STUDIES IN EROTOLOGY
Preserving Americas Erotic Heritage
At the end of last months installment we had arrived at First Amendment attorney and author Edward De Grazia's conclusion that the pivotal figure in the United States Supreme Courts landmark Tropic of Cancer decision was Justice William J. Brennan, Jr. His opinion elucidated what de Grazia calls the "Brennan Doctrine," which turned established notions of American book banning on their head, fundamentally altering the approach to controlling sexually charged books and films in America. From Brennan we got the idea 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.
According to the Brennan Doctrine obscenity did not enjoy First Amendment protections; but only work "utterly without social importance" could be branded obscene. In his Roth opinion, Brennan wrote:
Legal costs for winning the right to read Tropic of Cancer cost Barney Rosset $250,000, a tidy sum thirty-some years ago when one could buy a house for that. The case also marked the first time in its history that the American Civil Liberties Union seriously joined the fray -- with 15 lawyers -- for the defense of an "obscene book." The victory had immediate impact that extended beyond freedom for books. For example, on that same day the decision was handed down, the Illinois Supreme Court reversed a ruling on an obscenity conviction involving Lenny Bruce for a performance at the Gate of Horn nightclub in Chicago.
What the Brennan Doctrine meant in historical context was that it suddenly became very difficult for prosecutors to prove works obscene, but easy for defense lawyers to demonstrate that the works of their clients should be entitled to Constitutional protection. To this day, pro-censorship forces argue that the Tropic of Cancer decision mocked the founding fathers intentions with regard to freedom of the press. They still bash Brennan and his colleagues for unleashing the "tides of Pornography" that flooded the American democracy.
Certainly the momentum of the Brennan doctrine did not stop with Tropic of Cancer. In fact, its concept of "social value" was clarified and expanded in the 1966 case against John Clelands Memoirs of a Woman of Pleasure v. Massachusetts, otherwise known as Fanny Hill.
Nineteen sixty-six was a big year for obscenity cases in the U.S. Supreme Court. There were three major decisions to know about. They involved Fanny Hill, three publications by Ralph Ginzburg, and a group of fetish, bondage and S&M booklets commissioned and published by Samuel Mishkin. Taken together these decisions demonstrated that while the Supreme Court was open to allowing "literature" to flourish, it had no problem setting limits on other so-called obscene works.
In the Fanny Hill case the big question for the court was "Does this book have any literary merit? Even Brennan, de Grazia concludes, wasnt certain it did.
This excerpt comes from the very beginning of the book and describes Fannys first sexual experience. Unbeknownst to the young, naive and orphaned Fanny, she has been delivered on her first day in London to a whorehouse. She thought she was taking a job as a domestic servant, and she did not understand that Phoebe, the young woman who was to be her bedmate the first night, had been assigned to determine if Fanny was a virgin. We pick up the narrative when Fannys new friend was pressing her "attack" and stirring in Fanny feelings that were entirely new and confusing:
It was attorney Charles Rembar who tried to convince the Supreme Court that Fanny Hill had "literary merit, historical significance and psychological values." He argued that there could be no such thing as "well-written pornography." That if a work was well-written it could not be considered "pornography."
Rembar carried the day; the vote was 6 to 3 in favor of Fanny Hill. And more importantly, the case established a new Supreme Court standard for obscenity, the Memoirs Standard. For a work to be judged obscene after Fanny Hill, it had to fail three tests. It had to be established that
Each of these three criteria is to be applied independently; the social value of a book, for example, cannot be weighed against or cancelled out by its prurient appeal or patent offensiveness.
This Memoirs Standard decision was a great advance in opening America to legitimate literature that happens to deal with sexuality. Because of it books like Vladimir Nabokovs Lolita and Terry Southern and Mason Hoffenbergs Candy and The Story of O became readily available, and shows like Marat/Sade, Hair and Oh, Calcutta could appear on Broadway.
But as is often the case when the Supreme Court justices are asked to a dance, one big step forward is followed by a step to the side and a step back. The other two big cases of March 21, 1966 show that the Court was not throwing the door open to everyone and everything. The Ginzburg and Mishkin cases had quite different outcomes -- even though they, too, were authored chiefly by Justice William J. Brennan, Jr.
Samuel Mishkin was on trial under New York State anti-obscenity statutes for publishing pulp fetish/porn books. Their themes involved fethishism, sadism, masochism and homosexuality. Miskins titles included Mistress of Leather, The Whipping Chorus Girls, Swish Bottom and So Firm and Fully Packed.
The case against Mishkin was based on his books supposed prurient interest and lack of redeeming literary or social value. The final vote was 6 to 3 against and Mishkins conviction and three year sentence was upheld. His books, it was concluded, had no literary value, offended community standards, and were purely prurient.
