Pornography and Social Value

...His arguments rest on two cornerstones: 1) "I do not agree with those who say books can work no evil...

...But they also supped on the horrors of concentration camps which were chronicled in great detail by serious histories, written to condemn the Nazis...

...subsequent meetings, however, always seem to last too long and attention begins to flag...

...At least one Supreme Court Justice thinks they did: Hugo Black refuses to read material brought in evidence to the Court because, he says, the degree of its hatefulness is irrelevant...

...2) "Well-written obscenity" is a contradiction in terms...

...The honing of this three-pronged test was largely the work of Charles Rembar, a New York attorney who guided the fortunes of Lady Chatterley's Lover, Tropic of Cancer and Fanny Hill...

...Black finds the language simple: It means, for him, precisely that...

...The Court agreed with Rembar, and agreed so energetically that it is hard to quarrel with his assessment of conditions today: "So far as writers are concerned, there is no longer a law of obscenity...

...Rembar is an articulate man, after the manner of journalists and essayists of the 18th century...

...His book is too long by half, yet taking into account the extent of his labors on behalf of books that should never have been prosecuted to begin with, we should perhaps forgive his over-indulgence...

...Reading a book is supremely a private exercise...

...These three elements, moreover, must coalesce in the same book...

...The Supreme Court will doubtless have an opportunity to decide about films in the most interesting case of / Am Curious-Yellow, a work about greatly important social issues that is also as explicit in its sexual representations as a stag movie...

...Books have great influence, much of it bad...

...Still, there is probably no question that books, in the wrong hands (and all books are not, I believe, for all people) can cause harm to society...

...Amos, Daniel—star crossed lovers," or the fate of Christopher Isherwood's A Single Man, described as "one of the most sensitive [sic] gay novels...

...The assertion is an affront to intellect...

...Yet to argue that a book must be well-written to have the law's protection, and that a badly-written one is obscene, is to place the ignorant in double jeopardy...

...One mentions the last two because the general ambitions of a publisher have in the past played a decisive part in determining whether or not a specific work should be proscribed and its manufacturer punished (as Ralph Ginzburg learned to his sorrow...

...One examines the book before buying it...

...Thus, obscenity remains illegal in this country, but its definition has been so refined that it is surprisingly difficult to recognize...

...from the First Amendment 'No, Ann, I really must mail off these forms to the state superintendent of schools by five o'clock,' Meg replied, regret shining in her slate blue eyes as she drew her hand out of Ann's tired thighs.' —from Richard B. Long's The Horny Headmaster (all rights including motion picture rights reserved by Collectors Publications...

...It's a charming notion, that of the august gentlemen closeted in their chambers to judge the merits of Edward Mishkin's line of 50 volumes, published under titles like Screaming Flesh, So Firm and Fully Packed, Columns of Ecstasy and Violated Wrestler...

...It is a learned and generous legal memoir, meticulous and often witty...

...Many members of the Court, led in their degree of frustration by Chief Justice Warren, have already said they cannot afford to read every work a zealous public prosecutor finds dangerous to the moral health of his community...

...But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance...

...But since the book was well-written, according to the testimony of an assortment of literary critics of good reputation, he said it could by no means be utterly without social value because good prose is clearly valuable to society...

...The End of Obscenity (Random House, 528 pp., $8.95) is the lawyer's account of the present law's evolution...

...Should they come to bend their collective gaze to The Horny Headmaster, they will find 143 pages of the most unexceptional prose (although every imaginable turn on perversion has been jammed into the text, together with some that are quite unimaginable) and 33 pages of advertisements—including a pitch for a dildo called uthaid ($11 each or three for $25), and for books rejoicing in such titles as Autobiography of a Flea and Whips, Incorporated...

...To keep the list balanced, whoever guides the destiny of Collectors Publications also offers its readers The Complete Kennedy Saga and Probate Avoidance and Wills...

