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  As Frederick Schauer affirms in his study The Law of Obscenity, the use of expert testimony “took on new meaning” after the passage of Roth v. US in 1957, the first case in which the US Supreme Court directly addressed whether obscenity constitutes an exception to First Amendment protection for freedom of speech and the press. Before that landmark case, experts were generally (and not always successfully) deployed to attest to the literary merit of works deemed obscene; after its passage, lawyers and their expert witnesses were provided with what Schauer deems to be “a uniform standard definition of obscenity”: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”5 In the wake of the so-called constitutionalization of obscenity precipitated by Roth, experts found that, in addition to establishing the literary value of purportedly obscene texts, they were also being asked to help the court determine the nature of the “average person” and of the “community standards” that “average person” should apply.

  The court ruled against Samuel Roth, the “booklegger” who had earlier attained notoriety for pirating Ulysses. But First Amendment lawyers realized that by defining obscenity as material “utterly without redeeming social importance,” the court had provided them with an important weapon in the campaign against censorship. Roth represents the initial articulation of what Rosset’s lawyer Edward de Grazia later called the “Brennan Doctrine,” a developing definition of obscenity formulated by Supreme Court Justice William Brennan that would make it easier for “defense lawyers to demonstrate that the works of literature or art created by their clients were entitled to First Amendment Protection.”6 As De Grazia’s far-ranging study, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius, affirms, “experts” such as literary critics, authors, journalists, publishers, and college professors were central to this legal demonstration. Indeed, according to de Grazia, “The only significant breakthrough to freedom that was made over the past century by authors and publishers … was made when the courts were required by law … to admit and give weight to the testimony of ‘expert’ authors and critics concerning a challenged work’s values.”7

  The gold standard of literary value for all of these experts and the publishers who retained them was James Joyce’s Ulysses, whose exoneration a generation earlier by Judge John Woolsey had become a landmark both in the battle for freedom of expression and in the academic canonization of modernism. Before the Ulysses case, the literary value of modernist texts had been difficult to legitimate because they had not stood the test of time. They had not become “classics” by the only standard widely recognized by the public at large: outliving their authors. The obscenity trial in this context functioned as a ritual of consecration whereby modernist texts could be affirmed as “classics” by experts on literary value. It enabled an alliance between publishers, lawyers, and literary critics that was crucial to providing mainstream acceptance for modernism by replacing the test of time with the patina of professionalism.

  The US government itself acknowledged this emergent category when, in Section 305 of the Smoot-Hawley Tariff of 1930, it allowed a Customs exception for “so-called classics or books of recognized and established literary … merit … when imported for non-commercial purposes.”8 Bennett Cerf’s lawyer Morris Ernst and his co-counsel Alexander Lindey leveraged Smoot-Hawley in their petition to the Treasury Department arguing that Ulysses is a “modern classic”: “We have long ago repudiated the theory that a literary work must be hundreds or thousands of years old in order to be a classic. We have come to realize that there can be modern classics as well as ancient ones. If there is any book in any language today genuinely entitled to be called a ‘modern classic’ it is Ulysses.”9 Over the next few decades, it became the job of literary critics to affirm the category of the “modern classic,” which Grove used both in its legal defense and in its commercial promotion of Lady Chatterley’s Lover, Tropic of Cancer, and Naked Lunch.10

  During this period, the legal and economic extensions of obscenity were closely linked, since the federal government did not provide copyright protection for works deemed obscene. The illegitimacy of obscenity as literature, in other words, was reinforced by its exemption from the category of intellectual property. Joyce and Lawrence had no legal recourse against piracy, since they could establish no American copyright for their texts. Cerf’s decision to publish Ulysses promised to doubly affirm it as both a modern classic exempt from Customs confiscation and as legitimate intellectual property from which the author could profit.11 In order to establish Ulysses’s classic status and discourage further censorship and copyright challenges, Cerf included in Random House’s version of the text Woolsey’s “monumental decision,” a foreword by Ernst, and a letter from Joyce detailing his piracy woes, establishing a paratextual convention that Rosset followed closely in packaging Lawrence, Miller, and Burroughs.

