The first two words of the title caught my eye: Obscenity Rules. Did they suggest a roar of triumph, an occasion for fist-pumping and saying, “Yeah! Obscenity rules!” Or did they indicate that the book is a dispassionate guide to the legal landscape of free expression in the 21st century? And who was this “Roth” person? I wrote to the author of the new book, Obscenity Rules: Roth v. United States and the Long Struggle over Sexual Expression (Buy at Amazon or UP of Kansas), Whitney Strub, to ask him for an interview. He graciously agreed, and this is the result.
Thank you for agreeing to this interview, Whit. First of all, I note that your book is one of the volumes of the series Landmark Law Cases and American Society from the University Press of Kansas. And yet I had never heard of this case. Am I unusual in that?
Thanks for having me! And no, you’re surely not unusual in being unfamiliar with Roth. Though it’s a major free-speech case – a landmark, even, as the series has it – it’s not one of those rare cases like Brown v. Board or Roe v. Wade that’s become a household name. Yet, as I hope the book shows, Roth played a central role in facilitating (and also containing) the sexual revolution. Without it, there could have been no legal Tropic of Cancer, much less Deep Throat – for better or worse.
Is part of the reason people like me knew so little about Roth due to what you write about here, “Overshadowing all of the obscenity cases were the series of communism cases handed down a week earlier?” Could you tell us about “Red Monday?”
Red Monday (as the press dubbed it) was a set of cases in which the Supreme Court began moving away from its acquiescence to Cold War-era policies that subjugated civil liberties to the always-amorphous “national security.” The legal story here is extremely convoluted, but in a nutshell, the Court began siding with the free-speech rights of communists and other political radicals, after having allowed their prosecution (some might say persecution) under the antiradical 1941 Smith Act for many years.
So that shift overshadowed Roth in the national press at the time. But I think the real reason for general unfamiliarity with Roth is more just the American public’s broader lack of close attention to Supreme Court cases, especially complicated, muddled ones like Roth. I’ve found in conversation and teaching that if people know one thing about obscenity doctrine, it’s the phrase “I know it when I see it” – which Justice Potter Stewart wrote as an aside in a concurrence several years later, in 1964.
Please tell a bit about Samuel Roth. Could you start with the end of life in 1974? What do you think he had accomplished by that point?
By the time Roth died, he was a largely forgotten figure, but the impact of his case was on abundant display. “Porno chic” had just become a cultural phenomenon a year earlier, as couples and celebrities began attending hardcore porn movies like Deep Throat and The Devil in Miss Jones; it became something of a merit badge in Sexual Revolution, evidence that one was hip and maybe even “liberated.”
Roth himself had reason to be ambivalent about this, though – the bitter irony of his case was that, although Roth loosened the reins on sexual expression in the United States, the opinion itself actually affirmed his obscenity conviction. So Samuel Roth had spent a half-decade imprisoned in the late 1950s, and by the time he was released, neither of the texts that had sent him there (a Playboy-like magazine called Good Times and a more literary journal of erotic stories called American Aphrodite) would possibly have been considered obscene, at least by the federal courts (with whom many cases were ultimately appealed; winning convictions in trial courts was always easier than sustaining them on appeal).
Before that, Roth had a fascinating life; the child of eastern European Jewish immigrants, he grew up in New York City in the early 20th century, found his way to the Greenwich Village bohemian literary world as a young man, and seemed on the way to establishing himself as a poet until his unsanctioned publication of James Joyce’s Ulysses led to his expulsion from the scene. After that, he turned to more sordid material and outright smut to get by, and his legal battles with censors and state and federal authorities ran from the 1920s to the 1950s. He was imprisoned multiple times, but the final one was his longest sentence, resulting from the sharp turn toward sexual conservatism that Cold War culture generated in the 1950s.
This all barely scratches the surface of Roth’s adventures and shenanigans – some of which are amusing in a raconteur-like way, others of which are profoundly disturbing (he wrote a repulsive anti-Semitic manifesto, Jews Must Live, in the early 1930s, which still circulates online today among various hate groups). Roth’s personal papers, which opened a few years ago at Columbia University, are an absolute goldmine for cultural and literary history – his correspondence ranged from T.S. Eliot and Ezra Pound to various forgotten pulp novelists. There was even an unpublished novel by the great Harlem Renaissance author Claude McKay buried in there, written when he was down on his luck!