...One is alone in a study, or bedroom, and can snap the work shut at will...

...Should there be...

...Whether movies and television should be more closely regulated is a separate matter, separate because they consist of performance as well as expression...

...Brennan denned to his satisfaction what obscenity was, Rambar used his language to determine what obscenity was not: something with the slightest social importance...

...How a work is packaged, and how advertised, has come to have a bearing on its merit...

...Brennan wrote then, in part: "All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion?have the full protection of the [First Amendment...

...Any magazine wishing to stitch together jock-strap one-shots, or pornography of any other kind, can do so with impunity by the simple expedient of adding to its swill an editorial statement regarding Medicare, or the Vietnam war, or anything else that might meet the social value test...

...No sensible man wishes to deprive his fellows of access to good writing, wherever it may be found...

...And indeed the murderers did feast on Sade, and employ some of his techniques at the expense of their victims...

...But Rembar strays too willingly to an arcane aside or recollection...

...T'he enemies of candor question whether our Founding Fathers had expressions such as Long's in mind when they protected writers and publishers against molestation by the law...

...In Redrup v. New York (1967) the specification of obscenity was made singularly restrictive: The dominant theme of the material taken as a whole must appeal to a prurient interest in sex...

...In court, Rembar substituted the word "value" for "importance," a substantive distinction that no one, not even Brennan when he considered Rembar's brief, seemed to notice...

...A substantial portion of his work is devoted to footnotes that explain, frequently with great eloquence, the particularities of the law's language and intent...

...The law as it now stands is hardly a law at all...

...On March 21, 1966, the same day the Supreme Court upheld the convictions of Mishkin and Ginzburg, it reversed, after Rembar's argument, the Massachusetts decision against Fanny Hill...

...Furthermore, it would seem clear that John Cleland's good prose is potentially more dangerous than the preposterous sample I have quoted from The Horny Headmaster...

...The working term of the Supreme Court is surely too short to waste time on such deliberations...

...If the text were expurgated in later editions it would be of great benefit to those with less than a week in hand to consider Rembar's opinions...

...the material must be shown to be patently offensive by affronting community standards relating to the description or representation of sexual material...

...The courts can safely let the critics punish the hack...

...A psychiatrist testifying for the State of New Jersey against Fanny Hill summed up the public's dismay: "If this book were read by a sailor in a destroyer and there were no women around, I think he would masturbate...

...And if censorship vanishes from the land, as seemingly it must, that will more likely be due to the administrative burdens of justice than to the urgings of civil libertarians...

...and the material must be utterly without redeeming social value...

...they will make him suffer...

...This second point is legally the most controversial...

...When we first encounter the author we are dazzled by his intelligence and good sense, and intrigued by the range of his interests (poetry, baseball, politics, low-brow taste...

...There is little question that those who condemn and fear dirty books are most aroused by the contemplation of private thoughts and solitary deeds...

...Given such a foolish test, one wonders about the fate in court of James Purdy's fine novel, Eustace Chisolm and the Works, now being remaindered by the Trojan Book Service, through an ad in the current Evergreen Review, as the "best gay novel of 1967...

...Rembar managed to translate his belief into law by hammering away in lower courts at Justice William J. Brennan's opinion in the 1957 Roth decision...

...One must acknowledge that books can excite men to action, yet to judge a book by its effects one must judge the nature of the action it motivates...

...Justice William O. Douglas, though he usually sides with Black's unvarying defense of free speech, does read material found obscene by lower courts, as do his other colleagues...

...The reading list of the principals in the much-publicized "Moors Murders" is often cited as evidence of the need for censorship...

...In any case, aside from banning certain books to children with the same energy that the states employ banning liquor to children, it seems clear that in the interest of reason all censorship of books should be abolished...

...Rembar agreed with those who said Fanny Hill was written to titillate, and that Cleland made sex appealing...

...But the risk that inheres in reading books is precisely the risk that the First Amendment contemplates...