The Trials of Portnoy

by Patrick Mullins

  It stood out immediately. It was frank, funny, profane, biting, riven with bitterness and bursting with colour. It was justifiably famous, a bestseller the world over, of well-discussed literary merit. If there was a work that deserved publication, this was it. Why should it stay banned? All three — who had read the book in toto — thought highly of it for its skill, humour, and the compassion that informed its treatment of the taboo. ‘I was brought up in the era where you were taught that if you masturbated then you went blind. That was normal,’ Froelich said. ‘So, to actually read about it was perhaps to see that it was not so abnormal or strange. To me, that was a good part of it.’18

  Importantly, publication of Australia’s Censorship Crisis revealed that Tom Maschler’s flat refusal to allow an ‘Australian’ edition of the novel, made after Portnoy had been banned in 1969, was not so clear-cut as it seemed.19 A letter from Greene to Dutton, quoted in the book, suggested that Maschler’s refusal referred only to an expurgated edition. ‘It is a reflection of the current censorship situation in Australia and the rest of the world’s attitude to it,’ wrote Greene, ‘that “Australian edition” has become shorthand for “expurgated edition.”’20

  Cape’s willingness to allow Portnoy’s Complaint to be published in Australia, so long as it was unexpurgated, meant that it could become a potent weapon with which to take on the censorship regime. It was perfect for the cause. The combination of merit and unshying, expletive-ridden depictions of sex pointed to all the problems and failures of Australia’s censorship system. Hooker was immediately convinced. ‘Jack,’ he said to Michie, ‘we ought to really publish Portnoy’s Complaint and give them one in the eye.’

  It was a bold idea. Certainly, there was no other publisher better placed in Australia to take Portnoy on and use it against the censorship regime. With its reputation, contacts, and resources, Penguin could make the novel a hit and, simultaneously, deliver a body blow to the censorship system. But however compelling the idea might be over lunch, and however attractive it was at those late-night dinners, Michie knew that, in the light of day, it required serious thought. He would not take the decision lightly. He knew that it needed to be thought through: the risks needed to be assessed; the logistics needed to be planned; success needed to be defined and a path to it mapped out. But he came on board early. Michie’s attention to the business side of publishing, his passion for its cultural value, and his awareness of the conservatism that censorship fostered made for a neat marriage: he was in favour of publishing Portnoy. As Hooker put it later, ‘John offered to smash the whole thing down.’21

  The two approached Froelich. ‘Where are you in this?’ they asked. ‘What do you think?’

  Froelich was as cautious as Michie, but, ultimately, agreeable to the idea: ‘Well, okay, if you want to.’

  Initially, they kept the idea quiet. ‘I said that we needed to talk to some legal people about it,’ Froelich recalled. ‘We did that. We went through it. We documented the risks in order to see it clearly and assess it.’ The obstacles and dangers were considerable. Publishing the novel would not be easy. Nor would it be without risk to Penguin. Fines could undo all the work of the previous decade. Criminal charges were in prospect for them, personally, with jail time a distinct possibility. Booksellers could refuse to stock the novel. The public, too, might stay away: as repeated polls purported to show, there was strong support for censorship in the community.22 Was it worth all the risks? Were they willing to accept the potential consequences? What would they do if everything went wrong? ‘As we worked through all that,’ Froelich recalled, ‘we kept coming back to the key point: why are we doing this? We’re taking on the censorship laws.’

  One dimension to the decision was the parallel with Penguin’s publication of Lady Chatterley’s Lover. Michie, Froelich, and Hooker were aware that Penguin took considerable pride in its actions then; indeed, it still glowed from the accolades it received for the successful defence it had put forward during the trial in 1960. ‘That was one of the things that helped us with the decision,’ Froelich said later. ‘We thought, This is what happened with Lady Chatterley. It is a parallel. We would be doing the same thing here. There was the excitement of repeating that exercise.’

  This aided the case that Michie put to the Australian and UK boards. He did this alone. Intent on ensuring that whatever adverse consequences eventuated fell on him and him alone, Michie took the lead and the responsibility. He put the case for publishing Portnoy in Australia.

