Thy Neighbor's Wife (47 page)

But despite Douglas’ low estimation of his fellow jurists’ erotic perceptions, and his wish that the courts and the constables stay away from the nation’s keyholes and direct their attention to what should truly be the legal concern of the state, the Supreme Court nevertheless continued throughout the 1960s to scrutinize the sources of fantasy and pleasure of American citizens; and in two unusual cases, the High Court uncharacteristically decided that the publishers of sex books were so socially unredemptive that the two men on trial deserved nothing less than to go to jail.

One of these men was named Edward Mishkin. His case—
Mishkin
v.
the State of New York
—was heard by the Court on the
same December day in 1965 that it listened to the argument of
Memoirs
v.
Massachusetts;
but Mishkin’s situation was entirely different from the one that would free the ancient tale of Fanny Hill. Mishkin had been arrested and convicted in New York, fined $12,000, and sentenced to three years in prison, for manufacturing, selling, and grossly advertising several pulp paperback novels that seemed to be less obsessed with heterosexual activity than with sadomasochism, fetishism, and other presumed deviations. When Mishkin’s attorneys appealed the conviction to the Supreme Court, they offered a unique argument that they hoped would liberate their client: They conceded that Mishkin’s books might
be
devoid of redeeming value, and might even disgust and sicken the average adult reader; but these books were
not
written for, and certainly did
not
arouse the prurient interest of, the
average
reader. And thus under the specific definition of obscenity, which required that the average reader be made vulnerable to arousing imagery, Mishkin’s bizarre books could not be classified as obscene.

But this logic failed in the final analysis to impress a sufficient number of justices to be of benefit to Mishkin. While Justice Douglas, Potter Stewart, and Hugo Black voted to overturn the Mishkin sentence on First Amendment grounds (Justice Black, like Douglas, insisted that the government had no jurisdiction over the nation’s printing presses, no matter what kind of immoral or deviant literature the presses produced), the six other Justices felt that the lower-court conviction against Mishkin had been justified and they did not void his fine or prison term.

The second individual to appeal to the Supreme Court at this time was also a New Yorker—Ralph Ginzburg, publisher of a magazine called
Eros
, a book entitled
The Housewife’s Handbook on Selective Promiscuity
, and a biweekly newsletter called
Liaison
. The magazine
Eros
, which had provoked the indictment against Ginzburg on charges that he had violated the Comstock postal act, was actually more titillating than sexually obscene: Its
color photographs of people did not show genitalia or pubic hair; its articles did not blatantly appeal to prurient interest, and its elegant graphics, its heavy paper, and hard cover marked it as a magazine of uncommon design and quality. A quarterly, it was sold by mail subscription at the rate of $25 per year; and during its first year of publication its pages featured such material as Guy de Maupassant’s short story “Madame Tellier’s Brothel,” illustrated by Edgar Degas; color reproductions of classical nude paintings that can be seen in major museums; and lustful selections from the Bible, embellished by woodcuts of Old Testament figures. There was also an article by psychologist Albert Ellis entitled “A Plea for Polygamy”; another article by Phyllis and Eberhard Kronhausen called “The Natural Superiority of Women as Eroticists”; a reprint of Mark Twain’s once-controversial essay “1601”; examples of Shakespeare’s poetry that were interpreted to suggest that he was a homosexual; photographs of male prostitutes in Bombay; and a story about the infamous Nan Britton, who caused a national scandal in the early 1920s after claiming that she was the mother of an illegitimate child sired by the President of the United States, Warren G. Harding.

