Thy Neighbor's Wife (14 page)

Judge Frank doubted that a publication could “deprave and corrupt” anyone, young or old, and in the extensive research he had done before writing his opinion he found no evidence that could convince him otherwise. He did concede that sexual literature was often stimulating, but the same could be said of perfume and dozens of other commercial products that were sent through the mail and were displayed in stores; and while photographs of nude women undoubtedly aroused men, men could as easily be aroused by newspaper advertisements showing women in bathing suits and lingerie—indeed, well-dressed women in public stimulated men every day, Judge Frank added, quoting a psychiatrist’s opinion that he possibly shared: “‘A leg covered by a silk stocking is much more attractive than a naked one. A bosom pushed into shape by a brassiere is more alluring than the pendant realities.’”

But what most appalled Judge Frank about the present obscenity law was its capacity to invade a citizen’s privacy in an attempt to legislate morality. “To vest a few fallible men—prosecutors, judges, jurors—with vast powers of literary or artistic censorship, to convert them into what J. S. Mill called a ‘moral police’ is to make them despotic arbiters of literary products,” Judge Frank wrote. “If one day they ban mediocre books as obscene, another day they may do likewise to a work of genius. Originality, not too plentiful, should be cherished, not stifled. An author’s imagination may be cramped if he must write with one eye on prosecutors or juries; authors must cope with publishers who, fearful about the judgements of government censors, may refuse to accept the manuscripts of contemporary Shelleys or Mark Twains or Whitmans. Some few men stubbornly fight for the right to write or publish or distribute books which the great majority at the time consider loathsome. If we jail those few, the community may appear to have suffered nothing. The appear
ance is deceptive. For the conviction and punishment of these few will terrify writers who are more sensitive, less eager for a fight. What, as a result, they do not write might have been major literary contributions. ‘Suppression,’ Spinoza said, ‘is paring down the state till it is too small to harbor men of talent.’”

The case of
Samuel Roth
v.
United States of America
was heard by the Supreme Court in April 1957. It was the contention of Roth’s attorneys that the federal mail statute, the Comstock Act of 1873, was unconstitutional, and that the controversial literature that Roth had distributed was permissible under the First Amendment. The government attorneys, however, declared that “absolute freedom of speech was not what the founding fathers had in mind, at least where the interest in public morality was at stake,” adding that society had “competing interests of its own in granting the individual freedom of speech and press.”

After the nine justices had listened to both sides, they pondered the issue among themselves, and two months later their published opinions revealed that they had mixed feelings about Samuel Roth.

Justice William O. Douglas felt that Roth should be freed because if Roth was guilty of anything it was for merely provoking readers’ “thoughts” and not “overt acts” or “anti-social conduct”; and Douglas added: “I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics, or any other field.” Justice Hugo L. Black agreed with Douglas that pornography was protected by the First Amendment and supported Douglas’ warning that “the test that suppresses a cheap tract today can suppress a literary gem tomorrow.”

While Justice John M. Harlan was less concerned about suppressed literary gems and favored certain legal controls in obscenity cases, he voted on the side of Black and Douglas.

But Chief Justice Earl Warren endorsed Roth’s conviction, being particularly piqued by Roth’s “conduct” in the way he ad
vertised his books and magazines. Even if the material itself was not obscene, Warren would punish any defendant who pandered to the public with tasteless advertising, and he felt that this is what Roth had done. The five other justices—William J. Brennan, Felix Frankfurter, Harold H. Burton, Tom C. Clark, and Charles E. Whittaker—also affirmed Roth’s guilt, believing that obscenity, like libel, was not protected by the First Amendment. Obscenity, according to Justice Brennan, who wrote the majority opinion, “was utterly without redeeming social importance,” and Brennan’s test for obscenity was: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”

Since six of the nine justices saw no reason to vindicate Roth, he was directed to serve the full five-year prison term, and this news was applauded by religious groups and antivice agencies around the nation. The National Office for Decent Literature issued a statement saying that “the cause for decency has been strengthened,” and President Eisenhower’s Postmaster General, Arthur Summerfield, pleased that the Court had not infringed upon the Comstock Act, announced: “The Post Office Department welcomes the decisions of the Supreme Court as a forward step in the drive to keep obscene materials out of the mails.”

