OPINION 262 views
Jim Zirin Contributor
I write about law, foreign relations and politics.
Opinions expressed by Forbes Contributors are their own.
Jim Zirin Contributor
I write about law, foreign relations and politics.
Opinions expressed by Forbes Contributors are their own.
Times have changed, and it is hard convincing our children and grandchildren that it wasn’t always this way. Although child pornography continues to be the proper subject of criminal prosecution, there is now little legal activity in art censorship. We just don’t see the obscenity cases we used to see. The New York Society for the Suppression of Vice dissolved in 1950. The Catholic Legion of Decency and its rating system for books and movies have all but disappeared. Contemporary community standards of what is obscene have become porous, perhaps because of the freewheeling nature of the Internet, which is now into publishing photos of nude celebrities hacked from a Cloud. Indeed, the Internet has made effective censorship virtually impossible. Only dull repetitiveness and superfluous specificity differentiates hard-core pornography from the literature of sex in books or the modern cinema. What once was X has become R; R has become PG-13; the really dirty films have become NR—not even rated at all. There is a new normal.
We are all fascinated by sex. Justice William J. Brennan, writing for the Court in Roth v. United States, saw sex as a “great and mysterious motive force in human life…indisputably…a subject of absorbing interest to mankind through the ages. ” Jefferson thought it the “strongest of human passions.” Benjamin Franklin considered it essential to health. Sex caused Henry VIII to renounce Catholicism; Edward VIII to renounce the throne, causing his mother to say “to think he gave up this for that”; sullied the reputations of
Americans are obsessed with sex, and it’s not necessarily our own intimate relationships. We hunger to know what astonishing sex acts others may perform, particularly our public officials, with whom, in what position, and even with what toys and props. Not content with our interpersonal experience, which is generally conducted in private behind drawn shades or on deserted beaches, we gorge on commercially published erotica from which we derive vicarious gratification. Forbes has estimated that porn in the United States is a multi-billion dollar industry. Let’s face it, sex sells. Ask any of the Mad Men.
Erotic ideas find expression in books, movies, television, tabloid newspapers, supermarket magazines, and on Internet videos. King Farouk of Egypt was said to have a multi-million dollar collection of erotica.
Sex abides in museums, and is not necessarily limited to painting and sculpture. The Museum of Modern Art in New York recently featured a show by performance artist Marina Abramovic where the viewer could enter the exhibit by squeezing between two facing nude models (usually, but not always, a man and a woman).
Interest in erotica pervades the ages. Cavemen depicted sexual imagery on the walls of caverns. The two thousand year old Indian temples at Khajuraho, which have been called the “apogee of erotic art,” are festooned with pornographic carvings showing tantric sex in all the permutations of the Kama Sutra. In the ancient cities of Pompeii and Herculaneum, one can visit secret cabinets and see on the walls every kind of sexual coupling, including a satyr copulating with a goat. Yet, we are totally ambivalent, and even hypocritical, about our urges. Many think of this interest in the prurient as a bad thing—degrading or even a sin against God, who gave us our libidinal urges in the first place. Churches, synagogues and even our laws condemn the very erotic material we are so eager to consume.
Clerics denounced Whitman’s Leaves of Grass from the pulpit as pornographic and obscene. One critic pounced on Whitman’s supposed homosexuality, saying that the great poet was guilty of “that horrible sin not to be mentioned among Christians.”
Ultra orthodox Jews in the Jerusalem neighborhood of Mea Shearim tear down billboard advertisements depicting images of attractive women who invite the viewer to use a certain credit card.
Cole Porter’s haunting “Love for Sale,” written from the point of view of a streetwalker, was considered shameful and scandalous when first published in 1930, and was even banned from the airwaves as being too raw for radio audiences. In spite of the ban, or perhaps because of it, “Love for Sale” became a timeless hit.
English: Official portrait of Justice Potter S...
Justice Potter Stewart. He knew it when he saw it. (Photo credit: Wikipedia)
Since much erotica came from Europe, where attitudes tend to be less prudish, Americans made laws proscribing the importation of obscene books. Novels, such as James Joyce’s Ulysses, Henry Miller’s Tropic of Cancer or Anais Nin’sDelta of Venus that are tame by today’s standards were deemed contraband, like opium, to be confiscated by the authorities. When I was in the U.S. Attorney’s Office in the late 1960s, government lawyers congregated on Friday afternoons in a basement screening room to review for prosecution the latest cache of dirty films seized by Customs at the border. I can report that their attitude was not entirely judicious.
If Americans were ambivalent about sex, the courts have been even more dodgy as they groped for workable definitions as to what constituted obscenity and what was protected by constitutional values of free expression.
Supreme Court Justices particularly were all over the lot, formulating such unworkable tests as “whether to the average person, applying contemporary community standards, the dominant theme as a whole appeals to the prurient interest.” Some judges thought that material couldn’t be obscene if it had “redeeming social value,” as though a line from the Bible might redeem a book of hardcore erotica. This test soon morphed into the “utterly without” standard that, leaving prurience and community offensiveness aside, whether the publication is “found to be utterly without redeeming social value.”
In 1966 a commentator observed that, the Supreme Court had elaborated at least five separate and contradictory tests. One justice, Potter Stewart, would have outlawed only hardcore pornography, which he could only define this way:
“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
Stewart was astonished that he became better known for this statement than any other he had written in his 23 years on the Supreme Court.
