How Justice Brennan Freed Novels and Movies During the Sixties

In June 1963, New York Times columnist Anthony Lewis wrote a piece for Esquire magazine entitled "Sex... and the Supreme Court." In it, Lewis, who was then working the Times's Supreme Court beat, observed that the nine not-so-old men sitting on the Court seemed to be quietly "liberating the country from puritanism." Equally surprising was the fact that the liberation was proceeding from a landmark decision rendered in 1957, called Roth v. United States, in which the High Court had seemingly canonized the Comstockian attitude toward sexually-oriented expressive material by holding that "obscenity," i.e., "material having a tendency to excite lustful thoughts," was not protectable by the Constitution's free speech or free press guarantees. The reason it was not, said Justice William J. Brennan, Jr., speaking for the Court, was because obscenity was "utterly without redeeming social importance." In other words, obscene expression was worthless and so unworthy of 1st Amendment protection. The contradictory encouraging evidence cited by Lewis consisted in largely unnoticed Supreme Court decisions, after Roth, that had resulted in the freeing from State or federal censorship of two French films, The Game ofLove and Lady Chatterley's Lover, both based on well-known risque literary works, plus a nudist magazine called Sunshine and Health, and three gay-oriented magazines titled MANual, Trim and Grecian Guild Pictorial. (Today such material would not even raise Jesse Helms's eyebrows.) What the Court seemed to say in freeing those works was that, in its view, they did not meet the Roth test for obscenity, that is, the Brethren could not believe that they aroused the average person's lust, and so they ought to be deemed "constitutionally protected" from government suppression. In the gay-oriented magazines case, Justice Harlan, speaking for the Court, observed that, to be properly counted obscene, material had not only to be calculated to arouse its auditor's lust, it also had to be "patently offensive," terminology that some Court-watchers supposed meant it