But many defense attorneys, after carefully reading the opinion of Justice Brennan, saw in it a historic change in the legal attitude toward sexual expression, one that suggested hope for many books now banned. In having defined obscenity for the first time, the Supreme Court had finally severed all connections with the illiberal English definition as expressed in the
Hicklin
case of 1868.

In
Hicklin
the English court had ruled that an entire book could be condemned if it contained one lewd paragraph, whereas in Justice Brennan’s wording the “dominant theme” of a book had to be obscene in order to ban it. In
Hicklin
, a sex book might be disallowed if inappropriate for juveniles, whereas Justice Brennan wrote that it had to offend “the average person.” Since Brennan also defined obscenity as being “utterly without re
deeming social importance,” he might have meant that a book or film offering even a minimum of “social importance” could evade censorship; and if this were true, the Roth decision was a favorable omen for advocates of greater freedom. Whatever the trend, defense attorneys had to wait until the next major obscenity case had reached the Supreme Court, and then to search for clues in the judicial opinions. Such a case reached the High Court in the fall of 1957.

It involved an imported French film entitled
The Game of Love
, which had been closed in Chicago because it displayed nudity and presented an allegedly decadent story. The film opened on a bathing beach where a teenaged boy, completely nude after a boating accident, appeared in view of young girls. Later he met an attractive older woman who seduced him and educated him sexually for the erotic episodes he would soon experience with a girl of his own age. While the film contained no hard-core scenes, intercourse was clearly implied, and the Chicago case was upheld by an intermediate federal court. But when the Supreme Court heard the case and saw the film, it found sufficient social importance in the screenplay to determine, under the new
Roth
definition, that the film was not obscene.

The Supreme Court also quoted
Roth
in overturning subsequent obscenity cases against a homosexual magazine called
One
and the nudist magazine
Sunshine & Health
. The homosexual publication had been barred from the mails by a Los Angeles postmaster; and, though the district and appellate courts had sustained the ruling, the Supreme Court contended that
One
represented a viewpoint, a way of life, that was constitutionally protected under the free speech amendment. The High Court ruled similarly for
Sunshine & Health
against Postmaster General Summerfield, and as a consequence it established for the first time that even pubic hair and genitals were representative of an “idea” essential to the nudist movement, and therefore mailable under the law. Adding to Summerfield’s displeasure over this ruling was his seeing in one issue of
Sunshine & Health
a postal em
ployee sunbathing at a nudist camp in Florida. The employee was dismissed.

Gradually, as one obscenity conviction after another was reversed by the Supreme Court, as banned novels and erotic art films were suddenly redeemed by
Roth
, the name became more easily recognized as an italicized legalism than as a reminder of the illegal man now residing in prison at Lewisburg; and ironically, while serving out his term that extended into the 1960s, Roth could have received through the mail into his cell most of the books that had contributed to his being there.

T
HIS SCENE
and other intimate passages in
Lady Chatterley’s Lover
caused the book to be labeled “obscene” in America for thirty years; but in 1959 a federal judge, influenced by the new definition of obscenity as written by the Supreme Court in the 1957 Roth case, rescinded the ban against
Lady Chatterley’s Lover
and conceded that the book’s author, D. H. Lawrence, was a man of genius.

Had Lawrence been alive he would have undoubtedly concurred in this opinion, although after completing the novel in 1928, two years before he died, he was more accustomed to hearing himself referred to as a rancid pornographer, a sex fiend, and the source of what one English critic called “the most evil outpouring that has ever besmirched the literature of our country. The sewers of French pornography would be dragged in vain to find a parallel in beastliness.”

Lady Chatterley’s Lover
was Lawrence’s tenth and final novel, and it told the story of the frustrated wife of an imperious, impotent aristocrat who had been injured during World War I, and of her affair with a gamekeeper by whom she became pregnant and
for whom she left her husband, her home, and her social class. Despite its adulterous theme, Lawrence was convinced that he had written an affirmative book about physical love, one that might help to liberate the puritanical mind from the “terror of the body.” He believed that centuries of obfuscation had left the mind “unevolved,” incapable of having a “proper reverence for sex, and a proper awe of the body’s strange experience”; and so he created in Lady Chatterley a sexually awakened heroine who dared to remove the fig leaf from her lover’s loins and examine the mystery of masculinity.

