The only thing that is hard to believe is that three justices actually held that a state could determine showing this film warrants anyone being "fined $500 on the first count and $2,000 on the second, and was sentenced to the workhouse if the fines were not paid." In 1964. Justice Harlan basically rested on federalism (the case cited yesterday was a federal prosecution, where he was stricter) -- let the states decide. Warren/Clark didn't actually comment on the actual film really -- the dissent basically suggested they didn't want the responsibility to deal with this stuff, it basically speaking in generalities better applied to some of the other films handled.
The film basically has no nudity. I have to say "basically" since a guy does take off his shirt and if you look real close, you might get a glance of "side boob" in one scene. Though adultery is in the air (but the film does a switch on with whom late), it only is carried out in the last reel. Even there, half of the extended scene (which again, to me comes out of left field -- the guy does not seem like a love interest at all until then, except perhaps that he made her laugh -- ah, foreshadowing in hindsight) involves them walking around in a field and such. There eventually is a love scene, followed by a quick bit in the bath, but that scene in From Here to Eternity with Burt Lancaster and Deborah Kerr rolling on the beach is more sexy. Plus, this film drips with class and art ... if this film doesn't have enough "social value" to count, don't know what would. The idea this film is "prurient" as compared to lots of Hollywood films in the '30s and '40s is ridiculous.
On the merits, the film was pretty good -- the lead actress dripped of class, it had style and kept your interest. I think the last reel was somewhat silly really, but one has to respect the time and place. A couple years later, after allowing Fanny Hill (earlier, Tropic of Cancer and another French film, this one sounds a bit more risque also met the test ... along with the "beefcake" magazines of a homosexual nature in the case cited yesterday, though three justices rested on a procedural point*), the Court upheld convictions of three written works more risque than this film. It was a shoddy effort by Justice Brennan that basically invented a "pandering" charge -- apparently, "borderline" material can be prosecuted for that reason.
On the same day, the Supreme Court also upheld prosecutions (providing a helpful reading list) of some fetish magazines (Douglas talked about them in the last case; Black didn't watch the stuff ... Douglas as seen by his off Court activities was more into the sex thing) described as "relatively normal heterosexual relations, but more depict such deviations as sado-masochism, fetishism, and homosexuality." Justice Stewart, in a brief opinion this time, just said they weren't hard core enough to count. This underlines Brennan was somewhat more of a prude than one might have though. It took him a while to give up on this obscenity thing -- he didn't even go along with Justice Marshall at first in Stanley v. Georgia, which upheld the right to at least possess it in the home.**
The die was cast at this point though -- and "The Lovers" was an important point in the process along with the "utterly without redeeming value" tossed in when they dealt with Fanny Hill (didn't read ... did check out some of Moll Flanders -- she was okay with most everything, except for incest with a brother she never knew she had). Some of the stuff that they handled (earlier it was The Miracle) was about as "PG" at best rated, others more pornographic. You can imagine some line between this stuff, but the fact this sort of film (and others not much worse) was felt to be on the wrong side is telling. Plus, the fact some late nite soft porn and the like is in some fashion "garbage" is not really a good reason to make an exception to the First Amendment anyhow.
Anyway, it was interesting to see the film and the oral argument regarding it (and other cases) can be found here.
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* Later, it was noted that these obscenity rulings were important to help upheld sexual freedom generally, the first move allowing even talking about it. The oral argument in that case, e.g., is striking in its open expression of homosexuality. After upholding two obscenity convictions, but using the Roth case to put people on notice that much more sexual material will be acceptable, the Supreme Court also -- without comment -- voted to protect a homosexual magazine. This might be counted as the first homosexuals rights case won at that level.
** Stanley, unlike previous majority opinions, also actually seriously addressed the rationales for obscenity prosecutions, finding them lacking except perhaps dealing with minors (but see the later violent video game case) and unwilling viewers. Pandering might fit in there somehow, to be generous. As with the privacy stuff, it's useful when the Court seriously takes the time to discuss this stuff. And, this includes Douglas talking about the material. Black and Stewart speaking in generalities about how speech is protected is fine up to a point. It shouldn't matter. But, sometimes, it helps to show that something falls even if you go half-way with the other side:
Some of the tracts for which these publishers go to prison concern normal sex, some homosexuality, some the masochistic yearning that is probably present in everyone and dominant in some. Masochism is a desire to be punished or subdued. In the broad frame of reference the desire may be expressed in the longing to be whipped and lashed, bound and gagged, and cruelly treated. Why is it unlawful to cater to the needs of this group? They are, to be sure, somewhat offbeat, nonconformist, and odd.[space breaks inserted] True enough -- why isn't "crap" of some value for various reasons? If talk radio has its value, somewhat "low" art does as well. The importance "pulps" had to homosexuals and others (even today, romance novels provide a certain release, soap operas repeatedly were ahead of the curve on covering many issues) has been well discussed. Something doesn't have to have a "deep" meaning to have some value to someone and the little things often are quite important. This pops up in various contexts, small wrongs often leading to major hurts.
But we are not in the realm of criminal conduct, only ideas and tastes. Some like Chopin. others like "rock and roll." Some are "normal," some are masochistic, some deviant in other respects, such as the homosexual. Another group also represented here translates mundane articles into sexual symbols. This group, like those embracing masochism, are anathema to the so-called stable majority.
But why is freedom of the press and expression denied them? Are they to be barred from communicating in symbolisms important to them? When the Court today speaks of "social value," does it mean a "value" to the majority? Why is not a minority "value" cognizable? The masochistic group is one; the deviant group is another. Is it not important that members of those groups communicate with each other? Why is communication by the "written word" forbidden? If we were wise enough, we might know that communication may have greater therapeutical value than any sermon that those of the "normal" community can ever offer. But if the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be "utterly without redeeming social importance"? "Redeeming" to whom? "Importance" to whom?
If we were wise enough, we might know that communication may have greater therapeutical value than any sermon that those of the "normal" community can ever offer. But if the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be "utterly without redeeming social importance"? "Redeeming" to whom? "Importance" to whom?
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