HUSTLER MAGAZINE is not the kind of thing you would find on most coffee tables. It is, perhaps, the most vulgar of the new breed of slick sex magazines. It has little redeeming literary or artistic value. It is, in other words, in the same category as "Deep Throat" and the other pornographic movies that have been appearing in the country. Now a local prosecutor, judge and jury in Cincinnati have decided that Hustler is obscene. And because it is obscene, the judge has sentenced its publisher to 7 top 25 years in prison. Never mind that the publisher does not live in Cincinnati and neither edits nor publishes his magazine there. It was distributed there.
Something similar happened in Memphis a few months ago when a federal court sentenced the male star of "Deep Throat" to five years in prison. What makes these two cases different from - and enormously more disturbing than - all the prior obsenity trials is that, if these two judges are right, the Supreme Court has made it possible for any community in the country to control what the whole country reads and sees. The warning of these cases to those who publish magazine or newspaper or who produce or appear in motion pictures is that your product, regardless of how it is accepted where it is created, had better not be something that a jury in any city or town or hamlet in the nation might regard as obscene. If it is, you may find yourself in the same situation as Hustler-s publisher or the star fo "Deep Throat." And since obscenity is a subjective matter, you'd better take no chances because you never can tell when some prosecutor, judge or jury somewhere might find your work obscene. The chilling impact of that on free speech ought to be obvious.
We don't believe the Supreme Court intended to create such a situation when it said, four years ago, that a jury's determination of what is obscene can be based on local standards. It was thinking, we suspect, about old-fashioned obscenity trials in which the defendants were local distributors, the punishments were minimal, and a finding of obscenity had no impact outside the immediate jurisdiction. But instead of trying to clean up their own cities by going after the sellers of material they thought obscene, the prosecutors in Memphis and Cincinnati went after the producers of that material. The prosecutors, in other words, are trying to clean up the whole nation. In Memphis, this was done through a conspiracy charge; in CIncinnati, through the contract for distribution publisher was found guilty of participating in "organized crime" because he joined with four others to commit a crime (publishing obscenenity) for profit.
Frankly, we don't know how Hustler would come out if a jury judged it by national standards of what is obscene. Given what else is on the newsstands, it appears that the standards is not high. But we do know that a single community, drawing on its own standards, ought not to be able to impose a penalty sufficient to kill a national publication.
We sympathize with those who, like one of th jurors in the Hustler case, don't want their children to see or read this trash. If that is the real issue - and we think it is - states and cities can handle it through laws barring the sale of this kind of material to minors. But government ought not to be in the business of telling adults what they can read or see, even if other adults find the books, magazines and movies offensive. And, above all, no jury in Cincinnati or Memphis or peoria or Washington ought to be able to impose its local standard of what is or is not obscene on the people of New York or Miami or Butte. yet that is precisely what the convictions in these two cases do. If they should survive on appeal, they will put the censor's pen firmly in the hand of the most puritanical community in the country - whichever community that may be.