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Memoirs v. Massachusetts

This is the third in my series of Supreme Court cases related to pornography. Previously I covered Roth v. United States, which set the first US Federal standard for pornography, and Jacobellis v. Ohio from which the famous “I know it when I see it” quote came.

Memoirs v. Massachusetts, 1966

Official citation and full opinion text: 383 U.S. 413

“A book cannot be proscribed unless it is found to be utterly without redeeming social value. […]”

Justice Brennan in the plurality opinion for Memoirs

“It presents nothing but lascivious scenes organized solely to arouse prurient interest and produce sustained erotic tension.”

Justice Clark in his dissenting opinion for Memoirs

“You may guess then in what a curious pickle those soft flesh-cushions of mine were…”

Memoirs of a Woman of Pleasure (aka, Fanny Hill)

Memoirs v. Massachusetts is one of the landmark Supreme Court cases on obscenity. It did not introduce a new definition overall, but added an important sub-test to the one from Roth and established an important precedent: some obscene material has social value. 

Unlike Jacobellis (two years earlier) or Roth (nine years earlier), there is no debate about ‘how do we define obscenity’ or ‘what even is porn.’ The content here is clearly pornographic – the question is what to do about it.

Also in 1966: President Lyndon B. Johnson vastly expanded the US presence in Vietnam, where napalm and Agent Orange were in active use. Anti-war protests escalated, and four men were arrested for burning their draft cards on the steps of the South Boston Courthouse. This case eventually escalated to the Supreme Court, where United States v. O’Brien decided that it was lawful to arrest them even though burning a draft card qualified as free speech. The Beatles made their famous claim, “We’re more popular than Jesus now,” pissing off a lot of Christians. The Black Panther Party, the Chevrolet Camaro, the Church of Satan, and Best Buy all made their debut. The internet did not exist.

The case

Attorney General [of Massachusetts] v. A Book Named “John Cleland’s Memoirs of a Woman of Pleasure”

Unusually, the defendant in this case was a book, not a person or company. Massachusetts State Law allows this under Chapter 272, which is charmingly titled “CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER.” (that would make a bangin’ party title, take note for when we’re allowed to have those again)

A quick scroll through the section titles under Chapter 272 reveals a wide variety of crimes under this heading, from very serious to petty and comedic.

  • Section 4A: Inducing minor into prostitution
  • Section 25: Obstructing view of restaurant or tavern patrons
  • Section 41: Disturbance of Libraries

Fun fact: Section 34 of Chapter 272, “Crime against nature,” is currently interpreted as making bestiality illegal, but until 2002 was also interpreted as an anti-sodomy law. 

“Whoever commits the abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years.”

The entirety of MA Law Chapter 272, Section 34

Yes. Gay sex and bestiality were literally defined as the same thing.

ANYWAYS, back to this case. (I get very distracted by weird law shit. Should I go to law school? …nah.)

Section 28C (still on the books today) allows the Attorney General to call out a book as obscene, after which a public notice goes out, and if no one challenges, it just gets banned. If someone does challenge, it goes to court, which is what happened in this case. The book in question was published in 1749 so the author is long gone, but a modern publisher, G.P. Putnam’s Sons, stepped up to make the case.

The local and state appeals court both found the book to be obscene, so the publisher appealed again to the Federal Supreme Court on First Amendment grounds.

The content

The book in question is Memoirs of a Woman of Pleasure by John Cleland, often referred to as Fanny Hill after the name of the main character. According to Wikipedia, this book is considered the first original English prose pornography and the first overall novel-format pornography.

In very short summary: It is the story of an English girl who becomes a sex worker and has a wide variety of sex adventures which are described in great detail. It is written in her first-person perspective but is authored by a man for consumption by men.

