For reversal -- Chief Justice Weintraub and Justices Jacobs, Proctor, Goldmann, Schettino and Haneman. For affirmance -- Justice Francis. Francis, J. (dissenting).
The Superior Court, Chancery Division, enjoined G. P. Putnam's Sons from publishing, selling or distributing in New Jersey John Cleland's Memoirs of a Woman of Pleasure, more commonly known as Fanny Hill. The injunction was based upon that court's finding that the book is obscene. G. P. Putnam's Sons v. Calissi, 86 N.J. Super. 82 (Ch. Div. 1964). G. P. Putnam's Sons appealed to the Appellate Division and we certified before argument there.
Under the standards enunciated by the United States Supreme Court, it must be concluded that publishing, selling, or distributing the book in question is protected from governmental supression by the First and Fourteenth Amendments. Redrup v. New York, 386 U.S. 767, 87 S. Ct. 1414, 18 L. Ed. 2 d 515 (1967); see A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2 d 1 (1966); see also Potomac News Co. v. United States, 389 U.S. 47, 88 S. Ct. 233, 19 L. Ed. 2 d 46 (Oct. 23, 1967), reversing 373 F.2d 635 (4 th Cir. 1967); Central Magazine Sales Ltd. v. United States, 389 U.S. 50, 88 S. Ct. 235, 19 L. Ed. 2 d 49 (Oct. 23, 1967), reversing 373 F.2d 633 (4 th Cir. 1967).
Accordingly, the judgment of the Chancery Division is reversed.
FRANCIS, J. (dissenting). I would affirm the judgment substantially for the reasons expressed by the Chancery Division. Applying the recent refinement of the test of obscenity promulgated by the United States Supreme Court, in my judgment (1) the dominant theme of the material in Fanny Hill taken as a whole appeals to a prurient interest, (2) the material is patently offensive because it affronts
contemporary community standards relating to the description or representation of sexual matters, and (3) the material is utterly without redeeming social value. See A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General, 383 U.S. 413, 418, 86 S. Ct. 975, 16 L. Ed. 2 d 1 (1966). This test, although expounded on the appeal from the judgment of the Massachusetts Supreme Judicial Court, which had condemned the book as obscene, actually was not applied by the United States Supreme Court in the case. The reversal and remand were ordered because, according to the plurality opinion, the state court had misinterpreted the third of the three criteria, which the opinion said must co-exist if a novel is to be declared obscene. Consequently, there was no occasion to decide if the dominant theme is an appeal to a prurient interest, or whether it affronts contemporary community standards relating to the description or representation of sexual matters.
Mr. Justice Clark did review the book, and in his dissent, with which I heartily agree, he found it to be beyond the limits of constitutional protection when judged by any one or all three of the components of obscenity. 383 U.S., at pp. 441-455, 86 S. Ct. 975. The Justice pointed out that 200 of the book's 210 pages are devoted to Fanny Hill's experiences in a house of prostitution, and he said:
"* * * This is presented to the reader through an uninterrupted succession of descriptions by Fanny, either as an observer or participant, of sexual adventures so vile that one of the male expert witnesses in the case was hesitant to repeat any one of them in the courtroom. These scenes run the gamut of possible sexual experience such as lesbianism, female masturbation, homosexuality between young boys, the destruction of a maidenhead with consequent gory descriptions, the seduction of a young virgin boy, the flagellation of male by female, and vice versa, followed by fervid sexual engagement, and other abhorrent acts, including over two dozen separate bizarre descriptions of different sexual intercourses between male and female characters. In one sequence four girls in a bawdy house are required in the presence of one another to relate the lurid details of their loss of virginity and their glorification of it. This is followed the same evening by 'publick trials' in which each of the four girls engages in sexual intercourse with a different man while the others witness, with Fanny giving a detailed description of the movement and reaction of each couple." 383 U.S., at pp. 445-446, 86 S. Ct., at 991.
The cover of the book solicits the prospective buyer with the announcement that its sale has finally been permitted "after 214 years of suppression." And the introduction repeatedly tells the reader that he may expect graphic descriptions of genitals and sexual exploits. 383 U.S., at p. 454, 86 S. Ct., at p. 995. The publisher of the present edition describes the book as "frankly erotic." In the introduction to the paperback edition, Peter Quennell says it is a "priapic novel" which "treats of pleasure as the aim and end of existence, and of sexual satisfaction as the epitome of pleasure." In the introduction of the only other book written by Cleland, Fanny Hill is labeled as "the most sensational piece of erotica in English literature." Obviously Cleland had no illusions about the kind of novel he was writing. The publisher tells us in the present edition that the author, a "never-do-well bohemian," wrote it in 1749 to make a quick 20 guineas, and in the succeeding more than two centuries since its first appearance, it has had, for the most part, occasional but surreptitious publication. As an indication of the feeling of his contemporaries about his effort, Loth in The Erotic in Literature (Julian Messner, Inc. 1961) records that when Cleland was called before the Privy Council for authoring the book, the Earl of Granville "offered to obtain for the still impecunious author a pension of one hundred pounds a year if he would undertake never to write this sort of story again." (at p. 111).
Massachusetts has the virtue of consistency. In 1821 in the first reported decision of censorship of a book for obscenity in the United States, the Supreme Judicial Court of that commonwealth affirmed the conviction of one Peter Holmes for publishing Fanny Hill. Commonwealth v. Holmes, 17 Mass. 335 (1821). One hundred forty-four years later the same court again found the book pornographic. Attorney General v. A Book Named "John Cleland's Memoirs of a Woman of Pleasure ", 349 Mass. 69, 206 N.E. 2 d 403 (1965). In doing so, the ...