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It was in this case that Justice Potter Stewart, in his concurring opinion, wrote the oft-quoted summation: "... 413 (1966) In 1965, the Massachusetts Supreme Judicial Court affirmed a lower court decision finding the erotic novel Fanny Hill, or Memoirs of a Woman of Pleasure was obscene.[C]riminal laws in this area are constitutionally limited to hardcore pornography. The lower court had noted that the "social importance" element of the Roth test did not require that a book "must be unqualifiedly worthless before it can be deemed obscene." The U. Supreme Court reversed this decision, emphasizing that under Roth, material could not be deemed obscene unless it was "utterly without redeeming social value": it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. A book cannot be proscribed unless it is found to be utterly without redeeming social value.Surely, this is to burn the house to roast the pig." Justice Frankfurter held that the law violated the due process clause of the 14th Amendment because it "reduce[d] the adult population of Michigan to reading only what is fit for children." This decision repudiated the earlier, longstanding test for obscenity. Brennan noted that "sex and obscenity are not synonymous," and that obscene material is that which "deals with sex in a manner appealing to the prurient interest." He attempted to define material appealing to a "prurient interest" in a footnote: ...Based on British common law, the "Hicklin principle" declared obscene any material that tended to "deprave or corrupt those whose minds are open to such immoral influences, " including children. material having a tendency to excite lustful thoughts.The Court overturned the conviction, holding that "the mere private possession of obscene matter cannot constitutionally be made a crime." Writing for the Court, Justice Thurgood Marshall emphasized the individual's right to privacy in his own home: ...Mere categorization of these films as "obscene" is insufficient justification for such a drastic invasion of personal liberties. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. 463 (1965) Decided the same day as the Fanny Hill case, Ginzburg introduced the principle that the intent of the seller, as evidenced in how he presented or advertised his material, could be a deciding factor in determining whether something was obscene.
" He concluded that "The Lovers" was not obscene because it had been "favorably reviewed in a number of national publications, although disparaged in others, and was rated by at least two critics of national stature among the best films of the year in which it was produced," and been shown in over 100 cities nationwide.
Writing for the majority, Chief Justice Warren Burger laid out the new, three-part test: The basic guidelines for the trier of fact must be: (a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.