the motion
picture. These cases establish necessary foundations for
the relative freedom of the film today, as well as defin-

ing obscenity in today's visual medium.

Early Motioanicture Regulation

The motion picture, unlike literature, was not
allowed an evolutionary period of development and matura-
tion. Not long after Thomas A..Edison's Kinetoscope-
introduced motion pictures in the United States in 1894,
"movies" were criticized by the public and even taken to
court. The nickelodeon "movie" pantomime Of’a bride's
wedding night was closed by a New York court order after

being denounced as "an outrage upon public decency."l

 

lPeo 1e v. Doris, 14 App. Div. 117, 43 N.Y.S. 571
(lst Dept 1397).

79

80

Unlike a reading audience, the first audience of
the "movie" was not SOphisticated and educated. Rather,
the majority of the audience were the working classes,
the immigrants, and the children of the city. Moralistic
concern for the motion picture by portions of the public,
various church Officials, and city government Officials
was immediate because of the sensational films released
by the small industry. Like the early publishers of the
Edmond Curl era, movie companies were in strong, undis-
ciplined competition with each other, completely dis-
regarding rivals' properties and creative efforts. As,a
result, the industry unintentionally brought the first Of
many legal restraints upon themselves.2

The pre-exhibition censorship of movies began in
Chicago and New York in 1907. This introduction of prior
restraint by local boards (non—governmental) as well as
by local governments established a restrictive pattern
from which the film industry was to suffer for years to
come.3

Local individuals and committees endeavored to con-
trol the rapid influx of movies considered to be "immoral."
As a result of the first censorship case, Blpgk V: Chicago

(1909), a charge was brought under a Chicago ordinance.

 

2Richard S. Randall, Censorship Of the Movies, The
Social and Political Control of a Mass Medium (Madison:
The University of Wisconsin_Press, 1968), pp. 10-11.

3lbld., p. 11.

 

81

against The James Boys and Night Riders for their "immoral"
and "evil effects upon youthful spectators."u The Chicago
ordinance was upheld by the Illinois Supreme Court.

Also in 1909 a group of New York citizens, in an
effort to preview and evaluate motion pictures prior to
their release as well as to curb government interference,
formed the National Board of Censorship. The Board, how-
ever, was financially supported by the motion picture
industry and, at the same time, extremely permissive in
its decisions. As a result, the Board was viewed by the
public and the press as a creature Of the motion picture
industry and consequently was not effective. The result
was a series of licensing and censorship laws that the
industry has never completely overcome.

Pennsylvania enacted the first of the state censore
ship laws in 1911, followed by Ohio and Kansas in 1913.
New York produced a New York State Licensing Law in 1921
and, in 1922, Virginia followed New York's precedent by
establishing a licensing process. A decade later, a
Massachusetts statute allowed the state to approve or dis—
approve entertainment consistent with the character of
Sunday Observances. A Connecticut law required that all
films be taxed and registered with the state tax commis-

sioner. A Rhode Island law gave the local police power to

 

' “Block v. Chicago, 239 Ill. 251, 87 N-E' 1011 (1909)'

82

require permits for films. Most of the above censorship
laws ran uncontrolled and were commonly abused.5
In general, the laws provided for a board to view
all films before their showing within the state. The
films were judged showable if they were not Obscene,
sacrilegious, indecent, or tending to corrupt the morals

of the youth. As with literature then, licensing appeared

to prevent the dissemination of "harmful" material,

The Legal Rights of the MotionPicture

The inevitable question of the freedom Of the medium
under the First and Fourth Amendments to the Constitution
arose at a time when only simple entertainment and sensa-
tionalism were available, bringing the highest profit to
the producers and distributors. Because of the disorgani—
zation Of the motion picture industry, the abuse of the
self-regulation boards and the general questionable con-
tent of pictures, the industry, through the landmark case
of Mutual Film Corporation v. thg,6 lost its rights under
the First and Fourth Amendments for years to come.

As noted, Ohio had enacted a censorship law which

enabled a board to preview, for a fee, all films to be

shown in Ohio prior to their release. The Mutual Film

Corporation, a Detroit company, forced to submit its films,

 

5Randall, Op. cit., p. 11-13.

6Mutual Film Corporation v. Ohio Industrial Com-
mission, 236 US 230 (1915).

83

fought back by maintaining that the requirements put an
undue burden upon interstate commerce. The Corporation
also charged that Ohio law failed to set precise stan-
dards by which a film was judged. Most importantly, the
company continued, the law neglected the freedom of speech
guaranteed under both the Ohio Constitution and the First
Amendment of the United States Constitution.7

Judge McKenna delivered the majority Opinion of the
Supreme Court. The commerce argument was dismissed with

§\ no ‘\‘ 5.

the Court's assumption that once the films were in the

 

hands of the exchange, such as Mutual Films, they were
state property and could thus be regulated. In answer to
the second accusation, the Court said that the experience
and sense of men determined the precise judgment of a film
and that the terms were not capricious or whimsical in
nature. However, the most important statement from the
Court as to the position of the motion picture under the
First Amendment was as follows:

The exhibition Of motion pictures is a business

pure and simple, originated and conducted for pro-

fit . . . not to be regarded, nor intended to be

regarded by the Ohio Constitution, we think, as

part of the press of the country or as organs of

public Opinion. They were mere representations Of

events, of ideas and sentiments published or known;

vivid, useful, and entertaining, no doubt, but . . .
capable of evil, having power for it, the greater

 

7Ira H. Carmen, Movies, Censorship, and the Law (Ann
Arbor: The University Ovaichigan Press, 1966), pp. 12-13.

84
because of their attractiveness and manner of
exhibition.8
Richard S. Randall, in his book Censorship Of the

Movies, points out that McKenna's decision was based upon
three lines of reasoning. First the decision noted that
the film was primarily an entertainment medium rather than
a medium of ideas: the nickelodeons reflected this view-
point. Second, free speech doctrines were construed to
be politically oriented. McKenna also saw the motion pic-
ture industry primarily as a profit-making business. But
indeed all book publishers and newspaper publishers were
in a business to make a profit. Undoubtedly what McKenna
should have said was that, unlike books and newspapers,7
movies could not be thought of as a public service.
Finally, McKenna said, movies had a special capacity for
evil. This point has never been proven although common

sense suggests that movies do possess unusual communica-

tive powers and may contribute to evil.9 +-~«~

In relation to obscenity, this decision allowed
various boards within the states (many made up of unedu-
cated and oversensitive individuals) to censor not only
what was "patently Offensive" as far as sex was concerned,
but also those films attempting to present an honest moral

dilemma which necessarily included the use or the subject

 

8Mutual Film Corp. v. Ohio Industrial Commission,
op. cit., at 244.

 

9Randall, op. cit., pp. 19-20.

85

of sex. In other words, all references to sexual rela-
tions between a man and a women, no matter how honest,
could be Judged as obscene and thus, detrimental to the
public's welfare.

Four years after the Mutual decision, the case of

Schenck v. United States brought forth a decision that

 

would in the future give censors a basis for limiting the
exhibition of certain motion pictures. The General Secs
retary of the Socialist Party had been convicted of vio-
lating the Espionage Act by sending leaflets to future
draftees urging them to resist the Conscription Act. The
basis for the defense was the guarantee of the freedom of
speech. However, Mr. Justice Holmes, in the opinion of
the Court, said:

The question in every case is whether the words

used are used in such circumstances and are of

such a nature as to create a clear and present

danger that they will bring about the substan-

tive evils that Congress has a right to prevent.

Censors applied this criterion in conjunction with

Mutual's potential "evil effects" statement,‘and thus for
many years succeeded in winning support for their suppres-
sive decisions against motion pictures. 'In the censors'
minds, then, a certain motion picture would present a.
"clear and present danger" if exhibited and therefore

would lead to evil in the form of illegal acts_within the

community.

 

loSchenck v. United States, 249 US 47 (1919).

 

86

According to Arthur Knight, during the decades
following the Mutual and Schenck cases, films slowly
began to mature.11 A major influence was the foreign

film. For instance, the Italian film Quo Vadis in'1912

 

was an unprecedented long film and was featured at a
legitimate theater rather than at a nickelodeon. As a
result, the middle class began to patronize the "legiti-
mate" motion picture. American film producers followed
their example by beginning to exhibit longer movies.
Those suited to middle class morality allowed sex to be
shown but demanded it properly condemned by the end of
the film. Nudity in the films of this time was extremely
rare, and generally films were quite chaste.

After World War 1, American films were accepted
throughout the world because Of their light and frivolous
themes, a welcomed difference from the war experiences of
the other countries. However, any freedom gained by the
film industry was quickly lost during the 1920's. A new
and permissive morality was beginning to alarm the public,
which viewed Hollywood as a source and purveyor Of moral-

ity. At the same time, scandals involving famous movie

actors and actresses erupted in Hollywood, thereby

 

llArthur Knight, The Liveliest Art, A Panoramic
History of the Movies (New York: The New American Library
of World Literature, 1959), p. 30.

 

 

87

providing "proof" that films should not be allowed their
freedom.12

The influence of the foreign film was still preva-
lent during the Twenties. The morality of the Hollywood
film was controlled by the Motion Picture Producers and
Distributors of America, formed in 1922. The resulting
Motion Picture Production Code was an attempt by the
American film industry to regulate film morality. How-
ever, many films dealing with sex and not controlled by
the Code came from Germany, France and Italy. In some
cases, these films provided greater challenges and stimu-
lation than those in America.13

The Thirties led film makers to emphasize sex in
their pictures as an allurement for the Depression dollar.
The development of sound in the industry demanded dia-
logue writers. Novelists and newspaper people were hired
and, while the dialogue became more and more naturalistic,
the motion picture became more unrealiStic and staged.
Sexual sadism, violence and gangsterism drew movies further
away from artistic creativity than expected. As a result,
a new Motion Picture Production Code was enacted in 1934.

The threats of Federal censorship and the pressure groups,

such as the Catholic church grOups, forced the film

 

l2Ibid., pp. 107-116.

l31bid., p. 117.

88

industry's acceptance of the self-regulating code.lu

Catholic churchmen and lay members formed the Episcopal-
Committee on Motion Pictures and shortly afterwards, the
Legion of Decency. Since it had the power to threaten
the industry by economic boycott, its requirements were
often met.15

In the late Thirties the film became more sophis—
ticated. Technical advances, including more sensitive
film and faster lenses, afforded the industry opportuni-
ties to experiment to a greater degree. The increasing
realism of fictional and documentary films led to themes
of social concern. Such films included Piggy (which
dealt with race relations), Gentlemen's Agreement (anti-
Semitism), The Ox-Bow Incident (mob emotion), Lost Week-
gpg (alcoholism) and many more.

Concern for the rights of free speech also increased
'during this period. President Roosevelt, in 1941,
accorded motion pictures the same privileges as those of
the press and radio. In the late 1940's the industry's
emphasis on sex grew stronger and self-regulation began
to decrease under pressure Of competition with the foreign
film maker and the spawning of independent producers. The

big studios had less and less control over'film content.

 

1“See Appendix A for the latest Motion Picture Asso-
ciation of American Production Code.

15Ibid., p. 240.

 

89

The test of the mature film against legal restraints
became more tense. In view Of these technical and poli-
tical events, the time for establishing the film's rights
was drawing closer. ‘7

Several legal decisions were made that would influ-
ence the eventual free speech rights Of the film. A
decade after the Mutual decision, the Supreme Court found
in Gitlow v. New York that the prohibitions contained in
the First Amendment against abridgments of free speech by
the Federal Government were applicabde to state govern-
ments as well as under the due process clause of the Four-
teenth Amendment.16

The 1931 case of NEE; v. Minnesota concerned an
argument regarding a state's right to enjoin future issues
of a newspaper on the basis of previously published defama-
tory statements. Such an action, said Chief Justice é
Hughes, would be.prior-restraint of speech, thus violating
the guarantee of the First Amendment. A remedy for statee
ments of a defamatory nature did exist. Most important,
however, the Chief Justice said that a publication con-
taining classified military troop movements during times
of war, obscenity, or incitements to acts of violence.and
overthrow of the government could be restrained. Yet
there was no statement as to how prior restraint in these

instances could be accomplished. Thus, although prior

 

16W v. W. 268 vs 652 (1925).

 

9O

restraint was not absolutely forbidden by the states, it
must be used only in the most unusual circumstances.17

In Kovacs v. Cooper in 1949 it is interesting to
note that Justice Black dissented in an Opinion concerning
legislation to prevent the use Of sound trucks on the
city's streets. Justice Black believed that censoring
sound trucks was against the guarantees of the First
Amendment because they were a means of communication Just
as were the protected means of "radio, press and the

18

motion picture." Thus the motion picturefwas in this

 

decision, a means of communication protected_under the
First Amendment. Also it appeared that motion pictures
were not to be licensed.

In 1948 Justice Douglas made an incidental state-
ment that would almost assuredly set motion pictures free
of the bonds of the Mutual decision in the near future.
The case concerned an anti-trust suit against Paramount
Pictures and their block booking practices. Justice
Douglas observed: "We have no doubt that-motion pictures,
like newspapers and radio, are included in the press whose
freedom is guaranteed by the First Amendment."19

Four years later the final blow to the Mutual deci-

sion was given in Burstyn v. Wilson. The film The Miracle

 

l7Near v. Minnesota, 283 US 697 (1931).
18

 

Kovacs v. Cooper, 336 US 77 (1949).

19United States v. Paramound Pictures, Inc., 334 US
131 (1948).

