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Obscenity Law Makes Court Censors of Art,

In its monthly publication, "The Open Forum," the American Civil Liberties Union of Southern California in January released the following discussion of the right of courts to rule on matters of obscenity in the light of the First Amendment to the Constitution (freedom of religion, speech, press, assembly, etc.)

• In a recent U.S. Court of

Appeals decision, the court ‹ unanimously upheld the con: viction of a Samue! Roth for mailing obscene matter in violition of the federal obscenity statute. Circuit Court Judge Jerome N. Frank, concuring in the opinion, said he was "constrained by the opinions of the Supreme Court to hold that legislation valid." However, he said, none of those opinions has carefully canvassed the problem in the light of the Supreme Court's interpretation of the First Amendment. In a separato appendix he set forth some of the factors which should be considered in passing on the constitutionality of the statute. Excerpts from Judge Frank's study follow.

To date there exists, I think, no thorough-going study by competent persons which justifies the conclusion that normal adults' reading or seeing of the "obscene" probably induces an-

ti-social conduct. Such studies do conclude that so complex and numerous are the causes of sexual vice that it is imposible to assert with any assurance that "obcenity" represents a ponderable causal factor in sexually deviant adult behavior. Although the whole subject of obscenity censorship hinges upon the unproved assumption that "obscene" literature is a significant factor in causing sexual deviation from the community standard, no report can be found of a single effort at genuine research to test this assupmtion by singling out as a factor for study the effect of sex literature

upon sexual behavior. Most federal courts now hold that the test of obscenity is the effect on the "mind" of the avernormal'adult. age However, there is much pressure for legislation, designed to prevent juvenile delinquency, which will single out children, i.e., will prohibit the sale to young persons of "obscenity" or other designated matter.

mallachine REVIEW

Literature

Socially Dangerous

If the obscenity statute is val id, then it would seem that its validity must rest on this ground: Congress, by statute, may constitutionally provide punishment for the mailing of books evoking mere thoughts or feelings about sex, if Congress considers them socially dangerous, even in the absence of any satisfactory evidence that those thoughts or feelings will tend to bring about socially harmful deeds. If that be correct, it is hard to understand why, similarly, Congress may not constitutionally provide punishment for such distribution of books evoking mere thoughts or feelings about religion or politics, which Congress considers socially dangerous.

I have no doubt that a jury could reasonably find that many publications are obscene within the current judicial definition of the term. But so, too are a multitude of recognized works of art found in public libraries. Catalogues of famous art museums, almost equally accessible and also often mailed, contain reproductions of paintings and sculpture by great masters, no less "obscene."

The Classics Excepted To the arguments that such

books (and paintings and works of sculpture) fall within the 'statutory ban, the courts have answered that they are "classics" -books of "literary distinction" or works which have "an accepted place in the arts," including, so this court has held, Ovid's "Art of Love" and Boccacio's "Decameron." There is a curious dilemma involved in this answer that the statute condemns "only books which are dull and without merit," that in no event will the statute be applied to the "classics." The courts have not explained how they escape that dilemma, but instead seem to have gone to sleep (although rather uncomfortably) on its horns.

Basic Flaw

This dilemma would seem to show up the basic constitutional flaw in the statute: No one can reconcile the currently accepted test of obscenity with the immunity of such "classics" as Aristophanes' "Lysistrata," Chaucer's "Canterbury Tales," Rabelais' "Gargantua and Pantagruel," Shakespeare's "Venus and Adonis," Fielding's "Tom Jones," or Balzac's "Droll Storics." For such "obscene" writings, just because of their great artistry and charm, will presumably have far greater influence on readers than dull inartistic writings.

The truth is that the courts "clashave excepted the sics" from the federal obscenity statute, since otherwise most Americans would be deprived of access to many masterpieces of

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