  Cerf used The United States of America v. One Book Called “Ulysses” to leverage Joyce’s masterpiece into Random House’s “first really important trade publication.”12 Ulysses’s modernist credentials were affirmed by its entry into the middlebrow marketplace, a paradox sustained by the successful marketing of modernism and the canonization of the new criticism that mandated the moral “disinterest” of literary value. What Susan Stewart identifies as a “’properly’ transgressive space” was established by an alliance between the expertise of academic critics and the marketing savvy of modern publishers; the “obscenity” of modernism was contained by its aesthetic consecration.13 The Ulysses case provided legal sanction for this containment. The law had acknowledged the expertise of literary critics, which in turn transformed the subversive tendencies of modernism from a liability to an asset in the cultural field. More than any other postwar American publisher, Grove Press capitalized on this transformation.

  The Professors versus the Postmaster

  The idea to publish an unexpurgated edition of Lady Chatterley’s Lover was originally suggested to Rosset by Mark Schorer, whom Rosset confirmed was “a major figure in the beginning.” He became instrumental in defending, legitimating, and publicizing the text. A native midwesterner with a PhD in English from the University of Wisconsin, Madison, Schorer joined the English Department at UC Berkeley in 1945, where he served as chair from 1960 to 1965. A recipient of three Guggenheim Fellowships and a widely respected critic and novelist informally known as the “Lionel Trilling of the West Coast,” Schorer became Rosset’s academic point man for Lady Chatterley’s Lover, negotiating (ultimately unsuccessfully) with Lawrence’s widow for the rights, providing Rosset with a list of experts from whom to solicit testimony, and writing the introduction to the Grove Press edition, originally published in the inaugural issue of the Evergreen Review.14

  In early 1954, Rosset wrote to Ephraim London, already well known for having exonerated Roberto Rossellini’s film The Miracle of charges of obscenity, for legal advice on how to proceed with a defense of Lady Chatterley’s Lover. London responded, “The Ulysses case suggests an approach,”15 and Rosset in turn wrote to Schorer that “Ephraim feels that the best mode of procedure might be to more or less do what the ulysses people did.”16 Schorer provided Rosset with a list of potential experts, including Edmund Wilson, Jacques Barzun, Henry Steele Commager, and Archibald MacLeish. Rosset fashioned a boilerplate letter to be sent to these men, emphasizing that “in order to fight most effectively against such repressive and outmoded censorship, we shall need written opinions from responsible and eminent citizens to the effect that the book has literary value.”17 Barzun and Harvey Breit both provided testimonials that eventually appeared in the flyleaf of the Grove hardcover edition, and MacLeish wrote a preface to supplement Schorer’s introduction. Lawrence’s American biographer, Harry Moore, also supplied copy for the flyleaf, contending that “the time is overdue for an American publisher to make a fight for lady chatterley’s lover such as the one made … in Ne
w York in 1933 and 1934 … for Joyce’s ulysses.”

  Obscenity, however, was not the only problem. There was no US copyright registered to Lady Chatterley’s Lover, precisely because it had been deemed obscene. Rosset wrote to Frieda Lawrence’s British agent, Laurence Pollinger, and to Alfred Knopf concerning the copyright to the text. Although Ephraim London had reassured him that the unexpurgated version was in the public domain, and he had received encouragement from Frieda to publish it, Rosset also knew that Knopf had in 1932 published an expurgated version to which it owned the copyright. Writing to Pollinger in June 1954, Rosset claimed, “As you know, LADY CHATTERLEY’S LOVER is no longer in copyright; however, in the happy (if not too likely) event that we can overcome censorship and proceed with publication, we will, as a courtesy, pay a standard royalty to the Lawrence estate.”18 Ominously, Pollinger responded, “I am not, I am afraid, prepared to agree to your statement that this novel is no longer in copyright in America … Of one thing I am absolutely certain, and that is that LADY CHATTERLEY’S LOVER is copyright[ed] in all the countries that signed the Berne convention.”19 Later that summer, Rosset wrote to Knopf, summarizing the efforts he had made and asking for reassurance that, if he succeeded in exonerating the book, he would be free to profit from its publication. As he argued, “We think we should win, and we also think that if we undertake the work and win the case we should then be the publisher of the book and thus gain any profits which might occur.”20 Knopf deferred to Pollinger, whose position was strengthened after Frieda Lawrence died in 1956, leaving the British agent as the literary executor of the Lawrence estate. On the advice of Ephraim London, Rosset temporarily shelved the project.

