Obscenity Rules

Roth v. United States and the Long Struggle over Sexual Expression

Whitney Strub

• Publisher: University Press of Kansas
• Year: 2014
• Print ISBN: 9780700619375, 9780700619368
• eBook ISBN: 9780700619757
• Topic: Law
• Subtopic: Legal History
• Index: Law

For some, he was “America’s leading smut king,” hauled into court repeatedly over thirty years for peddling obscene publications through the mail. But when Samuel Roth appealed a 1956 conviction, he forced the Supreme Court to finally come to grips with a problem that had plagued both American society and constitutional law for longer than he had been in business. For while the facts of Roth v. United States were unexceptional, its constitutional issues would define the relationship of obscenity to the First Amendment.

The Supreme Court’s 6–3 decision in Roth for the first time tried to definitively rule on the issue of obscenity in American life and law—and failed. In this first book-length examination of the case, Whitney Strub lays out the history of obscenity’s meaning as a legal concept, highlights the influence of antivice crusaders like Anthony Comstock and John Sumner, and chronicles the shadowy career that led Roth to spend nearly a decade of his life imprisoned for the allegedly obscene materials that he sent through the mails. Strub then unwraps the events that produced Roth v. United States, placing the trial in the context of its times—the Kinsey Reports, the Kefauver hearings, free speech debates—by using Roth’s own private papers along with the records of the various prosecutions and the memos of the justices.

The significance of Roth, as Strub reveals, lay in the two faces of Justice William Brennan’s majority opinion—which on the one hand reflected the liberalizing attitude toward sexual matters in mid-century America, but on the other kept “obscene” expressions beyond First Amendment protection. Because that ruling points up the contradictions of a society where the prurient and repressive commingle uncomfortably, Strub shows how Roth says much more about American sexual values than Brennan’s written words necessarily acknowledged.

In our era of internet pornography and Fifty Shades of Grey, it may be difficult to imagine a time when obscenity was a matter for the courts. As Strub tracks the legacy of Roth and obscenity law through the ongoing policing of acceptable sexuality into the twenty-first century, his riveting narrative brings those times to life and helps readers navigate the fine line between what is socially acceptable and what is criminally obscene.

CHAPTER 1

Toward Obscenity

Legal Evolution from Colonies to Comstock

When Justice William Brennan, writing for the majority in Roth v. United States, excluded obscenity from the protections afforded by the First Amendment, he strove to ground that outcome in the broader currents of American history. Brennan argued that the Court in 1957 was simply making manifest a status already implicit in the legal record, not carving out a new exception to free expression. Much of Brennan’s argument hinged on his assertion that “the unconditional phrasing of the First Amendment was not intended to protect every utterance” and that obscenity had never been understood as a part of the “unfettered interchange of ideas” undergirding freedoms of speech or press.

This historical trajectory played a central role in Brennan’s analysis. Yet Brennan’s exposition proved remarkably thin. Other justices sometimes delivered major opinions on matters ranging from labor law to interstate commerce regulation in the form of miniature monographs, dense and extensive in their attention to detail. Brennan’s survey of history in Roth occupied a mere few paragraphs.

Leaping from a 1712 Massachusetts law to the Continental Congress and from there to the 1860s, Brennan’s opinion lacked any sense of historical context or social change over time. Its blunt, broad brushstrokes did not, however, err on the core idea: nowhere in the mainstream currents of American legal, political, or cultural thought had free speech ever been absolute, or obscenity ever acceptable. From the preconstitutional social regulation of blasphemy, to the early republic’s effortless absorption of obscenity into the common law, and on into the gradual state-level passage of obscenity statutes in the mid-nineteenth century, obscenity had never joined other forms of expression in the imagined marketplace of ideas.

The 1873 Comstock Act began to craft a piecemeal legal regime into something moving toward cohesion. Its passage, though, marked not the beginning but simply the clarification and expansion of obscenity regulation in the United States. Much would change by the time Brennan and the Court upheld its legal structure, but the continuity he saw running from the colonies to the Eisenhower years was not a complete fabrication.

