The Slow Erosion of the Obscenity Laws

Recently I've started doing some research about literary obscenity trials surrounding for the project I've hinted at in previous posts. Actually I spent the day Saturday at the New York Public Library going through newspapers on microfilm as well as a few out of print books. It turned out to be a mostly fruitless day and it left me in an unaccountably foul mood. Towards the end I really began to understand what the problem was -- I think the fight against America's obscenity laws is far from the finest hour of lovers of free speech and open sexuality.

The history of obscenity trials is a slow march towards permissiveness, emphasis on the word slow. Obscenity in the United States was defined by the R. v. Hicklin (a British legal precedent that was applied in the US) and the infamous Comstock Laws of 1873 as any piece of literature that, in whole or in part, could cause lascivious thoughts in its readers. Anthony Comstock's definition of obscenity was comprehensive: it included any writing at all about sex, sex education, abortion or birth control methods and sex toys. He removed all such information from libraries and he used his vast power as New York's Postal Inspector to make sure no such information could be circulated through the mail. Eventually, this Victorian purity was challenged by people such as birth control educator Margaret Sanger, and eventually was dealt a major blow in United States v. One Book Called Ulysses which lifted the ban on Joyce's masterpiece and set a precedent that a literary work couldn't be declared obscene based on certain passages and needed to be considered on the whole. This kicked off a number of clarifying obscenity trials (Roth v. United States and others involving Lady Chatterly's Lover, Tropic of Cancer and Howl, to name a few) and culminating in the Supreme Court lifting the ban on John Cleland's 1750 erotic novel Fanny Hill in Memoirs v. Massachusetts, in the process declaring that only books "utterly without redeeming social importance" could be declared obscene. In 1973 Miller v. Texas established the current standards, which made for a shifting threshold of obscenity based on community standards.

So what problem could I possibly have with this admittedly slow trend in the right direction. Ultimately, all of these arguments are about what is obscene and what isn't, and it's a bit sickening to watch one book defending its freedom of expression by drawing a distinction between themselves and books that are really obscene. The argument completely buys into the idea that censorship of sexually explicit material is all right and throws many other people who's freedom of expression has been curtailed under the bus. And, yes, I know that laws change gradually and a lot of the practice of law is about making the argument that is practical rather than the argument that is ethical or right. That, more than anything, is probably what contributes to my feeling that the law is a dirty, shameful business all around.

I understand why things had to unfold the way they did. If lawyers for Ulysses had chosen not to argue that Ulysses should be decriminalized because it had artistic merit, and had instead argued that all sexual content should be protected by freedom of speech (including gay, sadomasochistic erotic novels, for example) a 1933 judge would have laughed them out of the courtroom and the Comstock Laws would still be in effect. I'm not saying that anyone should have done anything differently. I'm just saying that such a calculating and cowardly strategy doesn't deserve to be celebrated quite so much. We eventually got where we needed to go but a lot of innocent writers, artists, publishers and merchants had to go to jail in the meantime.