The Day Obscenity Became Art. TODAY is the 50th anniversary of the court ruling that overturned America’s obscenity laws, setting off an explosion of free speech — and also, in retrospect, splashing cold water on the idea, much discussed during Sonia Sotomayor’s Supreme Court confirmation hearings, that judges are “umpires” rather than agents of social change.

The historic case began on May 15, 1959, when Barney Rosset, the publisher of Grove Press, sued the Post Office for confiscating copies of the uncensored version of D. H. Lawrence’s 1928 novel “Lady Chatterley’s Lover,” which had long been banned for its graphic sex scenes.

Most lawyers of the time would have advised Mr. Rosset that he had a weak case. Back in 1873, Anthony Comstock, the former postal inspector who founded the New York Society for the Suppression of Vice, had persuaded Congress to pass a law outlawing obscenity, which state and federal courts came to define over the decades as works that “community standards” would regard as “lustful,” “lewd,” “lascivious” or “prurient.”

As recently as 1957, the Supreme Court had ruled in Roth v. United States — a case involving a bookseller who sent erotic literature through the mail — that the First Amendment’s guarantees of free speech did not apply to obscenity. The case against “Lady Chatterley’s Lover” seemed cut and dry; whatever the book’s literary merits, it met the legal definition of obscenity.

However, Mr. Rosset hired a lawyer named Charles Rembar, whom he’d met playing tennis in the Hamptons. Rembar had never argued a case in court but was an adviser to several writers, including his cousin Norman Mailer. (When Mailer wrote “The Naked and the Dead,” his career-sparking World War II novel, Rembar advised him to avoid legal controversy by spelling his characters’ most common utterance “fug.” The trick worked.)

Looking over the Roth decision, Rembar spotted a loophole. The opinion, written by Justice William J. Brennan, noted that the First Amendment’s purpose was “to assure unfettered interchange of ideas” and that “all ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guarantees.” But, Brennan went on, “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”

Rembar mulled over a question that Brennan apparently hadn’t considered: What if a book met the standards of obscenity yet also presented ideas of “redeeming social importance”? By Brennan’s logic, wouldn’t it qualify for the First Amendment’s protection after all?

On a sheet of paper, Rembar drew two slightly overlapping circles. He labeled one circle “Material appealing to prurient interests.” He labeled the other “Material utterly without social importance.” By Brennan’s reasoning, only material that fell inside both circles — that was both prurient and worthless — should be denied the privileges of free speech.

This was the argument that Rembar made before Judge Frederick van Pelt Bryan of the United States District Court for the Southern District of New York. With the assistance of several literary critics’ testimony, he presented “Lady Chatterley” as a novel of ideas that inveighed against sex without love, the mechanization of industrial life and morbid hypocrisy.

The United States attorney representing the Post Office, S. Hazard Gillespie Jr., thought Rembar had misread the law, and he recited a clause of the Roth ruling that Rembar had omitted. Justice Brennan had written that controversial ideas “have the full protection” of the First Amendment — “unless,” Gillespie underlined, these ideas were “excludable because they encroach upon the limited area of more important interests.” One of those interests, surely, was keeping obscenity under wraps. Hence Rembar’s argument was irrelevant.

Source: http://www.nytimes.com