While it has long been accepted as the prerogative of both artists and pornographers to expose the naked female, the phallus has usually been obscured or airbrushed, and never revealed when erect; but it was Lawrence’s intention to write a “phallic novel,” and often in the book Lady Chatterley focuses entirely on her lover’s penis, strokes it with her fingers, caresses it with her breasts, she touches it with her lips, she holds it in her hands and watches it grow, she reaches underneath to fondle the testicles and feel their strange soft weight; and as her wonderment is described by Lawrence, thousands of male readers of the novel undoubtedly felt their own sexual stirring and imagined the pleasure of Lady Chatterley’s cool touch on their warm tumescent organs and experienced through masturbation the vicarious thrill of being her lover.

Since masturbation is what erotic writing so often leads to, that was reason enough to make Lawrence’s novel controversial; but in addition, through the character of the gamekeeper, Lawrence probes the sensitivity and psychological detachment that man often feels toward his penis—it does indeed seem to have a will of its own, an ego beyond its size, and is frequently embarrassing because of its needs, infatuations, and unpredictable nature. Men sometimes feel that their penis controls
them
, leads them astray, causes them to beg favors at night from women whose names they prefer to forget in the morning. Whether insatiable or insecure, it demands constant proof of its potency, introducing into a man’s life unwanted complications and frequent rejection. Sensi
tive but resilient, equally available during the day or night with a minimum of coaxing, it has performed purposefully if not always skillfully for an eternity of centuries, endlessly searching, sensing, expanding, probing, penetrating, throbbing, wilting, and wanting more. Never concealing its prurient interest, it is a man’s most honest organ.

It is also symbolic of masculine imperfection. It is unbalanced, asymmetrical, droopy, often ugly. To display it in public is “indecent exposure.” It is very vulnerable even when made of stone, and the museums of the world are filled with herculean figures brandishing penises that are chipped, clipped, or completely chopped off. The only undamaged penises seem to be the disproportionately small ones created perhaps by sculptors not wishing to intimidate the undersize organs of their patrons. In religious art, the penis is often represented as a snake, a serpent crushed by the feet of the Blessed Virgin; and priests since the eleventh century, adhering to the vows of celibacy, have rigidly resisted its covetous temptation. Masturbation has always been considered sinful by the Church, and cold showers have long been recommended to unmarried male parishioners as a means of dampening the first simmerings of rising passion.

While the moral force of Judeo-Christian tradition and the law have sought to purify the penis, and to restrict its seed to the sanctified institution of matrimony, the penis, is not by nature a monogamous organ. It knows no moral code. It was designed by nature for waste, it craves variety, and nothing less than castration will eliminate the allure of prostitution, fornication, adultery, or pornography.

Pornography is especially appealing to the penises of men who cannot afford prostitutes or mistresses, or who are too shy or ugly to entice women, or who are temporarily isolated from women (as when incarcerated in prisons or hospitals), or who wish to remain conjugally faithful in every way except when indulging in an orgasmic fantasy with a magazine or when, during marital intercourse, they imagine that their wife is another woman. This is called “superimposition.” It is the most common, and private,
form of infidelity in the world, and it does not depend upon pornography for its stimulation.

Each day the penis is prey to sexual sights in the street, in stores, offices, on advertising billboards and television commercials—there is the leering look of a blond model squeezing cream out of a tube; the nipples imprinted against the silk blouse of a travel-agency receptionist; the bevy of buttocks in tight jeans ascending a department store’s escalator; the perfumed aroma emanating from the cosmetics counter: musk made from the genitals of one animal to arouse another.

The city offers a modern version of a tribal fertility dance, a sexual safari, and many men feel the pressure of having to repeatedly prove their instinct as hunters. The penis, often regarded as a weapon, is also a burden, the male curse. It has made some men restless roués, voyeurs, flashers, rapists. It is what conscripts them into military warfare and often sends them to a premature death. Its inane seductions can lead to marital discord, divorce, child separation, alimony. Its profligacy in high places has provoked political scandals and collapsed governments. Unhappy with it, a few men have chosen to rid themselves of it.

