An interesting sidelight to the whole problem is that, although the above figures show that 26 percent of the bookstores reporting to you do not carry Tropic of Cancer, our sales reports indicate that nationally only 10 per cent are not. This apparently means that the “little” stores are handling the book. Why this is true, I don’t know. Unfortunately, the small stores, where the book is selling marvelously, don’t report to the best-seller lists and consequently don’t help to solve this inequitable situation.58
By then most reviews were in. Many critics treated the book as a serious work, finding parts repulsive but still holding that Cancer as a whole was not obscene. Time, however, referred to Cancer as “a very dirty book indeed,” one of many such books “sewer-written by dirty-fingered authors for dirty-minded readers,” while Life suggested “Tropic will be defended by critics as an explosive corrosive Whitmanesque masterpiece (which it is) and attacked as an unbridled obscenity (which it is). It will probably sell a million. On Tropic’s literary merit? Guess again.”59
Meantime, Massachusetts Attorney General Edward J. McCormack, Jr. was less ambiguous. He found the book “positively repulsive” and “an affront to human decency,” adding, “I have never in my life read anything that was so degrading and demoralizing and so brazenly animalistic.” He asked for a recommendation from the state’s Obscene Literature Control Commission on the “filthy … rotten” book.60
I fired back at him, “It appears that Massachusetts, with the one-track mind of the rhinoceros, is again about to assault the Constitution and its amendments which the forefathers of her citizens fought so hard to obtain. If the Commission supports the Attorney General, we are prepared to fight the case in court with all our resources.”
This was our chosen course, even if the obstacles were mounting. On July 20 the Commission unanimously recommended that the Attorney General take legal steps to ban Tropic of Cancer in the state of Massachusetts. The book was also banned in Texas on August 15, with the chief of police in Dallas condemning its “crude, vile, indecent language.”61
The expanding legal situation in itself was sapping our resources at Grove, but we faced even more pressing problems. The $7.50 hardcover edition was doing well, but we knew Cancer would really find its market in paperback. Our most immediate danger was that the book was effectively out of copyright, in that the US government would not grant copyright to materials that were considered obscene, and other publishers were lining up to cash in on ground Grove had painstakingly broken.
I discovered in September that the Hall Printing Company in Chicago, one of the country’s biggest printers, had already printed a 75-cent edition of Cancer for Universal Publishing, a company with a name suggesting its desires, but not its real dimensions. Their copies would be ready for sale by October, so the pressure was on to stop them.
We realized we had a serious headache with copyright and took every legal action we could think of—along with some extra-legal ones to boot—to stall both Hall and Universal. We did the same with Kable News Company, another distributor, and also circulated this letter to retail stores:
Dear Bookseller:
Word has just reached us of a turn of events that must fill all responsible members of the book trade with a sense of outrage: In defiance of the specific protests of Henry Miller, an unauthorized paperback edition of Tropic of Cancer is at this moment being prepared by another publisher for distribution.
Henry Miller has informed all parties concerned that Grove Press is the only authorized publisher of Tropic of Cancer. Yet despite this warning, preparations for the unlicensed edition are going ahead.
Naturally, we would have preferred to continue with the sale of the hardcover edition. But the turn of events has left us no choice. We are rushing through our own AUTHORIZED paperback edition of Tropic of Cancer, and we will get it into your hands as quickly as possible. … This edition will be:
1. The ONLY paperback edition authorized by Henry Miller;
2. The ONLY paperback edition on which Henry Miller is being paid royalties (the advance and royalties have been substantial);
3. The ONLY paperback reprint of the famous hardcover edition which has risked prosecution and costly legal battles to fight for the admission of … Cancer in the United States;
4. The ONLY paperback reprint of the famous Grove Press edition which, as a result of substantial sums spent in advertising and promotion, has become one of the nation’s leading bestsellers.
