Second Thoughts on Obscenity

For judges faced with the problem of defining the "dim and uncertain" line between obscenity and constitutionally protected free expression, the Supreme Court has painfully worked out a combination of three tests:

> Whether the material is "utterly without redeeming social importance."

> "Whether to the average person, ap plying contemporary community stand ards, the dominant theme taken as a whole appeals to prurient interest."

> Whether it also "goes substantially beyond customary limits of candor" to the point of "patent offensiveness."*

Unfortunately, no two judges can be counted on to read the test results the same way. After judging John Cleland's 200-year-old Memoirs of a Woman of Pleasure, better known as Fanny Hill, the New York Court of Appeals recently cleared the all-time erotic bestseller on the ground of "literary value." Applying the same tests to the same book, courts in Rhode Island and Massachusetts banned it. Last week the banners were joined by New Jersey's Bergen County Superior Court Judge Morris Pashman, who found Fanny "sufficiently obscene to forfeit the protection of the First Amendment." Fanny Hill's U.S. publisher, G. P.

Putnam's Sons, had asked Judge Pashman to enjoin the county prosecutor from blocking sale of the book in New Jersey under a law that bars distribution of "obscene, lewd, lascivious, filthy or indecent" material. The usual parade of witnesses--psychiatrists as well as literary critics--argued that Fanny Hill contained not a single four-letter word. But Judge Pashman was not impressed.

Though "sex is not synonymous with obscenity," he said, Fanny Hill makes it so. "Free rein," Judge Pashman added, "should not be given under the guise of constitutional guarantees to vilely depict perversions and sexual adventures as John Cleland saw fit 200 years ago. This is not the way to a better constitutional world; it is rather the path to decay and decline. The Constitution should not be the sword of the shameful profiteer of filth. It must be the shield to protect our sense of moral decency." Next testing station: the New Jersey Supreme Court, which will have to read Fanny all over.

*A fourth, unofficial test involves "hardcore pornography," described by one expert as "a succession of increasingly erotic scenes without distracting nonerotic passages."

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