6.21.2017 Doc of the Day

1. Smedley Butler, 1933.
2. Jean-Paul Sartre, 1964.
3. U.S. Supreme Court, 1973.
4. John Simkin, 1997.
WWI world war one
Numero Uno“War is just a racket.  A racket is best described, I believe, as something that is not what it seems to the majority of people.  Only a small inside group knows what it is about.  It is conducted for the benefit of the very few at the expense of the masses. I

believe in adequate defense at the coastline and nothing else. If a nation comes over here to fight, then we’ll fight.  The trouble with America is that when the dollar only earns 6 percent over here, then it gets restless and goes overseas to get 100 percent.  Then the flag follows the dollar and the soldiers follow the flag.

I wouldn’t go to war again as I have done to protect some lousy investment of the bankers.  There are only two things we should fight for.  One is the defense of our homes and the other is the Bill of Rights.  War for any other reason is simply a racket.

There isn’t a trick in the racketeering bag that the military gang is blind to.  It has its ‘finger men’ to point out enemies, its ‘muscle men’ to destroy enemies, its ‘brain men’ to plan war preparations, and a ‘Big Boss’ Super-Nationalistic-Capitalism.

It may seem odd for me, a military man to adopt such a comparison.  Truthfulness compels me to.  I spent thirty- three years and four months in active military service as a member of this country’s most agile military force, the Marine Corps.

I served in all commissioned ranks from Second Lieutenant to Major-General.  And during that period, I spent most of my time being a high class muscle- man for Big Business, for Wall Street and for the Bankers.  In short, I was a racketeer, a gangster for capitalism.

I suspected I was just part of a racket at the time.  Now I am sure of it.  Like all the members of the military profession, I never had a thought of my own until I left the service.  My mental faculties remained in suspended animation while I obeyed the orders of higher-ups.  This is typical with everyone in the military service.

I helped make Mexico, especially Tampico, safe for American oil interests in 1914.  I helped make Haiti and Cuba a decent place for the National City Bank boys to collect revenues in.  I helped in the raping of half a dozen Central American republics for the benefits of Wall Street.  The record of racketeering is long.  I helped purify Nicaragua for the international banking house of Brown Brothers in 1909-1912 (where have I heard that name before?).  I brought light to the Dominican Republic for American sugar interests in 1916.  In China I helped to see to it that Standard Oil went its way unmolested.

During those years, I had, as the boys in the back room would say, a swell racket.  Looking back on it, I feel that I could have given Al Capone a few hints.  The best he could do was to operate his racket in three districts.  I operated on three continents.”      Smedley Butler, from “War Is a Racket;” speech, 1933. 

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Numero Dos“I deeply regret the fact that the incident has become something of a scandal: a prize was awarded, and I refused it.  It happened entirely because I was not informed soon enough of what was under way.  When I read in the October 15 Figaro littéraire, in the Swedish correspondent’s column, that the choice of the Swedish Academy was tending toward me, but that it had not yet been determined, I supposed that by writing a letter to the Academy, which I sent off the following day, I could make matters clear and that there would be no further discussion.I was not aware at the time that the Nobel Prize is awarded without consulting the opinion of the recipient, and I believed there was time to prevent this from happening.  But I now understand that when the Swedish Academy has made a decision it cannot subsequently revoke it.

My reasons for refusing the prize concern neither the Swedish Academy nor the Nobel Prize in itself, as I explained in my letter to the Academy.  In it, I alluded to two kinds of reasons: personal and objective.

The personal reasons are these: my refusal is not an impulsive gesture, I have always declined official honors.  In 1945, after the war, when I was offered the Legion of Honor, I refused it, although I was sympathetic to the government.  Similarly, I have never sought to enter the Collège de France, as several of my friends suggested.

This attitude is based on my conception of the writer’s enterprise. A writer who adopts political, social, or literary positions must act only with the means that are his own—that is, the written word. All the honors he may receive expose his readers to a pressure I do not consider desirable. If I sign myself Jean-Paul Sartre it is not the same thing as if I sign myself Jean-Paul Sartre, Nobel Prizewinner.

The writer who accepts an honor of this kind involves as well as himself the association or institution which has honored him. My sympathies for the Venezuelan revolutionists commit only myself, while if Jean-Paul Sartre the Nobel laureate champions the Venezuelan resistance, he also commits the entire Nobel Prize as an institution.

The writer must therefore refuse to let himself be transformed into an institution, even if this occurs under the most honorable circumstances, as in the present case.

This attitude is of course entirely my own, and contains no criticism of those who have already been awarded the prize. I have a great deal of respect and admiration for several of the laureates whom I have the honor to know.

