To hear some people tell it, all of "the media" is a degenerate, sex-drenched affair. But although there's plenty of talk about the sex lives of celebrities and a willingness to use a scandal to sell a paper, when you get into the content of actual news stories, things often take a turn for the Puritanical: Soccer moms' fabricated allegations about kids being exposed to nudity in a hotel hosting a swingers conference get printed as fact and never retracted. Religious minorities are assumed to speak for all religious Americans, or even all Americans, when it comes to whether "abstinence" should be the teen sex-ed gold standard. Usual standards of fairness and objectivity fall prey to reporters and editors' squeamishness.

In response to this state of affairs, the National Coalition for Sexual Freedom, the Center for Sex and Culture, Babeland, and journalist Miriam Axel-Lute are launching the 2008 Sex-Positive Journalism Awards (the "Sexies") to promote fair, accurate, and non-sensationalized coverage of sexual topics. The awards are currently accepting entries that meet both high journalistic standards and the Sexies awards criteria (see page 3).

"For the past decade, the National Coalition for Sexual Freedom has dealt with media reports that include sensationalized and false information about sexual issues," says Susan Wright, NCSF spokesperson. "These articles cause harm by encouraging discrimination and persecution of adults who engage in consensual sexual expression. NCSF is proud to support the Sexies and sex-positive journalism in America."

"The media's frequent failure to apply balanced journalistic standards to sex-related topics affects real people's lives," says Carol Queen, PhD, co-founder of the Center for Sex and Culture. "A sensationalistic perspective can turn neighbors against each other or make it hard for someone accused of a sex-related offense to get a fair trial. It also means that too many of us worry about whether we're 'normal,' and don't realize there are sex-positive communities, sources of information, and professionals out there. Just as in the political arena, when the press does not do its job, there is real fallout."

The winners of the Sex-Positive Journalism Awards will be chosen by an outstanding panel of judges, who have expertise in both journalism and sex-positive advocacy: Dan Savage, author of the popular sex-advice column “Savage Love”; Carol Queen, PhD, writer, speaker, educator, and activist with a doctorate in sexology; Liza Featherstone, journalist and author of “Sex, Lies, and Women’s Magazines” (Columbia Journalism Review); Jack Hafferkamp, a former journalist and journalism professor and co-editor/publisher of LIBIDO: The Journal of Sex and Sensibility; Judith Levine, journalist and author of the award-winning Harmful to Minors: The Perils of Protecting Children From Sex, Doug Henwood, contributing editor to The Nation; Marty Klein, PhD, certified sex therapist, therapist trainer, and author of America’s War on Sex; and Claire Cavanah, an activist, writer, speaker, and educator in the field of human sexuality and a founder of babeland.com.

"All but the most confident and self-assured among us are affected by the messages we receive about sex," says Claire Cavanah, co-founder of Babeland.com, a founding sponsor of the Sexies. "It's freeing to read an article that assumes that most people want a pleasurable, vibrant sex life. Sex-positive media creates space for readers to think about sex in a way that goes against some of the damaging messages that our culture perpetuates."

"There are journalism awards rewarding good coverage of everything from private aviation to colon cancer," says Axel-Lute, "but there was nothing out there to reward writers who went the extra mile to be fair and accurate about something as essential to human identity as sexual expression. The Sexies fill that gap."

The Sexies will be given for articles in four categories: news, feature, opinion, and "unsexy" (the most egregious violation of the Sexies' criteria). The first three categories have four divisions each: daily general-topic newspaper, weekly or biweekly general-topic newspaper, online general-topic news publication, and sex- or sexual orientation-themed news publication (any print medium). The Unsexy award has no divisions. Articles must have been published in 2007. Article series must have started or ended in 2007. Submissions are due by March 23, 2008. Both writers and readers can submit articles for consideration. For full guidelines see www.sexies.org/criteria.html. To make entries please use our entry form at www.sexies.org/submit.php. Winners will receive a cash prize and a plaque.

The Sexies are seeking corporate sponsors and individual donations to support our mission. Donations can be made at www.sexies.org/support.html.

###



We are seeking pieces of journalism that:
• meet high overall standards of reporting, fact-checking, and writing

and do at least one of the following:
• show evidence of fairness in seeking sex-positive sources to respond to sex-negative ones
• ask hard questions about the motivation and background of sources who rely on
sex-negative soundbites
• avoid biased or sensationalistic language
• cover newsworthy topics, events, or issues that might tend to be swept under the rug
because of controversial sexual content
• report accurately, respectfully and with nuance on sex research results
• contain fair, accurate, and non-sensational portrayals of sexual subcultures
• keep a clear separation between sex crimes, such as sexual assault or pedophilia, and things
that merely make people uncomfortable, such as consensual kink, teen sexuality or gay
priests; and help readers who may not be familiar with the issues make the distinction
• specifically challenge sex-negative assumptions or practices in society at large or in a
specific community
• educate the public as to the diversity of sexual behavior without sensationalizing
• celebrate sexuality as a positive force in human lives

We are not looking for racy or sensationalistic stories. The awards will be something any traditional journalist should be proud to hang on his or her wall—a testament to journalistic standards of fairness and accuracy about a charged and controversial subject.

For more informations on the Sexies, how/what/where to submit, contact: Susan Wright, 917-848-6544 or Miriam Axel-Lute, info@sexies.org
For more details: www.sexies.org

Labels: Sexies Awards

François Boucher (1703-1770) was one of the most celebrated 18th century French painters. We love that he had a fondness for portraying the frivolous manners of aristocratic society, particularly intimate female scenes such as this one of a French lady at her toilette.

UN-BANNING BOOKS
How the courts of the United States came to extend
First Amendment guarantees to include pornography




By Jack Hafferkamp


At the time the obscenity restriction-ending Redrup decision was handed down by the United States Supreme Court in 1967, America was in the midst of the vast social upheaval of the 1960s. Redrup (see installment 5 below) was a major blow to already on-the-run conservative forces. Another major jolt to the right came from the 1970 President’s Commission on Obscenity and Pornography.

The final report gave an ironic twist to conservative efforts to re-impose old-fashioned obscenity standards. It found positive value in porn.

