Attorney General v. Book Named "Tropic of Cancer."

Citations: 184 N.E.2d 328; 345 Mass. 11; 1962 Mass. LEXIS 639

Court: Massachusetts Supreme Judicial Court; July 17, 1962; Massachusetts; State Supreme Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The Supreme Judicial Court of Massachusetts addressed a case involving the book "Tropic of Cancer" by Henry Miller, published by Grove Press, Inc., under G.L.c. 272. 28C-28G. The Attorney General sought to classify the book as obscene, leading to its distribution being enjoined. The interveners, including Miller and Grove, contended that the statute violated their constitutional rights under the First Amendment and the Massachusetts Constitution. 

The trial judge found the book to contain explicit sexual content, describing it as filthy and offensive, despite some literary experts recognizing its merit. Ultimately, the trial court adjudged "Tropic of Cancer" to be obscene, a decision that the interveners appealed. The court noted the standard for obscenity, referencing Roth v. United States, which emphasizes whether material appeals to prurient interests based on contemporary community standards. The definition of obscenity was clarified, highlighting that works with redeeming social importance are protected under the First Amendment unless they infringe on more significant interests.

The court articulated that obscenity lacks redeeming social importance and is not protected by the First Amendment. The Roth case established several key principles regarding obscenity: 1) Hardcore, commercial pornography is not protected. 2) The depiction of sex in art, literature, or scientific works does not inherently disqualify material from First Amendment protection. 3) Determining whether a work is obscene involves a constitutional judgment rather than a factual issue. 4) Material must be assessed based on its effect on the "average person" and whether its dominant theme appeals to prurient interest. 5) A work cannot be deemed obscene solely based on widespread objection from the public. The Supreme Court's interpretation of obscenity is informed by its decisions in previous cases, like Kingsley Books, which upheld injunctions against clearly obscene materials, and other cases that reversed lower court decisions involving various types of material deemed obscene. In Kingsley Intl. Pictures Corp. v. Regents of the Univ. of N.Y., the court did not rule on the obscenity of the film "Lady Chatterley's Lover," but noted that New York's actions prevented its exhibition due to its advocacy of ideas, rather than obscenity itself.

The First Amendment protects a wide range of expressions, including unconventional opinions such as the acceptability of adultery, alongside more mainstream ideas like socialism. In Manual Enterprises, Inc. v. Day, the Supreme Court reversed a lower court's decision that upheld a U.S. Postal Service ban on magazines featuring nude male models, which were deemed to appeal to homosexuals and the "prurient interest," suggesting they lacked literary or scientific merit. The Court noted that while the magazines may not interest sexually normative individuals, their content still fell under First Amendment protections. Previous cases, such as Grove Press, Inc. v. Christenberry, indicated that not all sexually explicit material is considered obscene, with obscenity laws focusing on hard-core pornography devoid of artistic or scientific value, as interpreted by the New York Court of Appeals. The Supreme Court has not precisely defined the boundary between protected expression and obscenity, yet it acknowledges that material with significant ideas, news, or artistic value should be protected. The court emphasized that if the overall appeal of material to adults is not primarily prurient, it cannot be denied to them. The principle that First Amendment guarantees take precedence is reinforced by the risks associated with censorship and subjective judgments.

Only predominantly "hard core" pornography lacking redeeming social significance is deemed obscene under constitutional standards, as established in the Richmond County News case. The Attorney General's arguments largely reference earlier Massachusetts cases from 1945 and 1950, which predate the Roth decision; however, more recent Supreme Court rulings take precedence on constitutional matters. The determination of whether Tropic is "obscene" must consider its overall appeal to the normal adult, rather than focusing merely on its vulgar content. The presence of offensive language or themes does not negate its entitlement to constitutional protection. Judges should not act as arbiters of taste, and authors have the latitude to use vulgarity in their artistic expression. The court recognizes that Tropic has a serious literary purpose, despite differing opinions on its value. A majority of the court believes that the book's primary effect is not prurient and may even discourage lustful thoughts. Previous censorship attempts against Tropic have been noted, including a customs prohibition that was later withdrawn. A court ruling in Illinois found the book not obscene, while a Pennsylvania court reached the opposite conclusion. Ultimately, the court concludes that Tropic is not "obscene" in a constitutional sense and emphasizes that the decision is grounded in First Amendment protections, clarifying that any potential review will focus solely on this federal issue.

Prosecution under G.L.c. 272, § 28 for selling obscene materials to minors is not at issue in this case. The court reverses the final decree, ruling that "Tropic of Cancer" is protected under the First Amendment and cannot be deemed obscene under G.L.c. 272, §§ 28C, 28E, and 28F. The book's explicit sexual content, while persistent, does not warrant its classification as obscene. The majority opinion suggests that this decision may prompt a legislative review of existing obscenity laws. The Reporter’s Note indicates that other jurisdictions have also addressed "Tropic of Cancer," highlighting its ongoing legal significance. Key sections of G.L.c. 272 outline the process for defining and adjudicating obscenity, emphasizing the need to consider the material's overall impact on adult audiences and its specific targeting of minors.

Section 251.4 of the proposed final draft of the code, approved in May 1962, stipulates that material can only be deemed "obscene" if it predominantly appeals to prurient interests and also substantially exceeds customary limits of candor in its depictions. The code rejects the broad tendency test for obscenity, arguing it is impractical in a society that accepts a significant amount of erotic content in literature and art, and raises constitutional concerns regarding the regulation of thought unlinked to overt misconduct. In the Roth case, the government classified allegedly obscene materials into three categories: serious literary novels, borderline entertainment (e.g., magazines and cartoons), and hard-core pornography, which lacks literary merit. The government presented seized items as evidence, primarily of the hard-core type.

The case of Butler v. Michigan highlighted the problematic nature of restricting adult access to literature deemed inappropriate for youth, infringing on individual liberties protected by the Due Process Clause. Subsequent cases post-Roth, such as Adams Newark Theater Co. v. Newark and Times Film Corp. v. Chicago, provided limited insights on obscenity issues. In Smith v. California, the court invalidated a city ordinance penalizing possession of obscene books without knowledge of their contents. Justice Harlan asserted that the determination of obscenity should be based on a national standard and concluded that the material in question did not violate obscenity laws. Different justices concurred on various grounds without addressing the obscenity issue directly.

The Richmond News case addressed statutory interpretation and First Amendment boundaries, concluding that certain material, though deemed tawdry, cannot be classified as obscene without undermining freedom of expression. Expert testimony, including insights from Professor Levin, suggested the author's negative portrayal of sex and Western culture, indicating the work is not intended to incite lust but to critique societal decay. Other experts recognized literary merit in the book, while differing interpretations of its thesis emerged, particularly regarding societal values and their impact on life. The majority opinion of the court, influenced by recent Supreme Court decisions, particularly Roth v. United States, deemed Massachusetts laws regarding obscenity as inconsistent with the First Amendment. The court noted the ambiguity of the Roth case as a guiding precedent and expressed a belief that the Supreme Court should clarify whether access to the book is constitutionally protected. The opinions from this case included a majority decision, a concurring opinion, and dissenting views, reflecting a complex deliberation on the intersection of literature, morality, and constitutional rights.