My objective reasons are as follows: The only battle possible today on the cultural front is the battle for the peaceful coexistence of the two cultures, that of the East and that of the West. I do not mean that they must embrace each other—I know that the confrontation of these two cultures must necessarily take the form of a conflict—but this confrontation must occur between men and between cultures, without the intervention of institutions.

I myself am deeply affected by the contradiction between the two cultures: I am made up of such contradictions. My sympathies undeniably go to socialism and to what is called the Eastern bloc, but I was born and brought up in a bourgeois family and a bourgeois culture. This permits me to collaborate with all those who seek to bring the two cultures closer together. I nonetheless hope, of course, that “the best man wins.” That is, socialism.

This is why I cannot accept an honor awarded by cultural authorities, those of the West any more than those of the East, even if I am sympathetic to their existence. Although all my sympathies are on the socialist side. I should thus be quite as unable to accept, for example, the Lenin Prize, if someone wanted to give it to me, which is not the case.

I know that the Nobel Prize in itself is not a literary prize of the Western bloc, but it is what is made of it, and events may occur which are outside the province of the members of the Swedish Academy. This is why, in the present situation, the Nobel Prize stands objectively as a distinction reserved for the writers of the West or the rebels of the East. It has not been awarded, for example, to Neruda, who is one of the greatest South American poets. There has never been serious question of giving it to Louis Aragon, though he certainly deserves it. It is regrettable that the prize was given to Pasternak and not to Sholokhov, and that the only Soviet work thus honored should be one published abroad and banned in its own country. A balance might have been established by a similar gesture in the other direction. During the war in Algeria, when we had signed the “declaration of the 121,” I should have gratefully accepted the prize, because it would have honored not only me, but also the freedom for which we were fighting. But matters did not turn out that way, and it is only after the battle is over that the prize has been awarded me.

In discussing the motives of the Swedish Academy, mention has been made of freedom, a word that suggests many interpretations. In the West, only a general freedom is meant: personally, I mean a more concrete freedom which consists of the right to have more than one pair of shoes and to eat one’s fill. It seems to me less dangerous to decline the prize than to accept it. If I accept it, I offer myself to what I shall call “an objective rehabilitation.” According to the Figaro littéraire article, “a controversial political past would not be held against me.” I know that this article does not express the opinion of the Academy, but it clearly shows how my acceptance would be interpreted by certain rightist circles. I consider this “controversial political past” as still valid, even if I am quite prepared to acknowledge to my comrades certain past errors.

I do not thereby mean that the Nobel Prize is a “bourgeois” prize, but such is the bourgeois interpretation which would inevitably be given by certain circles with which I am very familiar.

Lastly, I come to the question of the money: it is a very heavy burden that the Academy imposes upon the laureate by accompanying its homage with an enormous sum, and this problem has tortured me.  Either one accepts the prize and with the prize money can support organizations or movements one considers important—my own thoughts went to the Apartheid committee in London.  Or else one declines the prize on generous principles, and thereby deprives such a movement of badly needed support.  But I believe this to be a false problem.  I obviously renounce the 250,000 crowns because I do not wish to be institutionalized in either East or West.  But one cannot be asked on the other hand to renounce, for 250,000 crowns, principles which are not only one’s own, but are shared by all one’s comrades.

That is what has made so painful for me both the awarding of the prize and the refusal of it I am obliged to make.

I wish to end this declaration with a message of fellow-feeling for the Swedish public.”       Jean-Paul Sartre, “Sartre on the Nobel Prize;” New York Review of Books, 1964. http://www.nybooks.com/articles/1964/12/17/sartre-on-the-nobel-prize/


Numero Tres“Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U. S. 413383 U. S. 418(plurality opinion).  The trial court instructed the jury to evaluate the materials by the contemporary community standards of California.  Appellant’s conviction was affirmed on appeal.   In lieu of the obscenity criteria enunciated by the Memoirsplurality, it is held:1. Obscene material is not protected by the First Amendment.  Roth v. United States, 354 U. S. 476, reaffirmed.   A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 413 U. S. 23-24.

2. The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 354 U. S. 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.  If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.   Pp. 413 U. S. 24-25.

3. The test of ‘utterly without redeeming social value’ articulated in Memoirs, supra, is rejected as a constitutional standard.  Pp. 413 U. S. 24-25.

4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a ‘national standard.’  Pp. 413 U. S. 30-34.

Vacated and remanded.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 413 U. S. 37. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 47.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This is one of a group of “obscenity-pornography” cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called “the intractable obscenity problem.” Interstate Circuit, Inc. v. Dallas, 390 U. S. 676390 U. S. 704 (1968) (concurring and dissenting).

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called “adult” material.  After a jury trial, he was convicted of violating California Penal Code § 311.2(a), a misdemeanor, by knowingly distributing obscene matter, [Footnote 1] and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion.   Appellant’s conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California.  The envelope was opened by the manager of the restaurant and his mother.  They had not requested the brochures; they complained to the police.