In the fourth issue of
Eros
, mailed out to subscribers during the winter of 1962, there was included a feature that Ginzburg called “Black & White in Color,” a series of photographs showing a muscular nude black man intimately engaged with an attractive nude white woman; and while none of the sixteen pictures focused on the genitalia, the couple were clearly depicted as lovers. In some pictures they were seen kissing; in others they were stroking one another and lying side by side; and, in perhaps the most striking picture, they were standing face to face with their arms clasped around one another’s backs, their thighs and pelvises firmly in contact, their bodies so tightly together that the woman’s left breast was pressed flat against the hard chest of the black man. In the introduction to these pictures that
Eros
called a “photographic tone poem,” it was stated—in deference to the law’s “redeeming social value” aspect—that the couple were dedicated to “the conviction that love between a man and a woman,
no matter what their races, is beautiful”; and, the text continued: “Interracial couples of today bear the indignity of having to defend their love to a questioning world. Tomorrow these couples will be recognized as the pioneers of an enlightened age in which prejudice will be dead and the only race will be the human race.”

When the United States Attorney General, Robert F. Kennedy, first became aware of these pictures, he was reportedly enraged. While many of Kennedy’s closest friends and associates believed that he was not a puritanical or monogamous man in his personal life, he was known to be as righteous as J. Edgar Hoover on the subject of pornography for the mass public; and, according to the book
Kennedy Justice
, by Victor S. Navasky, Kennedy had contemplated censoring
Eros
and other sexual publications even before he had seen the pictures of the interracial couple. But, as it was explained to Navasky by Kennedy’s deputy in the Justice Department, Nicholas deB. Katzenbach, Kennedy was concerned that such interference might be politically interpreted as a sign of his prejudicial allegiance to Catholicism. The fourth issue of
Eros
with its interracial couple, however, was advertised and circulated throughout the nation, including the Deep South, at a time when there was rioting and tension because of the enforced desegregation of the University of Mississippi and the presence of its first black student, a determined young man named James Meredith. Believing that the
Eros
pictures might have a negative effect on civil rights progress in the South, Kennedy moved quickly to indict Ginzburg, charging him with sending obscenity through the mail.

The criminal proceedings against Ginzburg were arranged so that he would be forced to stand trial in Philadelphia, a city in which the mayor and the police were racially reactionary and strongly disposed to antipornography law enforcement, and where much sexual literature had recently been burned on the steps of a church in a ceremony attended by the Philadelphia superintendent of schools, and at which a chorus of young boys, as the books withered in the heat, sang “Gloria in Excelsis.” Prior to Ginzburg’s trial, a Philadelphia resident wrote in a local library
journal: “Ralph Ginzburg has about the same chance of finding justice in our [Philadelphia] courts as a Jew in the courts of Nazi Germany.”

The trial, which began in June 1963, was presided over by an austere judge who throughout the proceedings seemed embarrassed by the material placed in evidence before him; and at the conclusion of the case, during which the government summoned several witnesses to denigrate Ginzburg’s literature, the judge himself declared that he had found in
Eros
“not the slightest redeeming social, artistic or literary importance or value,” and he had no higher opinion of the newsletter
Liaison
or
The Housewife’s Handbook on Selective Promiscuity
. About the
Handbook
, which was an autobiographical account of a female author’s various marriages and infidelities, the judge concluded that it was “extremely boring, disgusting and shocking to this Court, as well as to an average reader.”

But what was decisive in the final disposition of Ginzburg’s case was the testimony in court of two small-town postmasters who recalled that they had received letters from Ginzburg’s New York office requesting permission to mail Ginzburg’s literature and advertising circulars from their post offices, both of which were located in Pennsylvania Dutch communities having sexually suggestive names. One community was called Blue Ball; the other, Intercourse. After the postmasters had denied the request, explaining that their postal facilities were too small to handle such a large volume of mail, Ginzburg contacted the post office in Middlesex, New Jersey; and after receiving permission from that postmaster, Ginzburg and his staff proceeded to send out from Middlesex
millions
of circulars soliciting subscriptions to
Eros
and his other products—it was a stupendously indiscriminate list of names partly drawn from phone books, and while many recipients responded favorably to Ginzburg’s message, many others did not, especially those sexually modest parents whose children had inadvertently opened the mail and read the pitchman’s enticing prose promising erotic literary fulfillment. Some of the advertising circulars and the full-page newspaper ads in metropolitan
dailies that heralded
Eros
even attributed the magazine’s origin to the permissive policies of the United States Supreme Court: “
Eros
is the result of recent court decisions that have realistically interpreted America’s obscenity laws that have given this country a new breath of freedom of expression. We refer to decisions which have enabled the publications of such heretofore suppressed literary masterpieces as ‘Lady Chatterley’s Lover.’” While some of Ralph Ginzburg’s defenders in Philadelphia thought that he had been unwise in including the Supreme Court in his
Eros
advertisements, and also believed that his idea of sending mail from Middlesex had been a very bad joke, they were nonetheless astonished after the Philadelphia judge had announced the verdict: Ginzburg had been found guilty of defiling the mails with obscenity, was fined $42,000, and was directed to serve five years in prison.