You tell us in the book that it grew out of a beer-fueled trivia game session in a bar. How did the Roth case come up in the course of that game?
Hope, my dean might read this! But (alas?), the story is hardly a rum-soaked Hunter S. Thompson story: I was playing Quizzo with my friends Hilary Lowe and Seth Bruggeman, both great scholars who teach at Temple, and they encouraged me to think about the Landmark Law Cases series. I’d like to imagine this was in response to an arcane trivia question about obscenity doctrine, but more likely, we’re all just a bunch of nerds and were discussing publishing plans or something like that. I wish I had a more exciting response here. I don’t think we even won at Quizzo that night.
One of the things that most surprised me in your book is that it was Justice William Brennan, highly regarded by many liberals, who wrote the majority opinion that prevented “obscene” expression from enjoying First Amendment protection. How does that affect us now? You write that partially because of the Roth decision, “in the 21st century people can still be incarcerated for selling images of actions that are perfectly legal between consenting adults.”
Since the 1970s, there’s been a general pattern in which Democratic administrations de-emphasize adult obscenity prosecutions – first Carter, then Clinton, then Obama – while Republicans from Reagan to George W. Bush instigate them through the Department of Justice (Bush in particular created a new obscenity task force and used it aggressively). So obscenity law is still with us; given the ubiquity of porn online and off, most people probably don’t think of it often, but every one of the front-running Republican presidential candidates in 2012 vowed to revive prosecutions, so if we’re unlucky enough to see a Republican elected in 2016, we can absolutely expect more prosecutions. Whether or not they’re even legally viable hardly even matters; since Reagan (and well before), I’d argue that the majority of obscenity prosecutions have been staged primarily as political theater.
Another thing I learned from your book, and was surprised I had not realized, is that there is a distinction between obscenity and pornography. Could you expand on that and provide some examples of literary works that have been said by the courts and by literary critics to be one or the other?
Obscenity is a formal legal term; pornography is not. In practice, the two often blur together, and certainly since the liberalization that followed Roth, pornography is the only thing to be held legally obscene, but porn is always a cultural judgment rather than a strictly legal one.
Before Roth, numerous works that dealt explicitly with sexuality were still considered obscene – think Lady Chatterley’s Lover, think Tropic of Cancer. After, in a series of cases over the next decade, basically all of those works – anything possessed of “redeeming social value,” as the Court had it – were protected by the First Amendment. So when you look at what’s being prosecuted after Roth, within a few years it’s no longer D.H Lawrence or Allen Ginsberg or Henry Miller, it’s pulp novels like Lust Agent or hardcore porn films. The exception to this often remained queer erotic expression; Jean Genet’s film Un chant d’amour was one of the very few works with claims to highbrow literary merit that the Supreme Court allowed to remain obscene, in 1967.
Meanwhile, literary critics and others have never been able to effectively isolate pornography as a stable or meaningful category; it’s always been freighted with tacitly ideological baggage, whether the class marker of “highbrow” versus “lowbrow” (D.H. Lawrence was guilty of this, as were Eberhard and Phyllis Kronhausen, who tried to distinguish porn from “erotic realism” in their 1959 book Pornography and the Law) or the sexual politics that led Gloria Steinem and other antiporn feminists to separate porn from erotica. Ultimately, all of these distinctions are untenable, since none of them can really withstand scrutiny.
Many of Roth’s legal troubles came about because he disseminated some of the materials in question through the mail. Would he have gotten into similar trouble in our own day? If he were alive and running a Web site today and posting the same material, would he face incarceration? Who regulates the Web versus who regulates the U.S. mail these days when it comes to obscenity?
Well, nobody effectively regulates the Internet, though in the U.S. it’s been mostly the feds who’ve tried. Recently, state-level regulations of digital transmissions have been more prominent, though, from the various debacles of trying to regulate teen sexting to the recent California criminalization of “revenge porn.” None of it has worked, and none of it will work, I expect.