The brochures advertise four books entitled “Intercourse,” “Man-Woman,” “Sex Orgies Illustrated,” and “An Illustrated History of Pornography,” and a film entitled “Marital Intercourse.” While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.

I

This case involves the application of a State’s criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material [Footnote 2] when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U. S. 557394 U. S. 567 (1969); Ginsberg v. New York, 390 U. S. 629390 U. S. 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 690Redrup v. New York, 386 U. S. 767386 U. S. 769 (1967); Jacobellis v. Ohio, 378 U. S. 184378 U. S. 195 (1964). See Rabe v. Washington, 405 U. S. 313405 U. S. 317 (1972) (BURGER, C.J., concurring); United States v. Reidel, 402 U. S. 351402 U. S. 360-362 (1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495343 U. S. 502(1952); Breard v. Alexandria, 341 U. S. 622341 U. S. 644 645 (1951); Kovacs v. Cooper, 336 U. S. 77336 U. S. 88-89 (1949); Prince v. Massachusetts, 321 U. S. 158321 U. S. 169-170 (1944). Cf. Butler v. Michigan, 352 U. S. 380352 U. S. 382-383 (1957); Public Utilities Comm’n v. Pollak, 343 U. S. 451343 U. S. 464-465 (1952) It is in this context that we are called on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment.

The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court’s obscenity decisions. In Roth v. United States, 354 U. S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of “obscene, lewd, lascivious or filthy . . .” materials. The key to that holding was the Court’s rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating:

“All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568315 U. S. 571-572: ”

“. . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that 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 morality. . . .”

[Emphasis by Court in Roth opinion.]

“We hold that obscenity is not within the area of constitutionally protected speech or press.”

354 U.S. at 354 U. S. 48 85 (footnotes omitted).

Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away from the Rothconcept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that, under the Roth definition,

“as elaborated in subsequent cases, 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.”

Id. at 383 U. S. 418. The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by MR. JUSTICE WHITE’s dissent, id. at 383 U. S. 460-462, was further underscored when the Memoirsplurality went on to state:

“The Supreme Judicial Court erred in holding that a book need not be ‘unqualifiedly worthless before it can be deemed obscene.’ A book cannot be proscribed unless it is found to be utterly without redeeming social value.”

Id. at 383 U. S. 419 (emphasis in original).

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.” Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was “utterly without redeeming social value” — a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the “utterly without redeeming social value” test had any meaning at all. See Memoirs v. Massachusetts, id. at 383 U. S. 459 (Harlan, J., dissenting). See also id. at 383 U. S. 461 (WHITE, J., dissenting); United States v. Groner, 479 F.2d 577, 579581 (CA5 1973).

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States’ police power.See, e.g., Redrup v. New York, 386 U.S. at 386 U. S. 770-771. We have seen “a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.” Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 704-705 (Harlan, J., concurring and dissenting) (footnote omitted). [Footnote 3] This is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.

The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author, [Footnote 4] and no Member of the Court today supports the Memoirs formulation.

II

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U. S. 229 (1972); United States v. Reidel, 402 U.S. at 402 U. S. 354Roth v. United States, supra, at354 U. S. 485. [Footnote 5] “The First and Fourteenth Amendments have never been treated as absolutes [footnote omitted].” Breard v. Alexandria, 341 U.S. at 341 U. S. 642, and cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43365 U. S. 47-50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 682-685. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. [Footnote 6] A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230, quoting Roth v. United States, supra, at 354 U. S. 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 419; that concept has never commanded the adherence of more than three Justices at one time. [Footnote 7See supra at 413 U. S. 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 408 U. S. 232Memoirs v. Massachusetts, supra, at 383 U. S. 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254376 U. S. 284-285 (1964); Roth v. United States, supra, at 354 U. S. 497-498 (Harlan, J., concurring and dissenting).

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. [Footnote 8] At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 408 U. S. 230-232; Roth v. United States, supra, at 354 U. S. 487Thornhill v. Alabama, 310 U. S. 88310 U. S. 101-102 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members. [Footnote 9]

MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing “adult” one month past the state law age of majority and a willing “juvenile” one month younger.

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra,at 354 U. S. 491-492. Cf. Ginsberg v. New York, 390 U.S. at 390 U. S. 643. [Footnote 10] If the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then “hard core” pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to MR. JUSTICE DOUGLAS’ position, see United States v. Thirty-seven Photographs, 402 U. S. 363402 U. S. 379-380 (1971) (Black, J., joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra, at 383 U. S. 476383 U. S. 491-492 (Black, J., and DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at378 U. S. 196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at 354 U. S. 508-514 (DOUGLAS, J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS now stands alone.

