Pornography & The Courts
The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill.
by Charles Rembar.
Random House. 528 pp. $8.95.
“Permissive decisions by the Supreme Court in obscenity cases constituted one of the main issues in the struggle over confirmation of Associate Justice Abe Fortas as Chief Justice. So there is not an “end of obscenity” just yet; whether or not there ought to be remains a subject of debate in institutions that share the power of government with the Supreme Court and may yet, directly or indirectly, have the last word. Nor does Charles Rembar, author of The End of Obscenity, claim that the Supreme Court has necessarily loosed every kind of writing, let alone performance, that might earlier have been deemed obscene and restrained as such. He couldn't very well. On the very day on which he achieved the crowning success in the course of litigation that he lovingly and proudly describes in this book, the Supreme Court also found Ralph Ginzburg and one Edward Mishkin, two defendants not represented by Mr. Rembar, guilty of having published obscene materials, and affirmed stiff jail sentences against them. Mr. Rembar purports to understand the distinctions that the Court perceived between the wares of Ginzburg and Mishkin and his own clients' books, and he does not seem to disapprove of the Court's actions in the Ginzburg and Mishkin cases, even though they tended to dim the lustre of his own climactic triumph. Mr. Rembar claims to have achieved an end of obscenity in the sense merely that books and other printed matter—not theater, motion picture, or television performances—which treat openly and grossly of sex, but are not shockingly indecent by contemporary standards, and have some measure of social value, are now protected by the First Amendment against suppression.
It may well seem to the reader that the shield against censorship that Mr. Rembar has gained lacks something of solidity, that it is, indeed, altogether an illusion, since the stuff it is made of is no stronger than the porous rubber of those words: “indecent,” “shocking,” “social,” “value.” Mr. Rembar will say that the cases he has won, and the decisions obtained in the past decade by other counsel, are the steel in the shield, the meaning of those words. Lady Chatterley's Lover, Tropic of Cancer, and Fanny Hill are not shockingly indecent and do have social value, the courts have held; such oeuvres as Trailer Trollop, Wife-Swappers, Lustpool, Shame Agent, Pleasure Was My Business may also be freely distributed, along with numberless girlie magazines and their homosexual equivalents, and even quite a bit of highly erotic film footage. Unquestionably the courts have been allowing material to circulate which a decade ago would have been subject to seizure. There has been a change. All the Senators who opposed Justice Fortas, in part because they held him responsible for the change, may be misguided, but they are not crazy.
Yet Mr. Rembar is overly sanguine when he credits himself with having won the predictable protection of a rule of law, and the reader who mistrusts all those words does so with good reason. There is no rule. The law of obscenity under the First Amendment is a shambles. All there is, despite Mr. Rembar's fluent and skillful formulations, is the subjective judgments of enough Justices to form a majority. To say this is not to disparage Mr. Rembar's achievement in vindicating the three books he defended. But the subjectivity of the “law” that produced Mr. Rembar's victories does mean that every so often the Justices will unexpectedly turn on someone, as they did on Ralph Ginzburg, pour encourager les autres, which is a rank injustice, and for that reason as costly to society, perhaps, as the suppression of Story of O or Tropic of Cancer; and it means that while the legal position of obscenity has evolved, the legal problem of obscenity remains unsolved.
There are those who believe—this is rather Mr. Rembar's view—that literature should be entirely free, that if some anti-social conduct is caused by books the price is well worth paying, that at any rate “modes of expression and modes of behavior” are only tenuously connected, if at all, but that something called hard-core pornography, which is sheer commercial pruriency of absolutely no redeeming social value and which is recognizable as such by judges, should alone be suppressed. This is well enough. Large numbers of people, however, do suspect a connection between obscenity, whatever the consistency of its core—say, sadomasochistic writing of some literary merit—and anti-social behavior. They cannot prove it, even though they are able to seize on such bits and pieces of evidence as the report that the perpetrators of the recent “Moors” atrocities in England read de Sade and were inspired by him.
But neither can the contrary be persuasively shown by argument or by empirical proof. People—not always the same people—are similarly disturbed about violence in comic strips and particularly in movies and on TV, fearing again that it leads to conduct. The most hilariously solemn explanation of how it is possible to share the fear that depictions of violence may induce violent behavior while at the same time discounting as irrational the anxiety that depictions of sexual activity may induce sexual activity is offered by Richard Gilman in the New York Times Magazine of September 8, 1968. Having seen a violent act, says Mr. Gilman, a person can only work off the resultant aggressive urge by committing aggression. “But there is a way to work off sexual tension without injuring others: masturbation.” A second-rate way, it must occur to somebody sometime, not fully satisfying, really!
