The Law in its Difference: Institutional Competencies, Coercive Mechanisms, and Obscenity Law


Review of Reading the Obscene: Transgressive Editors and the Class Politics of US Literature, by Jordan S. Carroll, and A Matter of Obscenity: The Politics of Censorship in Modern England, by Christopher Hilliard

Stanford, CA: Stanford University Press, 2021
Princeton, NJ: Princeton University Press, 2021



Numbers count in obscenity law and the lubricious products it tries to regulate. Laws of obscenity and copyright are virtually unimaginable apart from an ungovernable mass of readers fed by an ungovernable mass of printed material. Gutenberg is the true begetter of all those laws. The age of mechanical reproduction produced a besetting fear that large quantities of printed books would corrupt large numbers of susceptible readers, and that unauthorized copies of books would take away authors’ livelihoods and incentives to create. The story of obscenity law, like that of copyright, is a story of population growth, the spread of literacy, and the increase in spending power of the masses. As long as books could be confined to the supposedly insusceptible few—collectors, professionals, affluent persons—legislators and judges scarcely needed to concern themselves with restraining or punishing textual production. The regulators of smut have always shown a strong instinct for enochlophobia: the fear of crowds. The surging urban crowds that fascinated Poe and Baudelaire haunt the austere dreams of Comstockery.

The American anti-obscenity crusader, Anthony Comstock, announced a puzzle of the obscene when he argued, in Traps for the Young (1883), that the indecency of a painted nude—allowable in that unique, museum-bound format—was “unmasked” in photographic copies, and that the lewdness of Boccaccio’s Decameron, tolerable when read by students in the original Italian, became a corrupting force when printed in cheap English translations available to “the ever-ready hands of the youth.” Immodest canvases and medieval bawdy became poisonous once they escaped from the cordon of privilege and infiltrated the masses in catchpenny copies. The same argument had been advanced fifteen years earlier in the English case of Regina v. Hicklin (1868). When the appellant’s attorney, arguing that liability for publishing obscenity should require proof of obscene intent, suggested that a painting of Venus hanging in a gallery could not be deemed obscene, one of the justices retorted, “It does not follow that because such a picture is exhibited in a public gallery, that photographs of it might be sold in the streets with impunity.” To alter Walter Benjamin’s theory to fit Comstock’s vision, the unique painting wore a nimbus of purity, but the multiplied copy would always be self-condemned by its aura of prurience.

Christopher Hilliard, in his excellent study, A Matter of Obscenity: The Politics of Censorship in Modern England, refers to this double standard as “variable obscenity,” a term he borrows from earlier scholarship: “the idea that a book’s acceptability depends on who is reading it as well as the book itself” (1-2). It may seem strange that obscenity could be subject to a kind of price discrimination, but, historically, the purchaser of cheap smut has been to the collector of limited editions as a passenger in economy class is to a first-class traveler: they both reach the same destination, but at different costs and with different levels of comfort and freedom. When James Joyce and D.H. Lawrence published their risqué masterpieces in pricey deluxe formats, they were seeking the sanctuary of variable obscenity as much as large net profits. After World War I, “[s]mall presses calculatingly conformed to the principle of ‘variable obscenity,’” Hilliard observes, “producing challenging work in limited editions [and trying] to establish a new kind of publishing, free of the inhibitions of the mainstream” (35). It is this attentiveness to the micro-mechanics of obscenity and its laws—“the unostentatious thinking going on in the routines of policing and activism as well as the spectacular cases and set-piece debates” (10)—that is one of the distinguishing features of Hilliard’s book. In his handling, obscenity is a bottom-up as well as a top-down phenomenon; it is a living, changing culture.

Hilliard’s subject is the unsmooth course of British obscenity law from its growth as a set of regulatory mechanisms in the Victorian period to its virtual disappearance, by the 1980s, as a punitive force for verbal indecency, its displacement to tactics for controlling obscene displays as public nuisances, and its relegation to prohibiting child pornography and extreme pornographic images (depictions of rape, necrophilia, and bestiality) (214-26). This is a history of gradual acceptance of the literary and social value of controversial works, the growth of a pluralistic society, and the diffusion of the Millian harm principle, neighborly liberalism, and the distinction between private and public immorality as touchstones of regulation. The regulatory temper in sex matters had changed in Britain as a result of many things: the Wolfenden Committee’s recommendation in 1957 to decriminalize private homosexual acts between consenting adults; the passage of the Obscene Publications Act 1959 with its liberalized definition of obscenity, its public-good defense, and its allowance of testimony by authors and expert witnesses; and the unadopted but prescient Williams Committee’s report in 1979 which emphasized adult consent, sexual privacy, and the presumption of individual freedom and free expression (76-86, 188-213).