MR. JUSTICE BRENNAN also emphasizes “institutional stress” in justification of his change of view. Noting that “[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court,” he quite rightly remarks that the examination of contested materials “is hardly a source of edification to the members of this Court.” Paris Adult Theatre I v. Slaton, post, at 413 U. S. 92413 U. S. 93. He also notes, and we agree, that “uncertainty of the standards creates a continuing source of tension between state and federal courts. . . .”

“The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so.”

Id. at 413 U. S. 93413 U. S. 92.

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate “hard core” pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, 386 U. S. 767 (1967), and attempt to provide positive guidance to federal and state courts alike.

This may not be an easy road, free from difficulty. But no amount of “fatigue” should lead us to adopt a convenient “institutional” rationale — an absolutist, “anything goes” view of the First Amendment — because it will lighten our burdens. [Footnote 11] “Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees.” Jacobellis v. Ohio, supra, at 378 U. S. 187-188 (opinion of BRENNAN, J.). Nor should we remedy “tension between state and federal courts” by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 354 U. S. 482-485.

“Our duty admits of no ‘substitute for facing upto the tough individual problems of constitutional judgment involved in every obscenity case.’ [Roth v. United States, supra, at 354 U. S. 498]; see Manual Enterprises, Inc. v. Day, 370 U. S. 478370 U. S. 488 (opinion of Harlan, J.) [footnote omitted].”

Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN, J.).

III

Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a “national” standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case law. The jury, however, was explicitly instructed that, in determining whether the “dominant theme of the material as a whole . . . appeals to the prurient interest,” and, in determining whether the material “goes substantially beyond customary limits of candor and affronts contemporary community standards of decency,” it was to apply “contemporary community standards of the State of California.”

During the trial, both the prosecution and the defense assumed that the relevant “community standards” in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State’s expert on community standards [Footnote 12] or to the instructions of the trial judge on “state-wide” standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments.

We conclude that neither the State’s alleged failure to offer evidence of “national standards,” nor the trial court’s charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a matter of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 378 U. S. 200:

“It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to ‘community standards,’ it meant community standards — not a national standard, as is sometimes argued. I believe that there is no provable ‘national standard.’ . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.”

It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. [Footnote 13]

See Hoyt v. Minnesota, 399 U.S. at 524-525 (1970) (BLACKMUN, J., dissenting); Walker v. Ohio, 398 U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970) (BURGER, C.J., dissenting); id. at 397 U. S. 319-320 (Harlan, J., dissenting); United States v. Groner, 479 F.2d at 581-583; O’Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 354 U. S. 505-506 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U.S. at 383 U. S. 508-509, the primary concern with requiring a jury to apply the standard of “the average person, applying contemporary community standards” is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person — or indeed a totally insensitive one. See Roth v. United States, supra,at 354 U. S. 489Cf. the now discredited test in Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. We hold that the requirement that the jury evaluate the materials with reference to “contemporary standards of the State of California” serves this protective purpose and is constitutionally adequate. [Footnote 14]

IV

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a “misuse of the great guarantees of free speech and free press. . . .” Breard v. Alexandria, 341 U.S. at 341 U. S. 645. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.

“The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,”

Roth v. United States, supra, at 354 U. S. 484 (emphasis added). See Kois v. Wisconsin, 408 U.S. at 408 U. S. 230-232; Thornhill v. Alabama, 310 U.S. at 310 U. S. 101-102. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter. [Footnote 15]

There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth v. United States, supra, at 354 U. S. 482-485, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an “extraordinarily vigorous period” not just in economics and politics, but in belles lettres and in “the outlying fields of social and political philosophies.” [Footnote 16] We do not see the harsh hand of censorship of ideas — good or bad, sound or unsound — and “repression” of political liberty lurking in every state regulation of commercial exploitation of human interest in sex.

MR. JUSTICE BRENNAN finds “it is hard to see how state-ordered regimentation of our minds can ever be forestalled.”Paris Adult Theatre I v. Slaton, post, at 413 U. S. 110 (BRENNAN, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN finds constitutionally permissible, has all the elements of “censorship” for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 690. [Footnote 17] One can concede that the “sexual revolution” of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive “hard core” materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphlne.

In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is “utterly without redeeming social value”; and (c) hold that obscenity is to be determined by applying “contemporary community standards,” see Kois v. Wisconsin, supra, at 408 U. S. 230, and Roth v. United States, supra,at 354 U. S. 489, not “national standards.” The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-ft. Reels of Film, post at 413 U. S. 130 n. 7.

Vacated and remanded.

[Footnote 1]

At the time of the commission of the alleged offense, which was prior to June 25, 1969, §§ 311.2(a) and 311 of the California Penal Code read in relevant part:

“§ 311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, distributing or possessing within state”

“(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . .”

