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 5
The "Brennan Doctrine"

By Jack Hafferkamp

Edward De Grazia

At the end of last month’s installment we had arrived at First Amendment attorney and author Edward De Grazia's conclusion that 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," 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:

We would reiterate our recognition in Roth that obscenity is excluded from the constitutional protection only because it is ‘utterly without redeeming social importance,’ and that ‘the portrayal of sex, for example, in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.’

It follows that material dealing with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a ‘weighing’ of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance.27

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.

Justice Brennan

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 Cleland’s 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, wasn’t certain it did.

This excerpt comes from the very beginning of the book and describes Fanny’s 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 Fanny’s new friend was pressing her "attack" and stirring in Fanny feelings that were entirely new and confusing:

My breasts, if it is not too bold a figure to call so to hard, firm, rising hillocks, that just began to shew themselves, or signify anything to the touch, employ’d and amus’d her hands a-while, till, slipping down lower, over a smooth track, she could just feel the soft silky down that had but a few months before put forth and garnish’d the mount-pleasant of those parts, and promised to spread a grateful shelter over the seat of the most exquisite sensation, and which had been, till that instant, the seat of the most insensible innocence. Her fingers play’d and strove to twine in the young tendrils of that moss, which nature has contrived at once for use and ornament.

But, not contented with those outer posts, she now attempts the main spot, and began to twitch, to insinuate and at length to force an introduction of a finger into the quick itself, in such a manner, that she had not proceeded by insensible gradations that inflamed me beyond the power of modesty to oppose its resistance to their progress, I should have jump’d out of bed and cried for help against such strange assaults.

Instead of which, her lascivious touches had lighted up a new fire than wanton’d through all my veins, but fix’d with violence in that center appointed them by nature, where the first strange hands were now busied in feeling, squeezing, compressing the lips, then opening them again, with a finger between, till an "Oh!" express’d her hurting me, where the narrowness of the unbroken passage refused its entrance to any depth.

In the meantime, the extension of my limbs, candid stretchings, sighs, short heavings, all conspired to assure that experienced wanton that I was more pleased than offended at her proceedings, which she seasoned with repeated kisses and exclamations, such as "Oh!" what a charming creature thou art! . . . " with the like broken expressions, interrupted by kisses as fierce and fervent as ever I received from the other sex.

For my part, I was transported, confused and out of myself; feelings so new were too much for me. My heated and alarm’d senses were in a tumult that robbed me of all liberty of thought; tears of pleasure gush’d from my eyes, and somewhat assuaged the fire that rag’d all over me.

Phoebe, herself, the hackney’d, thorough-bred Phoebe, to whom all modes and devices of pleasure were know and familiar, found, it seems, in this exercise of her art to break young girls, the gratification of one of those arbitrary tastes, for which there is no accounting. Not that she hated men, or did not even prefer them to her own sex; but when she met with such occasions as this was, a satiety of enjoyments in the common road, perhaps too, a secret bias, inclined her to make the most of pleasure, wherever she could find it, without distinction of sexes. In this view, now well assured that she had, by her touches, sufficiently inflamed me for her purpose, she roll’d down the bed-cloaths gently, and I saw myself stretched nak’d, my shift being turned up to my neck whilst I had no power or sense to oppose it. Even my glowing blushes expressed more desire than modesty, whilst the candle, left (to be sure not undesignedly) burning, threw a full light on my whole body.

"No!" says Phoebe, "you must not, my sweet girl, think to hide all these treasures from me. My sight must be feasted as well as my touch . . . I must devour with my eyes this springing bosom . . . Suffer me to kiss it . . . I have not seen enough . . . Let me kiss it once more . . . What firm, smooth, white flesh is here! . . . How delicately shaped! . . . Then this delicious down! Oh! let me view the small, dear, tender cleft! . . . This is too much, I cannot bear it! . . . I must . . . I must . . ." Here she took my hand, and in a transport carried it where you will easily guess. But what a difference in the state of the same thing! . . . A spreading thicket of bushy curls marked the full-grown, complete woman. Then the cavity to which she guided my hand easily received it; and as soon as she felt it within her, she moved herself to and fro, with so rapid a friction that I presently withdrew it, wet and clammy, when instantly Phoebe grew more composed, after two or three sighs, and heart-fetched Oh’s! and giving me a kiss that seemed to exhale her soul through her lips, she replaced the bed-cloaths over us. What pleasure she had found I will not say; but this know, that the first sparks of kindling nature, the first ideas of pollution, were caught by me that night; and that the acquaintance and communication with the bad of our own sex, is often as fatal to innocence as all the seductions of the other. But to go on. When Phoebe was restor’d to that calm, which I was far from the enjoyment of myself, she artfully sounded me on all the points necessary to govern the designs of my virtuous mistress on me, and by my answers, drawn from pure undissembled nature, she had no reason but to promise herself all imaginable success, so far as it depended on my ignorance, easiness and warmth of constitution.

