And Mr. Justice Harlan, dissenting, also deeply concerned, had this to say (pp. 497, 498):
“* * * The suppression of a particular writing or other tangible form of expression is * * * an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressible within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem in the last analysis becomes one of particularized judgment which appellate courts must make for themselves.
“I do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as ‘obscene’, for, if ‘obscenity’ is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind.”
Mr. Justice Frankfurter, concurring in Kingsley lnternational Pictures Corp. v. Regents, decided on June 29, 1959, 27 L. W. 4492, expressed a similar view. He pointed out that in determining whether particular works are entitled to the constitutional protections of freedom of expression “We cannot escape such instance by instance, case by case * * * [constitutional adjudication] in all the variety of situations that come before this Court.” And Mr. Justice Harlan, in the same case, also concurring in the result, speaks of “the necessity for individualized adjudication. In the very nature of things the problems in this area are ones of individual cases * * *.”
These views are not inconsistent with the decisions of the majority determining both Roth and Kingsley upon broader constitutional grounds.
It would seem that the Court itself made such “individualized” or “case by case” adjudications as to the obscenity of specific material in at least two cases following Roth. In One, Inc. v. Olesen, 355 U. S. 371 and Sunshine Book Co. v. Summerfield, 355 U. S. 372, the courts below had found in no uncertain terms that the material was obscene within the meaning of Section 1461.9 In each case the Supreme Court in a one sentence per curiam opinion granted certiorari and reversed on the authority of Roth.
One, Inc. v. Olesen, and Sunshine Book Co. v. Summerfield, involved determinations by the Post Office barring material from the mails on the ground that it was obscene. In both the District Court had found that the publication was obscene and that the determination of the Post Office should be upheld. In both the Court of Appeals had affirmed the findings of the District Court.
Yet in each the Supreme Court, without discussion, summarily reversed on the authority of Roth. As Judge Desmond of the New York Court of Appeals said of these cases—”Presumably, the court having looked at those books simply held them not to be obscene.”10
It is no less the duty of this court in the case at bar to scrutinize the book with great care and to determine for itself whether it is within the constitutional protections afforded by the First Amendment, or whether it may be excluded from those protections because it is obscene under the Roth tests.
(2) Such review is quite consistent with the Administrative Procedure Act (5 U. S. C. §1001, et seq.), assuming that the act is applicable here.
This is not a case where the agency determination under review is dependent on “a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.” See Universal Camera Corp. v. Labor Board, 340 U. S. 474, 490. Cf. O’Leary v. Brown-Pacific-Maxon, 340 U. S. 504; Gooding v. Willard, 2 Cir., 209 F. 2d 913.
There were no disputed facts before the Postmaster General. The facts as to the mailings and the detainer were stipulated and the only issue before him was whether “Lady Chatterley’s Lover” was obscene.
The complainant relied on the text of the novel and nothing more to establish obscenity. Respondents’ evidence was wholly uncontradicted, and, except for the opinions of the critics Cowley and Kazin as to the effect of the book upon its readers, it scarcely could have been. The complainant conceded that the book had literary merit. The views of the critics as to the place of the novel and its author in twentieth century English literature have not been questioned.
As the Postmaster General said, he attempted to apply to the book “the tests which, it is my understanding, the courts have established for determining questions of obscenity.” Thus, all he did was to apply the statute, as he interpreted it in the light of the decisions, to the book. His interpretation and application of the statute involved questions of law, not questions of fact.
The Postmaster General has no special competence or technical knowledge on this subject which qualifies him to render an informed judgment entitled to special weight in the courts. There is no parallel here to determinations of such agencies as the Interstate Commerce Commission, the Securities and Exchange Commission, the National Labor Relations Board, the Federal Communications Commission, the Federal Power Commission, or many others on highly technical and complicated subject matter upon which they have specialized knowledge and are particularly qualified to speak.
No doubt the Postmaster General has similar qualifications on many questions involving the administration of the Post Office Department, the handling of the mails, postal rates and other matters. See Bates & Guild Co. v. Payne, 194 U. S. 106. But he has no special competence to determine what constitutes obscenity within the meaning of Section 1461, or that “contemporary community standards are not such that this book should be allowed to be transmitted in the mails” or that the literary merit of the book is outweighed by its pornographic features, as he found. Such questions involve interpretation of a statute, which also imposes criminal penalties, and its application to the allegedly offending material. The determination of such questions is peculiarly for the courts, particularly in the light of the constitutional questions implicit in each case.11
It has been suggested that the court cannot interfere with the order of the Postmaster General unless it finds that he abused his discretion. But it does not appear that the Postmaster General has been vested with “discretion” finally to determine whether a book is obscene within the meaning of the statute.