The Commission came into being at the urging of nervous conservative religious leaders such as New York’s Cardinal Francis Spellman and powerful conservative businessmen Charles Keating, the savings-and-loan scam felon, and his Citizens for Decent Literature. President Lyndon Johnson appointed the commission, which had Congressional support from Senators Sam Ervin, whose long conservative career was capped his role on the Senate Watergate Hearings and then-vigorous Strom Thurmond. The 18 Commissioners charges were:

• To analyze laws pertaining to the control of obscenity and pornography and to evaluate and recommend definitions of obscenity and
pornography.

• To ascertain the methods employed in the distribution of obscene and pornographic materials and the nature and volume of traffic in such materials.

• To study the effect of obscenity and pornography on the public and minors in particular, and porn’s relationship to crime and other antisocial behavior.

• To recommend legislation, administrative or other actions to regulate pornography.

Commissioners worked for two years under the direction of a distinguished conservative law professor, William Dean Lockhart, and delivered their report to President Richard Nixon in 1970.

The report was a nasty surprise to the people who ordered it up. Among it’s major conclusions:

…empirical research designed to clarify the question has found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent behavior among youth or adults. The Commission cannot conclude that exposure to erotic materials is a factor in the causation of sex crime or sex delinquency.

Conservative leaders were shocked when Commission General Counsel Paul Bender summed up the official conclusions this way:

The recommendations of the commission was for the abolition of all general laws that prohibit distribution of obscene materials of the normal consensual kind to adults, and that obscenity laws should just take the form of specific laws dealing with particular kinds of contexts: public displays, unsolicited mailings and distribution to children. The commission also recommended that the country get serious about sex education.

Richard Nixon was outraged. He said this about the report:

Several weeks ago, the National Commission on Obscenity and Pornography-appointed in a previous administration-presented its findings. I have evaluated that report and categorically reject its morally bankrupt conclusions and major recommendations. So long as I am in the White House, there will be no relaxation of the national effort to control and eliminate smut from our national life.

Vice President Spiro T. Angew put it this way: “As long as Richard Nixon is president,” he said, “main street is not going to become smut alley.”

Charles H. Keating, Jr. was Richard Nixon's only appointment to the President's Commission on Obscenity and Pornography, requested and received a temporary restraining order from a Federal District Court in Washington, D. C. preventing publication of the Commission's final report.

Chairman Lockhart was denounced as the anti-Christ. The United States Senate voted 60 to 5 to reject the commission’s recommendations to repeal the country’s obscenity laws. Strom Thurmond called it a “magna carta for pornographers.” And thus was the commission’s report dispatched to oblivion.




The conservative counter movement was gaining steam.

One big step took place in 1969. Warren E. Burger replaced Earl Warren as Chief Justice. Burger came in to office making it known he wanted to reverse the process that had opened America to free discussion of sexual issues.

During Burger’s early years the high-water mark of the Supreme Court’s liberalization involving freedom of individual choice in sexually related matters came in 1973 with Roe v. Wade, which made abortion a legal choice in the United States.

But even as women, libertarians and progressives were their victory, changes were well underway in shifting the court’s liberal momentum. Also in 1973, the court experienced a sea change on the question of obscenity.

In that year the Supreme Court rejected the Brennan Doctrine-based Memoirs Standard in favor of the more restrictive Miller Standard we now live under.

Considered together, ACLU President Nadine Strossen has written, those two decisions show that in 1973 “…the court decreased the government’s power to curb sexual conduct but it increased the government’s power to curb sexual expression.”




The Miller case, Miller v. California, was not about Henry Miller; it was about Marvin Miller, a California publisher, who put out four illustrated books titled Man-Woman, Intercourse, Sex Orgies Illustrated, and An Illustrated History of Pornography and a film, Marital Intercourse. He was arrested for violating California’s anti-obscenity law. Under the new court 5-4 majority, Miller’s conviction was upheld.

Chief Justice Burger’s stated aim in the Miller case was to dismantle the single permissive national standard on obscenity and to open the decision making process to “contemporary community standards.” This was, in effect, Burger’s end-around the court’s Redrup policy. His Miller decision was crafted to provide local community censors with the tools to prohibit works they do not want people seeing.



In his majority opinion Burger re-defined obscenity’s cutting edge in terms of serious literary, artistic, political or scientific value. That is, Burger rejected the Brennan Doctrine’s insistence that to be banned a work had to be utterly without redeeming value. To be protected under Burger’s new interpretation a work had to have serious value.

Burger’s thinking was that by limiting the power of the “without redeeming value” aspect of the three-pronged test, the new Miller case guidelines would give more power to the other two prongs of the three-pronged test: contemporary community standards and prurience.

Stanford Law Professor Kathleen Sullivan once paraphrased the meaning of latter two standards under Miller as: prurient means it “turns you on” and patently offensive means “it grosses you out.” It is through these two “windows” that today’s “decency” argument has entered the obscenity equation.

To underscore his own feeling on obscenity, Burger offered what he called “plain examples” of the kinds of things the states (or their local communities) could regulate for themselves. These included patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

This kind of material, Burger concluded, was obscene hard-core pornography that goes beyond merely being arousing to appeal to the morbid or sick interest.

• Burger’s notion of community standards allowed Harry Reams, co-star of Deep Throat to be convicted of obscenity in Memphis in even though he had never been to Memphis.

• Burger’s approach allowed Al Goldstein, publisher of Screw to be prosecuted in Wichita, Kansas even though his magazine was not sold on Wichita newsstands.

• And so, too, did this approach make possible for Larry Flint, publisher of Hustler, to be convicted in Cincinnati of engaging in organized crime and pandering obscenity.

This result was merely Warren Burger’s opening shot at what he saw as a new approach to the issue.
In the next year the Burger majority went further.

Kaplan v California, like 1967’s Redrup case, involved a non-illustrated book of fiction, Suite 69, sold to a detective. According to First Amendment attorney Edward de Grazia, the case “culminated in the announcement of a rationale for the censorship of books that harked back to the hoary Hicklin rule.” And this message lurks in the background of today’s debate about porn on the internet. In his opinion on Kaplan Burger wrote:

For good or ill, a book has a continuing life. It is passed hand to hand, and we can take note of the tendency of widely circulated books of this category to reach the impressionable young and have a continuing impact. A state could reasonably regard the ‘hard core’ conduct described by Suite 69 as capable of encouraging or causing antisocial behavior, especially in its impact on young people. States need not wait until behavioral experts or educators can provide empirical data before enacting controls of commerce in obscene materials unprotected by the First Amendment or by a constitutional right to privacy. We have noted the power of a legislative body to enact such regulatory laws on the basis of unprovable assumptions.

