Tuesday, June 16, 2009

Censorship’s last gasp

The microchip and the birth-control pill were introduced fifty years ago, and a new age dawned. So says a new book reviewed by Edward Kosner in the Wall Street Journal yesterday. Fidel Castro grabbed power in Cuba, the first U.S. soldiers died in Vietnam, the Los Angeles Dodgers became the first West Coast team to win a major sports title, Motown Records was founded, and the American automobile market was vouchsafed a glimpse of the future when the Ford Motor Company put the Edsel out of its misery while Toyotas and Datsuns first appeared on these shores—Fred Kaplan’s 1959: The Year Everything Changed defends its subtitle by narrating the remarkable confluence of events.

Despite Philip Roth’s debut with Goodbye, Columbus, and despite the release of new books by Bellow (Henderson the Rain King) and Nabokov (Invitation to a Beheading), the year’s main literary event was not the publication of a new book. The event that changed everything was the campaign by Arthur E. Summerfield, President Eisenhower’s postmaster general, to prohibit Lady Chatterley’s Lover from being mailed anywhere in the U.S. Summerfield’s failure was the last gasp of censorship in America. Although the federal government tried again two years later to ban Henry Miller’s Tropic of Cancer, the effort was half-hearted and lasted all of four days. Forever after, the threat of censorship would be a hyperventilating accusation leveled against political opponents with no force of reality behind it at all.

In March 1959, Grove Press announced that it would issue an unabridged and unexpurgated edition of Lady Chatterley’s Lover, edited from an autograph text by the literary critic Mark Schorer, in an edition of 10,000. In his New York Times review, Harry T. Moore called the book “our century’s greatest romance.” Lawrence believed that the liberal use of four-letter words was therapeutic, Moore explained. Almost immediately the authorities began making ominous noises. The chief of the vice squad in Washington, D.C., said that he had got ahold of an advanced copy to see whether it was fit to be read by residents of the nation’s capital. If he decided that the novel was obscene, local bookstores would have twenty-four hours to pull it from their shelves.

To force the issue, Grove Press deposited 164 copies at the New York post office in late May to be shipped off to booksellers. Postal officials promptly seized them. On June 11th, Summerfield ruled that the new edition could not be mailed. A former chairman of the Republican National Committee who had made his fortune as a GM dealer in Michigan, Summerfield determined that “taken as a whole,” Lawrence’s novel is “an obscene and filthy work.” Any literary merit it might have is “far outweighed by the pornographic and smutty passages and words,” he said. “The book is replete with descriptions in minute detail of sexual acts engaged in or discussed by the book’s principal characters.”

Summerfield relied upon a two-year-old Supreme Court decision by Justice William J. Brennan, who had held in Roth v. United States that the test of obscenity—what became known as the Roth test—is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.” After reading Lady Chatterley’s Lover for himself, Summerfield decided that it did. “The contemporary community standards are not such that this book should be allowed to be transmitted in the mails,” he said in a formal opinion.

“One cannot wholly condemn Mr. Summerfield’s concern for American morality,” Harry Golden wrote in the Carolina Israelite. “He feels if people read about men and women sleeping together, they might be inspired to sleep together, too. This is an idea that the Postmaster General would like to keep out of American life.” The consequences of his decision were no laughing matter, however. Within days, the airport director at Washington National, a facility run by the Federal Aviation Agency, removed Lady Chatterley’s Lover from the bookshop concession.

Meanwhile, the “authorized” and “unemasculated” version of Lawrence’s novel, as Grove called it, debuted on the New York Times bestseller list in the ninth position, trailing Exodus, Doctor Zhivago, The Ugly American, Taylor Caldwell’s Dear and Glorious Physician, and Lolita, still selling briskly a year after its publication under the mainstream Putnam imprint. A week later, Lady Chatterley’s Lover had climbed to just behind the five front-runners.

On the advice of counsel, however, the Times declined to carry any advertising for the novel, worrying that its mailing privileges might be endangered. Barney Rosset, the owner of Grove Press, was “shocked and dismayed,” accusing the paper of lacking the courage of its convictions. In an editorial published fifty years ago today, the Times had abused Summerfield’s ban, arguing that “there could hardly be a poorer occasion for the Postmaster General to exercise his power.” Since the book was being sold freely in bookstores around the country—except, of course, at Washington National Airport—Summerfield was “protecting no one by a foolish gesture that must in the end be upset by the courts,” the editors wrote.

