An amusing sentence from Justice Clark's dissenting opinion in the 1966 case Memoirs v. Massachusetts, attempting to explain what is in the text of "Memoirs of a Woman of Pleasure," because he is "obliged to portray the book's contents, which causes me embarrassment." He avoids actual quotations from the book because it would "debase" the set of volumes that contain U.S. Supreme Court opinions. I was also amused by: "The pubic hair is often used for a background to the most vivid and precise descriptions of the response, condition, size, shape. and color of the sexual organs before, during and after orgasms."
The narrator in "Memoirs" is a prostitute named Fanny Hill, and Justice Clark, addressing actual legal arguments made in this First Amendment case, writes: "To say that Fanny is an 'intellectual' is an insult to those who travel under that tag. She was nothing but a harlot — a sensualist.... As an empiricist, Fanny confines her observations and 'experiments' to sex, with primary attention to depraved, lewd, and deviant practices."
I was also amused by Clark's dismay that one expert at trial had claimed that the book had literary merit because the verb "waddles" was used instead of "walks" to describe a fat woman entering a room and that another expert said that the 18th century book contributed to an understanding of history through its repeated descriptions of "the male sexual organ as an engine... which is pulling you away from the way these events would be described in the 19th or 20th century."
It's funny now, when you can get the book through a simple click. Feel free to read just the dirty parts, in other words — if I am to believe Justice Clark's opinion and as they say in the blogosphere — read the whole thing.
ADDED: I love the idea of insulting those who "travel under the tag" "intellectual." That's something I know I try to do whenever I can. And I'm fascinated by the expert's inadvertently causing us to picture a giant penis-locomotive dragging us into the past. That's quite a time machine you've got there! And the notion of pubic hair as a background for a visualization of male genitalia. It's like pubic hair is to cock as black velvet is to Elvis.
AND: Why the sudden interest in Justice Tom Clark? My conlaw casebook has a squib on this case:
[I]n Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of three (Warren, Brennan, and Fortas) restated Roth as follows:I'm counting: Warren, Brennan, Fortas, Black, Douglas, Harlan, Stewart. That's only 7. Somebody's not getting any respect. The other unmentioned Justice? Byron White.
[T]hree 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.As Chief Justice Burger later noted in Miller, “While Roth presumed ‘obscenity’ to be ‘utterly without redeeming social importance,’ Memoirs required that to prove obscenity it must be affirmatively established that the material is ‘utterly without redeeming social value,’ [a] burden virtually impossible to discharge under our criminal standards of proof.” Nevertheless, this formulation was the most widely applied, even though no majority of the Court could agree on a standard to determine what constituted obscenity. Warren, Brennan, and Fortas subscribed to the Memoirs variation; Black and Douglas asserted that obscenity was constitutionally protected; Harlan held to his Roth view; and Stewart thought that both federal and state governments could suppress “hard-core” pornography. Justice Stewart’s famous epigram in his concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964), dramatized the problem of defining “obscenity.” Speaking of hard-core pornography, Stewart said: “I know it when I see it.”