Obscenity laws

The other evening we were talking about what happens to the eyeballs as you get older. I mean, how something gradually, inevitably, something the eye doctors may know about but /.../ how your view, literally your visual view of age, changes and changes and never goes back.

It came up because I said I was amazed these days, in airports mostly, at seeing so many young women of about 12 years of age with two children on their laps. I said that, in my day, the age of consent was much higher and a rather dense girl, woman, said she didn't get it. So I put it another way. I remembered, I said, the time, now in the mid Thirties, when I was doing a series of radio programmes for the BBC, a series which pretended to be taking a big swing round the whole of America, which was a good deal easier and, in some ways, more vivid than doing it on television, since you don't do it with cameras and pictures, you call on the richer picture book of people's imaginations. 

Anyway, the first programme was about New York City and included the feel of going to a theatre here. One of the points I wanted to make was that, in this country, theatre programmes, which even then were fat magazines, were free and still are but, for good measure, we threw in a whole performance, or at least the rousing feel, of a first night and a first-rate musical comedy with a first-rate star. The show was called 'Anything Goes' and the star was Ethel Merman. Her hit song was something called 'You're the top.' It was the latest hit on Broadway. So, you'd say, all we had to do was tap the marvellous BBC gramophone library, which even then was a sort of British museum of recorded music. Not so! 'Anything Goes' had not yet got to England, though the inimitable C. B. Cochran had plans to fetch it over. Therefore, there was an absolute ban on playing the music of 'Anything Goes' in Britain. 

Well, I was brassier in those days than I am now. All that seemed necessary was to get Mr Cochran's permission and then find from somebody a bootlegged copy of the disc, I mean some socialite with American connections had certainly had one sent over. Well, I went to Mr Cochran and he hummed and hawed but in the end, I'm sure, he saw we were giving him a marvellous bit of promotion for the London opening. I then found an American friend who told me he knew just the lady who always had the latest bit of chic from the States. He sent me off to an address, Bryanston something, and I went up in one of those creaking lifts with bars that make you feel you're in a moving prison cell, and I rang a bell and a lady appeared, a firm-jawed, elegant, brown-eyed, old lady with hair severely parted in the middle. She took me in and kindly lent me the record. I say she was old because she must have been all of, well I should say she was crowding 40 – is that ungallant? Gallantry has nothing to do with what the eyes see. I was, what, 25? And ladies of 40, however handsome, were old ladies. It appals me, it shames me, to realise that she's still alive today. Anyway, that's how I met for the first, and last, time Mrs Simpson. THE Mrs Simpson. 

So, a few years later, it was no surprise to me to hear the novelist and playwright Somerset Maugham describe himself in his sixties as 'a very old party', though the old rogue lived for about another 30 years. One thing he said in a book he wrote then, a book with the title 'The Summing Up' – since he thought it was late enough to begin reviewing his life – was that every day, the first thing he did when he got his newspaper, was to turn to the obituary page and see who'd had it. This struck me as cruel and morbid. I'm sorry to tell you I now think it is one of the intriguing and irresistible amenities of breakfast time. 

I did this yesterday and couldn't believe my eyes. It says 'Joseph March dies'. That headline was, itself, a giveaway that the typesetter, or the writer, or whoever dreamed up the headline, didn't know who he was writing about. This man was never known as Joseph March. He was always, and only, Joseph Moncure March. It was as if you'd seen a headline 'George Shaw dies' and from the accompanying fine print discovered that they were talking about George Bernard Shaw. I was shocked, not that Joseph Moncure March had died, but that he was still alive at the age of 120. But he wasn't 120, he was only 78, and that's what slew me. 

I met him in my first winter here, met him with fright and trembling on my part because he was, in those days, considered a big shot, the most daring of contemporary fiction writers. He was, to be truthful, not a very good writer, but he'd written a book, written in a florid, telegraphee's kind of doggerel, called 'The Wild Party'. It was certainly the most shocking book of its time. It was exactly what it said, it fulfilled all the worst fears, or maybe the secret hopes, of the suburbs and the bourgeoisie about life in Greenwich Village and the bohemian East Side of New York, or how writers, painters, their doxies and hangers-on disported themselves after midnight in the Prohibition Age. 