91

was made by Roberto Rossellini. The film dealt with a
peasant girl seduced by a bearded stranger whom she -1
imagined to be St. Joseph, resulting in a child whom she
believed to be the Christ child. In conjunction with two
other Rossellini films, the resulting trilogy, Ways of
Egyg, won the best foreign language picture of 1950 as
selected by the New York Film Critics Board. The film
was granted a license in New York by the New York State
Motion Picture Division and exhibited. A few days later,
however, protests prompted the city commissioner to close
the showing because it was "Officially and personally
blasphemous." The film's distributor, Joseph Burstyn,
succeeded in having the license commissioner enjoined
from any further interference with the showing of the
film. After picketing by Catholics, bomb threats to the
theater and finally revocation of the license by the State
Board of Regents because the film was "sacrilegious,"
Burstyn took the matter to the New York courts. The
Court ovappeals, however, found the "sacrilegious" cen-
sorship valid.20 I
In 1952 the United States Supreme Court heard the
case and issued a decision that had been awaited with
intense interest by the motion picture industry. The
Court considered only whether motion pictures were pro-

tected by the Constitution and whether the censorship

 

20Burstyn v. Wilson, 303 N.Y. 242 (1951). .11111

92

standard of "sacrilegious” was.1egitimate. The Opinion
of the Court, delivered by Mr. Justice Clark, contained
the following arguments:

It cannot be doubted that motion pictures are
a significant medium for the communication of
ideas. They may affect public attitudes and
behavior in a variety of ways, ranging from
direct espousal of a political or social doc-
trine to the subtle shaping of thought which
characterizes all artistic expression. The
importance of motion pictures as an organ of-
public opinion is not lessened by the fact that
they are designed to entertain as well as to
inform. .

It is urged that motion pictures do not fall
within the First Amendment's aegis because their
production, distribution, and exhibition is a
large-scale business conducted for private pro-
fit. We cannot agree. That books, newspapers,
and magazines are published and sold for profit
does not prevent them from being a form of
expression whose liberty is safeguarded by the
First Amendment. We fail to see why Operation
for profit should have any different effect in
the case of motion pictures.

It is further urged that motion pictures
possess a greater capacity for evil, particu-
larly among the youth of a community, than
other modes of expression. Even if one were to
accept this hypothesis, it does not follow that
motion pictures should be disqualified from
First Amendment protection. If there be capacity
for evil it may be relevant in determining the
permissible scope of community control, but it
does not authorize substantially unbridled cen-
sorship such as we have here.

For the foregoing reason, we conclude that~ _-»~~
expression by means of motion pictures is
included within the free.speech and free press
guaranty of the First and Fourteenth Amendments.
To the extent that language in the opinion in
Mutual Film Cogp. v. Industrial Comm., supra, is
out of harmony with the views here set forth, we
no longer adhere to it.

C
O O I I O O C O O O O O O O O O O O O O .

 

Since the term "sacrilegious" is the sole.
standard under attack here, it is not necessary
for us to decide, for example, whether a state

93

may censor motion pictures under a clearly-

drawn statute designed and applied to prevent

the showing Of obscene films. That is a very

different question from the one now before us.

We hold only that under the First and Fourteenth

Amendments a state may not ban a film on the

basis Of a censor's conclusion that it is "sacri-

legious."21 '
The question Of the constitutionality Of prior-censorship
was still unanswered. However, the decision did aid in

l
the development of more mature films. Sophisticated sub-
jects were brought to the screen with less fear on the
part of the motion picture producers and exhibitors.
Following the Burstyn decision, several cases con-

cerned with licensing and prior-censorship were heard by
the Supreme Court. These were Gelling v. Texas, 343 US

960 (1952); Superior Films v. Dept. of Education and

 

Commercial Pictures v. Boardfof Regents, 346 US 587 (1954); --~~m

 

 

Hombly Productions v. Vaughn, 350 US 870 (1955); Kingsley.

 

 

International Pictures v. Board of Regents, 360 US 684
(1959); Times Film Corp. v. Chicago, 355 US 35 (1961); and

Freedman v. Maryland, 380 US 51 (1965). In all the above

 

 

the power of the censor was cut back. In Kingsley, which

 

concerned itself with the film adaptation of D. H.
Lawrence's novel Lady Chatterley's Lover, the Court found
that the licensing standard of "sexual immorality" was
invalid. The New York Legislature had denied the film a

license because it was feared that the film portrayed

 

21m v. 'W. 343 us 495 (1952).

94

adultery in a positive manner. The Court said that
"sexual immorality" was indeed not necessarily "Obscenity"
or "pornography." The decision of the Court, as given by
Mr. Justice Stewart, continued:

What New York has done, therefore, is to pre-
vent the exhibition Of a motion picture because
that picture advocates an idea - that adultery
under certain circumstances may be prOper be—
havior. Yet the First Amendment's basic guar-
antee is of freedom to advocate ideas. The
State, quite simply, has thus struck at the
very heart of constitutionally protected
liberty.

It is contended that the State's action was
Justified because the motion picture attractively
portrays a relationship which is contrary to the
moral standards, the religious precepts, and the
legal code of its citizenry. This argument mis-
conceives what it is that the Constitution pro-
tects. Its 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. And in the realm of ideas it
protects expression which is eloauent no less
than that which is unconvincing. 2

This decision left states with prior-censorship laws in
doubt.

A partial answer to the right of prior-censorship
appeared when the Times Film Corporation distributed 22g

Juan, an adaptation oprozart's opera Don Giovani. The “

 

Corporation challenged Chicago's licensing law after
paying a license fee but refusing to submit the film for

preview. The Corporation suggested that the Board might

 

22Kingsley International Pictures v. Board thi 5‘ ‘
Regents, 360 US 684 (1959) 688.

#

95

act against the film if it wished, but only after its
first exhibition. Justice Clark, delivering the Opinion
of the Court, found that although the city had a right to
license films, a motion picture was entitled by constitu-
tional protections to express its ideas at least once.
Therefore Chicago's demand for the submission of the film
prior to exhibition was void. However, Mr. Chief Justice
Warren wrote a dissenting Opinion with which Justices

Black, Douglas and Brennan concurred. Portions of their

u‘

opiniOn follow:

. . To me, this case clearly presents the ques-
tion of our approval Of unlimited censorship of
motion pictures before exhibition through a sys-
tem of administrative licensing. Moreover, the
decision presents a real danger of eventual cen-
sorship of every form of communication be it
newspapers, Journals, books, magazines, televi-
sion, radio or public speeches. . . . In arriving
at its decision the Court has interpreted our
cases contrary to the intention at the time of
their rendition and, in exalting the censor of-
motion pictures, has endangered the First and
Fourteenth Amendment rights of all others engaged
in the dissemination of ideas. ‘

I hesitate to disagree with the Court's formu-
lation of the issue before us, but, with all
deference, I must insist that the question pre—
sented in this case in ppt whether a motion pic-
ture exhibitor has a constitutionally protected,
"complete and absolute freedom to exhibit, at
least once, any and every kind of motion pic-
ture." , . . The question here presented is
whether the City Of Chicago - or, for that
matter, any city, any State or the Federal
Government — may require all motion picture
exhibitors to submit all films to a police chief,
major or other administrative official, for
licensing and censorship prior to public exhibi-
tion within the Jurisdiction.

_. \‘

96

As the Court recalls, in Joseph Burstyn, Inc.
v. Wilson . . . it was held that motion pictures
come "within the free speech and free press
guaranty Of the First and Fourteenth Amendments."

. Here, once more, the Court recognized that
the First Amendment's rejection of prior censor-
ship through licensing and previous restraint
is an inherent and basic principle of freedom of
speech and the press. Now the Court strays from
that principle; it strikes down that tenet with-
out requiring any demonstration that this is an
"exceptional case," whatever that might be, and «- ~~v
without any indication that Chicago has sus-
tained the "heavy burden" which was supposed to
have been placed upon it. Clearly, this is
neither an exceptional case nor has Chicago
sustained gay burden.

 

. . The Court, in no way, explains why moving
pictures should be treated differently than any-
other form of expression, why moving pictures
should be denied the protection against censor-
ship. . . . When pressed during oral argument,
counsel for the city could make no meaningful
distinction between the censorship Of newspapers
and motion pictures. In fact, the percentage of
motion pictures dealing with social and political
issues is steadily rising. The Chicago ordinance
makes no exception for newsreels, documentaries,
instructional and educational films or the like.
All must undergo the censor's inquisition.
Although it is an open question whether the
impact of motion pictures is greater or less than
that Of other media, there is not much doubt.that
the eXposure of television far exceeds that Of
the motion picture.2

In the above.case, then, the majority had inter-
preted the N333 decision as having sanctioned prior
restraint by licensing. The minority, however, inter-
preted the N333 decision as allowing prior restraint only

where an utterance had already been shown to be obscene

 

23Times Film Corp. v. City of Chicago, 365 US 43
(1961) 62-64.

 

97

as "exceptional" speech. If the latter were the case, any
licensing system which required submission of films and
penalized exhibitions Of unsubmitted films would not be
permissible restraint. It appeared to the minority that
only one exhibition hardly enabled the ideas expressed in
the film to adequately enter into the "marketplace of
ideas."2u
Following the Tigpg case, lower courts did not
uphold censors and states did not create new censorship
boards as might have been expected. Before the Timggfi 75
case, in 1959, five states and forty-eight municipalities

25 as compared to four.states and

26

used prior censorship
twenty-seven municipal boards in 1962.
The Court reunited in their Opinion four years later
in a decision involving a Baltimore theater manager, Ronald
Freedman. Freedman exhibited the film, Revenge at Day-
prggg, which contained no obscenity and was therefore con-
stitutionally protected without first submitting it to the
State Board of Censors for review and subsequent licensing.
Freedman was convicted in Maryland and the case was

carried to the Supreme Court.

 

v

21‘Randall, Op. cit., p. 37.

251959_International Motion Picturg_Almanac (New
York, 1959), pp. 722-724.

261962 International Motion Picture Almanac (New
York. 1962), pp. 733-735.

98

Although the decision of the court did not revoke
the previewing requirement for films, it declared unani-
mously that the burden of proof was on the censors rather
than on the exhibitor, and, that actual restraint could
be imposed only after prompt Judicial review. Therefore,
a system of restraint was permissible for films as long
as apprOpriate procedural safeguards existed and the films

were outside the area of constitutional protection.27

I

Motion Picture Obscenity Cases

As a result of the cases above, motion picture cen-
sorship was narrowed to a point where Obscenity became the .
only censorable standard. It is also important to realize
that because of the cases reviewed above, the standard of
obscenity was greatly narrowed to allow for freer por-
trayal of nudity and erotica. As a result, the censors_yp
lost many battles in the area of obscenity which would '
have been won were it not for the previous censorship
cases.

According to Richard Randall, there appear to be.
seventeen movie censorship cases in four major categories
since the Miracle decision in which the charge of Obscenity

28

was not sustained by the courts. Several of the cases

 

”Preacher; v. W. 380 Us 51 (1965).

'28Randall, op. cit., p. 63.

99

have been discussed above and will not be discussed
further.

In the area of "immoral sexual behavior with or
without nudity" were such cases as Times Film Corp. v.
Chicago (1957), Kingsley International Pictures v. Egggg.

of Regents (1959) and Jacobellis v. Ohio (1964). In the

 

 

lower court, too, various.films were held pp: to be
obscene. For instance in Audubon Films v. Board of
Regents (1965)29 a French film, Twilight Girls, involved
lesbianism within a school for girls. The Board of
Regents gave the following reasons for not granting a
license to the film:

The authors of the production devote most of the
sequences to girls in the dormitory while they are
going to bed, sleeping and getting up . . . [the
story] revolves around two girls who are lesbians.
Contrary to an order by the supervisor, they take
their pajamas off; then there are various scenes
in which the lesbians embrace and show their
interest in this type of sex perversion. There

is further exhibition Of nudity and the girls

take shower baths. From the beginning of this
sequence, the type Of presentation taken together
clearly appeals to the prurient interest of the
public.30

 

In 1957 The Miracle was found not to be Obscene by
an Illinois appellate court. The decision contained the
belief that the film, whose central character was dressed

in rags and whose personality had-little charm, would not

 

29Audubon Films v. Board of Regents, 15 N.Y. 2nd
802, 205 N.E. 2d 694—(1965).

3

 

OVariety, April 4, 1962, p. 13.

lOO

appeal to the sexual desires of the "average man." It
was apparently felt that blatant glamour, instead, was
an important influence in arousing sexual desire.31

In 1964 Nico Jacobellis, a Cleveland Heights, Ohio
theater manager, was convicted under the Ohio Penal Code
for possessing and exhibiting an Obscene film, ThefiLovers.
The motion picture involved a woman who, bored with her
marriage and her life in general, left her husband and
family for a young archeologist. The film built to an
explicit love scene near the end Of the picture.

The decision of the lower court was upheld by the
Ohio Supreme Court and subsequently was appealed to the
United States Supreme Court.

Justice Brennan delivered an Opinion which was in

reality a clarification of the Roth-Alberts decision in

1957. In Roth-Alberts, as will be recalled, Obscenity

 

was found not to be under the protection of the First
Amendment because it was "utterly without redeeming social
importance." It was also made clear that sex in art,
literature, and in scientific works was not reason enough
to deny the material constitutional protection. The

Jacobellis decision emphasized the point that sex in

 

material which expressed ideas or that had artistic,

literary or scientific value, or social importance, was

 

31American Civil Liberties Union v. Chicago, 13
Ill. App. 2d. 278, 141 N.E. 2d 56I11957).

 

 

101

considered to be under constitutional protection. The
Court also warned that a piece of material could not be
condemned because only part of the motion picture (e.g.

the love scene in the last reel of The Lovers) contained

 

a prurient appeal. Obscenity, Brennan said, was "utterly
without redeeming social importance" and that the material
must be "substantially beyond customary limits of candor
in describing or representing such matters" (sex, nudity, "_m_**
or excretion). Therefore The Lovers did not come under
the purview of Roth-Alberts.
Justice Stewart, concurring, viewed what the Court
defined as Obscenity through the Roth-Alberts, Manual

Enterprises and Jacobellis decisions, as "hard-core por-

 

 

nography." Stewart did not attempt to further define the
type of material about which he was speaking but-said, "I
know it when I see it."32

It would appear from this case, then, that Obscenity
is an appeal to prurient interest which is utterly without
social importance and which goes beyond customary limits
of frankness. Brennan, however, said that the Court's
definition as used by local Juries would have "varying"
meaning from time to time.

