The controversy presently before the court involves an application by the Prosecutor of Bergen County for injunctive relief against G. P. Putnam's Sons, the publisher and distributor of John Cleland's Memoirs of a Woman of Pleasure , more commonly known as Fanny Hill. Although the case was initiated by the publisher, who sought certain injunctive relief against the prosecutor, both parties have agreed that this court should treat the prosecutor as the moving party.
The statutory basis for the relief sought by the prosecutor is found in N.J.S. 2A:115-3.5, which provides, in part, that:
"The county prosecutor * * * in any county * * * in which a * * * corporation sells or distributes or is about to sell or distribute * * * any book, * * * or any written or printed matter of an indecent character, which is obscene, lewd, lascivious, filthy or indecent or which contains an article or instrument of indecent or immoral use or purports to be for indecent or immoral use or purpose, may maintain an action for a judgment granting relief in the nature of injunctive relief against such * * * corporation in the Superior Court to prevent the sale * * * or the distribution * * * of any book * * * of an indecent character, herein described."
The publisher has conceded that the legislatively prescribed procedure found in N.J.S. 2A:115-3.5, does not, in itself, violate any of its constitutionally guaranteed rights. Cf. Kingsley Books, Inc. v. Brown , 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2 d 1469 (1957). It is argued, however (quite correctly), that the substantive application of this statute must accord with the federal constitutional standards enunciated by the Supreme Court of the United States in the free speech-obscenity area. See, e.g. Roth v. United States , 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2 d 1498 (1957); Manual Enterprises v. Day , 370 U.S. 478, 82 S. Ct. 1432, 8 L. Ed. 2 d 639 (1962); and Jacobellis v. State of Ohio , 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2 d 793 (1964).
The highest judicial tribunal of this nation has observed that the line separating obscenity from constitutionally protected expression is "dim and uncertain." See Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 66, 83 S. Ct. 631, 9 L. Ed. 2 d 584 (1963). However, as Justice Proctor, speaking for our Supreme Court, observed in State v. Hudson County News Co. , 41 N.J. 247 (1963):
"* * * the guidelines established initially in Roth and clarified in Manual Enterprises v. Day * * * are the best determinants available to a court in reaching its decision whether particular material is obscene by constitutional standards." (at p. 255)
Defendant in Roth v. United States, supra , was charged with having violated federal and state obscenity statutes. Mr. Justice Brennan, speaking for the majority of the court, repeatedly emphasized the broad protective scope of the First Amendment, stating in one passage that
"All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." (354 U.S. , at page 484, 77 S. Ct. , at page 1309)
In formulating a workable test of obscenity, the majority in Roth held that a court should inquire "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." 354 U.S. , at page 489, 77 S. Ct. , at page 1311. Finally, the court observed in a footnote that there is no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I. Model Penal Code , § 207.10(2) (Tent. Draft No. 6, 1957), viz.:
"* * *. A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e. , a shameful or morbid interest in
nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or misrepresentation of such matters. * * *" 354 U.S. , at page 486, 77 S. Ct. , at page 1310, Note 20
Several years after Roth was decided, the Supreme Court in Manual Enterprises v. Day, supra , held that the conclusion that literature is obscene and therefore not entitled to the protective cloak of the First Amendment requires a finding that the challenged material is patently offensive as well as having its predominant appeal to prurient interest. In the words of the Court:
"* * * 'Material is obscene if, considered as a whole, its predominant appeal is to prurient interest * * * and if in addition it goes substantially beyond customary limits of candor in describing or representing such matters.' * * *
Obscenity under the federal statute thus requires proof of two distinct elements: (1) patent offensiveness; and (2) 'prurient interest' appeal. Both must conjoin before challenged material can be found 'obscene' * * *. In most obscenity cases, to be sure, the two elements tend to coalesce, for that which is patently offensive will also usually carry the requisite 'prurient interest' appeal. * * *" 370 U.S. , at page 486, 82 S. Ct. , at page 1436.
In the latest case dealing in what has been appropriately termed a "grey area," cf. State v. Hudson County News Co., supra , 41 N.J. , at page 254, Mr. Justice Brennan, speaking for the court, stated that
"The question of the proper standard for making [a determination as to whether certain material is constitutionally protected] has been the subject of much discussion and controversy since our decision in Roth-Alberts seven years ago. Recognizing that the test for obscenity enunciated there -- 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,' * * * is not perfect, we think any substitute would raise equally difficult problems, and we therefore adhere to that standard. We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is 'utterly without redeeming social importance,' and that '[t]he portrayal of sex, e.g. , in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.' * * * It follows that material dealing with sex in a manner that advocates ideas, * * * or that has literary or scientific or artistic value or any
other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a 'weighing' of its social importance against is prurient appeal, for a work cannot be proscribed unless it is 'utterly' without social importance. * * * It should also be recognized that the Roth standard requires in the first instance a finding that the material 'goes substantially beyond customary limits of candor in description or representation of such matters.' * * * In the absence of such a deviation from society's standards of decency, we do not see how any official inquiry into the allegedly prurient appeal of a work of expression can be squared with the guarantees of the First and Fourteenth Amendments. [citing Manual Enterprises, supra ]." Jacobellis v. State of Ohio , 378 U.S. , 184, at p. 191, 84 S. Ct. 1676, at p. 1680, 12 L. Ed. 2 d 793, at p. 799 (1964).
The court in Jacobellis also held that the phrase "contemporary community standards" contemplates a national standard of decency and not a local one. See also State v. Hudson News Co., supra , 41 N.J. , at pages 263-264. In rejecting the reading of Roth which tested obscenity by the standards of the particular local community in which a case is instituted, Justice Brennan referred to the opinion of Judge Learned Hand in United States v. Kennerley , 209 F. 119, 121 (D.C.S.D.N.Y. 1913), concluding that
"It seems clear that * * * Judge Hand was referring not to state and local 'communities,' but rather to 'the community' in the sense of 'society at large; * * * the public, or people in general.' Thus, he recognized that under his standard the concept of obscenity would have 'a varying meaning from time to time' -- not from county to county, or town to town.
"We do not see how any 'local' definition of the 'community' could properly be employed in delineating the area of expression that is protected by the Federal Constitution. MR. JUSTICE HARLAN pointed out in Manual Enterprises, Inc. v. Day , * * * that a standard based on a particular local community would have 'the intolerable consequence of denying some sections of the country access to material, there deemed ...