Indeed, Summerfield’s ban was widely scorned—not that it required much courage to scorn it. Robert R. Kirsch, the Los Angeles Times book critic, said the ban “makes about as much sense as the post-Restoration hanging of the bones of Oliver Cromwell. It is a gesture devoid of intelligence or understanding.” Malcolm Cowley scoffed that first-time readers of Lawrence’s novel would find “not a word in the book that had not been printed in American novels (nor an idea, one might add, that was not being expounded by marriage counsellors).” Archibald MacLeish, the poet and former librarian of Congress then serving as Boylston Professor of Rhetoric and Oratory at Harvard, was grandiloquent in conclusion: “Only those to whom words can be impure per se, or those to whom ‘certain subjects’ cannot be mentioned in print though they are constantly mentioned in life, or those to whom the fundamental and moving facts of human experience are ‘nasty,’ could conclude on the evidence of the text itself that Lady Chatterley’s Lover, as Lawrence wrote it, is obscene.”

And just as the Times predicted, Summerfield’s ban was overturned in court. In late July, Judge Frederick van Pelt Bryan, who had been appointed to the United States District Court for the Southern District of New York by President Eisenhower three years earlier, ruled the ban “illegal and void,” holding that Lady Chatterley’s Lover was not obscene. Moreover, he called into question the postmaster general’s power “to determine whether a book is obscene.” Judge Bryan went on to praise Lawrence’s novel (“The book is replete with fine writing and with descriptive passages of rare beauty,” he said. “There is no doubt of its literary merit”). But though it closed with a ringing endorsement of the First Amendment, which even at the time was beginning to sound like a formality, Bryan’s ruling was most noteworthy for placing limitations on the government’s power to censor literature:

No doubt the Postmaster General has . . . qualifications on many questions involving the administration of the Post Office Department, the handling of the mails, postal rates and other matters. But he has no special competence to determine what constitutes obscenity within the meaning of Section 1461. . . . The determination of such questions is peculiarly for the courts, particularly in light of the constitutional questions implicit in each case.And with that, the post office ceased to be an effective mechanism for censoring any kind of printed materials.

Not that the government yielded without a fight. U.S. Attorney S. Hazard Gillespie Jr. appealed Judge Bryan’s ruling to the Court of Appeals for the Second Circuit. “We are not here to argue the obscenity or non-obscenity of Lady Chatterley’s Lover,” he said. Instead, the U.S. argued that “[t]here is no justification in law for the substitution of [the court’s] view for that of the Postmaster General.” In the mean time, reprints of a Protestant churchman’s attack upon Lady Chatterley’s Lover were express-shipped to every postmaster in the country with instructions to display it prominently. And in December, confident that Judge Bryan’s curtailment of his authority would be overturned, Summerfield created a nine-member Citizens’ Advisory Committee on Literature to provide advice “where questions of obscenity arise.”

Three months later, the government’s appeal was rejected. Summerfield vowed to press on to the Supreme Court. The decision of the appeals court “must be highly revolting to mothers and fathers and unbelievable to countless members of religious and civic organizations dedicated to high standards of decency,” he said. By June 1960, though—one year after the ban was first promulgated—the Justice Department decided not to ask the Supreme Court to reinstate it. Government lawyers did not believe that the post office fight against Lady Chatterley’s Lover was a Supreme Court case, and the general opinion among them was that the novel just was not obscene.

Since then, the U.S. has never made another serious attempt to ban a work of literature. On the Left, though, the bogey of censorship will not die. Only a year and a half ago, Ohio State University boasted that communications professor Andrew Hayes was studying the response to “to the U.S. government's attempts to censor” photos of caskets arriving in the United States from the battlefields of Iraq and Afghanistan:The researchers said that, in the strictest sense of the word, the Bush administration policy is not censorship. All the policy does is limit the access of journalists to locations where caskets can be photographed when the remains of soldiers are brought to the United States. Publication of photos is not prohibited or punished. However, restricting access to places where the photos can be taken has the same effect as censorship, in that it limits the dissemination of information to the public, Hayes said. [emphasis added]A distinction without a difference, in other words. Only the government can impose censorship, because only the government enjoys a monopoly of force. The effect of censorship, however, can be enjoyed by anyone. Such is the impoverished conception of it in a country that last sought to practice official government censorship half a century ago.