  Three years later, encouraged by the passage of Roth and by London’s successful defense of the French film version, Rosset decided to proceed with publication, but then he ran into problems with London. According to Rosset, “We were in Boston with a bunch of Lawrence specialists, we were having lunch at Harvard, I disagreed with London on something … he said, ‘When you’re with me, do what I say.’ And I said, ‘You’re fired.’”21 The young man he hired to replace him, Norman Mailer’s cousin Charles Rembar, had never argued a case in court. But Rembar was a quick study and recognized the importance of the Supreme Court’s decision in Roth, which defined obscenity as material lacking “redeeming social importance.” As Rembar meticulously documents in The End of Obscenity, this language was central not only in the Lady Chatterley case but also in the cases involving Miller’s Tropic of Cancer and in the 1966 Supreme Court case exonerating Memoirs of a Woman of Pleasure. By 1968, the Supreme Court, partly through Rembar’s influence, had altered the definition of obscenity to material “utterly lacking redeeming social value,” effectively excluding print from prosecution.

  Rosset had originally intended to precipitate a Customs case as Cerf had done with Ulysses, but the legal confrontation was ultimately with the US Post Office, meaning that it directly challenged the Comstock Act, which was almost a century old. The hardcover was impounded by the postmaster of New York in May 1959, the same month it made the New York Times bestseller list. A hearing was scheduled that included the Readers’ Subscription as co-plaintiff. As Jay Topkis, the counsel for Readers’ Subscription, affirmed in his opening testimony, “Our business depends completely on the use of mails. We operate through the mails exclusively. When we can’t send mail, we are out of business.”22 Readers’ Subscription president Arthur Rosenthal elaborated in his testimony later that day the extent to which book clubs helped publishers like Grove reach an academic market: “We do direct mail largely to what I call the university community: graduate students, assistant professors, professors.”23 Not only did Readers’ Subscription market to academics but its selections were in turn determined by them, as Rosenthal further affirmed: “Readers’ Subscription was founded in 1952 with three very prominent literary critics, W. H. Auden, poet, Jacques Barzun of Columbia, Lionel Trilling of Columbia, as people who were charged with the responsibility of selecting the books for this organization.”24 The presence of Readers’ Subscription as co-plaintiff affirms the centrality of the burgeoning academic community as both audience and authority in the trials to come.

  Rosset was the first witness called, and the Post Office lawyer promptly challenged his testimony’s relevance, objecting that he “failed to see where we can gain anything by the testimony of the publisher of this book.” Rembar, referencing Earl Warren’s concurring statement in Roth, rebutted that “the conduct of the publisher is one of the elements that the courts have held relevant in a proceeding of this kind.”25 Then Topkis, citing Woolsey’s contention that “the intent with which the book was written must first be determined,” expanded the scope and relevance of Rosset’s testimony by claiming, “Here, we don’t have the author, we have the publisher.”26 Rosset further legitimated and distributed his implied expertise in divining Lawrence’s intentions, testifying that he “engaged Professor Schorer as an expert on this book, to be certain of the fact that when we published, we would have the authentic edition.” He then recounted his efforts to solicit expert opinions, after which Rembar and Topkis offered reviews of the book as evidence of its literary value. Over the objection of the prosecutor, the judicial officer, “relying on the decisions in the Ulysses case,” accepted them into evidence.27

