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

Since Janet Jackson's now-infamous "wardrobe malfunction" at the 2004 Super Bowl, the climate of broadcast television and its approach to material of questionable decency has changed significantly. The Federal Communications Commission has become vigilant about issuing fines for anything it deems inappropriate, and the networks themselves have begun to engage in rigorous self-censorship.

More recently, in April, a consortium of the four main networks and hundreds of affiliates sued the FCC, seeking to overturn FCC rulings against programs that contained only brief—and, they contended, often unintentional—incidents of objectionable language or images. The following month, Congress approved a tenfold increase in FCC fines, from a $32,500 maximum up to $325,000.

The debate over what constitutes inappropriate material and whether (and how) the public should be protected from it will not likely be settled any time soon. Indeed, as a look back at Atlantic articles from the turn of the twentieth century through the seventies suggests, it is a debate that has long been heated—and one about which legitimate points can be made from seemingly every side.

In August 1901, an anonymous author considered the controversy then ongoing over whether nude statues should be exhibited in public. Some, he explained, were "concerned about the morals of the public," and feared that "grave harm is done by such exhibitions." But others, he noted, were accepting of the statues, convinced that "no evil was intended" by them and that "beauty is its own excuse for being."

Believing that neither side was entirely in the wrong, the author proposed a solution:

Let the offending statue go to a reserved room, just as an offending book in the public library goes to a reserved shelf. Any one who has a right to see the statue will be admitted to do so by the curator...

If the public demands that the Discobolus should be relegated to an attic because it is unclothed, very well, let it go there. Let me have the key to the attic when I wish it. If the statue is really good and pure, as thousands of good people believe, it will, by and by, be brought down to the main hall.

Two decades later, in "Unprintable," Stuart Sherman considered a growing trend toward the banning of certain books. He described the quest of the "Militant Morality" to "make the world safe for children and adolescents"—a mission that Sherman found deeply unsettling.

In recent years, he noted, it had been not only truly disturbing material that had been targeted for suppression by moral crusaders, but a number of classic novels as well. In the course of one recent obscenity trial, a lawyer had argued: "A book to be obscene, need not be obscene throughout the whole of its contents; but if the book is obscene in part, it is an obscene book." By such logic, Sherman warned, "any jury which honestly obeyed these instructions could bar from the mails the Bible, Shakespeare, or even an unabridged English Dictionary."

In 1930, observing dozens of cases in Massachusetts in which books had been banned based only on isolated passages, The Atlantic published a pair of articles considering the question of government censorship.

In "The Theory of Censorship," William Allan Neilson argued that first "we ought to know whether in applying censorship we are considering the welfare of the adolescent or the adult." It is true, Neilson wrote, that in general "the young must be guarded from risks that may inflict injury before experience has been acquired." He suggested that parents and teachers should therefore think carefully about which books and plays they exposed children to. But some of the hand-wringing over affronts to the delicate sensibilities of the young, he argued, was probably misplaced:

The attempt to save our children from what we regard as dangerous knowledge is likely in our times to be a locking of the stable door after the steed is stolen. It is my impression that most freshmen (of both sexes) come to college to-day already familiar to the point of losing interest with many of the facts and ideas which anxious parents are terror-stricken lest they acquire.

As for adults, Neilson emphasized the importance of distinguishing between the willing and the captive audience: "The adult," he argued, "has a right to be protected against the display of offensive print or pictures where he cannot avoid them." But censorship, he contended, may be inappropriate when applied to the right of the adult to seek out questionable materials by choice. He explained why, in many cases, the censors were being vehemently opposed:

It has been due to the feeling that some branch of the government—post office, customs official, police, or mayor—has sought to save us without our consent from what it considered a demoralizing book or play. The resentment is due to what seems to many an officious intrusion, an interference with the responsibility of the adult individual for his own moral welfare.

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