Attorney General v. A Book Named "Naked Lunch"

218 N.E.2d 571, 351 Mass. 298, 1966 Mass. LEXIS 642

• Court: Massachusetts Supreme Judicial Court
• Decided: July 7, 1966
• Status: Published

Opinions

By the Court.

The book was adjudged obscene in the Superior Court. G. L. c. 272, §§ 28C, 28E, 28F (each inserted by St. 1945, c. 278, § 1). The Supreme Court of the United States has held that, to justify a holding of obscenity, “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 . . . and (c) the material is utterly without redeeming social value” (emphasis supplied). A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Gen. of Mass. 383 U. S. 413, 418-421 (hereafter referred to as the Memoirs case). “Naked Lunch” may appeal to the prurient interest of deviants and those curious about deviants. To us, it is grossly offensive and is what the author himself says, “brutal, obscene and disgusting. ’ ’

As to whether the book has any redeeming social value, the record contains many reviews and articles in literary and other publications discussing seriously this controversial book portraying the hallucinations of a drug addict. Thus it appears that a substantial and intelligent group in the community believes the book to be of some literary significance. Although we are not bound by the opinions of others concerning the book, we cannot ignore the serious acceptance of it by so many persons in the literary community. Hence, we cannot say that “Naked Lunch” has no “redeeming social importance in the hands of those who publish or distribute it on the basis of that value.” See the Memoirs case at p. 421.

The record does not show that the book has been “commercially exploited for the sake of prurient appeal, to the exclusion of all other values. ’ ’ The question, therefore, is not presented whether the book, or its publication and distribution, are on that account “utterly without redeeming social importance.” See the Memoirs case at pp. 420-421, which appears to treat the privilege under the First Amendment of publishing material like this as a qualified privilege which may be lost if abused. See also Ginzburg v. United States, 383 U. S. 463, 467-476; Mishkin v. New York, 383 U. S. 502, 508-512. Cf. Galvin v. New York, N. H. & H. R.R. 341 Mass. 293, 296-298.

The final decree is reversed and a new final decree is to be entered declaring that (without considering whether the book has been commercially exploited for the sake of prurient appeal) the book cannot be declared to be obscene. This new final decree shall be without prejudice to the bringing of new proceedings with respect to this book under the appropriate sections of G-. L. c. 272, if it shall appear that, after March 21, 1966, the date of the three recent Supreme Court cases, already cited, any persons have been or are advertising or distributing this book in this Commonwealth in a manner to exploit it for the sake of its possible prurient appeal.

So ordered.

The Chief Justice took no part in the consideration of this case.