It is unnecessary to pass on the questions posed by the plaintiffs as to whether the Postmaster General has any power to impose prior restraints upon the mailing of matter allegedly obscene and whether the enforcement of the statute is limited to criminal proceedings, though it seems to me that these questions are not free from doubt.12
Assuming power in the Postmaster General to withhold obscene matter from dispatch in the mails temporarily, a grant of discretion to make a final determination as to whether a book is obscene and should be denied to the public should certainly not be inferred in the absence of a clear and direct mandate. As the Supreme Court pointed out under comparable circumstances in Hannegan v. Esquire, Inc., 327 U. S. 146, 151, to vest such power in the Postmaster General would, in effect, give him the power of censorship and that “is so abhorrent to our traditions that a purpose to grant it should not be easily inferred.”
No such grant of power to the Postmaster General has been called to my attention and I have found none.13 Whatever administrative functions the Postmaster General has go no further than closing the mails to material which is obscene within the meaning of the statute. This is not an area in which the Postmaster General has any “discretion” which is entitled to be given special weight by the courts.14
The Administrative Procedure Act makes the reviewing court responsible for determining all relevant questions of law, for interpreting and applying all constitutional and statutory provisions and for setting aside agency action not in accordance with law. (5 U. S. C. §1009.) The question presented here falls within this framework.
Thus, the question presented for decision is whether “Lady Chatterley’s Lover” is obscene within the meaning of the statute and thus excludable from constitutional protect
ions. I will now consider that question.
II
This unexpurgated edition of “Lady Chatterley’s Lover” has never before been published either in the United States or England, though comparatively small editions were published by Lawrence himself in Italy and authorized for publication in France, and a number of pirated copies found their way to this country.
Grove Press is a reputable publisher with a good list which includes a number of distinguished writers and serious works. Before publishing this edition Grove consulted recognized literary critics and authorities on English literature as to the advisability of publication. All were of the view that the work was of major literary importance and should be made available to the American public.
No one is naïve enough to think that Grove Press did not expect to profit from the book. Nevertheless the format and composition of the volume, the advertising and promotional material and the whole approach to publication, treat the book as a serious work of literature. The book is distributed through leading bookstores throughout the country. There has been no attempt by the publisher to appeal to prurience or the prurient minded.
The Grove edition has a preface by Archibald MacLeish, former Librarian of Congress, Pulitzer Prize winner, and one of this country’s most distinguished poets and literary figures, giving his appraisal of the novel. There follows an introduction by Mark Schorer, Professor of English Literature at the University of California, a leading scholar of D. H. Lawrence and his work. The introduction is a critique of the novel against the background of Lawrence’s life, work and philosophy. At the end of the novel there is a biographical note as to the circumstances under which it was written and first published. Thus, the novel is placed in a setting which emphasizes its literary qualities and its place as a significant work of a major English novelist.
Readers’ Subscription has handled the book in the same vein. The relatively small number of Readers’ Subscription subscribers is composed largely of people in academic, literary and scholarly fields. Its list of books includes works of high literary merit, including books by and about D. H. Lawrence.
There is nothing of “the leer of the sensualist”15 in the promotion or methods of distribution of this book. There is no suggestion of any attempt to pander to the lewd and lascivious minded for profit. The facts are all to the contrary.
Publication met with unanimous critical approval. The book was favorably received by the literary critics of such diverse publications as the New York Times, the Chicago Tribune, the San Francisco Call Bulletin, the New York Post, the New York Herald Tribune, Harper’s and Time, to mention only some. The critics were not agreed upon their appraisal. Critical comment ranged from acclaim on the one hand to more restrained views that this was not the best of Lawrence’s writing, and was dated and in parts “wooden.” But as MacLeish says in the preface,
“* * * in spite of these reservations no responsible critic would deny the book a place as one of the most important works of fiction of the century, and no reader of any kind could undertake to express an opinion about the literature of the time or about the spiritual history that literature expresses without making his peace in one way or another with D. H. Lawrence and with this work.”
Publication of the Grove edition was a major literary event. It was greeted by editorials in leading newspapers throughout the country unanimously approving the publication and viewing with alarm possible attempts to ban the book.