Certainly nothing Roth ever published – not even the more under-the-counter graphic stuff like the illustrated Memories of an Hotel Man, an extremely explicit proto-graphic (and how!) novel from the 1930s, would be considered legally obscene in even the most conservative districts today.
This was a term I first came across in your book: “the flash press.” What was that?
The flash press was the first wave of tabloid-style media aimed at the “sporting men” of the mid-19th-century urban bachelor culture. Newspapers like The Whip and The Rake offered what one group of historians in a great recent book (The Flash Press, by Helen Lefkowitz Horowitz, Patricia Cline Cohen, and Timothy Guilfoyle) call “libertine republicanism,” a sort of sexualized class consciousness directed at straight, white young men, and carrying all of the ugly baggage of its time – racism, homophobia, sexism, anti-Semitism, etc. Like Roth himself – who in many ways picked up where it left off – the flash press was really fascinating, yet certainly not something to uncritically celebrate.
This passage was fascinating, “obscenity law inadvertently contributed to an erotic process of fetishistic concealment.” When did this start to occur and what were the results for women in particular?
We can see this repeatedly in the history of obscenity and censorship. My Rutgers colleague Donna Dennis, in her wonderful book Licentious Gotham: Erotic Publishing and Its Prosecution in Nineteenth-Century New York, shows how pulp novelists wrote around early obscenity laws to simply allude to sexual transgression in ever more tantalizing ways. A century later, nudist magazines like Sunshine & Health would shift from casual depictions of naked bodies to more artfully posed – if not outright contorted and/or airbrushed – bodies because of postal obscenity regulation. The effect, again, was to heighten curiosity in a fetishistic way. And because we’re talking about a highly gendered sexual economy here, it was women’s bodies to which the preponderance of these erotic investments were attached. So I don’t think it’s a stretch to say that even as obscenity law calibrated the boundaries of the socially permissible, it contributed to the objectification of women.
You use the phrase “little Comstock laws.” Are we seeing a modern version of that in anti-abortion legislation at the state level?
Well, I think there are a lot of analogies here – both obscenity and abortion are simultaneously regulated at the state and federal level. Federal standards are generally more lenient, and harder to change, so states become the prime laboratories for legislation that may or may not withstand court review.
The anti-choice movement has been tragically effective at exerting pressure against abortion rights and access over the past forty years – which does make it more successful than anti-porn moral activists, who have mostly failed. So I wouldn’t want to over-extend the parallels, but yeah, these are certainly analogous efforts to police morality (plus, of course, information about abortion and contraception was included in the 1873 Comstock Act that federally codified obscenity, so there’s a larger shared genealogy here).
I found this really fascinating: you tell us that in 1927, James Joyce sued Roth for using Joyce’s name in advertisements without authorization. Please tell us what the consequences were for Roth in terms of his reputation among the literati after that.
This (and the “booklegging” of Ulysses itself) is the moment that cemented Roth’s expulsion from literary society – if I might shout out to another Roth scholar who has greatly informed my own work, Jay Gertzman, who has written about Roth in both Bookleggers and Smuthounds and the new Samuel Roth, Infamous Modernist, fantastic books, both – calls him a “literary pariah” from this point on. When he wrote Jews Must Live, he permanently cemented that status.
You write that Roth “knew his cultural place.” Who is a comparable figure to him now, or are we past the stage that as a society we need one?
Raconteurs can certainly be useful. Larry Flynt might be the closest we have, though he’ll probably never be as relevant again as he was in the 1990s. Like Roth, Flynt knowingly traffics in the lowbrow, but insists on its political relevance – a point he proved repeatedly when sanctimonious Republican moralists were denouncing Bill Clinton even as they engaged in their own hypocritical behavior. Given the pathetic complacency of our mass media, Flynt played an important role there.
Learned Hand figures prominently in your book. Am I correct in thinking that you admire him?
