The Use and Abuse of Literature - Marjorie Garber [49]
But if The Well of Loneliness was not obscene, did that make it literature? It has been much reprinted and has sold well; it is often taught in courses on sexuality, lesbian and gay theory, and feminism. Few critics have spoken up in admiration of its style, which is often regarded as overwrought and sentimental. The use of obscene works had been roundly decried: such works, it was said, provoked lustful thoughts, and lustful actions, and were “intended” by the authors to produce such thoughts and actions. What should we say about the use a work like The Well, which inspired identification, solidarity, strong and varied emotional responses, and political and social debate? The publicity that the trials brought to the book increased its visibility and its sales, to the pleasure of some and the dismay of others. Its celebrity, and its subsequent place in a historical canon of lesbian and gay writing, came about as a result of a kind of publicity we might want to call extra-literary, or nonliterary. But the publicity was inextricably tied to a debate about whether it was a literary treatment or some other kind of writing.
Moreover, the view that The Well addressed a “delicate social problem” comes close to the notion of “redeeming social value,” which was laid down in the 1957 case of Roth v. United States (354 U.S., 476) as the limit standard for obscenity: “[a] book cannot be proscribed unless it is found to be utterly without redeeming social value.” The conditions attached were two: the book had to be considered in its entirety rather than by particular parts; and it had to be judged according to contemporary community standards, the anticipated response of the average person. In a later case, Jacobellis v. Ohio (378 U.S. 184, 191, 194), Justice Brennan altered the phrase to “utterly without redeeming social importance.” Whether there is a significant difference between “value” and “importance,” legally speaking, is not unambiguously clear.31 But what is clear is that when jurists and literary scholars go head to head in a courtroom—even, or especially, a Supreme Court room—a great deal depends upon the literary standards of the judge.
Supreme Court Justice Tom Clark, dissenting in the decision on John Cleland’s eighteenth-century Memoirs of a Woman of Pleasure (usually known as Fanny Hill), found literary scholars’ testimony about “the book’s alleged social value” unconvincing, to say the least. He offered, with “regret,” a summary of the book’s plot, beginning, “Memoirs is nothing more than a series of minutely and vividly described sexual episodes.” To the first expert witness’s testimony that the book “is a work of art” and “asks for and receives a literary response,” he countered with a flat statement of denial: “If a book of art is one that asks for and receives a literary response, Memoirs is no work of art. The sole response evoked by the book is sensual.” Whether reviews spoke in favor of the novelist’s writing style (“literary grace”), the history of the novel as a form, or the heroine’s “enthusiasm for an activity that is, after all, only human,” Clark dismissed their arguments as worthless: “The short answer to such ‘expertise’ is that none of these so-called attributes have any value to society. On the contrary, they accentuate the prurient appeal.”32 Despite the facts that Clark’s opinion was a dissent and that Fanny Hill went on to have a successful commercial career (including films and a spinoff novel by Erica Jong), his views underscore the problem of calibrating “value to society” in terms of “literary merit”—especially when “literary experts” are rejected as lacking any substantive grounds for their expertise.
This was precisely the issue addressed by Justices Harlan and Douglas in their opinions in Memoirs v. Massachusetts, the case that addressed the status of Cleland’s novel. Justice Harlan wrote, “To establish social value in the present