9 N.Y.2d 342 (1961)

A book can be deemed obscene and outside First Amendment protection if, taken as a whole, its dominant theme appeals to prurient interest, is patently offensive to contemporary community standards, and constitutes hard-core pornography, regardless of some literary merit.

Summary

Defendants were convicted of selling Henry Miller’s “Tropic of Cancer” in violation of New York’s obscenity law. The County Court reversed, finding the book not obscene as a matter of law. The New York Court of Appeals considered whether the book was obscene under the statute and the First Amendment. The court held that “Tropic of Cancer” was obscene, finding it appealed to prurient interests, was patently offensive, and constituted hard-core pornography. The court rejected the argument that literary merit protected the book and ordered a new trial on the issue of the defendants’ knowledge (scienter) of the book’s obscenity.

Facts

The defendants were convicted after a jury trial for selling “Tropic of Cancer” by Henry Miller. The book contains numerous explicit descriptions of sexual acts and uses offensive language. The prosecution argued that the book was obscene and violated New York Penal Law § 1141, which prohibits the sale of obscene materials. The defendants argued that the book had literary merit and was protected by the First Amendment.

Procedural History

The trial court convicted the defendants. The County Court reversed the convictions and dismissed the information, concluding that “Tropic of Cancer” was not obscene as a matter of law and that the jury’s finding on scienter was against the weight of the evidence. The People appealed to the New York Court of Appeals.

Issue(s)

Whether “Tropic of Cancer” is obscene under New York Penal Law § 1141 and therefore not protected by the First Amendment.

Holding

Yes, because the book, taken as a whole, appeals to prurient interests, is patently offensive to contemporary community standards, and constitutes hard-core pornography. The presence of some literary merit does not automatically shield it from obscenity laws.

Court’s Reasoning

The court applied the three-part test for obscenity derived from Roth v. United States and Manual Enterprises v. Day, requiring the material to (1) appeal to prurient interest, (2) be patently offensive, and (3) constitute hard-core pornography (as interpreted in People v. Richmond County News). The court emphasized its duty to make an independent constitutional appraisal of the book. After carefully reading the book, the court concluded that “it is nothing more than a compilation of a series of sordid narrations dealing with sex in a manner designed to appeal to the prurient interest.” The court found the book to be “devoid of theme or ideas” and filled with “a constant repetition of patently offensive words used solely to convey debasing portrayals of natural and unnatural sexual experiences.” The court explicitly rejected the argument that substantial literary merit could save an otherwise obscene work, stating, “This court will not adopt a rule of law which states that obscenity is suppressible but that well-written obscenity is not.” While acknowledging the importance of scienter, the court remanded for a new trial on that issue because the County Court had also ruled against the weight of the evidence on that point. The court quoted Kingsley Pictures Corp. v. Regents, characterizing the book as “dirt for dirt’s sake… and dirt for money’s sake.”