It was emphasized that elimination of the scienter requirement would “tend to work a substantial restriction on on the freedom of speech and of the press." Justice Brennan stated that "stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser."

Each of the concurring opinions in Smith v. California by Justices Black, Frankfurter and Harlan indicated that the Justices believed that the Court was dealing not only with the necessity for imposing a scienter requirement in obscenity prosecutions, but most of the Justices assumed that such standard was equivalent to knowledge of the obscene contents or obscene character of the material (361 U.S. at 156, 161–163, 170).

In Manual Enterprises, Inc. v. Day, 370 U.S. 478, the magazines involved included a number of advertisements by independent photographers, offering nudist photographs for sale. It was argued by the Government that some of these third party advertisers were offering to sell obscene materials. The record however did not establish that the publisher of the magazines knew that such obscene material was being offered for sale. The Government argued that a scienter requirement was not necessary since the proceedings were civil in nature. Justice Harlan rejected the Government's argument and held for the Court that proof of scienter was as necessary in civil proceedings as it was in criminal proceedings, and that it was necessary for the Government to show that the publisher knew that the advertisers' works were obscene. (370 U.S. at 492-493. fn.16).

In New York Times Co. v. Sullivan, 376 U.S.254, the Supreme Court held that the constitutional protections for speech and press do not turn upon "the truth, popularity or social utility of the ideas and beliefs which are offered" (376 U.S. at 271). The Court held that neither factual error nor defamatory "content" suffices to remove the constitutional shield from criticism of official conduct (376 U.S. at 273). Nor was it sufficient to satisfy the Constitution in a libel action that the State allowed a defense of truth. "A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge which, in Smith v. California, 361 U.S.147, ., we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale." (376 U.S at 278) The Supreme Court concluded that an action did not lie for a defamatory falsehood relating to an official's conduct unless "he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not" (376 U.S. at 279-280-. Thus, in order to maintain the freedoms of expression guaranteed by the First Amendment, the Supreme Court held that it was not sufficient to prove that a person knew that it was false or made the statement with reckless disregard of whether it was false or not. Similarly, the issue in an obscenity prosecution is not whether the accused knew the contents of the material, but whether he knew it was obscene. Moreover, it should be noted that in New York Times Co. v. Sullivan the Court not only enunciated the aforesaid principles, but held that it was required under the Constitution "to make certain that those principles have been constitutionally applied." Addressing itself to the quality and quantity of evidence to establish that the alleged libelant knew that the statements were false or acted in reckless disregard of their truth or falsity, the Court held that the proof presented lacked "the convincing clarity which the constitutional standard demands," and the judgment was therefore necessarily reversed. (376 U.S. at 284–286).

In Mishkin v. New York, 383 U.S.502, a claim was made that the New York obscenity statute was constitutionally invalid because of the lack of requirement of scienter. In rejecting this argument, the Supreme Court observed that the same statute had been previously construed by the highest court of the State (People v. Finkelstein, 9 N.Y.2d 342, 214 N.Y.S.2d 363, 174 N.E.2d 470 [1961]) to require the "vital element of scienter." The Supreme Court noted that the state court in Finkelstein had defined "scienter" in the following terms: "A reading of the statute [$1141] as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exercised." Mr. Justice

Brennan, in quoting the aforesaid construction by the state court, added the emphasis which appears in the quotation.

The State, in Finkelstein, had argued that scienter in obscenity prosecutions meant no more than knowledge of "contents" of the material, apparently taking out of context the use of the same word by Mr. Justice Brennan in Smith v. California. To clarify this issue, Justice Brennan, in Mishkin, not only emphasized that there must be an intentional purveyance of obscenity, but that the use of the words "knowledge of the contents" of the material, by a state court judge in a subsequent opinion in the same Finkelstein case, could not be considered "as a modification of this definition of scienter" which had been enunciated by the state court in its first opinion. (383 U.S. at 510, fn. 9). Justice Brennan added the following: "The Constitution requires proof of scienter to avoid the hazard of selfcensorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity." (383 U.S. at 511.)

The state cases to which Justice Brennan referred make it amply clear that the standard for judging scienter which Justice Brennan adopted for the Supreme Court requires proof of knowledge of obscenity, not merely proof of knowledge of "contents." See, People v. Finkelstein, 9 N.Y.2d 342, 346, 214 N.Y.S.2d 363, 174 N.E.2d 470 (1971); People v. Richmond County News, 9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 681 (1961).

