Thy Neighbor's Wife, page 41
Years later, with Hefner suddenly rich as the founder of Playboy and Hamling still toiling obscurely as an editor and freelance writer for pulp magazines, the two men met one afternoon for a friendly lunch in Chicago; and on their way to the restaurant, Hefner proudly directed Hamling’s attention toward a sporty new automobile that was parked at the curb, a bronze-colored Cadillac convertible that Hefner had just purchased. Hamling, who had driven into town in his battered 1941 Hudson, was impressed and mildly envious at how quickly Hefner’s circumstances had changed—Hefner was not only an affluent publisher but the personification of Playboy’s image; and while Hamling knew that he himself lacked the temperament to truly emulate his friend (Hamling preferred evenings at home with his wife, Frances, to pursuing playmates, while Hefner had recently left his wife, Mildred, in search of eternal bliss as a bachelor), Haming could not help but berate his own caution in having failed to buy the Playboy stock, which was now soaring. And as a result, during their lunch, Hamling sat across the table listening to Hefner with heightened respect and receptivity; and when Hefner, evincing concern for Hamling’s welfare, suggested that Hamling should also start a girlie magazine, adding that the men’s field had barely been explored and vast fortunes were waiting to be earned, Hamling decided that he was now ready to disregard his customary reticence.
Within a week, again following Hefner’s advice, Hamling contacted the director of the Empire News Company, Jerry Rosenfield, who had initially helped in the financing of Playboy and was currently profiting nicely as its national distributor; and Rosenfield reacted favorably to Hamling’s plan for a new magazine, promising to advance the necessary funds for printing it in return for the rights to distribute it. As a result, in November 1955, Hamling produced the first issue of a magazine called Rogue; and while it was less slick than Playboy, having black-and-white photographs instead of color, it was by late 1956 selling close to 300,000 copies per month and attracting sufficient attention on the newsstands to elicit the disapproval of the CDL—and to be classified as obscene by the Post Office, which sought to annul its second-class mailing privileges.
Hefner’s magazine had also been ruled obscene by the Post Office; but instead of prosecuting the more prosperous and established Playboy, the postal attorneys decided to direct their test case against Rogue, no doubt thinking that the latter would be easier to beat in court. But in Washington, Hamling had access to the Empire News’s law firm in which Abe Fortas was a partner; and while the defense of Rogue in the district court would cost Hamling $13,000 in legal fees, the Postmaster General was ultimately overruled—Hamling was awarded the second-class mailing rate; and Hugh Hefner, without any legal cost to himself, automatically received the same privileges for Playboy.
Hamling was thrilled with his legal triumph and the prominence it had earned him in the men’s magazine field; and as Rogue’s monthly circulation gradually approached 500,000, Hamling expanded in 1959 into the sex-oriented pulp paperback business, employing several talented, indigent writers who pseudonymously and prodigiously wrote quick-reading bawdy novels that Hamling sold in enormous quantities under the imprint of Nightstand Books.
Between 1960 and 1963, by which time he had moved his company to San Diego, Hamling had earned $4 million from his gaudy-jacketed novels, each of which preached a message of raunchy adventure—even though the titles that Hamling used on the covers curiously evoked the spirit of guilt. The words “sin,” “shame,” and “lust” repeatedly appeared in each new title: Sin Hooked, Lust Hungry, Shame Shop, Sin Whisper, Sin Warden, Shame Market, Passion Priestess, Sinners’ Seance, Penthouse Pagans, Bayou Sinners, Sin Servant, Lust Pool, Shame Agent—the titles could have come directly from the admonitions of the sex-denouncing nuns and priests in the Chicago parish from which Hamling had, in conscience, not quite escaped; and even in the sybaritic atmosphere of Southern California he personally resisted the temptations that were so fulsomely described in the novels that he dispatched by the truckload to the back racks of drugstores and newsstands around the nation. William Hamling remained, as he had been in Chicago, a devoted husband, a father of six children, a conservatively dressed businessman who could as easily have been manufacturing neckties or air conditioners or auto parts. If he deserved credit for becoming a plutocrat in the pulpy trade of third-rate fiction in the early 1960s, it was because he understood, thanks to Hugh Hefner, that America was on the verge of a sex-publishing boom; and he soon realized that there were millions of conventional men like himself who received vicarious pleasure in reading about wild women who resembled not in the least the wives with whom they chose to live. Hamling’s typical book buyers were closet Lotharios, ordinary men with extraordinary fantasies that were rarely catered to in the more subtle sensuous novels distributed by the larger so-called legitimate publishers in New York.
