The Obscenity Bargain: Ralph Ginzburg for Fanny Hill

Abstract

The Obscenity Bargain: Ralph Ginzburg for Fanny Hill L.A. POWE, JR. The next-to-the-last witness at the July 1968 hearings on the nomination of Abe Fortas to replace Earl Warren as Chief Justice was James Clancy. Along with another attorney, Charles Keating, who would later gain infamy in the savings and loan scandal of the 1980s, Clancy appeared on behalf of Citizens for Decent Literature, an anti-smut organization that had filed amicus briefs supporting censorship “as essential to the development of good family living”1 in the Supreme Court’s important obscenity decisions.2 Clancy asserted that everyone should see the materials Fortas had held were entitled to First Amendment protection, and so he had assembled a thirty-minute compilation ofthem for the Judiciary Committee’s viewing. Fortas had voted to reverse fifty-two ob­ scenity cases in the previous two years, and Clancy made much of the fact. But so had Hugo L. Black, William O. Douglas, and Potter Stewart, joined the previous year by Thurgood Marshall. Indeed, these four Jus­ tices always voted that the First Amendment protected whatever materials were before the Court. Before Marshall joined the Court, the fifth vote to reverse an obscenity conviction was as likely to come from William J. Brennan as it was from Fortas. Furthermore, all the key opinions—Roth? Jacobellis? Ginzburg? and Memoirs6—were written by Brennan. Indeed, his was the law of obscenity.7 Clancy did not know it, but in a deeper sense he was correct about how important Fortas’s influence was. Although Fortas was only one of two Justices who did not write in the 1965 Term cases,8 from inside the Court, Fortas dictated the results in Ginzburg and Memoirs. Everyone knows that Justices bargain over the wording of opinions. We know there is strategic voting on whether to hear cases.9 We also know that they bargain over outcomes— for example, Douglas telling Stewart he would join Stewart’s draft opinion in Swann v. Charlotte-MechlenburgBoardofEducation?0 the first busing case, if Stewart would switch the result from affirm to reverse.11 The story that follows is about a differenttype ofa pact— different because it explicitly, albeit clan­ destinely, denies equal justice under law—a THE OBSCENITY BARGAIN 167 Charles Keating (left) partnered James Clancy who testified on behalf of their anti-smut group—Citizens for Decent Literature—at Abe Fortas’s confirmation hearings to be Chief Justice in 1968. They showed the Jud­ iciary Committee materials from fifty-two obscenity cases in which Fortas (right), as Associate Justice, had ruled that the works were protected by the First Amendment. Keating was later convicted of swindling small investors in the savings and loan debacle of the 1980s. bargain whereby a Justice changed his vote in one case in exchange for another Justice changing his vote in a separate case.12 Specifi­ cally, Fortas proposed and Brennan, with War­ ren’s tacit consent, agreed to swap votes in two obscenity cases. As a result, Fanny Hill (as Memoirs is typically called) and its rep­ utable publisher, G.P. Putnam’s Sons, escaped the censor’s ban, while a human being, Ralph Ginzburg, was sent to jail without even a fig leaf of due process from the highest Court in the land. Memoirs John Cleland penned Memoirs of a Woman of Pleasure while in debtors’ prison in mid­ eighteenth-century England. It was published after he was released, and publication found him back in court again where he renounced Fanny Hill as “a Book I disdain to defend, and wish, from my Soul, buried and forgot.”13 Fanny Hill was neither buried nor for­ got. Instead, it had a “wide” but “clandestine” circulation, culminating in the open publica­ tion at issue in Memoirs.14 It is, by all ac­ counts, a very well-written book that lacks a plot—in essence, a “literary stag film.”15 It is inconceivable that anyone would read the book for its supposed “elegance and energy,” “un­ doubted historic value,” and “definite literary appeal.”16 As the New York Herald Tribune book critic noted, one could have a long career “searching for anyone who read the book...