As Norris further noted in Evergreen:
Oddly enough, there was only one arrest in the suburbs during all this activity. It was made in Maywood [by an officer who said] … “Well, when we walked into the store I showed [a copy to the owner] Mr. Penney, I scanned through the book and I happened to look at page 5 and showed Mr. Penney page 5 and I asked him, I said, ‘This isn’t the sort of thing, the sort of book, that we would like to see get into the hands of the children around town here,’ and he says, ‘So what?’ I said, ‘So I think that you ought to not display it here where the kids can come in and buy it.’ ‘Make me,’ he said. I said, ‘Well, listen, either you cooperate or we are going to go over and see the judge and let him make a decision as to whether you can. …’ He said, ‘You wouldn’t dare.’ So I said, ‘Well, I just would dare, and you will have to come along,’ and we took the books off the shelf and locked up the store for him and went over there [to a judge].
Norris continues, “The first legal action against the suburban policemen was taken by Mrs. Isabel Condit, a housewife from Morton Grove, and Franklyn S. Haiman, professor of group communication at Northwestern University, chairman of the North Shore chapter of the American Civil Liberties Union, and president of the Northwestern chapter of the Association of University Professors. They asked for a restraining order against the police chiefs.” Attorneys were supplied by the ACLU. Condit and Haiman “charged that the chiefs had abridged their rights by interfering with the sale of Tropic of Cancer.”
Things then further heated up. Grove Press and Henry Miller, represented by Elmer Gertz and his associate, Sidney Z. Karasik, joined the case. Known as Haiman v. Morris, Acting Police Chief of Village of Skokie, the case was heard in January 1962 by Judge Samuel B. Epstein in Chicago. Apart from appearing before the grand jury in Brooklyn, it was the only occasion during the whole controversy when I was called upon to testify.
Hoke Norris’s Evergreen Review piece summarized the city’s state of mind and the issues in the trial:
In this most Puritan, most evil, most enlightened, most bedeviled, most entertaining, most dingy and corrupt city, where snow turns black overnight and you can hear the best music you ever listened to—here there was never any doubt from the start that it was the book that was on trial. The complaint did state that the defense lay elsewhere. Certain police officials of Chicago and some of its suburbs had interfered with the sale of the book, and its publisher and others were asking for an injunction that would keep their hands off it. But before they could be restrained, or go unrestrained, we had to know whether this was a good book or an evil book—whether it was a work of literature, or a work of pornography. …
Mr. Mabley, who used to work for the Chicago Daily News, said Tropic of Cancer was “like a slut walking down a neighborhood street, half undressed and spewing filth to those near her,” and that it “deals heavily with carnal experiences, with perversion, with human filth and excrement.”
That set the tone for much of the debate in court.
The first witness was Dr. Richard Ellmann, professor of English at Northwestern University, a PhD from Yale, and the author of several books, including a monumental biography of James Joyce which won the National Book Award for nonfiction in 1960. Ellmann characterized Tropic of Cancer as “a criticism of life in Paris at that time and, by extension, a criticism of life throughout the world at that time,” proclaiming the book “a work of literary merit and literary importance.”
Kilgallon then asked about “the method of masturbation employed by one of the characters where he cores out the center of the apple and smears it with cold cream and uses it in that fashion.”
Ellmann answered, “I should say it was slightly disgusting but that it’s an essential element in the disgusting picture of the Tropic of Cancer which is a diseased civilization. You must represent disease as disease.”
Mr. Kilgallon next asked Dr. Ellmann about Miller’s description of a painting of “a nude woman being half raised from the sofa in a position so that she could fart,” and the description of a female artist who was “painting a nude and had difficulty painting the cunt in that the brush slipped in and she couldn’t get it out again.” Weren’t these passages pornographic?
“No,” Dr. Ellmann replied, the passages were not pornographic when considered in their context.
Later Kilgallon inquired, “Would you recommend this book, Tropic of Cancer, to your students whom I put in the adolescent category?”
“Well,” Ellmann said, “when I informed them I was going to testify here there were suppressed cheers. … The answer is that I would recommend this book for good reading to students, yes.”
The judge then stepped in. “Would you recommend that this portion [the notorious page five] and perhaps other abridgements be made in the book without seriously affecting the literary merit of the book?”
“No,” Ellmann responded. “I feel that the whole literary merit of the book depends upon its bluntness and honesty in this kind of representation of somewhat exaggerated feelings. …”
I was the next witness, called to the stand on Friday, January 12. Gertz later wrote that I was “a scrappy one who sometimes found it difficult to be patient with his interrogators.” Probably true.
