Here Is Where: Discovering America's Great Forgotten History

by Andrew Carroll

  If you do me then justice, you will esteem me perfectly consistent in the incense I burn to Virtue. If I have painted Vice in all its gayest colours, if I have decked it with flowers, it has been solely in order to make the worthier, the solemner sacrifice of it to Virtue.

  —From Memoirs of a Woman of Pleasure by John Cleland. Notwithstanding the (insincere) tribute to virtue, even by present-day standards the 1749 book is an extremely graphic, XXX-rated tale of promiscuity. Considered the first pornographic English novel, it has been banned more than almost any other fictional work.

  HAVING ALREADY IMMERSED myself in several divisive constitutional issues and on the verge of plunging into yet another, I’m ready for a nice noncontroversial diversion. Hence my detour, while driving to Cleveland, off Highway 80/90’s exit 25 into beautiful Beatosu, Ohio.

  Inside the “Every Day Is Christmas!” Candy Cane Christmas Shoppe in Archbold, I ask a sales clerk where Burlington and Elmira are because Beatosu is supposedly wedged between the two. “It should be right where you’ve marked it,” she says, looking at the red x I’ve drawn on a regional map. “But I’m not familiar with the town. Bee-a-too-su. I’m from this area, and I’ve never heard of it before.”

  There’s no reason she should have, since it’s entirely made up. Beatosu is a “paper town,” one of countless fictitious entries—along with fake roads, alleyways, streams, mountains, lakes—that lurk on various U.S. and foreign maps. Cartographers include these on road atlases as either boredom-killing pranks or, more legitimately, as “copyright traps” to catch competitors who’ve duplicated their information instead of doing original research. Beatosu was snuck onto the map I’m carrying by Peter Fletcher, chairman of the Michigan State Highway Commission and a proud University of Michigan alumnus who couldn’t resist poking fun at the Wolverines’ archrival, Ohio State University. Beatosu’s more accurate pronunciation is “Beat OSU.”

  Since mapmakers are reluctant to compromise their product’s overall integrity, they usually place the traps in remote areas or make only subtle manipulations to real geographical points, like giving an actual street some slight wiggles when in reality it’s perfectly straight. Print and online reference editors have their own tricks to snare copycats. The New Oxford American Dictionary once included the word esquivalience—defined reproachfully as “the willful avoidance of one’s official responsibilities.” And years ago the New Columbia Encyclopedia profiled Lillian Virginia Mountweazel, a fountain designer and accomplished photo-essayist from Bangs, Ohio, whose life was tragically cut short “at the age of thirty-one in an explosion while on assignment for Combustibles magazine.” Bangs was, at one time, a real Ohio town about forty miles northeast of Columbus, but Mountweazel herself never existed.

  Although I’m not sure what to photograph, I take a few landscape pictures of where Beatosu should be, head back to Highway 80/90, and drive west for several hours to Coventry Village in Cleveland. Here I’m on the lookout for my main Ohio site, the former Heights Arts Theatre, a cinema once managed by a shrewd publicity hound named Nico Jacobellis. After Jacobellis showed a barely erotic 1958 French film about adultery called Les Amants (The Lovers), he caught the attention of the nation’s nine most powerful film critics—the justices of the Supreme Court—and got himself a high-profile case that he knew, win or lose, would result in great media exposure for his business. Jacobellis v. Ohio became a significant milestone in America’s ongoing struggle between protecting free speech and allowing communities to establish their own obscenity standards, and it also brought to my attention one of the federal government’s most titillating secrets: “adult movie day” at the U.S. Supreme Court.

  Located at 2781 Euclid Heights Boulevard with bright, multicolored bulbs lighting up its refurbished marquee, the old theater is easy to find. When I pull up at about 9:00 P.M., a steady stream of pedestrians stroll about, leisurely enjoying the warm night. Johnny Malloy’s Sports Pub now occupies the building, and the owners have maintained the cavernous art deco interior well.