In the case of Trans-Lux Distributing Corp. v. Bpggg

of Censors, a 1965 Maryland case, the court found the film

 

A Stranger Knocks, a Danish film, not Obscene. The-film» =-

 

32Jacobellis v. Ohio, 378 us 184 (1964).

 

102

contained two scenes of sexual intercourse between
unmarried persons. The court (Maryland Court of Appeals)
felt that the film was a serious work of art and that the
general theme of the film, that of the death of a man, and
a woman facing a possible murder charge, did not condone
or make desirable the sexual relations exhibited in the
film. Rather, said the court, the sexual relations were
33

presented as undesirable.

In United States v. One Carton Positive Motion Pic-

 

ture Film Entitled "491" (1966), a Swedish film, the
Second Circuit Court of Appeals decided that, although
various abnormal sexual acts by delinquent boys such as
sodomy, intercourse with a prOStitute, and homosexuality
were depicted, the film was honestly trying to deal with
current problems of a social nature.3u

Another Swedish film, The Virgin Spring, was found

to be Obscene in Janus Films v. Fort Worth (1962) and

 

 

affirmed by the Federal Court in 1962.35 The reason for
this finding was the film's extremely long and vivid rape

scene .

 

33Trans-Lux DistributingCogp. v. Board of Regents,
240 Md. 98, 213 A 2d 235 (1965).

 

 

3“United States v. One Carton Positive Motion Pic-
ture Film Entitled7"49l", 247 F. Supp. 450 (S.D.N.Y. 1965),
367 F. 2d 889 (2n Cir. 1966).

 

 

 

35Janus Films v. Fort Worth, 354 s.w. 2d 597 (Tex.
Civ. App. 1962), 163 Tex. 616, 358s.w. 2d 589 (1962).

 

103

Randall's second classification, nudity without
sexual behavior, includes, among others, two fiction-
alized nudist camp films. One film, Garden Of Eden, in

Excelsior Pictures v. Chicago (1960), was found_not to be

 

obscene because it showed nudism as a wholesome family
affair and put forth the idea that clothing may promote
an attitude of shame in regard to the naturalness of the
body and its functions.36
In Fanfare Films v. Motion PicturefiCensor Board

(1964), the Maryland Court of Appeals found Have Figure,

Will Travel not to be obscene. The film portrays three

 

girls practicing nudism outside a nudist camp upon a
boat. Yet, because the girls did not involve themselves
in any sexual activity and were seen nude only by each
other, the film was cleared of the Obscenity charge.37
Once again the Maryland Court Of Appeals decided a

film not obscene in Maryland Board of Censors v. Times

Film Corp. (1957). The case dealt with the documentary

 

Naked Amazon for which the Maryland Beard of Censors had

 

denied a license. Again the decision rested upon the fact

that no sexual activity took place within the film. The

 

36Excelsior Pictures v. Chicago, 182 F. Supp. 400
(N.D. Ill. 1960).

37Fanfare Films v. Motion Picture Censor Board, 234
Md. 454, 129 A. 2d 833 (1957). '

 

 

104

film dealt with the nation's customs and rituals and not
38

sexual themes.

Nudity without sexual behavior appears to present no

acters accept their nudity and are not sexually aroused
themselves or stimulate other characters sexually, the
courts feel that the "average man's" prurient interests
will not be aroused.

Randall's third designation involves "dirty" words.
In Columbia Pictures v. Chicago (1959), the motion pic-
ture Anatomy of a Murder used "rape" and "contraceptive"
but was cleared of obscenity charges when the court
explained that it did not feel that such words would
arouse the salacity of the average viewer so as to out-
weigh the film's artistic presentation.39

In The Connection Co. v. Board of Regents (1962):
stronger Anglo-Saxon language was used as slang by the
heroine but was not held to be Obscene.l4O

A United States precedent in this area of "dirty"
language had, of course, been set in the Ulysses case in
1933 as the counsel of that case explained various four-

letter words in historic terms.

38Maryland Board of Censors.v. Time Film Corp., 212
Md. 454, 129 A. 2d 833 (1957).

 

39Columbia Pictures v. Chicago, 184 F. Supp. 817
(N.D. Ill. 1959). '

uoThe Connection Co. v. Board of Regents, l7 App.
Div. 617, 230 N.Y. S. 2d 103 (3d Dep't 1962).

 

105

The last classification, "sex education," is almost
surprising after such historic cases as the Sanger booklet

of 1923 in England, the Dennet case, the Life case ("The .
Birth of a Baby") of 1938, United States v. One Book

 

 

Entitled "Contraception" by Marie C. Stopes (1931). Yet

the film Mom and Dad was refused a license by the State

 

Board of Regents in New York because Of a human birth
sequence. The decision, however, was reversed by an
Appellate Division of the State Supreme Court which held
that the sequence was "scientific in level and tone, por-
traying under restrained and controlled conditions a human
birth" and was not "indecent.”l
Thus the above decisions permitting nudity and
erotica appear to follow closely the precedents followed
in the print media. The Supreme Court has increasingly
allowed more and more sexuality in mass media through the
years. Pertinent examples are One, Inc. v. Olesen in 1957

(the court upheld the mailability Of One-The Homosexual

Magazine); Sunshine Book Co. v. Summerfield in 1957 (court

 

upheld mailability of two nudist magazines); and Mounce v.
United States in 1957 (Court of Appeals reversed decision
against imported nudist and student art magazines).

Several "girlie" magazines were found not Obscene by one

 

ulCapitol Enterprises v. Chicago, 260 F, 2d. 670,
674 (7th Cir. 1958).

106

Supreme Court decision in three 1967 cases-~Redrup v. EEK
York, Austin v. Kentucky, and G335 v. Arkansas.

Nudity today in major films is not uncommon. Yet
the court decisions explain only what is not Obscene in
motion pictures. What is Obscene must still be ambie
guously derived from the above decisions, as the courts
only infer what constitutes obscenity in the motion pic-
ture. Undoubtedly hard-core pornography-in film would

be censored by the court.

 

The Supreme Court, while saying that the motion pic-
ture, because of its "greater capacity for evil," cannot
be governed by the same rules as the other types Of speech
media, has never fully explained its rationale. Its state-7‘
ments concern themselves in areas of censorship power
rather than with Obscenity per se. .

It should be noted also that subject matter of con-
tested films would have probably not brought court action
if the same material were reproduced in print. Yet the
increasing liberalization of the film industry follows_
proportionately the liberalization of the print media. As
was noted in the previous chapter, literature gradually
gained its freedom of expression over two hundred years.
The motion picture, on the other hand, has been in exis-
tence for only a little more than sixty years. The rela-
tive freedom of the film could not have been accomplished

if it werenot based upon society's changing attitudes_

107

towards sex and upon legal precedents forged by the print

media.

Age Classification Censorship

Perhaps the most effective restriction placed upon
the film exhibition industry is the labeling of movies as
suitable or unsuitable for children. Local government or
nongovernment agencies may classify pictures either at a
compulsory or advisory level. In the United States the
nongovernmental advisory form is the most popular. These
agencies include the Film Board of National Organization,
the "Green Sheet" (an organization of the motion picture
industry in conjunction with several organizations), the
National Catholic Office for Motion Pictures (formerly
the Catholic Legion of Decency) as well as local organi-
zations. Government classification remains in a few
cities such as Chicago and Dallas.

The rationale for classification, of course, is to
prevent susceptible youths from viewing motion pictures
which might stimulate violent or sexual behavior. There
are many precedents for disallowing youth certain privi-
leges, such as driving automobiles or purchasing alcohol,
'among others. Yet a question arises in the limitation of
a child's First Amendment rights. The Supreme Court has
recognized, in Jacobellis v. Chip the interests of the

states and various cities in protecting children from

 

108

potentially harmful materials. Yet, as_Butler v. Michigan
pointed out, this fact does not mean that the material may
be totally suppressed. There have been relatively few
cases concerned with classification.“2 In these cases it
has been found that the designation of films for "adults
only" has not violated any constitutional guarantees of
free expression. Above all, the city did not have to
prove any causal relationship between the film and a
child's actions.

Randall gives an example Of classification in
Chicago, limited to erotica and nudity, which condemns a
film if:

the picture, considered as a whole, has the domi-
nant effect of substantially arousing sexual
desires in any person less than seventeen years
of age, or if the picture is indecent, or is con-
trary to contemporary community standards in the
desri tion [sic] or representation of nudity or
sex.“§ ‘5

The Supreme Court ruled on April 22, 1968, that
local and state governments do have the power to protect

minors from obscenity in motion pictures, books and other

questionable materials. At the same time it struck down

a Dallas, Texas, ordinance which classified motion pictures

 

uelnterstate Circuit v. Dallas, 366 F. 2d 590 (5th
Cir. 1966) aff'g 249 F. Supp. '1"97""N.D. Tex. 1965): Inter-
state Circuit v. Dallas, 402 S.W. 2d 770 (Tex. Civ. App.
1966); Interstate Circuit v. Dallas, 247 F. Supp. 906
(N.D. Tex. 1965); Paramount Film Distributing Corp. v.
Chicago, 172 F. Supp. 69 (N.D. Ill. 1959).

 

“3Randall, op. cit., p. 71 (Chicago Municipal Code,
ch. 155, 5).

 

109

ss --- 3“. 5..

that it considered unsuitable for children under sixteen
because the Dallas law was not narrowly drawn with rea-
sonable and definite standards for its administration.
Justice Marshall noted in the opinion of the Court that -
the Dallas ordinance was being used as a model for other
cities and that this might result in the showing of com-
pletely inane motion pictures in view Of the vagueness of
the law. The case was taken to court by several exhibi-
tors and United Artists Corporation in conjunction with

the showing Of the movie, Viva Maria.1M , F

 

It is clear that age classification, while constie
tutional, must be drawn with precision to avoid the,
exhibition of "totally inane" pictures to the general
adult public. Certain films, while not obscene according

to the Roth-Alberts decision, may be deemed Obscene when

 

viewed by children.

Several obvious problems arise in age classifica-
tion for motion pictures. Primarily it must be decided
at what age a motion picture will harm a child. The age
is sixteen or seventeen in most laws. Another problem is
the enfOrcement of the age classification. The exhibitor
may be led to believe a child is over the minimum age

while in reality he in not.

qunterstate Circuit, Inc. v. City of Dallas; United
Aptists Corporation v. City of-Dallas, 390 US 676—(1968).

 

 

110

Summary

Court decisions through the years appear to have.

resulted in acceptance of the following general princi-.

ples regarding motion picture exhibition:

1.

The motion picture is now considered to be a
free communications medium protected by the
First and Fourteenth Amendments.

The motion picture is to be judged as a whole
and not by individual scenes or words.,

Motion pictures which are entertaining aré‘alsO
under protection since "What is one man's
amusement, teaches another's doctrine" (Winters
v. New York, 333 US 507 (1948).

Motion pictures may be licensed but only under
certain procedural conditions. -
Motion pictures may be classified "for adults
only" as long as the standards for classifica-
tiOn are not vague.

Obscenity is not considered to be under the.
protection of the free speech guarantees.
Obscenity as a term has been narrowed so that
sex is not synonomous with Obscenity and there-
fore ideas including sexual themes, as long as
they are not patently offensive, have redeeming
social value and do not appeal to the prurient

interests Of the average man, are permissible.

 

111

In view of the criteria concerning the suppression
of‘ obscenity the question must be raised as to the dif-
fwxrence between, or similarity of, literature and the
Inotion picture. It has been a general belief that the
Inotion picture, in its simulation of reality, is poten-
‘tially more dangerous than the printed page. The motion
jpicture, it has been said, is_a more powerful communica-
‘tive medium. As Randall points out, the above cases con-
cerning obscenity in the motion picture would probably
have caused little if any concern had the same plots,
'words or acts been printed. The difference between the
media may be attributed to the power and the level of
their communication. A thought or idea must be physically
acted out or physically implied in the film medium. As

Randall realizes:

This capacity for literal realism has been the ‘7 "7
special force and attractiveness of the movies

since their nickelodeon days. Visibility and
movement are the essence of a medium whose aim

is the reproduction of the real world rather

than its abstraction.”5

The audience Of the film need not expend the amount
Of intellectual effort required by the printed media. The
viewer is a passive receiver in the motion picture theater.

- The plunging of the theater into darkness may
signal a radical switching off of everyday
reality, to absorb without effort the "other"
reality of the screen. In many instances the
viewer is watching performers with whom he has
already established strong emotional ties. The

 

uSRandall, op. cit., p. 67.

112

subrational, subcritical impact of the communica-
tion may also be reinforced by the social con-
text in which the viewing takes place. What is
seen on the screen may seem more authoritative

or acceptable because of the public character Of
the theater and the attitudes manifested_by the
audience.“

During the last sixteen years the motion picture
medium has been brought to a position where the limits
of obscenity have been narrowed to a finer and still
finer concept. Ephraim London, a veteran lawyer and
expert in the area Of censorship, has said:

Today there's absolutely nothing you can't show
or write about if it's done in good taste,
absolutely nothing. If the courts Judge some-
thing Obscene, they are in effect making an
aesthetic rather than a moral Judgment. If

the censorship rules of 1950 were in effect
today, two out of every three films shown now
would be banned.

The present state of obscenity control or, as some
regard the situation, extreme permissiveness, has far-
reaching implications for the newest-mass medium, tele-

vision.

 

u61bid., pp. 67-68.

“7"Anything Goes: Taboos in Twilight," Newsweek,
November 13, 1967, p. 76. '

. gr
,1.

 

 

,_ --_...-._ ...-- - ‘ *‘

CHAPTER V

OBSCENITY AND TELEVISION

It has been previously observed that past legal
decisions have produced a series of precedents for the
useful purpose of establishing a line between permissible
and non-permissible sexual material, or obscenity, in the
mass communication media.. Yet a difficulty in consis-
tency arises, because each medium has its own particular
characteristics which must be taken into account in‘legal
judgments. The characteristics of the media include, for
example, the individual medium's type Of audience, its
availability to that audience, and its controlling
agent(s). In other words, the nature Of the medium
influences its permissiveness.

