a.    The majority’s opinion uses a sweeping formula for obscenity,
and assumes that something obscene is distinct and “classifiable as
poison ivy is among other plants.”  The problem cannot be solved in
such a generalized fashion.  The claim that a particular work is
pornographic is an individual issue—not for some generalized test—and
a reviewing court must determine for itself whether or not that
particular work can be suppressed within constitutional limits.  A
court’s particularized judgment of a particular material, not a
sweeping formula for obscenity, is what should be required when
deciding if that material is “pornographic.”
b.  Under the majority’s test and its definition of “prurient
interest,” a jury could find that Ulysses (by the cunning linguist
and avid consumer of white wine, James Joyce) or the Decameron (which
Chaucer did a terrible job of ripping off in Cantebury Tales) were
“obscene.”  Clearly, these works are not obscene since they are not
“utterly without redeeming social importance,” and whether or not
they are obscene should be left for a judge.
c.  The majority suggests that its test is no different from the ALI
formulation.  But this is wrong.  The ALI definition of obscenity
rejected any kind of “bad tendency” language.  Under the ALI def.,
D’s conviction should have clearly been reversed, since the federal
statute had “bad tendency” language.
1.  Even though Harlan does not come right out and propose a test, he
does not reject the ALI test either.
d.    Why does Harlan not totally dissent?  Because he defers to
the states, since “the domain of sexual morality is pre-eminently a
matter of state concern” and the Court “should be slow to interfere
with state legislation calculated to protect that morality,” even the
state cannot provide solid scientific evidence that there is a
connection between porno. and criminal-sexual conduct.  He explains
that the dangers of the feds having obscenity laws are much greater
than if the states have obscenity laws.  “It seems to me that no
overwhelming danger to our freedom to experiment and to gratify our
tastes in literature is likely to result from the suppression of a
borderline book in one of the States, so long as there is no uniform
nation-wide suppression of the book, and so long as other States are
free to experiment with the same or bolder books.”  The fact that
people in one State cannot read D.H. Lawrence “if not wise or
desirable,” at least is more acceptable than an outright federal law
prohibiting that author’s book in every state.  Harlan, deferring to
the state’s judgment, upholds the CA obscenity statute.  But, because
he does not want a uniform federal law, he strikes down the federal
obscenity statute (even though the language is similar to the CA
statute).