In other words, according to the Burger approach to limiting the availability of pornography, communities need not wait for the facts to launch pre-emptive strikes against books that scare them.

Before he could do much more, Burger’s obscenity counter- revolution was cut short in 1974 with the case Jenkins v. Georgia.

This case concerned the Mike Nichols-directed film Carnal Knowledge, with Jack Nicholson, Candice Bergen, Ann-Margret, and Art Garfunkel.




It is a very good, artistically serious film about the sexual attitudes of two men who come to symbolize the generation that came of age at the end of World War II. A community in Georgia decided it didn’t care for the film’s morals and moved to have it banned as obscene. The Georgia Courts agreed.

Louis Nizer argued the case before the U.S. Supreme Court. In a sense the case was a replay of the issues in the Ulysses case because it involved an artistic work that included sexual elements in its elucidation of character. For the Justices of the United States Supreme Court case came to this: To vote to uphold the conviction would be to unplug the three-pronged approach to First Amendment Freedoms and allow community standards to become the primary criterion for determining obscenity.

On this point Burger’s new majority faltered. A strict local standards policy, the Justices realized, would essentially allow the least tolerant local community to decide national standards. Instead of promoting many independent local standards of obscenity – which Burger claimed he was in favor of -- this approach would re-impose a national standard -- one that would be drastically restrictive.

Even conservative Justices were not willing to go that far, because it would have time-warped America directly back to the Comstock era. In his opinion future Chief Justice William Rhenquist wrote: “It would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is ‘patently offensive’.”

The result was that the three-pronged test for obscenity stayed in place. And there is has remained, in uneasy stasis, since 1973.

Copyright 2007
All rights reserved


Next month: Today, Which End Is Up?

The new Libido Blog is a sister publication to Libidofilms.com.

Our aim here is to create a space for serious -- and sometimes humorous -- discussion and celebration of the material culture of sex.

Already going is Jack Hafferkamp's series on the history of how the Supreme Court of the United States came to revise the Victorian obscenity standards that prevented any useful discussion of sexual themes in art, literature and science. Simply scroll down to the bottom to start reading those installments.

New, starting today, is a series of images that not only depict artistic expressions of sexuality, but which say -- visually -- a good deal about the times in which they were created. These images come from the collection of Dr. Marianna Beck. Enjoy!



During the Renaissance, the art world began to embrace classical ideals that encouraged a new form of paganism. While the portrayal of nude bodies involving contemporary individuals was certainly off-limits, depictions of naked gods and goddesses, satyrs and nymphs were not. As a result, classical myths provided an endless excuse to depict sex. More often than not, it was Jupiter seducing just about anything that moved — in this case, Olympias. This piece from 1527/8 is by noted Italian Manarist artist, Guilio Romano, 1499-1546.

UN-BANNING BOOKS
How the courts of the United States came to extend
First Amendment guarantees to include pornography.



By Jack Hafferkamp


At the end of last week’s installment we had arrived at First Amendment attorney and author Edward de Grazia conclusion that the pivotal figure in the United States Supreme Court’s landmark Tropic of Cancer decision was Justice William J. Brennan, Jr.

His opinion elucidated what de Grazia calls the “Brennan Doctrine,” which turned established notions of American book banning on their head, fundamentally altering the approach to controlling sexually charged books and films in America. From Brennan we got the idea that instead of banning books because they have things in them that offend some people, no book should be banned unless it is utterly without value.

According to the Brennan Doctrine obscenity did not enjoy First Amendment protections, but only work “utterly without social importance” could be branded obscene. In his Roth opinion, Brennan wrote:

We would reiterate our recognition in Roth that obscenity is excluded from the constitutional protection only because it is "utterly without redeeming social importance," and that "the portrayal of sex, for example, in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press."

It follows that material dealing with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a ‘weighing’ of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance.27




Legal costs for winning the right to read Tropic of Cancer cost Barney Rosset $250,000, a tidy sum thirty-some years ago when one could buy a nice big house for that. The case also marked the first time in its history that the American Civil Liberties Union seriously joined the fray — with 15 lawyers — for the defense of an “obscene’ book.” The victory had immediate impact that extended beyond freedom for books. For example, on that same day the decision was handed down, the Illinois Supreme Court reversed a ruling on an obscenity conviction involving Lenny Bruce for a performance at the Gate of Horn nightclub in Chicago.

What the Brennan Doctrine meant in historical context was that it suddenly became very difficult for prosecutors to prove works obscene, but easy for defense lawyers to demonstrate that the works of their clients should be entitled to Constitutional protection. To this day, pro-censorship forces argue that the Tropic of Cancer decision mocked the Founding Fathers’ intentions with regard to freedom of the press. They still bash Brennan and his colleagues for unleashing the “tides of Pornography” that flooded the American democracy.

Certainly the momentum of the Brennan doctrine did not stop with Tropic of Cancer. In fact, its concept of “social value” was clarified and expanded in the 1966 case against John Cleland’s Memoirs of a Woman of Pleasure v. Massachusetts, otherwise known as Fanny Hill.

Nineteen sixty-six was a big year for obscenity cases in the U.S. Supreme Court. There were three major decisions to know about. They involved Fanny Hill, three publications by Ralph Ginzburg, and a group of fetish, bondage and S&M booklets commissioned and published by Samuel Mishkin. Taken together these decisions demonstrated that while the Supreme Court was open to allowing “literature” to flourish, it had no problem setting limits on other so-called obscene works.

In the Fanny Hill case the big question for the court was “Does this book have any literary merit? Even Brennan, de Grazia concludes, wasn’t certain it did.