A word should be said about the affirmative defense pursuant to which it is no offense to disseminate obscene material to a person "whose receipt of such material was authorized in writing by a licensed medical practitioner or psychiatrist." The idea of getting a medical prescription to buy a book or magazine or view a film is ludicrous. To give doctors and psychiatrists the right to tell adults what they may or may not see is to treat adults like children rather than as responsible citizens.

President Franklin Roosevelt said, "The arts cannot thrive except where men are free to be themselves and to be in charge of the discipline of their own energies and ardors. The conditions for democracy and for art are one and the same. What we call liberty in politics results in freedom of the arts." The converse is also true.

"In our industrial era when, perforce, economic pursuits must be, increasingly, governmentally regulated, it is especially important that the realm of art-the non-economic real-should remain free, unregimented, the domain of free enterprise, of unhampered competition at its maximum. And individual's taste is his own, private concern. De gustibus non est disputandum represents a valued democratic maximum." Roth v. United States, 237 F.2d 796 (2 Cir. 1956).

More than 100 years ago, J. S. Mill, in his Essay on "Liberty," maintained that conformity in taste is not a virtue, but a vice. "The danger," he wrote, "is not the excess but the deficiency of personal importation and preferences. By dint of not following their own nature, men have no nature to follow . . Individual spontaneity is entitled to free exercise. . . . That so few men dare to be eccentric marks the chief danger of the time." In Roth v. United States, Judge Frank admonished:

"... We have been warned by eminent thinkers of the easy path from any apparently mild governmental control of what adult citizens may read to governmental control of adults' political and religious reading, John Milton, Thomas Jefferson, James Madison, J. S. Mill and Tocqueville have pointed out that any paternalistic guardianship by government of the thoughts of grown-up citizens enervates their spirit, keeps them immature, all too ready to adopt toward government officers the attitude that, in general, 'Papa knows best.' If the government possesses the power to censor publications which arouse sexual thoughts, regardless of whether those thoughts tend probably to transform themselves into antisocal behavior, why may not the government censor political and religious publications regardless of any casual relation to probable dangerous deeds. . . ."

CONCLUSION

If the First Amendment means anything, it means that a man cannot be punished as a criminal merely for distributing books or exhibiting films which offend aesthetic or moral sensibilities. The proposed section is at

war with the First Amendment, because it seeks to make criminals of all persons who in any way disseminate any material describing sexual intercourse or depicting nudity. The proposed section would impose a heavy censorship throughout the Land. The section should be rejected, essentially for the reasons set forth by Mr. Justice Stewart, dissenting in Ginsburg v. United States, 383 U.S.463, 498, where he said:

"Censorship reflects a society's lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or for worse, in the enlightened choice of the people. free from the interference of a policeman's intrusive thumb or a judge's heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself."

Senator HRUSKA. Mr. Weston, is my understanding correct, you would be able to come back here in July?

Mr. WESTON. Yes, Senator, I would be.

Senator HRUSKA. Well, suppose we suspend your testimony at this time and schedule you for a suitable and mutually convenient time during July, because we will have hearings during the entire month, so we may accommodate another witness who is here from out of the city.

Mr. WESTON. Certainly, Senator. That will be satisfactory.

Thank you, sir.

Senator HRUSKA. Out next and final witness is the Reverend Morton A. Hill from New York.

We have until 4:30, Father Hill, in which to hear you. We will put your statement in the record. It will be printed in its entirety.

STATEMENT OF REV. MORTON A. HILL, S.J., MEMBER OF THE PRESIDENTIAL COMMISSION ON OBSCENITY AND PORNOG

RAPHY

Father HILL. Thank you, Senator.

My name is Father Morton A. Hill S.J., of New York City. For more than 40 years I have devoted myself to a study of the obscenity laws of the United States and the various States, and their proper enforcement.

I have appeared as an expert witness for the Government in various obscenity cases successfully prosecuted. I am appearing here today in my capacity as a private citizen and as a former member of the Presidential Commission on Obscenity and Pornography. I was a member of the legal panel of that Commission, and together with Commissioner Link-Commissioner Keating concurring-published a 146-page minority report, which I have here, which showed the scientific and legal fallacies upon which the majority report was based pp. 383-509 of the "Report of the Presidential Commission on Obscenity and Pornography." Our report contained a complete review of the law and model bills for consideration.

You will also recall that the Senate rejected the majority report by a vote of 60 to 5. A major portion of the Hill-Link minority report was printed in the Congressional Record.

I am here today to discuss S. 1 and S. 1400 insofar as these bills relate to the difficult problem of establishing a definition of obscenity that is both workable and constitutional. In order to put my remarks in a proper frame of reference and to make them meaningful, it is necessary to briefly review the obscenity decisions in the United States.

