REVIEWS
| Date | 01 March 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01267.x |
| Published date | 01 March 1970 |
REVIEWS
BOOKS
IN
THE
DOCK.
By
C.
H.
ROLPH.
[London:
AndrC
Deutsch.
1969. 144 pp. (with index). 25s.l
THE
OBSCENITY
LAWS:
A
REPORT
BY
THE
WORKING PARTY SET UP
BY
A
CONFERENCE
CONVENED
BY
THE
CHAIRMAN
OF
THF,
ARTS
COUNCIL
OF
GREAT
BRITAIN.
[London:
AndrC
Deutsch. 1969.
THE END
OF
OBSCENITY:
THE TRIALS
OF
LADY CHATTERLEY,
TROPIC
OF
CANCER
AND
FANNY HILL. By
CHBRLES
REMBAR.
[London: AndrC Deutsch.
1969.
528
pp. (with index). 68s.I
A
LONG TIME BURNING: THE HISTORY
OF
LITERARY
CENSORSHIP
IN
ENGLAND. By DONALD THOMAS.
[London: Routledge
&
Kegan Paul. 1969. 546 pp. (with index, appendices and
plates).
E4.1
THE
debate on censorship shows little sign of abatement, in spite of
appearances, in either Britain or the United States. The tide of legislative
(in the former) and judicial (in the latter) development of the obscenity
laws,
so
strong
a
decade
ago,
seems now
to
have run out and reaction set
in.
This can be seen in the weekly, almost daily, reports of prosecutions,
seizures, police harassment, vigilante action throughout the
U.S.,
where the
Supreme Court has refined the law almost to vanishing point, and in
a
dis-
tinct hardening of
official
and police attitudes in Britain, where the law had
advanced only
a
little from its original crudity and where the liberalisation
depended,
as
it does here in
so
many fields,
on
the discretion of the authori-
ties and their sensitive response to the public feeling.
It
is
significant that
two of the three English books under review are concerned with the reform
(i.e.,
liberalisation) of the obscenity laws and there is virtually no serious
U.K.
literature putting the opposing view; while Mr. Rembar’s book, which describes
his successful fight
to
liberalise the
U.S.
law, can be set against a growing body
of writing which
is
examining the limits of liberalisation with some acuity
(e.g.,
H.
M.
Clor,
Obscsmity and public morality: cemorship in a liberal society,
Chicago
1969,
and R.
H.
Kuh,
Foolish
figleaves?
Pornography
in-and out
of
-court,
New York
1967).
In both countries, however, the debate is taking
place on the foundation of the “deprave and corrupt’’ princi,ple (in one
or
other of its variations) and this is bound
to
falsify
the
argument unless,
as
in
Denmark and Sweden, one accepts the implications of
that
approach
and reaches
a
conclusion on the basis
of
what scientific evidence of corruption
there may be. In both those Scandinavian countries
a
careful examination of
such evidence by four recent committees-two on film censorship
(Betmkning
m
jihcemwr,
Capenhagen
1967,
~W.nr.468;
FGmmw inflytad
p6
sin
publik,
Stockholm
1967,
S.O.U.
1967 :31,
interim report; and
Fhen-cewzcr
och
anwar,
Stockholm
1969,
S.O.U.
1969:14r,
ha1 report) and
two
on
the
laws
of obscenity
(6trmfelwrc&ta
betwnhimg
m
straf
for
pomgrafi,
Capen-
hagen
1966,
bet.nr.435;
and
Yttmdefdmtew
gmnaer:
s&a&
av
tukt
ooh
redlighet; brott mot trosfd,
Stockholm
1969,
S.O.U.
1969
:=)-revealed
no
valid justification for
a
criminal
offence
based
on
corruption of
adults.
How-
ever, the Swedish report on freedom of expression did not stop there, but
went on
to
examine carefully the question of public decency-to such effect
that it recommended the creation, in total substitution for the present law,
221
VOL.
33
8f
124 pp. 4Os.l
a22
THE
MODERN
LAW
REVIEW
VOL.
