Libido: Naked Brunch: Un-Banning Books
Preserving America’s Erotic Heritage

How the courts of the United States came to extend
First Amendment guarantees to include pornography.

Part 4
Samuel Roth to Henry Miller

By Jack Hafferkamp

The next major case did not occur until the 1950s at the tail end of America’s McCarthy era. At that time the Hays Code still applied to films and local censor boards could stop circulation of any book they chose.

Samuel Roth

Samuel Roth was a New York writer and publisher who had gotten into trouble in the 1930s selling Ulysses, among other books. In 1955, Roth was indicted for distributing magazines titled American Aphrodite, Photo and Body and Good Times. He was prosecuted in New York under the Comstock Act, and the U.S. Supreme Court upheld his conviction for sending obscene materials through the mails. But in reaching that decision in 1957, the court’s majority opinion further changed the American standard for obscenity.

In Roth v. U.S. the Supreme Court spoke directly to the question of whether literature dealing with sex was meant to be protected by the First Amendment. The majority opinion, written by Justice William J. Brennan, Jr., with a look over its shoulder at Ulysses, concluded that obscenity was not protected by the First Amendment, but literature was. Brennan, who retired from the court in 1990, passed in 1997.

From Samuel Roth's American Aphrodite Vol. 1, #2, 1951.

At the time it was issued, Brennan’s Roth decision was widely accepted as giving constitutional approval to the established law of obscenity. But in the hands of some very skillful First Amendment lawyers, especially Edward de Grazia and Charles Rembar, the Roth case provided the wedge for opening up the definition of obscenity and extending First Amendment protections.

The door was pushed open farther in 1960, over the U.S. Postal Ban on D.H. Lawrence’s Lady Chatterley’s Lover, which had been published by Grove Press. This case did not have to go as far as the U.S. Supreme Court to make impact.

In case you don’t know the book, Lady Chatterley’s Lover was Lawrence’s last novel. It revolves around Lawrence’s belief that men and women must overcome the deadening squeeze of industrialized society and follow their natural instincts to passionate love. Lady Chatterley is unhappily married to a wealthy but paralyzed landowner. She turns to Mellors, her husband’s groundskeeper and a symbol of natural man, to find passionate love, which Lawrence describes in a literal, photographic fashion -- albeit often in difficult reading dialect:

Then he woke up and looked at the light. The curtains were drawn. He listened to the loud wild calling of blackbirds and thrushes in the wood. It would be a brilliant morning, about half-past five, his hour for rising. He had slept so fast! It was such a new day! The woman was still curled asleep and tender. His hand moved on her, and she opened her blue wondering eyes, smiling unconsciously into his face.

"Are you awake?" she said to him.

He was looking into her eyes. He smiled, and kissed her. And suddenly she roused and sat up.

"Fancy that I am here" she said.

She looked round the whitewashed little bedroom with its sloping ceiling and gable window where the white curtains were closed. The room was bare save for a little yellow-painted chest of drawers, and a chair: and the smallish white bed in which she lay.

"Fancy that we are here!" she said, looking down at him. He was lying watching her, stroking her breasts with his fingers, under the thin night-dress. When he was warm and smoothed out, he looked young and handsome. His eyes could look so warm. And she was fresh and young like a flower.

"I want to take this off!" he said, gathering the thin batiste night-dress and pulling it over her head. She sat there with bare shoulders and longish breasts faintly golden. He loved to make her breasts swing softly, like bells.

"You must take off your pyjamas too," she said.

"Eh nay!"

"Yes! Yes!" she commanded.

And he took off his old cotton pyjama-jacket and pushed down the trousers. Save for his hands and wrists and face and neck he was white as milk, with fine slender muscular flesh. To Connie he was suddenly piercingly beautiful again, as when she had seen him that afternoon washing himself.

Gold of sunshine touched the closed white curtains. She felt it wanted to come in.

"Oh! do let’s draw the curtains! The birds are singing so! Do let the sun in," she said.

He slipped out of bed with his back to her, naked and write and thin, and went to the window, stooping a little, drawing the curtains and looking out for a moment. The back was white and fine, the small buttocks beautiful with exquisite, delicate manliness, the back of the neck ruddy and delicate and yet strong.

There was an inward, not an outward strength in the
delicate and yet strong body.

"But you are beautiful!" she said. "So pure and fine!
Come!" She held her arms out.