This excerpt comes from the very beginning of the book and describes Fanny’s first sexual experience. Unbeknownst to the young, naive and orphaned Fanny, she has been delivered on her first day in London to a whorehouse. She thought she was taking a job as a domestic servant, and she did not understand that Phoebe, the young woman who was to be her bedmate the first night, had been assigned to determine if Fanny was a virgin. We pick up the narrative when Fanny’s new friend was pressing her “attack” and stirring in Fanny feelings that were entirely new and confusing:

My breasts, if it is not too bold a figure to call so to hard, firm, rising hillocks, that just began to shew themselves, or signify anything to the touch, employ’d and amus’d her hands a-while, till, slipping down lower, over a smooth track, she could just feel the soft silky down that had but a few months before put forth and garnish’d the mount-pleasant of those parts, and promised to spread a grateful shelter over the seat of the most exquisite sensation, and which had been, till that instant, the seat of the most insensible innocence. Her fingers play’d and strove to twine in the young tendrils of that moss, which nature has contrived at once for use and ornament.

But, not contented with those outer posts, she now attempts the main spot, and began to twitch, to insinuate and at length to force an introduction of a finger into the quick itself, in such a manner, that she had not proceeded by insensible gradations that inflamed me beyond the power of modesty to oppose its resistance to their progress, I should have jump’d out of bed and cried for help against such strange assaults.

Instead of which, her lascivious touches had lighted up a new fire than wanton’d through all my veins, but fix’d with violence in that center appointed them by nature, where the first strange hands were now busied in feeling, squeezing, compressing the lips, then opening them again, with a finger between, till an “Oh!” express’d her hurting me, where the narrowness of the unbroken passage refused its entrance to any depth.

In the meantime, the extension of my limbs, candid stretchings, sighs, short heavings, all conspired to assure that experienced wanton that I was more pleased than offended at her proceedings, which she seasoned with repeated kisses and exclamations, such as “Oh!” what a charming creature thou art! . . . “ with the like broken expressions, interrupted by kisses as fierce and fervent as ever I received from the other sex.

For my part, I was transported, confused and out of myself; feelings so new were too much for me. My heated and alarm’d senses were in a tumult that robbed me of all liberty of thought; tears of pleasure gush’d from my eyes, and somewhat assuaged the fire that rag’d all over me.

Phoebe, herself, the hackney’d, thorough-bred Phoebe, to whom all modes and devices of pleasure were know and familiar, found, it seems, in this exercise of her art to break young girls, the gratification of one of those arbitrary tastes, for which there is no accounting. Not that she hated men, or did not even prefer them to her own sex; but when she met with such occasions as this was, a satiety of enjoyments in the common road, perhaps too, a secret bias, inclined her to make the most of pleasure, wherever she could find it, without distinction of sexes. In this view, now well assured that she had, by her touches, sufficiently inflamed me for her purpose, she roll’d down the bed-cloaths gently, and I saw myself stretched nak’d, my shift being turned up to my neck whilst I had no power or sense to oppose it. Even my glowing blushes expressed more desire than modesty, whilst the candle, left (to be sure not undesignedly) burning, threw a full light on my whole body.

“No!" says Phoebe, "you must not, my sweet girl, think to hide all these treasures from me. My sight must be feasted as well as my touch . . . I must devour with my eyes this springing bosom . . . Suffer me to kiss it . . . I have not seen enough . . . Let me kiss it once more . . . What firm, smooth, white flesh is here!. . . How delicately shaped! . . . Then this delicious down! Oh! Let me view the small, dear, tender cleft! . . . This is too much, I cannot bear it! . . . I must . . . I must . . ." Here she took my hand, and in a transport carried it where you will easily guess. But what a difference in the state of the same thing! . . . A spreading thicket of bushy curls marked the full-grown, complete woman. Then the cavity to which she guided my hand easily received it; and as soon as she felt it within her, she moved herself to and fro, with so rapid a friction that I presently withdrew it, wet and clammy, when instantly Phoebe grew more composed, after two or three sighs, and heart-fetched Oh’s! and giving me a kiss that seemed to exhale her soul through her lips, she replaced the bed-cloaths over us. What pleasure she had found I will not say; but this know, that the first sparks of kindling nature, the first ideas of pollution, were caught by me that night; and that the acquaintance and communication with the bad of our own sex, is often as fatal to innocence as all the seductions of the other. But to go on. When Phoebe was restor’d to that calm, which I was far from the enjoyment of myself, she artfully sounded me on all the points necessary to govern the designs of my virtuous mistress on me, and by my answers, drawn from pure undissembled nature, she had no reason but to promise herself all imaginable success, so far as it depended on my ignorance, easiness and warmth of constitution.

After a sufficient length of dialogue, my bedfellow left me to my rest, and I fell asleep…

It was attorney Charles Rembar who tried to convince the Supreme Court that Fanny Hill had “literary merit, historical significance and psychological values.” He argued that there could be no such thing as “well-written pornography.” That if a work was well-written it could not be considered “pornography.”

Rembar carried the day; the vote was 6 to 3 in favor of Fanny Hill. And more importantly, the case established a new Supreme Court standard for obscenity, the Memoirs Standard. For a work to be judged obscene after Fanny Hill, it had to fail three tests. It had to be established that
•a) the dominant theme of the material taken as a whole appeals to the prurient interest in sex;
•b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
•c) the material is utterly without redeeming social value.

Each of these three criteria is to be applied independently; the social value of a book, for example, cannot be weighed against or canceled out by its prurient appeal or patent offensiveness.

This Memoirs Standard decision was a great advance in opening America to legitimate literature that happens to deal with sexuality. Because of it books like Vladimir Nabokov’s Lolita and Terry Southern and Mason Hoffenberg’s Candy and The Story of O became readily available, and shows like Marat/Sade, Hair and Oh, Calcutta could appear on Broadway.

But as is often the case when the Supreme Court justices are asked to a dance, one big step forward is followed by a step to the side and a step back. The other two big cases of March 21, 1966 show that the Court was not throwing the door open to everyone and everything. The Ginzburg and Mishkin cases had quite different outcomes — even though they, too, were authored chiefly by Justice William J. Brennan, Jr.

Samuel Mishkin was on trial under New York State anti-obscenity statutes for publishing pulp fetish/porn books. Their themes involved fetishism, sadism, masochism and homosexuality. Miskin’s titles included Mistress of Leather, The Whipping Chorus Girls, Swish Bottom and So Firm and Fully Packed.

The case against Mishkin was based on his books supposed prurient interest and lack of redeeming literary or social value. The final vote was 6 to 3 against and Mishkin’s conviction and three year sentence was upheld. His books, it was concluded, had no literary value, offended community standards, and were purely prurient.

