If the Fanny Hill decision finally disposes of the idea of intrinsic obscenity, the Ginzburg decision, with its roots in Justice Warren's position as elaborated by Lockhart and McClure, raises still other questions to which the Court so far has supplied no answers. It is, for example, only by the most whimsical logic that Lady Chatterley's Lover becomes obscene in one context while in another it is unobjectionable, or that Ginzburg's publications become obscene because Ginzburg publishes them, while if a more respectable or circumspect merchant sells them, they remain pure.
Conversely, would the Book of Job, under the present ruling, become obscene if it were sold for its sadomasochistic interest alone? Could the Court legitimately punish a bookseller for exploiting this aspect of such an ordinarily innocent work? Or will the Autobiography of a Flea become a legitimate publication if only the Harvard University Press brings it out? As absurd as it may appear, this is approximately how the Court seems to have left matters.
It is as if the Court had now asked us to return to the standards of the last century when pornography was allowed to circulate more or less freely among upper-class males in the privacy of their clubs or studies but was forbidden to women, children, servants, and the working class generally, who were presumed not to be sexual beings at all. The question now is whether, in having restricted pornography to a privileged class of presumably mature and therefore immune readers, the Court has in fact simplified matters for itself — as well as for writers, publishers, librarians, and booksellers — or whether it has merely translated the problem into another language as obscure and dangerous as the first.
In the Ginzburg decision, at any rate, one senses far beneath the legal surface of the case an argument which appears to stem, however remotely, from something like class bias. In its choice of such prejudicial epithets as "pandering" and "the leer of the sensualist" to describe Ginzburg's activities, the Court seems to be saying that Ginzburg's crime was no more than a function of his personality or character: that he was a vulgarian, and that therefore he had no right to trade in a market whose delicate and dangerous products must be limited only to gentlemen and scholars. Such an ad hominem judgment can hardly have been what the Court intended, no matter how the obscurity and occasional passion of Justice Brennan's language may seem to support such an interpretation.
From the point of view of serious literature it can only be beneficial that the Court has now rejected the idea of intrinsic obscenity and has thus moved closer than Justices Black and Douglas seem willing, in their dissents, to admit to the view that the First Amendment should be interpreted without restriction where literary expression is concerned. From the narrower interests of publishers and booksellers, however, the new ruling is bound to be troublesome until the Court provides clarification. For this reason. as well as for whatever personal sympathy one may have for Ginzburg and his family, one wishes that Ginzburg had been granted the new trial which he and his lawyers had requested. If Justice Brennan's decision has opened the door even a crack to the prosecution of any publisher or bookseller who happens also to be a vulgarian, then for the sake of us all that door must be shut imme-diately.
Meanwhile, for whatever small comfort one may take from the fact, one notices with pleasure the Court has agreed to consider the case of a New York newsstand clerk who was arrested for selling obscene magazines so as to determine whether a salesman can be convicted under the new ruling without clear proof that he knew that what he was selling was obscene. One assumes that if the Court itself no longer knows how to define obscenity, it can hardly expect the clerk to do any better. Perhaps it will be on these epistemological rocks that the law will finally have to admit defeat and accept the views of Justices Black and Douglas, if only to extricate itself from an impossible problem of definition. Until such time we shall have to live with the ambiguities that remain, and that will remain in whatever measure, no matter what the Court decides, as long as sexuality retains its terrifying power.
Even so, the Court, it seems to me, has so far acted reasonably, though perhaps without that God--like intelligence and mercy which some of its critics expect of it. Though one's sympathies are with Justices Black and Douglas, one still recognizes that such sympathies seldom coincide with political reality. It is enough, perhaps, for now that the Court has come as far as it has and that in having come this far it is within sight, though it may still be facing in somewhat the wrong direction, of that brave land where so far Justices Black and Douglas have been the only inhabitants.
Whether the majority of the Court will ever join these two heroic voyagers is, of course, impossible to predict, and the accidents of life and death compound the puzzle. Even so, the days of literary censorship seem to me to be substantially over, and the burden on publishers and booksellers to maintain a certain minimum decorum, at least until the public accustoms itself to this new freedom, seems hardly too much to ask.
I should not, however, like to conclude on such an agreeable note, for it would be misleading to suggest that what the Court decides the people will necessarily accept. There are those among us who will continue to claim more freedom than the Court has so far allowed, and there are others who, despite the freedom so far granted, will insist on restrictions which the Court has now disapproved.
Within each of us too there is bound to remain a private version of the same conflict. We cannot have been born into a civilization such as ours, which for so many centuries has labored under such sexual dread and mystery, without finding ourselves implicated in our culture's general distortion of instincts and values. None of us is yet prepared to walk naked on the streets, as the Etruscans once did or as the Greeks did in their games, no matter what encouragement such writers as Blake and Lawrence, or Henry Miller and Norman Mailer, or the fashion magazines, may provide. The world is still full of sheriffs whose grasp of the law, in its endless subtlety, will always be imperfect, and within the head of each of us, even within the heads of our most radical friends, there sits a tiny Madame de Gaulle saying no to this or that.
Yet the pressure within our culture toward greater sexual freedom, and its reflection in the Court's decision to trust us now not to debauch ourselves even within the embrace of Fanny Hill, may prophesy a change. Or it may not. We shall know better when the films — a more likely medium than books — begin to assert such freedom as up to now only literature has dared risk.
At any rate, we know from Marx as well as from Freud, and from our reading of the Calvinists and the interpretation of their motives in the work of Max Weber, that there is a historic connection between sexual regulation and economic necessity, a connection which is evident even now in such a society as China's, where the demand for rapid capital formation requires severe restrictions upon sexual behavior, so that work takes precedence over marriage and even within marriage the demands of the state override the preferences of its individual members.
In America and Europe we are beyond some of that necessity, as reluctant as most of us, still trapped in the habits and illusions generated by centuries of privation, may be to admit it. Such freedom is also terrifying, and in our terror we may arrange things so that none of us will survive to enjoy it. Even so, the prospect is there, no matter how obscure and uncertain the path to it may be. One regrets that Ralph Ginzburg must now prison for having done no more than try to see a merely vulgar imitation of this future paradise. But such regrets are for Ginzburg personally and not for our society as a whole. The Court, in having acquiesced in such unprecedented freedom for literature, seems to me to have foreshadowed a time in which that obsessive sexuality, so distorted by years of privation and the prior claims of struggle to survive, which has so permeated only our literature but our lives, may eventually recede — as some of our other devils have — into a more manageable and less maddening perspective. At any rate, the choice hereafter is more nearly up to us as individuals than it has ever been before, which is to say that our responsibilities have never been greater.