Hilliard covers this evolution in a prose that is succinct, balanced, and freighted with historical and legal detail but not capsized by it. Most impressively, he shows that the growth and waning of obscenity controls have consistently been a matter of citizenship: laws that expanded the franchise and access to education and literacy in the 1860s and 1870s were met with fears that indecent publications would sap the morals of young persons and the working class. This is what Hilliard aptly calls “the Victorian twinning of censorship and citizenship” (10), but this twinning, as he shows, also underlay the eventual liberalizing of obscenity law, as the voices of private citizens, authors, shop owners, cinema owners, vicars, and representatives of the post office, customs, and the police force were increasingly consulted by legislators and official bodies from the mid-twentieth century on. The “matter” of obscenity, in Hilliard’s treatment, was a movement from paternalism to pluralism, but it always involved the subjects of regulation: the citizens in their changing polity, the people as products of social and legal reorganization.

From the mid-nineteenth century on, defense counsel and legal reformers pushed for a widening of context in obscenity law. The Hicklin test for obscenity was both malleable and straitjacketing: “whether the tendency of the matter charged…is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” This test, as applied by courts, ignored many things—the intent of the author, the literary or social value of the work, the work’s dominant effect, expert opinion, creative freedom. These perspectives for contextualizing the accused work entered the law slowly in the decades following Hicklin; they are keys to understanding the drama of obscenity law, a drama that reached a kind of climax with the adoption of First Amendment principles for judging obscenity in the United States, and with parallel statutory moderations in Britain’s Obscene Publications Act 1959. Hilliard acutely observes that the latter statute was not “a recognition of a modernist conception of art as autonomous and autotelic” (223). I have argued elsewhere that the factual question of modernist obscenity was never really resolved on the merits; it was simply suspended in favor of a constitutional test in the United States and its statutory counterpart in Britain. For good or ill, obscene modernism never had its full day in court, but rather was rescued, decades after its heyday, by a higher law that admits almost all speech to its protection—what Hilliard calls “literature as a privileged form of expression analogous to political comment” (223). The liberalizing contexts that were brought to bear on obscenity changed questions of fact into legal principles: indecency in art and literature is accepted today not so much for what it is in itself, or by itself, but for what it does for society or for art; it is the consequentialist product of contexts.

Another virtue of Hilliard’s book is its refreshing accuracy in the treatment of legal doctrine and administration. He urges scholars to distinguish between legal mechanisms that were aimed at establishing personal liability for authors and publishers, such as common-law obscene libel, and those that targeted books, prints, and other chattels as instrumentalities of indecency, notably through the issuance of destruction orders under the Obscene Publications Act 1857. These latter he refers to as in rem methods, a jurisdictional term meaning process brought “against the thing.” He might have completed the picture (as I have tried to do in my own work) by styling prosecutions as in personam techniques, those brought “against the person,” individual or corporate. In rem actions were a way of attacking print runs or booksellers’ stocks that might have escaped incineration if an author or publisher had only been convicted, personally, of obscene libel. They were weapons of great flexibility in the war on indecency, and many noted cases that are often casually referred to as prosecutions—those involving works by D.H. Lawrence, Radclyffe Hall, and Norah C. James (in Britain), and James Joyce, Marie Stopes, and Erskine Caldwell (in the United States)—were in fact actions brought against inanimate things: the books themselves. (Hence case captions like United States v. One Book Called “Ulysses” and Attorney General v. Book Named “God’s Little Acre”.) “Given how many careful scholars get this wrong,” Hilliard stresses, “it is worth repeating: no one was ever charged under the Obscene Publications Act of 1857” (7). The admonition is well taken: it is not enough to say that the law exercises power as a discourse; Foucault himself was interested in the mechanisms through which power operates. To distinguish among the specialized, discrete techniques and institutions of the law is to discover how and when power works its coercions.