Television must deal with the same dual basis for
the judgment of its program material. That is, it must'
be judged not only on what has legally been defined as
obscene through established legal precedents, but also
upon the basis of the particular nature or characteristics
of the medium. It is only through these dual considera-
tions that realistic guidelines for questionable program

material on television may be determined. .

113

114

The Nature of Television

A significant element concerning the nature of tele-
vision, and broadcasting in general, is_its government
control. The Radio Act Of 1927 initiated government regu-
lations of broadcasting as it is known today. Prior to
the Act, the public was the victim of constant technical
interference between radio communications. Public pleas
for the elimination of the interference were directed to
Herbert Hoover, then Secretary of Commerce, and other
government officials. These pleas brought an increasing
realization that the Radio Act of 1912 was an inadequate
'control over broadcasting, The Act gave the Secretary of
Commerce no power over the assignment of radio frequencies,
a broadcast station's power, period of broadcast or term
of license.1

A series of radio conferences initiated by Secretary
Hoover preceded the government's enactment of the Radio
Act of 1927. The Act is based upon a philOSOphy resulting
from the nature of the broadcast media. Although litera-
ture and the motion picture differ in the type of audience
to which they are directed and their impact upon that-
audience, the differences between these media and televi-

sion are far more evident.

 

1Walter B. Emery, Broadcasting and Government:
Responsibilities and Regulations (Michigan State Univer-
sity Press, 1961), p. 31.

 

 

115

The broadcast media use the electromagnetic spec-
trum, a "natural" resource belonging to the public. The
government acts for the public in administering this
resource. Since these frequencies are limited in number,
television is not a "common carrier for hire" and is.not
available to all who wish to use the medium. Literature
and the motion picture, on the other hand, are avilable
to anyone wishing to express his Opinion since, if he has
the capital, he can provide his own facilities.

Because the broadcaster uses the public's ether, he
must provide a service which is in the public interest.
The other media are private endeavors, however, and do not
demand the same consideration.

Unlike literature and the motion picture, television
is legally available to El; members of a family §l1_of the
time. This, of course, includes the children. There is
no age classification.

Because of broadcasting's necessity to serve the
public as well as its availability to the home and to
children, Congress was impelled to enact a section within
the Radio Act of 1927 which would prohibit the broadcasting
of obscenity. Section 29 Of the Act read as follows:

Section 29. Nothing in this Act shall be under-
stood Or construed to give the licensing authority
the power of censorship over the radio communica-
tions or signals transmitted by any radio station,
and no regulation or conditions shall be promul-

gated or fixed by the licensing authority which
shall interfere with the right of free speech by

116

means of radio communications. NO person within
the jurisdiction of the United States shall utter
obscene, indecent, or profane language by means
of radio communication.

The second sentence of this section was deleted by Public
Law 772 which was passed by the 80th Congress, effective
September 1, 1948, and was incorporated in Title 18 of
the United States Code, Section 1464. It reads as
follows:

Section 1464: Broadcasting Obscene Language. Who-
ever utters any Obscene, indecent, or profane
language by means of radio communications shall

be fined not more than $10,000 or imprisoned not
more than two years, or both.

Thus the broadcasting of obscenity is a federal
crime. Furthermore, the Commission has the power to sus-
pend the license of the broadcaster who has violated Sec-
tion 1464 under the following sections of the Communica-
tions Act.

Section 303. Except as otherwise provided in this
Act, the Commission from time to time, as public
convenience, interest, or necessity requires,
shall -

(m) (1) Have authority to suspend the license
of any Operator upon proof sufficient
to satisfy the Commission that the
licensee -

(D) Has transmitted superfluous radio com-.
munications or signals or communica-
tions containing profane or Obscene
words, language or meaning . . .

Section 312 (b). Where any person (1) has failed
to operate substantially as set forth
in a license, (2) has violated or
failed to observe any of the provi-
sions of the Act, or Sections 1304,
1343 or 1464 or Title 18 of the United
States Code, or (3) has violated or

117

failed to observe any rule or regula-
tion or the Commission authorized by
this Act or by a treaty ratified by
the United States, the Commission

may order such person to cease and
desist from such action.

It should be noted that any decision made by the
Commission may be appealed to a federal court.

The local station may also broadcast Objectionable
Inaterial received from its affiliated network. Although
the Commission has no direct regulatory powers over the
networks (chain broadcasters), it may act against stations
engaged in chain broadcasting through Section 303 (i) of
the 1934 Act.

Section 303. Except as otherwise provided in this
Act, the Commission from time to time, as public

convenience, interest, or necessity requires,
shall -

(1) Have authority to make special regulations
applicable to radio stations engaged in.
chain broadcasting.

Prior to 1941 stations were bound to network con-
tI‘acts in such a way that it was virtually impossible to
Isuject a network commercial program that was considered
Lindesirable. Since the station licensee and not the net-
'Wbrk is legally responsible for programs broadcast under
tile Communications Act, it was necessary that a station be
able to reject an objectionable program. In 1941, there-

fOre, the FCC adOpted chain broadcasting regulations

which prohibited station contracts with a network which

118

did not allow the station rejection of undesirable pro-
grams.2

In order to determine whether the station has
carried out its responsibility and service to the public,
the Commission has the power to examine a station's past
programming service. Many have argued, however, that this
review contradicts the freedom from censorship and the
free speech provisions guaranteed in Section 326.

The FCC has defined its terms and responsibilities
regarding free speech in several cases. The FCC defined
its concept of censorship, a deterring force in free
speech, in its WBNX Broadcasting Co. Inc. case in 1948:

Censorship is suppression of expression of views

in advance of publication or deterring of expres—
sion of opinion entitled to protection of the

First Amendment by threat of subsequent punish-
ment, or requiring compliance with discriminatory
licensing or taxing requirements as a prerequisite
to any expression of Opinion, or a mandatory , -
requirement of compliance with an officially
imposed viewpoint.

The FCC had previously addressed itself to the problem of
censorship in Great Lakes Broadcasting CO. (1928):

In setting up standards of program quality the
Commission is not transgressing the statutory
prohibition against censorship or infringing
the right of free speech. It desires to elimi-
nate matters of private interest only to make
room for matters of public interest. It is not
imposing any prior restriction on utterances
but is reserving the right to take into account

 

21 RR pp. 53:242 and 658; Sections 3.135 and
3.658 (e).

3WBNX Broadcasting Company, Inc., 12 FCC 837 (1948).

119

a station's past conduct, measured by the standard
of public interest, convenience and necessity,
in its future actions.

In KFKB Brgadcasting Association, Inc. v. Federal

Radio Commission an application for renewal of the sta—
tion's license was denied because of Dr. Brinkley's

claims of medical cures for patients he had never met.

His "revitalizing" operations, which he spoke about on the
station, attracted many listeners to his "clinic" in
Kansas. In its decision, the Commission said;

The testimony in this case shows conclusively
that the operation of Station KFKB is conducted
only in the personal interest of Dr. John R.
Brinkley. While it is to be expected that a
licensee of a radio broadcasting station will
receive some remuneration for serving the pub-
lic with radio programs, at the same time the
interest of the listening public is paramount,
and may not be subordinated to the interests of
the station licensee. A license to Operate a
radio broadcasting station is a franchise from
the public, and the licensee is a trustee for
the public. Station KFKB has not been operated
in the interest of the listening public and we,
therefore, find that public interest, convenience
and necessity will not be served by granting the
application for renewal of its.license.5

This decision of the Commission was upheld by the United
States Court of Appeals for the District of Columbia.
The Court also held that the holding of a station in
review of its past programming was not the same as prior

restraint and therefore did not constitute censorship.

 

”Great Lakes Broadcasting Company (FRC, Dec. 17,
1928), rev'd on other grounds 59 App. D.C. 197, 37 F.
(2nd) 993-

5KFKB Broadcasting Association,_lnc. v. Federal
Radio Commission, 60 App. D.C. 79, M7 F. (2nd) 570 (1931).

 

120

Later in 1932 Reverand Dr. Shuller, owner of KGEF
in Los Angeles, was denied an application for renewal on
the grounds that he had broadcast attacks upon various
religious organizations, public officials, various indi-
viduals and the courts. The Court of Appeals upheld the
Commission's decision in 1932 by saying:

If it be considered that one in possession of a
permit to broadcast in interstate commerce may,
without let or hindrance from any source, use
these facilities, reaching out, as_they do, from
one corner of the country to the other, to
obstruct the administration of Justice, offend
the religious susceptibilities of thousands,
inspire political distrust and civic discord,

or offend youth and innocence by the use of
words suggestive of sexual immorality, and be
answerable for slander only at the instance of
the one offended, then this great science,
instead of a boon, will become a scourge, and
the nation a theatre for the display of indi-
vidual passions and the collision of personal
interests. This is neither censorship nor pre-
vious restraint, nor is it a whittling away of
the rights guaranteed by the First Amendmegt, or
an impairment of their free exercise . . .

In 19u3, as a result of the chain broadcasting regu-
lations adopted by the Commission, the National Broad-
casting Company charged the FCC with overstepping its
bounds by limiting the right of free speech in spite of
Section 326 and the guarantees of the First Amendment.

The decision of the 19u3 case, National Broadcasting_
Company v. United States, included the following state-

ments:

 

6Trinity Methodist Church, South v. Federal Radio
Commission, 60 App. D.C. 79. “7 F. (2nd) 850 (1932).

121

Freedom of utterance is abridged to many who wish
to use the limited facilities of radio. Unlike
other modes of expression, radio inherently is
not available to all. That is its unique
characteristic, and that is why, unlike other
modes of expression, it is subject to govern-
ment regulation. . . . The question here is
simply whether the Commission, by announcing
that it will refuse licenses to persons who
engage in specified network practices (a basis
for choice which we hold is comprehended within
the statutory criterion of "public interest," is
thereby denying such persons the constitutional
right of free speech. The right of free speech
does not include, however, the right to use the
facilities of radio without a license. The
licensing system established by Congress in the
Communications Act of 193a was a prOper exercise
of its power over commerce. The standard it pro-
vided for the licensing of stations was-the
"public interest, convenience or necessity."
Denial of a station license on that ground, if
valid under the Act, is not a denial of free-
speech.7

"Indecent Language" Legal
Cases in Broadcasting

The following cases of "indecent language" in broad-
casting concern only auditory programming content. There
are no legal precedents for television's visual obscenity.
However, a review of "indecent language" cases in radio
clearly show the powers and the criteria used by the
courts and the FCC in broadcast obscenity cases.

The right of the Commission to review a radio or
television station's past programming service may be

applied to a station whose programming, while not meeting

 

7National Broadcasting Company v. United States, 319
U.S. 190, 216-217 (19H3).

I:

122

the legal criteria of obscenity as develOped in literature
and motion pictures, has contained "off color," "vulgar,"
or "tasteless" program material.

On July 25, 1962, a major decision was handed down
by the FCC in regard to the programming practices of
radio station WDKD, Kingstree, South Carolina. Initially,
E. G. Robinson, Jr. filed for renewal of his station's
broadcast license and a license to cover a construction
permit. Both were denied by Hearing Examiner Thomas H.
Donahue in his initial decision of December 12, 1961.8
The station subsequently filed exceptions to the initial
decision and oral argument was held before the Commission
on June 8, 1962.-

Prior to the hearings, the Commission, upon receiv-
ing complaints from listeners, sent a letter to Robinson
in May of 1960 concerning certain program material and'
requested a statement by Robinson with respect to the
complaints. The reply to the Commission by Robinson con-
tained a denial of his awareness of the Walker broadcasts.
'In a subsequent oral hearing conducted by Hearing Examiner
Donahue, Robinson denied knowledge of the Walker broad-
casts or of any complaints about such material. The hear-
ing, however, produced witnesses who testified that they

had, indeed, complained to Robinson.9

 

8Palmetto Broadcasting Company (Initial Decision of
Hearing Examiner), 33 FCC 265 (1961).

91bid., at 265-66.

123

Therefore, the Hearing Examiner's decision held
that:

(l) the licensee did misrepresent facts to the
Commission and was lacking in candor; (2) that
he failed to exercise adequate control over the
station's programming; (3) that obscene, coarse,
vulgar, and suggestive material susceptible of
indecent double meaning was broadcast by Walker
[Charlie Walker, announcer disc Jockey who made
statements in question] over the station; and
(A) that in many areas of community broadcast-
needs, the station had failed to fulfill its
responsibility.10

The Hearing Examiner dwelt upon the indecent language
broadcast by the station's disc Jockey, Charlie Walker.
Audio tapes of some of the Walker broadcasts had been made
by the operations manager and chief engineer of station
WJOT in Lake City, South Carolina and subsequently sent to
the FCC. (Portions of the contents are included in
Appendix C.)

In response to the Hearing Examiner's charge of
obscenity, Robinson contended that if the Commission found
the Walker broadcasts obscene under the United States
Code, 18 U.S.C. luau, that the Commission would be acting
"ultra vires" since the Code makes the broadcasting of
obscene material a crime and determination of crime is for
the courts to decide, not a regulatory agency. If the
Commission found the Walker broadcasts to be less than

obscene, continued Robinson, then the Commission would be

violating the free speech protection included in the First

 

lOPalmetto Broadcasting Company, 33 FCC 250 (1962).