He was ashamed to turn to her, because of his aroused

He caught his shirt off the floor, and held it to him, coming
to her.

"No!" she said, still holding out her beautiful slim arms from her drooping breasts. "Let me see you!"

He dropped the shirt and stood still, looking towards her. The sun through the low window sent a beam that lit up his thighs and slim belly, and the erect phallus rising darkish and hot-looking from the little cloud of vivid gold-red hair.

She was startled and afraid.

"How strange!" she said slowly. "How strange he stands there! So big! and so dark and cocksure! Is he like that?"

The man looked down the front of his slender white body, and laughed. Between the slim breasts the hair was dark, almost black. But at the root of the belly, where the phallus rose thick and arching, it was gold-red, vivid in a little cloud.

"So proud!" she murmured, uneasy. "And so lordly! Now I know why men are so overbearing. But he's lovely, really. Like another being! A bit terrifying But lovely really! And he comes to me!-" She caught her lower lip between her teeth, in fear and excitement.

D.H. Lawrence

The man looked down in silence at his tense phallus, that did not change.-"Ay!" lie said at last, in a little voice. "Ay ma lad! Tha'rt theer right enough. Yi, tha mun rear thy head! Theer on thy own, eh? an ta’es no count o’ nob’dy! Tha ma’es nowt o' me, John Thomas. Art boss? of me? Eh well, tha’rt more cocky than me, an’ tha says less. John Thomas! Dost want her? Dost want my lady Jane? Tha’s dipped me in again, tha hast. Ay, an’ tha comes up smilin’.-Ax ‘er then! Ax ladv Jane! Say: Lift up your heads o’ ye gates, that the king of glory may come in. Ay, th’ cheek on thee! Cunt, that's what tha’rt after. Tell lady Jane tha wants cunt. John Thomas, an’ th’ cunt o’ Lady Jane!-"

"Oh, don’t tease him," said Connie, crawling on her knees on the bed towards him and putting her arms round his white slender loins, and drawing him to her so that her banging, swinging breasts touched the tip of the stirring, erect phallus, and caught the drop of moisture. She held the man fast.

"Lie down!" he said. "Lie down! Let me come!"

He was in a hurry now. And afterwards, when they bad been quite still, the woman had to uncover the man again, to look at the mystery of the phallus.

"And now he's tiny, and soft like a little bud of life!" she
said, taking the soft small penis in her hand. "Isn’t he somehow lovely! so on his own, so strange! And so innocent! And he comes so far into me! You must never insult him, you know. He's mine too. He's not only yours. He's mine! And so lovely and innocent!" And she held the penis soft in her hand.

He laughed.

"Blest be the tie that binds our hearts in kindred love," he said.
"Of course!" she said. "Even when he's soft and little I feel my heart simply tied to him. And how lovely your hair is here! quite quite different!"

"That's John Thomas' hair, not mine!" he said.

"John Thomas! John Thomas!" and she quickly kissed the soft penis, that was beginning to stir again.

"Ay!" said the man, stretching his body almost painfully.
"He’s got his root in my soul, has that gentleman! An’ some-
times I don’t know what ter do wi’ him. Ay, he's got a will
of his own, an’ it's hard to suit him. Yet I wouldn’t have him

"No wonder men have always been afraid of him!" she
said. "He's rather terrible."

The quiver was going through the man’s body, as the
stream of consciousness again changed its direction, turning
downwards. And be was helpless, as the penis in slow soft
undulations filled and surged and rose up, and grew hard,
standing there hard and overweening, in its curious towering
fashion. The woman too trembled a little as she watched.

"There! Take him then! He’s thine," said the man.

And she quivered, and her own mind melted out. Sharp soft waves of unspeakable pleasure washed over her as he entered her, and started the curious molten thrilling that spread and spread till she was carried away with the last,
blind flush of extremity.

Barney Rosset

The publisher of the American edition of Lady Chatterley’s Lover was Grove Press, owned by Barney Rosset. Postal authorities seized Rosset’s edition under the Comstock Act. Rosset’s attorney, Charles Rembar, argued in federal district court that the book deserves First Amendment protections for two reasons:

1) It has literary merit.
2) There is a distinction between prurience and a "normal sexual interest." Rembar argued successfully that the book dealt in a normal, healthy sexual interest, which was not at all the same as a sick or morbid prurient interest.

And Lady Chatterley then paved the way for the really big case that started in 1961 involving Henry Miller’s autobiographical novel Tropic of Cancer.

