Political and Civil Rights in the United States

By Thomas I. Emerson; David Haber | Go to book overview

CHAPTER V
FREEDOM OF SPEECH: UNTRUTHFUL AND HARMFUL COMMUNICATION

A. OBSCENITY AND RELATED MATTERS

COMMONWEALTH v. ISENSTADT
Supreme Judicial Court of Massachusetts, 1945 318 Mass. 543, 62 N.E.2d 840

QUA, J. The defendant has been found guilty by a judge of the Superior Court sitting without jury upon two complaints charging him respectively with selling and with having in his possession for the purpose of sale, exhibition, loan, or circulation a book published under the title "Strange Fruit," which is "obscene, indecent or impure, or manifestly tends to corrupt the morals of youth." G. L. (Ter. Ed.) c. 272, § 28, as amended by St. 1934, c. 231, and St. 1943, c. 239. The section (except the part describing the penalty) is reproduced in the footnote.1...

We do not pretend ignorance of the controversy which has been carried on in this Commonwealth, sometimes with vehemence, over so called "literary censorship."2 With this background in mind it may not be out of place to recall that it is not our function to assume a "liberal" attitude or a "conservative" attitude. As in other cases of statutory construction and application, it is our plain but not necessarily easy duty to read the words of the statute in the sense in which they were intended, to accept and enforce the public policy of the Commonwealth as disclosed by its policy-making body, whatever our own personal opinions

____________________
1
"Whoever imports, prints, publishes, sells or distributes a book, pamphlet, ballad, printed paper, phonographic record or other thing which is obscene, indecent or impure, or manifestly tends to corrupt the morals of youth, or an obscene, indecent or impure print, picture, figure, image or description, manifestly tending to corrupt the morals of youth, or introduces into a family, school or place of education, or buys, procures, receives or has in his possession any such book, pamphlet, ballad, printed paper, phonographic record, obscene, indecent or impure print, picture, figure, image or other thing either for the purpose of sale, exhibition, loan or circulation or with intent to introduce the same into a family, school or place of education, shall...be punished...."...
2
See "Massachusetts and Censorship", by S. S. Grant and S. E. Angoff, 10 Boston Univ. L. Rev.147; Judicial Censorship of Obscene Literature, by L. M. Alpert, 52 Harv. L. Rev.40.

-602-

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