12A

Amendment. The Hearing Examiner treated the accused
language as obscenity. The Examiner also cited the amend-
ment to the Communications Act, effective September, 1960,
in which Congress gave the Commission authority to act on
matters involving_the violation of 18 U.S.C. 146“.
Robinson advanced a second argument in which he

urged that the test for obscenity in Roth v. United States,

 

359 U.S. “76 must be adopted in this case, (i.e. "whether
the average person, applying contemporary community stand-
ards, the dominant theme of the material taken as a whole
appeals to the prurient interests"). In this case, said
Robinson, Walker would not be guilty beCause Walker broad-
cast a great deal of material that was not vulgar and that
the broadcasts, on the whole, were well accepted within
the community. The Examiner answered Robinson's statement
contending that while the Roth decision was applicable to
the Postmaster General's criterion for determining material
that may be mailed and for states to enforce state laws
preventing origination and distribution of obscene mate-

rials,it was not meant to establish a test for every ques-

" tion of obscenity. The Examiner reviewed the circum-

stances of the Roth and the Alberts cases and then made a
distinction in its application to broadcasting.

The field of broadcast regulation is perhaps an
area as ill adapted as any for employment of the
Roth test. First, it must be remembered that,
unlike the acquisition of books and pictures,
broadcast material is available at the flick of
a switch to young and old alike, to the sensi-
tive and the indifferent, to the sophisticated

125

and the credulous. Further, broadcast material is
delivered on a route commonly owned by the public

on a vehicle especially licensed to serve them and

is received on property owned by the consignee.

In short, there is a universality of utility and

a public stake present in broadcasting wholly “ '“r
lacking in the kind of thing that was involved in
Roth.

In determining obscenity in broadcasting, ques-
tionable material should not always have to be
weighed within the context of everything else that
is presented with it. Brief injections of ero-
tica, pornography, or smut are enough to seriously
prejudge, if not destroy, the general utility of
radio and television.

The "shameful and morbid interest in sex so per-
vasive as to submerge any ideas of redeeming social
importance" test and the requirement that the
material in question to be obscene must exceed
limits of tolerance imposed by current standards

of a community certainly would appear to permit a
lot of broadcast material to find first-amendment
protection that nevertheless would be highly
offensive to large segments of a listening or
viewing audience.

Insofar as the "dominant theme" requirement of the
Roth test is concerned, when Walker's remarkable
popularity with the local advertisers is taken into
account . . . and it is recalled that his primary
function over the air, along with musical records,
was to serve as filler between spot announcements,
it becomes pretty apparent that his principal
appeal lay in his smut and that his smut sig-
nalized, characterized, and was in fact the domi-
nant note in his broadcasts.ll

 

The Examiner referred to previous testimony by local

clergy, other broadcasters, an advertiser and a former

partner of Robinson's, all of whom referred to Walker's

broadcasts as "vulgar," "sexy," "suggestive," and "filthy."

 

llgglmgttg (Initial Decision), supra. at 297-99, 300.

126

Concerning the charge of indecent language, the Examiner
concluded as follows:

On the basis of the foregoing considerations, the
examiner concludes that even under the Roth test.
the Walker broadcasts here at issue are obscene
and indecent and, a fortiori, coarse, vulgar,
suggestive, and susceptible of indecent double
meaning. Without employing the Roth test, he
holds the material in uestion obscene and
indecent on its face.1

In the hearing before the Commission the issues were
amended and presented as follows:

1. To determine whether in its written or oral
statements to the Commission with respect to

the above matters, the licensee misrepresented
facts to the Commission and/or was lacking in
candor;

2. To determine whether the licensee main-
tained adequate control or supervision of pro-
gramming material broadcast over his station
during the period of his most recent license
renewal; ‘

3. To determine whether the licensee permitted
programming material to be broadcast_over sta-
-tion WDKD on the Charlie Walker show, particu-
larly during the period between January 1, l960,“~ ~'*
and April 30, 1960, which program material was
coarse, vulgar, suggestive, and susceptible of
indecent, double meaning;

A. To determine the manner in which the program-
ming broadcast by the licensee, during the period
of his most recent license renewal, has met the.
needs of the areas and populations served by the
station;

5. To determine whether, in light of the evi-
dence adduced with respect to the foregoing
issues, the licensee possesses the requisite
qualifications to be a licensee of the Commis-
sion;

6. To determine whether, in light of the evi-
dence adduced with respect to the foregoing
issues, a grant of the above-captioned applica-
tions would serve the public interest, con-
venience, or necessity.13

 

12Ibid., at 300. , l3Palmetto supra. at 251.

127

The Commission's decision, unlike the Examiner's

_decision, emphasized not the questionable program material,

but rather Robinson's misrepresentation to the Commission.

On the basis of the record, we agree that Robinson
knew the true character of the broadcasts and that
his denials thereof were purposeful misrepresenta-
tions and false statements. . . . We find that in
the circumstances of this case, the licensee's
misrepresentations and false statements, in and
of themselves, constitute grounds for denial of
WDKD' 5 application for renewal of license.1

The fact of abdication of station control over pro-
gramming also disturbed the Commission.
The Commission regards maintaining control over
programming as a most fundamental obligation of
the licensee. Robinson's failure to meet that
fundamental obligation raises, therefore, a most
serious question as to whether his renewal appli-
cation should be granted. Were this issue con-.
sidered by itself, it may be that a short-term
renewal might be apprOpriate in the particular
circumstances of this case.1
Only after denying renewal of WDKD's license on the
grounds of Robinson's misrepresentation did the Commission
discuss the indecent language charge. First the Commis-
sion defended its right to deal with Section 1464 of the
Criminal Code. The Commission cited its rights to con-.

sider such criminal laws as upheld in FCC v. American

 

Broadcasting Co., 347 U.S. 284,289, note 7.

The "public interest, convenience, or necessity"
standard for the issuance of licenses would seem
to imply a requirement that the applicant be
law-abiding. In any event, the standard is
sufficiently broad to permit the Commission to
consider the applicant's past or proposed

 

lulRiQ-. at 253. lSIbid., at_254.

128

violation of a Federal criminal statute espec-
ially designed to bar certain conduct by Opera-
tors or radio and television stations.1
However, the Commission avoided using its powers and
thereby side-stepped a charge of obscenity against WDKD by
disagreeing with the Examiner's combination of terms.
The issue has been drawn not in terms of viola-
tion of section 1464 or of the statutory
language ("obscene, indecent, or profane"), but
rather in different terms - "coarse, vulgar,
suggestive, and susceptible of indecent, double-
meaning." We do not think these terms can be
equated with the statutory "obscene" or "inde-
cent."17
But, the Commission continued, even if the material
broadcast could not be said to be obscene, the Commission
constitutionally does have the right to consider such a
preponderance of vulgar, coarse, suggestive, double-
meaning programming as that broadcast by WDKD. If the
Commission did not have the right, "the housewife, the
teenager, the young child — all - would simply be subjected
to the great possibility of hearing such patently offen-
sive programming whenever they turn the dial."18
The Commission's decision went on to explain that
the first amendment and censorship provision of Section
326 gave the Commission authority to act under the public
interest standard but did not give the Commission the right

to substitute its own taste for that of the public's or the

16
18

Ibid., at 255 n.5. l71bid., at 255.

Ibid., at 256.

129

broadcaster's. Therefore, said the Commission, it could
not decide:

[Tjhat some pattern of broadcasts is "vulgar,"
”suggestive," "coarse," and "susceptible of
indecent, double meaning" on the basis of our own
taste or preferencleor what we believe should be.
broadcast. What we must find is that the broad-
casts in question are flagrantly offensive - that
by any standard, however reasonably weighted for
the licensee, taking into account the record evi-
dence, the broadcasts are obviously offensive or
patently vulgar. In short, the licensee neces-
sarily and properly has wide discretion in choos-
ing every type of programming to be broadcast to
meet the needs and interests of the public in his
area. . . . It follows that in dealing with the
issue before us, we cannot act to deny renewal
where the matter is a close one, susceptible to
reasonable interpretation either way. We can .
only act where the record evidence establishes

a patently offensive course of broadcasts. It
is, we think, incorrect to say that in so acting
under the public-interest standard, the Commis-
sion poses any danger to free expression in the
broadcasting field.

Clearly, this case presents that flagrant situa-
tion calling for drastic administrative action.
The material broadcast, . . - is not "buffoonery
and attempted bucolic badinage," as WDKD claims.-
We find that such material, on its face, is
coarse, vulgar, suggestive, and of indecent
double meaning. By any standards, it is flag-
rantly and patently offensive in the context of
the broadcast field . . . and thus contrary to
the public interest.

Thus, we are not saying that a single off-color
joke or program suffices to taint an entire
operation. . . . We are saying that this.
licensee's devotion of so substantial a portion
of broadcast time to the type of programming set
forth in the examiner's decision is inconsistent
with public interest and, indeed, represents an
intolerable waste of the only operating broadcast
facilities in the community. . .1

 

l91b1d., at 257-68.

130

An appeal was made to the U. S. Circuit Court of
Appeals after Senator Johnson (D., S.C.) accused the
Commission of overstepping its responsibilities and, as
a result, persecuting small stations. E. G. Robinson,Ԥ* fix
with Senator Johnson's support as well as that of the
American Civil Liberties Union, was convinced that the

Commission was violating the powers established in the

Communications Act.

 

The decisions of the Federal Court in March of 1964,
however, upheld the Commission's decision. It is interest-

ing to note the absence of the indecent language charge in

its decision.

The Court of Appeals held that the willingness
of applicant to deceive the Commission by repre—
senting that he lacked knowledge of the broadcast
material which had been subject of complaintsr
justified the refusal to grant the application on
the basis that the applicant did not possess
requisite qualifications to be a licensee and
that the grant of his application would not serve
the public interest.

Affirmed.20

The Court reviewed the decisions of the Hearing
lExeuniner and the Commission and agreed with the Commis-
SiJDn's opinion that the licensee's misrepresentations "ip

éiEi pf themselves, constitute grounds for denial of WDKD's

 

apuaiication for renewal of license." The Court's decision

COntinued:

202221221. v- 2.9.2. 33L: F. 2d 531» (19611).

131

In determining whether the grant of an applica-
tion for license renewal will serve the "public
interest, convenience, and necessity," . . . the ....
Commission has a duty to consider the performance
of the applicant in meeting the needs of the
community. In discharging this duty in the
present case, the Commission properly sought
information concerning the applicant's broadcast
material which had been the subject of complaints;
received by the Commission. Robinson's represen-
tations to the Commission that he lacked know-
ledge of the situation were contradicted by many
witnesses. The record amply supports the Exami-
ner's action in crediting the opposing witnesses,
and refusing to credit Robinson, and in conclud-
ing as a result that Robinson was guilty of mis-
representations.21 '

Circuit Judge Wilbur K. Miller in a concurring
Opinion, however, felt that.the Court's decision did not
go far enough. Miller, aside from adding information
which further justified the Commission's and the Court's
decisions concerning Robinson's misrepresentation, felt
that the Walker program material did constitute viola—
tions of Section 1464. Miller also noted that Walker had
previously been convicted of violating-Section 1464 by a
federal district court in 1963. Judge Miller says:

Samples of his broadcasts are in the record. They: -w. n
constitute, I think, plain violations of the

statute which denounces as criminal the uttering

of obscene, indecent or profane language by means

of radio communications.

Robinson's guilt under issue No. 3, [vulgar lan-
guage] as found by the Commission, seems to me to
be apparent from the record, and it.goes without
saying that the Commission was correct in finding,
under issue No. 4 that the station's Charlie Walker
programs did not meet the needs of the areas and.

 

21Ibid., at 536.

132

populations served by the station. NO area or
population needs a radio program which violate?
the criminal statute to which I have referred.

- Judge Miller offered an excuse for the majority's
omission of charging Robinson with violating Section 1464.

Perhaps the majority refrained from discussing
the other issues because of a desire to avoid
approving any Commission action which might be
called program censorship. I do not think that
denying renewal Of a license because Of the
station's broadcast of obscene, indecent or pro-
fane language - a serious criminal offense - can
properly be called program censorship. But, if
it can be so denominated, then I think censorship
to that extent is not only permissible but
required in the public interest. Freedom Of
speech does not legalize using the public air-
ways tO peddle filth.2

Judge Miller's reason for the Commission's and the
Court's refusal to discuss the issue Of obscenity appears
to be correct when one reads Circuit Judge Wright's con-
curring Opinion Of the Court's decision to deny the appel-
lant's petition for rehearing pp papp.

In his petition for rehearing en banc, appellant
seeks to raise again the issue Of censorship Of
program content by Government Officials. He
argues:

"A majority of the present Supreme Court has
made it clear that any examination into 'program
content' by an administrative agency function-
ing under a broad 'public interest' or 'general
welfare' standard contravenes First Amendment
freedoms. Where administrative agencies, in
the exercise of their licensing functions,
'judge the content of the words and pictures
to be communicated,' the safeguards of the
First and Fourteenth Amendments become appli-
cable save in the exceptional case. Joseph
Burstyn . . . (1952). A violation Of the
First Amendment arises where a government

 

22Ibid., at 536-37. 23Ibid., at 537.

133

agency 'undertakes to censor the contents of
the broadcasting." Kovacs v. Cooper, . . .
(1949) (Jackson, J. concurring). 'Apy exami-
nation Of thought or expression in order to
prevent publication of "objectionable mate-
rial" is censorship. Farmers Educational

[and CO—Op] Union [of America, North Dakota
Division] v. WDAY, Inc. . . . (1960). . .* * *

"[Additionally], a basic concept runs
throughout recent Supreme Court decisions to
the effect that, since First Amendment free-
doms need breathing space to survive, the
government may regulate in this area 'only
with narrow specificity'. . . . Accordingly
'stricter standards of permissible statutory
vagueness may be applied to a statute having
a potentially inhibiting effect on speech'.

* * *

Most important, appellant suggests that the
absence Of a ruling from this court on the Commis-
sion's powers of program review will be under-
stood by the broadcasting industry as an endorse-
ment Of Commission censorship. A prediction Of a
law review writer is quoted:
" * * * The court of appeals, in reviewing
[Robinson], may uphold the Commission's action
on some Of the alternative grounds of deci-
sion. In this event, the limits on FCC
authority will remain unclear, and its action
in [Robinson] may prove a successful feint of
regulation, whereby the FCC can affect prO-~
gram content even when it may not actually
have authority to do so. * * *"

77 HARV. L. REV. 713 (1964).

I do not read the decision of this court tO_
endorse program content regulation. . . . The
Opinion stated, "We intimate no views on whether
the Commission could have denied the applica-
tions if Robinson had been truthful.". . . The
concurring judge noted: "Perhaps as the major-
ity refrained from discussing the other issues
because of a desire to avoid approving any Com-
mission action which might be called program
censorship."

