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2 the Pornographic Field

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2 the Pornographic Field Notes 2 THE PORNOGRAPHIC FIELD 1. See, however, the Postscript to Chapter 5 below. 2. At the same time, argues Marcus, the problem of pornography will ultimately be solved by the harmonious working-out of the dialectic through which individuals- and, more generally, culture itself- reach maturity: 'Pornogra­ phy is, after all, nothing more than a representation of the fantasies of infantile sexual life, as these features are edited and reorganized in the masturbatory daydreams of adolescence. Every man who grows up must pass through such a phase in his existence, and I can see no reason for supposing that our society, in the history of its own life, should not have to pass though such a phase as well' (Marcus, 1964, p. 289). 3. The point is tellingly made in the concurring opinion of Chief Justice Warren, 1957, in Roth v. United States: Present laws depend largely upon the effect that the materials may have upon those who receive them. It is manifest that the same object may have a different impact, varying according to the part of the community it reached. But there is more to these cases. It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw colour and character. A wholly different result might be reached in a different setting. (Roth v. United States, p. 495) 4. The fluctuating relation between the materiality of the body and the ethically infused entity of the flesh is a sign of the degree to which the body has been penetrated and organised by variable spiritual, somatic and social techniques and imperatives. The body is as it were transformed into the flesh when, in the context of the confessional relationship, it is endlessly scrutinised for signs of the desire hidden deep within. This investigation, however, is more than just semiotic. Under the pressure of the interrogation the body provides a 'surface of emergence' for specific somatic and spiritual intensities, also identified with the flesh. 5. For the full reference to this and all other cases cited, see the Table of Cases. 6. See, for example, Kaufmann (1966), Hunter (1966), Starr (1965, 1971) and Slights (1981). 7. It is characteristic that the major collection of English and United States cases (de Grazia 1969) is introduced in these psycho-aesthetic terms and is pre­ sented as a 'censorship' history. On the problem of obscuring historical and legal distinctions by under-specifying the notion of 'censorship', see Saunders (1990). 247 248 Notes 8. Indeed, seeking to evade a conviction, Curll himself argued in the Weekly Journal that Henry Rhodes' 1683 edition of the work had not been prosecuted (Foxon, 1964, p. 14). 9. 'Juridification' refers to the process of transfer into a legal register of certain conducts, in this instance because they were now taken to bear on the maintenance of public order and morality. 3 NINETEENTH-CENTURY ENGLISH OBSCENITY LAW 1. Works for the theatre were already subject to statutory regulation under the Lord Chamberlain (Tribe, 1973, p. 64). 2. Routine indications of problems encountered in the summary policing of offences relating to obscene or indecent materials in the second half of the nineteenth century are found in the recurring practical inquiries on 'particular points' of statutory regulation and interpretation dealt with in the columns of the magistrates' publication, the Justice of the Peace. These inquiries, relat­ ing to such statutes as the Town Police Causes Act (1847), the Post Office Act (1875) and the Indecent Advertisement Act (1889), arise in relation to a series of problem behaviours for the policing of the streets, including inde­ cent conduct, gambling, gaming, drinking, public nuisance and so forth. 3. During the parliamentary debate, Lord Brougham had in fact asked 'how did [Lord Campbell] propose to def"me what was an obscene publication' (Hansard, Lords, 25 June 1857, CXLVI, p. 329, but the Bill passed without this question being answered). 4. Alongside the criminal law concerning obscene publication there exists the civil law provision - now in disuse - whereby copyright protection is with­ held from works that are found obscene. The logic behind this arrangement is that the civil courts would not intervene to protect the property in a work whose publication was against the public interest, possibly to the extent of constituting a criminal offence. This doctrine, whose historical development rests largely on a series of decisions in the court of Chancery, has in fact operated without ever generating its own test or definition of obscenity, such as was constructed for the criminal law in Regina v. Hicklin. Nor was this criminal law defmition adopted by the civil courts. Phillips (1977, pp. 157- 8) comments thus on the correlation between civil and criminal standards of obscenity: [T]he expressed assumption behind [early civil cases] was that to deprive the author of protection could hardly benefit the infringer who by his very action was committing a criminal offence (though, curiously enough, in none of the early leading cases did the successful infringer attract criminal charges). This underlying notion may still be reflected today in current judicial attitudes. It certainly would appear to be convenient to kill two birds with one stone, as it were, by making the one test satisfy both criminal and civil needs, and the law could then not stand accused of setting double standards; but there may be an objection to this, based upon the different functions of diverse laws in distinct jurisdictions. Notes 249 Criminal matters, for example, are in essence disputes between state and individual as to the acceptability to the former of the deeds of the latter; the burden of proof upon the prosecutor is heavy and weighted in the individual's favour; sine<; it is the freedom of individual action which is at stake as much as the conduct of the individual brought before the court, the law is construed in a manner which, in theory, preserves for the individual the greatest degree of freedom of speech and action compatible with the intentions of the law-makers. Contrast civil proceedings, where the matter in dispute is that of the ownership or possession of property held by one man as against some or all of his fellow men, where the rights of litigants are balanced along with a general and all-pervasive body of rules known as 'public policy', and where the burden of proof is far easier to discharge; granted, issues such as First Amendment freedom of speech may be touched upon, but they are not central to litigation. Thus where two separate jurisdictions must apply the same test of obscenity, may there not be some inherent danger in creating an anomaly by applying the same test? 5. Radzinowicz (1959) suggests that the influence of the Vice Societies was significantly limited by their tenuous relation to liberal and other political organisations. 6. The Joint Select Committee was established at the time of a dual concern: with popular gambling crazes- competitions and lotteries- conducted in the popular press, and with postcards, advertisements for contraception and abor­ tion distributed by mail, often from abroad (for example from France, but also from Egypt, where a penny post to England had been set up). What the lotteries and the indecent publications had in common were technical means of communication - press and mail - which posed problems for the routine established policing of local streets and traditional agents of 'demoralisation', that is, local and well-known 'rogues' and 'vagabonds'. New markets and new forms of conduct were emerging which eluded the constables on the beat. 7. On the postal regulation .of obscene materials, see Manchester (1983). 8. For the detail of the record, we note the following factual errors in accounts of Curll's case. Thomas (1969, p. 82) names the three judges as Raymond, Fortescue and Reynolds. The first of these names is wrong; it should be Mr Justice Probyn. The Williams Report (1979, p. 167) has the Chief Justice say that 'if it were not for the case of Read, he would see little difficulty in it'. In fact these are the words of the Attorney General prosecuting, in response to the opening by Curll's counsel, Mr Marsh. The error arises from a mis­ reading of a vocative at the head of the concluding paragraph of the Attor­ ney's statement ('Chief Justice, I think this is a case of very great conse­ quence, though if it was not for the case of The Queen v. Read, I should make no great difficulty of it.') The Chief Justice is responding to this statement, so we can take the Attorney's 'Chief Justice' to refer to him, not to signal the reporter's identification of the speaker. 9. On these courts, see Chapter 8, 'The Bawdy Courts', in Hill (1964). On the state and functions of the eccelesiastical courts at the start of the eighteenth century, see Archer (1956). 250 Notes 10. Reynolds (1975, p. 222) warns against too much reliance on early obscenity decisions since 'the eighteenth-century legal precedents for punishment of obscene publication have politics as their basis, not close legal reasoning'. Curll had published the memoirs of John Ker, a spy in the service of Queen Anne, which reflected unfavourably on the House of Hanover. According to Reynolds (p. 221), George II intervened in the case by having Chief Justice Fortescue replaced by Francis Page, 'the "hanging judge" notorious in Pope's poems, Johnson's Life of Savage, and Fielding's Tom Jones'.
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