Early cover, from Wikipedia
Modern cover, from Amazon

Yes you can still buy modern editions, but fucking don’t because it was written almost 300 years ago and the copyright is hella out of date. Get it free from Project Gutenberg

The original, and the edition that was challenged in this case, are text-only but many illustrated editions have been produced over the years. I’m not going to include any in this blog post because I don’t have my NSFW filter working at the moment, but if you’re interested in seeing some just click here. (if you don’t see any explicit victorian sex art, you’ve got safe search on)

Because I am a dedicated researcher and take my writing seriously, I read the entirety of this several hundred page erotic novel. Yes, I know, I’m so selfless. I do it for you, boo.

So, here’s the thing – this book is porn

“I know it when I see it” and all that, and this book is definitely porn. I have read a lot of erotica in my life, and this one has even more sex scenes than many modern stories. 

I would not call it good porn – it’s problematic in like a hundred different ways – but unlike the artsy cut-away movie scene from the Jacobellis case, it was very clearly written as something to masturbate to. Word-wise it’s easily >50% sex scenes and they are long and detailed.

Speaking of long and detailed (HEYO), there is an incredible amount of time dedicated to describing dicks, and they are basically revered throughout the entire book. I know you came here for my witty legal analysis, but let’s enjoy some 1749 descriptions of genitalia as a fun bonus:

A column of the whitest ivory, beautifully streaked with blue veins, and carrying, fully un-capt, a head of the liveliest vermilion: no horn could be harder or stiffer; yet no velvet more smooth or delicious to the touch. Presently he guided my hand lower, to that part in which nature, and pleasure keep their stores in concert, so aptly fastened and hung on to the root of their first instrument and minister, that not improperly he might be styled their purse-bearer too: there he made me feel distinctly, through their soft cover, the contents, a pair of roundish balls, that seemed to play within, and elude all pressure, but the tenderest, from without.

I could not, without some remains of terror, some tender emotions too, fix my eyes on that terrible machine, which had, not long before, with such fury broke into, torn, and almost ruined those soft, tender parts of mine, that had not yet done smarting with the effects of its rage; but behold it now! crest fallen, reclining its half-caped vermilion head over one of his thighs, quiet, pliant, and to all appearances incapable of the mischiefs and cruelty it had committed. Then the beautiful growth of the hair, in short and soft curls round its roots, its whiteness, branched veins, the supple softness of the shaft, as it lay foreshortened, rolled and shrunk up into a squat thickness, languid, and borne up from between his thighs, by its globular appendage, that wondrous treasure bag of nature’s sweets, which revelled round, and pursed up in the only wrinkles that are known to please, perfected the prospect, and altogether formed the most interesting moving picture in nature, and surely infinitely superior to those nudities furnished by the painters, statuaries, or any art, which are purchased at immense prices; whilst the sight of them in actual life is scarce sovereignly tasted by any but the few whom nature has endowed with a fire of imagination, warmly pointed by a truth of judgment to the spring-head, the originals of beauty, of nature’s unequalled composition, above all the imitations of art, or the reach of wealth to pay their price.

In case you skimmed that one, I want to call your attention to the most memorable analogy in the whole book:

“that wondrous treasure bag of nature’s sweets”

Yes, she means testicles. Please do not attempt to eat these sweets.

One of my biggest (HEYO again) problems with sex in this book is how much it focuses on penis size and equates large dicks directly with female pleasure even when they literally tear the woman apart and make her bleed. Not every dick that makes an appearance in this book gets a rapturous page-long description, but there are two scenes in particular with extraordinarily large penises and, of course, we learn all about them:

…not the play thing of a boy, not the weapon of a man, but a Maypole, of so enormous a standard, that had proportions been observed, it must have belonged to a young giant. Yet I could not, without pleasure, behold, and even venture to feel, such a length, such a breadth of animated ivory! perfectly well turned and fashioned, the proud stiffness of which distented its skin, whose smooth polish and velvet softness might vie with that of the most delicate of our sex, and whose exquisite whiteness was not a little set off by a sprout of black curling hair round the root: through the jetty springs of which the fair skin shewed as in a fine evening you may have remarked the clear light through the branchwork of distant trees over-topping the summit of a hill: then the broad of blueish-casted incarnate of the head, and blue serpentines of its veins, altogether composed the most striking assemblage of figure and colours in nature. In short, it stood an object of terror and delight.