  The independent directors on the Australian board were initially ill disposed to the idea. ‘There was not a total comfort level from them,’ recalled Froelich. But Michie’s arguments and personal stake assuaged their concerns. Telling Michie and Froelich (by then on the board) that they trusted them, the directors said that the decision was a matter for their judgement. The UK board, early on, was also hesitant. Bereft of the galvanising influence of Allen Lane, ailing and soon to die, and concerned by the risk to the revenue it enjoyed and was coming to need, the UK board equivocated. It would take until late June, until almost the final moment, for it to send its assent.

  ***

  Plans quickly became action. Hooker telephoned Graham C. Greene on 8 June, offering to pay $5,000 for the Australian paperback rights to Portnoy for three years, with a 12.5 per cent royalty on a likely print run of 30,000 copies.23

  But Greene did not control the paperback rights in Australia: Cape had sold these to UK paperback publisher Corgi for £7,500. Notwithstanding that, owing to the ban, it was hesitant to exercise these rights, Greene told Hooker the next day that Corgi was ‘not at all keen’ on allowing Penguin to produce an edition. He suggested Penguin produce a hardcover edition instead. Hooker demurred, and ruled the idea out a day later. Penguin’s distribution system was set up for a paperback edition only, he explained; moreover, were the ban on Portnoy suddenly rescinded — as Customs had done with Another Country, when Alex Sheppard was preparing to publish an illegal edition — Penguin would doubtless be undercut by an inexpensive paperback edition from Corgi.

  Hooker decided to remind Greene of the larger cause that Penguin was pursuing. Don Chipp’s early signals of an increased liberalism in censorship matters, Hooker wrote, were ‘mere straws in the wind’. Chipp had neither reformed legislation nor cleared up the muddle of state and federal responsibilities. In the absence of any change, he argued, repression would continue. Censorship was as pressing an issue as it ever was. But there was a solution, Hooker said:

  If we were to print and publish Portnoy here as a paperback and have it distributed literally overnight in bookshops and wholesalers throughout Australia, it would be a massive blow against the State and Federal censorship … It is only by this kind of distribution that we can force both State and Federal governments to change their present repressive attitudes.24

  To this, Greene seemed sympathetic. But Corgi, still hoping to get the book into Australia, continued to resist giving up the rights.25 Hooker proposed three options for a deal: Penguin could pay Corgi a $5,000 advance with a 15 per cent royalty for a three-year licence; it could make the same deal, but in association with Corgi; or both companies could publish and share the risks equally. The last two options were non-starters for Corgi, which believed that prosecution would be all the more certain if it were involved in an Australian edition.26

  But even as it ruled out these options, Corgi was urgently contacting its Australian distributors for information. The publisher quickly realised that the situation with Portnoy was dire. Word arrived that their distributors would not cooperate with any move to publish Portnoy in Australia illegally. Police action was a certainty. Legal action was inevitable. No distributor was willing to risk the legal fees, let alone the penalties. In the face of this, Corgi began to rethink its position. Admitting that it was losing money every day it did not publish Portnoy in Australia, Corgi contacted Cape on 22 June to say that it would do a deal. ‘They [
Corgi’s distributors] still decline to distribute Portnoy, so it’s all clear for Penguin,’ ran the memo.27

  With Corgi giving way, matters moved quickly. Within a few days, Greene had given Penguin permission to use, for no fee, the Cape edition and its artwork as basis for Penguin’s paperback edition. Penguin would sell the book for $1.35, reserving some of that money for legal costs, and would pay royalties to Cape on its sales: 7.5 per cent for up to 25,000 copies; 10 per cent for up to 50,000 copies, and 12.5 per cent thereafter. Penguin would also pay $10,000 to Corgi — in effect, reimbursing the £7,500 Corgi had spent — for the rights.28 It struck an agreement with Corgi for the rights in an Australian paperback edition for three years, with the catch that Penguin had to publish within twelve weeks of 1 July 1970.