In this truly awful book, it was as if Robert W. Service were describing the seventh circle of hell, all that was described was a welter of seductions, fights, music, booze, cocaine, people entwined, irrespective of gender. It was thought, at the time, to be the most far out, daring poem about, what they called, 'Flaming Youth' but had better have called 'Sodden Youth'. I now appreciate that its author, a rather grave, courteous man in late middle-age, was then 33. 

Well, 'The Wild Party' seems not decades, but eons, ago. Today, it would be either taken for granted and illustrated in glossy porno magazines as an expression of liberation, something you may have heard of called 'raised consciousness'. I don't know if March had trouble marketing his stuff. I think not. Somehow he was artful enough in his language; he conveyed an air of deploring the whole sorry show, his characters were clearly going to come to a bad end, if they were not already there. I don't remember that you had to buy it under the counter, which in retrospect is odd because there was a fierce, and as it turned out, historic case going on the courts about a book that had been banned in the United States and could only be procured furtively in paperback in France and brought over here, if you were lucky, packed between a shirt and a sweater in the incoming suitcase. 

The book was James Joyce's 'Ulysses'. It came up as a test case of obscenity. Until then, the American courts had closely followed English law on obscenity, going back to a firm starting point in a British Act of, I think 1857, which authorised the seizure on the premises or in the mails of, and I quote, 'obscene matter whether it be in writing or by pictures, effigy or otherwise'. Well then, and more sharply later, the definition of obscenity was focused on the author's intention. 'The intention', the law said, 'of corrupting morals' and, later on, both in Britain and the United States, the courts refined the definition to mean, quote, 'anything tending to the corruption of minors'. Later still, and down to that fateful year of 1933, the criterion became 'anything that would offend or corrupt the average sensual man'. Women, in the law, were, I guess, not meant to be either sensual or corruptible. 

The average sensual man was the moral equivalent of the 'reasonable' man in the law of torts and then came the lightning flash of Joyce's 'Ulysses' which the most double-domed critics authors said anybody could recognise as a masterpiece of literature, if you could only get hold of it. 

Well, one Judge John M. Woolsey, in the famous Southern District Court of New York, delivered himself on 6 December 1933 of a judgement lifting the ban on 'Ulysses' and opening up a quite new view of obscenity. The total effect of any work, he said, is what matters and the total effect of 'Ulysses', quote, 'is somewhat emetic. Nowhere does it tend to be aphrodisiac'. And he added the waggish touch, 'Furthermore it must always be remembered that Joyce's locale is Celtic and his season is spring.' 

So now it was the literary quality of a work that was controlling. Judge Woolsey's ruling stood for a quarter of a century and permitted, on the same grounds, the publication in Britain and America of D. H. Lawrence's 'Lady Chatterley's Lover'. Thereupon the publishers grew bolder both in print and in pictures and, in the 1960s, the United States Supreme Court convicted a man not for printing an erotic magazine but for the prurient advertising that promoted it. Well now we were going into a twilight of reason and language and once the Swedes erupted in a riot of frank photographic sex, the definition of obscenity became so clouded in the western courts that anything could gallivant under the cloud. 

Two years ago, the present Supreme Court ruled that there was, in effect, no federal, national definition of obscenity but under the Freedom of Speech clause of the constitution, the states, or any community, could fairly ban what their community would consider obscene. That's where the law stands now and a very rocky stance it is. For, suddenly, a court in Cincinnati has banned a picture magazine of the sort you see both in Britain and the United States that is, frankly, about as clinically nude as you can get. It is sold freely here, yet its publisher has been convicted in one city and faces a whacking jail term. 

It will go, of course, to the Supreme Court and, maybe, after years of stumbling in the dark through the writhing bodies of filmed and staged and photographed parties – far wilder than Joseph Moncure March conceived – we shall take another crack at the excruciatingly tricky problem of how to maintain free speech and yet rid ourselves of the clutter of filth that is marketed for lucre in the name of liberty.

This transcript was typed from a recording of the original BBC broadcast (© BBC) and not copied from an original script. Because of the risk of mishearing, the BBC cannot vouch for its complete accuracy.

Letter from America audio recordings of broadcasts ©BBC

Letter from America scripts © Cooke Americas, RLLP. All rights reserved.