The material must also exceed the limits of tolerance imposed by current standards of the community with respect to freedom of expression in matters concerning sex and sex relations. Moreover, a book is not to be judged by excerpts or individual passages but must be judged as a whole.
All of these factors must be present before a book can be held obscene and thus outside constitutional protections.
Judged by these standards, “Lady Chatterley’s Lover” is not obscene. The decision of the Postmaster General that it is obscene and therefore non-mailable is contrary to law and clearly erroneous. This is emphasized when the book is considered against its background and in the light of its stature as a significant work of a distinguished English novelist.
D. H. Lawrence is one of the most important novelists writing in the English language in this century. Whether he is, as some authorities say, the greatest English novelist since Joseph Conrad, or one of a number of major figures, makes little difference. He was a writer of great gifts and of undoubted artistic integrity.
The text of this edition of “Lady Chatterley’s Lover” was written by Lawrence toward the close of his life and was his third version of the novel, originally called “Tenderness”.
The book is almost as much a polemic as a novel.
In it Lawrence was expressing his deep and bitter dissatisfaction with what he believed were the stultifying effects of advancing industrialization and his own somewhat obscure philosophic remedy of a return to “naturalness.” He attacks what he considered to be the evil effects of industrialization upon the wholesome and natural life of all classes in England. In his view this was having disastrous consequences on English society and on the English countryside. It had resulted in devitalization of the upper classes of society and debasement of the lower classes. One result, as he saw it, was the corrosion of both the emotional and physical sides of man as expressed in his sexual relationships which had become increasingly artificial and unwholesome.
The novel develops the contrasts and conflicts in characters under these influences.
The plot is relatively simple.
Constance Chatterley is married to a baronet, returned from the first World War paralyzed from the waist down. She is physically frustrated and dissatisfied with the artificiality and sterility of her life and of the society in which she moves. Her husband, immersed in himself, seeks compensation for his own frustrations in the writing of superficial and brittle fiction and in the exploitation of his coal mining properties, a symbol of the creeping industrial blight. Failing to find satisfaction in an affair with a man in her husband’s circle, Constance Chatterley finds herself increasingly restless and unhappy. Her husband half-heartedly urges her to have a child by another man whom he will treat as his heir. Repelled by the suggestion that she casually beget a child, she is drawn to Mellors, the gamekeeper, sprung from the working class who, having achieved a measure of spiritual and intellectual independence, is a prototype of Lawrence’s natural man. They establish a deeply passionate and tender relationship which is described at length and in detail. At the conclusion she is pregnant and plans to obtain a divorce and marry the gamekeeper.
This plot serves as a vehicle through which Lawrence develops his basic theme of contrast between his own philosophy and the sterile and debased society which he attacks. Most of the characters are prototypes. The plot and theme are meticulously worked out with honesty and sincerity.
The book is replete with fine writing and with descriptive passages of rare beauty. There is no doubt of its literary merit.
It contains a number of passages describing sexual intercourse in great detail with complete candor and realism. Four-letter Anglo-Saxon words are used with some frequency.
These passages and this language understandably will shock the sensitive minded. Be that as it may, these passages are relevant to the plot and to the development of the characters and of their lives as Lawrence unfolds them. The language which shocks, except in a rare instance or two, is not inconsistent with character, situation or theme.
Even if it be assumed that these passages and this language taken in isolation tend to arouse shameful, morbid and lustful sexual desires in the average reader, they are an integral, and to the author a necessary22 part of the development of theme, plot and character. The dominant theme, purpose and effect of the book as a whole is not an appeal to prurience or the prurient minded. The book is not “dirt for dirt’s sake.”23 Nor do these passages and this language submerge the dominant theme so as to make the book obscene even if they could be considered and found to be obscene in isolation.
What the Postmaster General seems to have done is precisely what the Supreme Court in Roth and the courts in the Ulysses case said ought not to be done. He has lifted from the novel individual passages and language, found them to be obscene in isolation and therefore condemned the book as a whole. He has disregarded the dominant theme and effect of the book and has read these passages and this language as if they were separable and could be taken out of context. Thus he has “weighed” the isolated passages which he considered obscene against the remainder of the book and concluded that the work as a whole must be condemned.
Writing about sex is not in itself pornographic, as the Postmaster General recognized. Nor does the fact that sex is a major theme of a book condemn the book as obscene. Neither does the use of “four-letter” words, despite the offense they may give. “Ulysses” was found not to be obscene despite long passages containing similar descriptions and language. As Judge Woolsey said there (5 F. Supp. pp. 183, 184):
“The words which are criticized as dirty are old Saxon words known to almost all men and, I venture, to many women, and are such words as would be naturally and habitually used, I believe, by the types of folk whose life, physical and mental, Joyce is seeking to describe.”
