- The Hecate County events are described in Chapters 12 and 13 of my forthcoming book Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius, to be published by Random House in Fall 1991 (hereinafter GLBE). The present article is from the pages of that book.
- See Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court (New York: NYU Press, 1983).
- There is an analysis of Warren's attitude toward obscenity and the constitutional questions it presented for him in G. Edward White, Earl Warren: A Public Life (New York: Oxford U. Press, 1982), ch. 11.
- Until 1966, when he joined controversial opinions of Brennan's that justified the conviction of Ralph Ginzburg for “pandering” through the mails three sexually-oriented publications, including the hardbound magazine Eros, but also the freeing of G.P. Putnam's sons to sell Fanny Hill in Massachusetts. These events are described in GLBE, supra note 1, at Chapters 23 and 26.
- Described in GLBE, supra note 1, ch. 22.
- See Stephen Gillers, “The Warren Court—It Still Lives,” The Nation, September 17, 1983, crediting Brennan with keeping the progressive law created by the Warren Court alive during the reactionary era of the Burger and early Rehnquist Courts.
- When Warren Burger took Earl Warren's place, in 1970, he systematically indulged in the prerogative each Chief Justice enjoys, whenever he is in the majority, to assign to himself (or to any other Justice voting with the majority) the writing of the Court's opinion; as a result, an important part of the constitutional law of obscenity still bears the imprint of Burger's undisguised personal distaste for sexuality and sexual expression. See GLBE, supra note 1, ch.27.
- The events are described in GLBE, supra note 1, ch. 21.
- The group-libel law case was Beauharnais v. Illinois, 343 U.S. 250 (1952), discussed by Harry Kalven in A Worthy Tradition (New York: Harper & Row, 1987), pp. 60 and 92; the “fighting words” decision was Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
- On the censorship of Lawrence's works, see GLBE, supra note 1, chs. 4 and 5.
- Not that Roth escaped harassment for advertising “non-obscene” publications. Fraud orders were apparently issued in cases where the post office police felt that Roth was using the mails to peddle as “erotic” publications that were not “erotic.” “Unlawful orders” were apparently issued in cases where the post office police decided that the publisher was engaged in selling “obscenity” through the mails, and “blocked” as “unlawful” all mail, whether business or personal, addressed to him. The techniques used by the post office to censor literature of all kinds were studiously described by James C.N. Paul and Murray L. Schwartz, Federal Censorship: Censorship in the Mail (New York: Free Press, 1961) See also infra, note 14.
- Published by Fanfrolico Press, one of the Paris publishing houses that D.H. Lawrence looked into in his effort to bring out a cheap (paperback) but faithful edition of Lady Chatterley's Lover. See GLBE, supra note 1, ch.5.
- The post office's release of the volume was not simply a confession of error, however; it was also a legal maneuver designed to moot the case that I had brought, on behalf of the Los Angeles bookseller, in which I asked a federal court not only to require the book's return but, more importantly, to declare unconstitutional the law and practice under which the post office supervised the sexual contents of literature and art sent through the mails. I argued that, even if Lysistrata were “obscene,” its social and cultural importance entitled it to constitutional protection; in this I partly anticipated the Brennan doctrine that evolved in the Supreme Court from 1957 to 1966. The incident is mentioned in my “Obscenity and the Mail,” 20 Law and Contemporary Problems 608 (1955) and in Paul and Schwartz, supra note 11, p. 104. The government probably handed the book over in consideration of the possible disaster awaiting its on going mail censorship program, were Lysistrata to reach the Supreme Court. Even a Frankfurter-dominated bench would have felt the need to find a way to set Lysistrata free from the post office's restraint.
- See, for example, Roth v. Goldman, 172 F.2d 788 (2d Cir. 1949), in which Roth sought to enjoin a postmaster from executing four “fraud” orders and an “exclusion” order. The fraud orders were based on the government's theory that Roth mailed advertisements that fraudulently represented four books sold by him as erotic (“salacious”) when in fact (according to the post office) they were not. The exclusion order was designed to prevent Roth from using the mails to distribute a book called Waggish Tales from the Czechs. The same federal appellate court that later upheld Roth's American Aphrodite conviction thought it proper to uphold the post office's finding that Waggish Tales was obscene by hiding behind a self-limiting scope of judicial review of administrative action and maintaining that “within limits it perhaps is not unreasonable to stifle compositions that clearly have little excuse for being beyond their provocative obscenity and to allow those of literary distinction to survive.” This approach understandably “bewildered” Judge Jerome Frank, inasmuch as the court majority seemed ready to assume the task of “acting as judges of literature.” See William Lockhart and Robert McClure, “Literature, the Law of Obscenity, and the Constitution,” 38 Minnesota Law Review 338 (1954).
- Today the post office is engaging in similar entrapment like practices to apprehend persons using the mail to obtain “child pornography.” According to one student of the post office's behavior, the Government itself produces the “child pornography” (including photographs of children merely nude), which it then entices interested persons to seek to acquire, at the price of being prosecuted for using the mails to receive child pornography; See Lawrence Stanley, “The Child Porn Myth,” 7 Cardozo Arts and Entertainment Law Journal 295 (1989).
- Glaseo was associated with Maurice Girodias' Olympia Press, in Paris. (The demise of Olympia in France at the behest of the English police, for publishing Vladimir Nabokov's Lolita, is described in GLBE, supra note 1, ch. 14.) Glaseo wrote an introduction to the Grove Press edition of Under the Hill.
- The censorship of The Well of Loneliness is described in GLBE, supra note 1, chs. 10 and 11.
- As described in GLBE, supra note 1, ch. 12.
