Introduction



Introduction

Written in 1789, the First Amendment of the U.S. Constitution declares that no law shall be made abridging the freedom of speech or the press. Despite its seemingly broad statement, the First Amendment was not a guarantee for completely free speech or press. Exceptions today come in the form of libel and slander laws as well as acts interested in protecting national security. Concerned citizens have formed organizations determined to suppress the vices of their fellow Americans throughout the country’s existence. In the late 19th Century, groups such as Boston’s Watch and Ward Society and the New York Society for the Suppression of Vice focused their aims on a variety of media they deemed obscene. Obscene art and literature, they claimed, put “vile thoughts and suggestions into the minds of the young” and was capable of “sowing the seeds of lust” (Lewis 13). But the youth wasn’t their only target for protection. The groups deemed obscene material as harmful to all members of the citizenry, and they moved to push legislature banning it. Anthony Comstock dedicated his life to leading the crusade against obscenity in the late 19th and early 20th centuries. He lobbied Congress to make it illegal for people to send or receive articles deemed obscene through the postal service, and served as a special agent of the Post Office responsible for seeking out such material: “By January 1, 1874, he bragged that under the new law [nicknamed the “Comstock laws”] he had seized 194,000 obscene pictures and photographs, 134,000 pounds of books, 14,200 stereo plates, 60,300 rubber articles (no doubt contraceptives…) 5,500 sets of playing cards, 31,150 boxes of pills (mostly ‘aphrodisiacs’)” (Ernest, Schwartz 33). This zeal for scrutiny and confiscation, later dubbed “Comstockery” by George Bernard Shaw, continued after Comstock’s death in 1915 under the guidance of John Sumner, the executive secretary of the New York Society for the Suppression of Vice. Sumner led the Society through a period of great success getting books declared obscene and therefore banned in the 1920s, but the group’s gains suffered a setback in 1933 from which it would never fully recover. That setback was laid down by Judge John M. Woosley of the Federal Court in New York City. Woosley negated claims that James Joyce’s Ulysses was obscene and set forth a precedent upon which books were to be judged as a whole rather than by questionable passages. After that ruling, it became increasingly difficult for obscenity hounds to get literary classics like Bocaccio’s Decameron banned from import or sale.

History

The First Amendment specifically stated that “Congress shall make no law,” in effect leaving censoring practice up to the states. Appealed state cases, of course, could eventually be heard by the federal Supreme Court, but the process for reaching such a venue can be long and potentially costly.

The federal government prohibited the circulation of material deemed obscene in a variety of ways, from regulations on importing to those giving the Post Office the power to confiscate obscene mail. A variety of incidents and publications helped to shape obscenity standards throughout U.S. history.

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From the beginning

Perhaps the first real case concerning obscenity was the Commonwealth of Pennsylvania vs. Sharpless and Others, decided in December 1815. In that case, the Commonwealth claimed that Jesse Sharpless of Philadelphia “unlawfully, wickedly, and scandalously did exhibit, and show for money, to persons, to the inquest aforesaid unknown, a certain lewd, wicked, scandalous, infamous, and obscene painting, representing a man in an obscene, impudent, and indecent posture with a woman, to the manifest corruption and subversion of youth, and other citizens of this commonwealth” (Ernst, Schwartz 12-13). Interestingly, the picture in question did not become part of the court record, out of “respect to the chastity of our records” (14).

The judge ruled that “there is no act punishing the offence charged against these offenders, and therefore the case must be decided upon the judge-made principles. That actions against PUBLIC DECENCY were always crimes, as tending to corrupt the public morals, I can have no doubt” (13). Sharpless and his cronies were convicted.

The first literary obscenity case in the U.S., however, involved the Scot John Cleland’s Memoirs of a Woman of Pleasure, widely known as Fanny Hill. The book had been originally published in England in 1749, but resulted in a bookseller’s imprisonment there in 1762 (Lewis 217). From then on it was circulated secretly. Peter Holmes attempted to publish the book in the U.S. but was accused in 1821 of trying to “debauch and corrupt, an to raise and create in [citizens’] minds inordinate and lustful desires, knowingly, unlawfully, wickedly, maliciously, and scandalously” (Ernst, Schwartz 16). The court also deemed Fanny Hill too obscene to be included in its records. Holmes appealed the resulting conviction on the grounds that the jury did not review the object in question. His appeal, however, was lost when Chief Judge Parker declared that “It can never be required that an obscene book and picture should be displayed upon the records of the court: which must be done, if the description in these charges is insufficient. This would be to require that the public itself should give permanency and notoriety to indecency, in order to punish it” (16).