After a sufficient length of dialogue, my bedfellow left me to my rest, and I fell asleep…

The Warren Court

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

  • a) the dominant theme of the material taken as a w
  • hole appeals to the prurient interest in sex ;
  • b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
  • c) the material is utterly without redeeming social value.

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 Nabokov’s Lolita and Terry Southern and Mason Hoffenberg’s 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. Miskin’s 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 Mishkin’s 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 Housewife’s 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.

Ginzburg’s problem was different from Mishkin’s. His difficulty wasn’t with what he was selling so much as the way he sold it. What was on trial was Ginzburg’s 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 didn’t 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.

"Black & White In Color"
By Ralph M. Hattersley Jr.
Eros, Winter 1962

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 wasn’t. 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 didn’t 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 Burrough’s 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 "Hassan’s Rumpus Room."

Gilt and red plush. Rococo bar backed by pink shell. The air is cloyed with a sweet evil substance like decayed honey. Men and women in evening dress sip pousse-cafés through alabaster tubes. A Near East Mugwump sits naked on a bar stool covered in pink silk. He licks warm honey from a crystal goblet with a long black tongue. His genitals are perfectly formed -- circumcised cock, black shiny pubic hairs. His lips are think and purple-blue like the lips of a penis, his eyes blank with insect calm. The Mugwump has no liver, maintaining himself exclusive on sweets. Mugwump push a slender blond youth to a couch and strip him expertly.

"Stand up and turn around," he orders in telepathic pictographs. He ties the boy’s hands behind him with a red silk cord. "Tonight we make it all the way."

"No, no!" screams the boy.

"Yes, yes."

Cocks ejaculate in silent ‘yes." Mugwump part silk curtains, reveal a teak wood gallows against lighted screen of red flint. Gallows is on a dais of Aztec mosaics.

The boy crumples to his knees with a long "OOOOOOOH," shitting and pissing in terror. He feels the shit warm between his thighs. A great wave of hot blood swells his lips and throat. His body contracts into a foetal position and sperm spurts hot into his face. The Mugwump dips hot perfumed water from alabaster bowl, pensively washes the boy’s ass and cock, drying him with a soft blue towel. A warm wind plays over the boys body and the hairs float free. The Mugwump puts a hand under the boy’s chest and pulls him up the steps and under the noose. He stands in front of the boy holding the noose in both hands.

The boy looks into Mugwump eyes blank as obsidian mirrors, pools of black blood, glory holes in a toilet wall closing on the Last Erection.

An old garbage collector, face fine and yellow as Chinese ivory, blows The Blast on his dented brass horn, wakes the Spanish pimp with a hard-on. Whore staggers out through dust and shit and litter of dead kittens, carrying bales of aborted foetuses, broken condoms, bloody Kotex, shit wrapped in bright color comics.

A vast still harbor of iridescent water. Deserted gas well flares on the smoky horizon. Stink of oil and sewage. Sick sharks swim through the black water, belch sulphur from rotting livers, ignore a bloody, broken Icarus. Naked Mr. America, burning frantic with self bone love, screams out: "My asshole confounds the Louvre! I fart ambrosia and shit pure gold turds! My cock spurts soft diamonds in the morning sunlight!" He plummets from the eyeless lighthouse, kissing and jacking off in face of the black mirror, glides oblique down with cryptic condoms and mosaic of a thousand newspapers through a drowned city of red brick to settle in black mud with tin cans and beer bottles, gangsters in concrete, pistols pounded flat and meaningless to avoid short-arm inspection of prurient ballistic experts. He waits the slow striptease of erosion with fossil lions.

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. Grove’s 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 book’s value. The Boston trial judge didn’t 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 Redrup’s 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.

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 Ginzburg’s conviction was his personal wake-up call. In his Ginzburg dissent Stewart wrote:

Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or worse, in the enlightened choice of the people, free from the interference of a policeman’s intrusive thumb or a judge’s heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than of elegance. A book worthless to me may convey something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself.

Powerful words and stunningly accurate. Stewart’s arguments were persuasive enough to convince the court to reverse Redrup’s 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.

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
Next Month: Warren Burger Puts His Finger in the Dyke