Hamling could not have become rich had the nation’s obscenity laws not become more liberal just as he was venturing into the paperback sex business. The Supreme Court’s altered definition of obscenity, first alluded to in the Roth opinion, not only legalized in 1959 such distinguished fiction as D. H. Lawrence’s Lady Chatterley’s Lover but also the sexually explicit works of many inferior writers and filmmakers, magazine and paperback publishers. In two subsequent Supreme Court cases, the freedoms implied in the Roth ruling were expanded still further: In the 1962 case of Manual Enterprises v. Day, the Court liberated several nude male “body-building” magazines for homosexuals from the restraints of Postmaster General Edward Day; and in the 1964 case of Jacobellis v. Ohio, the Supreme Court negated a lower-court conviction against a Cleveland theater manager, Nico Jacobellis, who had shown an art film called Les Amants that focused on the infidelities of a bored French housewife. In the Jacobellis opinion, the Court emphasized what had been merely implicit in Roth: that a film or any other form of expression, regardless of its sexual or immoral content, could not be prohibited as obscene unless it was “utterly without social importance.” On the basis of that phrase, a federal court in Illinois in November 1964 felt compelled to void a conviction it had recently affirmed against comedian Lenny Bruce. While the Illinois court still insisted that Bruce’s nightclub routines were revolting and disgusting, it was forced to admit that some of the topics he discussed on stage had “social importance.”
Finally, in the 1965 case of Memoirs v. Massachusetts (in which the Supreme Court overruled the Massachusetts attorney general, Edward W. Brooke, who had been adhering to the Massachusetts tradition of continuously condemning the Fanny Hill book that had first been outlawed in Massachusetts in 1821) the prevailing opinion of Justice Brennan declared that a book or film or magazine could be classified as legally obscene only if it was simultaneously guilty of each of three offenses: It had to appeal to the average person’s “prurient interest” in sex; it had to be “patently offensive” to the average adult; and it had to be “utterly without redeeming social value.”
Since very few works are “utterly without” some redeeming value even if prurient and patently offensive, the greatest bulk of questionable periodicals, photographs, films, and books—including millions of Hamling’s Nightstand paperback books—were allowed to be sold in every hamlet of the nation during the mid-1960s. But the tolerant First Amendment tendencies of a majority of the nine justices did not mean that the advocates of sexual censorship within the government and the lower courts ceased to harass and prosecute sexual expressionists during this period. On the contrary, the campaigners against “smut” became increasingly stubborn and vigilant; and the federal agents and municipal vice squads (supported by church leaders and citizens’ groups like the CDL) became more deliberate and exacting in their methods of marshaling provable evidence against the purveyors of sex, knowing that the latter’s well-paid attorneys would probably appeal each lower court conviction to a higher court, and, if necessary, up to the Supreme Court in the hope of gaining a reversal on the basis of some legal technicality, or some inventive interpretation of the malleable wording of the flexible definition of the crime of obscenity.
Thus the Post Office Department bolstered its efforts against the pornographers by increasing its number of inspectors and “decoy” letter writers—postal employees who, using false names and addresses, answered ads for hard-core sexual material in an attempt to trap the pornographers into violating the Comstock law that prohibits the sending of obscenity through the mail. One postal inspector, the dean of decoys named Harry Simon, used dozens of pseudonyms (impersonating shy bachelors, aging widowers, college boys, small-town farmers) in his hundreds of letters of request to the mail-order distributors of hard-core photographs, “marital aids,” and kinky books. Many of these letters, which would be mailed from different sections of the country by Simon’s confederates, would list as a return address a post office box located in a conservative community in which there were illiberal judges and right-minded, puritanical citizens from which a jury would be drawn—thereby allowing the federal prosecutors to take advantage of the congressional amendment of 1958 that could force a sexual merchandiser to stand trial in any town where his material had been received. A long trial lasting a few months in a distant city could financially jeopardize and maybe bankrupt a sex merchant, even if the government’s case was weak, because the merchant was deprived of operating the business that was his source of income and was subjected to the mounting legal fees and travel costs of the attorneys who lived with him and dined at his expense in hotels, to say nothing of the expenses incurred by any of his employees who had been forced to stand trial with him.