In Reading the Obscene: Transgressive Editors and the Class Politics of US Literature, Jordan S. Carroll examines obscenity in the United States from, roughly, the case of United States v. Kennerley in 1913 to the founding by Barney Rosset of Grove Press and Evergreen Review in the 1950s. Carroll allows the usual subjects of obscenity regulation—the author and the publisher—to recede into the background somewhat and brings forward figures that have received less attention: the editor and the reader. His thesis is a remarkably original one, difficult to summarize in its many turns but in its essence as follows: American obscenity law in the twentieth century often framed editors (of magazines, comic books, small presses) as transgressive figures—“perpetrator[s] of obscene crimes” (4)—and these editors increasingly became a gateway to verbal and pictorial renderings of sexuality for readers of the professional-managerial class (PMC): upwardly mobile white males seeking prestige and power in a faceless, hierarchized workplace. With the editors’ guidance and manipulation, PMC readers learned to reject the strictures of censors and to master sexual response by making a kind of game of pornographic consumption, in the process acquiring a cool detachment that treated sex and obscenity as an abstraction and developing a masculine managerial style that would help them rise in their professions. The editor became a kind of psychopomp who guided male sexuality into regions of abstraction that could make readers into “good professional-managerial subjects” or allow them to use obscenity “to heal the hidden injuries of the middle class” (5). Carroll thus adds an arresting theory of obscenity to concepts of the organization man, the alienated white-collar worker, and salesmanship mentality, no less than to studies of obscenity and its laws.

As punishable subjects and high-profile scapegoats, editors served an “editor function” that Carroll places alongside the more familiar author function (2). As instructors in reading practices, these editors not only created large readerships but taught them “to build new capacities” for absorbing extreme content that led to “the emergence of a self-disciplining middle-class sexuality over the course of the twentieth century” (8, 10). The particular histories by which Carroll illustrates these themes are well-chosen, fine-grained, and persuasive. He argues that H.L. Menken, co-founder and editor of the magazine American Mercury, gave his readers a sense of cultural superiority by splitting the obscenity controversy “into a puritan past and a civilized present” (46), and calling upon readers as free-thinkers to resist the retrograde pull of the masses. Armed with this proud sense of “temporal doubleness,” readers could “free themselves of both the passion and shame associated with obscenity” (57). They became time travelers in the present act of reading. Carroll locates a recurring pattern in Mencken’s work: “a disenchanted figure [who] wrests the future from the inertia of the past” (69). This seems to me an excellent and irrefutable characterization of this early occupant of the editor function.

Carroll goes on in separate chapters to examine the editorial innovations of EC (Entertaining Comics, publisher of Tales from the Crypt, Mad magazine, and other wacky-weird satire vehicles for youthful readers) and Playboy, owned and operated by Hugh Hefner, boy-genius tutor in cool culture and privileged masculinity. In impressive readings, Carroll shows that EC employed “game-theoretical scenarios”—man squashes tiny spider and is devoured by giant spider—to teach “structural thinking” and “pattern sensing under conditions of risk and uncertainty” (83, 85, 89). This junior-desensitization program offered through comic books was early preparation for PMC readers who would graduate to Playboy and its curriculum for readers who aspired to being mini-Hefners in a bachelor-pad existence that was “non-conformist, pleasure seeking, and intellectual,” as well as “competitive, individualistic, entrepreneurial, and deeply invested in capitalism”: the upbeat, swinging generation of the new PMC (106). 

Carroll’s final chapters move back towards a focus on authors and publishers, with a sustained discussion of Allen Ginsberg and the prosecution of Lawrence Ferlinghetti for publishing Ginsberg’s poem Howl, and an examination of Barney Rosset’s Grove Press and its house magazine, Evergreen Review, which urged readers to reverse the PMC success-track and imbibe masochistic narratives that would enable each of them to “cease to be an individual member of a dominant class and become instead a victim or a conduit for forces outside of his control, even as he reaps private rewards” (179). EC’s comics had prepared the mental game-circuitry; Playboy had layered on erotic cool and sex-managerial savvy; now Grove Press inspired fantasies of divestment and degradation, a delicious fall to the bottom of the ladder. 