What really agitated the guardians of public virtue was the book’s coming out in paperback. It had been quite a test getting this far, but when Cancer hit the market in paperback the gloves really came off. As I say, we never expected the legal battle to escalate the way it did, but it quickly became clear that paperback books were treated very differently from hardbacks. Reasons for targeting paperbacks were neatly summarized by William B. Lockhart and Robert C. McClure in “Literature, The Law of Obscenity, and the Constitution,” published in the Minnesota Law Review in 1954:
The volume of their sales, the manner of their distribution, their modest price and ready accessibility to the public, the provocative nature of some of their jackets and blurbs, and the existence of a national organization that had already sharpened its teeth on comic books and magazines [the National Organization for Decent Literature]—all these contributed to the outbreak of censorship aimed at literature in this form.70
In other words, the less affluent were not as well-equipped with the intellect necessary to withstand sexual temptation when presented in book form as the affluent and educated. The wrongheadedness and elitism of this assumption infuriated me. This was not the way I believed a democratic society should function.
Paul Molloy, TV and radio critic for the Chicago Sun-Times, wrote on March 16, 1962:
This book, we are told, was published for the edification of adults willing to pay $7.50 for a wallow in Miller’s sewer. Sure it was—except that shortly after the $7.50 hardcover was published, out came the paperback version. Judge Epstein can find it in many drugstores right near the soda counter—where teen-agers can buy it for the price of two banana splits.71
As I pointed out in my testimony, “We, naturally, thought that at some much later date, we would bring out a softcover edition,” but the attempt of a rival house to bring out an unauthorized edition prompted Grove to rush a paperback version into print “in order to protect our very, very substantial interest in this book.” I further told the court, “I would imagine that I would be perfectly content to have my child read this book whenever he or she wished to do so. If another parent felt differently, I wouldn’t argue with him.” Furthermore, I did not “believe in the idea of second-class citizenship,” especially concerning the right to read books.
The district attorney set out to prove that my motive in publishing Cancer was purely to make money. He wanted to portray me as an illiterate money-grubber peddling a “literary” sex item. That was when I pulled out of my jacket pocket the school paper I had written at Swarthmore in 1940, titled, “Henry Miller Versus ‘Our Way of Life’” and started to read it aloud. How could he argue that I had no commitment to the novel’s literary value when I had been making a case for it
since before I’d even graduated from college? He hastily stopped me and removed me from the witness stand, not to be called back.
Marvin Glink, attorney for Robert Morris, asked whether Tropic of Cancer was autobiographical and attempted to ascertain the novel’s facts. Cross- examining Dr. Ellmann on January 11, 1962, Glink said, “Doctor, let me read to you from page one: ‘Last night, Boris discovered that he was lousy. I had to shave his armpits and even then the itching did not stop …’ Is that believable and truthful?” Told that it was, Glink asked, “When you were in Paris in ’37 or ’38, did you encounter people who would become infested with lice?”
The judge broke in to indicate that the truth or falsity of a particular statement might not be relevant. But Glink explained, “I am going to point out a fact that shows that this is absolutely unbelievable, judge.”
“Well, let’s find out what parts are truthful and what are fiction.”
Mr. Gertz interrupted, “I could show you places in Chicago where you see vermin.”
Glink asked his next question: “Doctor, … isn’t it a fact that at this time, lice control was not exercised by means of shaving but by ointments?”
“That’s beyond my competence. I am not an expert on lice.”
Judge Epstein sustained the objection to this preposterous line of questioning and struck it from the record. Under further questioning Dr. Ellmann also disqualified himself as a medical expert on whether argyrol was used at the time in the treatment of gonorrhea or silver nitrate was used for the protection of the eyes of newborn infants. Asked later about the subject of the lectures delivered in Dijon by the hero of the novel, Ellmann replied that the subject was the love life of animals.
“Elephants’ fornication, isn’t that right?” Glink asked.
“I don’t think elephants fornicate …” Dr. Ellmann said. “They have sexual relations.”
It was all utterly absurd.
In the midst of this, a highly poignant and unexpected intervention occurred outside the spotlight. One day, a young man came up to me and introduced himself as the judge’s son. I had never met him or his father previously. This young man quietly told me that his dad had said that if we slightly adjusted a legal tactic, and he told me specifically what it was, everything would probably work out just fine. It involved some minute point of legal procedure and I cannot remember it. He had spoken to me, perhaps, thinking I had known that my father and Judge Epstein had been friends. I passed the word on to Gertz and Rembar, we shifted to whatever it was I had been told to do for a defense strategy, and the rest is history.
Judge Epstein announced his decision on February 21, 1962. He wrote, “It is a book of social significance, a literary work acclaimed by many eminent critics. Its effect on children is irrelevant.”
This was the climactic moment of the entire Miller crusade for me. The police were instantly enjoined from interfering with the sale of Tropic of Cancer. My father had died some years before, but that episode with the judge’s son made it feel as if he, or his spirit, was personally involved in the case. Along with my testimony, it made the whole thing all the more special. Needless to say, I was elated.
The day the judge handed down his decision, I sensed we were in the home stretch. No matter what came next, I knew Tropic of Cancer had been set free from the philistines. Indeed, of all the opinions handed down, Judge Epstein’s was the one that tapped into something deeper than mere questions of obscenity when he observed that
taste in literature is a matter of education. Those who object to the book are free to condemn and even to urge others to reject it. … Voluntary discrimination is a far cry from censorship established by law whereby all readers are geared to the taste of the relatively few. … Let the parents control the reading matter of their children; let the tastes of the readers determine what they may or may not read; let each reader be his own censor; but let not the government or the courts dictate the reading matter of a free people. The constitutional right to freedom of speech and press should be jealously guarded by the courts.72
A statement supporting Epstein’s decision and calling for an end to the ban on Cancer was signed by 198 leading American writers, critics, and the heads of 64 publishing companies. We printed the decision and the list of people supporting it on the cover and in the first two inside pages of Evergreen Review, No. 25. That cover and those two pages brought alive to me my own sense of the numinous.