Congressmen were kept apprised of the spreading pornography through abundant mail from moral societies and private individuals who complained that their neighborhood drugstores and newsstands were being littered with trashy literature that had no redeeming value whatsoever; and much disparaging mail was also sent to the Supreme Court, which was particularly the target of right-wing Americans because of the Court’s permissive rulings with regard to free expression and individual liberties and its seeming disregard for the traditions of conservative families and church groups. During the era of Earl Warren as Chief Justice, which began in 1953, the Court had been vilified by various factions for having outlawed compulsory religious exercises in public schools, for desegregating schools, for curbing wiretapping, for liberalizing residency requirements for welfare recipients, for allowing federal prisoners to sue the government if injured while in jail, for denying law-enforcement authorities “unreasonable” searches and seizures, for sustaining the right to disseminate and receive birth control information. On the issue of free speech and sexual expression, no justice received more scornful mail than the Court’s most doctrinaire civil libertarian, William O. Douglas.
As Justice Douglas opened and read these letters, a number of which were signed by students, he often recognized a precise similarity in phrases and even punctuation, causing him to conclude that the letters were copied off the blackboards of schools or churches. While most of the letters attacked his legal decisions, a few also criticized his private life and many marriages. In 1963, while in his mid-sixties, Justice Douglas took as his third wife a woman in her twenties. Three years later, he would marry again—to another bride in her twenties. In the long history of the Supreme Court, beginning in 1789, there had only been three divorces involving justices. All three were the divorces of Justice Douglas.
Since joining the Court in 1939 on the recommendation of President Roosevelt, William O. Douglas had symbolized the cause of individualism against the force of authoritarianism. “The Constitution,” he once wrote, “was designed to keep Government off the backs of the people.” The enmity that Justice Douglas generated in conservative quarters led to three futile efforts by his adversaries to impeach him. The first occurred in 1953 when, during the anti-Communist hysteria inspired by the witch-hunt of Senator Joseph McCarthy, Douglas issued a stay of execution in behalf of the accused Soviet spies Julius and Ethel Rosenberg—who nonetheless died later that year in the electric chair. The second call for Douglas’ ouster followed his third divorce; and another attempt to remove him ensued after the publication of his book Points of Rebellion—which, as described in the impeachment resolution of the House minority leader, Gerald Ford, was an invitation to “violence, anarchy and civil unrest.” When an excerpt from Douglas’ book appeared in Grove Press’s Evergreen Review, an untimid literary monthly often adorned by erotic illustrations and stories, Gerald Ford stood in the halls of Congress brandishing the Evergreen issue that contained Douglas’ excerpt; and the resolution also alleged that Justice Douglas had accepted funds from improper sources—charges that in both instances were proved to be false after an investigation directed by a House subcommittee. As Senator William Langer of North Dakota once remarked to the Supreme Court’s most controversial Justice: “Douglas, they have thrown several buckets of shit over you—but by God, none of it stuck.”
It was equally true that all the impeachment threats and vituperative letters that he received failed to diminish Douglas’ commitment to a free press and tolerance of sexual expression even when it did lack identifiable redeeming importance. “Whatever obscenity is,” Justice Douglas once observed, “it is immeasurable as a crime and delineable only as a sin. As a sin, it is present only in the minds of some and not in the minds of others, and is entirely too subjective for legal sanction.” In his view, the task of properly censoring what is sexually improper is beyond the wisdom and understanding of the moral societies, the police, the postmasters, the clergymen, the juries, and the judges—including the nine honorable sages of law who sat on the loftiest bench in the land. “With all respect,” he wrote of his Supreme Court colleagues, “I do not know of any group in the country less qualified first, to know what obscenity is when they see it, and second, to have any considered judgment as to what the deleterious or beneficial impact of a particular publication may be on minds either young or old.”
