OU Zone

[BullNBear52]

The Day Obscenity Became Art
By FRED KAPLAN
July 21, 2009
Op-Ed Contributor

TODAY is the 50th anniversary of the court ruling that overturned America’s obscenity laws, setting off an explosion of free speech — and also, in retrospect, splashing cold water on the idea, much discussed during Sonia Sotomayor’s Supreme Court confirmation hearings, that judges are “umpires” rather than agents of social change.

The historic case began on May 15, 1959, when Barney Rosset, the publisher of Grove Press, sued the Post Office for confiscating copies of the uncensored version of D. H. Lawrence’s 1928 novel “Lady Chatterley’s Lover,” which had long been banned for its graphic sex scenes.

Most lawyers of the time would have advised Mr. Rosset that he had a weak case. Back in 1873, Anthony Comstock, the former postal inspector who founded the New York Society for the Suppression of Vice, had persuaded Congress to pass a law outlawing obscenity, which state and federal courts came to define over the decades as works that “community standards” would regard as “lustful,” “lewd,” “lascivious” or “prurient.”

As recently as 1957, the Supreme Court had ruled in Roth v. United States — a case involving a bookseller who sent erotic literature through the mail — that the First Amendment’s guarantees of free speech did not apply to obscenity. The case against “Lady Chatterley’s Lover” seemed cut and dry; whatever the book’s literary merits, it met the legal definition of obscenity.

However, Mr. Rosset hired a lawyer named Charles Rembar, whom he’d met playing tennis in the Hamptons. Rembar had never argued a case in court but was an adviser to several writers, including his cousin Norman Mailer. (When Mailer wrote “The Naked and the Dead,” his career-sparking World War II novel, Rembar advised him to avoid legal controversy by spelling his characters’ most common utterance “fug.” The trick worked.)

Looking over the Roth decision, Rembar spotted a loophole. The opinion, written by Justice William J. Brennan, noted that the First Amendment’s purpose was “to assure unfettered interchange of ideas” and that “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 guarantees.” But, Brennan went on, “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”

Rembar mulled over a question that Brennan apparently hadn’t considered: What if a book met the standards of obscenity yet also presented ideas of “redeeming social importance”? By Brennan’s logic, wouldn’t it qualify for the First Amendment’s protection after all?

On a sheet of paper, Rembar drew two slightly overlapping circles. He labeled one circle “Material appealing to prurient interests.” He labeled the other “Material utterly without social importance.” By Brennan’s reasoning, only material that fell inside both circles — that was both prurient and worthless — should be denied the privileges of free speech.

This was the argument that Rembar made before Judge Frederick van Pelt Bryan of the United States District Court for the Southern District of New York. With the assistance of several literary critics’ testimony, he presented “Lady Chatterley” as a novel of ideas that inveighed against sex without love, the mechanization of industrial life and morbid hypocrisy.

The United States attorney representing the Post Office, S. Hazard Gillespie Jr., thought Rembar had misread the law, and he recited a clause of the Roth ruling that Rembar had omitted. Justice Brennan had written that controversial ideas “have the full protection” of the First Amendment — “unless,” Gillespie underlined, these ideas were “excludable because they encroach upon the limited area of more important interests.” One of those interests, surely, was keeping obscenity under wraps. Hence Rembar’s argument was irrelevant.

This was, however, just the rebuttal Rembar was hoping for. He pointed out a footnote in which Brennan elaborated on what kind of “more important interests” were “excludable.” All of them involved actions — peddling, picketing, parading without a license, playing loud music from a truck. The First Amendment didn’t protect any of that. But none of Brennan’s examples involved writing — expression unattached to conduct. Pure expression could be forbidden, Rembar argued, only if it was “utterly without social importance.”

On July 21, 1959, Judge Bryan ruled in favor of Grove Press and ordered the Post Office to lift all restrictions on sending copies of “Lady Chatterley’s Lover” through the mail. This, in effect, marked the end of the Post Office’s authority — which, until then, it held absolutely — to declare a work of literature “obscene” or to impound copies of those works or prosecute their publishers. This wasn’t exactly the end of obscenity as a criminal category. Into the mid-1960s, Barney Rosset would wage battles in various state courts over William Burroughs’s “Naked Lunch” and Henry Miller’s “Tropic of Cancer,” other Grove novels now widely regarded as classics. But the “Chatterley” case established the principle that allowed free speech its total victory.

The Post Office did appeal Judge Bryan’s verdict; a panel of four judges upheld it unanimously. The government’s lawyers decided not to appeal further to the Supreme Court. They knew that they would lose — that the justices who, just two years earlier, had excluded this sort of literature from constitutional protection would now change their minds. They knew that Rembar’s creative view of Justice Brennan’s opinion — a view that Brennan had not explicitly considered when he wrote it — was logically unassailable.

The case also made clear that laws are more complex than strike zones or foul lines, which is why the analogy between judges and umpires is so misleading.

The distinction is sharpened by another argument Rembar made during the “Lady Chatterley” trial. “A novel, no matter how much devoted to the act of sex,” he said, “can hardly add to the constant sexual prodding with which our environment assails us.” In the mass media of the day, with its appeals to a booming youth market, movies and advertisements were often “calculated to produce sexual thoughts and reactions,” to the point where “we live in a sea of sexual provocation.”

In short, “community standards” were radically changing. The proof was that, after the ban on “Lady Chatterley” was lifted, the book reached the No. 2 slot on The New York Times best-seller list (topped only by Leon Uris’s “Exodus”) and, within a year, sold two million copies.

For many decades, the courts upheld racial segregation; then, suddenly, they didn’t. For many decades, the courts let the Post Office decide which books people could read; then, suddenly, they didn’t. In both cases, and many others that could be cited, the laws hadn’t changed; society did. And the courts responded accordingly.

Fred Kaplan is a columnist for Slate and the author of “1959: The Year Everything Changed.”

http://www.nytimes.com/2009/07/21/opinion/21kaplan.html?pagewanted=print