Any unlicensed and unauthorized edition is evidently trying to hitch a free ride on the coattails of Grove Press and the efforts we have made on behalf of Tropic of Cancer. An unauthorized edition also exploits the courage of booksellers throughout the country without whose help the fight for admission of the book could never have been won.
This turn of events is reminiscent of that of two years ago when a number of publishers sought to take advantage of your and our efforts for Lady Chatterley’s Lover. We appealed for your help then, and you responded magnificently. We are asking for your help again now. You can help by ordering and displaying prominently the AUTHORIZED paperback edition of Tropic of Cancer.
Cordially,
Barney Rosset62
Our discussions with Universal were tense and fractious but in the end we agreed to buy the 400,000 copies of the book they had already printed in Chicago and pay $30,000 in cash immediately. We stripped and discarded the covers and reprinted the first thirty-two pages to include a passionate and thoughtful introduction by Karl Shapiro, entitled “The Greatest Living Author.” Universal accepted our claim to copyright and promised not to pirate the book again. Our erstwhile enemy was now our Exhibit A that the book should be considered in copyright.
Grove’s paperback edition of Tropic of Cancer was printed by Western Printing Company, based in Wisconsin. They too were feeling anxious about what lay ahead. I received—and signed—a request from Mark Morse at Western to the effect that Grove Press agreed to indemnify and hold Western harmless against any and all claims, demands, suits, actions, proceedings, or judgments arising from their printing of Cancer.
And of course Macfadden Publications, Inc., which had taken over from Dell, also required full indemnity before taking on the book. The contract included the following clause (which we accepted):
If any suit is brought, or prosecution instituted, against you or one of your officers, for selling or distributing Tropic of Cancer by Henry Miller, published by us, on the ground that the book is obscene, we shall undertake the defense at our own cost, provided we shall have the right to designate the attorney and (provided that the books shall have been paid for). If copies of the book are seized and confiscated by government authority because the book is alleged to be obscene, you will be credited with the price paid by you or charged to you for such copies seized and confiscated.
Since taking off in 1939, paperbacks had become a huge market. In 1960 Americans bought a million paperbacks a day from more than 5,000 newsstands, cigar stores, supermarkets, drugstores, bookstores, colleges, and schools. Sales volumes like this gave a vital boost to the publishing industry and were a key part of Grove’s future, if it was to have one.
We issued a 95-cent paperback edition of Cancer on October 10, 1961. It helped launch our Black Cat line, our “pocketbook” paperback-size imprint. We were prepared for adverse reaction but the sheer scale of acrimony still caught us all by surprise. Nothing like it had ever been seen before. Lawsuits sprang up all over the country with Cy Rembar providing a standard defense and Grove financing legal costs locally for each case.
Our general briefs always began as follows:
The case before the court involves the resolution of an issue of constitutional law. The First Amendment to the United States Constitution, with its guaranties of freedom of speech and press, protects the publication and sale of Henry Miller’s Tropic of Cancer unless the book can be shown to be utterly worthless trash that lies outside the protection of the First Amendment. …
> It is submitted that this book, being a recognized work of literature, cannot be found to be worthless, and that therefore its publication and sale may not, under the Constitution, be suppressed or impeded.
We based our free speech argument on the Supreme Court’s declaration that the First Amendment protects speech or writing of the “slightest redeeming social importance.”
We felt we were ready, but nothing could stop lawsuits against us from multiplying all across the country. The American Civil Liberties Union stated in their November 27, 1961 Weekly Bulletin that “The current censorship drive against Cancer is being conducted entirely at the state and local level.”63 We could surrender or we could fight back. No pasarán! I thought, recalling the Spanish Civil War. Our Madrid would not fall easily.
Fred Jordan, one of my most trusted and talented editors at Grove, sent a letter to Harper’s magazine stating:
In the past few weeks police intimidation, whether through threats or actual arrests, has resulted in Tropic of Cancer being taken off sale in a major part of the United States. …
If all this had been accomplished by orderly legal procedure, it would have been bad enough, especially in view of the fact that the Department of Justice cleared the book and officially allowed it to go through customs and the mails. But we have seen very little semblance of orderly procedure.