But despite Douglas’ low estimation of his fellow jurists’ erotic perceptions, and his wish that the courts and the constables stay away from the nation’s keyholes and direct their attention to what should truly be the legal concern of the state, the Supreme Court nevertheless continued throughout the 1960s to scrutinize the sources of fantasy and pleasure of American citizens; and in two unusual cases, the High Court uncharacteristically decided that the publishers of sex books were so socially unredemptive that the two men on trial deserved nothing less than to go to jail.
One of these men was named Edward Mishkin. His case—Mishkin v. the State of New York—was heard by the Court on the same December day in 1965 that it listened to the argument of Memoirs v. Massachusetts; but Mishkin’s situation was entirely different from the one that would free the ancient tale of Fanny Hill. Mishkin had been arrested and convicted in New York, fined $12,000, and sentenced to three years in prison, for manufacturing, selling, and grossly advertising several pulp paperback novels that seemed to be less obsessed with heterosexual activity than with sadomasochism, fetishism, and other presumed deviations. When Mishkin’s attorneys appealed the conviction to the Supreme Court, they offered a unique argument that they hoped would liberate their client: They conceded that Mishkin’s books might be devoid of redeeming value, and might even disgust and sicken the average adult reader; but these books were not written for, and certainly did not arouse the prurient interest of, the average reader. And thus under the specific definition of obscenity, which required that the average reader be made vulnerable to arousing imagery, Mishkin’s bizarre books could not be classified as obscene.
But this logic failed in the final analysis to impress a sufficient number of justices to be of benefit to Mishkin. While Justice Douglas, Potter Stewart, and Hugo Black voted to overturn the Mishkin sentence on First Amendment grounds (Justice Black, like Douglas, insisted that the government had no jurisdiction over the nation’s printing presses, no matter what kind of immoral or deviant literature the presses produced), the six other Justices felt that the lower-court conviction against Mishkin had been justified and they did not void his fine or prison term.
The second individual to appeal to the Supreme Court at this time was also a New Yorker—Ralph Ginzburg, publisher of a magazine called Eros, a book entitled The Housewife’s Handbook on Selective Promiscuity, and a biweekly newsletter called Liaison. The magazine Eros, which had provoked the indictment against Ginzburg on charges that he had violated the Comstock postal act, was actually more titillating than sexually obscene: Its color photographs of people did not show genitalia or pubic hair; its articles did not blatantly appeal to prurient interest, and its elegant graphics, its heavy paper, and hard cover marked it as a magazine of uncommon design and quality. A quarterly, it was sold by mail subscription at the rate of $25 per year; and during its first year of publication its pages featured such material as Guy de Maupassant’s short story “Madame Tellier’s Brothel,” illustrated by Edgar Degas; color reproductions of classical nude paintings that can be seen in major museums; and lustful selections from the Bible, embellished by woodcuts of Old Testament figures. There was also an article by psychologist Albert Ellis entitled “A Plea for Polygamy”; another article by Phyllis and Eberhard Kronhausen called “The Natural Superiority of Women as Eroticists”; a reprint of Mark Twain’s once-controversial essay “1601”; examples of Shakespeare’s poetry that were interpreted to suggest that he was a homosexual; photographs of male prostitutes in Bombay; and a story about the infamous Nan Britton, who caused a national scandal in the early 1920s after claiming that she was the mother of an illegitimate child sired by the President of the United States, Warren G. Harding.