Such words “are, almost without exception of honest Anglo-Saxon ancestry and were not invented for purely scatological effect.”24
The tests of obscenity are not whether the book or passages from it are in bad taste or shock or offend the sensibilities of an individual, or even of a substantial segment of the community. Nor are we concerned with whether the community would approve of Constance Chatterley’s morals. The statute does not purport to regulate the morals portrayed or the ideas expressed in a novel, whether or not they are contrary to the accepted moral code, nor could it constitutionally do so. Kingsley International Pictures v. Regents, supra.
Plainly “Lady Chatterley’s Lover” is offensive to the Postmaster General, and I respect his personal views. As a matter of personal opinion I disagree with him for I do not personally find the book offensive.
But the personal views of neither of us are controlling here. The standards for determining what constitutes obscenity under this statute have been laid down. These standards must be objectively applied regardless of personal predilections.
There has been much discussion of the intent and purpose of Lawrence in writing Lady Chatterley. It is suggested that the intent and purpose of the author has no relevance to the question as to whether his work is obscene and must be disregarded.
No doubt an author may write a clearly obscene book in the mistaken belief that he is serving a high moral purpose. The fact that. this is the author’s purpose does not redeem the book from obscenity.
But the sincerity and honesty of purpose of an author as expressed in the manner in which a book is written and in which his theme and ideas are developed has a great deal to do with whether it is of literary and intellectual merit. Here, as in the Ulysses case, there is no question about Lawrence’s honesty and sincerity of purpose, artistic integrity and lack of intention to appeal to prurient interest.
Thus, this is an honest and sincere novel of literary merit and its dominant theme and effect, taken as a whole, is not an appeal to the prurient interest of the average reader.
This would seem to end the matter. However, the Postmaster General’s finding that the bo
ok is non-mailable because it offends contemporary community standards bears some discussion.
I am unable to ascertain upon what the Postmaster General based this conclusion. The record before him indicates general acceptance of the book throughout the country and nothing was shown to the contrary. The critics were unanimous. Editorial comment by leading journals of opinion welcomed the publication and decried any attempts to ban it.
It is true that the editorial comment was excluded by the Judicial Officer at the hearing. But it seems to me that this was error. These expressions were relevant and material on the question of whether the book exceeded the limits of freedom of expression in matters involving sex and sex relations tolerated by the community at large in these times.
The contemporary standards of the community and the limits of its tolerance cannot be measured or ascertained accurately. There is no poll available to determine such questions. Surely expressions by leading newspapers, with circulations of millions, are some evidence at least as to what the limits of tolerance by present-day community standards are, if we must embark upon a journey of exploration into such uncharted territory.
Quite apart from this, the broadening of freedom of expression and of the frankness with which sex and sex relations are dealt with at the present time require no discussion. In one best-selling novel after another frank descriptions of the sex act and “four-letter” words appear with frequency. These trends appear in all media of public expression, in the kind of language used and the subjects discussed in polite society, in pictures, advertisements and dress, and in other ways familiar to all. Much of what is now accepted would have shocked the community to the core a generation ago. Today such things are generally tolerated whether we approve or not.
I hold that, at this stage in the development of our society, this major English novel does not exceed the outer limits of the toerance which the community as a whole gives to writing about sex and sex relations.
One final word about the constitutional problem implicit here.
It is essential to the maintenance of a free society that the severest restrictions be placed upon restraints which may tend to prevent the dissemination of ideas.25 It matters not whether such ideas be expressed in political pamphlets or works of political, economic or social theory or criticism, or through artistic media. All such expressions must be freely available.
A work of literature published and distributed through normal channels by a reputable publisher stands on quite a different footing from hard core pornography furtively sold for the purpose of profiting by the titillation of the dirty minded. The courts have been deeply and properly concerned about the use of obscenity statutes to suppress great works of art or literature. As Judge Augustus Hand said in Ulysses (72 F. 2d p. 708):
“ * * *The foolish judgments of Lord Eldon about one hundred years ago, proscribing the works of Byron and Southey, and the finding by the jury under a charge by Lord Denman that the publication of Shelley’s ‘Queen Mab’ was an indictable offense are a warning to all who have to determine the limits of the field within which authors may exercise themselves.”
To exclude this book from the mails on the grounds of obscenity would fashion a rule which could be applied to a substantial portion of the classics of our literature. Such a rule would be inimical to a free society. To interpret the obscenity statute so as to bar “Lady Chatterley’s Lover” from the mails would render the statute unconstitutional in its application, in violation of the guarantees of freedom of speech and the press contained in the First Amendment.
It may be, as the plaintiffs urge, that if a work is found to be of literary stature, and not “hard core” pornography, it is a fortiori within the protections of the First Amendment. But I do not reach that question here. For I find that “Lady Chatterley’s Lover” is not obscene within the meaning of 18 U. S. C. § 1461, and is entitled to the protections guaranteed to freedoms of speech and press by the First Amendment. I therefore hold that the order of the Postmaster General is illegal and void and violates plaintiffs’ rights in contravention of the Constitution.