Moreover, it isn't only because they suppose the run of mankind to learn from what they read and now and then to act on what they learn that many people think it necessary to suppress certain writings; it is also because they worry about—how shall one say—the tone of society. What may be uttered will be uttered, and it can become the fashion, part of the scene of which we and our children are, in turn, willy-nilly, a part. Private obscenity, privately uttered or shown, and aberrant private behavior, too, may be one thing, but printed material publicly circulated affects us all as it affects the style of life about us. It is no answer that we need not buy or read it and may even succeed in keeping it out of the hands of our children. In the end, although it may take a generation, no one can escape the consequences, and this is a concern not very different from concern with our physical environment—highways where there should be woods, cottages where there should be open seashore, traffic jams and glass boxes where there should be cities. Out of just this concern—aesthetic, if you will—with the style and tone of society we forbid certain kinds of otherwise harmless public and even private behavior—particularly sexual. To be sure, we also tolerate much that is deviant or eccentric, and no doubt should tolerate more than we do. We regard as tyrannical societies that tolerate much less than we. But the only point I seek to make for the moment is that mores, the style and tone of the community, concern the community as a whole, and are, therefore, sometimes regulated by law. Too much regulation, too rigidly and pervasively imposing majority tastes is wrong, and often, in any event, ineffective. But some is expected.
Mr. Rembar would say that conduct and writing should not be treated alike. Yet though there is a basis for the distinction in existing law, it is nonetheless an arbitrary one. For we regulate, as I have said, some conduct whose sole supposed impact on the community is the same as one of the supposed effects of obscene writing. Conduct of a certain sort and writing of a certain sort, then, are alike in that they are viewed as giving rise to the same danger. They are alike also in that we should protect them from interference by government—when we should—for precisely the same reason. The writing here in question is not political and can make no claim to protection as, in effect, an essential instrumentality of democratic government. It should be free, if at all, because, quite aside from politics, we wish to safeguard a measure of autonomy of personal taste, sensibility, and self-expression, and, as a byproduct, hopefully enrich what we call our culture. This is the very consideration that causes us to allow some deviant conduct, which is also a carrier of a people's culture. It is a decisive consideration with respect to conduct only so long as an intense social concern does not outweigh it, and one has difficulty seeing why it should be any more heavily decisive with respect to the sort of writing we are discussing.
In our system, under the First Amendment and the due-process clauses of the Fifth and Fourteenth, it is often left to judges to strike a balance between a desirable end, such as personal autonomy, and apprehended dangers, such as individual anti-social behavior or a general deterioration of mores. But in the matter of deviant sexual conduct and the like, the judges have ordinarily let legislatures and other political institutions strike the balance because they have lacked a sufficiently objective standard on which to rest judicial judgment. They have discovered no such standard where writing rather than conduct is involved either, and yet they presume to tell the society how much obscenity it must live with. Decisions are left to the judges in the expectation that they will justify the results they reach by an appeal to some principle that has a reasonably objective existence, connects with relevant tradition, works a rational accommodation among conflicting needs, fears, and values, and is communicable from one judge to another and to the rest of us. Such are the minimal qualities of law. Simply falling back, in the search for legal principle, on the text of the First Amendment will not do, since the value of speech and writing, though high, has not been received in the law as an absolute, and does not require us to accept every harm and run every risk. If all the judges manage to do is substitute, as they have in the obscenity cases, their subjective reaction for that of legislators, prosecutors, or even police, then they are not making constitutional law and are not performing the function that entitles them to supremacy.
I do not argue that Lady Chatterley's Lover, or Tropic of Cancer, or Fanny Hill; or the unfortunate Ralph Ginzburg's Eros, Liaison, and Housewife's Handbook of Selective Promiscuity; or even Trailer Trollop and Wife-Swappers, ought to be suppressed. I do not argue for censorship. I would wish—I think I would wish—anyone to have the right to publish or show anything that anyone else may want to read or see, and we would take our chances. But I don't know where to find reasons convincing enough to be enshrined as constitutional law for compelling others, who may be in a majority, to wish as I do. I should hope a majority could be persuaded on prudential grounds that a lot of censorship is unwise, and ineffective to boot, and that a little goes a long way. But the constitutional problem of obscenity, the question whether and how judges are to decide what a community must tolerate and what it may censor is, I maintain, a baffling one, to which the solution escapes me, as it did the Supreme Court and also Mr. Rembar. There are things the judges can do around the edges of the problem. For example, as Mr. Justice Harlan has suggested, there is good reason for taking the federal government out of the censorship business, and leaving it to the states. (Mr. Rembar disapproves because, of course, he prefers a permissive federal rule binding on the states.) The federal government is apt to impose the standards of Dubuque on Greenwich Village, after all, whereas Dubuque can impose them only in Dubuque. Again, legislatures have been no more successful in defining obscenity intelligibly than the Supreme Court, and the term should, therefore, be deemed too vague to form part of the criminal law. However else obscenity might be controlled, it should not be punishable criminally. And the means of controlling it should be subject to additional procedural restrictions as well. But I do raise the question whether it is more justifiable for the judges to impose their subjective reactions as the ultimate, substantive law of obscenity than it would be for Mr. Rembar or me to impose ours, had we the power.
The question I raise doesn't trouble Mr. Rembar very much. He approaches it gingerly once or twice, and begs it with general references to the First Amendment, to constitutionalism and the established authority of the Supreme Court. But then his is not a book about the Supreme Court, or about the Constitution, or about the function of judicial review. It is a lively volume about some grand cases he won, and the pleasure he took in doing so. Lawyers talk a lot about their cases, although not often as well as Mr. Rembar. This is an extended monologue by an intelligent lawyer—literate, if given at times to displays of cute or fussy erudition, a bit full of himself, digressive but only occasionally misinformed and often witty—fun withal and instructive.