Within the context of his time, Hand was very progressive on free speech and civil liberties, and I do generally admire him for that. Late in his career he issued what I think was a disastrous opinion in the Dennis case that upheld the Smith Act and allowed the political witch-hunting of communists at the height of Cold War backlash, and his later comments about the Warren Court were also unfortunate. But within the ranks of the federal judiciary – a group overwhelmingly composed of privileged white men who remained at least passively complicit in systems racked with injustice and inequality – he did stand out.
I was quite surprised to learn from your book that Fiorello La Guardia, who is often portrayed in popular history as avuncular and lovable, was in fact quite puritanical, at least as far magazines and other reading materials were concerned. Did that surprise you?
I don’t know about surprised, exactly (can I keep hailing my favorite historians? The great Andrea Friedman has written about La Guardia’s censorial activities in Prurient Interests: Gender, Democracy, and Obscenity in New York City, 1909-1945, a book that has really informed my work ever since I was in grad school) but he does serve as a useful reminder that moralism has never belonged solely to conservatives. La Guardia was progressive in many ways, and had no trouble reconciling his overt, heavy-handed censorship with that. Like William Brennan, he complicates some easy stereotypes about censorship.
One of the fascinating things about Roth’s career is that it was often not the books he published that got him into legal hot water so much as the methods he used to market them. And, bizarrely, he would get into trouble with postal authorities because they argued that he was guilty of fraud for making the books he peddled sound smuttier than the books actually were. Did that kind of topsy-turvy reasoning affect other publishers or just Roth?
It was a tactic used against other publishers too, but there’s no doubt Roth was specifically targeted, repeatedly and for decades, through these tactics. His lawyers would note the bitter irony of these fraud cases, and the legal documents often begin to take on surreal or comic qualities as they dance around the various sorts of sex appeal Roth often promised but failed to deliver.
My favorite is the advertising circular for Roth’s own 1947 novel Bumarap, which features a coal-sketch of a vaguely naked woman with the caption, “He began by kissing her toes.” His lawyers had to argue that this did not inflame the prurient interests of a normal person, nor did it misrepresent the book itself – which barely has any sex in it; it’s actually a dull story of burgeoning political consciousness. There’s a strange sense of fairly high-stakes gamesmanship in these contests, though the stakes were always higher for Roth than they were for the feds, who weren’t going to be imprisoned over it.
I had never heard that Edmund Wilson’s book, Memoirs of Hecate County, had been an issue in a Supreme Court case. Strangely, that doesn’t seem to come up in the book reviews I have read over the years about Wilson. Why isn’t that case better known? Is it because the decision was so inconclusive?
Yeah, it’s a very forgotten case – legally, it was basically sent to the case-law dead letter office, because the Supreme Court deadlocked in 1948, leaving no opinion, and even the lower New York courts had produced no viable doctrinal statements. So there was really nothing to cite that would make it useful as a precedent. And it wasn’t a book that was repeatedly targeted over time, so it never joined Lady Chatterley’s Lover or Naked Lunch as a canonical banned book.
The trial itself, though, was really something – I love how carefully New York counted that “more than fifteen assorted sexual acts are described or suggested” in the book – plus “three frustrated attempts at intercourse.” You won’t get that in To the Finland Station! Legal history can admittedly be a bit dry at times, but midcentury obscenity briefs rarely fail to deliver surprisingly un-self-conscious expressions of sexual policing.
I was quite surprised to learn from your book that Playboy and Hugh Hefner seemed to have experienced very little legal trouble vis-à-vis being tarred as obscene in the 1950s. Could you explain why that was? Was it simply that Hefner was slicker, less combative and a better businessman than Roth?
Definitely that. Playboy built on a model that Roth himself had helped devise with his magazine Beau in the 1920s (and Esquire extended in subsequent decades), but where Roth often presented his merchandise as shocking and transgressive, Hefner perfectly pitched Playboy to embody a normative masculinity, based on intellectualism (or at least, pseudo-intellectualism; “Picasso, Nietzsche, jazz, sex,” as he famously described the ideal Playboy’s topics of conversation – riiiiiiiiiiiiiiiiight), consumerism, fashion, and, of course, the objectification of women. He brilliantly positioned himself in the cultural mainstream, and it really worked – not only financially, but legally. Playboy was prosecuted a few times by over-zealous district attorneys looking for headlines, but it never stuck, and Hefner managed to escape obscenity entirely for the whole duration.
