Censorship Class: Obscenity and Sex
Continuing from last week my censorship class began to engage with the first substantive material this week. The topic centered discussions of sex in formal obscenity law in the 1920s and ‘30s. I provided students with three case studies of the era: a prosecution of a sex education pamphlet, the famous story of the censoring of James Joyce’s Ulysses, and a largely unknown story of the prosecution of Life magazine for publishing images from a recent film on how babies are made. This was fun because I was able to incorporate archival material I obtained from Morris Ernst’s collection at the University of Texas at Austin. Ernst was, more or less, the first obscenity lawyer in America and he worked tirelessly to battle censorship and liberalize First Amendment law on the topic. He was the lawyer for all three of these events.
I’ll just discuss the first one here. Mary Ware Dennett was one of the leading advocates for birth control and sex education in early 1900s America. In 1919 she wrote The Sex Side of Life because her 14-year-old son wrote to her from camp and asked questions about sex. Dennett explored the available sex ed literature and was horrified; nearly all of it was judgmental and negative about sex, and because of this it often used idiotic euphemisms rather than instruct on actual biology. So she wrote her own pamphlet that emphasized sex positivity and nonjudgmental, factual information. My students were amazed at the pamphlet because, sadly, nearly all of them thought it provided much better sex ed than they got a century later (most of my students are from Utah, though American sex ed is pretty terrible in most places still). We had a fun - or horrifying - time sharing some of the terrible sex ed instruction we received before turning back to the controversy.
Prosecution argument in Dennett’s trial.
Dennett’s pamphlet was wildly popular. Beginning with just friends and associates, she eventually distributed it widely to public hygiene offices, sexual education activists, and social reform groups. Medical response was positive noting her attention to actual science over moralism. Unsurprisingly, it was this lack of moral judgment that doomed the pamphlet in the eyes of the U.S. government. We looked at the prosecutor’s opening argument (above) where he stressed that Dennett did not advocate chastity, self-control, or a healthy shame in sex. The prosecutor was particularly angry that she didn’t denounce masturbation, that she even dared to suggest that it had no adverse consequences other than the shame imposed by society. Imagine that. My students were particularly interested in the prosecution’s attack on Dennett’s oblique reference to birth control as “race suicide.” This represented a powerful narrative in American life that saw birth control use by white, well to-do Americans as a danger to white supremacy because it would mean that lesser races, then including southern and eastern Europeans, would swamp the U.S. population. A number of students recognized this as a form of today’s great replacement theory advocated by so many Republicans and seen in Elon Musk’s Twitter. Racism just never goes out of style in America.
Dennett was convicted at trial but had more success on appeal. The Second Circuit admitted the federal law banning obscene materials from the mail is constitutional but that the statute had to be interpreted carefully. Slowly a group of reform minded lawyers, such as Morris Ernst, were pushing a narrative that the definition of obscenity had to be carefully controlled to separate the legitimate punishment of smut while protecting serious literature, science, and educational materials. The assumption of most was that the line could be found. To Ernst and the Second Circuit, this was an easy case. As the court held “it can hardly be said that, because of the risk of arousing sex impulses, there should be no instruction of the young in sex matters.” The judges were clearly skeptical of the silly argument that reading this pamphlet would “arouse the sex impulses” but at a minimum they held that such a purpose was at best incidential to the true purpose. If Congress wanted to ban such literature from the mails it would have to adopt a much clearer statement in federal law.
While the discussion of modern parallels with sex ed was fun, I choose this case because it illustrated the 1920s and ‘30s era of censorship reform battles nicely. The use of obscenity law to reinforce dominant gender and sexual norms is a longstanding theme of censorship studies. The Dennett case is a significant step in convincing judges to be skeptical of the assertions of government about supposed harm in dangerous material. None of these courts came close to the radical argument that obscenity laws were unconstitutional infringements on free speech but they did start to graft to the law various standards to try and offer legal protection to material perceived as “legitimate” even if controversial. Dennett spoke to concerns about educational and medical material. The fight over James Joyce’s Ulysses turned upon the artistic reputation of both the author and book. By the end of the 1930s most New York courts, the center of a lot of obscenity law, were examining the material as a whole and often willing to consider the broader merit of the material to give context to the claims of alleged obscene material.
Next week we turn to looking at battles in the early 20th Century over film and probably one of the most famous censorship documents: The Hays Code.
