Thy Neighbor's Wife, page 43
Whether or not Playboy reviews our book is irrelevant, indeed inconsequential. What is relevant, although equally inconsequential, is the impertinent, not to say hubristically insolent attitude [Lehrman] purveys. Since the man holds a titular editorial position, I can only conclude that he speaks for management in his thinking. And since management is you then the records should be set straight for his edification through proper channels.
The Supreme Court guidelines so casually mentioned—and most emphatically established in the early and mid sixties—were, in fact, largely established in decisions on cases our companies brought before the Court. Your junior-style editor was not around when the battle was being fought. He certainly was not present that night in my Evanston home back in ’53 when I told you and your lovely wife, Millie, that you couldn’t sell sex to the American public. A classic error in judgment before Playboy was born, but at the time in keeping with the commercial mores. You fought the battle then, and yet even then Playboy was condemned by the post office as an obscene publication and refused a second-class mailing permit until mid ’57 when I won a second-class mailing entry for my magazine, Rogue, through the Federal Court in Washington, and Playboy was granted its own entry without a court fight shortly thereafter, and as a result.
It would appear that somehow your staff feels it sits on some self-attained Olympian height when the fact is that others, and our efforts in particular, materially changed the legal atmosphere through an application of guts and perseverance. What would Mr. Lehrman know about “redeeming social value”? Has he ever sat in a Federal Courtroom where the point was being determined? I have, as you well know….
As to the Report itself, I hardly need Lehrman to inform my company of its importance…. Of course the Report is important. Having been a part of it I know, and for that very reason we published it. Far from the pussy-footing facade Lehrman represents we tell it loud and clear. But then that’s why freedom of speech and expression are what they are today. Because for some fifteen years my firms’ positions have been bold and straight-forward. Where does Lehrman think Playboy was spawned—in the namby-pamby conservatism of an Esquire back room?…. Doesn’t the guy know you worked in von Rosen’s sex-oriented publishing firm at that time (Publishers Development Corporation) and that Playboy came out of that association?
So please straighten your junior employee out on the matter of the book review. When you personally requested copies from me I sent them, feeling your interest was sincere in the project, realizing its importance in the culture and the controversy it would undoubtedly create. The Report is another milestone on the road to intellectual freedom. We’ve paved a lot of the road. This is one of the important stones. But we don’t need your assistance. We never did. I simply thought at long last you were ready to use some of the leadership your circulation warrants. Sorry I misread you. It won’t happen again.
Hugh Hefner did not reply, but among the responses that Hamling would soon receive after distributing his Illustrated Report around the country was a federal indictment brought against him in Dallas and San Diego by the United States Attorney General, John N. Mitchell. Hamling and three members of his staff in San Diego were charged with circulating and selling an “unauthorized” edition of the Presidential Commission Report on Obscenity and Pornography, and depicting the work with sexually obscene pictures.
Within a week of Mitchell’s announcement, Handing bought a full-page ad in the Los Angeles Times and the two San Diego dailies in which he criticized Mitchell’s act as a “thinly veiled political move” by the Nixon Administration to divert the American public’s attention to the “Pornography Menace” and away from “problems like: unemployment, hunger, poverty, growing urban blight, education, crushing taxation and undeclared wars far from home. The taxpayers’ money,” the ad continued, “should not be wasted on policing the thoughts and reading habits of the American people nor should citizens be punished for criticizing official action. The valuable time of the courts should not be wasted with such matters. The Attorney General, and the Administration, should devote their time and attention to the pressing problems of the day.”
Although the government’s legal proceedings against Hamling began conveniently in his home city, sparing hum the extra expense of starting with a trial in Dallas—where the FBI had purchased his illustrated book—the federal judge Hamling faced in San Diego, Gordon Thompson, had been a recent Nixon appointee; and even before the trial began Hamling felt that he was deeply ensconced in unsympathetic circumstances. First, Judge Thompson denied the defense attorney’s request for a one-month trial delay which would have allowed the court’s master wheel, from which jurors’ names are drawn, to include a recently compiled list of newly registered young voters who might be more sexually tolerant than the older names contained in the wheel that had been unrejuvenated for three years. Then the judge overruled the defense attorney’s suggestion that each prospective juror be asked such questions as: “Are you a member of the CDL?”; “Do you consider yourself deeply religious?”; “Have you recently heard a sermon at your place of worship dealing with the subject of obscenity?”
When the trial began in October 1971, it was with a relatively senior jury of nine men and three women; and, to Hamling’s discomfort, one of the first government witnesses was a strong CDL sympathizer and a contributor to Keating’s minority report, Dr. Melvin Anchell, who denounced Hamling’s illustrated book and brochure as examples of worthless “pruriency.” The San Diego newspapers covering the trial were equally unimpressed with Hamling’s illustrated book, referring to it as the “Smut Report”; and the word “smut” appeared repeatedly in the daily headlines: “Smut Case Snags over Conspiracy Facts”; “Judge Bans Beading of Smut Report”; “3 Experts Testify in Smut Trial.” In addition, the San Diego editors gave more newspaper space to the testimony of government witnesses than to the witnesses for the defense; and also disturbing to the defense was Judge Thompson’s decision to exclude the testimony of one of Hamling’s most supportive witnesses—a young woman who had recently completed a survey in San Diego in which, after showing 718 citizens a copy of Hamling’s erotic brochure, she discovered that a substantial majority of them thought the public should not be prohibited from seeing it. The judge dismissed the survey as irrelevant because, since Hamling was on trial for a federal offense—contaminating the mail—the evidence had to relate to the sexual standards of the nation as a whole, rather than merely to the standards of San Diego.