You make the important point in your book that it took a surprisingly long time for the idea that the First Amendment could apply to works considered obscene and that, likewise, the ACLU hung back from arguing that it did. Why was the ACLU so slow to take up the issue of sexual liberalism?
I think there were multiple reasons, one of which was simple pragmatism. The social realpolitik of the mid-20th century meant that taking a hardline stance in favor of open, unregulated sexual expression was not viable for an organization for the ACLU. We tend to remember the group’s bold, controversial, and content-neutral defense of Nazis in Skokie in the 1970s, but less remembered are the concessions the ACLU made several decades earlier, in regard to things like the purging of communists from their leadership or the racist internment of Japanese Americans during World War II. Going through the records of the ACLU (an enormous, and really rich archive held at Princeton, and of incredible value to scholars of anything related to civil liberties), I saw a lot of internal recognition from the 1940s, ‘50s, and even ‘60s that an absolutist First Amendment stance on matters of sexuality would alienate supporters.
But I don’t think it was simply crass opportunism, either. Before the consolidation of modern feminist theory, with the new centrality that “the personal is political” assumed in the 1970s, sexual politics were often simply not recognized as politics at all. It seems ridiculous in retrospect – the federal government was investing tremendous resources into driving queer people out of employment, chasing after sexual magazines and films, obstructing contraception and abortion, and much else that today seems so self-evidently political. But sexuality, instead, was delineated as simply natural, versus perverse or deviant, and held in abeyance from what was perceived as “real” politics. So the ACLU saw labor rights, and the right to picket or protest, as political, but it didn’t yet theorize sexuality through the same lens. For that, we owe a lot to Kate Millett and the other feminists who forced us all to think more critically about the phrase “sexual politics.”
I’ll also add, Leigh Ann Wheeler’s recent book How Sex Became a Civil Liberty argues that the early ACLU was more engaged with sexual politics than we tend to recognize. I didn’t have a chance to read it before Obscenity Rules was finished, but Wheeler has pushed me to reconsider the activism of several founding members on abortion, contraception, gay rights, and other issues. On obscenity, though, I do think the ACLU was quite complacent until rather late in the legal struggles that came to define the term.
One of the most dramatic sentences in your book is, “It would be Roth or Comstock triumphant, with no middle ground.” Can you elaborate?
Simply that by the time Roth’s case reached the Supreme Court, because of the way it was framed, there was a stark binary: either obscenity laws were constitutional, or they were not. The Supreme Court had dodged or equivocated on this for decades, but Roth presented the question in such a way that they had little choice but to decide whether the First Amendment protected obscene expression.
Could you please talk about the average person argument in obscenity cases?
Part of the test for obscenity, which was hashed out in the lower courts over several decades, formalized in Roth, and still operative today, is that the legal barometer is based on the perception of “the average person.” It’s a textbook example of liberal fantasy personhood abstracted from social context – who was the average person to the courts at midcentury? Well, quite unambiguously this: white, male, heterosexual, middle-class. And while that has surely shifted slightly in the decades since, the underlying biases of that construct remain with us – “classy” material, with claims to being “art,” has always been able to get away with more sexual content than things perceived as lowbrow; obscenity law always discriminated against queer expression; and well into the 21st century, as the Bush administration went smut-hunting, its targets were all chosen from the kinky sexual fringes, so they could more easily come across as offensive to an average person whose sexual tastes are presumed as vanilla in nature (and to be sure, the laughably tame “kink” of the 50 Shades books is no counterexample here – Bush went after vastly rougher stuff).
You refer to Justice William Brennan as “the Court’s chief obscenity architect.” How did that come about? Where was William O. Douglas in all of this? You write very interestingly, “Obscenity followed Brennan from his very appointment.” How so?