33
of
an entirely new offence based on breach of the general sense of decency
(“
den
alMnm kanalan
for
unstundighet
”).
Hints of
a
move in this direction have emerged in recent English writing
(and American: see, for instance, Clor’s book mentioned above), beginning
with
a
seminal leader in
The
The8
a
few years ago. A reference to that
leader in his very last paragraph, and
the
related
last
chapter
(14
pages long),
is the most valuable feature in C.
H.
Rolph’s
Books in the Dock;
and it is
because the present reviewer is convinced that
only
when debate is joined
on that issue-decency
or
reticence
or
(in
a
real but particular sense) privacy
-can any sort of meaningful progress be made, that he tends to discount
the analysis of practical and impractical reforms in the English obscenity
laws, which forms the kernel of
Mr.
Rolph’s book, as mere tinkering with the
problem. The earlier chapters give
a
brief and superficial history of the
obscenity laws in England and
an
analysis of the present-day position. The
book
is
really
a
pamphlet and regarded on that level
it
succeeds in effortlessly
and readably bringing together much material relevant
to
the debate on
obscenity. But
its
real
importance
lies
in
that
final
“Word
in
Your
Ear.”
The Obscenity Laws
has much greater pretensions.
It
is
the report of
a
working party set up under the indirect auspices of the Arts
Council,
and
it does not read well. If it had been written by
a
single author
as
a
polemical
tract,
its
argumentative and frequently sarcastic tone might have been more
acceptable; but even then its single-minded unawareness of issues and
sys-
tematic devaluation of opposition arguments ensure that it should fail
to
convince anyone not already converted or deceived by the
“
report
”
style
in which it is
set
out.
This said, one can nevertheless welcome the wholesale attack on the
“deprave and corrupt” doctrine which, riddled with inconsistencies
as
it is,
lends itself well
to
this
kind
of
treatment. And, still more important, the
conclusions reached by the working party are strong and justified, and
lead
it to recommend that the obscenity laws should be repealed altogether rather
than patched up or amended. That is precisely the goal indicated by
the
vastly more sophisticated Danish and Swedish reports,
and
the
working party
even hints
at
the more complex Swedish solution by proposing, in its draft
abolition Bill, an offence of exhibiting indecent articles etc. in
a
public
place.
More than twethirds of the book
as
published consist of appendices which
contain,
inter alia,
summaries of discussions with
or
statements from
a
number of people, the most useful being the statements by
Dr.
G.
B. Barker
on the medical aspects, Professor R.
M.
Jackson on the criminal law, and by
Jean Straker describing in some detail his own brushes with the police and
the courts.
The working party derived some fun from the thought that
a
Treasury
counsel, in recommending prosecution of books for obscenity, used as his test
whether the book had made him feel randy. In
the
U.S.A. such
a
test would
be precisely the one
to
meet Justice Brennan’s ddnition of obscene matter
as
that which tends to arouse sexual desires
or
sexually impure thoughts.
That was
in
the
Roth
case
(1967),
the first decision on obscenity
to
be
given by the U.S. Supreme Court and
the
starting point for much subsequent
development and refinement. In that case the court consecrated
a
departure
from the old Hicklin
rule,
replwing it by
a
new deAnition
:
“
Whether to the
average person, applying contemporary community standards, the dominant
theme of the material taken
as
a
whole
appeals
to
prurient interests,” while
earlier
in the judgment
the
court described the constitutional status of
obscenity:
“All
ideas having even
the
slightest
redeeming
social
importance
.
. .
have the full protection of the [constitutional] guaranties
.
.
.
But
implicit
in
the
history of the First Amendment
is
the
rejection of obscenity
as
utterly without redeeming social importance.”
The
End
of
Obscenity
is the account, by an attorney, of how he built
upon the “redeeming social importance” phrase from
Roth,
through
a
series
of
cases in state and federal courts relating to
Lady ChUthJTlfJy’8 LOV~T,
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