If the Commission were likely to undertake .
such program content review, pp banc considera-
tion would be justified. But this does not

134

seem to recognize the First Amendment, statu-
tory, and policy bases for protection of pro-
gramming from the Government censor.2
Wright then quoted a portion of the Pacifica deci-
sion (reviewed below) in which the Commission realizes
its responsibility in abstaining from judgments concern-
ing the merits of a program and its responsibility in
promoting the more effective use of radio in the public
interest (Section 303 (g)).
Judge Wright continued:
I see no need now to decide whether this state-
ment exhausts the constitutional protection Of
free speech in broadcasting, or whether the Com-
mission, in the quoted case and in the case
before us, correctly applied the constitutional
guarantees. It is enough now for me that the
Commission realizes the vital importance of pre-
serving both free speech and an atmosphere Of
freedom in these communications media. For
this reason, I do not feel that an pp banc con-
sideration of this case is necessary.2
The Commission and the Court favored the judgment“
of the Robinson case upon grounds Of misrepresentation
and lack Of public interest broadcasting rather than
specific grounds Of Obscenity. In doing so, however, the
Commission and the Court left the question of the Commis-
sion's power to revoke a license because of Obscenity Open~
to speculation.
Another case exemplified the Commission's reasoning

when only isolated instances Of questionable program

material have been broadcast. The FCC was in a position

 

2&22123: at 537-38. 25Ibid., at 539.

135

to decide upon requests for an initial license for KPFK
and a license renewal for KPFA, KPFB and WBAI.’ Two Of

the stations (KPFK and KPFA) owned by the Pacifica Founda-
tion, were charged with broadcasting questionable program
material. Thus it was the purpose of the FCC to deter-
mine whether the stations were operating in the "public
interest, convenience, and necessity." The complaints
were as follows:

. The principal complaints are concerned with
five programs: (1) a December 12, 1959 broadcast
over KPFA, at 10 P.M., of certain poems by
Lawrence Ferlinghetti (read by the poet himself);
(ii) The ZOO Story a recording of the Edward Albee
play broadcast over KPFK at 11 P.M., January 13,
1963; (iii) Live and Let Live, a program broad-
cast over KPFK at 10:13 P.M. on January 15, 1963,
in which the poem, Ballad p3 the Deppairinngus-
band, was read by the_author Robert Creeley; and
(v5 Tpp Kid, a program broadcast at 11 P.M. on
January 8:71963, over KPFA, which consisted Of
readings by Edward Pomerantz from his unfinished
novel Of the same name. ‘The complaints charge
that these prograps were Offensive or_"filthy"
in nature. . . .2

 

 

The Commission said in its decision that; "[tJhere
is, we think, no question but that the broadcasts of the

programs, The ZOO Story, Live and Let Live, and The Kid,

 

lay well within the licensee's Judgement under the public
interest standard."27 The Commission's decision continued
reviewing Pacifica's rationale for broadcasting the three

programs. The Zoo Story said Pacifica is "a serious work

 

20Pacifica Foundation, FCC Memorandum Opinion and
Order, 36 FCC 147 (1964).

27Ibid., at 148.

136

of drama" by a "provocative playwright" and "an honest
and courageous play." As concerned Tpp 51p, Pacifica
observed that the author's reputation was in'the public
interest and that the unedited minor swear words broad-
cast "fit well within the context of the material being
read and conform to the standards Of acceptability of
reasonably intelligent listeners." Pacifica stated that

the program Live and Lethive would bring listeners face

 

to face with the problem of homosexuality rather "than

leaving the subject to ignorance and silence."28.

The FCC then stated its rationale condoning the
broadcast of the three programs:

We recognize that as shown by the complaints
here, such provocative programming as here
involved may offend some listeners. But this
does not mean that those offended have the
right, through the Commission's licensing
power, to rule such programming Off the air-
waves. Were this the case, only the wholly
inoffensive, the bland, could gain access to
the radio micrOphone or TV camera. NO such
drastic curtailment can be countenanced under
the Constitution, the Communications Act, or
the Commission's policy, which has consistently
sought to insure "the maintenance of radio and
television as a medium Of freedom of speech
and freedom of expression for the people Of
the Nation as a whole" . . . In saying this,
we do not mean to indicate that those who
have complained about the foregoing programs
are in the wrong as to the worth Of these pro-
grams and should listen to them. This is a
matter solely for determination by the indi-
vidual listeners. Our function, we stress,
is not to pass on the merits Of the program -
to commend or to frown. Rather . . . it is
the very limited one Of assaying, at the time

 

28Ibid., at 128-49.

137

of renewal, whether the licensee's programming,
on an overall basis, has been in the public
interest and, in the context Of the issue,
whether he has made programming judgements
reasonably related to the public interest.
This does not pose a close question in the
case: Pacifica's judgements as to the above
programs clearly fall within the very great
discretion which the Act wisely vests in the
licensee. In this connection, we also note
that Pacifica took into account the nature Of
the broadcast medium when it scheduled such
programming for the late evening hours (after
10 P.M., when the number Of children in the
listening audience is at a minimum).29

Pacifica admitted, however, that portions Of the
Ballad pi‘p Despairing Husband and the poems Of Lawrence
Ferlinghetti should not have been broadcast.‘ They Were
broadcast, continued Pacifica, only because the station's
drama editor did not carefully screen the selections.

In view Of the foregoing, we find no impedi-
ment to renewal on this score. We are dealing
with two isolated errors in the licensee's
application Of its own standards - one in 1959
and the other in 1963. The explanations given
for these two errors are credible. Therefore,
even assuming, arguendo, that the broadcasts
were inconsistent with the public interest stand-
ard, it is clear that no unfavorable action upon
the renewal applications is called for. The
standard Of public interest is not so rigid that
an honest mistake or error on the part Of a
licensee results in drastic action against him
where his overall record demonstrates a reason-
able effort to serve the needs and interests Of
his community. . . . Here again, this case con-
trasts sharply with Palmetto where instead Of two
isolated instances, years apart, we found that the
patently Offensive material was broadcast for a
substantial period Of the stationfls broadcast day
for many years.

 

 

291bid., at 149. 3OIbid., at 150.

138

The case is summed up in the following portion of the

decision:

We find, therefore, that the programming matters
raised with respect to the Pacifica renewals pose
no bar to a grant of renewal. Our holding, as is
true Of all such holdings in this sensitive area,
is necessarily based upon, and limited to, the
facts of the particular case. But we have tried
to stress here, as in Palmetto, an underlying
policy - that the licensee's judgement in this
freedom of speech area is entitled to very great
weight and that the Commission, under the public
interest standard, will take action against the
licensee at the time Of renewal only where the
facts of the particular case, established in a
hearing record, flagrantly call for such action.
We have done so because we are charged under the
Act with "promoting the larger and more effective
use of radio in the public interest" (Section 303
(g)), and obviously, in the discharge of that
responsibility, must take every precaution to
avoid inhibiting broadcast licensees' efforts at
experimenting or diversifying their programming.
Such diversity Of programming has been the goal
of many Commission policies (e.g., multiple
ownership, development of UHF, the fairness doc-
trine). Clearly, the Commission must remain
faithful to that goal in discharging its func- 31
tions in the action area of programming itself.

It is important to notice that in the Pacifica deci-

 

s self-admitted "mistakes." The question must be
raised, however, as to the number Of "mistakes" a station
may be allowed before the station's overall record becomes
detrimental to the public interest. The answer may be
contained in the Palmetto case where years of "patently

offensive material" was broadcast. The two cases appear

3lIbid., at 150-51.

139

to constitute Opposite poles of a continuum as concerns
the_indecent language situation.

The Opposite poles Of the continuum are not yet, by
any means, well established. For instance, Commissioner
Robert E. Lee, in his concurring Opinion to the Pacifica
decision, questioned the method used in the presentation

of Live and Let Live, the one and a half hour program

 

concerning homosexuality.

I concur in the action Of the Commission in
granting the several applications Of Pacifica
Foundation. However, I feel constrained to com-
ment on at least one program coming to our atten-
tion insofar as it may or may not reflect these
stations' program policies.

Having listened carefully and painfully to a
l l/2-hour tape recording of a program involving
self-professed homosexuals, I am convinced that
the program was designed to be, and succeeded in
being, contributory to nothing but sensationalism.
The airing Of a program dealing with sexual aber-
rations is not to my mind, per se, a violation of
good taste nor contrary to the public interest.
When these subjects are discussed by physicians
and sociologists, it is conceivable that the pub-
1ic could benefit. But a panel Of eight homo-
sexuals discussing their experiences and past
history does not approach the treatment of a
delicate subject one could expect by a respon-
sible broadcaster. A microphone in a bordello,
during slack hours, could give us similar infor—
mation on a related subject. Such programs,
Obviously designed to be lurid and to stir the
public curiosity, have little place on the air.

I do not hold myself to be either a moralist or
a judge of taste. Least of all do I have a clear
understanding of what may constitute Obscenity in
broadcasting.32

Until Obscenity in broadcasting is more clearly

defined, the broadcaster must proceed with caution.

 

32Ibid., at 152-53.

140

Summary and Conclusion

Although the Palmetto and Pacifica decisions present

 

the power, and the reasoning, of the Federal Communica-
tions Commission when presented with cases concerning
indecent language in the auditory broadcast medium of
radio, the same basic powers and reasoning are available_
to the Federal Communications Commission when, and if, they
are forced to deal with accused obscenity in television.
It is Of utmost importance that these legal principles be
recognized.

Television, it has been Observed, is controlled by
a government regulatory agency which has the.right to
review a station's past programming. The agency cannot,
by its own admission, pass on the merits Of a particular
program nor substitute its own taste for that Of the
broadcaster or the public. It may, however, make Judg-
ments in considering the overall record Of the station's
past service to the public or a station‘s past or prOposed
violation Of a Federal criminal statute, e.g. Section 1464.
These powers are not regarded by the courts as censorship
or violations Of the station's freedom of speech. If, in
the licensee's judgment, says the Commission, a particular
program is reasonably related to the public interest, the
program is justified. The Commission has also said that
even though a portion Of the audience may be offended by

some of the station's programming, it does not have the

141

right to rule such programming Off the air through its
licensing power.

Television is also a home medium available to child-
ren. The constant awareness by society Of the supposed
effects of media on children demands that television
restrict its treatment of sex to an acceptable level.
While the effects of sex via media on children are not
completely known, society's attitude Of caution persists.

Finally, since television uses public airways, the
licensee is a trustee Of the public. The degree of per-
missiveness towards sex that television presents must
reflect society's standards, or the society will condemn
that trustee through existing governmental regulation in
favor of another trustee. Television's increase in per-
. missiveness must follow society's-evolutionary moral
standards. This type of change in television is noted by

the editor of Television magazine:

 

Television's growing maturity would almost cer-
tainly shock anyone who hadn't looked at his set
in the last five years. Yet it seems safe to say
that the great majority of viewers is scarcely
aware of it. Like age, which is not necessarily
the same thing, maturity comes by an evolutionary
process that goes undetected from day to day but
is unmistakenly apparent when measured from year
to year. . . . In a changing society, television
has no choice but to change. Because of its
nature, it carries special responsibilities and
always should lag considerably behind the avant
garde in many respects. The absence Of any
significant cries of outraged dignity suggests

142
that, to date, television has been moving at 33
.pretty close to a proper pace with the times.

It is not surprising that the FCC and the courts
are reluctant to judge a station's programming Obscene
under Section 1464. The definition Of Obscenity is,
after all, a product of literature and motion pictures
and, as the Hearing Examiner's decision in Palmetto
indicates, the definition is difficult to apply to the
broadcast medium. For example, the Examiner suggests that
any injection Of smut, pornography or erotica into a pro-
gram condemns-the whole program. According to the Rppp
definition Of Obscenity, however, an entire work, such as
a book or motion picture, may ppp be Judged Obscene
because of brief erotic passages or scenes. The "average
adult" criterion Of the Obscenity definition must also be
questioned when applied to television because children are
-a part of the television audience. In "Obscenity," too,
the "morbid interest in sex must be so overwhelming as to
submerge any ideas Of redeeming social impOrtance" and
"that which is Obscene must exceed the limits Of toler-
ance of current community standards." Both of these cri-
teria, realizes the Examiner, would permit a large amount
Of Offensive material to find first amendment protection,
"that nevertheless would be highly Offensive to a large

segment of a listening or viewing audience." "The field

 

33"Editorial: The Widening Screen of TV Standards,"
Television, vol. XXV, no. 6, June, 1968, p. 68.

 

143

of broadcasting," suggests the Examiner, "is perhaps an
area as ill adapted as any for employment of the Roth

4. ,2 1 I
beat.

Thus the test for Obscenity developed by literature
and motion pictures is inadequate when applied to televi-
sion. The guidelines provided by the NAB Television Code,
or their adaptation, are generally used by broadcasters to
determine limits Of sex on television. Yet the broad- I
caster may feel that these standards are not applicable
or too restrictive when dealing with a particularly honest
and mature treatment Of sex on television. In the Code's
place, however, there are no legal criteria concerning sex
on television. Instead, the broadcaster, in the absence
of legal precedents, must depend upon a predictable adapta-
tion of the powers and reasoning used by the FCC and the
courts in determining Obscenity in radio broadcasting to
television. The broadcaster must also depend upon the
general concept of obscenity as furnished by years of
legal decisions in other communications media.