In the fourth issue of Eros, mailed out to subscribers during the winter of 1962, there was included a feature that Ginzburg called “Black & White in Color,” a series of photographs showing a muscular nude black man intimately engaged with an attractive nude white woman; and while none of the sixteen pictures focused on the genitalia, the couple were clearly depicted as lovers. In some pictures they were seen kissing; in others they were stroking one another and lying side by side; and, in perhaps the most striking picture, they were standing face to face with their arms clasped around one another’s backs, their thighs and pelvises firmly in contact, their bodies so tightly together that the woman’s left breast was pressed flat against the hard chest of the black man. In the introduction to these pictures that Eros called a “photographic tone poem,” it was stated—in deference to the law’s “redeeming social value” aspect—that the couple were dedicated to “the conviction that love between a man and a woman, no matter what their races, is beautiful”; and, the text continued: “Interracial couples of today bear the indignity of having to defend their love to a questioning world. Tomorrow these couples will be recognized as the pioneers of an enlightened age in which prejudice will be dead and the only race will be the human race.”
Within a week, again following Hefner’s advice, Hamling contacted the director of the Empire News Company, Jerry Rosenfield, who had initially helped in the financing of Playboy and was currently profiting nicely as its national distributor; and Rosenfield reacted favorably to Hamling’s plan for a new magazine, promising to advance the necessary funds for printing it in return for the rights to distribute it. As a result, in November 1955, Hamling produced the first issue of a magazine called Rogue; and while it was less slick than Playboy, having black-and-white photographs instead of color, it was by late 1956 selling close to 300,000 copies per month and attracting sufficient attention on the newsstands to elicit the disapproval of the CDL—and to be classified as obscene by the Post Office, which sought to annul its second-class mailing privileges.
Hefner’s magazine had also been ruled obscene by the Post Office; but instead of prosecuting the more prosperous and established Playboy, the postal attorneys decided to direct their test case against Rogue, no doubt thinking that the latter would be easier to beat in court. But in Washington, Hamling had access to the Empire News’s law firm in which Abe Fortas was a partner; and while the defense of Rogue in the district court would cost Hamling $13,000 in legal fees, the Postmaster General was ultimately overruled—Hamling was awarded the second-class mailing rate; and Hugh Hefner, without any legal cost to himself, automatically received the same privileges for Playboy.
Hamling was thrilled with his legal triumph and the prominence it had earned him in the men’s magazine field; and as Rogue’s monthly circulation gradually approached 500,000, Hamling expanded in 1959 into the sex-oriented pulp paperback business, employing several talented, indigent writers who pseudonymously and prodigiously wrote quick-reading bawdy novels that Hamling sold in enormous quantities under the imprint of Nightstand Books.
Between 1960 and 1963, by which time he had moved his company to San Diego, Hamling had earned $4 million from his gaudy-jacketed novels, each of which preached a message of raunchy adventure—even though the titles that Hamling used on the covers curiously evoked the spirit of guilt. The words “sin,” “shame,” and “lust” repeatedly appeared in each new title: Sin Hooked, Lust Hungry, Shame Shop, Sin Whisper, Sin Warden, Shame Market, Passion Priestess, Sinners’ Seance, Penthouse Pagans, Bayou Sinners, Sin Servant, Lust Pool, Shame Agent—the titles could have come directly from the admonitions of the sex-denouncing nuns and priests in the Chicago parish from which Hamling had, in conscience, not quite escaped; and even in the sybaritic atmosphere of Southern California he personally resisted the temptations that were so fulsomely described in the novels that he dispatched by the truckload to the back racks of drugstores and newsstands around the nation. William Hamling remained, as he had been in Chicago, a devoted husband, a father of six children, a conservatively dressed businessman who could as easily have been manufacturing neckties or air conditioners or auto parts. If he deserved credit for becoming a plutocrat in the pulpy trade of third-rate fiction in the early 1960s, it was because he understood, thanks to Hugh Hefner, that America was on the verge of a sex-publishing boom; and he soon realized that there were millions of conventional men like himself who received vicarious pleasure in reading about wild women who resembled not in the least the wives with whom they chose to live. Hamling’s typical book buyers were closet Lotharios, ordinary men with extraordinary fantasies that were rarely catered to in the more subtle sensuous novels distributed by the larger so-called legitimate publishers in New York.