Blasphemous Origins

The evolution of the colonies into states had witnessed very little concern over possible tension between protecting freedom of speech while prohibiting profanity or blasphemy (understood, broadly, as a defamation of religion). Of the fourteen states to ratify the Constitution by 1792, ten guaranteed freedom of speech, with the 1776 Virginia Declaration of Rights leading the way. In strong language, it called freedom of the press “one of the great bulwarks of liberty,” which could “never be restrained but by despotick governments.” Phrasing among the other states varied, but the theme remained consistent. Yet these broad declarations of liberty coexisted with restrictions. Most participants in these discussions understood the celebrated freedoms to pertain primarily to political speech—and assumed that category as self-evident rather than carefully defining it. Civil actions against slander (purely verbal expression) or libel (written), for instance, were nowhere regarded as infringing on free speech. As Brennan later observed, thirteen of those first fourteen states also made blasphemy or profanity statutory crimes. He linked this to obscenity, showing that a 1712 Massachusetts law had criminalized the publishing of “any filthy, obscene, or profane song, pamphlet, libel, or mock sermon.”

But Massachusetts was the only colony to specifically criminalize obscenity. In part, this reflected the simple fact that social concern over obscenity remained minimal among the colonies. Between the virtual nonexistence of the domestic press and the scarcity of foreign texts, the circulation of obscene materials posed little social threat. Even the Massachusetts law mentioned obscenity only in passing, positioning it as merely one corollary form of blaspheming the church through sexualized means. The colonies had imported a hodgepodge assemblage of English common law (law based on the judicial precedents of court decisions, as opposed to the statutory law passed by legislatures), which only in 1727 formally articulated obscenity as a criminal offense, in the case of Regina v. Curll.

Technically, obscenity constituted a libel. As a civil offense, libel consisted of defamatory statements about an individual. When such defamation targeted monarch or deity, however, it became criminal—seditious libel or blasphemous libel, respectively. Obscene libel presented a third variant, and Curll defined the damage inflicted more broadly, as against civil society or the public at large (though the book in question, Venus in Her Cloister, or, the Nun in Her Smock, was directed specifically against Catholicism). Since obscenity was presumed to undermine the public sphere by short-circuiting its dialogue with lowest-common-denominator discourse, obscene libel could easily be understood in secular terms.

The ripples of Curll crossed the Atlantic rather faintly. As the colonies developed increasing resistance to their subordinate status, free expression took on new importance. Escalating resentment of a corrupt colonial governor led a New York jury to nullify seditious libel charges against printer John Peter Zenger in 1735, striking a bold precedent for freedom of the press and weakening the value of seditious libel charges as a means of suppressing dissent. Blasphemy remained actionable, but secularization and the general decline of moral policing in the eighteenth century gave it less salience than it once had. Massachusetts began punishing the technically capital crime with mere floggings, and the more lax Virginia pursued not one prosecution in the entire century.

In this context, the American common law quietly absorbed obscene libel without much immediate use for it. When sexual regulation took place, it was more likely against actions than texts, in the form of charges such as lascivious conduct. Sexually themed literature, including sordid anti-Catholic tales and the folk knowledge of Aristotle’s Masterpiece, which provided the closest thing to sex education available to many eighteenth-century Americans, circulated freely. Most of it was imported from Europe, as the American press remained in its infancy.

As resistance to British rule ushered in revolution and independence, the new nation celebrated freedom of speech and the press as core values, enshrined in the First Amendment to the Constitution. “Congress shall make no law,” it declared, “abridging the freedom of speech, or of the press.” Yet this rhetorical embrace never amounted to absolute freedom, and in the fraught political situation of the 1790s, even seditious libel was reinstated by an Adams administration eager to quash dissenting voices. Nearly twenty indictments, and almost a dozen convictions, resulted from the 1798 Sedition Act, all against opponents of Adams’s Federalist administration, including even a Vermont congressman, who was reelected while imprisoned.

