The Obscenity Business

The tortuous, not altogether articulate attempt of the Supreme Court to deal with the growing traffic in obscenity and pornography must be examined in detail if its latest decision, scrutinizing the motives of authors, editors, publishers, and booksellers, is to be understood. Mr. Epstein, a vice president of Random House, takes on that exacting task in this article and demonstrates that the issue at stake is not only individual freedom but the responsibility with which we use that freedom.

In the darker corners of our American cities, there has recently, sprung up a trade in pornography, literary as well as pictorial, of which the merchants of Hamburg and Yokohama might well be envious, and privately, or perhaps not so privately, there are those who find this not such a bad thing; no worse, at any rate, than some other branches of American commerce, and in its ingenuous appeal to an undoubted human need perhaps even preferable to those more subtle or devious demands on our sensibilities on behalf of this or that automobile or brand of cigarettes. In any case, we are assaulted each day by the news of what horrors we commit in the name of social responsibility and for the sake of economic growth, of our casual murders along the highways, of the consuming death with which we threaten the world, foretastes of which we and the other civilized nations have delivered already; and we are bound to wonder how, in the face of all this, mere sexuality, even in its most contorted versions, can still seem such an embarrassment or danger to us all.

The question, of course, is not new. It was, after all, in the generation of our grandfathers that Freud explained the terrible power that resides within our sexuality and how we must subdue and sacrifice this power in order to live in civilized society; that in exchange for the sexuality which we thus suppress we are able to divert our energies and use them to build our families, our cities, and our cultures. But Freud also warned that this great sacrifice may be more than most of us can bear and that our private deformations, whether overt or expressed in fantasy, reflect the reluctance with which we imperfectly and grudgingly give this part of ourselves over to the world at large Moreover, the notion has lately arisen, and by now become a commonplace, that not only may society ask too much of us, but, what is worse, it abuses what we give it; that by some process or other, society now transforms the energies which it takes from us and produces something quite different from the culture we had come to expect. Instead, we find ourselves trapped in a collective nightmare of choking cities, crashing cars, and exploding bombs, so that our civilization, on whose behalf we have individually sacrificed so much, finds its symbolic counterpart in a madhouse from which we now lack the power to escape.

Such, in any case, and in the briefest summary, is how much of modern literature looks upon the world and why its argument has so often been that we must recapture, if it is not too late, whatever parts of ourselves may still be salvaged from the wreck of our culture. It is from this vision or attitude that certain modern writers have mounted their attack on our sexual taboos and the myths that support them, as well as on the laws through which these myths are expressed. It is, I suspect, from a corresponding if unstated attitude within society as a whole that much of our recent permissiveness toward pornography derives.

Similarly we find that along with the increasingly overt sexuality of much of our literature, our very lives — in private at least, if not yet in public — and especially the lives of the young, in their dress and their dancing and in their increasingly violent rejection of established authority, reflect this new hand sometimes desperate, often sadly self-conscious, probably doomed attempt to retrieve or withhold from society what it has for so long demanded as kits price of admission.

From this perspective, the recent tendency of the Supreme Court in questions of obscenity, and especially its decision to lift the ban against Fanny Hill, call for more than merely our respect. Given the Court's position at the center of society, its decisions — so painfully rendered and as inarticulate, contradictory, and ambiguous as they often are — reflect what later ages may recognize as political genius of a specially courageous sort. Whether consciously or not, the Court seems to be agreeing, within the limits of its authority and comprehension, that mankind must have the second chance that our writers, from Blake and Lawrence to Freud and Norman O. Brown, have been demanding.

In such a summary as this I have inevitably simplified a most complex case, and no doubt in the point of view of Ralph Ginzburg, as he contemplates his immediate future, the distortions must seem horrendous. To him I owe, if not an apology, then at least an explanation. The fact is that his present difficulties, frightful and cruel as they are, might not have arisen had he sensed how very seriously the Court has come to regard literary sexuality and how very deeply, if also ambiguously, it has come to share with certain modern writers the obligation — which it may not recognize as such at all — to rid the question of sexuality of the mythologies, secular as well as sacred, by which it has for so long been haunted, distorted, and trivialized.

The Court decided the Ginzburg case, appropriately on the first day of spring, and as everyone knows confirmed the barbaric five-year sentence imposed by Judge Body of the Eastern District of Pennsylvania, the ribald implications of whose name hardly suggest the bleak piety with which he viewed Ginzburg's transgressions. Judge Body ruled that Ginzburg had used the mails to distribute obscene publications in violation of a federal statute, and he based his verdict partly on an argument by the federal prosecutor that no matter how hard it might be to define obscenity in the light of recent Supreme Court decisions, Ginzburg had considerably simplified matters in his own case by admitting in advance, through his five million or so direct-mail circulars, that his goods were, as Justice Brennan was later to write in upholding Judge Body's verdict, "created, represented and sold solely as a claimed instrument of the sexual stimulation [they] would bring." In other words, Ginzburg had convicted himself long before his case had come to court. Whether his publications were intrinsically obscene or not, Ginzburg sold them as if they were and thus, according to the Supreme Court, left himself without a defense.