In fine, it might have answered very well the making a skew of; its enormous head seemed, in hue and size, not unlike a common sheep’s heart; then you might have trolled dice securely along the broad back of the body of it; the length of it too was prodigious; then the rich appendage of the treasure-bag beneath, large in proportion, gathered and crisped up round in shallow furrows, helped to fill the eye, and complete the proof of his being a natural, not quite in vain; since it was full manifest that he inherited, and largely too, the prerogative of majesty which distinguishes that otherwise most unfortunate condition, and gave rise to the vulgar saying “That a fool’s bauble is a lady’s playfellow.” Not wholly without reason: for, generally speaking, it is in love as it is in war, where the longest weapon carries it.

One of the things that allowed this book to get published in 1749, and is also noted by the Supreme Court in 1966, is that it doesn’t use a single “dirty” word. This means every time the author refers to genitals he has to use a metaphor, and what a variety of metaphors he uses:

  • Merciful machine
  • Stiff sinew
  • Weapon of pleasure
  • Engine of love assaults
  • Stiff horn-hard gristle
  • This pride of nature, and its richest master piece.
  • The essential object of enjoyment
  • Superb piece of furniture
  • Plenipotentiary instrument
  • Pleasure-pivot
  • that humoursone master-movement, in whose favour all these dispositions were making
  • Red-topped ivory toy
  • That peculiar sceptre-member, which commands us all

The author rarely repeats himself with penis metaphors but uses the phrase “balsamic injection” to describe ejaculation four times

‘How amusing,’ you might be saying, ‘I can’t wait to read the similarly long detailed descriptions of a vulva/vagina.’ Alas I must disappoint you, because the longest description of that anatomy in this book is two lines:

that delicious cleft of flesh, into which the pleasing hair, grown mount over it, parted and presented a most inviting entrance, between two close hedges, delicately soft and pouting.

We get a variety of fairly disgusting metaphors though:

  • Wide open-mouthed gap
  • Deep flesh wound
  • Soft pleasure-conduit pipe
  • Furnace mouth
  • Pleasure-thirsty channel
  • Nether mouth
  • The soft laboratory of love
  • Cloven inlet
  • Treasury of love

You may notice that all of these seem to refer distinctly to a hole or opening, aka the vaginal canal as opposed to the vulva or clitoris. Judging by this book, the clitoris didn’t exist in the 1700s. There was one moment of hope when the story referred to “the organ of bliss in me,” but my hopes were dashed when the sentence finished with “dedicated to [this dick’s] reception,” and it becomes clear we’re talking about something that encapsulates a penis.

Not surprising, given it was written by a penis-owner in 1749 and there wasn’t a full medical understanding of the clitoris until 2005, but still disappointing. As a clitoris-haver, it’s pretty essential to me that porn, as a very lowest of bars, acknowledges the existence of my genital anatomy.

I’m not going to give quotes for everything because then this post would be a book in its own right, but here are just a few of the other things I’ve got some issues with:

  • The book begins with her getting trafficked into sex work at the age of 15 (actually nonconsensually tricked into sex work, no grey areas here)
  • Her new ‘madame’ sells her virginity without telling her, setting her up for a rape attempt, which she then just shrugs off and never mentions again
  • Many of the sex scenes in the book are with older men and girls under 18, even one (from a side character) when she is 13
  • Sex is defined pretty exclusively as penis-in-vagina, without foreplay
  • Men (and specifically, their dicks) are the only thing that can truly satisfy a woman (and a big dick is all they need to do so)
  • Several of the scenes are written as extremely painful for the woman, but they seem to basically not care? Just take it as part of the experience and somehow ignore it while enjoying themselves anyways
  • An absolute reverence for virginity, and the hymen as an indelible marker of such
  • There’s a m/m gay sex scene which is both eroticized AND demonized
  • The very first sex scene is a w/w gay sex scene, which is enjoyed by the main character then forgotten about literally as soon as she sees a penis

The longer “plotline” of the book is based around a man named Charles, who Fanny sees in the brothel when she is 15, immediately falls in love with without exchanging a single word, and ‘gives her virginity to’. They are going to make a life together but he disappears through circumstances that, we are told, are no fault of his own, leaving Fanny to make her way in life through sex work. 