More curious was the case against Ralph Ginzburg. It was Attorney General Robert Kennedy who went after Ginzburg for violating the Comstock Act with three publications, his lovely, hard-cover magazine Eros, a newsletter called Liaison and the whimsically titled book, The Housewife’s Guide to Selected Promiscuity. Thanks to federal efforts, Ginzburg had been convicted, sentenced to five years, and fined $42,000 for essentially what was a bad joke.


Ginzburg’s problem was different from Mishkin’s. His difficulty wasn’t with what he was selling so much as the way he sold it. What was on trial was Ginzburg’s blatancy in exploiting the new freedoms granted by the courts. His marketing of Eros, for example, was not subtle. Ginzburg wanted to mail promo materials from the Pennsylvania Amish towns of Blue Ball, and Intercourse. Refused there, he finally succeeded in mailing it from Middlesex, New Jersey. Postal authorities then arrested him for pandering to the prurient interest.

While the justices agreed that his publications had “marginal” social value, the court as a whole didn’t at all care for his promotional methods. Many people, including some on the court, thought he had gone too far in flaunting a full-color interracial photo spread. Looking, to me at least, quite lovely, very soft by even the standards of today's mainstream ads -- think no farther than Calvin Klein style bus-side ads. But in those days of the rising tide of the Civil Rights Movement, these photos were the icing on his cake. Politically, Ginzburg pushed all the wrong buttons. Whatever the exact thinking, the court voted 5 to 4 against Ginzburg. In the end, he actually served eight months and then was quietly released.

Taken together, what the three 1966 cases came to was ambiguity. Fanny Hill was okay because it was literature. Swish Bottom was not because it wasn’t. But where, exactly was the line between them? And darn that Ginzburg: He was the wild hair in the formula and for some on the court, his conviction didn’t go down so easily.

The case that pushed the concept of literature to a new level in America involved yet another Grove Press edition, this time of William Burrough’s very strange and difficult book Naked Lunch.

Naked Lunch is a nightmarish plunge into the world of a boundary-pushing gay junkie. It is unlike typical novels in that it has no apparent structure, and in fact was created by cutting and pasting bits and pieces of writing. Many readers find it almost impossible to read, because while it is sometimes very funny, it is also by turns ugly, tedious and annoying. It is a challenge.

This brief excerpt is from the section called “Hassan’s Rumpus Room.”

Gilt and red plush. Rococo bar backed by pink shell. The air is cloyed with a sweet evil substance like decayed honey. Men and women in evening dress sip pousse-cafés through alabaster tubes. A Near East Mugwump sits naked on a bar stool covered in pink silk. He licks warm honey from a crystal goblet with a long black tongue. His genitals are perfectly formed — circumcised cock, black shiny pubic hairs. His lips are think and purple-blue like the lips of a penis, his eyes blank with insect calm. The Mugwump has no liver, maintaining himself exclusive on sweets. Mugwump push a slender blond youth to a couch and strip him expertly.

“Stand up and turn around," he orders in telepathic pictographs. He ties the boy’s hands behind him with a red silk cord. ‘Tonight we make it all the way."

"No, no" screams the boy.

“Yes, yes."

Cocks ejaculate in silent "yes.” Mugwump part silk curtains, reveal a teak wood gallows against lighted screen of red flint. Gallows is on a dais of Aztec mosaics.

The boy crumples to his knees with a long "OOOOOOOH," shitting and pissing in terror. He feels the shit warm between his thighs. A great wave of hot blood swells his lips and throat. His body contracts into a foetal position and sperm spurts hot into his face. The Mugwump dips hot perfumed water from alabaster bowl, pensively washes the boy’s ass and cock, drying him with a soft blue towel. A warm wind plays over the boys body and the hairs float free. The Mugwump puts a hand under the boy’s chest and pulls him up the steps and under the noose. He stands in front of the boy holding the noose in both hands.

The boy looks into Mugwump eyes blank as obsidian mirrors, pools of black blood, glory holes in a toilet wall closing on the Last Erection.

An old garbage collector, face fine and yellow as Chinese ivory, blows The Blast on his dented brass horn, wakes the Spanish pimp with a hard-on. Whore staggers out through dust and shit and litter of dead kittens, carrying bales of aborted foetuses, broken condoms, bloody Kotex, shit wrapped in bright color comics.

A vast still harbor of iridescent water. Deserted gas well flares on the smoky horizon. Stink of oil and sewage. Sick sharks swim through the black water, belch sulphur from rotting livers, ignore a bloody, broken Icarus. Naked Mr. America, burning frantic with self bone love, screams out: “My asshole confounds the Louvre! I fart ambrosia and shit pure gold turds! My cock spurts soft diamonds in the morning sunlight!” He plummets from the eyeless lighthouse, kissing and jacking off in face of the black mirror, glides oblique down with cryptic condoms and mosaic of a thousand newspapers through a drowned city of red brick to settle in black mud with tin cans and beer bottles, gangsters in concrete, pistols pounded flat and meaningless to avoid short-arm inspection of prurient ballistic experts. He waits the slow striptease of erosion with fossil lions.


Grove Press set about publishing Naked Lunch in 1959. But once he had copies printed, Barney Rosset put them in a warehouse until 1963, when he decided time was right for putting this particular book out. The case resulted from a bust in Boston. It reached the Massachussets Supreme Judical Court in 1966. Grove’s trial strategy was simply to show that the book had undeniable “social importance.”

It was to be a test of the Brennan Doctrine based on a book that had something to offend everyone. Edward de Grazia used his literary big guns to defend the book: novelist Norman Mailer and poets Allen Ginsberg and John Ciardi as well as others, were called to testify on the book’s value. The Boston trial judge didn’t buy it, but the appeal to the Massachusetts Supreme Judicial Court on the basis of social importance got a reversal. Naked Lunch was thus the last undisputed work of literature censored by the United States Post Office, Customs or state government.

And if Naked Lunch was literature, who then could say what was not?

The case that really threw open the flood gates came in 1967. It was Redrup v. New York. Robert Redrup was a Times Square newsstand clerk who sold two pulp sex novels, Lust Pool and Shame Agent to plainclothes police. He was tried and convicted in 1965. The books were published by William Hamling, and he paid Redrup’s legal bills to the Supreme Court.