Well, he landed on the Court just in time for the obscenity cases to begin flooding in, and because of the composition of the Court, he wound up stuck with the issue. Douglas, along with Hugo Black, represented the extreme free-speech wing of the Court; they would have happily overturned the Comstock Act, and bestowed First Amendment protection on obscenity. As such, Douglas and Black figure much more prominently in the political history of obscenity than they do in the doctrinal history, since neither could ever command a full majority for their absolutist stance. That’s not to say they didn’t exert internal influence, however; indeed, one of the great ironies of this story is that Brennan finally did come around to their side in 1973 – at the exact moment that Nixon’s appointees rendered him irrelevant with a new conservative majority.
Am I correct in saying you don’t think much of Felix Frankfurter?
Ha! Well, as a lawyer, activist, and professor, Frankfurter took bold, courageous stands for civil liberties and labor rights. I respect that a lot. I don’t think I’m on thin historiographical ice, though, in finding him to be a really problematic Justice – once on the Court, he took a swerve for the conservative, and argued for a judicial restraint that sometimes seemed arbitrary and even reactionary. On top of that, he could be a really toxic presence among the justices, playing weird power games and engaging in smug pedantry that made the Court conferences unbearable for some members.
What was footnote 20? And could you please tell about the word “prurience” and its relationship to Brennan’s views on obscenity?
“Prurience” is really the linchpin of Brennan’s entire obscenity doctrine – what he wrote in Roth was, “The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” Now, Brennan sought to end the obscenity debate, but all this really accomplished was to raise the question of what we mean by prurient. So in a somewhat ridiculous footnote, he tried to define it, relying on everything from the dictionary to the American Legal Institute’s Model Penal Code. But all he really offered was a hall of mirrors – if you look at footnote 20 in Roth, prurient means everything from “a shameful or morbid interest in nudity, sex, or excretion” to “Itching; longing; uneasy with desire or longing.”
Well, great: where does that leave us? I’d argue that it leaves us with a transparently political legal device, based on prevailing ideas of sexual normalcy, but where the silliness is displaced into a buried footnote (has anyone ever said, “this book was so erotic, it left me itching”?!), and the whole formula is given the veneer of a disinterested, objective legal algorithm.
I give Brennan credit for good intentions – he saw himself as a liberalizing force, not as a censor. But as he himself later came to recognize, a legal standard based on as slippery and loaded a concept as “prurience” was doomed from the start to perform the labor of sexual normativity. So since the 19th century, and into the 21st, people have been imprisoned for no reason that’s ever been more than going against the grain of sexual normalcy – even though, in theory, Freud, Kinsey, and pretty much every major figure in the history of psychology and sexology has disputed the very existence of “normalcy.” Yet the idea of prurience remains the core of American obscenity doctrine today.
Thus, while there’s no need for a single smoking gun to reveal the fundamental flaws of obscenity law, footnote 20 in Roth serves as a nice intellectual Achilles’ heel to the entire project.
Could you please tell us how the “clear and present danger” concept related to Roth?
“Clear and present danger” was a standard to justify the suppression of speech that Oliver Wendell Holmes had formulated during a series of cases emanating out of the Wilson administration’s attack on dissent during World War I. Many civil libertarians adopted it in the subsequent years. Though it was severely weakened during the Cold War by the Supreme Court itself, groups like the ACLU hoped to apply it to obscenity – which would make obscenity laws incredibly difficult, if not impossible, to enforce, since it was hard to contend that smut posed an immediately clear or present danger beyond moral offense. Several legal briefs called on the Court to adopt the clear and present danger test in Roth – but the argument got no traction whatsoever, and Brennan brushed it aside brusquely in his opinion.
Could you please tell us about the two faces of the Roth decision?
What I argue in the book is that Roth both spurred and contained the sexual revolution. There’s no question that it opened the doors for increasingly graphic sexual content, from literary novels to grindhouse cinema and, ultimately, hardcore porn. At the same time, the standards Brennan adopted – average person, community standards, etc. – all reinforced dominant sexual ideologies about normalcy and perversion, in a way that left counternormative expression – whether it be queer underground films like Flaming Creatures in 1963, or written texts about intergenerational sex, without any images, as recently as 2005 – vulnerable to prosecution and suppression.