  Les Amants, starring Jeanne Moreau and directed by Louis Malle, had its Coventry Village premiere here on November 13, 1959. Suspecting the film might violate Ohio’s decency statute, Detective Earl Gordon attended the opening and told Police Chief Edward Gaffney the next morning that, in his opinion, Les Amants was indeed pornographic. Gaffney approved a follow-up raid, and on the evening of November 14, Gordon marched into the theater with two other officers, stopped a showing already in progress, confiscated the reels, arrested Jacobellis for “possessing and exhibiting an obscene film,” and threw him into jail. (I watched Les Amants on DVD before visiting Ohio to better understand what all the fuss was about. By today’s standards, it’s hardly outrageous. Jeanne Moreau does express herself “enthusiastically” during one climactic moment, but I’ve seen shampoo commercials that are more risqué.)

  Jacobellis was convicted and hit with a $2,500 fine. He took the case to the Ohio Court of Appeals, but they affirmed the judgment, as did the state’s supreme court. “[We] viewed Les Amants,” one peeved justice wrote.

  The film ran for ninety minutes. To me, it was 87 minutes of boredom induced by the vapid drivel appearing on the screen and three minutes of complete revulsion during the showing of an act of perverted obscenity. Les Amants was not hardcore pornography, that is, filth for filth’s sake. It was worse. It was filth for money’s sake.

  Jacobellis appealed to the U.S. Supreme Court, but a similar, relatively recent decision suggested that he’d have an uphill battle. Two years before Les Amants’ scandalous debut, the Court had ruled against Samuel Roth, a publisher of erotica who’d sent out unsolicited advertisements to random names on a mailing list. Some recipients complained, and Roth was arrested under the Comstock Act for transmitting “lewd, lascivious or filthy” materials through the postal service. This same law, originally passed in 1873, had initially prevented such literary classics as James Joyce’s Ulysses, Ernest Hemingway’s For Whom the Bell Tolls, and D. H. Lawrence’s Lady Chatterley’s Lover from being distributed. The justices upheld Roth’s conviction, arguing that communities could restrict materials if “to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest” and if they were “utterly without redeeming social importance.”

  Among Jacobellis’s staunchest defenders was the American Civil Liberties Union, which argued, “There is no evidence in the record that the motion picture film involved in this case presents a clear and present danger,” referring to a criterion put forth by Justice Oliver Wendell Holmes Jr. in a previous free-speech case, Schenck v. United States. “We believe that, under the current state of knowledge, there is grossly insufficient evidence to show that obscenity brings about any sufficient evil.”

  Leading the charge against Jacobellis was the Citizens for Decent Literature, an Ohio-based group founded by Charles H. Keating Jr. (the same Charles Keating caught up in the savings-and-loan scandals three decades later and sentenced to prison by a young Judge Lance Ito—of O. J. Simpson trial fame—for conspiracy, fraud, and racketeering). “By definition ‘obscenity’ appeals to lustful interests and emotions,” Keating stated in his Jacobellis amicus curiae brief. “It does not contain ideas of value. It is not in the competitive market place of ideas. It contributes nothing in the search for truth or the development of civilization.”

  Jacobellis won, 6–3.

  “We recognize the legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children,” Justice William J. Brennan wrote in the Court’s judgment on June 22, 1964. “But that interest does not justify a total suppression of such material, the effect of which would be to ‘reduce the adult population … to reading only what is fit for children.’ ”

  Under Roth v. United States, obscenity had been defined as something “utterly without redeeming social importance.” In Jacobell
is, Brennan latched onto “utterly” and used the word to make it considerably more difficult to ban any work, asserting that, if the material had even one iota of “literary or scientific or artistic value or any other form of social importance, [it] may not be held obscene.” Brennan also stated that the words “contemporary community standards” set forth in Roth applied not to individual towns and cities but the “Nation as a whole.”

