The Supreme Court seems to be catching up with the moral election returns. In three major decisions last week, it joined the growing body of Americans revolted by the growing body of U.S. pornography — the books, films, plays and magazines hawked on count less street corners with lurid sales pitches promising all manner of sex, all imaginable deviations, combinations and permutations. Ruling on three cases involving no fewer than 144 publications, the court handed down some bad news for U.S. smut peddlers.
Startling even Justice Department lawyers, the court voted 5 to 4 to up hold Publisher Ralph Ginzburg's $28,000 fine and five-year federal sentence for selling the now defunct magazine Eros and two other obscene publications through the mails. By a vote of 6 to 3, the court upheld Edward Mishkin's three-year New York sentence for planning and peddling 140 weird little "bondage" books (Screaming Flesh, House of Torture, etc.) devoted to sadism and masochism and typically spiced with scenes of naked girls whipping each other. By another 6-to-3 vote, the court struck down Massachusetts' ban on Fanny Hill—yet it clearly left that enduring (1749), erotic bestseller open to possible further prosecution.
Stiff Rule. The big news was the new obscenity standard laid down in the Ginzburg decision—which was based not so much on the content of his publications as on the way he peddled them. Speaking for the court in all three cases, Justice William J. Brennan said that Ginzburg's "titillating" advertising was so permeated with "the leer of the sensualist" that he was guilty of "the sordid business of pandering." Brennan took dead aim at "those who would make a business of pandering to the widespread weakness for titillation by pornography." The result: a stiff new rule for obscenity cases that may make a peddler's conduct more important than his product. "Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity."
The three cases produced 14 opinions—a sure sign of how intensely the Justices had wrestled with their constitutional duty to guard freedom of speech and press even as they sought a way to suppress the smut before them. In hot dissent, Justices Hugo Black and " William O. Douglas urged the court for the umpteenth time to quit all censorship on the ground that the First Amendment protects all expression, including obscenity, that does not actually incite antisocial conduct. "Sex is a fact of life," declared the 80-year-old Black. "I find it difficult to see how talk about sex can be placed under the kind of censorship the court here approves without subjecting our society to more dangers than we can anticipate at the moment." The new pandering rule, added Douglas, makes unconstitutional "an advertising technique as old as history." However "florid" a book's cover, he argued, "the contents remain the same."