The Case of the Missing Obscenity Opinion

I’ve spent much of the past two years in various archival collections exploring the various methods of censorship from around 1940-1970. Obscenity law, the most egregious version of this censorship, peaks my interest, probably, because it represents the use of state power by elites to try and control the nature of American culture. It is an effort to enforce the subjective moral and artistic beliefs as governmental orthodoxy. A significant part of my work is focused on exploring the tropes justifying suppression whether in public activism, newspaper editorials, or court proceedings. Being a law and courts specialist, the last is usually my favorite. So what do we do when a book is declared obscene and no one ever explained why? This came up when I collected material surrounding the suppression of Edmund Wilson’s The Memoirs of Hecate County published in 1946 by Doubleday & Co.

Edmund Wilson was one of the great literary commentators of his generation. The kind of guy who comes across as a self-appointed guardian of true literature, frankly a pretentious snob. Memoirs was a collection of six stories related to each other in terms of their location and themes. Only one, “The Princess with the Golden Hair,” was involved in the obscenity case. Perhaps unsuprisingly, this was the most sexually explicit of the stories. Below is a sample of the story, as quoted by Edward de Grazia Girls Lean Back Everywhere, 214.

I remember one cold winter Sunday when Anna had come in the afternoon, a day of blank uptown facades and decorous uptown perspectives, when I had gone down to the deserted museum to look something up in a book, and, returning, it seemed so incongruous to watch her take off her pink slip and to have her in her prosaic brassiere; the warm and adhesive body and the mossy damp underpants—the mystery, the organic animal, the prime human oven of heat and juice—between the cold afternoon sheets in the gray-lit Sunday room; and one evening when I had come home from a party, at which I had made Imogen smile by my tender and charming gallantries and had kissed her hand at parting, and had made love to Anna for the second time, by a sudden revival of appetite after she had put on her clothes to go, by way of her white thighs and buttocks, laid bare between black dress and gray stockings—she was so slim that it was almost as easy to take her from behind as face to face—while she kicked up one foot in its blunt-toed black shoe as a gesture of playful resistance or simply of wanton freedom. … She gets a sensation, she says, like a thrill that goes all through her—sometimes it makes her toes curl: “I want to scratch and bite—I don’t know where I am or anything.” The doctor in the hospital had said that she must be very passionate because the opening or her womb was so small.

In addition to the sexual escapades, the fact that Anna was married and committing adultery did not help. John Sumner instigated the prosecution. Sumner had replaced Anthony Comstock after his death as Executive Secretary of the New York Society for Suppression of Vice (NYSSV). In its heyday, the NYSSV was the premier institution for censorship in America but significant losses in the late 1920s and 1930s had sapped it of most of its strengthen and influence. The action against Memoirs of Hecate County was Sumner’s last gasp of relevance in the politics of censorship.

Manhattan District Attorney Frank Hogan prosecuted the case in a pretty standard way for obscenity cases. The theme was described as “how the protagonist … attains the immense delights of sexual intercourse with the wife of another man” (quoted again from de Grazia) and listed more than 20 different passages of sexual conduct. Doubleday’s—the defendant was the publisher—attorneys attempted to deflect this by both emphasizing the literary merit of the book as a whole, rather than just in Hogan’s isolated passages, but also offered up an amusing brief where they offered passages from seven different books that were treated as equally sexual and cleared by various New York courts. These strategies would prove insufficient and the trial court convicted Doubleday in a 2-1 vote and fined it $1000. (These kinds of obscenity charges were tried before a three judge bench in the New York Court of Special Sessions). Further, the publisher was warned that continued publication would now be treated as violating settled law and jail time would be involved.