“§ 311. Definitions”

“As used in this chapter: ”

“(a) ‘Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.”

“(b) ‘Matter’ means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.”

“(c) ‘Person’ means any individual, partnership, firm, association, corporation, or other legal entity.”

“(d) ‘Distribute’ means to transfer possession of, whether with or without consideration.”

“(e) ‘Knowingly’ means having knowledge that the matter is obscene.”

Section 311(e) of the California Penal Code, supra, was amended on June 25, 1969, to read as follows:

“(e) ‘Knowingly’ means being aware of the character of the matter.”

Cal. Amended Stats.1969, c. 249, § 1, p. 598. Despite appellant’s contentions to the contrary, the record indicates that the new § 311(e) was not applied ex post facto to his case, but only the old § 311(e) as construed by state decisions prior to the commission of the alleged offense. See People v. Pinkus, 256 Cal.App.2d 941, 948-950, 63 Cal.Rptr. 680, 685-686 (App. Dept., Superior Ct., Los Angeles, 1967); People v. Campise, 242 Cal.App.2d 905, 914, 51 Cal.Rptr. 815, 821 (App.Dept., Superior Ct., San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U. S. 347 (1964). Nor did § 311.2, supra, as applied, create any “direct, immediate burden on the performance of the postal functions,” or infringe on congressional commerce powers under Art. I, § 8, cl. 3. Roth v. United States, 354 U. S. 476354 U. S. 494 (1957), quoting Railway Mail Assn. v. Corsi, 326 U. S. 88326 U. S. 96 (1945). See also Mishkin v. New York, 383 U. S. 502383 U. S. 506 (1966); Smith v. California, 361 U. S. 147361 U. S. 150-152 (1959).

[Footnote 2]

This Court has defined “obscene material” as “material which deals with sex in a manner appealing to prurient interest,” Roth v. United States, supra, at 354 U. S. 487, but the Roth definition does not reflect the precise meaning of “obscene” as traditionally used in the English language. Derived from the Latin obscaenus ob, to, plus caenum, filth, “obscene” is defined in the Webster’s Third New International Dictionary (Unabridged 1969) as

“1a: disgusting to the senses . . . b: grossly repugnant to the generally accepted notions of what is appropriate . . . 2: offensive or revolting as countering or violating some ideal or principle.”

The Oxford English Dictionary (1933 ed.) gives a similar definition, “[o]ffensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome.”

The material we are discussing in this case is more accurately defined as “pornography” or “pornographic material.” “Pornography” derives from the Greek (porne, harlot, and graphos, writing). The word now means

“1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.”

Webster’s Third New International Dictionary, supra. Pornographic material which is obscene forms a sub-group of all “obscene” expression, but not the whole, at least as the word “obscene” is now used in our language. We note, therefore, that the words “obscene material,” as used in this case, have a specific judicial meaning which derives from the Rothcase, i.e., obscene material “which deals with sex.” Roth, supra, at 354 U. S. 487See also ALI Model Penal Code § 251.4(1) “Obscene Defined.” (Official Draft 1962.)

[Footnote 3]

In the absence of a majority view, this Court was compelled to embark on the practice of summarily reversing convictions for the dissemination of materials that, at least five members of the Court, applying their separate tests, found to be protected by the First Amendment. Redrup v. New York, 386 U. S. 767 (1967). Thirty-one cases have been decided in this manner. Beyond the necessity of circumstances, however, no justification has ever been offered in support of the Redrup“policy.” See Walker v. Ohio, 398 U.S. at 398 U. S. 434-435 (1970) (dissenting opinions of BURGER, C.J., and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before us.

[Footnote 4]

See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73.

[Footnote 5]

As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U. S. 184378 U. S. 200 (1964):

“For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe that we should try to live with it — at least until a more satisfactory definition is evolved. No government — be it federal, state, or local — should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this as in other areas of the law, and we have attempted in the Roth case to provide such a rule.”

[Footnote 6]

See, e.g., Oregon Laws 1971, c. 743, Art. 29, §§ 255-262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt.. II, pp. 126-129, as examples of state laws directed at depiction of defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as establishing their limits as the extent of state power.

We do not hold, as MR. JUSTICE BRENNAN intimates, that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-ft. Reel of Film, post, at 413 U. S. 130 n. 7.

[Footnote 7]

“A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication. . . .”Kois v. Wisconsin, 408 U. S. 229408 U. S. 231 (1972). See Memoirs v. Massachusetts, 383 U. S. 413383 U. S. 461(1966) (WHITE, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of “social importance.”See id. at 383 U. S. 462 (WHITE, J., dissenting).