For Ginzburg and his lawyers, as indeed for many others who followed the case, this reading of the law came as a surprise and has since become a source of consternation, especially among publishers who feel themselves at a loss to understand the Court's position. From lawyers too there has been much criticism of the Court's decision, and Justice Black in his dissent argued that Ginzburg had been unfairly trapped by the unusual line of attack which the Court was pursuing. In his decision for the majority, however, Justice Brennan anticipated this objection by pointing out that "the trial transcript clearly reveals that at several points the Government announced its theory that made the mode of distribution relevant to the determination of obscenity and the trial court admitted evidence otherwise irrelevant toward that end."

The fact is that the Court, and especially the Chief Justice, seem to have had some such theory in mind for at least a decade. At any rate, it was in 1957 in a concurring opinion in the Roth decision, from which much of our legal theory of pornography now derives, that Chief Justice Warren suggested that the mode of distribution was in fact relevant to the question of obscenity, that it is not a book that is on trial, it is a person. Had Ginzburg and his lawyers heeded this warning — had they sensed that while the Court was in the process of abandoning the idea of intrinsic obscenity it would nevertheless substitute for it an evaluation of the publisher's motives — he would very likely not be in jail this summer.

Ginzburg was correct, of course, in assuming that the Court was hopelessly entangled in the complex problem of establishing a definition of obscenity which could be reconciled with the First Amendment and that it was thus forced to extricate itself by taking an increasingly liberal position, whose outcome could only be the gradual abandonment of any attempt to define literary pornography. By the time Ginzburg put his circulars in the mail the Court seemed to have made it all but impossible to sustain a conviction in a literary obscenity case except perhaps where so-called hard-core pornography was concerned; and even here no one seemed to know what hard-core pornography, as opposed presumably to soft or peripheral pornography, was supposed to be. For a work to be considered obscene, the prosecution had to prove first that it was patently offensive, that it was without social value, and that to the average reader, applying the standards of the community, the work as a whole was addressed to the prurient interest of its readers. And, as the Court was to affirm in its decision on Fanny Hill, which was rendered on the same day as the Ginzburg decision, each of these criteria had to be met simultaneously.

A patently offensive work, which an average reader might feel was in fact addressed to prurient interest — which, as the Court has also made clear, is indescribably nastier than merely sexual interest — might still be protected under the First Amendment if it could be found to have the slightest redeeming social importance. As Justice Brennan wrote in reversing the judgment against Fanny Hill,, a work, no matter how offensive, must be utterly (his italics) without redeeming social importance before it can be proscribed. In these circumstances, no wonder Ginzburg protested his innocence, for even Justice Brennan in upholding Judge Body's verdict specifically refused to grant the contention of the lower court that what Ginzburg published was, in itself, obscene. "The conviction," Justice Brennan wrote, "does not necessarily suppress the materials in question nor chill their proper distribution for a proper use."

In thus becoming the unhappy instrument by which the three criteria that the Court has established for the determination of obscenity are now amplified by or enclosed within a fourth, Ginzburg, it seems to me, is not, as he insists, a martyr to the cause of free expression so much as to the Court's anguished and complex efforts to preserve free expression while still suppressing those publishers who, in their zeal or greed or foolishness, might exploit this freedom excessively, if not clearly to the detriment of the body politic, at least to the embarrassment of the Court itself. In the Ginzburg and Fanny Hill decisions, the Court has said, in effect, that we are indeed free at last under the First and Fourteenth Amendments to express ourselves, in print at least, as we please, but we are warned that this is also a dangerous freedom and not to be used irresponsibly. Above all, we must not give the Court cause to regret its increasingly liberal stand.

The Court's present position was argued at length some five years earlier in an article published in the Utah Law Review for spring, 1961, written by Dean Lockhart of the University of Utah Law School and Robert C. McClure, professor of law at the University of Minnesota. In this article, which severely criticizes the Court's position on obscenity as of that time for its many obscurities and especially for its dependence upon a definition of pornography which no court could possibly establish, the authors proposed as an alternative "that censorship should not depend upon the intrinsic nature of the material independent of its audience and method of marketing. Instead it should depend upon manner in which it is marketed and the primary audience to which it is sold." Presumably one the aims of Lockhart and McClure was to amplify the argument which Chief Justice Warren had suggested in 1957. Thus, while Lady Chaterley's Lover is clearly not obscene in itself, it would become obscene according to these authors if were sold, for example, to high school students for its sexual interest alone.

No doubt this article found its way to the Supreme Court (Justice Douglas refers to it in his dissenting opinion in Ginzburg), and it may even have provided the basis for Ginzburg's prosecution in the Eastern District of Pennsylvania. From a somewhat paranoid perspective, one might even assume a degree of collusion between the Court and the federal prosecutor, if not for the purpose of trapping Ginzburg, then possibly in order to test the new hypothesis. At any rate, Lockhart and McClure clearly anticipated the present position of the majority of the Court, and their article supports the Court's current theory that while books themselves are protected under the Constitution, booksellers are not.

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.

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