Both the Sharpless and Fanny Hill cases were adjudicated under common law, “a body of prior judge-made decisions that serve as precedents for future cases” (17). Statutes to regulate or ban obscenity had yet to be put on the books. Vermont, Connecticut and Massachusetts added such laws in the mid 1830s. The only legislative body that could regulate international commerce, however, was the federal government, and it added to Customs Law a reference to obscene pictorial art in 1842. Section 28 read:

“And be it further enacted, That the importation of all indecent and obscene prints, paintings, lithographs, engravings, and transparencies is hereby prohibited; and no invoice or package whatever, or any part thereof, shall be admitted entry, in which any such articles are contained; and all invoices and packages whereof any such articles shall compose a part, are hereby declared to be liable to be proceeded against, seized, and forfeited, by due course of law, and the said articles shall be forewith destroyed” (20).

But who would review such matter? Whose responsibility was it to regulate that review? And what about inter-state commerce? Could the federal government regulate the contents of shipments between citizens of the U.S.? Enter Anthony Comstock.

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The Comstock years

Anthony Comstock was born in Connecticut in 1844, one of 10 children. He began his career as a dry goods clerk, but soon recognized his real passion when he witnessed his coworkers stealthily selling what he deemed to be obscene books and pictures. Comstock reported such suppliers to the police and began a lifelong crusade against vice. After poring over an 1866 survey conducted by the Young Men’s Christian Association, which mentioned young New Yorker weaknesses for gambling, prostitution and detestable periodicals and books, Comstock in 1873 launched the New York Society for the Suppression of Vice, an extension of a committee from that group (Boyer 5). Vice societies around the country sprouted, including what became Boston’s Watch and Ward Society, which helped created the meaning behind “Banned in Boston.” The societies pushed to have sellers of obscene material arrested under current statutes, but eventually found those regulations lacking.

Comstock then passionately lobbied for legislation barring the mailing of obscene matter. His efforts were rewarded with the passage of the bill, which read:

“Every obscene, lewd, lascivious, of filthy book, pamphlet, picture paper, letter, writing, print or other publication of an indecent character … is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

Whoever knowingly uses the mail for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter” (Ernst, Scwartz 32).

With the passage of the “Comstock laws,” postal authorities were the new censors, and Anthony Comstock was a new postal employee. Appointed a special agent of the Post Office, Comstock instructed postal staff on procedure and confiscated objectionable mail. By January 1, 1874, Comstock boasted of confiscating:

194,000 obscene pictures and photographs

134,000 pounds of books

14,200 stereo plates

60,300 rubber articles (likely contraceptives)

5,500 sets of playing cards

31,150 boxes of pills (likely aphrodisiacs)

(33).

Status as a literary classic did not sway him from slapping on the obscenity label. He fought Tom Jones, The Decameron, Arabian Nights and The Canterbury Tales. In an 1894 ruling, Justice O’Brien of the New York Supreme Court prophetically said after clearing the way for Tom Jones that “to condemn a standard literary work because of a few of its episodes would compel the exclusion from circulation of a very large proportion of the best classics” (NYT 6/22/1894). This was a novel declaration since the courts operated on the Hicklin model for judging obscenity. Hicklin was a case in England that determined that if any part of a work could be determined obscene, the entire piece is declared obscene. (This model persisted in the United States until the 1930s, when Judge John M. Woosley ruled on United States vs. One Book Entitled Ulysses.)

Such declarations did not stop Comstock or his colleagues from waging their battles. His counterparts in Boston continued their fight as well, claiming “as early as 1885 … that obscene books had been ‘substantially suppressed’” (Boyer 12). The Watch and Ward Society managed, through complaint, to have James R. Osgood, a publisher, cancel his contract to put forth a new edition of Walt Whitman’s Leaves of Grass (15).

Comstock died of pneumonia in 1915 at the age of 71. The New York Times seemed to connect his death to his crusade, claiming that “his illness was brought on by over-work and over-excitement, resulting from his fight to retain his position as a Post Office Inspector” (NYT 9/22/1915). The Times attributed to Comstock the “blanks [that] occur in the translated pages of ‘Zola,’ of Boccaccio, and of many modern ancient classics” and noted his fights against “lotteries, policy games, and the operations of the army of ‘green goods’ swindlers, who are now but a memory.”

