Word: brennan
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Dates: during 1960-1969
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Stiff Rule. The big news was the new obscenity standard laid down in the Ginzburg decision-which was based not so much on the content of his publications as on the way he peddled them. Speaking for the court in all three cases, Justice William J. Brennan said that Ginzburg's "titillating" advertising was so permeated with "the leer of the sensualist" that he was guilty of "the sordid business of pandering." Brennan took dead aim at "those who would make a business of pandering to the widespread weakness for titillation by pornography." The result: a stiff new rule...
Conduct v. Thought. Having reached exactly that conclusion, Justice Brennan last week tried to push the Roth decision, which he also wrote, far closer to a manageable test of conduct rather than thought. At issue in the Ginzburg case were Eros, whose chef-d'oeuvre in the disputed edition was a color portfolio of a white woman and Negro man, both naked, in multiple embraces; Liaison, a sex-front "newsletter" that was a compendium of sex jokes; and The Housewife's Handbook on Selective Promiscuity, a Tucson woman's clinical account of her increased pleasure with unconventional...
...Justice Brennan refused to endorse the trial judge's ringing condemnation of all three Ginzburg products as themselves obscene and "a gross shock to the mind." Instead, Brennan nailed Ginzburg for salacious sales pitches. In one Eros brochure, he blatantly promised articles on "Incest in the American Midwest," "Was Shakespeare a Homosexual?" and "Sex in the Supermarket." Before Ginzburg acquired Handbook, its author, "Rey Anthony," printed it privately, sold 12,000 copies to assorted therapists, several of whom had testified at the trial that it proved useful in professional practice. Ginzburg's companies, said Brennan, went beyond this...
...Rules. In the second case, New York Pornographer Edward Mishkin argued that his books were not legally obscene because they excited only sick rather than normal people. Brennan agreed-and duly "adjusted" Roth's prurient-appeal standard from the "average adult" to the average members of any "probable recipient group," including sadists and masochists...
...third case, which cleared Fanny Hill, Brennan noted expert testimony in the Massachusetts trial that Fanny "belongs to the history of English literature rather than the history of smut." All the same, added Brennan, in an apparent invitation to further litigation, "evidence that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values, might justify the conclusion that the book was utterly without redeeming social value...