More curious was the case against Ralph Ginzburg. It was Attorney General Robert Kennedy who went after Ginzburg for violating the Comstock Act with three publications, his lovely, hard-cover magazine Eros, a newsletter called Liaison and the whimsically titled book, The Housewifes Guide to Selected Promiscuity. Thanks to federal efforts, Ginzburg had been convicted, sentenced to five years, and fined $42,000 for essentially what was a bad joke.
Ginzburgs problem was different from Mishkins. His difficulty wasnt with what he was selling so much as the way he sold it. What was on trial was Ginzburgs blatancy in exploiting the new freedoms granted by the courts. His marketing of Eros, for example, was not subtle. Ginzburg wanted to mail promo materials from the Pennsylvania Amish towns of Blue Ball, and Intercourse. Refused there, he finally succeeded in mailing it from Middlesex, New Jersey. Postal authorities then arrested him for pandering to the prurient interest.
While the justices agreed that his publications had "marginal" social value, the court as a whole didnt at all care for his promotional methods. Many people, including some on the court -- thought he had gone too far in flaunting a full-color interracial photo spread. Looking, to me at least, quite lovely, very soft by even the standards of today's mainstream ads -- think no farther than Calvin Klein bus-side ads. But in those days of the rising tide of the Civil Rights Movement, these photos were the icing on his cake. Politically, Ginzburg pushed all the wrong buttons. Whatever the exact thinking, the court voted 5 to 4 against Ginzburg. In the end, he actually served eight months and then was quietly released.
Taken together, what the three 1966 cases came to was ambiguity. Fanny Hill was okay because it was literature. Swish Bottom was not because it wasnt. But where, exactly was the line between them? And darn that Ginzburg: He was the wild hair in the formula and for some on the court, his conviction didnt go down so easily.
The case that pushed the concept of literature to a new level in America involved yet another Grove Press edition, this time of William Burroughs very strange and difficult book Naked Lunch.
Naked Lunch is a nightmarish plunge into the world of a boundary-pushing gay junkie. It is unlike typical novels in that it has no apparent structure, and in fact was created by cutting and pasting bits and pieces of writing. Many readers find it almost impossible to read, because while it is sometimes very funny, it is also by turns ugly, tedious and annoying. It is a challenge.
This brief excerpt is from the section called "Hassans Rumpus Room."
Grove Press set about publishing Naked Lunch in 1959. But once he had copies printed, Barney Rosset put them in a warehouse until 1963, when he decided time was right for putting this particular book out. The case resulted from a bust in Boston. It reached the Massachussets Supreme Judical Court in 1966. Groves trial strategy was simply to show that the book had undeniable "social importance."
It was to be a test of the Brennan Doctrine based on a book that had something to offend everyone. Edward de Grazia used his literary big guns to defend the book: novelist Norman Mailer and poets Allen Ginsberg and John Ciardi as well as others, were called to testify on the books value. The Boston trial judge didnt buy it, but the appeal to the Massachusetts Supreme Judicial Court on the basis of social importance got a reversal. Naked Lunch was thus the last undisputed work of literature censored by the United States Post Office, Customs or state government.
And if Naked Lunch was literature, who then could say what was not?
The case that really threw open the flood gates came in 1967. It was Redrup v. New York. Robert Redrup was a Times Square newsstand clerk who sold two pulp sex novels, Lust Pool and Shame Agent to plainclothes police. He was tried and convicted in 1965. The books were published by William Hamling, and he paid Redrups legal bills to the Supreme Court.
According to de Grazia, Hamling firmly believed that he was not selling -- as was said about his books -- "commercialized obscenity," nor would he admit to "titillating the prurient interests of people with a weakness for such expression." Hamling felt his books were giving people who would never have the skills to read and enjoy Ulysses or Fanny Hill or Naked Lunch what they wanted. De Grazia also says that the judicial spearhead of Redrup was Justice Potter Stewart.
It was Stewart, of course, who in an earlier case wrote the famous line about not being able to define pornography, but knowing it when he sees it. (In Jacobellis v. Ohio, Stewart wrote: I shall not today attempt further to define the kinds of material I understand to be embraced within [the concept] hardcore pornography, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.)
In Redrup, Stewart went far beyond his established just-left-of-center postion on obscenity to the most radical of outlooks. Apparently the vote to affirm Ralph Ginzburgs conviction was his personal wake-up call. In his Ginzburg dissent Stewart wrote:
Powerful words and stunningly accurate. Stewarts arguments were persuasive enough to convince the court to reverse Redrups conviction by 7-2. This was the decision by the United States Supreme Court to affirm that consenting adults in the U.S. ought to be constitutionally entitled to acquire and read any publication that they wish -- including concededly obscene or pornographic ones -- without governmental intereference.
Under this guiding principle, the Supreme Court systematically and summarily reversed without further opinion scores of obscenity rulings involving paperback sex books, girlie magazines and peep shows. Redrup became a descriptive term. To Redrup a case meant to dissmiss it out of hand.
This practice lasted until 1973, when Justice Byron White changed sides to join the emerging new conservative majority in the Warren Burger-led court.
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Part 1: Introduction