February 19, 2018

Tropic of Cancer & the SLAPS test

On this day in 1964 the U.S. Supreme Court overturned a lower court ruling that found Henry Miller's Tropic of Cancer to be obscene. This was three years after the book's first publication in America, thirty years since its publication in Europe, and a hundred years since Comstock began to patrol the mails for such "vampire literature." Though but one judgment in a series of significant decisions -- most importantly, those concerning Ulysses, Lady Chatterley's Lover and Fanny Hill -- the Miller ruling is considered landmark for having led the way to the establishment of a new, more liberal standard in censorship.

It was the publication of Tropic of Cancer in paperback that brought the case to trial. Fearing that cheap editions would flood the corner stores, local authorities launched actions against over sixty booksellers all across the country. When the dust had settled, the old idea that a book must pass a national "prurience" test had been replaced by what has come to be called the Brennan Doctrine, after its presiding judge. The new standard has three important tests, and a book can be banned only if it passes all three: 1) the dominant theme must be prurient; 2) the book must offend contemporary community standards; 3) the book must be "utterly without redeeming social importance," by virtue of having no "serious literary, artistic, political, or scientific" merit. Some lawyers call this last criterion the SLAPS test; perhaps the same ones who call the new censorship era, "Miller Time." In any event, the old idea that a book might be banned for its dirty bits is now more or less turned on its head: no book can be banned if it can be shown to have some bits that are more than dirty.

The self-defense which Miller made for one of his other books will serve for any of them: "If it was not good, it was true; if it was not artistic, it was sincere; if it was in bad taste, it was on the side of life." Or as he puts it in Tropic of Cancer:
    It may be that we are doomed, that there is no hope for us, any of us, but if that is so then let us set up a last agonizing, bloodcurdling howl, a screech of defiance, a war whoop! Away with lamentation! Away with elegies and dirges! Away with biographies and histories, and libraries and museums! Let the dead eat the dead. Let us living ones dance about the rim of the crater, a last expiring dance. But a dance!
One of the lawyers involved in the Tropic of Cancer case, and in many anti-censorship litigations, was Charles Rembar, author of The End of Obscenity:The Trials of Lady Chatterley, The Tropic of Cancer, and Fanny Hill, which won the George Polk Award for best book in 1968. He is the one who coined, "prohibition is in the groin of the beholder," and the one who talked his young cousin, Norman Mailer, into accepting "fug" as a replacement expletive in The Naked and the Dead. In a 1980 book, The Law of the Land, Rembar shows that he can make a sentence as well as a case: "For centuries, our lawyers, a priestly caste, used a mysterious tongue, composed of Latin, French, English, incantation and a bit of mumbling. These continue, more or less, to the present day -- Latin less, English more, French absorbed, incantation down a bit, mumbling steady."

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