Could you please tell us what you mean when you say that the Roth decision provided a new language to cultural conservatives?
By the 1950s, “censorship” was widely seen as a social evil – the sort of thing totalitarians and communists did, in opposition to American freedom. Yet widespread sexual normativity still persisted, of course. So one effect of Roth was to reconfigure the semantics of the suppression of texts – because the First Amendment didn’t protect obscene materials, it wasn’t censorship at all to ban them! Instead, it was fully in line with the U.S. constitution, and even all-American to protect the nation from the “floodtide of filth,” as one commenter called it. So in that sense, Roth allowed for something that was, literally, censorship – the banning and suppressing of texts – to escape being labeled as censorship.
I remember when Charles Keating fell from grace during the savings and loan debacle of the 1980s, and that there were some references to his earlier incarnation as an anti-smut crusader. Could you remind us of his career as a 20th century Comstock?
Keating is an absolutely fascinating figure. I wrote about him at greater length in my first book, actually – Perversion for Profit: The Politics of Pornography and the Rise of the New Right, where I argued he was a pivotal figure in the coalescence of a New Right politics mobilized around sexuality. He founded the group Citizens for Decent Literature in the late 1950s, and did more than anyone to promote the idea that fighting obscenity was distinct from censorship. He tried hard – and successfully, at the time – to distinguish himself from Anthony Comstock, by emphasizing his own modern approach to smut-fighting, which involved a lot of legal language and questionable invocation of social-science rhetoric.
Yet much of his work replicated the techniques of Comstock – if you watch Perversion for Profit, the famous short film CDL made in the early 60s (which is on YouTube and Archive.org – if you haven’t see it, definitely do!), its sensationalized approach and shock/scare tactics are almost equivalent to the tales of moral sin and doom Comstock was telling in his own 1880s manifesto Traps for the Young. CDL played a very prominent national role in several porn-related skirmishes of the late 60s and early 70s, including even helping sway public opinion against Lyndon Johnson’s nomination of Abe Fortas to be Chief Justice of the Supreme Court.
Later, Keating shifted his interests, from porn to junk-bonds, and became a pioneer in the devastating disaster-capitalism of the past thirty years that has largely destroyed the New Deal social compact and deteriorated the quality of life for most Americans. One wishes he had just stuck with smut.
What were “white-coaters”?
White-coaters were one ephemeral step toward hardcore pornography, which evolved in very incremental form across the 1960s, in a very clear dialectic with obscenity law. So as the legal doctrine shifted, you saw male physique magazines and topless women in films by the early 60s, and full-frontal nudity in films by the late decade. Right around 1969-70, you began seeing the first glimpses of unsimulated, graphic sex in cinema – but because of the “socially redeeming value” clause of obscenity doctrine, initially in the guise of “scientific” documentary films. So films like Man and Wife, or Free to Love, or Sexual Freedom in Denmark, often had talking heads discussing sexual mores, and doctors explaining various aspects of human sexuality – which you’d then see onscreen, presented as being strictly for pedagogical purposes.
The white-coaters didn’t last long – already by 1971, hardcore was arriving without their transparent alibis, not to mention without the clinical tone that hardly built up erotic tension (which is not to say the maximum-exposure aesthetic of hardcore was necessarily particularly erotic, either; they sort of traded one form of clinical cinematic investigation of the body for another equally clinical one).
Would you please discuss some of the thinking of feminist anti-porn activists? You write, “From the start, antiporn feminists were intent on distinguishing their project from that of obscenity law.” I was fascinated by your discussion of Catharine MacKinnon and Andrea Dworkin. I find their ideas really frightening in terms of their potential negative impact on free expression. Is MacKinnon’s influence waning among legal scholars and feminists?