In a melancholy Afterword, Carroll mourns the passing of the transgressive editor in the digital age of mega-publishers and Internet porn, where censorship has become deplatformed and invisible, an exercise in profit-protecting by PayPal and other moneychangers in the online temple. These “abstract and impersonal systems” continue the analog world’s arbitrary silencing of authors, but the “post-pornographic era” lacks transgressive editors to defend authors against formal or informal censorship. Carroll ends by suggesting that we must “abolish the obscene mystique” (192)—the idea of masculine transcendence of the erotic along with the notion that pornography must serve a socially valuable or morally instructive purpose—and recognize that the mostly unknown authors of banned pornographic literature today write for “audiences of women and queer men primarily interested in sexual pleasure rather than personal edification” (192). If we desire “a greater range of erotic expression in literature,” Carroll concludes, we must abandon the old-school teachings of sex-transcendence and detachment and “wrest control of the book trade away from corporations owned and managed by the wealthy few” (193).

Carroll’s book contains a few legal inaccuracies. For example, he states that the 1933 federal action, United States v. One Book Called “Ulysses”, resulted in Joyce’s book being “tried and acquitted,” and later says that the judge in that case, John M. Woolsey, rendered a “‘not guilty’ verdict” (18, 20). These are fairly harmless errors, but they are common in law-and-literature studies and it seems worth pointing out that the Ulysses case was not a criminal matter, so there was no acquittal and no verdict of “not guilty.” The case was filed as a civil forfeiture action based on the Tariff Act of 1930. An imported copy of Ulysses had been seized at customs, and Random House had cleverly invited the litigation as a way of obtaining a federal finding of non-obscenity without risking a criminal prosecution. In fact, the Ulysses case was one of those in rem actions to which Hilliard gives such careful attention. Nor was there a “verdict” in the case, as there was no jury. The parties had agreed to waive a jury trial, submit cross-motions to Judge Woolsey, and have him decide the obscenity question after reading Ulysses and hearing oral argument. It was a procedure that Woolsey had recommended for an earlier Tariff Act case brought against Marie Stopes’s book, Contraception (51 F.2d 525 [S.D.N.Y. 1931]).

It is also a common error to suggest that in the 1920s and 1930s, courts in the United States “were tipping in the favor of free speech rights” (40). While progressive defense lawyers tried to introduce First Amendment principles into obscenity cases of the period, most judges brushed such arguments aside. For example, the attorney-crusader against obscenity laws, Morris L. Ernst, challenged the obscenity provisions of the Comstock Act and the Tariff Act as inconsistent with the First Amendment, but even judges as progressive as Woolsey and Augustus Hand had refused to hear him. In United States v. One Obscene Book Entitled “Married Love”, 48 F.2d 821 (S.D.N.Y. 1931), Judge Woolsey declared that there was “nothing in [Ernst’s] contention” that the forfeiture provision of the Tariff Act was “unconstitutional as impinging on the right of the freedom of the press.” Why? The provision did not “involve the suppression of a book before it is published, but the exclusion of an already published book which is sought to be brought into the United States.” In other words, because the Tariff Act did not authorize what the law calls a prior restraint on publication, the open-minded Woolsey could not see how the First Amendment had been violated. Even as late as 1950 when judges were increasingly asking whether obscenity laws were violative of free speech, the Massachusetts high court, ruling in an in rem action filed against Erskine Caldwell’s God’s Little Acre, dismissed constitutional questions as “requir[ing] no discussion” (Attorney General v. Book Named “God’s Little Acre”, 326 Mass. 281). The law was not yet fully prepared to entertain such novelties; obscenity was a question of fact, not of free speech. Was the book obscene under the statute, or was it not?

Carroll offers a detailed and thoughtful analysis of People v. Ferlinghetti (1957), the obscenity prosecution brought (in personam) against Lawrence Ferlinghetti as publisher of Allen Ginsberg’s controversial volume, Howl and Other Poems. Carroll suggests that the Howl case represented “just one battle in a long campaign of state surveillance and repression of homosexuality” (139), and he acknowledges that the talented defense team was effective in its efforts to show that Howl had redeeming social importance (under Roth v. United States, 354 U.S. 476 [1957]) and was therefore protected by the First Amendment. But Carroll registers regret that Ferlinghetti’s attorneys “skirt[ed] the issue of sodomy while ignoring the erotic reading practices advocated by [Ginsberg],” and “succeeded because they were able to downplay [Howl’s] queerness and enlist [it in] the service of a paranoid reading style that was fast becoming the dominant literary-reading method of university English departments” (140). The defense’s expert witnesses, too, “ignored” the erotic and homoerotic aspects of Howl, and the judge in his written opinion “ratified the defense team’s literary interpretations” of the poem as the depiction of a “nightmare world.” Carroll concedes that the defense team’s tactics were “legally necessary” but nevertheless finds them “disappointing” because they “saved Howl by completely discounting its poetics” (146, 147). “Far from presenting their own individualized interpretations of the text,” Carroll laments, “the defense lawyers and witnesses converge on a consensus that comports fully with existing sexual and legal norms” (147).