Miller’s style in Tropic of Cancer and his other best known works is explicit but not erotic. The book is offhandedly funny, crude, rude and perceptive. It offers a mirror-like insight into the bohemian life of Paris in the 1930s. It is definitely worth reading again if you haven't in a while -- if for no other reason to see just how politically incorrect it is.

Henry Miller

Born on Manhattan, of German-immigrant parents, Miller (1891-1980) grew up precocious in Brooklyn. Leaving college after two years, he went to work in a cement company. By 1920 he was employment manager for New York’s Western Union office. In 1930, after operating a Greenwich Village speakeasy, he left for France, where he transformed himself into Henry Miller, the bohemian writer. Miller lived in France for only nine years, but they were rich in ferment. In that time he published three books that made his reputation: Tropic of Cancer (1934) Black Spring (1936) and Tropic of Capricorn (1939). Miller returned to the U.S. at the end of the decade and lived the rest of his long life here. He wrote voluminously, published a large number books about many things, all of which were plainly autobiographical.

Miller’s style in Tropic of Cancer, Tropic of Capricorn and other novels is explicit as well as perceptive, insightful and often crudely funny. But it is not exactly erotic. In the preface to Tropic of Cancer Anaïs Nin, herself a pioneer of women-written erotic, described Tropic of Cancer in these terms:

…In the anaesthesia produced by self-knowledge, life is passing, art is passing, slipping from us: we are drifting with time and our fight is with the shadows. We need a blood transfusion.

And it is blood and flesh which are here given us. Drink, food, laughter, desire, passion, curiosity, the simple realities which nourish the roots of our highest and vaguest creations. The superstructue is lopped away. This book brings with it a wind that blows down the dead and hollow trees whose roots are withered and lost in the barren soil of our times. This book goes to the roots and digs under, digs for the subterranean springs.

When it was published in the United States in 1961 Life Magazine said "Tropic will be defended by critics as an explosive, corrosive Whitmanesque masterpiece (which it is) and attacked as an unbridled obscenity (which it is)." This brief excerpt puts Miller’s style on clear display:

Toward dawn we’re sitting on the terrasse of the Dôme. We’re forgotten about poor Peckover [a character who has just died] long ago. We’ve had a little excitement at the Bal Nègre and Joe’s mind has slipped back to the eternal preoccupation: cunt. It’s at this hour, when his night off is almost concluded, that his restlessness mounts to a fever pitch. He thinks of the women he passed up earlier in the evening and of the steady ones he might have had for the asking, if it weren’t that he was fed up with them. He is reminded inevitably of his Georgia cunt -- she’s been hounding him lately, begging him to take her in, at least until she can find herself a job. "I don’t mind giving her a feed once in a while,’’ he says, "but I couldn’t take her on as a steady thing. . . she’d ruin it for my other cunts." What gripes him most about her is that she doesn’t put on any flesh." It’s like taking a skeleton to bed with you," he says. "The other night I took her on -- out of pity -- and what do you think the crazy bitch had done to herself? She had shaved it clean. . . not a speck of hair on it. Did you ever have a woman who shaved her twat? It’s repulsive, ain’t it? And it’s funny, too. Sort of mad like. It doesn’t look like a twat any more: it’s like a dead clam or something." He describes to me how, his curiosity aroused, he got out of bed and searched for his flashlight. "I made her hold it open and I trained a flashlight on it. You should have seen me. . . it was comical. I got so worked up about it that I forgot all about her. I never in my life looked at a cunt so seriously, You’d imagine I’d never seen one before. And the more I looked at it the less interesting it became. It only goes to show you there’s nothing to it after all, especially when it’s shaved. It’s the hair that makes it mysterious. That’s why a statue leaves you cold. Only once I saw a real cunt on a statue -- that was by Rodin. You ought to see it some time. . . she has her legs spread wide apart. . . . I don’t think there was any head on it. Just a cunt you might say. Jesus, it looked ghastly. The thing is this -- they all look alike. When you look at them with their clothes on you imagine all sorts of things: you give them an individuality like, which they haven’t got, of course. There’s just a crack there between the legs and you get all steamed up about it -- you don’t even look at it half the time. You know it’s there and all you think about is getting your ramrod inside; it’s as though your penis did the thinking for you. It’s an illusion! You get all burned up about nothing. . . about a crack with hair on it, or without hair. It’s so absolutely meaningless that it fascinated me to look at it. I must have studied it for ten minutes or more. When you look at it that way, sort of detached like, you get funny notions in your head. All that mystery about sex and then you discover that it’s nothing -- just a blank. Wouldn’t it be funny if you found a harmonica inside. . . or a calendar? But there’s nothing there. . . nothing at all. It’s disgusting. It almost drove me mad. . . . Listen, do you know what I did after-wards? I gave her a quick lay and then I turned my back on her. Yeah, I picked up a book and I read. You can get something out of a book, even a bad book. . . but a cunt, it’s just sheer loss of time. . .24

