An Obscene Victory for First Amendment
Good morning. It’s March 25. On this day in American history, officials of the United States government reacted in a different way to the publication of another type of political commentary. It was a volume by Allen Ginsberg titled “Howl and Other Poems.” Published in Britain, 520 copies of the book were seized by U.S. Customs agents on March 25, 1957.
Anticipating trouble – and opportunity - Lawrence Ferlinghetti, owner of City Lights bookstore in San Francisco, obtained a promise from the local chapter of the American Civil Liberties Union to defend him in court if he were to run afoul of California’s sweeping anti-obscenity laws by selling Allen Ginsberg’s book.
And on June 3, 1957, Ferlinghetti placed that call to his lawyers after Shigeyoshi Murao, a clerk in his store, was arrested for selling "Howl and Other Poems" to two undercover cops assigned to the S.F.P.D’s Juvenile Bureau.
San Francisco was a much different place then than it is today. Although starting to become a counter-culture mecca, the city was still a maze of culturally conservative ethnic enclaves, whether they were Asian or the heavily Catholic Irish, Italian, or Mexican-American neighborhoods. And the newest wave of immigrants was made up of former servicemen who had shipped out from California during World War II on their way to war in the Pacific.
In other words, fearing that any San Francisco jury would deem Ginsberg’s “Howls” obscene on its face, Ferlinghetti’s lawyers asked for a bench trial. The Municipal Court judge they drew was a Republican named Clayton W. Horn who spent his weekends teaching Sunday school.
In contemporary accounts of the ensuing trial, you might read that Horn was so conservative and so devout that he previously had sentenced five female thieves – the newspapers called them “lady shoplifters” – to attend a showing of the movie “The Ten Commandments” and to write essays on the epic film’s lesson when it came to stealing.
This is true – Judge Horn did indeed issue such a sentence – but it’s out of context. The reason that the movie-going and essay-writing verdict was controversial back then is that such alternative sentencing was considered too lenient. The prevailing sentiment in the community was for jail time for the "ladies."
In California v. Ferlinghetti, Judge Horn proved himself up to the task. Over the prosecutor’s objections, he allowed testimony from nine literary experts, all of whom vouched for the social value of “Howl.” This testimony was countered by rather feeble testimony from two prosecution witnesses, one of whom claimed that “Howl” was merely an imitation of Walt Whitman’s “Leaves of Grass” – and a poor one, at that – and therefore lacked literary merit.
In a ruling issued on October 3, 1957, Judge Horn sided with the defense. It doesn’t seem that he considered the matter a close legal question. At the outset of his verdict, the judge noted that the California statue said nothing at all about minors, a pithy observation that undercut the stated rationale of the S.F.P.D. (that it was protecting kids from smut) while simultaneously suggesting that the state law was drawn far too broadly.
And, Horn ruled, “Howls and Other Poems” did not violate that statute anyway. The U.S. Supreme Court had recently defined obscenity in the Roth case, and Horn relied on its standard in formulating his ruling. He quoted four different Supreme Court justices, along with Thomas Jefferson and Lord Macaulay, and cut to the heart of Allen Ginsberg’s work more succinctly than the defense witnesses had done.
“The first part of ‘Howl’ presents a picture of a nightmare world,” the judge wrote. “The second part is an indictment of those elements in modern society destructive of the best qualities of human nature; such elements are predominantly identified as materialism, conformity and mechanization leading toward war…
“It ends in a plea for holy living,” Horn added, ending on the following note: “In considering material claimed to be obscene it is well to remember the motto: ‘Honi soit qui mal y pense.’" (Shame to him who evil thinks).
For many years afterwards, Ferlinghetti railed against the prosecution as a grave injustice. Perhaps this is true, as regards the briefly jailed but traumatized bookstore clerk. In the end, however, the case was a victory for the First Amendment, and a proud moment for the American judiciary.