  The competence and relevance of expert testimony were central issues in this initial hearing. Rembar and Rosset had retained Malcolm Cowley and Alfred Kazin, and the government persistently challenged the nature and scope of their expertise. Both men emphasized their academic credentials, with Cowley offering that he had “been visiting professor at many universities” and Kazin similarly claiming, “I have been a visiting professor in various universities both here and abroad, at Harvard, Smith, Amherst, Cambridge.”28 Both men described themselves as literary sociologists with expertise that encompassed both the interpretation and reception of literature. Cowley identified himself as “a literary critic and historian … I have made somewhat of a specialty of the folkways of readers and writers; that is, my last book … was more or less a book of literary sociology rather than criticism.”29 Kazin also identified his specialty as “the trends of literary taste, what the public has responded to, what it has bought.”30 Both men claimed that Lawrence’s intention was to encourage sexual fulfillment in marriage and that the public, particularly on college campuses, was becoming increasingly tolerant of sexual explicitness, such that Lawrence’s text was no longer as offensive to public taste as it was when originally written.

  Arthur Summerfield, Eisenhower’s postmaster general, was unconvinced and issued a departmental decision on June 11, 1959, concluding that “any literary merit the book may have is far outweighed by the pornographic and smutty passages and words, so that the book, taken as a whole, is an obscene and filthy work.”31 Rosset’s response was two pronged. First, he appealed to the court of public opinion, compiling “A Digest of Press Opinions” on Summerfield’s decision to be distributed “in the Public Interest.” All of these opinions, from newspapers across the country, challenged Summerfield’s competence to determine literary merit, many directly contrasting his authority with that of the critics whose evaluations he overruled. Thus, one opinion for the San Francisco Examiner of June 18, 1959, asserts: “Dear Mr. Summerfield … You say ‘Lady Chatterley’ is obscene. Are you as well qualified to judge a work of literature as Mark Schorer, Archibald MacLeish, Malcolm Cowley, Alfred Kazin and the host of other renowned scholars and critics who say it is not?”32 In the same month, Lady Chatterley’s Lover reached number 5 on the New York Times bestseller list.

  Next, Rosset and Rembar decided, along with Readers’ Subscription, to sue the postmaster general of New York, Robert Christenberry, in federal court for impounding the book. Judge Frederick van Pelt Bryan’s decision for the US District Court, issued on July 21, 1959, and affirmed by the US Court of Appeals for the Second Circuit, finally overturned the Post Office ban. In his decisio
n, which was published in full in the Evergreen Review and incorporated into the paperback edition of the text, Bryan affirmed that “Grove Press is a reputable publisher with a good list which includes a number of distinguished writers and serious works. Before publishing this edition Grove consulted recognized literary critics and authorities on English literature as to the advisability of publication. All were of the view that the work was of major literary importance and should be made available to the American public.”33

  Three days after Judge Bryan issued his decision, New American Library, which Knopf had licensed to publish an expurgated edition of Lady Chatterley’s Lover, sent out a “Signet Gram” announcing publication of “the unexpurgated and complete edition of ‘Lady Chatterley’s Lover,’ under their exclusive license for paperbound reprints of ‘Lady Chatterley’s Lover,’ granted by contract authorized by the author’s estate more than 10 years ago, still in full force and effect and just reconfirmed by the Lawrence estate and its literary executors.”34 No sooner had Rosset won the legal battle over obscenity than he found himself in a subsequent struggle over intellectual property. He brought suit against New American Library, not for copyright infringement, since it had been established that the book was in the public domain, but for “seeking to mislead and deceive the public” with its avowals that its edition was “complete” and “authorized.”35 As Publishers Weekly affirmed, this was less a legal issue than a matter of “the ethics of the publishing industry.”36 Most industry insiders believed that Rosset’s assumption of the original risks of publishing the unexpurgated edition gave him the exclusive right to profit from it and also acknowledged that “Grove’s performance in publishing its $6 hardbound edition of the book and in advertising and promoting it was in keeping with the book’s high literary standing” and had indeed been responsible for its legal exoneration.37 Grove settled with New American Library in the fall of 1959, with both companies agreeing to acknowledge the legitimacy of each other’s versions.