But most men, like the gamekeeper, admit that they cannot deliberately kill it. While it may typify, in Lawrence’s words, the “terror of the body,” it is nevertheless rooted in a man’s soul, and without its potence he cannot truly live. Lacking it, Lord Chatterley lost his lady to a social inferior.

The fact that Lord Chatterley had been a war victim, paralyzed while serving his country on the battlefields of Flanders, made the story of his wife’s departure with a lusty gamekeeper all the more tragic and obscene to many Englishmen; and after Lawrence had completed the final draft of
Lady Chatterley’s Lover
in 1928, his publisher and agent both refused to be associated with the book.

When other publishers also rejected it, Lawrence took the manuscript to Florence, where, with the help of Italian printers who did not understand a word of English but who reacted nonchalantly to Lawrence’s verbal translation of the sex scenes—“But
we do it every day,” said one printer—he produced a limited hardcover edition of one thousand copies. Each copy, printed on creamy hand-rolled Italian paper and handsomely bound, bore his autograph and was priced at ten dollars. The books were then smuggled into England and distributed through his friends to many readers who, curious about the work that critics were calling an “abysm of filth” and “the foulest book in English literature,” were possibly more anxious than ever to read it.

The first edition quickly disappeared, and a second printing followed. Soon the book became exceedingly scarce in England as agents from Scotland Yard began raiding the homes of Lawrence’s friends in search of copies to confiscate. Censors were also alerted in the United States, where customs officials in New York intercepted several shipments and, according to Lawrence, resold many books to black marketeers. Underground publishers made facsimile copies of the Italian edition and sold them by the thousands. Some of these books were cheaply bound unfocused editions copied photographically; others were expensive black-bound volumes designed to resemble Bibles or hymn books.

While Lawrence was as irritated by the pirates as by the censors, being deprived of royalties by both, most of his admiring readers were thankful to the pirates for making available to them what Lawrence’s Italian printers could not efficiently provide; and while large profits were made in the underground by such distributors of the books as Samuel Roth, these men usually paid a price for selling the words that Lawrence had written. Twice during the 1930s Roth went to jail for trafficking in the novel, and these and his other dealings in illegal literature all contributed to the five-year term that Roth received in 1956 and was still serving after
Lady Chatterley’s Lover
was declared legal in the United States during the summer of 1959.

The liberation of
Lady Chatterley
was achieved after the United States Post Office had been sued by a rather romantic young radical named Barney Rosset, a man who knew Roth and
who owned an avant-garde publishing house in Greenwich Village called Grove Press. Had Rosset been born a decade sooner, he might have become a fellow prisoner of Roth’s, since he shared Roth’s passion for independence and abhorrence of censorship. But it was Rosset’s good fortune to have published many erotic books at a time when the nation itself was becoming more sexually permissive about literature and life; and Rosset’s business success was additionally enhanced by the fact that, unlike Roth, he had been born wealthy and he thus had the resources to formidably defend in court such books as
Lady Chatterley’s Lover
, Henry Miller’s
Tropic of Cancer
, and other sensuous novels and films that would be distributed by Grove Press from the late 1950s through the 1960s.

The initial source of Rosset’s affluence was his father, an ambitious Chicago banker and businessman who, descendant from a hapless Russian Jewish patriarch who made corks for champagne bottles, celebrated his prominence and patriotism during World War II by bequeathing his yacht to the United States Navy. Rosset’s mother, who married the banker in 1921 after she had won a beauty contest and attracted his attention, was the daughter of a militant Irish-Catholic exile from Galway who worked as a sewer contractor in Michigan, spoke Gaelic, and felt such contempt for the English that he would not allow the color red to appear in his house because he associated it with red-coated British soldiers. Barney Rosset, the only child of the marriage, was also aware of anti-Semitic comments made by his mother in private about her Jewish neighbors in Chicago, and at times he could not help but wonder if at least part of her disapproval of Jews might be directed toward him.