THERE ARE THREE constants in American life: death, taxes, and never-ending legal battles over pornography. No matter how consistently the courts uphold the First Amendment, free-speech absolutists, civil libertarians, and, well, pornographers are constantly beating back new attempts to limit legal access to protected material. Just two months ago, the Supreme Court struck down a provision of the 1996 Child Pornography Prevention Act that criminalized virtual images of children in sexual contexts. Just days after the ruling, conservative members of Congress vowed to pass new legislation that would effectively sidestep the Court’s ruling.
Never underestimate the lengths to which conservatives will go to blot out even the suggestion of sexuality. (Attorney General John Ashcroft, after all, spent $8000 to drape the exposed breast on the statue of the female Spirit of Justice and the naked torso on the statue of the male Majesty of Law, both of which stand in the Great Hall of the Department of Justice, where major press briefings are frequently held.) Is there any question that America still has a sex problem? But like it or not — and many people don’t — the right to make, sell, buy, and view sexually explicit materials has become one of the hallmarks of what "free speech" means in the United States.
This summer is the 45th anniversary of Roth v. United States, arguably the most important Supreme Court ruling on freedom of sexual expression and the press in American legal history. It was this decision that established the radical principle that published material had to be "utterly without redeeming social importance" to be legally regarded as obscene. The 1957 ruling launched a new phase in American literary and popular culture, opening the floodgates to the publication of such formerly banned works as D.H. Lawrence’s Lady Chatterley’s Lover, Henry Miller’s Tropic of Cancer, and William S. Burroughs’s Naked Lunch — as well as John Cleland’s Fanny Hill: Memoirs of a Woman of Pleasure, Bettie Page bondage photos, homosexual muscle magazines, and various illustrated "marriage manuals" and sex-education books.
But as crucial as the Roth decision was, it is important to remember that Supreme Court cases don’t just happen. They are driven by the zeitgeist, politics, money, passion, and — most of all — people. On the anniversary of the Roth decision, especially in the increasingly repressive and repressed political climate in which we now live, we would all do well to remember Samuel Roth, a pornographer, literary thief, rabid Jewish anti-Semite, poet, convict, essayist, crank, and free-speech crusader. A man many would described as "utterly without redeeming social importance."
ROTH IS A GREAT American icon of perversity. He was a successful entrepreneur who took enormous pride in the fact that he always worked for himself — peddling pornography. He was a self-taught man, and used his skills to write tawdry erotica. Roth was also a publisher who was frequently accused of violating the copyrights of authors such as D.H. Lawrence and James Joyce. He was a steadfast Jew and Zionist (garnering the admiration of the great British Zionist writer Israel Zangwill) who became so distressed by what he felt was lack of support from his co-religionists that he, after claiming to be instructed by Jesus in a vision, wrote Jews Must Live: An Account of the Persecution of the World by Israel on All Frontiers of Civilization, a vicious 325-page anti-Semitic tract that was used by Nazis for propaganda and is kept in print by right-wing white-supremacist groups today. He was a political crusader who, in 1931, published a noted and very influential (if inaccurate) exposé of Herbert Hoover that charged the presidential candidate of engaging in slave-trade tactics while running a Chinese mine.
But most of all, he believed so deeply in freedom of expression that he confronted Senate subcommittees investigating pornography; he also took on the very powerful, Catholic Church–backed New York Society for the Suppression of Vice (NYSSV). He challenged all censorship laws, including the federal government’s use of postal regulations that prohibited the mailing of "obscenity." In the course of pursuing his convictions (as well as making a living in the porn trade), Roth was arrested seven times and convicted four. In all, he spent close to 13 years in prison. Indeed, one of the more perverse ironies of his life was that while his appeal before the Supreme Court broke new ground in dramatically narrowing the legal definition of obscenity, the specific facts in his own case eluded the Court’s new, more liberal terms, and he was returned to prison to serve the last four years of his sentence. Even when he won, Roth managed to lose.
If Roth’s life seemed a series of contradictions, he was profoundly American in his contrasts: the capitalist who saw himself as an artist, the sensualist who demanded progressive change, the religious and ethnic minority who bridled against societal restraints. He was, if nothing else, a product of his time. According to one of his memoirs — the two-volume Stone Walls Do Not, which he wrote during his first incarceration for publishing sexually explicit literature — Roth was born in the small village of Nustscha, in the Galician Carpathians, in 1893, and moved with his family to Manhattan’s Lower East Side when he was four. He worked as an egg candler (holding eggs up to a candle to see if they were fertilized) when he was eight, a newsboy at 10, and a baker at 14. By the age of 16, he was working for the New York Globe as the paper’s East Side reporter. When the Globe folded, Roth became homeless, but he continued writing and began publishing in magazines. He even attending Columbia University for a year on scholarship before he opened the Poetry Shop, a bookstore in the West Village. Thus ensconced, Roth mixed with the literary set, and, like many other immigrant Jews of the time — Albert and Charles Boni and Alfred and Blanche Knopf being the most famous — went into publishing. His first magazine, Beau, a sophisticated precursor to Esquire, attracted attention. But it was his second, Two Worlds, in which he serialized sections of Joyce’s Ulysses, that got him in trouble. It so angered the NYSSV that the group brought charges against him in 1928 for selling pornography (which he claimed was planted by the police) in a bookshop owned by his wife. Roth was convicted of the charge and spent 75 days in prison.
This was a time of great fluidity in publishing and book selling: bookstore owners started publishing companies, publishers worked out of warehouses, in-house literary magazines promoted authors and titles, and a huge group of middlemen cobbled together a living running among sellers, printers, distributors, and mail-order companies. It was also a time when more sexually explicit material — from the high-toned literary work of D.H. Lawrence and Radclyffe Hall and reprinted classics by authors like Chaucer and Boccaccio festooned with "erotic" illustrations to sexually explicit photographs — was becoming marginally acceptable. The period also saw the establishment of many small publishing companies that dealt with sexually explicit works — Panurge, Falstaff, Eugenics Press — though they were often forced to close, only to reopen under new names.
Even though the publication and sale of such material were under constant legal attack, business was booming, and Roth was in the middle of it. Seeing himself as a crusader for free expression, he published hundreds of books, wrote scores of titles under a series of pseudonyms (perhaps as many as 60), and started several mail-order companies. Much of what he published was sexual in nature — a translation of the classic Arabic sex manual The Perfumed Garden; Fanny Hill; The Strange Confessions of Monsieur Moncairn (a French novel about homosexuality); fake sequels to D.H. Lawrence (such as Lady Chatterley’s Friends); "scientific" titles such as Sacred Prostitution and Marriage by Capture; new European literature; and lots of junk. Nearly all of it pushed the boundaries of what was legal at the time.