[Footnote 8]

Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O’Brien, 391 U. S. 367391 U. S. 377 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be

“sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

See California v. LaRue, 409 U. S. 109409 U. S. 117-118 (1972).

[Footnote 9]

The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S. at 354 U. S. 492 n. 30,

“it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U. S. 486165 U. S. 499-500.”

[Footnote 10]

As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States, supra at 354 U. S. 491-492:

“Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote omitted.] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘. . . [T]he Constitution does not require impossible standards;’ all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . .’ United States v. Petrillo, 332 U. S. 1332 U. S. 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark”

“. . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . .”

Id. at 332 U. S. 7See also United States v. Harriss, 347 U. S. 612347 U. S. 624, n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337342 U. S. 340United States v. Ragen, 314 U. S. 513314 U. S. 523-524; United States v. Wurzbach, 280 U. S. 396Hygrade Provision Co. v. Sherman, 266 U. S. 497Fox v. Washington, 236 U. S. 273Nash v. United States, 229 U. S. 373.”

[Footnote 11]

We must note, in addition, that any assumption concerning the relative burdens of the past and the probable burden under the standards now adopted is pure speculation.

[Footnote 12]

The record simply does not support appellant’s contention, belatedly raised on appeal, that the State’s expert was unqualified to give evidence on California “community standards.” The expert, a police officer with many years of specialization in obscenity offenses, had conducted an extensive state-wide survey and had given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert testimony was certainly not constitutional error. Cf. United States v. Augenblick, 393 U. S. 348393 U. S. 356 (1969).

[Footnote 13]

In Jacobellis v. Ohio, 378 U. S. 184 (1964), two Justices argued that application of “local” community standards would run the risk of preventing dissemination of materials in some places because sellers would be unwilling to risk criminal conviction by testing variations in standards from place to place. Id. at 378 U. S. 193-195 (opinion of BRENNAN, J., joined by Goldberg, J.). The use of “national” standards, however, necessarily implies that materials found tolerable in some places, but not under the “national” criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression seems at least as great in the application of a single nationwide standard as in allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized.See Roth v. United States, 354 U.S. at 354 U. S. 506.

Appellant also argues that adherence to a “national standard” is necessary “in order to avoid unconscionable burdens on the free flow of interstate commerce.” As noted supra at 413 U. S. 18 n. 1, the application of domestic state police powers in this case did not intrude on any congressional powers under Art. I, § 8, cl. 3, for there is no indication that appellant’s materials were ever distributed interstate. Appellant’s argument would appear without substance in any event. Obscene material may be validly regulated by a State in the exercise of its traditional local power to protect the general welfare of its population despite some possible incidental effect on the flow of such materials across state lines. See, e.g., Head v. New Mexico Board, 374 U. S. 424 (1963); Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960); Breard v. Alexandria,341 U. S. 622 (1951); H. P. Hood & Sons v. Du Mond, 336 U. S. 525 (1949); Southern Pacific Co. v. Arizona, 325 U. S. 761 (1945); Baldwin v. G.A.F. Seelig, Inc., 294 U. S. 511 (1935); Sligh v. Kirkwood, 237 U. S. 52 (1915).

[Footnote 14]

Appellant’s jurisdictional statement contends that he was subjected to “double jeopardy” because a Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same brochures, but apparently alleging exposures at a different time in a different setting. Appellant argues that, once material has been found not to be obscene in one proceeding, the State is “collaterally estopped” from ever alleging it to be obscene in a different proceeding. It is not clear from the record that appellant properly raised this issue, better regarded as a question of procedural due process than a “double jeopardy” claim, in the state courts below. Appellant failed to address any portion of his brief on the merits to this issue, and appellee contends that the question was waived under California law because it was improperly pleaded at trial. Nor is it totally clear from the record before us what collateral effect the pretrial dismissal might have under state law. The dismissal was based, at least in part, on a failure of the prosecution to present affirmative evidence required by state law, evidence which was apparently presented in this case. Appellant’s contention, therefore, is best left to the California courts for further consideration on remand. The issue is not, in any event, a proper subject for appeal. See Mishkin v. New York,383 U. S. 502383 U. S. 512-514 (1966).

[Footnote 15]

In the apt words of Mr. Chief Justice Warren, appellant in this case was

“plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide.”

Roth v. United States, supra, at 354 U. S. 496 (concurring opinion).

[Footnote 16]

See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th century, Parrington observed

“A new age had come and other dreams — the age and the dreams of a middle-class sovereignty. . . . From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of realistic criticism, seeking to evaluate the worth of this new America, and discover if possible other philosophies to take the place of those which had gone down in the fierce battles of the Civil War.”

Id. at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic 197-233 (6th ed.1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White ed.1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and Thought in Modern America 337-386 (1952).