The lack of guidelines provides a basis on which
the traditionally "straight-laced" or "prudish" portion of
the public may complain even with the most conscientious
use of sex on television. Yet the broadcaster must not
program to their level out of fear of government inter-

vention while neglecting those who wish to see mature and

144

honest explorations Of human sexuality. In doing so, the
broadcaster would be submitting to censorship as undesir-

able as any legal restriction.

5‘ ._- \‘

BIBLIOGRAPHY

‘\

BIBLIOGRAPHY

Books

Ardrey, Robert. The Territorial Imperative. New York:
Dell Publishing Company, Inc., 1966.

Arons, Leon, and May, Mark A., eds. Television and Human
Behavior. New York: Appleton-Century-Crofts,
1963.

 

Beman, Lamar T., ed. Censorship Of Speech and the Press.
New York: The H. W. Wilson Company, 1930.

Carmen, Ira H. Movies, Censorship, and the Law. Ann'
Arbor: The University of Michigan Press, 1966.

(Chafee, Zechariah. Government and Mass Communications,
Vol. 1. Chicago: University Of Chicago Press, 1947.

Chandos, John, ed. 'TO Deprave and Corrupt. .'.' New
York: Association Press, 1962.

Craig, Alec. Suppressed Books, A History of the Concep-
tion of Literary Obscenity. New York: The World
Publishing Company, 1963. ‘

 

 

Emery, Walter B. Broadcasting and Government: Responsi-
bilities and Regulation. East Lansing, Michigan:
Michigan State University Press, 1961.

Elliott, William Y., ed. Television's Impact on American
Culture. East Lansing, Michigan: Michigan State
University Press, 1956.

Ernst, Morris L., and Schwartz, Alan U. Censorship: The
Search for the Obscene. New York: The Macmillan
Company, 1964.

 

Ernst, Morris L., and Seagle, William. TO The Pure. . .
A Study of Obscenity and the Censor. New York:
The Viking Press, 1928. r

146

147

Haiman, Franklyn S. Freedom Of Speech, Issues and Cases.
.New York: Random House, Inc., 1965.

Head, Sydney W. Broadcasting in America. Boston: Hough-
ton Mifflin Company, 1956.

Hyde, H. Montgomery. A History pf Pornography. London:
William Heinemann Ltd., 1964.

International Motion Picture Almanac - 1959. New York:
1959.

International Motion Picture Almanac - 1962. New York:
1962.

Knight, Arthur. The Liveliest Art, A Panoramic Histopy
Of the Movies.. Mentor Books. New York: The New
American Library of World Literature, Inc., 1957.

 

Koenigil, Mark. Movies in Society (Sex, Crime and Censor-
ship). New York: Robert Speller and Sons, Publie
shers, Inc., 1962.

Kronhausen, Eberhard and Phyllis. Pornography and the
Law: The Psychology Of Erotic Realism and Hard
Core Pornography. New York: Ballantine Books,
1964.

 

MacCann, Richard Dyer. Hollywood in Transition. Boston:
Ioughton Mifflin Company, 1962.

McLuhan, Marshall. Understanding Media: The Extensions
of Man. New York: McGraw-Hill Book Company, 1964.

McCormick, John, and MacInnes, Mairi, eds. Versions Of
Censorship. Anchor Books. New York: Doubleday
and Company, Inc., 1962.

 

 

Mayer, Michael F. Foreign Films on American Screens.
New York: Arco Publishing Company, Inc., 1965.

Murphy, Terrence J. Censorship: Government and Obscenity.
Baltimore: Helicon Press, Inc., 1963.

National Association Of Broadcasters. Broadcasting and
the Bill of Rights. Washington, D.C.: National
Association Of Broadcasters, 1947.

 

 

Pritchett, C. Herman. The American Constitution. New
York: McGraw-Hill, 1959.

148

Randall, Richard 3. Censorship of the Movies, The Social
and Political Control Of A Mass Medium. Madison:
The University of Wisconsin Press, 1968.

St. John-Stevas, Norman. Obscenity and the Law. London:
Secker and Warburg, 1956.

Schumach, Murray. The Face on the Cutting Room Floor:
The Story Of Movie and Television Censorship. New
York: William Murrow and Company, 1964.

 

Scott, George Riley. "Into Whose Hands," An Examination
Of Obscene Libel in its Legal, Sociological and
Literary Aspects. London: Gerald G. Swan, Ltd.,
1945.

 

 

Shibutani, Tamotsu. Society and Personality,_An Inter-
actionist Approach To Social Psychology. Englewood
Cliffs: Prentice-Hall, Inc., 1961. -

Smead, Elmer E. Freedom of Speech by Radio and Television.
Washington D.C.: Public Affairs Press, 1959.

’armington, Eric H., and Rouse, Philip G., eds. Great
Dialogpes of Plato. Mentor Books. New York: The
New American Library of World Literature, Inc.,
1956.

 

Warner, Harry P. Radio and Television Law. Albany, New
York: Matthew Bender and Company, Inc., 1948.

 

 

Weinberg, Meyer. TV in America. New York: Ballantine
Books, 1962. .

Wertenbaker, Thomas Jefferson. The Puritan Oligarchy.
New York: Grosset & Dunlap, 1947.

Periodicals

 

"A Warning Of Laws on TV Violence and Sex." Broadcasting,
July 15, 1968, p. 68.

 

"Anti-Smut Backer." Broadcasting, December 12, 1966,
p. 10.

"Anything Goes: Taboos in Twilight." Newsweek, November
13, 1967, pp. 714-780

"BBC Ponders: How Much ShOuld the Telly Tell?" Broad-
casting, August 15, 1966, p. 77.

149

"Bell Freaks Out Over Spots for 'The Trip'." Broadcasting,
August 21, 1967, p. 36.

"Bergman's 'Adult' Films Now Available for TV." Broad-
casting, May 15, 1967, p. 10.

Bryant, Ashbrook. "Responsibility for Broadcast Matter."
Journal Of Broadcasting, V (Winter, 1960-61),

pp. 8-13.

"California Group Opposes Obscenity Proposition." Broad-
casting, October 17, 1966, p. 50.

 

Crist, Judith. "Movies, Where Anything Goes." Look,
January 1, 1968, pp. 22-25.

"Does First Amendment Protect Ads TOO?" Broadcasting,
December 19, 1966, p. 32.

"Does TelevisiOn Lack Courage?" Broadcasting, November
6, 1967, pp. 25-27.

Efron, Edith. "Can TV Drama Survive?" TV Guide,
September 25, 1965, pp. 8-12.

"Family Out of Uniform Gigged by Code Board." Broad—
casting, March 4, 1968, p. 44.

"Feature Good for Advertising." Broadcasting, October
3, 1966, p. 32.

Ferrer III, José M. "Courage at Last - or Just Bleeps?"
Life, April 12, 1968, p. 18.

"Film Supply Scarcer and Scarcer." Broadcasting, June
28, 1965, p. 27.

 

Frank, Stanley. "A Playwright Ponders A New Outline for
TV." TV Guide, October 8, 1966, pp. 7-10.

"Government and TV." Commonwealth, June 21, 1963,

"How Gamy Can You Get on TV?" Broadcasting, April 10,
1967, pp. 67-68.

"Loevinger Sees Public Taste as Self—Reflection." Broad-
casting, October 23, 1967, pp. 43-44.

Mannes, Marya. "The Networks and the FCC." The Reporter,
March 29, 1962, pp. 19-23.

150

Mayer, Martin. "The FCC; Part 1." TV Guide, November
19, 1966, p. 6-10.

 

"The FCC; Part 2." TV Guide, November 26, 1966,
pp. 16-18.
"Movies Hold Lead as Viewers' Favorites." Broadcasting,
November 6, 1967, pp. 40-41.

"Nation of Peeping Toms." America, National Catholic
Weekly Review, January 9, 1965, p. 38.

 

 

"New 'Trip' Spots OK." Broadcasting, September 4, 1967,
p. 42.

 

"'Psycho' Put on the Shelf." Broadcasting, September
26, 1966, p. 68-69.

 

Raddatz, Leslie. "Coming Attraction: Smut in the
Living Room?; Part 2 - 'Congress Will Not Stand
Idly By'." TV Guide, April 17, 1965, pp. 16-20.

 

"Coming Attractions: Smut in the Living Room?;
Part 3 - 'The Networks Ponder Where To Draw the
Line'." TV Guide, April 24, 1965, pp. 12-12.

 

"Radio, TV Praised for Sex-Related News." Broadcasting,
July 8, 1968, p. 46.

 

"Programming: Reasonable v. Raunchy." Time, February 9,
1968, p. 53.

Schickel, Richard. "Prurient Switch on a Classic."
Life, February 16, 1968, p. 6.

'"Second Thoughts on WCBS-TV Sex Series?" Broadcasting,
January 2, 1957, Do 9-

 

"Self-Regulation in Advertising." BrOadcasting, March
25, 1968, p. 30.

 

"Senate Approves Obscenity Commission." Broadcasting,
July 18, 1966, p. 50.

"Sex's Outer Limits." Time, March 29, 1968, p. 48.

"Sexy Movies Won't Get TV Play, Bell Warns." Broadcasting,
' November 13, 1967, p. 64.

 

"Shippers v. Snipers." Time, February 2, 1968, p. 57.

 

151

Spilker, Eric. "The Movies You Don't See On Television."
TV Guide, April 9, 1966, p. 6-8.

 

"Swedish Study Tests Impact of Violence on Youth."
Broadcasting, July-l8, 1966, p. 50. ‘

 

"The Widening Screen of TV Standards." Television, June,
1968, p. 68.

Whitney, Dwight. "Irreverent is the Word for the Smothers
Brothers." TV Guide, February 10, 1968, pp. 15-19.
Newspapers

"Archbishop Commends Film Code." The State Journal,
September 29, 1966, p. C-6.

Crowley, Raymond J. "Film Follows Footsteps of Book In

 

 

 

Censor Row." Kalamazoo Gazette, February 21, 1967,
p' I450
Peterson, Bettelou. "Your Comments on 'Sexy' Movies."
Detroit Free Press, November 4, 1967, p. ll—B
Shanke, Edwin. "Raise of Pornography Worrisome TO
Swedes." The State Journal, December 17, 1967,
p0 A-l2c

"TV Networks Challenged on Sex Show." The Kalamazoo
Gazette, September 17, 1966, p. 14.

Variety, April 4, 1962, p. 13.

Other

Helffrich, Stockton. "Continuity Acceptance Radio and
Television Report CART #2." Interdepartment Cor-
respondence sent to National Broadcasting Company
owngd and operated stations,New York, February 13,
195 .

Henry, E. William. Transcript of address presented before
National Association of Broadcasters, Chicago,
Illinois, March 29, 1966.

National Association Of Broadcasters. The Television Code
Of the National Association of Broadcasters. 11th
ed. Washington D.C., August, 1966.

152

National Association of Educational Broadcasters. "Legal
Commentary." NAEB Newsletter, March, 1968.

National Broadcasting Company. NBC Radio Television
Broadcast Standards and Practices.

Roper, Burns W. Emerging Profiles of Television and
Other Mass Media: Public Attitudes 1959-1967.
April 5, 1967. '

The Motion Picture Association Of America. The Motion
Picture Code of Self Regulation.

Winick, Charles. Taste and the Censor in Television. An
Occasional Paper on the role Of‘mass media in The
Free Society. Ann Arbor, Michigan: The Fund for
the Republic, Inc., 1959.

CASES CITED
American Civil Liberties Union v. Chicago 13 Ill. App.
2nd 278 (1957). ’

Audubon Films v. Board Of Regents, l5 N.Y. 2nd 802, 205
N.E. 2d 694 (1965).

 

 

 

Block V. Chicago, 239 I11. 251, 87 N.E. 1011 (1909).
Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).

Butler v. Michigan, 352 U.S. 380 (1957).

 

 

Capitol Enterprises v. Chicago, 260 F. 2d. 670, 674 (7th
Cir. 1958). ‘ .

Columbia Pictures v. Chicago, 184 F. Supp. 817 (N.D.
Ill. 1959).

 

Commercial Pictures Corp. v. Regents Of the University of
the State of New Yogk, 346 U.S. 587 (1954).

Commonwealth v. Gordon, 66 D.‘& C. 101 (1949).
Commonwealth v. Sharpless, 2 Sergeant-and Rawle 91 (1815).

Connection Co. v. Board of Regents, 17 App. Div. 617,
230 N.Y. S. 2d 103 3d Dep't 1962).

Doubleday and Companij. New York, 355 U.S. 848 (1948).

Excelsior Pictures v. Chicago, 182 F. Supp. 400 (N.D.
111. 1960).

Fanfare Films v. Motion Picture Censor Board, 234 Md. 10,
197 A. 2d 833 (1957).

Freedman v. Maryland, 380 U.S. 51 (1965).

 

 

Ge1ling V. Texas, 343 U.S. 960 (1952).
Gitlow v. New York, 268 U.S. 652 (1925).

153

 

154

reat Lakes Broadcasting Company(FRC, December 17, 1928),
rev'd on other grounds 59 App. D.C. 197, 37 F
(2d) 993.

Grove Press v. Christenberry, 175 F. Supp. 488 (1959).

 

Hannegan v. Es uire, 327 U.S. 146 (1946).
Holmby Productions v. Vau hn, 350 U.S. 870 (1955).

Interstate Circuit v. Dallas, 247 F. Supp 906 (N.D.
Tex. 1965).

 

Interstate Circuit v. Dallas, 366 F. 2d. 590 (5th Cir.
1966??

Interstate Circuit v. Dallas, 402 S.W. 2d 770 (Tex. Civ.
App. 1966).

 

 

Interstate Circuit, Inc. v. Ci_y of Dallas; United
Artists Cq_poration v. City of Dallas, 390 U. S.
676 (1968).

Jacobellis v. Ohio, 378 U. s. 184 (196A).

 

Janus Films v. Fort Worth, 354 S. W. 2d. 597 (Tex. Civ.
App. 1962), 35878. W. 2d 589 (1962).