At the end of the book she is 18, rich and established through years of hard work and cleverness, when she happens to see Charles on the street and faints dead away out of joy and love. Despite having a full independent life of her own, she throws herself back on him, and after finding out he is now extremely poor, marries him so he can have her money. It’s written as this incredibly romantic thing and the sex with him is supposed to be better than any other because they’re in love (even if he doesn’t have the biggest penis in the book, although we are assured “few men could dispute size with him”). 

In the sex scene where they reconnect, Charles comes three times in a row without a refractory period or even pulling out. 

Because they’re in love. (insert eye rolling gif of your choice here)

The Court

Fanny Hill had been deemed obscene by the lower court, a decision which was upheld by the Supreme Judicial Court of Massachusetts. This Supreme Court had to decide whether to affirm that decision (allowing Massachusetts to ban the book) or overturn it (keeping Fanny Hill on the shelves).

The Supreme Court in 1966 was almost identical to the one that decided Jacobellis in 1964, with Justice Goldberg being replaced by Justice Fortas. 

Still all old white dudes. Public domain photo from Oyez

Justice Brennan (second row, second from the left) yet again writes the main opinion here. He also authored the main opinions in Roth and Jacobellis, and will come up again in later cases.

Warren (center), still Chief Justice, voted in favor of Roth, against Jacobellis, but switched back here in favor of overturning. 

Justice White, who voted in favor of Jacobellis, switched as well, keeping the vote 6-3. (fun fact: all three cases I’ve covered so far have been 6-3 decisions)

Justice Harlan (far right) is also still around and yet again writes a dissenting opinion, as he did in Roth and Jacobellis. I don’t agree with his views, but at least he’s consistent.

The Memoirs decision was overturned 6-3, meaning the book could stay on the shelves in Massachusetts. All three opposing votes were on the conservative end of Oyez’ ideology scale.

Justices in favor of overturning:

  • Warren
  • Black
  • Douglas
  • Brennan
  • Stewart
  • Fortas

Justices in favor of affirming:

  • Clark
  • Harlan
  • White

The consequences

A quick reminder of the Roth test for obscenity that presided at the time of this case:

“[W]hether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”

Unsurprisingly, given all I’ve written above, the answer to this specific question is a resounding fuck yes, this book is obscene. 

However

In the Roth decision, when they’re making their case for censoring obscenity, they describe their reasoning thus (emphasis added):

“All ideas having even the slightest redeeming social importance […] have the full protection of the guaranties […]. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”

‘Does it have social importance?’ was not originally part of the Roth test, because it was assumed that anything obscene could not be socially important. Fanny Hill, definitely porn but also arguably a piece of historical literature, thus raised this question in the Supreme Court:

Can something be obscene and have social importance?

To a modern scholar of sexual media such as myself, the answer is obviously yes, but the courts in 1966 were divided.

The Massachusetts supreme court which affirmed the original ruling had this to say:

“We do not interpret the ‘social importance’ test as requiring that a book which appeals to prurient interest and is patently offensive must be unqualifiedly worthless before it can be deemed obscene.”

Basically, they heard a ton of Boston-area (including Harvard) literature professors talk about the importance of this book but then decided ‘maybe it’s got a smidge of social importance, but that doesn’t matter if we also decide it’s obscene.’

Six justices of the Supreme Court disagreed.