In 1922, James Joyce first published in Paris hismagnum opus, Ulysses. In one episode, the protagonist, Leopold Bloom, surreptitiously watches Gerty, a young woman on the street, and contemplates love, marriage and sexuality. As she exposes her legs and underwear to him, Bloom’s sexual fantasies escalate and reach a masturbatory climax heightened by the fireworks at the nearby bazaar.
The Little Review serialized the novel in America over a three-year period. In 1920, after the Little Review got to the particularly dirty chapter, the New York Society for the Suppression of Vice was successful in getting the state court to ban the book. The basis of the action was the masturbation scene, and the court declared the work obscene.
In 1933, publisher Bennett Cerf of Random House, represented by renowned literary property lawyer Morris Ernst, decided to launch a test case aboutUlysses. One copy of the book would be imported and then seized by customs at the pier. The case came before federal district judge John Woolsey who didn’t have at hand–and didn’t need–the divergent definitions of obscenity that perplexed Supreme Court Justices in later years. What Woolsey added to the fledgling obscenity jurisprudence was that a work must be taken as a whole, and not just judged on the dirty parts taken in isolation. He then dismissed the case and vacated the seizure.
But the story doesn’t end there. By 1968, obscenity had reached the silver screen. The Swedish film, I Am Curious-Yellow, was far more explicit than anything ever shown before in the United States. It was about a young Swedish girl named Lena and her search for identity. Lena wants to know all she can about life and reality. The film turns to Lena’s interpersonal relationships, including those with her lover.
Judge Murphy, after a jury trial in the Southern District, backed the government in its confiscation of the film as “obscene or immoral.” The Court of Appeals reversed and found error in Judge Murphy’s putting the issue of obscenity to the jury. “[T]he question whether a particular work is [obscene] involves not really an issue of fact but a question of constitutional judgment of the most delicate and sensitive kind.”
Second Circuit Judge Henry Friendly was annoyedthat I Am Curious Yellow even came before the courts. Concurring in the result, he noted that, as an inferior court judge, he was not writing on a blank slate and was bound by the Supreme Court precedents, which were difficult to harmonize. He concluded that,
“When all this has been said, I am no happier than Chief Judge Lumbard about allowing Grove Press to bring this film into the United States. But our individual happiness or unhappiness is unimportant, and that result is dictated by Supreme Court decisions…. With these reservations and with no little distaste, I concur for reversal.”
Chief Judge Lumbard, however, wrote a stinging dissent,
“While the sex is heterosexual, the participants indulge in acts of fellatio and cunnilingus. Needless to say these acts bear no conceivable relevance to any social value, except that of box office appeal.”
The Second Circuit opinion in I am Curious-Yellow spawned a succession of hardcore films as though spat out of a pornographic cornucopia. We had arrived at the “Golden Age of Porn.” The origins of the Golden Age are typically associated with the 1970 film Mona the Virgin Nymph, the first adult film to obtain a wide theatrical release in America. Following this was the massive success of the 1971 gay film Boys in the Sand and of the notoriousDeep Throat and Behind the Green Door, which were both released in 1972. These three were the first hardcore films to reach a mass mixed-sex audience, and all received positive reviews in mainstream media. Other key films from the period include The Devil in Miss Jones and Score, which appeared in mainstream movie houses for the first time. It seems we just couldn’t get enough of it.
Deep Throat was a 1972 American pornographic film written and directed by Gerard Damiano and starring Linda Lovelace. The title did not refer to FBI man W. Mark Felt, the Watergate informant for Woodward and Bernstein. The film offered a cascading continuum of streaming fellatio on a scale never before seen on the screen. What I am Curious-Yellow was for the literati and the cognoscenti, Deep Throat was for lowbrow moviegoers seeking sheer titillation.
Judicial acceptance of Deep Throat was long in coming. There was a criminal trial in the New York state Supreme Court, Manhattan. Despite expert testimony that the practices depicted in the film were well within the bounds of “normal” sexual behavior, state court Judge Joel Tyler thundered against the film. On March 1, 1973, he wrote of Deep Throat with overblown judicial invective.
“this feast of carrion and squalor,” “a nadir of decadence” and “a Sodom and Gomorrah gone wild before the fire.”
Tyler fined the producers $100,000, later reduced on appeal. But the ruling gave the film must-see cachet in many quarters. It was not long before Deep Throat was widely shown, although with some scenes cut in some states. It became the most popular X-rated film of all time. Silent partners in the film were Anthony Peraino Sr. and his son Louis, members of the Colombo crime family, who raked in millions from the venture.
In 1983, Deep Throat reached the federal court. In United States v. Various Articles of Obscene Merchandise, Judge Sweet held that various “hard-core” pornographic articles of merchandise (video cassettes and magazines), including Deep Throat were not “patently offensive” under contemporary community standards in the Southern District, and hence not “obscene.”Deep Throat was good to go. And the floodgates were henceforth wide open.
Tell your grandchildren that we totally failed in our quest to define the boundaries of obscenity. After all, it’s all in the eyes of the beholder.
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James D. Zirin is the author of the book, The Mother Court—Tales of Cases That Mattered in America’s Greatest Trial Court from which this article is an excerpt.
