From My Life In Publishing and How I Fought Censorship
Photographs courtesy the Estate of Barney Rosset
It is January 1962. A battle is being waged on multiple fronts. Twenty-one lawyers around the country are fighting in nearly 60 separate legal actions. In New Jersey alone, one attorney is concurrently juggling twenty-six criminal cases as well as a federal action. In Illinois, a single lawyer will eventually bring sixteen separate actions together to the state supreme court. The highest courts in four more states— Massachusetts, New York, California, and Wisconsin—will weigh in before the final showdown on the floor of the United States Supreme Court. As the head of Grove Press, which published Henry Miller’s Tropic of Cancer, the book at the heart of these lawsuits, I will wind up testifying in only two of these actions, but key to my testimony is a paper I wrote about Miller’s Cancer more than twenty years earlier in which I asserted, “writers must have a liberal society—or they are stifled.”
My whole life has brought me to this point: my Irish family’s outrage at British brutality; my years at Francis Parker, the progressive school I attended in Chicago; my fervent support for the loyalists during the Spanish Civil War—all of this history is being played out right here at home in the censorship wars. But the enemy has advanced as far as they can. They will not get through.
The first time I met Henry Miller was in 1959, when I flew to California to visit him in Big Sur, an unlikely, strange, but beautiful place clinging to the sides of rugged mountains poised on precipitous descents to the Pacific Ocean below. I brought a new friend with me, Valerie Desmore, whom I had met not long before in London, where one night I’d visited a wax museum with Samuel Beckett’s British publisher, John Calder, who was in many ways my English counterpart. His press shared an avant-garde aesthetic with Grove, and we had many authors in common. John brought Valerie with him that evening. She was a young painter who had been studying with Oskar Kokoschka in Italy. When I saw her, I was struck by her beauty and radiant energy. She reminded me of Merle Oberon in Wuthering Heights, and like Oberon, Valerie had some sort of Asian, Indian, South African background. What was more, I gathered that she was quite familiar with Henry Miller’s writing.
After our trip to the wax museum, in the cab on the way to drop Valerie off, she sat on my lap. Having gotten her phone number from John, I called her a couple of days later from New York and invited her to go with me to California. She happily agreed. I met her at Idlewild Airport, fetched her luggage, and the two of us raced to catch our plane to San Francisco. We really were still total strangers, essentially sharing one thing only: a deep admiration for Henry Miller.
In San Francisco I rented a car and we headed straight for Big Sur, although one could hardly call the road straight, as it wound toward Henry’s strange half– Okie hut, half-citadel perched on the edge of a mountain, all of which gave me vertigo. To get to it you first came to a rather primitive shack, sort of a combined guard station and souvenir shop, replete with items celebrating the author’s career. Our arrival was telephoned ahead from the shack at the bottom of the hill, and we entered Henry Miller land.
As it happened, Henry himself was off seeing a daughter from a previous marriage, who was in a mental institution. His recent and very lovely wife, Eve McClure, was alone at home, and was warm and receptive in greeting us. I explained to her that we had come all this distance because I was interested in publishing an unexpurgated edition of Henry’s controversial novel, Tropic of Cancer, in the United States. Eve warned me, “When he gets here, he’s not going to be very happy about this. I think you should publish it, but I will pretend I’m against it, because anything I say, he disagrees with.”
When Henry finally arrived, he was cool and noncommittal. It was pretty clear to me that he had little interest in dealing with the problems that would inevitably arise if I brought out this challenging, uncompromising novel, originally published in Paris in 1934. I did my best to persuade him to consider my offer, but it was hard to break through his almost hostile reserve. Eve spoke up as she had promised, but even her strategy didn’t work as she had hoped. Henry was much more interested in discussing a book he was working on at that time, The Smile at the Foot of the Ladder, with the American painter Abraham Rattner, who coincidentally resided in East Hampton, where I was living at the time. It was certainly not a very successful meeting. Valerie and I left, subdued.
At the bottom of the hill, we had to find a night’s lodgings. Big Sur was decidedly not a place of bright lights. I located what seemed to be a cross between an abandoned motel, or perhaps one which had never opened, and a semi-abandoned truck stop. Picture Humphrey Bogart and Lauren Bacall’s Petrified Forest, but without the bar. Our room of bare-board walls, with a single swinging yellow light bulb, was unfriendly, even sinister.
There was nothing for us to do but go to bed. That night, a storm of historic proportions hit the cliffs of Big Sur. Little did I know it was a sign of things to come. Valerie and I, who before had retreated to opposite sides of the double bed, now madly held onto each other, our arms and legs entwined. At dawn, we drove down the precarious highway along the coast, en route to Los Angeles, from which we would head our separate directions. I was defeated, but only temporarily.