According to de Grazia, Hamling firmly believed that he was not selling -- as was said about his books -- “commercialized obscenity,” nor would he admit to “titillating the prurient interests of people with a weakness for such expression.” Hamling felt his books were giving people who would never have the skills to read and enjoy Ulysses or Fanny Hill or Naked Lunch what they wanted. De Grazia also says that the judicial spearhead of Redrup was Justice Potter Stewart.

It was Stewart, of course, who in an earlier case wrote the famous line about not being able to define pornography, but knowing it when he sees it. (In Jacobellis v. Ohio, Stewart wrote: “I shall not today attempt further to define the kinds of material I understand to be embraced within [the concept] ‘hardcore pornography, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.)”

In Redrup, Stewart went far beyond his established just-left-of-center postion on obscenity to the most radical of outlooks. Apparently the vote to affirm Ralph Ginzburg’s conviction was his personal wake-up call. In his Ginzburg dissent Stewart wrote:

Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or worse, in the enlightened choice of the people, free from the interference of a policeman’s intrusive thumb or a judge’s heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than of elegance. A book worthless to me may convey something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself.


Powerful words and stunningly accurate. Stewart’s arguments were persuasive enough to convince the court to reverse Redrup’s conviction by 7-2. This was the decision by the United States Supreme Court to affirm that consenting adults in the U.S. ought to be constitutionally entitled to acquire and read any publication that they wish -- including concededly obscene or pornographic ones -- without governmental intereference.

Under this guiding principle, the Supreme Court systematically and summarily reversed without further opinion scores of obscenity rulings involving paperback sex books, girlie magazines and peep shows. Redrup became a descriptive term. To Redrup a case meant to dissmiss it out of hand.

This practice lasted until 1973, when Justice Byron White changed sides to join the emerging new conservative majority in the Warren Burger-led court.

Copyright 2007
All rights reserved

Next: Warren Burger Puts His Finger in the Dyke

Labels: unbanning books

UN-BANNING BOOKS
How the courts of the United States came to extend
First Amendment guarantees to include pornography.



By Jack Hafferkamp


The next major case did not occur until the 1950s at the tail end of America’s McCarthy era. At that time the Motion Picture Code still applied to films and local censor boards could stop circulation of any book they chose.

Samuel Roth was a New York writer and publisher who had gotten into trouble in the 1930s selling Ulysses, among other books. In 1955, Roth was indicted for distributing magazines titled American Aphrodite, Photo and Body and Good Times. He was prosecuted in New York under the Comstock Act, and the U.S. Supreme Court upheld his conviction for sending obscene materials through the mails. But in reaching that decision in 1957, the court’s majority opinion further changed the American standard for obscenity.



In Roth v. U.S. the Supreme Court spoke directly to the question of whether literature dealing with sex was meant to be protected by the First Amendment. The majority opinion, written by Justice William J. Brennan, Jr., with a look over its shoulder at Ulysses, concluded that obscenity was not protected by the First Amendment, but literature was. Brennan, who retired from the court in 1990, passed in 1997.

At the time it was issued, Brennan’s Roth decision was widely accepted as giving constitutional approval to the established law of obscenity. But in the hands of some very skillful First Amendment lawyers, especially Edward de Grazia and Charles Rembar, the Roth case provided the wedge for opening up the definition of obscenity and extending First Amendment protections.

The door was pushed open farther in 1960, over the U.S. Postal Ban on D.H. Lawrence’s Lady Chatterley’s Lover, which had been published by Grove Press. This case did not have to go as far as the U.S. Supreme Court to make impact.

In case you don’t know the book, Lady Chatterley’s Lover was Lawrence’s last novel. It revolves around Lawrence’s belief that men and women must overcome the deadening squeeze of industrialized society and follow their natural instincts to passionate love. Lady Chatterley is unhappily married to a wealthy but paralyzed landowner. She turns to Mellors, her husband’s groundskeeper and a symbol of natural man, to find passionate love, which Lawrence describes in a literal, photographic fashion -- albeit often in difficult reading dialect:

Then he woke up and looked at the light. The curtains were drawn. He listened to the loud wild calling of blackbirds and thrushes in the wood. It would be a brilliant morning, about half-past five, his hour for rising. He had slept so fast! It was such a new day! The woman was still curled asleep and tender. His hand moved on her, and she opened her blue wondering eyes, smiling unconsciously into his face.

“Are you awake?” she said to him.

He was looking into her eyes. He smiled, and kissed her. And suddenly she roused and sat up.

“Fancy that I am here” she said.

She looked round the whitewashed little bedroom with its sloping ceiling and gable window where the white curtains were closed. The room was bare save for a little yellow-painted chest of drawers, and a chair: and the smallish white bed in which she lay.

“Fancy that we are here!” she said, looking down at him. He was lying watching her, stroking her breasts with his fingers, under the thin night-dress. When he was warm and smoothed out, he looked young and handsome. His eyes could look so warm. And she was fresh and young like a flower.

“I want to take this off!” he said, gathering the thin batiste night-dress and pulling it over her head. She sat there with bare shoulders and longish breasts faintly golden. He loved to make her breasts swing softly, like bells.

“You must take off your pyjamas too,” she said.

“Eh nay!”

“Yes! Yes!” she commanded.

And he took off his old cotton pyjama-jacket and pushed down the trousers. Save for his hands and wrists and face and neck he was white as milk, with fine slender muscular flesh. To Connie he was suddenly piercingly beautiful again, as when she had seen him that afternoon washing himself.

Gold of sunshine touched the closed white curtains. She felt it wanted to come in.

“Oh! do let’s draw the curtains! The birds are singing so! Do let the sun in,” she said.

He slipped out of bed with his back to her, naked and write and thin, and went to the window, stooping a little, drawing the curtains and looking out for a moment. The back was white and fine, the small buttocks beautiful with exquisite, delicate manliness, the back of the neck ruddy and delicate and yet strong.

There was an inward, not an outward strength in the
delicate and yet strong body.

“But you are beautiful!” she said. “So pure and fine!
Come!” She held her arms out.

He was ashamed to turn to her, because of his aroused
nakedness.

He caught his shirt off the floor, and held it to him, coming
to her.

“No!” she said, still holding out her beautiful slim arms from her drooping breasts. “Let me see you!”

