(2 of 2)
Chief Justice Earl Warren concurred in the result of the majority opinion, but fretted lest Brennan's "broad language" might "eventually be applied to the arts and sciences and freedom of communication generally." Justice William Douglas (joined by Justice Hugo Black) dissented, arguing that the majority test of obscenity made for "community censorship in one of its worst forms. It creates a regime where, in the battle between the literati and the Philistines, the Philistines are certain to win." Wrote Douglas: "I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics or any other field."
Lady Chatterley's Lover. Traveling a middle road was Justice John Marshall Harlan. On the ground that the states "bear direct responsibility for the protection of the local moral fabric" but the U.S. Congress "has no substantive power over sexual morality," he concurred in rejecting Alberts' 14th Amendment plea, but dissented in the First Amendment Roth case. Wrote Harlan: "The danger is perhaps not great if the people of one state, through their legislature, decide that Lady Chatterley's Lover goes so far beyond the acceptable standards of candor that it will be deemed offensive and non-sellable, for the state next door is still free to make its own choice. At least we do not have one uniform standard. But the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the nation on such a book."
Last week the Supreme Court also: <I Upheld, 5 to 4, a New York statute authorizing injunctions against the sale and distribution of obscene literature (such civil procedure differed from the criminal issues in the Roth and Alberts cases). Justice Brennan dissented because the New York injunctive process provides no trial by jury. Dissenting Justice Douglas (with Black) wrote bitterly: "Free speech is not to be regulated like diseased cattle and impure butter." Wrote dissenting Chief Justice Warren of the New
York law: "It savors too much of book burning."
<J Invalidated, 6 to 3, an Illinois statute that freed the American Express Co. (because it is "a worldwide enterprise of unquestioned solvency and high financial standing") from the requirement that money-order firms must secure a license and submit to state regulation. <J Reversed and remanded, unanimously, the Washington rape conviction of Andrew Mallory. Because Mallory had been held and questioned for about 20 hours before his arraignment, the court held that his oral and written confessions made during that period were inadmissible: "Circumstances may justify a brief delay . . . But the delay must not be of a nature to give opportunity for the extraction of a confession." fl Upset, on the bi.sis of its recent Smith Act and Watkins case decisions (TIME,
July i), the convictions of 14 defendants who had variously been prosecuted as Communists under the Smith Act or found guilty of contempt of Congress or of state antisubversive investigating groups.
-f From the Latin prurire, to itch.