- Two years later, in a case involving a book called Sweeter Than Life, Justice Felix Frankfurter gave it as his opinion that the absolute exclusion of such evidence, as of evidence of literary merit, would violate the defendant's constitutional right to due process of law. See Smith v. California, 361 U.S. 147 (1959). Frankfurter's reaction to Sweeter Than Life is described later on in this article; see text, infra at note 27.
- He then read from The Deer Park's fellatio episode, a scene that led several American publishers to decline to publish the book. Eventually, G.P. Putnam's publisher, Walter Minton, enthusiastically took it on, and it became a best-seller.
- While head of Putnam's, Minton made best-sellers out of three other “hot” books: Vladimir Nabokov's Lolita, Terry Southern's Candy, and John Cleland's Fanny Hill. After leaving Putnam's, Minton went to law school; he now practices law in New Jersey.
- See GLBE, supra note 1, ch. 16.
- Roth was sentenced to the same term of imprisonment on three other counts for mailing advertisements for: Photo and Body and Good Times, Vol. 1, No. 10 (Count 10); Good Times, Vol. 1, No. 8 (Count 13); “American Aphrodite No. 13” and “Good Times, Vol. 1, No. 5” (Count 17) but the sentences were ordered to run concurrently with that for mailing American Aphrodite No. 3, the Venus and Tannhäuser issue (Count 24). Aphrodite No. 3 evidently also contained “The Twilight of the Nymphs” by Pierre Lous, but this was not dwelt upon at trial by the prosecutor.
- Frank protested at being called a realist by the movement's critics (who were mostly law school academicians), saying that the realists were “related only in their negations, in their scepticisms and in their curiosity.” A principal tenet of realists was that law was much more uncertain and legal outcomes much more unpredictable than conventional legal philosophers and purists contended, and that the factors influencing any particular court decision were often different from those (mainly legal rules, principles, and precedents) that the decision makers cited as “controlling” the outcomes of the cases. See Appendix V in Frank's If Men Were Angels (New York: Harper, 1941), one of two classic works on law by Frank.
- Frank's own doubt and “puzzlement” about the constitutionality of the postal statute had been “nudged” into “the skeptical views” expressed in his Roth opinion and appendix by another “brilliant opinion” written some years earlier (1949) by Judge Curtis Bok, characterized by Frank as “one of America's most reflective judges.” Bok's opinion (in the case of Commonwealth v. Gordon) stated “arguments that (so far as I know) have never been answered,” said Frank. The Bok opinion is in de Grazia, Censorship Landmarks (New York: R.R. Bowker Company, 1969), 150. The Supreme Court supports the policy of politesse when it discounts efforts made by lower court judges to solve problems in the law that it has not itself confronted or been able to solve. The Bok opinion in Gordon is an example of a judge declining to adopt an attitude of politesse, perhaps from his sense of the urgency of a solution being brought to the “problem” of the judiciary being used to implement a system of government censorship of literature and art through formal enforcement of the laws forbidding “obscene” expression.
- The proceedings in the Supreme Court in Roth's case are fully described in GLBE, supra note 1, ch. 16.
- See Chaplinsky v. New Hampshire, supra note 9, in which the Court unanimously agreed that “certain well-defined and narrowly limited classes of speech,” including the “obscene,” had “never been thought to raise any constitutional problem.”
- Sweeter Than Lifeby Mark Tryon (New York: Vixen Press, 1954) seems to have been a forerunner of the sex pulp novels so numerous in the '60's; it contained a prominent lesbian theme, and it seems to have had no appreciable literary value. It is described in some detail in Felice Flannery Lewis, Literature, Obscenity & Law (Carbondale: S. Ill. Univ. Press, 1976), at 180–81. The case was Smith v. California, 361 U.S. 147 (1959).
- The Ginzburg case is discussed in GLBE, supra note 1, chs. 23 and 26; the Lockhart Commission's activities are described id., ch. 28. Bender, who is now a professor at the Arizona State University College of Law, goes further in his prescription for freedom of the press than the Commission did; he advocates the repeal of all laws regulating the access of adults or children to sexually oriented expression. (Author interview with Paul Bender.)
- In 1989–1990, the Brennan doctrine (as modified in 1973 by Chief Justice Burger in Miller v. California 413 U.S. 15) would resume, its function of protecting literature and art by discouraging National Endowment for the Arts censorship of sexual expression, as described in GLBE, supra note 1, ch. 30.
- FDR's administration is remembered for having organized the nation's first important programs for the direct support of artists and the arts. A more lasting program of government funding of the arts, and artists, was launched in 1965 during the administration of President Lyndon Johnson, with the establishment of the National Endowments on the Arts and Humanities. In 1989, an effort was made by Senator Jesse Helms to create a system of censorship over the NEA's programs; in 1990, right-wing conservatives sought to abolish the program. These events are described and discussed in GLBE, supra note 1, ch. 30.
- Judge Richard A. Posner, a well-known proponent of “free-enterprise” capitalism, has made an elegant argument against the use of obscenity laws, and for “the competition of the literary marketplace,” in Law and Literature: A Misunderstood Relation (Cambridge, Harvard U. Press, 1989), pp. 329–38. Judge Pòsner recently wrote an opinion in a “nude dancing” case that bears comparison with Frank's concurrence in Roth., Posner did that concurring in the federal Seventh Circuit Court of Appeals' en banc decision holding erotic dancing to be “expression” protected by the constitutional guarantees of freedom of speech and press. Dartene Miller v. City of South Bend, 904, F. 2d 1081 (1990), revs'd. sub. nom. Barnes v. Glen Theatre Inc., U.S. Supreme Court, No. 90–26, 59 U.S. Law Week 1198 (1991).
- “Metaphysics of the Law of Obscenity,” 1960 Supreme Court Review 1 (1960), p. 2.
Law & Literature
Volume 3, 1991 - Issue 1