Is Nothing Obscene Any More?

PROBLEMS IN BED . . . were no problems at all to the members of East-port's highly secret suburban switch club. Who could have problems with eight beautiful, different women to choose from? For that was the lot of each man in this fantastic sex-prowling group. They lived a lust-ridden, lightning-fast, terrifying and sex-crammed . . . GAME OF WIFE SWAPPING!

Under Kansas' anti-obscenity law, the state attorney general was justified in seizing 1,715 such "nightstand books" from a paperback dealer in Junction City. Last month, however, the U.S. Supreme Court ruled the seizure unconstitutional. Also voided were Ohio's ban against an allegedly obscene French movie, The Lovers, and Florida's ban against Henry Miller's scatalogical novel, The Tropic of Cancer. The conflict between the court and the states raised a puzzling question: To what extent are there any more enforceable U.S. laws against obscenity?

Proof Needed. Answers are not easy. Although the First and 14th Amendments guarantee freedom of speech and press, the Supreme Court has cast obscenity outside these rights, just as it does incitement to violence or publication of military secrets. But one trouble is that many cities and states have tried to suppress smut even before it reaches the public. This the court calls "prior restraint," meaning that a state invades freedom of expression if it bans obscenity on such vague grounds as "objectionable" before proving its case in a legal hearing.

In last month's Kansas case, the court did not feel it even had to decide whether the seized books were actually obscene. Speaking for the court, Justice Brennan merely declared: "If seizure of books precedes an adversary determination of their obscenity, there is danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books."

The Roth Case. But what if a proper legal hearing does find obscenity, as did the Ohio Supreme Court with The Lovers? By what standard does the U.S. Supreme Court test the finding?

Precisely because the court has shorn obscenity of constitutional protection, it feels duty-bound to deal individually with all such cases that reach it. And however objective it tries to be, the court is mired in what Justice Brennan calls "a difficult, recurring and unpleasant task"--setting a national moral criterion for a people of widely diverse standards.

The court's current obscenity doctrine rests on a 1957 decision (Roth-Alberts) which upheld the conviction of two mail-order smut peddlers. At that time, the court explained that obscenity was material that was "utterly without redeeming social importance." The Roth test is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest," and whether, in addition, the material "goes substantially beyond customary limits of candor."

Roth failed to satisfy dissenting Justice Douglas, who argued that prurience is no sure test for sending errants to jail. "The arousing of sexual thoughts and desires happens every day in normal life in dozens of ways," said Douglas, citing stimulants from music to a woman's sight of a man. The court nonetheless retained its Roth rule last month as it brushed aside the ban on The Lovers, saying that the film contained merely one "explicit love scene in the last reel." In his dissent, Chief Justice Warren argued that local obscenity standards should still prevail because "there is no provable 'national standard.' " But the majority ruled: "It is, after all, a national Constitution we are expounding."

Resistance & Surrender. Local diversities are likely to remain. Just before the court summarily reversed Florida's ban on The Tropic of Cancer last month, for example, the Illinois Supreme Court (disagreeing with Wisconsin, California and Massachusetts) ruled the book obscene under the Roth test. Chicago prosecutors next week will spend several days reading Fanny Hill aloud to jurors hearing the case of a book dealer arrested for selling those 18th century "memoirs."

Illinois courts generally take a strait-laced view of such literature, but the probable test of Fanny Hill in the U.S. Supreme Court would be whether it is "hardcore pornography," which is unquestionably illegal. But what is hardcore? Justice Potter Stewart says only, "I know it when I see it." One expert opinion calls it "a succession of increasingly erotic scenes without distracting non-erotic passages." In the Roth case, the U.S. Solicitor General described the "worst" of hard-core pornography as movies showing "people of both sexes engaged in orgies" that include "every form of sexual activity known."

In the Kansas book case, Justices Black and Douglas nonetheless implied that all censorship of any sort is unconstitutional. So too argues Los Angeles Lawyer Stanley Fleishman, who won the case. As he sees it, all obscenity laws are doomed because the Supreme Court has now passed such books as Tropic. "To be obscene," says Fleishman, "a book has to go significantly beyond what has already been declared not obscene, and that is impossible. You can't talk about sex any more frankly than is being done now."

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