Well, I do think they were ultimately on the losing end of what became known as the sex wars, and while antiporn feminism is certainly thriving online and elsewhere, I don’t think it commands a lot of attention in scholarly circles anymore. Which is a bit of a shame, in some ways – I share your concerns here, and I’ve certainly written some rather critical things about the movement Dworkin and MacKinnon led, but I also think it’s important to recognize the radical aspects of the analysis they helped forge. They rejected a liberal individualist notion of free speech, rightly observing that the First Amendment was written by slave-owning white men and as such was never intended to apply to women or people of color – so why should groups who had historically been marginalized by the American tradition of ostensibly free speech place it on a pedestal? Free speech has never existed outside a political economy, and in the U.S. that means structures from law to media to politics to finance have always favored the speech of the privileged over that of the marginalized.
Further, MacKinnon in particular rejected the entire moral underpinnings of obscenity doctrine; even as she wound up supporting potentially suppressive local ordinances in Minneapolis and Indianapolis in the mid-80s, she consistently rejected obscenity law as yet another tool of patriarchy, through which the male-dominated judiciary calibrated proper (implicitly hetero/male) sexuality. To her, obscenity was a moral issue; pornography was a civil rights issue. The directions this took, which included denying the firsthand accounts of women in porn who contested their analysis (such as Annie Sprinkle and Nina Hartley), was severely problematic, to say the least, as was Dworkin and MacKinnon’s tendency to label any feminist critics as collaborationists even as they affiliated themselves with the Reaganite Meese Commission, not to mention the city ordinances in Minneapolis and Indianapolis in 1983-84 that might well have banned all porn if they had gone into action.
All of this did a lot to discredit antiporn feminism among a lot of feminists of the next generation – teaching this stuff at Temple, I had to work so hard to get students to take Dworkin and MacKinnon seriously that my students thought I was endorsing them! – which is really unfortunate, because some of their core, motivating arguments deserve more attention.
Could you tell us a bit about sex-positive feminism? Do many millennial feminists regard MacKinnon as passé? I had never heard of Gail Dines before I read your book. What is the state of antiporn feminism today?
Sex-positive feminism emerged out of the 1980s feminist sex wars, in a variety of guises: the scholarly interventions of Carole Vance, Lisa Duggan, Nan Hunter, and other feminist academics who relied on feminist and queer theory to dispute the categorical assertions of antiporn feminists, arriving at a framework of “pleasure and danger” to explain how women still maintained agency and the capacity for desire even in the face of historical (and ongoing) patriarchal subjugation; but also cultural interventions, from former porn performer Candida Royalle’s Femme Productions that made porn for women, to lesbian magazines like On Our Backs and Bad Attitude, which combined deliberately smutty images with smart, humorous political analysis, and to Patrick Califia’s butch and transgender work like the fiction collection Macho Sluts.
This side, I think, largely won the sex wars – you see its legacy in Susie Bright’s best-selling sex essays, Morty Diamond’s trans-affirmative porn, Shine Louise Houston’s feminist/queer of color Pink & White Productions, and Tristan Taormino’s books and films. The very existence of the popular Feminist Porn Awards shows that feminism and porn can coexist.
MacKinnon is often regarded as passé by this cohort. Yet it would be pretty facile to write off antiporn feminism as a relic of the 80s – primarily, I think, because there were important critiques raised in that body of work that deserve revisiting, albeit without some of the more problematic accoutrements that MacKinnon and Dworkin often brought. Alas, Gail Dines represents a continuation of many of those very problems – hamfisted critiques of BDSM practices, stunningly insensitive dismissals of transgender identity and struggles, distorted social-science arguments for the harmfulness of porn, etc. – that help obscure the larger points about free speech and power relations that MacKinnon and Dworkin raised. Yet she maintains a fairly high, if rather insular, media profile, and continues to follow a rigorous speaking-engagement schedule. She’s certainly more in-demand than people I’d consider more substantive scholars or activists. So, in some ways the sex wars continue to play out endless iterations of the 1980s, though I think today – as with the left and right in America, really – they recur less as engaged public debate than parallel epistemological silos, where neither side takes the other particularly seriously.
I doubt Obscenity Rules – or any book – can break that deadlock, but I do hope that the more historically we can think about these debates, the less confined we can be by the often bifurcated frameworks of the present.
Thank you for your time.
Thanks for the great (if sometimes productively daunting) questions, Hope!