[Footnote 17]

‘[W]e have indicated . . . that, because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg v. New York, . . . [390 U.S. 629 (1968)].'”       U.S. Supreme Court, Miller v. California; 1973. https://supreme.justia.com/cases/federal/us/413/15/case.html


Numero Cuatro“Arthur Miller, the son of Isidore Miller and Augusta Barnett Miller, was born in New York City on 17th October, 1915.  His father was involved in the Manhattan rag trade.  The family moved from Harlem to Brooklyn when Arthur was a child.Isidore Miller’s business was destroyed as a result of the Wall Street Crash.  The theatre critic, Michael Ratcliffe: ‘This first great discord of the American century informs all his work.  Like Dickens and Ibsen, he drew from his father’s financial disaster the lifelong convictions that catastrophe could strike without warning and that the crust of civilised order was perilously thin.’

Miller worked in a warehouse after graduating from high school.  When he saved enough money he attended the University of Michigan, where he began writing plays.  One of these won a $1,250 prize from the Bureau of New Plays run by the New York producers, the Theater Guild.  After graduating in 1938 he joined the Federal Theater Project (FTP).  As he explained in his biography, Timebends – A Life (1987): ‘To join the WPA Theatre Project it was necessary to get on the welfare rolls first, in effect to be homeless and all but penniless… and conniving to get myself a twenty-three-dollar-a-week job.’

The project was established by Franklin D. Roosevelt in 1935 as part of the New Deal attempt to combat the Depression.  The FTP was an attempt to offer work to theatrical professionals.  Harry Hopkins, hoped it would also provide ‘free, adult, uncensored theatre.’  Elmer Rice was placed in charge of the FTP in New York City.  In 1936 alone, the FTP employed 5,385 people in the city.  Over a three year period over 12 million people attended performances in the city.

In 1939 Miller was offered a contract with Twentieth Century Fox: ‘My purity was still breathtakingly unmarred through the thirties, so much so that… with the Federal Theatre Project, which was already coming to its end, I had no qualms about turning down a two-hundred-and-fifty-dollar-a-week offer by a Colonel Joy, representing Twentieth Century Fox, to come to work for them.’

Miller held left-wing opinions and was horrified by the views expressed by Charles E. Coughlin on the radio. “Father Charles E. Coughlin, who by 1940 was confiding to his ten million Depression-battered listeners that the president was a liar controlled by both the Jewish bankers and, astonishingly enough, the Jewish Communists, the same tribe that twenty years earlier had engineered the Russian Revolution… He was arguing… that Hitlerism was the German nation’s innocently defensive response to the threat of Communism, that Hitler was only against ‘bad Jews’, especially those born outside Germany.”

A college football injury kept him from active service in the Second World War. In 1941 he began work on his play, The Man Who Had All the Luck. It became his first professionally produced play when it arrived on Broadway in November 1944. Miller claimed that “it managed to baffle all but two of the critics (New York had seven daily newspapers then, each with its theatre reviewer).” Directed by Joseph Fields, it opened at the Forrest Theatre, where it ran for only 4 performances.

Miller’s next play was All My Sons. Opening at the Coronet Theatre on 29th January, 1947, directed by Elia Kazan, and starring Ed BegleyKarl Malden and Arthur Kennedy. As Michael Ratcliffe pointed out: “A family tale of corrupt profiteering at home that led to the death of US pilots abroad, it exploded in the pause between victory and the attempted press-ganging of show business for Washington’s cold war. From this point on, Miller’s best scenes display a mastery of conversation, a gift for sketching vivid characters on the margins of a play, and a narrative talent for seizing the spectator’s attention from the start.” The play won the New York Drama Critics’ Circle Award and ran for 328 performances.

His next play, Death Of A Salesman, was sent to Elia Kazan. He thought it was “a great play” and that the character of Willy Loman reminded him of his father. Miller later recalled that Kazan was the “first of a great many men – and women – who would tell me that Willy was their father.” The play opened at the Morosco Theatre on 10th February, 1949. It was directed by Kazan and featured Lee J. Cobb (Willy Loman), Mildred Dunnock (Linda), Arthur Kennedy (Biff) and Cameron Mitchell (Happy).

Death Of A Salesman played for 742 performances and won the Tony Award for best play, supporting actor, author, producer and director. It also won the 1949 Pulitzer Prize for Drama and the New York Drama Critics’ Circle Award for Best Play. Miller was himself highly critical of the play: “I knew nothing of Brecht then or of any other theory of theatrical distancing: I simply felt that there was too much identification with Willy, too much weeping, and that the play’s ironies were being dimmed out by all this empathy.”