From the first time I encountered his work I believed that Henry Miller was a great American writer who said, in his own unique way, exactly what he felt. He expressed himself in an original American idiom and became famous in part because he was considered to be a forbidden author. But to me, he was the contemporary embodiment of Walt Whitman—the open voice, deeply loving of the society in which he lived, yet fiercely critical of it. His free, wildly provocative, and poetic attitude would later be absorbed by Jack Kerouac, Allen Ginsberg, and Lawrence Ferlinghetti, among others. They were the first to say so, though Henry never quite believed them. These strange new writers sharing their creative powers were truly fresh blood in the vein of American literature that coursed from Whitman to Miller and flooded the heads and hands and hearts of those who became known as the Beat Generation.
As mentioned earlier, I had originally read Tropic of Cancer while at Swarthmore in 1940, having obtained a contraband copy at the Gotham Book Mart after reading about it in Miller’s own book, The Cosmological Eye, published by James Laughlin’s New Directions in 1939. One reason I enjoyed Cancer so much, aside from its ripping-open kind of honesty, was the uncanny way in which it combined the comic cleverness of French surrealism with the crude originality of our own psyches. In his novel, Miller discussed Proust and D. H. Lawrence’s Lady Chatterley’s Lover, and he liked them for the same reasons I did. Lawrence’s text was very elemental, and in a way ugly and stupid in its early chapters, but then there arose from it an almost mystical feeling, a sense of the numinous, which grew stronger as the story went along. Henry was doing something similar. Both Miller and Lawrence developed and communicated an intense, freeing belief that we should live the kind of life we desire—and they inspired each of us to believe and do the same.
As for censorship, Henry himself was sort of proud that Tropic of Cancer was a banned book. He claimed he didn’t want too many readers, once writing me,
Frankly, I am beginning to doubt that I ever want to see an American edition of these banned books. The notoriety, the unpleasantness involved, seem hardly worth the price. I have always felt deep down that no great change can be expected in America—either on the part of our legislators or our judges. As for the public—it is indifferent, it seems to me. The vast majority, I mean. I am in no hurry to make myself a scapegoat for what seems like a lost cause.
To me this seemed terribly defeatist. But by the time I was trying to convince him to allow Grove Press to publish his novel, Grove had already overcome many censorship laws with our publication of Lady Chatterley. We had shown that with determination, real change could be accomplished. I knew Grove Press was the natural choice for Miller and Tropic of Cancer, and simply didn’t want to take no for an answer, so I wrote back to him, coaxing, “I must say that I very much disagree with your idea that there would be notoriety and unpleasantness involved . . .”
In the summer of 1960, Henry responded as follows:
Part of my reluctance to wage open combat with our American authorities arises from the fact that I see no evidence of genuine revolt in the people themselves. We have no real radicals, no body of men and women who have the desire, the courage, or the power to initiate a fundamental change in our outlook or in our way of life. . . . It is not enough . . . to win the privilege of reading anything one pleases—usually more trash— but to obtain the right to read books which are distasteful, obnoxious, insidious and dangerous not only to public taste but to those in power. How can the people wrest such rights and privileges from their appointed representatives when they do not even suspect that they are living in a state of subjugation? When they imagine themselves to be a “free people”? To win a legal battle here or there, even if sensationally, means nothing. One does not acquire real liberty through these operatic victories. . . . What I mean to say is that to be hailed and accepted by an unthinking public as the Petronius of our time would afford me no satisfaction. . . . I would triumph as the King of Smut. I would be given the liberty to thrill, to amuse, to shock, but not to edify or instruct, not to inspire revolt.
A strong statement. Yet at the same time, he confessed he was terrified that his books would morph into college textbooks, tolerated and dismissed by blasé students, much as he felt The Communist Manifesto had.
I assured him, “Don’t worry, it’ll never happen.” What I did not tell him was that I had long ago determined to publish Tropic of Cancer and had taken step after strategic step toward that goal. I could not let even Henry himself deter me.
After that trip to Big Sur nothing very positive happened until I got a telegram from Maurice Girodias and Heinrich Ledig-Rowohlt in Hamburg in early 1961. Maurice wired me, “Come, Henry Miller is here!”
Girodias was the publisher of the Olympia Press in Paris, a house whose list, like John Calder’s, was very much in the same spirit as Grove. Girodias was the son of Jack Kahane, whose Obelisk Press had first published Tropic of Cancer with Anaïs Nin’s help. Maurice, as a child, had drawn the now-classic cover illustration for the original Obelisk edition. Rowohlt was Miller’s German publisher; he published both Tropic books. They had spoken to Miller on my behalf and were instrumental in getting his approval to meet with me again.