The trial, which lasted more than two months, ended in December 1971, and the jury experienced much difficulty in reaching a verdict. While the illustrations in Hamling’s book could not have been more sexually explicit to the jury, the members conceded among themselves that the pictures accurately portrayed what the Presidential Report was about; and the words in Hamling’s book consisted almost entirely of the hardly obscene prose and statistics of the commission. The jury was less forgiving, however, of the more than 55,000 advertising brochures that Hamling had mailed. While the brochure reprinted a sampling of the hard-core illustrations that were in the book, it did not include any verbatim excerpts from the commission’s text, devoting editorial space instead to an attack on President Nixon for having rejected the commission’s recommendations; and this combination had so offended at least a dozen citizens who had received it unsolicited in their mail that they each registered an official complaint with the Post Office. And so after six days of private debate and argument, the jury decided that the brochure, if not the book, was probably obscene; and on the basis of this conclusion Judge Thompson summoned William Hamling before the bench in February 1972 to sentence him somberly to four years in prison and fines totaling $87,000. Hamling’s chief editor, Earl Kemp, received a three-year prison term, while two subordinate employees were given suspended sentences and placed on probation for five years.
Hamling was stunned and embittered by the sentencing, but as he gained a conditional freedom on bail he was not completely dejected. He and his attorneys intended to take the case to the Court of Appeals for the Ninth Circuit in California; and, failing there, they would go to the United States Supreme Court, where Hamling’s books had been successful in the past.
In June 1973 the Court of Appeals made public its opinion of Hamling; siding with the lower court ruling, it affirmed Hamling’s guilt. Two weeks later, however, as Handing’s attorneys were preparing petitions for delivery to the Supreme Court, Hamling received news that he considered more ominous than anything he had heard during all his years in publishing: The Supreme Court had suddenly altered its definition of obscenity in a way that portended gloom for pornographers. In a surprising five-to-four decision largely dictated by the four Nixon appointees—Burger, Blackmun, Powell, Rehnquist; plus Justice White, a Kennedy appointee—the High Court had expeditiously removed from the language of the law the “utterly without redeeming social value” phrase that had long been the favorite loophole for sexual expressionists. As a result of the new law, made public on June 21, 1973, any prosecutor wishing to ban a sexual work no longer had to prove that it was “utterly without” value; it merely had to be lacking in “serious literary, artistic, political or scientific value” to be considered obscene. All the liberal trends of recent years—Redrup v. New York; Memoirs v. Massachusetts; Jacobellis v. Ohio—were now superseded by the new opinion written by Chief Justice Warren Burger; and the case that prompted him and his conservative colleagues to toughen the obscenity law involved a pornographer who had been cited for circulating obscene advertising brochures through the mail.
The convicted pornographer was Marvin Miller of Los Angeles, a man that William Hamling knew well by reputation. Miller had made millions in recent years through the distribution of X-rated home movies, hard-core photo magazines, and pornographic paperbacks; and, like so many other Americans who had been accused of scandalous publishing and trading—like Hamling, Hefner, and Barney Rosset of Grove Press; like David S. Alberts, a convicted Los Angeles mail-order merchandiser, and Ed Lange, a Los Angeles nudist park owner who had been the principal photographer of history’s most photographed nude woman, Diane Webber—Marvin Miller had been born and reared in the city of Chicago. It was as if that strongly Irish-Catholic town was destined to produce sexually obsessed native sons, most of whom would eventually exile themselves into more liberal surroundings. Chicago was America’s Dublin.
Marvin Miller was the son of a Chicago cabdriver who had died months before Marvin’s birth in 1929. After living with his impoverished Russian immigrant mother on welfare for five years, Marvin Miller was arrested at the age of six for breaking into a bakery shop, and was committed to the care of a Jewish juvenile agency. Most of Miller’s adolescence was thereafter spent in foster homes and state-operated boarding schools, where his supervisors invariably recognized his superior intelligence, his restless ambition, and—as would be noted years later in a parole report—his “flair for fast business deals.”
After dropping out of the University of Chicago during his freshman year, Miller worked variously as a bulk dealer in used silver foil, a salesman of wall-to-wall carpeting, an operator of dry-cleaning plants, a stockbroker, and a manager of a towel and linen supply firm in Los Angeles, where, during the early 1950s, he was convicted in court of falsifying the corporate records and bilking the company of more than $35,000. For these and other offenses, including allegations of arson, Miller would become a frequenter of California prisons, where his behavior was always exemplary but where he would be regarded by penal counselors as a born hustler, a man with a certain charm but also a limited sense of how the social system worked, and even less awareness of what might get him into trouble.