Comstock may have died, but his vision did not. Succeeding him at the New York Society for the Suppression of Vice was John S. Sumner, a capable crusader. Sumner led the Society into and through the tumultuous 1920s, disputing books like D.H. Lawrence’s Women in Love. Sumner declared that his intentions to pass new censorship laws and lambasted print media of the ‘20s: “Look at the magazines. Look at their general character and listen to some of the titles in them—these so-called sex magazines: ‘Patricia’s Nightie,’ ‘Virtue’s Leave of Absence,’ ‘Playthings of Passion,’ Almost Innocent,’ ‘Wolves of Desire,’ ‘The Pink Silk Negligee’ and ‘Sex Is Trumps.’ These things are put out for one purpose, and that is to appeal to the baser passions” (NYT 11/9/1924). Headlines in the Times reflected his success: “Seize 772 Books In Vice Crusade Raid” (7/12/1922) and “Seize 3,000 Books As Indecent Writing” (10/5/1929). He took his battle to the New York stage as well, taking aim at indecent plays. His group enjoyed much success during the ‘20s. It was not until 1933 that the vice societies felt substantial governmental backlash, and the seeds for that battle were laid in 1918.

Margaret Anderson and Jane Heap edited The Little Review, a slightly avant-garde journal that published prose. In March 1918, the journal began to publish serially the latest work in progress by the Irish author James Joyce. When a chapter from the forthcoming Ulysses dubbed “Nausicaa” (which featured the protagonist Leopold Bloom masturbating on a beach) was published in the July-August issue of 1920, Sumner launched his attack. The issue at question was confiscated and burned. Sumner lodged an official complaint in the fall of 1920, and a trial began in February 1921. The editors were convicted and fined $50 apiece. Before Joyce had even finished writing the novel, the United States deemed Joyce’s Ulysses as obscene. Sumner and his vice society won the first battle, but the 1930s would not be so gracious.

During the ‘30s

Throughout the creative media, the 1930s were a decade of great evaluation and growth. Entertainment media such as books, movies and radio were a welcome diversion from the struggles of everyday life during the Great Depression. The preceding decade had been a time of wistfulness for many citizens, and the ‘30s were far more trying times. Especially in the ‘30s, entertainment was a form of escapism, and people were desperately vying for it. In books, obscenity standards were not lowered, but better interpreted through the courts. The result was a freer press. In movies, the self-censorship of the studios relaxed a bit, but vice fighters fought back, forcing the creation of the Movie Code of 1935, which set forth a stringent code of ethics for movie-makers with specific references to curbing obscenity in Hollywood. Radio was viewed as an “intimate friend” of the family, and, as such, it was expected to better living conditions and cultural standards. Some sensitive listeners weren’t so sure of its performance.

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Literature

The most important obscenity ruling of the decade (and perhaps the early 20th century) was laid down in U.S. District Court in New York by Judge John M. Woosley on December 6, 1933. Newspapers followed the trial closely. The book in question, again James Joyce’s Ulysses, underwent many tribulations on its way to an American publication. Sylvia Beach published the completed novel in Paris in 1922 after the Little Review publication was halted. Joyce sued an American for publishing edited parts of the novel after the 1921 obscenity ruling, but found he did not have an American copyright since the work had been declared obscene.

Headed by Bennett Cerf, Random House, Inc., was determined to publish the entire book on American soil. To do so, the company arranged to have a copy seized at Customs, thereby invoking a challenge to the ban against an import of obscene literature, which was enforced by the Section 1305 of the Tariff Act of 1930. As defined by the court, “obscene” meant “tending to stir the sex impulses or to lead to sexually impure and lustful thoughts.” Judge Woosley laid out his ruling in fittingly eloquent prose, declaring “in Ulysses, in spite of its unusual frankness, I do not detect anywhere the leer of the sensualist. I hold, therefore, that it is not pornographic.” (United States vs. One Book Entitled Ulysses). Woosley went on to state:

“Whether a particular book would tend to excite such impulses and thoughts must be tested by the Court’s opinion as to its effect on a person with average sex instincts—what the French would call l’homme moyen sensual—who plays, in this branch of legal inquiry, the same role of hypothetical reagent as does the ‘reasonable man’ in the law of torts and ‘the man learned in the art’ on questions of invention in patent law …

It is only with the normal person that the law is concerned. Such a test, as I have described, therefore, is the only proper test of obscenity in the case of a book like Ulysses which is a sincere and serious attempt to devise a new literary method for the observation and description of mankind.

I am quite aware that owing to some of its scenes that Ulysses is a rather strong draught to ask some sensitive, though normal, persons to take. But my considered opinion, after long reflection, is that whilst in many places the effect of Ulysses on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.

Ulysses may, therefore, be admitted into the United States.

The victory emphasized to a vast audience a few new standards by which books could be judged:

Books should be judged as a whole, not by passages as laid out by Hicklin.