  Thus, from the beginning, speed and secrecy were the order of the day. Penguin was ‘insistent’ there should be no leak before publication. ‘They want copies distributed all over Australia by the time the first case is brought against them,’ Greene wrote. Not even Philip Roth would be informed about what was afoot. Roth’s British agent, Deborah Rogers, had his American agent approve the deal on Roth’s behalf: ‘So he won’t know until everything is signed,’ Greene recorded, ‘which will probably be about the same time as publication.’29 The secrecy extended to material placed in the post: letters, contracts, cover art, galleys. Should Customs open the wrong parcel, the jig would be up.30

  Among the most important decisions to be made was the number of copies Penguin would print. The plan that Michie, Hooker, and Froelich had hatched called for Penguin to go big on Portnoy. ‘We had to print lots of copies, and we had to distribute them quickly and to a lot of places,’ Froelich recalled. ‘We needed the big bang. There was no other way. It would be a waste of time if we didn’t go big.’

  Printing a lot of copies was not unusual: when Penguin published Lady Chatterley’s Lover in the UK in 1960, it abandoned ‘arithmetical niceties’ and printed more than 200,000 copies.31 But Michie, Hooker, and Froelich were aware that they could not simply print a lot of copies, and then — as Penguin UK did — refrain from selling them until proceedings were over. The set-up of Australia’s censorship system could have seen the entirety of the Portnoy stock seized and the case buried. It was essential to have both a large print run and countrywide distribution. If this were done right, police would be unable to seize all the copies, and it would be impossible for the state governments to bury the case. There would have to be court action in every single state. There would be headlines in newspapers, and bulletins on television and radio across the country. There would be public attention. There would be public demand. There would be public accountability for the censorship laws. ‘We thought our big hope was that the press picked it up, and showed people how ridiculous censorship was,’ Froelich said. ‘… We wanted to draw attention to the censorship laws.’

  Michie, Froelich, and Hooker decided that they should print 75,000 copies of Portnoy’s Complaint. It would be enough to make a splash, and then — if all went as planned — to sell out, creating more demand as the inevitable court cases made their way through the legal system. But there was, almost immediately, a hiccup.

  Griffin Press, located in South Australia, was Penguin’s printer of choice. Aware, however, that the manager director, Bryan Price, would be wary of printing Portnoy, Michie promised that Penguin would shoulder any financial losses that might arise from a prosecution. Price weighed this, and approached the new South Australian Labor government for advice. Led by Don Dunstan, who had been returned to the premier’s office after the 30 May state election, the government was progressive and libertarian, particularly in matters of censorship, as Dunstan’s support for America Hurrah had suggested. But Dunstan’s attorney-general, Len King, QC, was less than comfortable with this and mindful of the agreement for uniform censorship. When Price came to see him, King was clear: decline the job. If Price accepted it, King would ensure there was a prosecution. Price was hardly in a position to argue. The threat was too real to ignore. He turned Michie down.

  ‘Right, that’s the end of Griffin,’ Michie said, when he was told. ‘No more work for them.’ These were not idle words. Michie was furious with the company. In light of the surety that he and Penguin were going to be prosecuted, with all the might that the state governments could bring, Michie believed that Price’s decision was a betrayal. ‘They had let us down,’ Sessions said, later.

  But Michie was determined to press on. ‘We have had some difficulty with the printers and this has mean’t [sic] a delay,’ Hooker wrote to Greene on 29 June. But, he added, production would be underway soon. There would not be any further delay.32 Michie was approaching other printers, among them Halstead Press, based in Sydney and owned by Angus & Robertson. He did not consider it a likely candidate for the job: Halstead had high prices and was thought conservative. But, to the surprise of everyone at Penguin, Halstead seemed receptive, to the point that it sought advice from Angus & Robertson’s lawyers at Allen Allen & Hemsley, whose senior partner, Sir Norman Cowper, was, until the end of that month, also the chairman of Angus & Robertson.