Following his release from prison in 1961, he in time gained notoriety in Los Angeles pornographic circles as a literary pirate, a distinction he first earned after privately copying and publishing in serialized form the Victorian classic My Secret Life, for which Grove Press in New York had just paid $50,000 to a German collector in acquiring what it assumed to be the exclusive American publishing rights. But Miller, without a word to anyone, serialized the work in ten separate issues of a magazine, selling each copy for $1.25 on the newsstands. When Grove’s Barney Rosset brought suit against Miller for infringement, a California judge found himself in the peculiar position of having to settle a dispute between two men both of which he would have liked to send to jail. But since My Secret Life had indisputably been in the public (albeit illegal) domain long before Grove Press had decided in the wake of the Roth ruling to release it as an expensive two-volume edition, Miller was technically protected from Grove’s litigation; and the only way that Rosset could stop Miller from continuing to print extra issues of the magazines was to pay Miller a substantial sum out of court, which is what Rosset unhappily did.
Marvin Miller’s brief good fortune would change when he started sending through the mail thousands of advertising brochures calling attention to several items he wished to sell. Among them was a $3.25 paperback picture book of nude male models called I, a Homosexual; a large-sized $10 picture book entitled The Name Is Bonnie, which promised twenty-four evocative color photographs of a nude blond woman; another $10 picture book, Africa’s Black Sexual Power, featuring a dark-skinned couple in congress; a $15 volume, An Illustrated History of Pornography, which consisted of 150 reproductions of erotic art works, including some from the classic collections of Somerset Maugham and King Farouk; and an X-rated 8 mm film called Marital Intercourse that was available for $50.
The names of the people who received Miller’s brochures had been supplied by a Los Angeles mailing-list brokerage—a company that specializes in compiling lists of mail-order customers whose names are grouped according to the type of merchandise they have ordered in the past, which might have included anything from garden supplies to antique auto parts. To safeguard his lists, the broker does not reveal the names of those with various “special interests,” but rather assumes all responsibility for the addressing and mailing of the advertising material the manufacturer wishes sent, and he charges the manufacturer as much as $100 per 1,000 names for his service. Marvin Miller requested the use of nearly 300,000 names, costing him almost $30,000; and while all the names were on the broker’s so-called “X and Y” list—meaning that the people had purchased “adult” merchandise in the past—there was really no way that the broker could be sure that Miller’s mailings would not occasionally get into the “wrong” hands, since the sex lists of brokers throughout the nation are infiltrated by the pseudonyms of postal inspectors and spies from moral societies.
It was therefore not surprising, in retrospect, that Miller’s advertising campaign would soon be followed by several complaints to the police—although, insofar as the law was concerned, it made no difference who opened the mail. Miller’s material was obscene, according to the verdict of a California court, and he was found guilty of a crime for which he would later be admonished by no less than the Chief Justice of the United States Supreme Court, Warren Burger. In his historic ruling of the case of Miller v. California, Burger wrote: “Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called ‘adult’ material,” and Burger added in a footnote: “The material we are discussing in this case is more accurately defined as ‘pornography’ or ‘pornographic material’. ‘Pornography’ derives from the Greek (pornē, harlot, and graphos, writing). The word now means ‘1: a description of prostitutes or prostitution. 2: a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.’ Webster’s New International Dictionary, supra. Pornographic material which is obscene forms a subgroup of all ‘obscene’ expression, but not the whole, at least as the word ‘obscene’ is now used in our language. We note, therefore, that the words ‘obscene material’, as used in this case, have a specific judicial meaning which derives from the Roth case, i.e., obscene material ‘which deals with sex.’”
Even before Marvin Miller’s case had come before the Supreme Court, Warren Burger had long been past the point of toleration for the manner in which sex was being represented in American books and magazines, films and live shows, not only in the big cities of the East and West Coast but also in the smaller midwestern communities of Minnesota where Burger had been reared in a family of moral rectitude and scrupulousness. During the last year nearly every state in the nation had been infiltrated by massage parlors, topless and bottomless bars, and such films as Deep Throat—a sixty-two-minute feature of which fifty minutes were devoted to scenes of group sex, fellatio, cunnilingus, female masturbation, anal sodomy, heterosexual intercourse, and seminal ejaculation. Not only did millions of men view the movie, but they also brought their wives and girl friends: Deep Throat was the first hard-core film that was seen by large numbers of couples, many of whom had been lured, through curiosity, to see this highly publicized production that had been regularly raided by vice squads across the land in a vigorous and futile attempt to completely ban the film.
But now in the case of Marvin Miller, Chief Justice Burger, together with the other Court conservatives, finally had an opportunity to express their outrage about sexual openness in America, and to exorcise the spirit of permissiveness that had been created by their judicial predecessors during the 1960s. The days were gone when pornographers could justify their obscene works by reprinting on the flyleaf of their tawdry books a “quotation from Voltaire,” Burger declared; and, enlarging on this theme, he continued: “Conduct or depictions of conduct that the state police power can prohibit on a public street does not become automatically protected by the Constitution merely because the conduct is moved to a bar or a ‘live’ theatre stage, any more than a ‘live’ performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue.”
