Obscenity Rules: Roth v. United States and the Long Struggle over Sexual Expression

Introduction

Introduction { 1 } Before there was Jenna Jameson, before there was Larry Flynt, before there was Hugh Hefner, there was Samuel Roth. Unlike those luminaries of smut, he never became a household name. Without his shady, half-underworld publishing career and the legal case it engendered, however, the erotic media landscape might look very different. The 1957 Supreme Court case bearing his name, Roth v. United States, established the relationship between obscene materials and the First Amendment, laying down a doctrine that continues to structure the legal meaning of obscenity over a half century later. In Roth, Justice William Brennan kept obscenity outside the protections of the First Amendment. Because of this, people could be— and still are—imprisoned for publishing or distributing obscene material . Yet Brennan wanted no part of censorship and strove to clarify that not every book, movie, magazine, or image dealing with sex could be considered obscene. Only those completely lacking in socially redeeming value, material whose dominant theme, when taken as a whole, appealed to what Brennan called “prurient interests,” could be legally defined as obscene. To remove such items from the public sphere, Brennan thought, detracted nothing from freedom of speech, the exchange of ideas, or the power of the First Amendment. Brennan was wrong. No less an authority than William Brennan himself would make this case, fifteen years later, once he saw the effects of Roth. Scholars agree. The eminent legal historian Lucas Powe pulls no punches, calling Roth a “sloppy, unpersuasive effort.” Others take a softer tone, but search the scholarly archive far and wide, and you will find opinions generally ranging from lukewarm to dismissive . Celebrations of Roth are rare. This book, then, tells the history of a failure. The failure cannot simply be pinned on Brennan’s written opinion. The justice strained 2 { Introduction } in good faith to reconcile competing tendencies in American legal and cultural history, but few have ever been able to effectively bridge the gaps between individual liberties and the enforcement of dominant social values. Obscenity law has satisfied no one, be it the conservatives distressed by the pornographic saturation that the law has seemingly done little to stop, or liberals aghast that in the twenty-first century people can still be incarcerated for selling images of actions that are perfectly legal between consenting adults. Roth did not singlehandedly create this situation in a vacuum, but it is the case that bears the weight of this history, that somehow both opened the cultural gates to a “floodtide of filth” and deserves credit or blame each time another citizen stands behind bars for publishing pornography. If Roth is a paradox , as it surely is, its flaws go beyond Brennan’s efforts to craft a viable obscenity doctrine and speak to a larger ambivalence in the history of American sexuality. My goal here is not to condemn Roth, since its shortcomings are so self-evident they hardly require further haranguing. Neither is my goal to rescue its reputation, an unnecessary act of contrarianism for an opinion that deserves its ill regard. Instead, this book seeks to understand Roth, situating it in its historical context to flush out the unspoken tensions, anxieties, and ideologies hiding between its lines, finding tortured expression in Brennan’s contradictions and convolutions . It is my central contention that the history of obscenity doctrine can be understood only by taking into account the history of sexuality and gender, as they played out through politics, culture, and law. In this, I am in the good company of the scholars whose work on sexuality and legal history I frequently draw on to tell the story. Roth says much more about American sexual values than Brennan’s written words necessarily acknowledge. In the history of obscenity, what we really witness is the history of social boundaries being firmed, tested, and shifted over time. Not just smut, but contraception, homosexuality, and questions over the meaning and significance of pleasure play out through obscenity doctrine. As it moves, so too do the borders of what scholars call sexual citizenship , or the sense of social belonging afforded to various forms of sexuality at any given point. Perhaps the major transition captured by (and in) obscenity doctrine is the advance of sexual liberalism, discussed further in the following chapters but basically amounting to a recognition and validation of sexual pleasure for its own good, as an end in itself, unbound by confinement...