A book is only obscene if it serves as an aphrodisiac for a reasonable person.

Intent matters: Since Joyce was performing a literary experiment with Ulysses, his was a more noble effort; he did not have pornographic intent.

These standards were adopted by publishers as guidelines for future publication. Some, like the whole vs. parts argument were validated in earlier cases such as People v. Viking Press, which featured the ruling of City Magistrate Benjamin Greenspan on Erkine Caldwell’s God’s Little Acre, brought up on complaint by one John Sumner. Greenspan observed that “the court must find that the tendency of the book as a whole, and indeed its main purpose, is to excite lustful desire and what has been rather fancifully called ‘impure imaginations’” (Sova 65-66). Woosley’s ruling enforced this on a grander scale. Courts took into consideration the intent or literary merit of a book, which is perhaps why Jim Tully’s Ladies in the Parlor met with censor and not success in 1935.

In part due to the Woosley ruling, the 1930s saw an easing of censorship in books due to so-called obscenity. Other media, however, did not fare quite as well. Under pressure, Hollywood adopted the famous Movie Code in 1935.

Movies

The Motion Picture Production Code of 1930 laid out in detail the general principles of moviemakers and the standards by which they should operate. The new code was considered “an outgrowth of severe criticism by prominent churchmen, who charge that the moral character of audiences is being undermined by the sort of action they see on the screen” (NYT 4/1/1930). Studio heads verbally agreed to adhere when it was established, but movies of the time reflect a loose interpretation of the Code. This lax approach worried Will Hays, president of Motion Picture Producers and Distributors of American, who eventually hired Joseph I Breen to lead the crusade to clean up Hollywood in the mid-1930s by heading the Production Code Administration.

Known widely as the Hays Office, the PCA began in July 1934 to initiate methodical regulation of the content of motion pictures. Just by glancing over The Film Daily’s annual Ten Best list it is easy to see that the Code had not been enforced prior to Breen: “The Divorcee,” “Hell’s Angels,” “Bad Girl,” “A Bill of Divorcement,” “Scarface,” and “She Done Him Wrong” all grace the list. Moved by grumblings from Americans concerned with the “gunplay of James Cagney and … wordplay of Mae West,” the PCA moved to reverse contemporary thought that “the Hays moral code is not even a joke any more; it’s just a memory” (Doherty 8). The code lays out three basic principles:

1. Every effort shall be made to reflect in drama and entertainment the better standards of life.

2. Law, natural or human, shall not be ridiculed.

3. Sympathy shall not be created for the violation of the law.

For a full-text version of the code, click here.

Other media

With passage of the Radio Act of 1927 came the establishment of the Federal Radio Commission, which then was given the authority to regulate previously bestowed upon the Secretary of Commerce. “Formed out of chaos,” the FRC “faced the daunting task of cleaning up the airwaves,” often without sufficient financial resources (Benjamin 77).

The National Association of Broadcasters adopted a “code of ethics” in 1928, in which it declared that:

• Broadcasters [need to] pay conscious attention to their audiences’ different backgrounds to guard against offending any sensibilities.

• Because radio came into the home as an ‘intimate friend’ and helped mold the minds of children, all programming should reflect this reality.

• Station owners also should consider radio’s development as a part of bettering living conditions and cultural standards. (135-36).

The hit radio program “Amos ‘n’ Andy” pushed racial and therefore taste boundaries, and caused many station owners to carefully monitor their program content. They worried about the consequences of indecent content, which could be getting their license revoked. Church groups and other such listeners complained at “radio horrors” from as serial thrillers to suggestive songs and censors from both the station and network “modified songs and skits” in order “to ward off church or mothers’ crusades against indecent radio programming” (143). The result was the outright banning of some songs and the modification of others. Censors barred Cole Porter’s ‘Love for Sale’ in 1932, and changed the song title ‘Let’s Put Out the Lights and Go to Bed’ to ‘Let’s Put Out the Lights and Go to Sleep.’ Lyrics also faced alterations:

From “I Love Louisa”:

“Ach! when I choose ‘em, I love a great bosom” became “Ach! when I choose ‘em, I always hate to lose ‘em.”

From a performance of “42nd Street”:

“Sexy ladies of the eighties who are indiscreet” became “Lovely ladies of the eighties give your eyes a treat” (143).

