Dirty Works: Obscenity on Trial in America’s First Sexual Revolution by Brett Gary

Abstract

Although the title does not reveal it, Gary’s book employs a biographical approach to the study of how people who embraced modernism challenged the legal gender norms established in the Victorian Age and given potent legal effect through the Comstock Act and similar state legislation. Comstockery was paternalistic in every sense of the word, utilizing the concept of obscenity to protect the moral order of society by regulating sexuality. The legal standard that was used most often to decide obscenity cases was the Hicklin rule, which required only that an object have the potential to corrupt the most susceptible people to be ruled obscene. In the hands of magistrates, customs officials, and postal officials, its use was capricious and extensive.As a cultural historian speaking to legal scholars, political scientists, and legal historians, Gary chronicles the “changes and conflicts around sex and morality in American culture in a booming, ever-expanding marketplace of information and entertainment” from the 1920s into the 1950s (2). He uses “the actions of one particular law firm and one particular lawyer” to show how an older, established fear “of public vulnerability was countered by an equal powerful claim to the public’s right of access” (3). Morris Ernst, a partner at Greenbaum Wolff and Ernst, and associate counsels Alexander Lindey and Harriet Pilpel of the same firm “won signature cases in their larger campaign against” legal suppression of sexual expression and knowledge (3). Representing feminists, birth-control activists, doctors, sex researchers, booksellers, publishers, and novelists, they did a remarkable amount of the heavy lifting required to change the law. Their individual clients included Mary Ware Dennett, the pioneering author of a sex-education manual; Marie Stopes, the author of a path-breaking work extoling women’s sexual pleasure in marriage; Covici and Friede, the American publishers of Radclyffe Hall, author of “the most important English-language lesbian novel” of the period (111); James Joyce, author of the transgressive modernist masterpiece Ulysses; Margaret Sanger, the nation’s foremost birth-control advocate and activist; and Alfred Kinsey, America’s leading sex researcher.Ernst is famous as a leading lawyer for the American Civil Liberties Union (aclu), but, as Gary shows, much of his work took place outside that organization. By shifting the focus away from the organization, Gary sheds new light on how legal and cultural change occurred. His work complements and supplements Leigh Ann Wheeler’s How Sex Became a Civil Liberty (New York, 2012), which explains how the aclu incorporated sexual speech into the freedoms that deserved protection from government. Employing the traditional humanistic methodology of textual analysis, Gary illuminates in great detail how Ernst and his collaborators swayed courts (and sometimes bureaucrats or legislators) to their views. They seldom lost. More than one chapter concludes with the assertion that a judge “rendered a verdict that essentially accepted all their arguments” (286).Gary’s focus is on legal arguments, defense strategies, and trial work—often accompanied by behind-the-scenes maneuvering or publicity campaigns. He treats the briefs as not just legal arguments but also as social and cultural statements, and he views lawyers as creators constrained by the realities of litigation and context. Thus, they downplayed some aspects of their cases to gain a competitive advantage in court. For instance, in defending Dennett they glided past her treatment of masturbation to secure victory, and similarly with Sanger, they strongly pushed for a physicians’ exception to the restriction on importation of contraceptive devises. That decision reinforced the medicalization of birth control.Gary’s work details the emergence of a cultural and legal sexual revolution that set the stage for later developments. Numerous examples show how “Ernst and his colleagues” created “a core body of arguments” deployed “in virtually all of their cases” that “were steadily accepted by the courts,” shifting “the role of the state from one of paternalistic protector of childlike vulnerable citizens to an arbiter of adult marketplaces of knowledge and entertainment” (289).