It was against this background that the New York Postmaster impounded the book and the Postmaster General barred it. The decision of the Postmaster General, in a brief four pages, relied on three cases, Roth v. United States, supra, United States v. One Book Called “Ulysses”, D. C. S. D. N. Y., 5 F. Supp. 182, aff’d, 2 Cir., 72 F. 2d 705, and Besig v. United States, 9 Cir., 208 F. 2d 142. While he quotes from Roth the Postmaster General relies principally on Besig, which was not reviewed by the Supreme Court. It may be noted that the Ninth Circuit relied heavily on Besig in One Book, Inc. v. Olesen, supra, which was summarily reversed by the Supreme Court on the authority of Roth.
He refers to the book as “currently withheld from the mails in the United States and barred from the mails by several other major nations.” His only discussion of its content is as follows:
“The contemporary community standards are not such that this book should be allowed to be transmitted in the mails.
“The book is replete with descriptions in minute detail of sexual acts engaged in or discussed by the book’s principal characters. These descriptions utilize filthy, offensive and degrading words and terms. Any literary merit the book may have is far outweighed by the pornographic and smutty passages and words, so that the book, taken as a whole, is an obscene and filthy work.
“I therefore see no need to modify or reverse the prior rulings of this Department and the Department of the Treasury with respect to this edition of this book.”16
This seems to be the first time since the notable opinions of Judge Woolsey and Judge Augustus Hand in United States v. One Book Called “Ulysses”, supra, in 1934 that a book of comparable literary stature has come before the federal courts charged with violating the federal obscenity statutes. That case held that James Joyce’s “Ulysses” which had been seized by the Customs under Section 305 of the Tariff Act of 1930 was not obscene within the meaning of that statute. It thoroughly discussed the standards to be applied in determining this question.
The essence of the Ulysses holding is that a work of literary merit is not obscene under federal law merely because it contains passages and language dealing with sex in a most candid and realistic fashion and uses many four-letter Anglo-Saxon words. Where a book is written with honesty and seriousness of purpose, and the portions which might be considered obscene are relevant to the theme, it is not condemned by the statute even though “it justly may offend many.” “Ulysses” contains numerous passages dealing very frankly with sex and the sex act and is free in its use of four-letter Anglo-Saxon words. Yet both Judge Woolsey in the District Court, and Judge Hand in the Court of Appeals, found that it was a sincere and honest book which was not in any sense “dirt for dirt’s sake.”17 They both concluded that “Ulysses” was a work of high literary merit, written by a gifted and serious writer, which did not have the dominant effect of promoting lust or prurience and therefore did not fall within the interdiction of the statute.
Roth v. United States, supra, decided by the Supreme Court in 1957, twenty-three years later, unlike the Ulysses case, not deal with the application of the obscenity statutes to specific material. It laid down general tests circumscribing the area in which matter is excludable from constitutional protections because it is obscene, so as to avoid impingement on First Amendment guarantees.18
The court distilled from the prior cases (including the Ulysses case, which it cited with approval) the standards to be applied19—“whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
The court saw no significant difference between this expression of the standards and those in the American Law Institute Model Penal Code20 to the effect that
“* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters * * *.”
These standards are not materially different from those applied in Ulysses to the literary work considered there. Since the Roth case dealt with these standards for judging obscenity in general terms and the Ulysses case dealt with application of such standards to a work of recognized literary stature, the two should be read together.
A number of factors are involved in the application of these tests.
As Mr. Justice Brennan pointed out in Roth, sex and obscenity are by no means synonymous and “[t]he portrayal of sex, e. g., in
art, literature and scientific works, is not in itself sufficient reason to deny material the constitutional protection of freedom of speech and press.” As he said, sex has been “a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” The subject may be discussed publicly and truthfully without previous restraint or fear of subsequent punishment as long as it does not fall within the narrowly circumscribed interdicted area.
Both cases held that, to be obscene, the dominant effect of the book must be an appeal to prurient interest—that is to say, shameful or morbid interest in sex. Such a theme must so predominate as to submerge any ideas of “redeeming social importance” which the publication contains.
It is not the effect upon the irresponsible, the immature or the sensually minded which is controlling. The material must be judged in terms of its effect on those it is likely to reach who are conceived of as the average man of normal sensual impulses,21 or, as Judge Woolsey says, “what the French would call l’homme moyen sensuel.”