This was fairly standard obscenity nonsense. Less normal was the fact that there was no judicial explanation of why the book was obscene. Neither of the two guilty votes explained their votes in writing or even orally at trial. The only recorded opinion was from the dissenting judge, Nathan Perlman. Perlman concluded that while there certainly was sexual material in the story that could harm immature minds, “Any rational evaluation of a book from the point of view of obscenity must give consideration not only to its detrimental tendency to deprave the minds of the young and immature but also to its beneficial tendency to enlighten the mature.” “To suppress what may appear bad in a book is also to suppress what is good therein. The Court’s primary duty is to interpret all laws in the terms of the general welfare.” The majority judges were silent and then, perhaps even more egregiously, the New York appellate courts (New York Court of Appeals here) would affirm the conviction, again without any explanation. This is bizarre behavior. I’ve read some absurd obscenity opinions but this may be the only example of such a conviction where no one ever explained how it was legally obscene.

One of the other interesting things about this case is that Doubleday appealed the decision the U.S. Supreme Court (SCOTUS). Before World War II, no court had accepted that obscenity law implicate free speech and press rights. Gradually this began to shift and the Doubleday lawyers sought to convince SCOTUS that such prosecutions presented grave threats to free speech rights. In its argument to SCOTUS Doubleday accepted that obscenity was not protected speech but did “contend that any definition of the word ‘obscene,’ so broad as to catch up a bona fide work of literature, may not constitutionally be applied to prohibit the publication of such a work. That Memoirs of Hecate County … is a bona fide work of literature and not commercial pornography, cannot be seriously disputed.” Without a single explanation of the rationale for treating the book as obscene, Doubleday had to read between the lines: “the lower courts here seem also to have assumed that ‘obscenity’ includes everything dealing with the subject of sex. Such a view seems to have been based upon the further assumption … that such utterances, in and of themselves, present some subtle danger to the State’s interest in order and morality.” To allow a vague law to suppress a book without a single word of explanation would imperil the freedom of the press and the right to read. This was especially absurd in the case of Memoirs because “Only those with little faith in the sturdiness of public taste or the moral fibre of literate readers could find the slightest danger in such a book.”

This innovative argument fell short, unfortunately. SCOTUS split 4-4 and under established practice this meant that the New York decision was affirmed without opinion. So what happened in all of this mess? According to de Grazia, Wilson believed that the New York courts were influenced by Catholic anger over his book. I’m not one for conspiracy theorists but this does seem plausible as the DA was a staunch Catholic, the two guilty votes were from Catholic judges (and the dissenter Perlman was a Protestant), and the appellate New York courts were dominated by Catholic judges. I’m not sure it was a conspiracy so much as the inherent subjectivity of obscenity allowing judges to suppress what they didn’t like.

The SCOTUS vote is easier to explain. The missing vote was Justice Felix Frankfurter who recused himself because he was personal friends with Edmund Wilson. The late 1940s was a time of rapid change in SCOTUS membership and legal outlook. It had only begun to take serious the idea of free speech and press a decade before and its decisions were uneven. The Truman years were a time of a conservative shift in the judicial philosophy of SCOTUS and the issue of obscenity was novel for the bench. The narrow divide spoke to the uncertainty of the federal bench on this issue. de Grazia reported that Frankfurter told Wilson privately that if he had voted in the case, it likely would have been against his book. This reflected Frankfurter’s occasionally inconsistent philosophy that value judgments, such as around morality and obscenity, are best left to the legislative process. It would be nearly a decade before SCOTUS finally engaged with the issue directly in Roth v. United States (1957) declaring that sex and obscenity are not synonymous. Doubleday was just ahead of the times a bit too much.

The SCOTUS even split meant that Memoirs of Hecate County would not be available until 1959 when a new publisher decided to brave the courts after the Roth shift. The book was not challenged again though in the dozen years between the SCOTUS non-decision and this publication, the Doubleday experience had scared a number of publishers away from “controversial” new works. Exactly as censors like John Sumner hoped.

Note: the opinion and brief linked above are from Edmund Wilson’s papers at Yale. Box 112 Folders 2697 (Doubleday Brief) and 2698 (Perlman’s opinion).