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Even more scathing were the usually restrained Justices John M. Harlan and Potter Stewart. Harlan called the new pandering rule "an astonishing piece of judicial improvisation" that may inspire new censorship attacks on long permissible classics. If an ad is now adjudged obscene, he suggested, the result could ban Joyce's Ulysses, which was cleared for U.S. sale 33 years ago. "Censorship reflects a society's lack of confidence in itself," said Stewart. "The Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself."
Stewart was especially incensed by what he viewed as the court's decision to jail Ginzburg (who is also the publisher of a magazine called Fact) for reasons other than the charges against him. "Ginzburg was not charged with 'commercial exploitation,'" he said. "He was not charged with 'pandering'; he was not charged with 'titillation.' " Not only did the court thus "deny him due process of law," Stewart continued, but Ginzburg was going to prison for crimes that no federal statute condemns.
Harried Justices. What the Justices were really bothered by was the court's difficult decision in Roth v. U.S. (1957), which held for the first time that obscenity is not protected by First Amendment guarantees of free speech. In Roth, which upheld a federal antiobscenity statute, the court classified obscenity as a kind of "non-speech" —no longer protected by the familiar test that bars only those words that carry a "clear and present danger" of inciting anti-social conduct. Roth also carefully declared: "Sex and obscenity are not synonymous." And in later cases, the court refused to censor sexual expression unless 1) "the material is utterly without redeeming social importance," 2) "the dominant theme of the material taken as a whole appeals to prurient interest" in the "average" adult, and 3) "the material is patently offensive because it affronts contemporary community standards," meaning national standards defined by the Supreme Court.
Applying those painfully honed tests soon forced the nine harried Justices (average age: 64) to read shelves of allegedly dirty books. But though the court has accepted at least half a dozen obscenity cases since the Roth decision, it was unable to find a single piece of writing obscene. Meanwhile, the nation's smut peddlers flourished. For what Roth overlooked was the fact that "obscenity" may depend less on the material than on how the seller uses it.