Crime and Punishment in American History - Lawrence M. Friedman [223]
Obscenity and Pornography
How much control should law and authorities exercise over obscenity and pornography—that is, over “dirty” books, pictures, and language? This is another old and thorny issue. It has a rather convoluted history, but, on the whole, twentieth-century law has followed one pretty clear trajectory: the law has gotten less and less harsh, more and more permissive. First soft core and then hard core have come leering out of the closet. But there have been countermovements, and a backlash—some of it from a fairly unexpected source.
In the nineteenth century, it was taken for granted that states and cities could put pornography under the ban and punish people who made it or sold it. What passed for obscene or pornographic was a far cry from what would pass as such today. Works were banned that would not bring a blush to the cheek of the most delicate plant in our times. There were, in fact, few decided cases, perhaps because pornography, though common enough, hardly dared show its face in public. Pornography was strictly underground. Like bodies, it was best kept under wraps. cr
Victorian prudery and modesty made it impossible to discuss or portray many serious social issues. Literary quality or high purpose did not protect a book or play if it was “offensive.” In 1905, George Bernard Shaw’s play Mrs. Warren’s Profession was banned in New Haven. When the play opened in New York, the police commissioner bought himself a box seat. After the curtain fell, he arrested the producer, the manager, and two actresses. In this instance, prudery lost its case; the New York Court of Special Sessions acquitted the defendants. The play, the court thought, was simply not obscene.122cs
James Joyce’s Ulysses was the subject of a landmark decision in 1933. Random House wanted to publish an American edition of this twentieth-century masterpiece, but Joyce was pretty strong medicine for the delicate sensibilities of official America. The publisher tested the waters by importing a copy, which was seized by customs; the issue of obscenity was then tried in a federal court in New York. Judge John M. Woolsey gave the novel a clean bill of (legal) health. The book contained words generally considered “dirty words” and had graphic descriptions of sex. But it was not written with “the leer of the sensualist,” and it had no “dirt for dirt’s sake.”124 The Court of Appeals affirmed this decision.ct
The Ulysses case was ahead of its time. The smut police were still in the saddle in Massachusetts. In 1930, the Supreme Judicial Court of Massachusetts upheld the conviction of a bookseller in Cambridge who sold a copy of Lady Chatterley’s Lover to an investigator from the Watch and Ward Society.125 At least Lady Chatterley was a shocker in its day. What, however, can be said about the conviction—same court, same year—of one Friede?126 Friede had sold a book to Daniel J. Hines, a lieutenant of the Boston Police Department (we can only guess at his literary tastes), which was “obscene” and “indecent” and might corrupt the young. The book in question was Theodore Dreiser’s An American Tragedy, a novel that would be rated, today, PG at worst. Until the thirties, the U.S. Customs Department, ever vigilant, banned works by such pornographers as Aristophanes, Balzac, Defoe (Moll Flanders and Roxana), Flaubert, and Voltaire (Candide).127
The venerable First Amendment protects freedom of speech.cu It does not protect “obscenity,” but where should we draw the line? In fact, until well into the twentieth century, there was very little decisional law on this question. No case reached the Supreme Court before the end of the Second World War.
In fact, there was no definite ruling on obscenity until 1957, in Roth v. United States.128cv Defendant Roth had been convicted