  Justice Hugo Black also sided with Jacobellis and affirmed his steadfast position that even the most vulgar material was protected by the First Amendment, and the Supreme Court had no business suppressing it. “If despite the Constitution,” he contended, “this Nation is to embark on the dangerous road of censorship, … this Court is about the most inappropriate Supreme Board of Censors that could be found.”

  Justice Potter Stewart’s opinion, also for the majority, was the shortest but by far the most famous. After briefly mentioning Roth and sympathizing with the Court’s attempt to “define what may be indefinable,” Stewart wrote:

  I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hardcore pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

  Chief Justice Earl Warren, joined by Justices John Harlan and Tom Clark, dissented. “We are told that only ‘hard core pornography’ should be denied the protection of the First Amendment,” Warren wrote. “But who can define ‘hard core pornography’ with any greater clarity than ‘obscenity’?”

  Warren particularly bristled at Brennan’s groundless (in his view) reinterpretation of Roth concerning local versus federal control: “It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to ‘community standards,’ it meant community standards—not a national standard.” Warren feared this “national” interpretation would turn the Court into the very “ultimate censor” other justices wanted to avoid becoming and precipitate a never-ending log of obscenity cases, each requiring an individual review. He thought it better to let the states handle it.

  Elated, Nico Jacobellis ran a full-page advertisement in the Cleveland Plain Dealer after his victory announcing: “At Last You Can See the Most Controversial Motion Picture!” Once the hullabaloo surrounding the film petered out, however, Jacobellis left Cleveland for Hollywood to pursue a lucrative advertising and marketing career with 20th Century Fox.

  As Chief Justice Warren predicted, Jacobellis prompted a surge in the number of movies the Court had to review, and adult movie day became a regular event. The films were shown in a large ceremonial room on the first floor. Justice Thurgood Marshall relished the screenings and particularly enjoyed when directors made gratuitous attempts to bestow an element of educational or artistic merit on their otherwise lurid movies. Near the end of a soft-core film called Vixen, one of the female leads is caught up in an attempted hijacking to Cuba, allowing another character to wax philosophical about the differences between communism and democracy. “Ah, the redeeming social value,” Marshall joked. He also took pleasure in needling his fellow justices. After watching a graphic documentary about the dangers of sexually transmitted diseases, Marshall looked over at a visibly mortified Justice Harry Blackmun and deadpanned, “Well, Harry, I didn’t learn anything, how about you?”

  Also according to legend, Justice John Harlan would position himself next to his more conservative colleagues and ask them, because of his failing eyesight, to narrate—in meticulous detail—what was happening on-screen. During especially raunchy scenes he would exclaim, “By Jove!” or “Extraordinary!”

  After the March 1966 ruling on the case A Book Named “John Cleland’s Memoirs of a Woman of Pleasure,” et al., v. Attorney General of Massachusetts, which lifted a ban on the unexpurgated 1963 reissue of Cleland’s eighteenth-century novel, some justices (and many Americans) felt that the Supreme Court had unleashed a wave of smut on the nation. The Court took yet another stab at the obscenity test in Miller v. California, a lawsuit against porn distributor Marvin Miller, who’d sent out a mass mailing to hawk his sexually explicit wares. On June 21, 1973, the Court ruled against Miller in a 5–4 squeaker that established the following obscenity “guidelines”:

  (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts.

  The Miller test, as it has become known, still stands.

  The Court also punted the issue of “community standards” back to local jurisdictions. Pornographic films have occasionally been screened at the Court since Miller, and after Justice Potter Stewart retired from the Court in 1981, clerks were known to yell out whenever the action started getting hot and heavy, “Yup, that’s it, right there—I know it when I see it!”

  As I’m taking a long-exposure shot in the dimly lit Johnny Malloy’s bar, a young woman sitting close by with four friends asks me in a playful, slightly slurred voice, “Are you taking our picture, Mr. Cameraman?” She then flashes me a wide, snapshot-ready grin.

