Barney Rosset, tireless champion of the right to read and the right to see, died yesterday in NYC at the age of 89. I have researched and written on Rosset, and the story of his fight against mid-century censorship enlivens the pages of both of my books.
Rosset fought numerous censorship battles wherever he could find them. He was a First Amendment absolutist. As he said, “If you have freedom of speech, you have freedom of speech.” To him it was just that simple, just that clear.
For many others in mid-century America, the issue was not so clear, and so Barney Rosset went to court....a lot. Challenging the censorship of works today considered classics like Lady Chatterley's Lover, Naked Lunch, and Tropic of Cancer, the case that brought him to my attention was his release and subsequent defense of the 1967 Swedish film, I am Curious (Yellow).
In memory of such a principled crusader for free speech, I reproduce below the summary of his fight to bring I am Curious to American screens:
Excerpt from Freedom of the Screen: Legal Challenges to State Film Censorship, University Press of Kentucky, 2008, pp. 262-266.
I Am Curious (Yellow)
The Maryland board and film distributors got along uneasily through the next two years, until they were confronted by a Swedish film called I Am Curious (Yellow). It was the first major film to show fully nude actors. A box office success, I Am Curious still ranks as the sixth-highest-grossing foreign language film of all time, despite its odd plot and leftist political philosophizing. The film masquerades as a documentary about a young girl, Lena, exploring the realms of sexual relationships and political affairs at the same time, often getting the two confused.61 While Lena explores politics and conducts interviews, she also engages in frequent sexual trysts with her married lover in unusual places, like the balcony of the Swedish royal palace. The Maryland attorney general told the Baltimore Sun, “If the board cannot ban this sort of hard-core pornography masquerading as art, then I suppose it cannot ban anything and should be abolished.”62
I Am Curious had already had a long legal career. It had been found obscene by U.S. Customs yet had been set free by the U.S. Court of Appeals for the Second Circuit. Since the court did not consider the film “utterly without redeeming social value,” its graphic sexual depictions were not enough to render it obscene under Jacobellis. But this decision had no bearing on local censors, and the film was under twelve suits and countersuits when it arrived in Maryland in 1969, courtesy of distributor Grove Press and exhibitor Howard Wagonheim. Both sides strutted and postured as they prepared for court. Grove Press crowed that it expected its challenge to abolish the Maryland censor board entirely, and Maryland’s chief law enforcer repeated that licensing the film would be tantamount to “unconditional surrender to those who want to exhibit hard-core pornography.”63
For Grove Press’s owner, confronting censorship had become a business staple. Specializing in what he called combat publishing, Barney Rosset had built a publishing house on controversial books, like the unexpurgated version of Lady Chatterley’s Lover and Tropic of Cancer, as well as the magazine Evergreen Review. When Tropic of Cancer got hung up in U.S. Customs, Rosset hired attorney Edward de Grazia, who succeeded in freeing the book via the U.S. Supreme Court. Rosset was a natural in the anticensorship business; he described himself as “a type of free American
spirit, against censorship” by nature. Once he became a publisher, Rosset was more convinced than ever that censorship was wrong and that he should be allowed to publish whatever he wanted. Recognizing the immense potential of European writers like Samuel Beckett, Eugene Ionesco, and Jean Genet, Rosset began importing their lesser-known works. He later would turn to Anglo-American avant-garde writers like Henry Miller, William Burroughs, and D. H. Lawrence and political activists like Malcolm X and Che Guevara. Rosset believed, “If a book has literary merit, you publish it. If you get arrested in the process, you fight it.” He later admitted that his publication of the unabridged Lady Chatterley’s Lover had been a deliberate attempt to provoke an obscenity confrontation. 64
After winning several book censorship battles, Rosset brought Grove Press into the film distribution business. As he purchased the rights to I Am Curious, his business was being monitored by the FBI, the CIA, and the U.S. Army.65 He planned to bring I Am Curious to as many states as possible when he ran into the Maryland censor board.
At the circuit court, the censor board, which had finally learned its judicial lesson, presented expert testimony from a psychologist and an educator who both confirmed that I Am Curious was obscene. A sculptor also told the judge that the film had no artistic value. But de Grazia explained that the film had been exhibited in twenty-three cities to more than three-quarters of a million viewers, and he brought out a parade of experts with impressive credentials who testified that the film had redeeming social value. Nevertheless, Judge Joseph L. Carter found the film obscene, holding that the time had come “to halt . . . [the pornographers’] program. This does not mean a return to Puritanism by any stretch of the imagination, but it does mean a return to sense and decency.”66 The court of appeals upheld the lower court by four to three, saying that the film’s overriding theme was “sex, per se.”67 One justice’s dissenting opinion, however, faulted the majority for ignoring the preponderance of expert testimony that the film had social value. Here, in a nutshell, were the distributors’ two major dilemmas: first, what would the state of Maryland allow, and second, how could a potential film owner figure that out in advance of purchase?