The only case where the United States Supreme Court has defined obscenity is Roth v. United States-354 U.S. 476 (1957). In that case, decided in 1957, the Court said: "Obscene material is material which deals with sex in a manner appealing to prurient interest."

In a footnote the Court tells us that "appealing to prurient interest" means "having a tendency to excite lustful thoughts." Having given us the definition of obscenity, the Court then goes on to give us the test for obscenity as follows:

Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.

In passing, the Roth Court said that lewdness and obscenity "are of such slight social value *** that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." [Emphasis added.]

The Roth Court then specifically approved the charge given by the lower court to the jury which, incidentally, did not contain any social value test although it did contain the prurient interest test as well as a requirement that it "offend the common conscience of the community."

The Roth Court also equated its test with the American Law Institute test which defined a thing as obscene "if considered as a whole, its predominant appeal is to prurient interest *** and it goes substantially beyond customary limits of candor in description or representation of such matters."

From 1957 to 1966, the Roth test of obscenity was successfully applied by the legislatures and the courts. In 1966, however, along came the case of A Book Named Memoirs of a Woman of Pleasure v. Attorney General of Masachusetts-383 U.S. 413, 16 L. Ed. 2d 1— popularly known as Fanny Hill. In that case, in an opinion joined in by only two other justices, Justice Brennan attempted to add a new dimension to Roth not present in the original case.

This was the suggestion that in addition to prurient interest appeal the judge or jury must separately determine that the disputed material is "utterly without redeeming social value." It is interesting to note that the Court Reporter tells us in that case, 16 Lawyers Edition Second at page 1, that: "The *** members of the Court *** did not agree upon an opinion."

Justices Brennan, Warren, and Fortas stated in Fanny Hill that the lower Massachusetts court erred in holding that a book need. not be "unqualifiedly worthless before it can be deemed obscene." They stated that:

Three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of

sexual matters; and (c) the material is utterly without redeeming social value...

Even on the view of the court below that Memoirs possessed only a modicum of social value, its judgment must be reversed.

Justice Clark's opinion appears at 16 Lawyers Edition Second, page 18:

While there is no majority opinion in this case, there are three justices who import a new test into that laid down in Roth, namely that 'a book cannot be proscribed unless it is found to be utterly without redeeming social value.'

1 agree with my Brother White that such a condition rejects the basic holding of Roth and gives the smut artist free rein to carry on his dirty business. My note in that case-which was the deciding one for the majority opinion-was cast solely because the Court declared the test of obscenity to be:

"whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."

I understand that test to include only two constitutional requirements: (1) the book must be judged as a whole, not by its parts; and (2) it must be judged in terms of its appeal to the prurient interest of the average person, applying contemporary community standards. Indeed, obscenity was denoted in Roth as having "such slight social value as a step to truth that any benefit that may be derived . . . is clearly outweighed by the social interest in order and morality'. Moreover, in no subsequent decision of this Court has any 'utterly without redeeming social value' test been suggested much less expounded. The first reference to such a test was made by my Brother Brennan in Jacobellis v. Ohio seven years after Roth in an opinion joined only by Justice Goldberg

Justice White, in his opinion, stated:

In Roth v. United States. . . the Court held a publication to be obscene if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor. Material of this kind, the Court said, is 'utterly without redeeming social importance' and is therefore unprotected by the First Amendment.

To say that material within the Roth definition of obscenity is nevertheless not obscene if it has some redeeming social value is to reject one of the basic propositions of the Roth case that such material is not protected because it is inherently and utterly without social value.

If "social importance" is to be used . . . obscene material, however far beyond customary limits of candor, is immune if it has any literary style, if it contains any historical references or language characteristic of a bygone day, or even if it is printed or bound in an interesting way. Well written, especially obscenity is protected; the poorly written is vulnerable. And why shouldn't the fact that some people buy and read such material prove its social value?

A fortiori, if the predominant theme of the book appeals to the prurient interest as stated in Roth, but the book nevertheless contains here and there a passage descriptive of character, geography or architecture, the book would not be "obscene" under the social importance test. I had thought that Roth counseled the contrary: that the character of the book is fixed by its predominant theme and is not altered by the presence of minor themes of a different nature. The Roth Court's emphatic reliance on the quotation from Chaplinsky . . . means nothing less: ...

Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and mortality.

In my view "social importance" is not an independent test of obscenity but is relevant only to determine the predominant prurient interest of the