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By Root 1793 0

of violating the federal law against mailing “obscene” material. The Supreme Court affirmed his conviction. But the opinion of the Court left the issue unresolved, to say the least. The case pointed in two directions at once. On the one hand, it upheld the right to punish makers and sellers of obscene literature. Free speech had limits, and obscenity was outside the boundaries. But the Court did not do much of a job of defining obscenity. The best test Justice Brennan could come up with was this: Would “the average person” think that the “dominant theme of the material” was its appeal “to prurient interest”?

In 1966, the Supreme Court faced that formidable woman, Fanny Hill, heroine of John Cleland’s pornographic classic, Memoirs of a Woman of Pleasure. This famous book was written in 1750, which makes it somewhat older than the First Amendment itself. For more than two hundred years, it had an underground or semiunderground existence, circulating from clammy hand to clammy hand. Now, in the 1960s, it emerged into the sunshine, published by a reputable publishing house, endorsed as serious literature (of a minor sort) by various professors of English—but banned as obscene in Massachusetts. The Supreme Court disagreed with Massachusetts. Justice Brennan now came up with a stricter test: a “book cannot be proscribed unless it is found to be utterly without redeeming social value,” even if it is “patently offensive.” 130 Whatever the formula, the times were definitely changing. This was not a book like An American Tragedy, or even Ulysses; it was written precisely to stir up “prurient interests,” and its main defense was good English and two hundred years under its belt. Respectable opinion had changed since Fanny Hill first saw the light of day. The record showed, according to Justice Douglas, that when the book appeared boldly in public, in 1963, there was “an unusually large number of orders ... placed by universities and libraries,” and that the “Library of Congress requested the right to translate the book into Braille.”131

Fanny Hill’s victory was definitely a straw in the wind. The Supreme Court has been, on the whole, quite hostile to censorship disguised as antipomography. The day is past when bluenoses can freely use obscenity laws to suppress serious books. But the main source of change is not the courts, but society itself, which has become vastly more tolerant of sexual expression. Sex and the body are not secret subjects anymore. People say and do things on stage, in the movies, and in literature that would have been unthinkable a century ago—even a generation ago. Indeed today’s “normal” Hollywood movie has love scenes and “dirty” words that were taboo as recently as the fifties. An occasional skirmish between parents and teachers in a high school library is about all that remains of the Watch and Ward mentality. There are rumblings about TV and rock lyrics, and puffs of smoke from the Bible Belt, but (formal) censorship of anything but triple-X, hard-core pornography is completely dead. cw

Today, there are tons of books, magazines, plays, and movies that nobody would claim any value for as literature or anything else. Their value is that they are sexually exciting, period. Does anything go? In general, courts still find the issue of out-and-out hard-core pornography somewhat troubling. Judges and justices have gone this way and that, searching for the elusive “bright line,” the magic formula, or even a halfway, wishy-washy formulation, to serve as a legal “test” for what can or cannot be banned. They have never found one. Legal arguments have marched up one side of the hill, so to speak, and down the other. All one can say is that there is something called “obscenity,” but what it is, legally speaking, nobody really knows.

Does it depend on community standards? If so, prudery is in deep trouble. The public, not the courts, has set the trends. The reality is, sex magazines are on sale in drugstores and bookstores; they lie around on coffee tables and in barbershops. The normal fare goes beyond anything the