Howl: Protected today and in 1957
I’m current obsessed with 1950s censorship as I’ve been collecting archival materials on the time period. While may of the stories, like Detroit police censorship, are not well known, the prosecution of Howl is one of the great stories of 20th century obscenity law. What was largely lost to history is the original municipal court opinion holding the book to not be obscene. I was pleasantly surprised to discover the opinion preserved in the ACLU’s papers. It has existed only in a popular version published around 1960 with much edited out. Recently, Ronald K.L. Collins and David M. Skover recreated much of the legal opinion for their short book on the Howl trial, The People v. Ferlinghetti (2019). The book is quite good and in skimming their version of the opinion, available here, it seems like they did a good job though a few quotations are missing and a citation or two.
Like so many obscenity cases, the Howl case started because some people with power didn’t like Ginsburg’s poem. I’m not really a poetry person or the arbiter of literary quality but I’ve read enough commentary on the case to say that Ginsburg’s hit was everything that conventional 1950s elites would hate. It was angry, aggressive, vulgar, sexual, and, even more damning, homosexual. Christopher Baum called if “a coming-out poem. There is nothing coy about the homosexual imagery.” When Lawrence Ferlinghetti, owner of City Light Books, a San Francisco institution today, decided to publish it, he knew he was poking the bear of a conservative city power structure. An obscenity standoff was inevitable.
From City Light Bookstore “A Short History”
The problem for Ginsberg and Ferlinghetti, however, was that obscenity law in the 1950s was a nightmare. You’ll have to trust me. I’ve read pretty much all of the major and minor obscenity opinions there were and the clearest I can put it was that something was obscene if the highest relevant court decided it was. (And this ignores the widespread extralegal censorship occurring widely.) There wasn’t much else to it. And because the U.S.Supreme Court rarely got involved, this meant that whatever your state courts declared obscene, was. For a writer, publisher, or bookseller, you could guess at what might be charged but the rules were dressed up in opaque legalese to create as much uncertainty as possible. Anything that discussed sex frankly was inherently dangerous but so was anything that offended the moral standards of some who might hold power. So stories about adultery, premarital sex, interracial love, or abortion might be fine in some parts of the country but run into problems where powerful Catholic allies of the National Organization for Decent Literature held sway. Anything with homosexuality could run into problems and Howl guaranteed it by meshing the queer sexuality with the dangerous four letter words that Ferlinghetti’s printer wouldn’t even print, such as fuck, dick, and so on.
Howl, however, was published at a critical juncture where the Supreme Court finally engaged directly with obscenity in Roth v. U.S. (1957). A key element was the declaration that “sex and obscenity are not synonymous.” This is one of those obvious truths to many of us but modern day censors continue to reject this - I have an article coming out later this year on this. Instead, obscenity was only material that as a whole appealed to a prurient interest in sex, judged by the standards of the community for an average person. This was an attempt by some justices to try and bring rationality to obscenity law. To move it away from the system I describe above and towards one that separated “smut” from real material of substance. Of course, history demonstrated that this was impossible but I won’t get on that hobby horse now.
The Howl trial in the summer of 1957 was perhaps the first significant obscenity prosecution after Roth. As with any decision, Roth can be interpreted in many ways. Today we tend to see it as an attempt to constrain the censorship impulses of the state and free more material. But at the time, many pro- and anti-censorship folks thought it invited more censors to take action. Judge Clayton Horne’s opinion took a decidedly anti-censorship interpretation of Roth. He was also heavily influenced by earlier decisions, especially Judge Bok’s decision in Commonwealth v. Gordon (1949) one of my all-time favorite obscenity opinions. The opinion is a fun read (if you like legal stuff of course) that grappled with many things to come. For example, Horne took a strong position that allowing expert testimony was absolutely correct because the social worth of the book is key. Horne pointed to a key passage in Roth that would divide justices, lawyers, and pretty much everyone else for the next 16 years:
“All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties”
This passage opened up a debate about what Roth meant. One reading of this is that a work could never be obscene if it had any value. Another is that the quote meant only to say that prurient material by its nature could have no value. The first made redeeming value an independent part of the obscenity test, the second made it an unimportant part of the vernacular of obscenity. This question, amongst so many others, would divide the Supreme Court deeply for years. Horne took the strongest anti-censorship reading possible: any work with redeeming value could not be obscene. “I do not believe,” he wrote “that Howl is without ‘even the slightest redeeming social importance.” After running through the various ideas expressed in Ginsberg’s poems, with the help of the experts, Horne admits that “There are a number of words use in Howl that are presently considered coarse and vulgar in some circles of the community, in other circles such words are in every day use.” While California argued that he could have gotten the intent across without these dirty words, “No two persons think alike; we were all made from the same mold but in different patterns. Would there be any freedom of press or speech if one must reduce his vocabulary to vapid innocuous euphemism?” Horne concluded that Roth obscenity required that the work “arouses lustful thoughts of sex and tends to corrupt and deprave [the average sensual man] by inciting him to anti-social activity or tending to create a clear and present danger that he will be so incited as the result of exposure thereto.” Calling material disgusting, as the prosecutor did in Howl, worked against its case because it is the “antithesis of pleasurable sexual desires.” Howl was officially cleared for sale.
I came to the Howl saga when I discovered that a group of parents objected to it being read in a Steamboat Springs, Colorado, high school class on music as literature. They read the poem at the start of the 2019-2020 school year and a parent angrily objected. The parent complained about the dirty words, which were still edited out of their text - eventually the parent claimed that students were required to write the fucks and such back in, an allegation I find doubtful given the documents I have. Further, they declared it “could be emotionally damaging to students, it would negatively affect the emotional and social development of students, and leave the teacher and school open to a sexual harassment lawsuit.” The school concluded that the book would remain though it noted that they would do a better job of communicating with such sensitive parents.
This was a pretty standard book challenge but what caught my eye was another man’s attempt to have the teacher (and unnamed school officials) charged criminally. Various crimes were alleged but basically the claim was that the book was obscene for minors. He filed criminal charges and a detective was forced to explain that Howl could not be considered to lack “serious literary, artistic, political, or scientific value” when taken as a whole, as the statute required. Unhappy the man sought out the District Attorney to overrule the police. The DA explained that a “piece of speech that has for over sixty years inspired countless people to consider their individualism, their relationship to the organized state, their political voice and ability to think freely” could not plausibly be said to lack literary merit.
The DA’s letter was clearly correct but this 2019 event sadly gave us a look at what has become so common today: a few people trying to resurrect obscenity law to prohibit anything they personally don’t like. As Horne explained back in 1957, this is absurd as the “best method of censorship is by the people as self-guardians of public opinion and not by government.” In other words, if you don’t like a book, don’t read it. Problem solved.
“People v. Ferlinghetti.” ACLU Papers. TS Years of Expansion, 1950-1990: Series 4: Legal Case Files, 1933-1990 Box 1281. Mudd Library, Princeton University.
