February 25, 1969
The recent ban of a record album of Beatle John Lennon by a New Jersey court raises a new and threatening aspect of standards in our obscenity laws.
That the picture on the album cover depicts Lennon and a young woman naked cannot be disputed. What can be disputed is the basis for ruling the cover obscene.
Judge Nelson K. Mintz said the contents of the picture are "suggestive of sexual activity."
Mintz said such displays are "offensive to community standards and are aggravated when known celebrities engage in this suggestive naked spectacle."
It is apparent that a basis for the decision was not one of content or standards, but on the relative notoriety of the individuals depicted. Nowhere in U.S. laws or in major court decisions have such grounds been established.
Recent rulings have shown that sales to youngsters can be judged with obscenity guidelines which are stricter than those pertaining to adults. Prosecutors pointed out that the album had been sold to minors. The picture was also charged with being pornographic by community standards. The decision could have been reached on the basis of these two arguments.
But to rule an album cover obscene on the basis of who is depicted is an extremely dangerous and pompous judgement.
First, the subjects' consent to the picture is obvious. Second, few persons today would judge Michelangelo's works or the Naked Maja on this basis and expect to be on sound legal ground.
If a subject is to be deemed obscene and therefore banned, it should be judged within the framework of the constitution and the numerous supreme court decisions to date. In this particular case, the court is tampering with the First Amendment.