I find Carroll’s disappointment to be puzzling, yet it is a reaction not infrequently attested to by literary scholars in their examinations of obscenity cases. For example, some critics have taken Judge Woolsey to task for his famous opinion in United States v. One Book Called “Ulysses”, in which, they allege, he made Joyce’s work into a monument of aesthetic autonomy and muted the work’s raw, erotic indecency (see, for example, Joseph Kelly, Our Joyce: From Outcast to Icon [Austin: University of Texas Press, 1998]; Paul Vanderham, James Joyce and Censorship: The Trials of “Ulysses” [New York: New York University Press, 1998]). For these critics, Judge Woolsey, influenced by the arguments of Random House’s attorney Morris Ernst, told “well-intentioned lies” that distorted the character of Ulysses in order to achieve a legal result, and in the process served the interests of social and cultural elitism. Like these critics, Carroll seems to wish that the lawyers and the judge in People v. Ferlinghetti had used their forensic opportunity to engage more creatively with Howl’s norms-challenging poetics, instead of presenting the book as a cautionary tale about modern moral chaos.

But why would Ferlinghetti’s attorneys have done that? If they had, they might well have lost the case. Their primary duty was to get their client acquitted, and their secondary duty was to free Howl from further legal harassment. Neither duty would have been served by turning the case into a seminar on Ginsberg’s erotic reading practices—not in 1957 anyway. Lawyers make arguments that they believe will satisfy the requirements of the law and appeal to the normative expectations and, yes, sometimes the prejudices of judges and juries. In the Howl case, the lawyers were tailoring their arguments to the standards of current obscenity law, which focused on the average person in the community and on redeeming social importance. They weren’t “ignoring” the homoerotics of Howl as much as highlighting aspects of the poem that they believed aligned with the governing legal tests and would give the court a basis for acquittal.

Lawyers litigate with the goal of persuading a judge or a jury. Judges decide cases with one eye on the parties contending before them and the other on a future in which their decisions will be scrutinized for legal weaknesses or looked to for persuasive value. I can’t see how the defense lawyers in People v. Ferlinghetti could have done other than they did without risking legal incoherency and possibly conviction of their client. Literary and legal scholars should always be alert to the differences among distinct interpretive communities and their institutional competencies. The law is an interpretive community with its own codes, constraints, and goals. So is literary criticism. Both are locked into their enabling limitations. But they can be viewed as collaborative communities, different as they are. The law performs its work on Ulysses or Howl and then hands the liberated book over to other interpretive communities so that they may in turn perform their specialized work. (One idea of free speech is a pluralistic world in which different speakers speak differently.) Important scholarly work on Howl and “homoerotic communion” (143) may be done today because the lawyers and the court did their work effectively in 1957. To expect the law to mirror the interpretive work of scholars is to diminish this trans-temporal collaboration of competencies and to ignore valuable and inevitable institutional differences.

The law is not a unitary discourse. It is certainly not a monolithic institution or the wielder of one kind of coercive mechanism. No less than literature, it must be studied deeply and respectfully for its own uniqueness and complexity. If one failure of the law was to have mistaken heterodox literature for smut throughout the first half of the twentieth century and beyond, it’s because the law was not ready to view certain fictions and poems in their uniqueness and complexity. The history of obscenity litigation reveals the law’s gradual recognition of literature as difference, as other. Literary scholars should also recognize the law in its difference. 

Having offered this gentle harangue, I want to reiterate that Jordan Carroll’s book is an important contribution to obscenity studies and one of the most original books in this genre in years. Law and literature dwell together in productive unity in both his and Hilliard’s analyses. Our understanding of British and American obscenity law is richer for these two contributions.




Posted on 7 October 2022

ROBERT SPOO is Chapman Distinguished Professor of Law at the University of Tulsa College of Law, where he is also Associate Dean for Faculty Development. He is the author of Without Copyrights: Piracy, Publishing, and the Public Domain (Oxford, 2013) and Modernism and the Law (Bloomsbury, 2018). For the 2020-2021 academic year, he his a fellow in the Program in Law and Public Affairs at Princeton University.