  Then aged seventy-one and only a few days from retirement, Cowper was an establishment figure through and through. He had attended Sydney Grammar School and the University of Sydney; had been involved in non-Labor politics; and was a member of the Australian Club and the University Club. He was also a liberal and cultured man: he wrote articles for Australian Quarterly, encouraged law clerks to think for themselves, and was married to Dorothea McCrae, daughter of the poet Hugh McCrae. ‘He had a bit of the literary glow about him,’ one colleague recalled.33

  Between his legal skills and his literary pedigree, Cowper was well placed to offer advice on Portnoy. But there are some indications that he may have provided advice for Graham C. Greene during his earlier efforts to get Portnoy into Australia. According to Reginald Barrett, then a solicitor with Allen Allen & Hemsley, at some point late in 1969 or the first half of 1970, the firm was asked by a London client for advice on the likelihood of a successful prosecution of Portnoy. Barrett, aged twenty-five, was given a copy of the Jonathan Cape edition and directed to prepare a draft for Cowper. ‘Relying on the then-recent High Court decision in Crowe v Graham,’ Barrett recalled, ‘I concluded that there was a significant risk of a successful prosecution under the New South Wales obscenity law.’

  Cowper then read the book and settled the advice. According to Barrett, it was ‘generally cautionary’. ‘His personal view, expressed to me,’ added Barrett, ‘was that it was a “silly book.”’34

  Whether this advice was recycled in June 1970 or was wholly new is unclear. But colleagues at Allens would later recall that the firm tendered advice on Portnoy to Angus & Robertson, and attributed authorship to Cowper. Concise, clear, and with a judicious amount of wriggle room, the letter was two paragraphs long. The last was key: ‘I’ve read this book. It’s a book about a neurotic New York man who seems to have a series of erotic adventures. Some of it’s quite disgusting. But no jury, properly instructed, could convict on any charge of obscenity.’35

  The proposal to print Portnoy, along with this advice, was referred to Angus & Robertson’s board early in July. It was a precipitous meeting. The company — a prestigious publisher of many Australian novels and a well-regarded bookseller — had just been taken over by Gordon Barton, a young, enterprising, and controversial businessman who had begun his career smuggling onions and potatoes across state borders in the 1940s as a way of circumventing trading laws. Barton had made a fortune through his parcel-delivery service, IPEC, but his business now lay in buying failing companies, stripping them of assets, and selling them at a profit as lean and efficient operations. Buying into Angus & Robertson — which, for all its prestige, was ailing and unable to respond to the pressure of competitors — seemed an odd decision for Barton. Profit margins in publishing were thin; Halstead Press was leaking money, thanks to the prol
iferation of cheaper printers, particularly in Asia; and though Angus & Robertson had assets in property, those assets were integral to its bookselling operations. Why do it?

  The choice was understandable once Barton’s passions for culture and society were understood. He had founded and bankrolled two newspapers, and had emerged as a political player by criticising the federal government for its two-airlines policy and its military commitment to Vietnam. During US president Lyndon Johnson’s visit to Australia in October 1966, Barton had written an open letter that criticised the Vietnam War as a ‘dirty war’.36 He had resigned from the Liberal Party, formed the ‘Liberal Reform Group’, and run candidates against the government at the 1966 election. All had been unsuccessful, but Barton’s boldness remained undiminished. By 1970, he was forty-one years old, charming, handsome, obliged to no one, and still determined to make his mark. Hence his willingness, when he took over Angus & Robertson, to revitalise the company and honour its traditions.

  At the meeting of the Angus & Robertson board early in July, Barton came out in favour of printing Portnoy’s Complaint and, moreover, stocking the book in Angus & Robertson’s stores.37 Some board members were nervous, and argued that prosecution was likely and that Angus & Robertson’s reputation would suffer. Barton agreed with the first proposition and emphatically agreed with the second, but for different reasons. It would be a poor reflection on Angus & Robertson’s reputation, he argued, if it allowed the police to determine what it published and sold. Between this and the advice provided by Allen Allen & Hemsley, the new chairman carried the day. Halstead was told to take the job.38

  Penguin had its printer. On 24 July, copies of the Cape edition of Portnoy’s Complaint that had been smuggled into Australia were delivered to Halstead for reproduction, via photo offset, in the Penguin edition. Aubrey Cousins, Halstead Press’s managing director, began the job immediately. ‘Work is proceeding,’ Michie wrote to Greene that day. ‘… Barring mishaps, we hope to publish in Australia on September 2nd.’39