Time for a Change

Two amendments to the obscenity statute--Chapter 272, Section 28 of the General Laws of Massachusetts--appeared before the Watch and Ward moved on to another sphere of activity. The Society now concerns itself chiefly with crime in general, and with pornographic advertisements. Only six percent of its activities are devoted to literature.

Under these present statutes, the case of Lillian Smith's Strange Fruit might have had a different ending. In fact, the case, tried before the amendments went into effect, pointed up the sore need for such revision.

In 1945, Cambridge Police Chief Timothy J. O'Leary banned the book in this city. He followed the lead of the Boston Police, and the Boston Bookseller's Association, both of which joined in squashing sale of the book. The group asked the author to delete three lines of "sexual phraseology."

'Strange Fruit' and a New Law

The Massachusetts Civil Liberties Union then decided to bring the case out into the open and fight it. By prearrangement, Bernard DeVoto, accompanied by his attorney and two Vice Squad detectives, purchased a copy of Strange Fruit in the Harvard Law Book Exchange. The proprietor of the Exchange was brought into a lower court where he was found guilty of selling "obscene" material and fined $200. Upon appeal, Superior Court justices upheld the lower body's decision, but only with some reluctance. Unfortunately, under the old law the higher court was permitted only to review the actual conduct of the previous trial, and not the book itself.

Under the laws of 1945 and 1948, this situation and several others are remedied. The amendment accomplished these things, among others:

1. Recognized difference between children and adults in considering civil suit. A dealer can be prosecuted if the purchaser of an obscene book is under 18 years old, but only after obscenity has been legally established by suit against the book. In the case of magazines and lewd pictures, however, age is irrelevant.

2. Only the Attorney General and District Attorneys can initiate proceedings to ban the sale of a book, a proviso which severely limits direct legal action by local authorities.

Furthermore, suit brought against a book is now tried in a court of equity. This means that in the event of an appeal, the higher court may review the facts of the case and not only the procedure at its trial.

The law and its amendments shift responsibility for "obscenity" from the bookseller to the book, thus serving to reduce the force of threats and warnings prior to a legal decision. It is also worthy of note that the law, by taking into account "audience" and "total artistic effect", encourages a more enlightened attitude on the part of the judges.

In contrast to the yearly hue and cry of previous times, only three cases have been publicly tried since the law went into effect. In the case of Forever Amber, the courts decided in 1948 it was hardly obscene, but rather "sporific." It was sold. In 1950 James M. Cains Serenade and Erskine Caldwell's God's Little Acre were tried. Judging the books as total works of art, the courts decided the former was not obscene, but the latter was, and should not be sold.

Question of Pulp

That the state's obscenity statutes are reasonably sane, judges, writers and the morally-minded will now agree. But each month, millions of copies of comic books, magazines, and pocket reprints and originals come into Boston and Cambridge. To check and try each one on charges of "obscenity" (if it were deemed so) would be absurd; even to read them all would be impossible. Yet all are available to six, as well as 80 year olds.

Faced with this problem, citizens, police, and various organizations are combatting it subtly or openly, as the case may be.