It was Barney Rosset’s Grove Press that published the first above-ground American edition of Tropic of Cancer, along with Lady Chatterley’s Lover, Naked Lunch, The Story of O and, really, a store full of books that grabbed America’s attention. If there is a single hero in the history of unbanning books in America, it probably is Barney Rosset. He was determined to end censorship in America and he pretty much got what he wanted.

Rosset bought Grove Press for $3,000 after the end of World War II. In the 1950s he turned it America’s most exciting publishing house. He brought the European avant-garde to America: Samuel Beckett, Jean Genet, Marguerite Duras, and Alain Robbe-Grillet. He also published Jack Kerouac and Allen Ginsberg.

In the 1960s Rosset shifted to the work of the "Anglo-American sex radicals," including D.H. Lawrence, Henry Miller, John Rechy, William Burroughs, and third-world political radicals, including Frantz Fanon, Che Guevara and Malcolm X. Grove Press still exists, but Barney Rosset is no longer associated. A few years ago, in a money squeeze, he was forced out. Rosset now operates Blue Moon Books.

Rosset very consciously chose Lady Chatterley’s Lover as his first tool for tackling American censorship. Its success emboldened him to take another step. His next case involved Tropic of Cancer, which, Grove Published in 1961, the year after litigation on Lady Chatterley’s Lover ended.

Interestingly, it wasn’t the hardback version of the Tropic of Cancer that caused problems; it was the paperback edition, starting in Chicago and suburbs, where the hardcover had been selling peacefully for some while. The problem, as the censors saw it, was that because paperbacks are cheap and sold in drug and small variety stores they are more "available" to minors, and therefore should be suppressed. This reasoning is pure Hicklin (See installment one.)

Eventually there were cases against the book all over the country, perhaps 60 or so in all, and there was much jockeying for position among attorneys concerning whose case would find its way to the U.S. Supreme Court. It wound up being the Florida case, and the lead attorney was Edward de Grazia. The case, settled in 1964, is known as Grove Press, inc. v. Gerstein.

At the time, the United States Supreme Court had a decided liberal majority, including Justice Brennan Jr., Hugo Black, William O. Douglas, Arthur Goldberg, and Potter Stewart and Chief Justice Earl Warren. The Tropic of Cancer case wasn’t the only case dealing with obscenity on the court’s docket in that year, and it was joined with a case against The Lovers, a film by the late Louis Malle, starring Jeanne Moreau.

Given the court’s composition, de Grazia’s strategy for freeing Tropic of Cancer and The Lovers was to convince the court that valued cultural expression is at least as important as a work’s sexual content for determining if it deserves First Amendment protection. In his petition to the court de Grazia wrote "regardless of its ‘prurient appeal’ or ‘patent offensiveness,’ Tropic of Cancer has obvious literary and social importance, which entitle it to full [First Amendment] protection."

According De Grazia, the pivotal figure in the United States Supreme Court’s landmark Tropic of Cancer decision was Justice William J. Brennan, Jr. His opinion elucidated what de Grazia calls the "Brennan Doctrine." It essentially turned established notions of American book banning on their head, accepting de Grazia’s argument that instead of banning books because they have things in them that offend some people, no book should be banned unless it is utterly without value.

The key word in Brennan’s opinion was "utterly." In Brennan’s view obscenity did not enjoy First Amendment protections, but only work "utterly without social importance" could be branded obscene.

Copyright 1996
All rights reserved

For information on reprinting this series for classroom use, please contact us at, or phone 800-495-1988

Part 1: Introduction
Part 2: From Benjamin Hicklin to Margaret Sanger
Part 3: The Little Review and James Joyce's Ulysses
Part 4: Samuel Roth to Henry Miller
Part 5: The "Brennan Doctrine"