In Amarillo, Texas, the sheriff seized several thousand copies from an interstate carrier after the thoroughly terrorized wholesalers had returned (or were returning) the books. The local paper there states the sheriff wants to burn the books. Perhaps he has.
In New Jersey the Attorney General of the state said the book could not be legally prosecuted. The day after his statement three of his county prosecutors secured a number of criminal indictments and books were seized all over the state. …
In suburban Chicago some eleven communities confiscated books through police action and with no due process of law whatsoever. We can point out many, many other such instances.
To our knowledge there have been over fifty arrests. In Chicago itself a detective went into the Greyhound Bus Terminal and asked if the book was on sale. He was told no, but that the store would like to sell it if the detective did not object. He said he had no objection. A clerk sold a copy, the detective arrested him, and the clerk not only is now awaiting trial, but has also been ejected from the YMCA where he lived because the arrest made him undesirable.
Of course, we are defending him and the others. As of now we have some fourteen court actions pending. In most instances we have been hiring legal firms in each area and putting them to work. In three cases (Chicago, Cleveland, and New Jersey) we ourselves have started actions against the police. Of course, when we decided to publish Tropic of Cancer, we anticipated trouble, and were prepared to meet it. Our case on a Federal level was disposed of with a victory on our part. Then we were banned in Massachusetts. After the trial the judge pondered for six weeks to produce a negative decision which charged the book with being indecent and impure and, moreover, with not having a plot.
Since then the roof has fallen in. …64
There were some bright spots amid all this legal warfare. I found it hugely encouraging that some booksellers refused to bow to intimidation. In Rhode Island, Brown University brought action against the state’s Attorney General. A law firm in Cleveland volunteered to fight police censorship there, as well.
Even so, as Publishers Weekly pointed out in January 1962, Grove was facing “brush-fire censorship, most of it taken in hasty disregard for the due process but most of it highly effective.” Rembar remarked at the time that it was “like being in the middle of a battle. We know we’re being shot at, but we’re not always sure about the direction the shots are coming from.”65
Fear in the book trade was widespread. Our sales reports revealed at that point that Cancer was banned across America in at least 57 cities, while the book was being sold openly in only New York, Minneapolis, San Francisco, and Washington, DC. We estimated that 75 percent of the nation’s dealers either refused to handle copies or returned them after shipment because of local police action, actual or threatened.
The tiny tyrants were having their day.
“Tropic of Cancer has run into more massive opposition from censors across the United States than any other serious publishing venture in memory,” reported Anthony Lewis in the New York Times in January 1962. “Though 2,500,000 copies are in print, it is impossible to buy the book in most parts of the country. It is not on sale in Massachusetts, Rhode Island, and these among many cities: Los Angeles, Chicago, Philadelphia, Cleveland, Atlanta, Miami, Dallas, Houston, Seattle, Hartford, Wilmington (Del.), Indianapolis, Des Moines, St. Louis, Trenton, Buffalo, Phoenix, Oklahoma City, Birmingham.”66
Remarkably, through 1962 and 1963, Cancer would remain on the bestseller paperback list. But while more than two million copies were sold, a further 750,000 copies were returned by bookstores and distributors fearing prosecution.
Though the controversy raged on—Cancer was now targeted by Citizens for Decent Literature (CDL), a national organization founded in Cincinnati, and local pressure groups discouraged public libraries from stocking the book—sales kept us going. The revenue stream financed legal fees and numerous extra costs that snowballed with the controversy. Looking back, I have no doubt Grove would have taken a catastrophic hit had Universal run its pirated edition of Cancer in 1961. But it did not. Obviously our protecting spirit, our numen, was guiding us at each decisive moment.