Reconciling the Sedition Act with the First Amendment required careful—some, such as Thomas Jefferson, would have said twisted—parsing of the constitutional language to read abridgment of the press as merely a prior restraint on publication. That is, Congress could not prevent publications, but, supporters of the Sedition Act claimed, it could punish publishers for what they had printed if the expressions were deemed actionable. The matter never reached the Supreme Court for clarification, with the Sedition Act expiring in 1801. Meanwhile, even Jefferson himself, once elected president in 1800, allowed seditious libel charges (now against Federalists), as long as they happened through state laws, which posed no First Amendment issues since they were not enacted by the national Congress. In the years of the new nation, it remained unclear whether the First Amendment granted an affirmative right to expression, or simply freedom from prior restraint.

While the Sedition Act reflected the precarious nature of free speech in the early republic, the federal government showed little interest in moral regulation of the cultural or sexual variety, which it left to states and towns. Even in the face of a vociferous Sabbatarian movement in the 1820s demanding the closing of post offices on Sunday, the federal government refused to act, and without any comparable movement against obscenity, no national legislation regarding it emerged during the first half century of the United States. Indeed, while moral regulation was taken for granted at the state and local levels, no conception of a federal police power that might serve that purpose existed. Blasphemy, while rarely punished, remained on the books and would continue to play a structuring role as obscenity formally entered the legal sphere in the 1810s and ’20s.

Two of the more prominent blasphemy cases of the period reflect the influence it would carry. In 1811, when John Ruggles declared, “Jesus Christ was a bastard, and his mother must be a whore,” he inspired a trial that clarified New York’s blasphemy law. Chancellor James Kent, as the highest judge of the state was known, did not hesitate to call the United States a Christian nation in his opinion, but carefully grounded his affirmation of Ruggles’s conviction in secular logic, calling his statement a form of “licentiousness” that “tends to corrupt the morals of the people, and to destroy good order.” Distinguishing such prosecutions from “any religious establishment or the rights of the church,” Kent emphasized instead the “essential interests of civil society.” In comparing Ruggles’s words to other “things which corrupt moral sentiment, as obscene actions, prints and writings, and even gross instances of seduction,” Kent concluded that such expressions were legitimately criminalized “because they strike at the root of moral obligation, and weaken the security of the social ties.” The Pennsylvania Supreme Court agreed in another 1824 blasphemy case, finding in a public debate over the truth of the Bible “a nursery of vice, a school of preparation to qualify young men for the gallows, and young women for the brothel.”

This leap in logic from debate club to brothel collapsed religious transgression into political and sexual transgression. The slippage was perfectly legible in the early republic, where belief in liberty balanced precariously against anxiety over licentiousness. As capitalism, demographic change, and technological development in transportation accelerated urbanization and what historians call the “market revolution,” the resulting social transformations highlighted the symbolic meaning assigned to gender and sexuality. The American experiment in democracy and equality had always hinged on a populace possessed of moral rectitude. Only by trusting the judgment of the people could democracy properly function. Ideas of “Republican motherhood,” for instance, placed critical importance on women’s roles in bearing and raising decent citizens. Cities, with their breakdown of conventional forms of personal regulation and community surveillance, came to symbolize the dangers of licentiousness. “Confidence men” and “painted women” threatened to replace the orderly citizenry with unchecked passions that undermined democratic order.

In this context, sexual propriety played a crucial role in assuring the reproduction of the social order that nurtured democracy. Obscenity slowly entered the legal arena during this historical moment, building off the language of blasphemy while also reflecting the anxieties of the age. Philadelphia, for instance, had hosted what historian Clare Lyons calls a vibrant “pleasure culture” before the revolution, with public expressions of sexuality viewed nonchalantly. Ribald verses and arousing literature, much of it imported from England, had circulated freely in the mid-eighteenth century. Even John Cleland’s notorious 1748 novel Memoirs of a Woman of Pleasure, better known as Fanny Hill—ultimately to inspire centuries of American obscenity cases—was obliquely advertised in newspapers and catalogues by the 1760s.

With independence, however, came a new sexual conservatism that challenged such openness. By the time city officials learned of Jesse Sharpless and a group of friends charging admission to see a graphic painting of a “man in an obscene, impudent and indecent posture with a woman” in 1815, criminal charges ensued. To the local grand inquest, Sharpless and associates were guilty of “being evil-disposed persons, and designing, contriving and intending the morals, as well of youth as of divers other citizens of this commonwealth, to debauch and corrupt, and to raise and create in their minds inordinate and lustful desires,” all of which potentially destabilized the social order.