Defendant’s motion for summary judgment is denied. Plaintiffs’ cross-motions for summary judgment are granted. An order will issue permanently restraining the defendant from denying the mails to this book or to the circulars announcing its availability.
Settle order on notice.
Dated, New York, N. Y.
July 21, 1959
FREDERICK VANPELT BRYAN
U. S. D. J.
Notes
1 The relevant portions of § 1461 provide:
“Every obscene, lewd, lascivious, indecent, filthy or vile article * * * and
“Every written or printed * * * circular, * * * or notice of any kind giving information * * * where, or how, or from whom * * * any of such * * * articles * * * may be obtained * * *
“Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.”
The statute provides penalties for violation of up to five years’ imprisonment and a maximum fine of $5,000 for a first offense and up to ten years’ imprisonment and a maximum $10,000 fine for subsequent offenses.
2 Plaintiffs originally moved for a preliminary injunction but that motion is moot in the present posture of the case.
3 The Judicial Officer heard the case pursuant to a stipulation between the parties which had the effect of obviating the requirement that the case be heard by an independent Hearing Examiner. See Borg-Johnson Electronics, Inc. v. Christenberry, D. C. S. D. N. Y., 169 F. Supp. 746.
4 This referral was made pursuant to paragraph III (b) 23 F. R 2817, which provides certain “Decisions and orders of the Judicial Officer * * * shall be the final departmental decision * * * except that the Judicial Officer may refer any proceeding to * * * the Postmaster General * * * for final decision.” The order of the Judicial Officer making the referral said:
“The complainant alleges that the book ‘Lady Chatterley’s Lover’ is obscene and nonmailable under 18 U. S. C. 1461 and that the circular of Readers’ Subscription, Inc., gives information as to where obscenity may be obtained. The complainant admits that the novel has literary merit but claims that the obscene passages outweigh the literary merit.
“The book at issue, which is the unexpurgated version, has for many years been held to be nonmailable by the Post Office Department and non-importable by the Bureau of Customs of the Department of the Treasury. To hold the book to be mailable matter would require a reversal of rulings of long standing by this Department and to cast doubt on the rulings of a coordinate executive department.”
5 I use the word “obscene” as covering the words “obscene, lewd, lascivious, indecent, filthy or vile” as used in the statute in so far as they may be applicable to this book.
6 The court expressly limited its grant of certiorari to constitutional questions concerning the validity of Section 1461 on its face, and thus was not concerned with the specific facts of the case. Roth v. United States, 352 U.S. 964.
7 United States v. One Book Called “Ulysses”, D. C. S. D. N. Y., 5 F. Supp. 182, aff’d, 2 Cir., 72 F. 2d 705.
8 “No issue is presented * * * concerning the obscenity of the material involved.” (Footnote 8, p. 481.)
9 One, Inc. v. Olesen, 9 Cir., 241 F. 2d 772; Sunshine Book co. v. Summerfield, D.C.D.C., 128 F. Supp. 564, D.C. Cir., 249 F. 2d 114.
10 Concurring in Matter of Kingsley Corp. v. Regents, 4 N. Y. 2d 349, 368.
11 Professor Davis notes in Administrative Law Treatise, (1958) Vol. 4, § 30.07, “Substitution of judicial for administrative judgment is often rather clearly desirable, * * * [on questions] which (1) transcend the single field of the particular agency, (2) call for interpretation of the common law, * * * (4) are affected substantially by constitutional considerations, whether or not constitutional issue is directly presented, * * * (6) bring into question judge-made law previously developed in the course of statu
tory interpretation * * *.” These criteria are all present here.
12 These questions have never been decided by the Supreme Court The sharply divided Court of Appeals for the District of Columbia Circuit, sitting en banc found that the Postmaster General had such power in Sunshine Book Co. v. Summerfield, supra. But I &d the dissenting opinion persuasive.
13 Even under 39 U. S. C. §§ 259a and 259b, which give the Postmaster General power to withhold incoming mail from a purveyor of obscenity “upon evidence satisfactory” to him, an application to the District Court is required within twenty days for a determination, inter alia, as to whether the detention is reasonable or necessary. This is in contrast to Section 1461, included in the Criminal Code, where no such statutory scheme is provided.
14 The defendant cites language to indicate that the question of whether material is obscene is committed to agency discretion. One line of cases deals with “fraud orders.” (39 U. S. C. § 259.) Fraud is almost always a question of fact and Section 259 provides that the Postmaster General may deny the mails “upon evidence satisfactory to him.” Such cases as Gottlieb v. Schaffer, D. C. S. D. N. Y., 141 F. Supp. 7, which apply the substantial evidence test to agency findings of fact under these circumstances are clearly distinguishable. See, also, Donaldson v. Read Magazine, Inc., 333 U. S. 178.
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