The passing of the Communications Act in 1934 led to the formation of a committee of orchestra leaders and broadcasters designed to engage in self-censorship. As a result of its work, by the committee’s second meeting, “the members announced that no major networks were broadcasting indecent song lyrics” (144). The design of radio monitoring was to protect the relationship between broadcaster and listener, which was forged, again, by that “intimate friend” the radio. This included the regulation (or outright barring) of speakers that discussed birth control unless all sides were considered. Morris Ernst of the American Civil Liberties Union (who later fought to for the U.S. publication of Ulysses) urged station owners to give time to both birth control advocates and religious leaders with opposing viewpoints (165). Put in a position of protection, station owners frequently cut off guests with dead air as a last effort to halt the transmission of controversial thoughts to listeners.

Literature, movies and the radio were not alone in their battle with obscenity standards of the 1930s. Art of all kinds faced the scrutiny of organizations like the vice societies. In October of 1931, John S. Sumner complained about the display of a 16th century Tintoretto painting in a window of the E. & A. Silberman Galleries on 57th Street. He entered the gallery and asked how the worth of the painting and, upon answer, declared “Well, then, you wouldn’t want to lose it by having the police remove it, would you?” (NYT 10/24/1931). The gallery refused to move the painting, and Sumner declined a request to bring his wife to view it and judge its status as objectionable.

Results

“Opinions have changed since the Comstockian days, for a host of famous authors are left in peace as they would have never been ten years ago”

--Letter from Herman B. Miller to the New York Times, April 30, 1935.

With famous cases like United States vs. One Book Entitled Ulysses and codes of conduct imposed on entertainment outlets like the movies and radio, the 1930s were a decade full of re-examination of the tendency of art and entertainment to be obscene. Entertainment seekers looked for a means to escape the harsh realities of Depression life, and often this led to the popularization of what was previously deemed inappropriate. The publishing industry underwent a relaxing of standards while movie and radio faced harsher scrutiny. This is a result of the realization of the vaster reach of movies and radio.

Results of the ‘30s

The impact of the 1930s on obscenity in literature comes mostly from the Ulysses case. In both its initial clearing and subsequent upholding on appeal, the case set substantial precedent for publishers and writers, showing them that works would be held on their intent as both literary projects and whole entities (rather than parts) and on their ability to act as an aphrodisiac to the reasonable man. This allowed for a greater relaxation on obscenity standards: “It seems, therefore, that the Ulysses decisions of 1933 and 1934 were beginning to have a somewhat liberating effect by 1936” (Lewis 139).

The Motion Picture Production Code of 1930, though not strictly enforced until 1934, maintained hold on the industry until it adopted its letter ratings system in the mid-1960s. Still, the industry maintained a spirit of self-censorship in the interest of warding off government interference.

Radio and art also fought for the right to express without interference. Each was successful in some way. The various forms of entertainment media certainly felt the effects of each other’s fights, and at times alluded to their status as art in order to sway skeptics.

Decades to follow

The 1930s were a promising decade for publishing and a restrictive one for movies and radio. In the decades that followed, print media witnessed the publication of Hugh Hefner’s Playboy (1953), Bob Guccione’s Penthouse (on American soil in 1969) and Larry Flynt’s Hustler (1972), which of course featured far more salacious imagery. Broadway saw nudity on stage in “Hair” in 1967. Pornography in the 1970s blossomed. This was not without backlash. Time magazine declared in 1965 that “[j]ust about anything is printable in the U.S. today. … [A]ll kinds of respectable hardcover books now contain subject matter and language that would have brought police raids only a few years ago” (Boyer 292). A poll conducted by Gallup found in 1969 that “85 percent of U.S. adults supported ‘stricter laws on pornography.’” In 1970 President Johnson appointed a Federal Commission on Obscenity and Pornography, which, after a two-year study, found that “‘empirical research has found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior among youth or adults’ and that ‘established patterns of sexual behavior were found to be very stable and not altered substantially by exposure to erotica’” (Lewis 226). The findings were met with displeasure by political leaders.

All of these media were effected by the Supreme Court decisions of 1973 on five cases, handed down on June 21: Miller v. California, Paris Adult Theatre I v. Slaton, Kaplan v. California, United States v. 12 200-ft. Reels of Super 8mm Film and United States v. Orito. Chief Justice Burger laid out in Miller v. California that:

“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest … (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value” (Lewis 230).

Justice Burger threw out the previous “utterly without redeeming social value” clause that had been considered valid since the Fanny Hill ruling. Since that first obscenity case in December 1815, Commonwealth of Pennsylvania vs. Sharpless, the United States has struggled to label and regulate obscene material. Clearly laws have relaxed over time, and material that might have given Anthony Comstock a heart attack is not only permitted today, but it sells quite well. Publishers and producers argue with conviction that the First Amendment protects their rights to give voice to their creations, and the U.S. in numerous court cases, eventually has sided with them.

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