Overwhelmed by the severity of the punishment, Ginzburg and his attorneys immediately filed papers with the Federal Court of Appeals in the Third Circuit, which was also located in Philadelphia; but they were notified eleven months later that their appeal had been denied, and the seventy-two-year-old federal judge who wrote the opinion affirming Ginzburg’s conviction announced: “What confronts us is a
sui generis
operation on the part of experts in the shoddy business of pandering to and exploiting for money one of the greatest weaknesses of mankind….”

Finally in December 1965 the case of
Ginzburg
v.
United States
was heard by the Supreme Court; and among the partisans in the hearing was Charles Keating of the CDL, who had filed with the Court an
amicus
brief supporting the government prosecutors and urging that the federal law against obscenity be strictly enforced. Ginzburg’s defense continued to be, as it had been in Philadelphia, that
Eros
and his other material were neither prurient, nor patently offensive, nor utterly without redeeming social value. Indeed, in the three years that had passed since the Kennedy indictment, Ginzburg had seen Hugh Hefner and several other publishers far exceed him in sexual candor, without
being prosecuted; and Ginzburg was confident that in Washington, unlike in Philadelphia, the law would be interpreted with objectivity and fairness, and that surely his conviction would be reversed.

After the Supreme Court had heard the oral argument of Ginzburg’s principal attorney, and also the position of the spokesman for the government, it put the case aside for weeks of deliberation; and three months later, when it handed down its opinion, Ginzburg learned that the Court had ignored the question of whether or not
Eros, Liaison
, and the
Handbook
were obscene. Instead, the Court dwelled on Ginzburg’s advertising campaigns; and in a five-to-four vote, Ginzburg was found culpable of the hitherto unenforced crime of “pandering” in the mail—and by the slim margin of one vote, Ralph Ginzburg’s jail term and $42,000 fine were ruled valid and proper.

Justice Brennan, who wrote the majority opinion, and read it with an air of churlishness that surprised the attorneys and other observers in his audience, noted that “the leer of the sensualist” had permeated Ginzburg’s advertising, and Brennan left no doubt that he was angered by Ginzburg’s exploitative use of the post office in Middlesex, and the temerity with which Ginzburg had associated the Supreme Court with full-page ads celebrating
Eros
. The liberal Court during the last decade had been blamed for fomenting many things in America, but one thing that Justice Brennan would not allow the Court to be blamed for was
Eros
magazine; and no matter whether it was legally obscene or not, Brennan found Ginzburg guilty “of the sordid business of pandering—‘the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers’”; and Brennan added, as a warning to other publishers: “Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity.”

Among the four dissenting justices—William Douglas, Potter Stewart, Hugo Black, and John Harlan—Justice Douglas wrote the most articulate opinion in defense of Ginzburg’s advertising
techniques, “The advertisements of our best magazines,” Douglas pointed out, “are chock-full of thighs, ankles, calves, bosoms, eyes, and hair, to draw the potential buyers’ attention to lotions, tires, food, liquor, clothing, autos, and even insurance policies. The sexy advertisement neither adds to nor detracts from the quality of the merchandise being offered for sale. And I do not see how it adds to or detracts one whit from the legality of the book being distributed. A book should stand on its own, irrespective of the reasons why it was written or the wiles used in selling it.”