Judge Epstein endured condemnation for his decision, and the Illinois Supreme Court reversed it, but by then it little mattered. Shortly after, the US Supreme Court ruled in our favor.
The other time I testified was when Henry Miller became, as Earl Hutchison put it, “a wanted man in his old hometown of Brooklyn.” Before the Supreme Court ruling, a grand jury accused him, me, and Grove Press of “conspiring to produce an obscene book.” The charge was outrageous, as anyone except the Kings County district attorney could see, but we had to defend ourselves. Was there ever a better chance for a counterpunch?
Henry was named as defendant, along with me, Grove Press, and three distributors. The Brooklyn grand jury first considered the case in the fall of 1961 and decided the following summer to consider indicting under Penal Law 1141, which stated that “A person who sells … or has in his possession with intent to sell … any obscene, lewd, lascivious, filthy, indecent, or disgusting book … is guilty of a misdemeanor.”
We had assumed we would be arrested when we appeared in the courtroom. Beforehand, Miller and I had lunch at the Albert Restaurant on Sixth Avenue with Cy Rembar and several others. We planned to head over to court for our expected arrest, but when lunch was over, Henry wouldn’t go. Cy and I went without him.
They arrested and fingerprinted me, and Cy convinced them to let me go without bail. The charge was that I had commissioned Henry Miller to write Tropic of Cancer in Brooklyn. But in 1934, when Cancer was originally published, I had never been in Brooklyn and I was twelve years old! I mean, how worried can you get with charges like that? Besides, Miller obviously wrote the book in France!
The hearing proceeded. When I was brought before a grand jury, I thought they looked like nice, ordinary people—possibly sympathetic.
The district attorney, Edward Silver, asked me, “Do you know that these people [on the grand jury] have children who go to school here in Brooklyn and right near the school is a book stand selling Tropic of Cancer? Do you know how terrible that is?”
My reply was swift and simple. “If those children are buying that book and they actually read it all the way through then their parents are to be congratulated.”
The jurors seemed very amused. The district attorney asked me to read page five of the book aloud, and so I did. And that’s when the jury really started laughing and ultimately refused to indict me.
The DA, determined to the end, then had to go it alone. He produced what is known as an “information,” a charge a district attorney can make when he fails to persuade the grand jury to find cause for further court procedure. The charge against us, once again, was for violating the state anti-obscenity law. It ranked as a misdemeanor, not a felony, but it carried a maximum penalty of three years of imprisonment. To me it felt more like a scare tactic than anything else, but as far as Henry was concerned it had the desired effect. The rest of us saw it as the farce it was, but because it could still hurt us we had to take it seriously.
The information was made on two counts—conspiracy to commit a crime as well as actually committing it. And, lest we forgot, our crime related to “the said obscene, lewd, lascivious, filthy, disgusting and indecent book.”
Rembar pleaded not guilty on my behalf. The district attorney asked to set my bail at $500 but I was released on my own recognizance. It was decided that Henry would be treated separately. The Criminal Court issued a warrant for his arrest but the Brooklyn DA never pursued Henry’s extradition from California. Maybe he lost heart after seeing California’s highest court rule Cancer was not obscene. State
ments were prepared for a hearing in early 1964 but it was impossible to insulate the Brooklyn case from legal developments elsewhere.
The Illinois Supreme Court reversed Judge Epstein’s decision on June 18, 1964. Gertz and Rembar felt the Illinois ruling finally gave us an opportunity to reach the US Supreme Court. Our strategy was to petition for certiorari, a ruling by which the Supreme Court can review a lower court decision on the basis of certifying constitutional rights or the constitutionality of a state statute. But the battle took an unexpected turn when an intermediate court in Florida also ruled against the book. The Florida court’s opinion was based on a local statute that also provided us with a reasonable chance to apply for certiorari. Even though we rated our chances very good with the Illinois case, a 5–4 majority of US Supreme Court Justices agreed to review Florida’s Grove Press, Inc. v. State, Gerstein on a certiorari basis, and all five reversed it. No papers were filed or arguments presented, but in announcing the judgment on June 22, 1964, the Supreme Court referred to another obscenity case judged earlier that same day (Jacobellis v. Ohio, Jacobellis being the owner of a movie theater, arrested for “possessing and exhibiting an obscene film,” Louis Malle’s The Lovers), which had the same verdict—Not Guilty.
Justice William J. Brennan’s ruling on the case was widely publicized, and followed the defense strategy we had taken all along.
It follows that material dealing with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a “weighing” of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance.73
Rosset: My Life in Publishing and How I Fought Censorship Page 21