  I smile back while adjusting my tripod and tell her I’m just shooting the bar.

  “Oh, okay,” she says, feigning a small pout. “Are you a reporter or something?”

  I mention the trip and that there was a Supreme Court ruling based on something that took place here years ago.

  The young woman pushes back an empty chair and without looking at me points to it. “Sit,” she orders while grabbing a pitcher of beer to pour me a glass.

  “I’ve got some driving tonight,” I say, “so I can’t drink, but that’s very nice of you.” I am a bit thirsty, though, and flag down the waitress for some ice water.

  “Are you just starting your trip?” my new friend asks me.

  I tell her I’ve been on the road for a while now.

  “So you’re like a historian?” she asks.

  “Well,” I say, never sure how to answer that question. “I don’t have a degree or anything, but it’s a subject I really love.”

  “I haaaaaated history.”

  “Me, too,” I tell her, and we commiserate about how boring we thought it was growing up.

  “What happened here again, like a crime or something?”

  I summarize Jacobellis and go into greater detail about adult movie day at the Supreme Court.

  “Oh. My. God,” she says.

  My sentiments exactly.

  “What’s your story after this?”

  “Actually, it’s about booze,” I tell her, tapping my water glass against her beer.

  “To history,” she says, clinking back.

  “To history.”

  NEAL DOW’S BIRTHPLACE, H. H. HAY DRUGSTORE, AND MONUMENT SQUARE

  Rum, n. Generically, fiery liquors that produce madness in total abstainers.

  —From The Devil’s Dictionary (1911) by Ambrose Bierce

  ANY HISTORICAL EVENT involving mass quantities of alcohol and rowdy mobs gets my immediate attention, and within minutes of reading about the Rum Riot of 1855 in Portland, Maine’s Monument Square, I added the site to my itinerary. At the epicenter of the incident was Neal Dow, whose obsession with curing America of its licentious ways catalyzed two constitutional amendments and ushered in a new era of search-and-seizure procedures that fundamentally altered our judicial system. Plus, Dow was the embodiment of this country’s earl
y puritanical spirit, and no discussion of U.S. history would be complete without a mention of its Puritan-steeped legal foundations.

  A quick summary: On November 11, 1620, two days before stepping onto the New World, the first Pilgrims (or “Separatists”) composed the Mayflower Compact, swearing “all due submission and obedience” to a soon-to-be-formed “Civil Body Politic.” For sixteen years they—and the thousands of Puritans who arrived in Massachusetts after them—governed themselves under a hodgepodge of mostly English precedents and Old Testament edicts until finally organizing everything into the 1636 Book of Lawes. This, along with Jamestown’s 1610 Lawes Divine, Morall, and Martiall, etc., was the earliest legal code written in America. (Ironically, some of the Virginia Company’s punishments were more draconian than those instituted by the early Pilgrims and Puritans.)

  Also referred to as Plymouth Colony’s “General Fundamentals,” the Book of Lawes covered mundane matters such as bans on thatch roofing for new dwellings, curbs on selling “corne beans and pease” outside the colony to prevent food shortages, and the need to erect “a paire of stock[s].” (Purportedly, the first man placed in Boston’s pillories was the carpenter who built them, guilty of overcharging the town for materials.) Capital offenses included treason, murder, arson, “conversing with the divell by way of witchcraft,” and a host of sexual acts, some of which are still illegal. In 1642, Governor William Bradford recorded in his journal Of Plymouth Plantation a farmyard fling that would raise eyebrows if it appeared on a police blotter today. “Ther[e] was a youth whose name was Thomas Granger detected of buggery (and indicted for the same) with a mare, a cowe, [two] goats, five sheep, 2. calves, and a turkey,” Bradford wrote. “He was first discovered by one that accidentally saw his lewd practise towards the mare. (I forbear perticulers.)”