While all of this was going on, we were preparing to publish Tropic of Capricorn, Henry Miller’s sequel to Cancer, in September of 1962. November of that year would see the sixteen actions in Illinois, which were being handled by Elmer Gertz, transferred to the State Supreme Court, so another protracted siege seemed to be on the horizon. But much to my surprise—not to mention relief—there was no big fuss with Capricorn, though it too had been banned by the Customs Service. Some 25,000 hardcover copies were sold in the first three months after we brought it out.
Meanwhile, litigation with Cancer continued apace. Each case took about four weeks to resolve, with, as Earl Hutchison put it, “verdicts as varied as the judges and juries in the cases.” Publishers Weekly commented on March 5, 1962, “The most censored book in American publishing history has neither been universally exonerated by the law nor universally condemned.”67
I was more determined than ever to continue the fight. Obscenity cases with Cancer reached the highest court of five states. Decisions were generally tight but we won in Massachusetts, California, Wisconsin, and Illinois (where an “obscene” ruling was later withdrawn). Surprisingly, we lost in New York.
As far as I was concerned, the Skokie, Illinois, case was the turning point. Illinois, my home state, would be all my previous battles pulled together, made personal, and then settled. I was deeply troubled by the degree of intimidation which the police in Chicago suburbs used to discourage the selling of Cancer. The great journalist Hoke Norris, who covered the trial for the Chicago Sun-Times, wrote a detailed article about it for Evergreen Review, No. 25 (July–August 1962).
The Chicago story seems to begin … in Montreal, Canada, at the annual conference of the International Association of Chiefs of Police. … One of the chiefs in attendance was George E. Whittenberg of Mount Prospect, a suburb of Chicago. Whittenberg … had never heard of Tropic of Cancer before he fell into conversation with a chief of police from a city in the East. “This gentleman asked me if I had ever seen the book or read it, and I said no, I had never heard of it,” Chief Whittenberg said later in a deposition before the trial. “Then he said they had had trouble with it in the East, and he said he understood it was back on the market again.”
On October 9, a Mount Prospect police sergeant, Fred Hedlund, informed Whittenberg that a driver for the Charles Levy Circulating Co., which distributes most of the paperbacks in this area, had informed him “of a book entitled Tropic of Cancer, which he [the drive
r] thought was an obscene book.”
Whittenberg continued by saying that he had gone with the sergeant to “1 North Main Street and he [the sergeant] pointed out the book to me. … He pulled the book out, and I stood there for four or five minutes and thumbed through the book from page to page.”
He was asked by Elmer Gertz, attorney for Grove Press: “And you looked at page 5? … And a few other places?”
“Yes, sir.”68
Page five (along with much of six), again and again seems to have been the police’s fixation. “O Tania, where now is that warm cunt of yours, those fat, heavy garters, those soft, bulging thighs?” it reads in part. “There is a bone in my prick six inches long. I will ream out every wrinkle in your cunt, Tania, big with seed. … After me you can take on stallions, bulls, rams, drakes, St. Bernards.”69
This sort of instantaneous literary and judicial judgment was to be found throughout the case, not only among police officials but also newspaper columnists, clergymen, and the writers of wrathful letters. Chief Whittenberg went to six drugstores and found Tropic of Cancer stocked in five of them. At the first store where he discovered copies, he pointed it out to the manager, one Max Ullrich. “I asked Mr. Ullrich,” the chief said, “to please check the book entitled Tropic of Cancer before he put it out on the racks. … He took one of the books out of the package … and … thumbed through it. He thanked me for stopping in, and he said he would not put it out for sale.”
Our attorney asked, “Did you call his attention to any particular pages?”
“Page five, yes.”
Whittenberg followed up his personal persecution of the book by calling his fellow chiefs, including the police chief in Des Plaines, the Niles police chief, and others to alert them to the danger. One of these chiefs, in turn, called the village of Skokie to tell their acting chief of police, Robert Morris, about Cancer. “Captain Morris later showed page five to the Skokie juvenile officer, the assistant village manager, and the corporation counsel; it was agreed that the book was ‘obscene and vulgar.’ ”
Rosset: My Life in Publishing and How I Fought Censorship Page 20