Hamling could not have become rich had the nation’s obscenity laws not become more liberal just as he was venturing into the paperback sex business. The Supreme Court’s altered definition of obscenity, first alluded to in the Roth opinion, not only legalized in 1959 such distinguished fiction as D. H. Lawrence’s Lady Chatterley’s Lover but also the sexually explicit works of many inferior writers and filmmakers, magazine and paperback publishers. In two subsequent Supreme Court cases, the freedoms implied in the Roth ruling were expanded still further: In the 1962 case of Manual Enterprises v. Day, the Court liberated several nude male “body-building” magazines for homosexuals from the restraints of Postmaster General Edward Day; and in the 1964 case of Jacobellis v. Ohio, the Supreme Court negated a lower-court conviction against a Cleveland theater manager, Nico Jacobellis, who had shown an art film called Les Amants that focused on the infidelities of a bored French housewife. In the Jacobellis opinion, the Court emphasized what had been merely implicit in Roth: that a film or any other form of expression, regardless of its sexual or immoral content, could not be prohibited as obscene unless it was “utterly without social importance.” On the basis of that phrase, a federal court in Illinois in November 1964 felt compelled to void a conviction it had recently affirmed against comedian Lenny Bruce. While the Illinois court still insisted that Bruce’s nightclub routines were revolting and disgusting, it was forced to admit that some of the topics he discussed on stage had “social importance.”
Finally, in the 1965 case of Memoirs v. Massachusetts (in which the Supreme Court overruled the Massachusetts attorney general, Edward W. Brooke, who had been adhering to the Massachusetts tradition of continuously condemning the Fanny Hill book that had first been outlawed in Massachusetts in 1821) the prevailing opinion of Justice Brennan declared that a book or film or magazine could be classified as legally obscene only if it was simultaneously guilty of each of three offenses: It had to appeal to the average person’s “prurient interest” in sex; it had to be “patently offensive” to the average adult; and it had to be “utterly without redeeming social value.”
Since very few works are “utterly without” some redeeming value even if prurient and patently offensive, the greatest bulk of questionable periodicals, photographs, films, and books—including millions of Hamling’s Nightstand paperback books—were allowed to be sold in every hamlet of the nation during the mid-1960s. But the tolerant First Amendment tendencies of a majority of the nine justices did not mean that the advocates of sexual censorship within the government and the lower courts ceased to harass and prosecute sexual expressionists during this period. On the contrary, the campaigners against “smut” became increasingly stubborn and vigilant; and the federal agents and municipal vice squads (supported by church leaders and citizens’ groups like the CDL) became more deliberate and exacting in their methods of marshaling provable evidence against the purveyors of sex, knowing that the latter’s well-paid attorneys would probably appeal each lower court conviction to a higher court, and, if necessary, up to the Supreme Court in the hope of gaining a reversal on the basis of some legal technicality, or some inventive interpretation of the malleable wording of the flexible definition of the crime of obscenity.
Thus the Post Office Department bolstered its efforts against the pornographers by increasing its number of inspectors and “decoy” letter writers—postal employees who, using false names and addresses, answered ads for hard-core sexual material in an attempt to trap the pornographers into violating the Comstock law that prohibits the sending of obscenity through the mail. One postal inspector, the dean of decoys named Harry Simon, used dozens of pseudonyms (impersonating shy bachelors, aging widowers, college boys, small-town farmers) in his hundreds of letters of request to the mail-order distributors of hard-core photographs, “marital aids,” and kinky books. Many of these letters, which would be mailed from different sections of the country by Simon’s confederates, would list as a return address a post office box located in a conservative community in which there were illiberal judges and right-minded, puritanical citizens from which a jury would be drawn—thereby allowing the federal prosecutors to take advantage of the congressional amendment of 1958 that could force a sexual merchandiser to stand trial in any town where his material had been received. A long trial lasting a few months in a distant city could financially jeopardize and maybe bankrupt a sex merchant, even if the government’s case was weak, because the merchant was deprived of operating the business that was his source of income and was subjected to the mounting legal fees and travel costs of the attorneys who lived with him and dined at his expense in hotels, to say nothing of the expenses incurred by any of his employees who had been forced to stand trial with him.
