There is a sort of Gresham's Law by which bad art drives out good. Murder having replaced sex in the popular arts, the glorification of one requires the degredation of the other. Death calls down anathema on love. Pronouncing judgement on March 29th, 1948, in the Winters case, the Supreme Court of the United States of America all but declared, as its studied decison — re-argued three times in as many years — tht so far as art and literature are concerned, sex is worse than murder.
This stupefying pronoucement is now the law of the land, and will remain so probably for decades. For all practical purposes it has always been the law. The New York Penal Law para 1141 (2) — now struck down by the Supreme Court — which made literary 'bloodshed' at least as bad as sex, has been a dead letter for over half a century, nullified and ignored ever since it was passed in 1884 in New York and in twenty-three other states since.
Meanwhile, the anti-obscenity subsection (I) of the same law is still very much alive. Thousands of persons have been prosecuted, and most of them fined or imprisoned, under this subsection and the Postal Law similar — which triples the penalty for obscenity, but neglects to mention 'bloodshed' at all. But it would be difficult to find more than three solitary cases in these last sixty-five years — Strohm, 160 Illinois 582; McKee, 73 Connecticut 18; and now Winters, 294 N.Y. 545 — prosecuted anywhere in the country for the publication of 'pictures, or stories of deeds of bloodshed, lust or crime.' In the face of disinterest such as this, the Supreme Court's decision is merely the catching up of the law with the national temper.
The error in the inferior court, that brought the Winters case to the Supreme Court in the first place, had been the gratuitous interpretation of the law as requiring the stories or pictures of bloodshed &c. to be 'so massed as to become vehicles for inciting' to crime — the purpose being to ban murder-magazines without banning books. Nevertheless, so great (according to the Supreme Court) are the legislative powers of the judiciary, that this mere statement by an inferior court 'puts these words in the statute as definitely as if it had been so amended by the legislature.' And, on the principle ground that the New York Penal Law para. 1141(2) had been thus 'amended' into ambiguity, the original laws of twenty-three other states were declared unconstitutional, Fiat justicia.
This retroactive hanky-panky is not, however, half so significant as the fact that, and the illogic with which, simultaneously, the prohibition against obscenity was affirmed:
quoteThis is, of course, clear warning — twice repeated — that the Supreme Court majority fully intends to find the obscenity law (1) constitutional when it comes finally to be argued before it, though it has found the 'bloodshed' law (2) unconstitutional. It does not matter. The prejudice clearly apparent behind the foreground technicalities of the Winters decision is, after all, the national opinion as well: that sex in literature is worse than murder. In life, however, the situation is reverse. So that we are faced in our culture by the insurmountable schizophrenic contradiction that sex, which is legal in fact, is a crime on paper, while murder — a crime in fact — is, on paper, the best seller of all time.
The impossibility [says the Supreme Court] of defining the precise line between permissable uncertainty in statutes, caused by describing crimes by words well understood though long use in the criminal law — obscene, lewd, lascivious, filthy, indecent or disgusting — and the unconstitutional vagueness that leaves a person uncertain as to the kind of prohibited conduct — massing stories to incite crime — has resulted in three arguments of this case in this court (333 U.S. 518.)
It therefore does not matter in the least what the Supreme Court decides concerning sex. It is not law that keeps the censorship going. The Comstocks, the Sumners, the virgin sex-experts of the Catholic Church (and the postal inspectors they control) — even the liberal lawyers who expurgate books beforehand for our pusillanimous publishers — these are not the censor. The American censorship of sex is internalized. The men & women in the street carry it around them in their heads. They are the censor, and to the degree that the law mirrors their wonted relationship, the law can be enforced and will be obeyed. Where the law diverges from the mores of the times — in our time, the substitution of an allowable sadism for a censored sexuality — the law is worthless and unenforceable.
The proof of this will be in the sequel to the Hecate County fiasco, in which — the first obscenity case since the Winters' to reach the Supreme Court (October 25th, 1948) — the law was silently upheld in a tie vote. No one imagines that if sex should be exonerated by the Supreme Court, in a moment of headlong consistency, obscenity would for a moment become legal. No one is so foolish as to think that if the obscenity laws of the states, Post Office, Federal Communications Commission, and Customs combines should be declared unconstitutional, pornography could be openly published in the United States, as bloodshed, bloodlust, and crime are published.
Hardly. New laws would be passed overnight, avoiding whatever technical errors might cause the present obscenity laws to fall. The legislative courage might even be found to abandon the multiple and 'permissable' uncertainty of meaningless adjectives like 'obscene, lewd, lascivious, filthy, indecent or disgusting' — saying nothing, in their overlapping terror, but that they are afraid — and to set up frank and objective criteria of guilt: that (with, of course, the usual exceptions for technical treatises, 'detective stories ... reports of battle carnage, &c.' — verbum sat sapienti) the description of sexual relations of any kind, or of the genital organs of either sex, in text or in pictures, is a crime; or—if safety is still to be sought in subjectivity—that any passage of text, or any picture, that gives seven of twelve good men & true an erection is, by that test, criminal.
On the other hand, let new laws against the exploitation of literary bloodshed now be passed — even under the subterfuge of protecting children, and in all the wordings and with all the preambles that Justice Felix Frankfurter's minority opinion carefully indicates such laws must have if they are not to fall before the Supreme Court as para. 1141(2) has fallen — and what, precisely, will be achieved? A new dead letter, a new unenforced and unenforceable law, will have been written on the books of half, or perhaps this time all the states. The Postal Law, which punishes obscenity as a crime where the states find it only a misdemeanor, might even see its way clear to banning literary bloodshed too — something it has never yet thought to do. Three cases might possibly be prosecuted in the next sixty-five years, during which prosecutions the professional liberals of the American Civil Liberties Union and the Authors' League can be expected to pop up, amicus curiae, to assail this unbearable restraint of free speech. Meanwhile, the staggering amount of sadism in all our pulp & pocket literature will rise from its present thousands of tons yearly to millions, from its present fifty percent or more to the intended saturation point of one hundred and one — Aldus' incunabular dream of popular classics come true as a nightmare.
That's all for today, Wertham, I'll talk to you again in a week. Hope you stay dry during all this rain.
(phone hangs up, end of transcript)