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Conduct v. Thought. Having reached exactly that conclusion, Justice Brennan last week tried to push the Roth decision, which he also wrote, far closer to a manageable test of conduct rather than thought. At issue in the Ginzburg case were Eros, whose chef-d'oeuvre in the disputed edition was a color portfolio of a white woman and Negro man, both naked, in multiple embraces; Liaison, a sex-front "newsletter" that was a compendium of sex jokes; and The Housewife's Handbook on Selective Promiscuity, a Tucson woman's clinical account of her increased pleasure with unconventional sex techniques.
Justice Brennan refused to endorse the trial judge's ringing condemnation of all three Ginzburg products as themselves obscene and "a gross shock to the mind." Instead, Brennan nailed Ginzburg for salacious sales pitches. In one Eros brochure, he blatantly promised articles on "Incest in the American Midwest," "Was Shakespeare a Homosexual?" and "Sex in the Supermarket." Before Ginzburg acquired Handbook, its author, "Rey Anthony," printed it privately, sold 12,000 copies to assorted therapists, several of whom had testified at the trial that it proved useful in professional practice. Ginzburg's companies, said Brennan, went beyond this "neutral environment" and "deliberately emphasized the sexually provocative aspects of the work in order to catch the salaciously disposed." As for Eros, Brennan implied that merely reading the magazine would not have led him to regard it as obscene. Instead, he noted that Ginzburg revealed his "obvious" motives by mailing it from Middlesex, NJ.—having failed to get postal privileges at Intercourse and Blue Ball, Pa.
New Rules. In the second case, New York Pornographer Edward Mishkin argued that his books were not legally obscene because they excited only sick rather than normal people. Brennan agreed—and duly "adjusted" Roth's prurient-appeal standard from the "average adult" to the average members of any "probable recipient group," including sadists and masochists.
In the third case, which cleared Fanny Hill, Brennan noted expert testimony in the Massachusetts trial that Fanny "belongs to the history of English literature rather than the history of smut." All the same, added Brennan, in an apparent invitation to further litigation, "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 value."
All this toughened Roth by adding three new rules:
> "In close cases, evidence of pandering may be probative with respect to the nature of the material."
> A book or film need not have a "prurient appeal" to the public at large to be declared obscene. It can be so judged even if it panders merely to a "clearly defined deviant sexual group," such as homosexuals or masochists.
>An otherwise offensive book is not obscene if it has "a modicum of social value." But this anti-censorship rule may be vitiated by evidence of a publisher's pandering.