Congressmen were kept apprised of the spreading pornography through abundant mail from moral societies and private individuals who complained that their neighborhood drugstores and newsstands were being littered with trashy literature that had no redeeming value whatsoever; and much disparaging mail was also sent to the Supreme Court, which was particularly the target of right-wing Americans because of the Court’s permissive rulings with regard to free expression and individual liberties and its seeming disregard for the traditions of conservative families and church groups. During the era of Earl Warren as Chief Justice, which began in 1953, the Court had been vilified by various factions for having outlawed compulsory religious exercises in public schools, for desegregating schools, for curbing wiretapping, for liberalizing residency requirements for welfare recipients, for allowing federal prisoners to sue the government if injured while in jail, for denying law-enforcement authorities “unreasonable” searches and seizures, for sustaining the right to disseminate and receive birth control information. On the issue of free speech and sexual expression, no justice received more scornful mail than the Court’s most doctrinaire civil libertarian, William O. Douglas.
As Justice Douglas opened and read these letters, a number of which were signed by students, he often recognized a precise similarity in phrases and even punctuation, causing him to conclude that the letters were copied off the blackboards of schools or churches. While most of the letters attacked his legal decisions, a few also criticized his private life and many marriages. In 1963, while in his mid-sixties, Justice Douglas took as his third wife a woman in her twenties. Three years later, he would marry again—to another bride in her twenties. In the long history of the Supreme Court, beginning in 1789, there had only been three divorces involving justices. All three were the divorces of Justice Douglas.
Since joining the Court in 1939 on the recommendation of President Roosevelt, William O. Douglas had symbolized the cause of individualism against the force of authoritarianism. “The Constitution,” he once wrote, “was designed to keep Government off the backs of the people.” The enmity that Justice Douglas generated in conservative quarters led to three futile efforts by his adversaries to impeach him. The first occurred in 1953 when, during the anti-Communist hysteria inspired by the witch-hunt of Senator Joseph McCarthy, Douglas issued a stay of execution in behalf of the accused Soviet spies Julius and Ethel Rosenberg—who nonetheless died later that year in the electric chair. The second call for Douglas’ ouster followed his third divorce; and another attempt to remove him ensued after the publication of his book Points of Rebellion—which, as described in the impeachment resolution of the House minority leader, Gerald Ford, was an invitation to “violence, anarchy and civil unrest.” When an excerpt from Douglas’ book appeared in Grove Press’s Evergreen Review, an untimid literary monthly often adorned by erotic illustrations and stories, Gerald Ford stood in the halls of Congress brandishing the Evergreen issue that contained Douglas’ excerpt; and the resolution also alleged that Justice Douglas had accepted funds from improper sources—charges that in both instances were proved to be false after an investigation directed by a House subcommittee. As Senator William Langer of North Dakota once remarked to the Supreme Court’s most controversial Justice: “Douglas, they have thrown several buckets of shit over you—but by God, none of it stuck.”
It was equally true that all the impeachment threats and vituperative letters that he received failed to diminish Douglas’ commitment to a free press and tolerance of sexual expression even when it did lack identifiable redeeming importance. “Whatever obscenity is,” Justice Douglas once observed, “it is immeasurable as a crime and delineable only as a sin. As a sin, it is present only in the minds of some and not in the minds of others, and is entirely too subjective for legal sanction.” In his view, the task of properly censoring what is sexually improper is beyond the wisdom and understanding of the moral societies, the police, the postmasters, the clergymen, the juries, and the judges—including the nine honorable sages of law who sat on the loftiest bench in the land. “With all respect,” he wrote of his Supreme Court colleagues, “I do not know of any group in the country less qualified first, to know what obscenity is when they see it, and second, to have any considered judgment as to what the deleterious or beneficial impact of a particular publication may be on minds either young or old.”
But despite Douglas’ low estimation of his fellow jurists’ erotic perceptions, and his wish that the courts and the constables stay away from the nation’s keyholes and direct their attention to what should truly be the legal concern of the state, the Supreme Court nevertheless continued throughout the 1960s to scrutinize the sources of fantasy and pleasure of American citizens; and in two unusual cases, the High Court uncharacteristically decided that the publishers of sex books were so socially unredemptive that the two men on trial deserved nothing less than to go to jail.