Elia Kazan and Arthur Miller whileworking on Death of a Salesman (1949)
Elia Kazan and Arthur Miller while
working on Death of a Salesman (1949)

Miller broke with Elia Kazan over his decision to give names of former members of the American Communist Party to the House of Un-American Activities Committee (HUAC). Miller was himself blacklisted by Hollywood when he refused to testify in front of the HUAC. However, this did not stop his plays being performed on stage as Broadway refused to impose a blacklist.

Miller was distressed by the sight of former friends giving evidence against other former friends as a result of McCarthyism. He decided to write a play about this situation: “What I sought was a metaphor, an image that would spring out of the heart, all-inclusive, full of light, a sonorous instrument whose reverberations would penetrate to the centre of this miasma.”

During this period Miller read The Devil in Massachusetts (1949), a book about the 1692 Salem Witch Trials by Marion Lena Starkey. The book included the previously unpublished verbatim transcriptions of documents and papers on witchcraft in Salem. Miller later recalled: “At first I rejected the idea of a play on the subject…. But gradually, over weeks, a living connection between myself and Salem, and between Salem and Washington, was made in my mind – for whatever else they might be, I saw that the hearings in Washington were profoundly and even avowedly ritualistic. After all, in almost every case the Committee knew in advance what they wanted the witness to give them: the names of his comrades in the Party. The FBI had long since infiltrated the Party, and informers had long ago identified the participants in various meetings. The main point of the hearings, precisely as in seventeenth-century Salem, was that the accused make public confession, damn his confederates as well as his Devil master, and guarantee his sterling new allegiance by breaking disgusting old vows – whereupon he was let loose to rejoin the society of extremely decent people.”

The Crucible was first performed at the Martin Beck Theater on Broadway on 22nd January, 1953. The cast included Arthur Kennedy (John Proctor), Walter Hampden (Deputy-Governor Danforth), Beatrice Straight (Elizabeth Proctor), E. G. Marshall(Reverend Hale), Jean Adair (Rebecca Nurse), Joseph Sweeney (Giles Corey) and Madeleine Sherwood (Abigail Williams).

The play was not well received by the critics. As he pointed out in his autobiography, Timebends – A Life (1987): “I have never been surprised by the New York reception of a play… What I had not quite bargained for, however, was the hostility in the New York audience as the theme of the play was revealed; an invisible sheet of ice formed over their heads, thick enough to skate on. In the lobby at the end, people with whom I had some fairly close professional acquaintanceships passed me by as though I were invisible.” Even so, the production won the Tony Award for best play of 1953.

The play was not well received by the critics. As he pointed out in his autobiography, Timebends – A Life (1987): “I have never been surprised by the New York reception of a play… What I had not quite bargained for, however, was the hostility in the New York audience as the theme of the play was revealed; an invisible sheet of ice formed over their heads, thick enough to skate on. In the lobby at the end, people with whom I had some fairly close professional acquaintanceships passed me by as though I were invisible.” Even so, the production won the Tony Award for best play of 1953.

Miller’s next two plays, A View from the Bridge and A Memory of Two Mondays, were badly received. It is believed that this reaction was mainly due to political reasons. During this period Miller left his first wife Mary Slattery and on 25th June, 1956 married the actress Marilyn Monroe.

In 1956 Miller was called before the House of Un-American Activities Committee.  Miller refused to testy, saying ‘I could not use the name of another person and bring trouble on him.’  In May 1957 he was found guilty of contempt of Congress, sentenced to a $500 fine or thirty days in prison, blacklisted, and had his passport withdrawn.

After the Hollywood Blacklist was lifted in 1960, Miller wrote the screenplay for the movie, The Misfits (1961).  The film starred his wife but later that year they were divorced.  19 months later, Marilyn Monroe died of an apparent drug overdose.  After her death Miller married Inge Morath.

Miller’s next play was After the Fall.  Starring Barbara LodenJason Robards Jr. and Faye Dunaway it opened on 23rd January, 1964 at the Anta Theatre on Washington Square.   It appeared to be based on his relationship with Monroe.  He later admitted that everything he had written was based on somebody he had seen or known.  However, the critics thought it was wrong of him to write about his marriage to a woman who had committed suicide.  His next two plays, Incident at Vichy (1964) and The Price (1968), saw a return to form.

Other plays by Miller included: The Creation of the World and Other Business (1972), The Archbishop’s Ceiling (1977) and The American Clock (1980). Miller also wrote an impressive autobiography, Timebends – A Life (1987). Miller continued to write plays and the best of these include The Last Yankee (1991), The Ride Down Mt. Morgan (1991), Broken Glass (1994), Mr Peter’s Connections (1998), Resurrection Blues(2002) and Finishing the Picture (2004), a return to the subject of Marilyn Monroe.

Arthur Miller died on 10th February, 2005, aged 89, at his home in RoxburyLitchfield County.”      John Simkin, “Arthur Miller;” Spartacus Educational, 1997.