He dropped the shirt and stood still, looking towards her. The sun through the low window sent a beam that lit up his thighs and slim belly, and the erect phallus rising darkish and hot-looking from the little cloud of vivid gold-red hair.

She was startled and afraid.

“How strange!” she said slowly. “How strange he stands there! So big! and so dark and cocksure! Is he like that?”

The man looked down the front of his slender white body, and laughed. Between the slim breasts the hair was dark, almost black. But at the root of the belly, where the phallus rose thick and arching, it was gold-red, vivid in a little cloud.

“So proud!” she murmured, uneasy. “And so lordly! Now I know why men are so overbearing. But he's lovely, really. Like another being! A bit terrifying But lovely really! And he comes to me!-” She caught her lower lip between her teeth, in fear and excitement.

The man looked down in silence at his tense phallus, that did not change.-”Ay!” lie said at last, in a little voice. “Ay ma lad! Tha'rt theer right enough. Yi, tha mun rear thy head! Theer on thy own, eh? an ta’es no count o’ nob’dy! Tha ma’es nowt o' me, John Thomas. Art boss? of me? Eh well, tha’rt more cocky than me, an’ tha says less. John Thomas! Dost want her? Dost want my lady Jane? Tha’s dipped me in again, tha hast. Ay, an’ tha comes up smilin’.-Ax ‘er then! Ax ladv Jane! Say: Lift up your heads o’ ye gates, that the king of glory may come in. Ay, th’ cheek on thee! Cunt, that's what tha’rt after. Tell lady Jane tha wants cunt. John Thomas, an’ th’ cunt o’ Lady Jane!-”

“Oh, don’t tease him,” said Connie, crawling on her knees on the bed towards him and putting her arms round his white slender loins, and drawing him to her so that her banging, swinging breasts touched the tip of the stirring, erect phallus, and caught the drop of moisture. She held the man fast.

“Lie down!” he said. “Lie down! Let me come!”

He was in a hurry now. And afterwards, when they bad been quite still, the woman had to uncover the man again, to look at the mystery of the phallus.

“And now he's tiny, and soft like a little bud of life!” she
said, taking the soft small penis in her hand. “Isn’t he somehow lovely! so on his own, so strange! And so innocent! And he comes so far into me! You must never insult him, you know. He's mine too. He's not only yours. He's mine! And so lovely and innocent!” And she held the penis soft in her hand.

He laughed.

“Blest be the tie that binds our hearts in kindred love,” he said.
“Of course!” she said. “Even when he's soft and little I feel my heart simply tied to him. And how lovely your hair is here! quite quite different!”

“That's John Thomas' hair, not mine!” he said.

“John Thomas! John Thomas!” and she quickly kissed the soft penis, that was beginning to stir again.

“Ay!” said the man, stretching his body almost painfully.
“He’s got his root in my soul, has that gentleman! An’ some-
times I don’t know what ter do wi’ him. Ay, he's got a will
of his own, an’ it's hard to suit him. Yet I wouldn’t have him
killed.”

“No wonder men have always been afraid of him!” she
said. “He's rather terrible.”

The quiver was going through the man’s body, as the
stream of consciousness again changed its direction, turning
downwards. And be was helpless, as the penis in slow soft
undulations filled and surged and rose up, and grew hard,
standing there hard and overweening, in its curious towering
fashion. The woman too trembled a little as she watched.

“There! Take him then! He’s thine,” said the man.

And she quivered, and her own mind melted out. Sharp soft waves of unspeakable pleasure washed over her as he entered her, and started the curious molten thrilling that spread and spread till she was carried away with the last,
blind flush of extremity.


The publisher of the American edition of Lady Chatterley’s Lover was Grove Press, owned by Barney Rosset. Postal authorities seized Rosset’s edition under the Comstock Act. Rosset’s attorney, Charles Rembar, argued in federal district court that the book deserves First Amendment protections for two reasons:

1) It has literary merit.
2) There is a distinction between prurience and a “normal sexual interest.” Rembar argued successfully that the book dealt in a normal, healthy sexual interest, which was not at all the same as a sick or morbid prurient interest.

And Lady Chatterley then paved the way for the really big case that started in 1961 involving Henry Miller’s autobiographical novel Tropic of Cancer.

Miller’s style in Tropic of Cancer and his other best known works is explicit but not erotic. The book is offhandedly funny, crude, rude and perceptive. It offers a mirror-like insight into the bohemian life of Paris in the 1930s. It is definitely worth reading again if you haven't in a while -- if for no other reason to see just how politically incorrect it is.

Born on Manhattan, of German-immigrant parents, Miller (1891-1980) grew up precocious in Brooklyn. Leaving college after two years, he went to work in a cement company. By 1920 he was employment manager for New York’s Western Union office. In 1930, after operating a Greenwich Village speakeasy, he left for France, where he transformed himself into Henry Miller, the bohemian writer. Miller lived in France for only nine years, but they were rich in ferment. In that time he published three books that made his reputation: Tropic of Cancer (1934) Black Spring (1936) and Tropic of Capricorn (1939). Miller returned to the U.S. at the end of the decade and lived the rest of his long life here. He wrote voluminously, published a large number books about many things, all of which were plainly autobiographical.


Miller’s style in Tropic of Cancer, Tropic of Capricorn and other novels is explicit as well as perceptive, insightful and often crudely funny. But it is not exactly erotic. In the preface to Tropic of Cancer Anaïs Nin, herself a pioneer of women-written erotic, described Tropic of Cancer in these terms:

…In the anaesthesia produced by self-knowledge, life is passing, art is passing, slipping from us: we are drifting with time and our fight is with the shadows. We need a blood transfusion.

And it is blood and flesh which are here given us. Drink, food, laughter, desire, passion, curiosity, the simple realities which nourish the roots of our highest and vaguest creations. The superstructue is lopped away. This book brings with it a wind that blows down the dead and hollow trees whose roots are withered and lost in the barren soil of our times. This book goes to the roots and digs under, digs for the subterranean springs.