One of these men was named Edward Mishkin. His case—Mishkin v. the State of New York—was heard by the Court on the same December day in 1965 that it listened to the argument of Memoirs v. Massachusetts; but Mishkin’s situation was entirely different from the one that would free the ancient tale of Fanny Hill. Mishkin had been arrested and convicted in New York, fined $12,000, and sentenced to three years in prison, for manufacturing, selling, and grossly advertising several pulp paperback novels that seemed to be less obsessed with heterosexual activity than with sadomasochism, fetishism, and other presumed deviations. When Mishkin’s attorneys appealed the conviction to the Supreme Court, they offered a unique argument that they hoped would liberate their client: They conceded that Mishkin’s books might be devoid of redeeming value, and might even disgust and sicken the average adult reader; but these books were not written for, and certainly did not arouse the prurient interest of, the average reader. And thus under the specific definition of obscenity, which required that the average reader be made vulnerable to arousing imagery, Mishkin’s bizarre books could not be classified as obscene.
But this logic failed in the final analysis to impress a sufficient number of justices to be of benefit to Mishkin. While Justice Douglas, Potter Stewart, and Hugo Black voted to overturn the Mishkin sentence on First Amendment grounds (Justice Black, like Douglas, insisted that the government had no jurisdiction over the nation’s printing presses, no matter what kind of immoral or deviant literature the presses produced), the six other Justices felt that the lower-court conviction against Mishkin had been justified and they did not void his fine or prison term.
The second individual to appeal to the Supreme Court at this time was also a New Yorker—Ralph Ginzburg, publisher of a magazine called Eros, a book entitled The Housewife’s Handbook on Selective Promiscuity, and a biweekly newsletter called Liaison. The magazine Eros, which had provoked the indictment against Ginzburg on charges that he had violated the Comstock postal act, was actually more titillating than sexually obscene: Its color photographs of people did not show genitalia or pubic hair; its articles did not blatantly appeal to prurient interest, and its elegant graphics, its heavy paper, and hard cover marked it as a magazine of uncommon design and quality. A quarterly, it was sold by mail subscription at the rate of $25 per year; and during its first year of publication its pages featured such material as Guy de Maupassant’s short story “Madame Tellier’s Brothel,” illustrated by Edgar Degas; color reproductions of classical nude paintings that can be seen in major museums; and lustful selections from the Bible, embellished by woodcuts of Old Testament figures. There was also an article by psychologist Albert Ellis entitled “A Plea for Polygamy”; another article by Phyllis and Eberhard Kronhausen called “The Natural Superiority of Women as Eroticists”; a reprint of Mark Twain’s once-controversial essay “1601”; examples of Shakespeare’s poetry that were interpreted to suggest that he was a homosexual; photographs of male prostitutes in Bombay; and a story about the infamous Nan Britton, who caused a national scandal in the early 1920s after claiming that she was the mother of an illegitimate child sired by the President of the United States, Warren G. Harding.
In the fourth issue of Eros, mailed out to subscribers during the winter of 1962, there was included a feature that Ginzburg called “Black & White in Color,” a series of photographs showing a muscular nude black man intimately engaged with an attractive nude white woman; and while none of the sixteen pictures focused on the genitalia, the couple were clearly depicted as lovers. In some pictures they were seen kissing; in others they were stroking one another and lying side by side; and, in perhaps the most striking picture, they were standing face to face with their arms clasped around one another’s backs, their thighs and pelvises firmly in contact, their bodies so tightly together that the woman’s left breast was pressed flat against the hard chest of the black man. In the introduction to these pictures that Eros called a “photographic tone poem,” it was stated—in deference to the law’s “redeeming social value” aspect—that the couple were dedicated to “the conviction that love between a man and a woman, no matter what their races, is beautiful”; and, the text continued: “Interracial couples of today bear the indignity of having to defend their love to a questioning world. Tomorrow these couples will be recognized as the pioneers of an enlightened age in which prejudice will be dead and the only race will be the human race.”