“Reversal is required because the court misinterpreted the social value criterion. […] A book cannot be proscribed unless it is found to be utterly without redeeming social value. […] [T]he social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness.”

Justice Brennan in the plurality opinion for Memoirs (emphasis in original)

What social value did the court find in Fanny Hill, you ask? 

“There was expert testimony […] to the effect that Memoirs is a structural novel with literary merit; that the book displays a skill in characterization and a gift for comedy; that it plays a part in the history of the development of the English novel, and that it contains a moral, namely, that sex with love is superior to sex in a brothel.”

From the Massachusetts court decision, quoted in Brennan’s Supreme Court opinion (emphasis added)

Basically:

  • It sure is a book
  • Not the worst book
  • Of historical interest maybe
  • Contains one (1) puritanical moral

Justice Douglas, a consistent anti-censorship vote in Roth, Jacobellis, and now Memoirs, notes how popular the book was when it was republished in America in 1963. Apparently the Library of Congress requested the right to translate the book into Braille, among other things.

Douglas was one of the authors of the ‘thoughtcrime’ argument in Roth – basically, that something should not be illegal unless it leads to harmful actions, not just inappropriate thoughts. He rehashes that argument here.

“I base my vote to reverse on my view that the First Amendment does not permit the censorship of expression not brigaded with illegal action. […] The censor is always quick to justify his function in terms that are protective of society. […] The drives are incessant, and the pressures are great. Happily, we do not bow to them.”

Justice Douglas’ dissent in Memoirs, emphasis mine

Of course, not everyone agrees. All three dissenting Justices (Clark, Harlan, and White) wrote separate opinions, so we know their thoughts. Harlan goes down his usual track of ‘leave it up to the states,’ and Clark and White both argue that the ‘does it have any social value’ criteria was not a valid part of the Roth test. Clark claims that his vote was the deciding one for the majority decision in Roth, and he voted such only under the understanding that there wasn’t any ‘social value’ clause. 

Clark argues that including such a criteria “gives the smut artist free rein to carry on his dirty business” and thus negates the entire purpose of having an obscenity test. White adds, “Why shouldn’t the fact that some people buy and read such material prove its ‘social value’?” which – yes! Why shouldn’t it? He means it in a derogatory sense of course, attempting to show how meaningless the social value criteria is, but in my opinion the fact that something is extremely popular is a strong sign that banning it isn’t a good reaction.

Clark also argues against the ‘thoughtcrime’ concept, saying first, “Psychological and physiological studies clearly indicate that many persons become sexually aroused from reading obscene material” which I agree with, but adding “there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior” which I do not.

Altogether, this case didn’t strictly redefine the test for obscenity, but it did transform it from a single sentence to a 3-part bullet list.

Old Roth test, stated in that case:

Whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

New Roth test, stated in Memoirs:

(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; 

(b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters, and 

(c) the material is utterly without redeeming social value.

The continuation

Another thing that was discussed in the opinions but didn’t seem to have a ton of bearing on this particular outcome was the circumstances under which the book was sold. 

“Evidence that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values, might justify the conclusion that the book was utterly without redeeming social importance. […] [A]s we elaborate in Ginzburg v. United States, where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation at its face value.”

From Brennan’s plurality opinion (emphasis mine)

The hint towards Ginzburg in the above paragraph is a nod to the fact that the Supreme Court actually released three rulings on obscenity cases on the exact same day: Memoirs v. Massachusetts, Ginzburg v. United States, and Mishkin v. New York.

It’s becoming clear to everyone by this point that the Roth test isn’t good enough, and this trio of cases sets the stage for the revised Miller test that will come out in 1973. 

Each of these three cases tackles a different complication of obscenity law involving not the material itself but the context around it. Memoirs dealt with social value and societal context surrounding the text. Ginzburg, which I’ll do next, dealt with the commercial context in which a book is sold. Mishkin will be after, where the Supreme Court got to dive into the really fun question of ‘is BDSM sex?’

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