KFKB Broadcasting Association,ylnc. v. Federal Radio
Commission, 60 App. D. C 79, 47 F. (2d) 670 (1931).

 

Kingsley International Pictures v. Board Of Regents, 360
U.S. 684 (1959).

Kovacs v. COOper, 336 U.S. 77 (1949).
Manuel Enterprises v. pr, 82 S. Ct. 1432 (1962).

Maryland Board of Censors v. Time Film Corp., 212 Md. 454,
129 A. 2d 833 (1957).

Mutual Film Corporation v. Ohio Industrial Commission,
236 U. s. 230 (1915)

National Broadcasting Company v. United States, 319 U.S.
190 (1963).

Near v. Minnesota, 283 U.S. 697 (1931).
One, Inc., v. Otto K. Oleson, 355 U.S. 371 (1958).

155

Pacifica Foundation, FCC Memorandum Opinion and Order,
36 FCC 147 (196A).

Palmetto BroadcastingyCompapy (Initial Decision of Hear-
ing Examiner), 33 FCC 265 (1961).

 

Palmetto Broadcasting Company, 33 FCC 250 (1962).

Paramount Film Distributing Corp. v. Chicago, 172 F.
Supp. 69 (N.D. Ill. 1959).

People v. Doris, l4 App. Div. 117, 43 N.Y.S. 571 (lst
Dept 1897).

Redup v. New York; Austin v. Kentucky: Gent v. Arkansas,
386 U.S. 767 (1967).

p. v. Hicklin, L.R. 3 QB. 360 (1868).

Robinson V. 399, 334 F. 2d 534 (1964).

 

Samuel Roth v. United States; David S. Alberts v. State Of
California, 354 U.S. 476 (1957).

 

 

 

Schenck v. United States, 249 U.S. 47 (1919).

Sunshine Book Co.,,et..al. v. Summerfield, 355 U.S. 372
(1958). .

Superior Films. v. Department of Education Commercial
Pictures v. Regents of the State of New York, 346
U.S.,587 (1953). -

Times Film Corp. V. City Of Chicago, 365 U.S. 43 (1961).

 

 

 

Trans-Lux Distributing Corp. v. Board Of Regents, 240 Md.
98, 213 A 2d 235 (1965).

Trinity Methodist Church,,South v. Federal_RadiO Commis-
sion, 61 App. D.C. 311, 62 F.6(2d) 850 (1932).

United States v. Dennett, 39 F. 2d 564 (1930).
United States v. Levine, 83 F 2d 156 (1946).

United States v. One Book Called "Ulysses", 5.F. Supp.
182 (1933).

United States v. One Book Entitled "Contraception", 51 F
2d 525 (1931).

 

156

United States v. One Carton Positive Motion Picture Film
Entitled "491", 247 F. Supp. 450 (S.D.N.Y. 1965),
367 F. 2d 889 (2nd Cir. 1966).

 

United States v. Kennerley, 209 F. 119 (1915).

 

‘ -~' ‘e

United States v. Paramount Pictures Inc., 334 U.S. 131
(1948). .

 

WBNX Broadcasting Company, Inc., 12 FCC 837 (1948).

Winters v. New York, 333 U.S. 507 (1948).

 

APPENDICES

‘\

APPENDIX A

The Motion Picture Association Of America

Production Code

 

The motion picture industry first began self-
regulation in the early 1920's as a result of intense
criticism by the public and government. A list Of
"don'ts" and "Be Carefuls," developed in 1927, led tO the
first Motion Picture Production Code in 1930. The origi—
nal code contained such headings as "Crime," "Brutality,"
"Religion," "Sex," "Vulgarity," "Obscenity," "Blasphemy
and Profanity,"‘and "Costumes."

In 1966 the Code underwent a complete change. Its
long and bulky standards were limited to ten brief para-
graphs:

The basic dignity and value of human life shall-- iii
be respected and upheld. Restraint shall be
exercised in portraying the taking Of life.

Evil, sin, crime and wrong-doing shall not be
justified.

Special restraint shall be exercised in portray—
ing criminal or anti-social activities in which
minors participate or are involved.

Detailed and protracted acts Of brutality, cruelty,

physical violence, torture, and abuse, shall not
be presented.

158

 

159

Indecent or undue exposure Of the human body
shall not be presented.

Illicit sex relationships shall not be justi-
fied. Intimate sex scenes violating common
standards of decency shall not be portrayed.
Restraint and care shall be exercised in pre-
sentations dealing with sex aberrations.

Obscene speech, gestures or movements shall not
be presented. Undue profanity shall not be

presented.
Religion shall not be demeaned.

Words or symbols contemptuous Of racial,
religious or national groups, shall not be
used so as to incite bigotry or hatred.

Excessive cruelty to animals shall not be por-
trayed and animals shall not be treated
inhumanely.

In 1968 the Code's authorities authorized the label-

ing of films with certain advisory ratings. The ratings

include, "G" films for general audiences; "M" for films

that are suggested for mature audiences; "R" for films to

which persons under sixteen will notvbe admitted unless

accompanied by a parent or guardian; and "X" for films to

which persons under sixteen will not be admitted.

s‘ s: “

 

‘-’--

-’ -

rig

APPENDIX B

The National Association of Broadcaster's

Television Code

The Television Code Of the National Association of

.9 4. I /.r r- {.1 z, 141 CI. ’4 LX110 ' ’I- 7 ’1' i 7,3" 1' (”FL/2‘7 j " 4.1;:
. - , y 1 - r ' ‘t‘ . J’ l .J’ -" ”If

at
0” ‘5‘, ‘ ' 1 1
Iptrq'lt Iv: .‘Ir Ir-I/I II. 1.5.", __‘1'

 

t: .- O ‘9 "' ‘ . u ’ - ‘ V". " .1 ' 4"! A I'TI‘
;, . -t has s-nce seen revised eleven times. lne

ination of the Code came from the precedents set by

the motion picture and radio industries. Below are

excerpts from the Code which deal with television's

resp

dire

onsibilities and program standards as they relate,
ctly and indirectly, to the treatment of sex:

Preamble - . . . It is the responsibility Of tele-
vision to bear constantly in mind that the audience
is primarily a home audience, and consequently that
television's relationship to the viewers is that
between guest and host.

He, [the television broadcaster] . . . is obligated
to bring his positive responsibility for excel-
lence and good taste in programming to bear upon
all who have a hand in the production Of programs,
including networks, sponsors, producers Of film

and of live programs, advertising agencies, and
talent agencies.

I.-Advancement of Education and Culture
(7) It is in the interest Of television as a
vital medium to encourage and promote the
broadcast Of programs presenting genuine
artistic or literary material, valid moral
and social issues, significant controver-
sial and challenging concepts and other

160

161

subject matter involving adult themes.
Accordingly, none Of the provisions Of
this code, including those relating to

the responsibility toward children,

should be construed to prevent or impede
their broadcast. All such programs, how-
ever, should be broadcast with due regard
to the composition Of the audience. The
highest degree of care should be exercised
to preserve the integrity of such programs
to ensure that the selection of themes,
their treatment and presentation are made
in good faith upon the basis Of true
instructional and entertainment values,
and not for the purpose of sensationalism,
to shock or exploit the audience or to '
appeal to prurient interests or morbid
curiosity.

II. Resppnsibility Toward Children
(2) Such subjects as violence and sex shall be
presented without undue emphasis and only
as required by plot development or char-
acter delineation.

O O O O O O O O O O O O O O O O O

(4) He should develop programs to foster and

' promote the commonly accepted moral, social
and ethical ideals characteristic Of
American life.

IV. General Program Standards
(2) Profanity, obscenity, smut-and vulgarity_are
. forbidden, even when likely to be under-
stood only by part Of the audience. From
time to time, words which have been accep-
table, acquire undesirable meanings, and
telecasters should be alert to eliminate
such words.

(16) Illicit sex relations are not treated as

' commendable. Sex crimes and abnormalities
are generally unacceptable as program
material.
The use of locations closely associated with
sexual life or with sexual sin must.be
governed by good taste and delicacy.

162

(28) The costuming of all performers shall be

.within the bounds of propriety and shall
avoid such exposure or such emphasis on
anatomical detail as would embarrass or
Offend home viewers.

(29) The movements Of dancers, actors, or other
performers shall be kept within the bounds
of decency, and lewdness and imprOpriety
shall not be suggested in the positions
assumed by performers.

(30) Camera angles shall avoid such views Of
performers as to emphasize anatomical
details indecently.

V. Treatment of News and Public Events News

(5) Good taste should prevail in the selec-
tion and handling Of news: Morbid, sensa-
tional or alarming details not essential
to the factual report, especially in con-
nection with stories Of crime or sex,
should be avoided. News should be tele-
cast in such a manner as to avoid panic
and unnecessary alarm.

IX. General Advertising Standards
(1) . . . The principles of acceptability and
good taste within the Program Standards
section govern the presentation Of adver-
tising where applicable.

Source. Television Code of the National Association
of Radio and Television Broadcasters (11th edition, August,
1966)

APPENDIX C

Sample Text of "Indecent" Material as

Cited in Palmetto Broadcasting Case

The following are selections from the Examiner's
Initial decision concerning Palmetto Broadcasting Co.,
33 FCC 250 (1962). The following is a reproduction Of
material broadcast by disc jockey Charlie Walker on
October 15 and 27, January 14 and 20, 1960 and on April
25, 1960 and generally represents the type Of material
broadcast over the station for a long period of time.

Next Saturday it is we gonna have the big grand
Opening over at the new W. P. Marshall store in
Greasy Thrill and we gonna come over there and
let it all hang out. Course if we let it all hang
out in Greeleyville, there ain't gonna be enough
room over there for nothin' else, is there?

If you're goin' to see a gal over in Poston you
got to go see her after it gets dark: I mean you
can't go over there in the daylight. And the
reason you can't go over there in the daylight is
because it is that them gals around Poston are so
wild, you know. They're so wild that you have to
sneak up on 'em in the dark * * * And the only
thing about sneaking up on 'em in the dark it is
that you is liable to make a mistake; well I mean
like I did one night, I thought I was sneaking up
on one of dem gals from Poston and I was sneaking
up on a cow. And do you know it is that I didn't
even know I had a cow until it is that it swatted
a fly Off the end of my nose with its tail. When
it swatted a fly off the end of my nose with its
tall I begin to get suspicious. I knew them gals
in Poston couldn't do that.

163

f-.-. M

164

Did you hear the one about the boy and the gal
in the cow pasture? He was really lovin' that gal
good. Boy he was lovin' that gal good. And it is
that he was.getting plenty whole-hearted coopera-
tion. He was. He was lovin' that Old gal good.
She was givin' him something besides lovin'. She
was givin' him whole-hearted cooperation. She
was. And he decided that this is the gal for me;
says "this is the gal I want to marry, right here."
So he came right out and asked her. He says;
"Darling," he says, "will you marry me?" And she
says, "well I don't know." She says, "tell me do
you want a home?" And he says, "honey," he says,
"I'm a regular home body." And she says, "And,
what about children?" And he says, "Oh," he says,
"Honey, I just love children." And she says,
"Well," she says, "in that case," she says, "I'll
marry you if you like children. We'll be in busi-
ness in about six months!" [Laughter.] They
gettin' a head start!

It is you give me barbecued iced water and a
green-eyed gal and I can go hard.

_ You hear 'bout de gal dat had a brand new boy
friend? And, well, it her brand new boy friend

* * * and her brand new boy friend he had been '
coming over to see her a while, you know, and de
gal's daddy decided that he'd better kinda lay

down the law, you know, to his daughter's new

boy friend, so he took the boy aside, you know,

and he says, "Son," he says, "a man," he says, "a
man should be the boss Of his house" * * * and, he
says, "I'm telling you, son, it won't take you long
to find out that I'm the one who'wears the pants in
this family." And, the daughter's new boy friend
.says, "Oh, no, sir," he says, "I know that," he
says, "I found it out last night, sir!" * * * And
in October already.

0 O O O O O O O O O O O O O O O C O O O O I O I - -.-- *-*-

I seen something last night that I wanted. I
wasn't tOO bashful to go get it, I was just tOO
smart. She had her husband with her. My mama
didn't raise no foolish young 'uns.

Betsy, you're not producing, you're not. Betsy
says give her time, she's not married yet. Now you
know what I'm talking about.

0 O O O O r O O O O O O O O O O O O O O O O O O O O O

165

I used to go with this gal that worked in that
five and dime over in Greeleyville and you know
it is that I'd take the gal out you know and
anytime it is I'd kiss the Old gal or hug her or
squeeze her or tease her she'd say "Will that be

all, sir?" You see that's what they say all day
long at the five and dime, will that be all, sir?

I broke her Of that habit though. It is that I
broke her Of that habit. It is that I got the
Ole gal to where she'd quit saying, "Will that

be all sir?" She started saying, "That's enough,
Charlie." You gotta break 'em.

You know they always told me if you had a prob-
lem the best thing to do was to go home and sleep
on it. It is. Now I'll give you Just three-
guesses what my problem is. I'll just give you
three guesses as to what my problem is [Recorded
girl's voice:] "Ain't you gonna kiss me" [Response
in male voice:] "U'nh-u'nh." Well, that's my
first problem right there. I get so tired Of
hearing that.

I used to go out with a gal cause she had plenty
of lovin' but now I go out with her cause she's got
plenty of patience.

I can remember back when I was single boy. It
is that my britches used to be wrinkled all the
time too, but the reason my britches was wrinkled
when I was single is because gals was always sittin'
on my lap and that's why it is that my britches
was always wrinkled. Man, times do change; Now
what I got in 'em's wrinkled.

I got some britches at home that it is that
if the crease in those britches could talk * * *
my wife woulda been done killed me a long time
ago (FCC exhibit 2).

Source of the above examples: Initial Decision Of
Hearing Examiner Thomas H. Donahue (Adopted December 8,

1961), Palmetto Broadcasting Co., 33 FCC 278,79,80,81.

 

”TIT WM] [1W ANAHEIM? ES