When it was published in the United States in 1961 Life Magazine said “Tropic will be defended by critics as an explosive, corrosive Whitmanesque masterpiece (which it is) and attacked as an unbridled obscenity (which it is).” This brief excerpt puts Miller’s style on clear display:

Toward dawn we’re sitting on the terrasse of the Dôme. We’re forgotten about poor Peckover [a character who has just died] long ago. We’ve had a little excitement at the Bal Nègre and Joe’s mind has slipped back to the eternal preoccupation: cunt. It’s at this hour, when his night off is almost concluded, that his restlessness mounts to a fever pitch. He thinks of the women he passed up earlier in the evening and of the steady ones he might have had for the asking, if it weren’t that he was fed up with them. He is reminded inevitably of his Georgia cunt — she’s been hounding him lately, begging him to take her in, at least until she can find herself a job. “I don’t mind giving her a feed once in a while,’’ he says, “but I couldn’t take her on as a steady thing. . . she’d ruin it for my other cunts.” What gripes him most about her is that she doesn’t put on any flesh.” It’s like taking a skeleton to bed with you,” he says. “The other night I took her on — out of pity — and what do you think the crazy bitch had done to herself? She had shaved it clean. . . not a speck of hair on it. Did you ever have a woman who shaved her twat? It’s repulsive, ain’t it? And it’s funny, too. Sort of mad like. It doesn’t look like a twat any more: it’s like a dead clam or something.” He describes to me how, his curiosity aroused, he got out of bed and searched for his flashlight. “I made her hold it open and I trained a flashlight on it. You should have seen me. . . it was comical. I got so worked up about it that I forgot all about her. I never in my life looked at a cunt so seriously, You’d imagine I’d never seen one before. And the more I looked at it the less interesting it became. It only goes to show you there’s nothing to it after all, especially when it’s shaved. It’s the hair that makes it mysterious. That’s why a statue leaves you cold. Only once I saw a real cunt on a statue — that was by Rodin. You ought to see it some time. . . she has her legs spread wide apart. . . . I don’t think there was any head on it. Just a cunt you might say. Jesus, it looked ghastly. The thing is this — they all look alike. When you look at them with their clothes on you imagine all sorts of things: you give them an individuality like, which they haven’t got, of course. There’s just a crack there between the legs and you get all steamed up about it — you don’t even look at it half the time. You know it’s there and all you think about is getting your ramrod inside; it’s as though your penis did the thinking for you. It’s an illusion! You get all burned up about nothing. . . about a crack with hair on it, or without hair. It’s so absolutely meaningless that it fascinated me to look at it. I must have studied it for ten minutes or more. When you look at it that way, sort of detached like, you get funny notions in your head. All that mystery about sex and then you discover that it’s nothing — just a blank. Wouldn’t it be funny if you found a harmonica inside. . . or a calendar? But there’s nothing there. . . nothing at all. It’s disgusting. It almost drove me mad. . . . Listen, do you know what I did after-wards? I gave her a quick lay and then I turned my back on her. Yeah, I picked up a book and I read. You can get something out of a book, even a bad book. . . but a cunt, it’s just sheer loss of time. . .24

It was Barney Rosset’s Grove Press that published the first above-ground American edition of Tropic of Cancer, along with Lady Chatterley’s Lover, Naked Lunch, The Story of O and, really, a store full of books that grabbed America’s attention. If there is a single hero in the history of unbanning books in America, it probably is Barney Rosset. He was determined to end censorship in America and he pretty much got what he wanted.

Rosset bought Grove Press for $3,000 after the end of World War II. In the 1950s he turned it America’s most exciting publishing house. He brought the European avant-garde to America: Samuel Beckett, Jean Genet, Marguerite Duras, and Alain Robbe-Grillet. He also published Jack Kerouac and Allen Ginsberg.

In the 1960s Rosset shifted to the work of the “Anglo-American sex radicals,” including D.H. Lawrence, Henry Miller, John Rechy, William Burroughs, and third-world political radicals, including Frantz Fanon, Che Guevara and Malcolm X. Grove Press still exists, but Barney Rosset is no longer associated. A few years ago, in a money squeeze, he was forced out. Rosset now operates Blue Moon Books.

Rosset very consciously chose Lady Chatterley’s Lover as his first tool for tackling American censorship. Its success emboldened him to take another step. His next case involved Tropic of Cancer, which, Grove Published in 1961, the year after litigation on Lady Chatterley’s Lover ended.

Interestingly wasn’t the hardback version of the Tropic of Cancer that caused problems; it was the paperback edition, starting in Chicago and suburbs, where the hardcover had been selling peacefully for some while. The problem, as the censors saw it, was that because paperbacks are cheap and sold in drug and small variety stores they are more “available” to minors, and therefore should be suppressed. This reasoning is pure Hicklin (See installment one.)

Eventually there were cases against the book all over the country, perhaps 60 or so in all, and there was much jockeying for position among attorneys concerning whose case would find its way to the U.S. Supreme Court. It wound up being the Florida case, and the lead attorney was Edward de Grazia. The case, settled in 1964, is known as Grove Press, inc. v. Gerstein.

At the time, the United States Supreme Court had a decided liberal majority, including Justice Brennan Jr., Hugo Black, William O. Douglas, Arthur Goldberg, and Potter Stewart and Chief Justice Earl Warren. The Tropic of Cancer case wasn’t the only case dealing with obscenity on the court’s docket in that year, and it was joined with a case against The Lovers, a film by the late Louis Malle, starring Jeanne Moreau.


Given the court’s composition, de Grazia’s strategy for freeing Tropic of Cancer and The Lovers was to convince the court that valued cultural expression is at least as important as a work’s sexual content for determining if it deserves First Amendment protection. In his petition to the court de Grazia wrote “regardless of its ‘prurient appeal’ or ‘patent offensiveness,’ Tropic of Cancer has obvious literary and social importance, which entitle it to full [First Amendment] protection.”

According de Grazia, the pivotal figure in the United States Supreme Court’s landmark Tropic of Cancer decision was Justice Brennan. His opinion elucidated what de Grazia calls the “Brennan Doctrine.” It essentially turned established notions of American book banning on their head, accepting de Grazia’s argument that instead of banning books because they have things in them that offend some people, no book should be banned unless it is utterly without value.

The key word in Brennan’s opinion was “utterly.” In Brennan’s view obscenity did not enjoy First Amendment protections, but only work “utterly without social importance” could be branded obscene.


Copyright 2007
All rights reserved

Next month: The Brennan Doctrine