"Sexually Provocative" Magazines

Not Legally Obscene

Reprinted from JUSTICE WEEKLY, Toronto.

In an important decision, the New York Court of Appeals, the highest court in the state, held that magazines containing nudes and dedicated to "coarse sexual titillation" could not be considered legally obscene. Judge Stanley Fuld, writing the prevailing opinion at Albany, noted that there are on the newsstands many magazines which "pander to and commercialize upon man's taste for the bawdy and ribald. They include 'pictorial essays' which are tawdry attempts to satisfy mild voyeurism by photographing nude and partially dressed women in 'artistic poses,' salacious cartoons and short stories of sexual seduction devoted to little other purpose than sexual stimulation." Conceding all this and pointing out that the magazines were, in his opinion, shockingly vulgar and tasteless, Judge Fuld said that they were still protected by the constitutional provisions guaranteeing freedom of speech and freedom of press.

"The same protection applies even if the magazine is a form of entertainment rather than an exposition of ideas, and even if we conclude that it is lacking in all social value. What is one man's amusement teaches another's doctrine."

Even if we can find nothing of any possible value to society in these magazines, Judge Fuld continued, "they are as much entitled to the protection of free speech as the best of literature... mindful of the constitutional necessity to open the door barring state intrusion into this area only the slightest crack necessary, and desirous of erecting a standard which imposes the most universal moral sensibilities and may be applied objectively, we are of the

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opinion that the prohibitions of the law should apply only to what may properly be termed 'hard core pornography.'

"The mere undemonstrated possibility of harm to the community from accounts of sexuality is not of sufficient moment to warrant the exercise of the public force in their suppression. And this is true whether the narratives concerned may be said to have artistic or scientific justification or whether they lack anything of any possible value to society.”

Commenting on Judge Fuld's opinion, Weekly Variety said:

"Clearly, if Judge Fuld's definition of obscenity is adopted throughout the country, the fight against vaguely written and all-encompassing obscenity definitions will have taken a giant step forward."

District Attorney John M. Braisted, of Staten Island, whose office had handled the case before the high court, was dismayed by the opinion and said:

"I think the court is misled. In our state and in the nation, too much emphasis is placed on so-called individual freedoms guaranteed under the First Amendment to the Constitution. The decision took into consideration the Kinsey report and other reports, some of which are pornographic per se." On the other hand, Assistant District Attorney Richard Kuh, of New York County, stated that it was appropriate for the court to take into consideration the trend toward freedom of sexual expression evident in society.

"It is our feeling," he told a Joint Legislative Committee studying the subject, "that the courts are tending in the direction of permitting an ever broader area of sale to adults. We wouldn't be shocked if in the next decade the courts held that sale of hard core pornography to adults is legal."

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