I Am Curious showed that, as late as 1969, the highest court in Maryland was refusing to follow the U.S. Supreme Court’s direction on the determination of obscenity. I Am Curious was clearly outside the norm of community standards yet, by most accounts, held at least some social
value. It should have met the Supreme Court’s standards for a noncensorable film. After the state had won, the attorney general reiterated his earlier statement that if the censors had lost that particular battle, he would have recommended the board’s abolition. Asked whether he would feel the same if the U.S. Supreme Court should decide against Maryland, he answered, “It would logically follow, wouldn’t it?”68 Such temptation the anticensorship forces of Maryland could hardly ignore. In Freedman, Wagonheim, Rosset, and Marhenke (dubbed “the everlasting Board’s habitual agitator” by the board secretary69), the censors had a large contingent of adversaries eagerly awaiting the chance to get the Supreme Court to invalidate Maryland’s prior restraint.
Wagonheim [first name Howard: owner of the theater exhibiting the film in Maryland] managed to get the case of his Swedish film before the U.S. Supreme Court. By the time the Maryland case reached the Supreme Court, I Am Curious was in legal trouble in twelve cities. Another case from Massachusetts was also pending before the Supreme Court.
Grove Press and Wagonheim came to the U.S. Supreme Court with lots of friendly assistance. Their case was buttressed by amicus briefs from the International Film Importers and Distributors Association, the National Association of Theatre Owners, the Adult Film Association of America, and the MPAA. At the oral arguments, Maryland attorney general Burch told the Supreme Court justices that the Court must let the states decide obscenity issues at home. Burch put all his eggs into this basket: echoing his earlier statements made for the Maryland press, he told the Court that he would rather see all censorship abolished than have the current state of confusion engendered by the Court’s ambiguous rulings. Grove’s attorney,de Grazia, explained that the film had been shown in 180 cities, in forty states, to more than five million people. Those numbers alone were clear evidence, he said, that the film was not pornographic. The Court must promise the states, de Grazia said, that it would not interfere with the exhibition of any material short of hardcore pornography, as long as it was available only to consenting adults. According to the Baltimore Sun, “Virtually the only thing the two lawyers agreed on was that the law governing obscenity and pornography is in a state of ‘confusion,’ and that the court should issue a ‘clear’ mandate.”70
As they had so many times since 1952, both sides hoped that a decisive ruling by the Supreme Court in this case would “lift the fog” that had come to surround film censorship.71 But their wish was not to be granted. On March 8, 1970, the court split evenly (Justice Douglas, who probably would have voted with the liberals, did not participate because of a possible conflict of interest with Grove Press), which meant that the Maryland court of appeals’ determination of I Am Curious (Yellow) as obscene would stand.72 And so the two main issues—whether the film and others like it were constitutionally protected speech and whether the Maryland censor statute was unconstitutional—were deferred. In four years, the Maryland censor board had faced and survived eight legal challenges.
The case of I Am Curious (Yellow) ended anticlimactically. After another year of haggling with the censor board, Grove Press agreed to make some cuts, and the film was finally licensed in Maryland—but only after a great expenditure of both time and money.73
One of the most salient anticensorship issues was how to pay for such lengthy, complex litigation. Despite its three decades of public denunciations of censorship, the ACLU had been able to assist in only a few of the cases. Both the national office and its state affiliates needed promising litigants and local attorneys willing to take on the cause of the motion picture distributors. With the ACLU’s resources strained by many civil liberties issues in the mid-twentieth century (separation of church and state, public speech, loyalty oaths, civil rights, defendants’ rights), the organization can hardly be faulted for playing a minor role in the fight against motion picture censors. The MPAA also had a surfeit of critical issues to stare down. As a member-driven organization, the association was required to run its affairs through committee. Fighting the censorship of a foreign or independent production or of an allegedly obscene film was not likely to appeal to the dues-paying membership.
And so those who chose to fight the censors were often on their own. Joseph Burstyn had spent a great deal of his own money on his battle because he believed the principle of censorship to be wrong. The Hakim brothers (La ronde) also spent their own company finances to fight to the Supreme Court. Richard Brandt used the resources of his theater chain to free A Stranger Knocks. Ronald Freedman bankrupted his Baltimore Film Society, a loose collection of film enthusiasts who in the 1960s acquired four theaters and financed his crusade to the Supreme Court. But Grove Press hit on an ingenious financing solution: it took advantage of a plan, set up by de Grazia, that encouraged local attorneys to take local cases for contingency fees based on box office receipts in their area.74 Thus Grove did not have to shell out cash in advance of a dubious return; local attorneys were given a vested interest in winning the cases, and each local distributor, exhibitor, or bookseller of a Grove product could serve as a test case. Grove Press was able to carry on its extensive cause litigation by convincing attorneys to gamble on the outcome of their own work in their local courts.
Please reference the book pages for the footnotes contained herein in order to give proper credit to the sources of my information and cite this excerpt as Laura Wittern-Keller, Freedom of the Screen: Legal Challenges to State Film Censorship, University Press of Kentucky, 2008.