Sharpless’s attorney argued that the painting was shown only in private, and no actual statutory crime of obscenity lay on the books. Unconvinced, the Pennsylvania Supreme Court upheld the convictions. Agreeing with the attorney general that “crimes are public offences, not because they are perpetrated publicly, but because their effect is to injure the public,” the court cited Curll to locate obscenity in the common law, thus punishable even in the absence of a specific statute. Employing similar reasoning, the high court of Massachusetts likewise affirmed an obscenity conviction stemming from domestic distribution of John Cleland’s Fanny Hill. In both cases, the courts agreed that graphic description of the allegedly obscene material need not be entered into the public record, so as to avoid reproducing and disseminating the material. While neither obscenity case contained the religious components of the blasphemy cases, they followed the same logic of justifying the suppression of obscenity in the name of protecting a fragile body-politic easily upset by moral transgression, both rife with such phrases as “debauch,” “corrupt,” “scandalous,” “lustful desires,” “lewd,” and “wicked.”

By the 1820s, states had begun to write obscenity laws, transforming it from a common-law offense to a statutory one, with Connecticut, Vermont, and Massachusetts leading the way. New York, meanwhile, lacked a state law until the late 1860s, despite its urban center of gravity in New York City being responsible for approximately 40 percent of the domestic smut market. A certain permissiveness marked the city, with prostitution tacitly allowed as long as it was kept off the streets and thus only semivisible. Though a female-led moral reform movement against prostitution would develop by the 1830s, sordid literature circulated with relative impunity, with Fanny Hill available by the 1820s.

It was only with the emergence of the so-called flash press in the early 1840s that New York City authorities began to move against obscenity, still a common-law offense and a libel. New printing technology had lowered the costs of entrance to publishers, and such spectacles as the 1836 murder of the prostitute Helen Jewett had helped spawn a sensationalized penny press. The flash press consisted of a group of newspapers with names like the Whip, the Rake, and the Libertine, which employed penny-press tactics and directed them toward single young men in the city. Occupying a tenuous class position between the emerging industrial working class and the bourgeois white-collar professionals, many of these readers worked as clerks, secretaries, legal assistants, and other aspirational but not-yet-established positions. The flash press catered to their interests in gambling, boxing, cockfights, and the pursuit of sexual pleasure. Of particular irritation to the authorities were the underhanded activities of several editors in using their bully pulpits to threaten and even blackmail prominent citizens with the publications of exposés (which could be true or false). When ordinary libel charges failed to effectively stop the flash press, the district attorney turned to obscenity.

The advantage of obscenity charges, from a prosecutorial perspective, was the irrelevance of truth as a defense. The elite was hardly seen as sinless by an increasingly class-conscious public, which made it tougher to indict flash-press publishers for character assassination—which juries might find accurate. More effective were indictments based on the moral debasement of the public sphere. Obscenity charges worked: by 1843 the flash press had been largely destroyed, with many of the editors either in jail, in exile from the city, or moving on to other pursuits. Notably, while fighting the charges, the editors had used fiery rhetoric bemoaning everything from prosecutorial hypocrisy to their property rights as publishers, but freedom of speech was not a significant par...

Table of contents

• Front Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Editor’s Preface
• Acknowledgements
• Introduction
• 1. Toward Obscenity: Legal Evolution from Colonies to Comstock
• 2. Modernizing Free Speech: Politics, Sex, and the First Amendment in the Early Twentieth Century
• 3. Samuel Roth, From Art to Smut
• 4. The Absent Supreme Court: Obscenity Doctrine in the 1940s
• 5. Cold War, Hot Lust: Sexual Politics in the 1950s
• 6. Anatomy of a Case
• 7. Writing Roth: The Court Opines
• 8. The Two Roths: Liberalization, Regulation, and the Apparent Paradox of Obscenity in the 1960s
• 9. From Porno Chic to New Critiques: Conservatives, Feminists, and Backlash to Obscenity
• Epilogue: After Obscenity?
• Major Cases Cited
• Chronology
• Bibliographical Essay
• Index
• Back Cover