Flashbacks July 2006

Obscenity, Censorship, and the First Amendment

Atlantic writings from the turn of the twentieth century forward on the fraught battleground between freedom of speech and public morality

In "The Practice of Censorship," Edward Weeks took a different tack in cautioning readers against overzealous censorship. He offered a historical look at the censorship laws, emphasizing that in most cases they had been developed many years earlier to address serious specific incidences of truly offensive material, but had been expanded in their interpretation over time to include more and more benign material.

He also pointed to the bizarreness of some of the methods that had been developed to screen for questionable material. He found the Postal Obscenity Law to be especially arbitrary, since it relied on federal postal officers—employees with no particular literary interest or expertise—to decide what written materials should be barred from shipment through the mail. He enumerated some of the materials that had been banned by censorious postmasters. Among those listed were Ovid's Metamorphoses, Tolstoy's Kreutzer Sonata, and the official vice report of the city of Chicago.

Another government body that had been charged with passing judgment on the acceptability of written materials was the Customs Bureau. Anything deemed inappropriate could be barred by customs clerks from entering the country. Weeks pointed to one amusing episode in which a customs inspector had confiscated a copy of Rabelais which had been on its way to a Philadelphia book collector named A. Edward Newton. Upon learning what had happened to his book, Newton sent off a letter of protest, which Weeks reprinted in part:

The action of your representative is positively glorious! Rabelais is one of the world's classics: it is no more obscene than are Shakespeare and the English Bible. In order that you may not be the laughingstock of the world, I beg that the volume be sent to me immediately; but for no other reason, for one can secure a copy at any well-ordered bookshop or library in the United States...

If you keep or destroy my Rabelais, it will be in my power to make you and your department ridiculous the world over. This would afford me much greater pleasure than the possession of the book.

Three decades later, the pendulum was swinging back the other way. In 1966, future Random House editorial director and New York Review of Books founder Jason Epstein took stock of two then-recent Supreme Court decisions. In the first, the Court had overturned a longstanding ban against the book Fanny Hill. In the second, it let stand an obscenity conviction against a man named Ralph Ginzburg, who had sold and distributed risqué materials through the mail.

Epstein lauded the Court for its new, more liberal outlook, represented by the Fanny Hill decision. But he wondered whether the court's harsh treatment of Ginzburg—a man who made no lofty pretensions about the straightforwardly salacious materials in which he trafficked—represented a form of class bias:

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.

But the trend in general, Epstein observed, seemed to be toward a liberalization in the Court's attitudes. And the eventual result, he suggested, would be an increasing burden on individuals to make decisions on these matters for themselves:

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...

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.

A decade later, Charles Rembar, an attorney who had been instrumental in getting the Fanny Hill ban overturned by the Supreme Court, made an unorthodox proposal. The word "obscenity," he argued in "Obscenity—Forget It" (May 1977), should no longer be used—at least not in a legal context. "It carries an impossible burden of passionate conviction from both sides of the question," he explained. "And it diverts attention from real issues."

In a legal sense, the question of obscenity, he explained, had been settled by the Fanny Hill decision eleven years earlier: following that ruling it was no longer impermissible to write about sex or to employ certain words. The impact of that decision, he noted, had been one of refreshing liberation for writers and the literary world:

Writers would be able to write as they pleased on the subject of sex, and use whatever language they thought best. They would no longer have to keep a mind's eye on the censor; they could pay full attention to their art and ideas... So much has changed in the last eleven years that one who had not lived through earlier times would find the freedom that writers now enjoy unremarkable. Yet in the few decades just then ended, such works as Dreiser's An American Tragedy, Lillian Smith's Strange Fruit, and Edmund Wilson's Memoirs of Hecate County had been the subjects of successful criminal prosecution. Recently, in contrast, there has been no suppression of books at all.

Henceforward, he argued, those with a grievance on grounds of obscenity ought instead to find objection on other grounds. One can invoke the right to privacy, for example, to object to public displays of lewdness. And laws against child abuse can be invoked to protect children against exposure to indecent material. But for the most part, he contended, we ought to come to terms with the reality that allowing for the right to free expression will always mean also leaving the door open for forms of expression that affront our sensibilities or values. In the end, however, it may not be such a bad tradeoff: "The freedoms guaranteed by the First Amendment are costly freedoms," he wrote. "Very costly. Worth the cost, I would say."

Ryder Kessler

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Ryder Kessler is an intern for The Atlantic Online.

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