Memoirs v. Massachusetts 1966
Memoirs v. Massachusetts 1966
Appellants: A book named John Cleland's Memoirs of a Woman of Pleasure, et al.
Appellee: William I. Cowin, Assistant Attorney General of Massachusetts
Appellants' Claim: That the Supreme Judicial Court of Massachusetts erred when it decided that a book called Memoirs of a Woman of Pleasure (more popularly known as Fanny Hill) was obscene and not protected by the freedom of speech.
Chief Lawyer for Appellants: Charles Rembar
Chief Lawyer for Appellee: William I. Cowin, Assistant Attorney General of Massachusetts
Justices Dissenting: Tom C. Clark, John Marshall Harlan II, Byron R. White
Date of Decision: March 21, 1966
Decision: Because the Supreme Judicial Court of Massachusetts admitted that Fanny Hill had some literary value, its decision that the book was obscene was in error. The Supreme Court sent the case back to Massachusetts for a retrial.
Significance: After Memoirs, the freedom of speech protected offensive books about sex unless they had absolutely no literary value.
Around 1750, John Cleland wrote a novel called Memoirs of a Woman of Pleasure. The book eventually became known as Fanny Hill, the name of the book's main character. In the novel, Fanny Hill is a young woman who becomes a prostitute, which is someone who has sexual intercourse for money. The novel contains over fifty descriptions of sex that are offensive to many people. By the end of the novel, Fanny Hill discovers that sex without love is meaningless, so she marries her first lover.
In 1957, the U.S. Supreme Court decided obscenity is not protected by the freedom of speech under the First Amendment. That meant state and federal governments could ban the publication of obscene books without violating the First Amendment. At the time, the Supreme Court defined obscenity as material that depicts sex in an offensive, worthless manner.
Literature or smut?
In the mid-1960s, G.P. Putnam's Sons published Fanny Hill in America. At that time, Massachusetts had a law that allowed the state to file a lawsuit against a book to have it declared obscene. In effect, the state could sue the book. If a court found the book obscene, the state could stop it from being published. Massachusetts Assistant Attorney General William I. Cowin filed such a lawsuit against Fanny Hill. G. P. Putnam's Sons intervened, which means joined the lawsuit, to defend its right to publish the book.
At the book's trial, the judge heard evidence to determine if Fanny Hill was obscene. Some witnesses testified that Fanny Hill was nothing but a worthless, offensive book about sex. Many professors from well known colleges and universities, however, testified in favor of the book. They called it a "work of art" having "literary merit" and "historical value." One witness said Fanny Hill is a piece of "social history of interest to anyone who is interested in fiction as a way of understanding society in the past." Another witness said the book "belongs to the history of English literature rather than the history of smut."
The trial judge rejected the testimony in favor of the book. Instead he ruled that Fanny Hill was obscene because it appealed to abnormal sexual desire, was sexually offensive, and was "utterly without redeeming social importance." G. P. Putnam's Sons appealed to the Supreme Judicial Court of Massachusetts. That court said the professors' testimony proved that Fanny Hill had some literary value. The court ruled in favor of Massachusetts, however, saying the book need not be completely worthless to be obscene. G. P. Putnam's Sons appealed to the U.S. Supreme Court.
With a 6–3 decision, the Supreme Court ruled in favor of the book. The six justices who voted in favor of the book, however, could not agree on a reason for their decision. Many of them wrote separate opinions explaining their votes. Justice William J. Brennan, Jr., delivered the Court's decision and wrote an opinion for himself and for Justice Abe Fortas and Chief Justice Earl Warren.
According to Justice Brennan, the Supreme Judicial Court of Massachusetts was wrong when it said a book does not have to be completely worthless to be obscene. Brennan said that to be obscene and thus not protected by the First Amendment, a book must appeal to abnormal sexual desire, be offensive, and be completely worthless. Because the Massachusetts court admitted that Fanny Hill had some literary value, its decision that the book was obscene was wrong. The Supreme Court sent the whole case back to Massachusetts for another trial.
Three justices wrote dissenting opinions, meaning they disagreed with the Court's decision. Justice Tom C. Clark voiced the strongest objection. He disagreed that a book had to be completely worthless to be obscene. Clark said the Court's decision would protect worthless material as long as it is well written. Clark feared this would prevent the states from fighting against criminal sexual behavior, such as rape, that many people think is caused by obscene material. As Justice Clark put it, the Court's decision "gives the smut artist free rein to carry on his dirty business."
Memoirs is one of many Supreme Court decisions to wrestle with the definition of obscenity. The Supreme Court's most recent definition is in Miller v. California (1973). There the Supreme Court said obscenity is material that (1) appeals to abnormal sexual desire, (2) is sexually offensive, and (3) taken as a whole, lacks literary, artistic, political, or scientific value.
At that point, Justice Brennan, who wrote the Court's decision in Memoirs, decided it was impossible for the justices to agree on a definition obscenity. Without a definition, it is impossible for people to know what obscenity laws prohibit and what they allow. For this reason, Brennan concluded that laws banning obscenity are unconstitutional. The Supreme Court, however, still says obscenity is not protected by the freedom of speech, and it still uses the Miller test to determine what is obscene.
The story of Salman Rushdie explains why the United States protects the freedom of speech. Rushdie is an Indian novelist who published The Satanic Verses worldwide in 1988. The book is a novel about good and evil that refers to many aspects of Islam, the religion practiced by Muslims. In The Satanic Verses, a major character named Mahound resembles the Islamic prophet Mohammed.
Many Muslims considered The Satanic Verses to be an insult to their religion. Ayatollah Khomeni, the leader of Iran, was particularly insulted. He called The Satanic Verses blasphemy, an Iranian crime punishable by death, and issued a death sentence for Rushdie. Khomeni said every Muslim must use "everything he has, his life and wealth, to send [Rushdie] to hell."
Rushdie reacted by hiding in Great Britain, where he had lived since 1966. Meanwhile, the Iranian government called for every copy of The Satanic Verses in the world to be seized and burned. It was an extreme but real example of what can happen in a country that does not protect the freedom of speech.
Suggestions for further reading
Evans, J. Edward. Freedom of Speech. Minneapolis: Lerner Publications, Inc., 1990.
Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.
King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.
Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.
Noble, William. Bookbanning in America. Middlebury: Paul S. Eriksson, 1990.
Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.
Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.
The World Book Encyclopedia, 1997 ed., entry on "Rushdie, Salman." Chicago: World Book, 1997.
Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.