Immediately, I boarded a plane, but just as it had that night in Big Sur, bad weather once again intervened, causing our flight to be diverted to Scotland. I had to take a train from Glasgow to London, and it wound up taking me about three days to get to Hamburg—but there Henry was.
He was in a very different mood. A much better mood. We played ping-pong, talked about life, became very friendly. Henry really liked Rowohlt, and Rowohlt had great influence on him. So did Girodias, and with encouragement from the two of them after a few Hamburg days and nights, he finally signed a contract with Grove. We paid him an advance of $50,000, which was a lot of money at that time. Michael Hoffman, his agent, was also there. He was not overly amicable, but at least he carried out his function, and our deal was struck.
Now I could get to work. Publication would be the easy part. Grove’s larger and immediate task was to challenge the censors back home. We needed a strategy to take on both the US Customs Service, which banned the book from being imported, and the US Post Office, which banned its distribution through the mail.
Henry, it soon became apparent, for all the fearlessness of his writing, was fearful of the courts, and was not such a great crusader. By the time we were ready to publish, he was spending time in Switzerland, nervous as hell, even from a distance.
The booksellers were equally nervous. In order to encourage them to stock Cancer, I insisted that Grove guarantee to indemnify them for any legal costs arising from prosecutions over selling the book. All this was going to cost us heavily but the stores needed that reassurance while the ban was still in force.
The first assault came from the Post Office, which seized hardcover copies of Cancer from us on June 12, 1961, launching the initial legal challenge to the book. The date for a hearing was set, but the assistant general counsel of the Post Office’s Fraud and Mailability Division didn’t wait, and quickly charged the novel with being “obscene, lewd, lascivious, indecent and filthy in content.” We fought right back, releasing the following statement:
We assume that the Post Office, having once made a serious error which the courts corrected, will not make the same mistake again. The assumption seems particularly justifiable in view of the fact that the Post Office decision in the Lady Chatterley case was the work of one man— the former Postmaster General. We trust that the present Postmaster General is fully aware of the fact that serious and respected works of literature cannot constitutionally be excluded from the mails.
The legal machinations that soon developed seemed to overwhelm Henry, so it was better all round that he stayed away. However, he was called to testify at a Post Office hearing in New York scheduled for June 26, 1961. I cabled him in Paris, adding that the government “GUARANTEES NO PROSECUTION AGAINST YOU STOP EXPECT YOU WILL SAY NO BUT WOULD LOVE TO HAVE YOU.”
Before he could decide whether or not to take my advice, the Post Office abruptly backed down, canceling the hearing on legal advice from the Justice Department. Later the Washington Post revealed that Postal Department lawyers felt that “many people found Miller’s writings . . . disgusting and shocking but not sexually exciting. For this and other reasons, there was remarkable agreement that the Government could not win if it charged that Miller’s work is obscene.”54 And the New York Times wrote,
Officials termed this a tactical step. They explained that suits testing whether the novel was obscene by legal definition were pending, and that it would be wise to await their outcome. However, it was learned that the Justice Department had advised the Post Office to drop the case for another reason—that it was likely to lose in the courts.
It appeared that half the battle had been won with hardly a shot fired, but we were still left with one adversary, US Customs. A complete lack of coordination between Customs and the Post Office created a laughable anomaly. As Earl Hutchison put it, in Tropic of Cancer on Trial, “From June 13 until August 10, 1961 . . . a person could have had his copy of Cancer seized at the port of entry, then walked into the terminal and picked up an American edition at the bookstore there.”
By August 10, following legal advice, the government announced it was lifting the Customs ban on Tropic of Cancer. At that stage we had 130,000 copies in print and we were ready to roll.
On the face of things, we were in the clear. However, our lawyer, Cy Rembar, treated the victory with deep caution. Though the Post Office had backed down, Cy felt that since the case had never been decided by the federal courts, the issue of censorship would be litigated in the lower courts throughout the country.
Meanwhile, Dell Distributing, Inc., which had previously distributed a number of Grove paperbacks, including Lady Chatterley’s Lover, and was terribly important to us, got the jitters. William F. Callahan Jr., Dell’s executive vice president, notified me on May 17, 1961, that “We are exercising our prerogative of refusing to handle any title of Grove Press we deem inadvisable. Accordingly, we hereby disclaim any responsibility for the sale or distribution of the Grove Press edition of Cancer.”
That came as a blow. What disappointed and mystified me was that Dell pulled out long before both cases were due to be heard. Macfadden Publishing took over from Dell, and although both companies would later distribute Cancer, Dell’s nervousness was a sign of things to come. Local pressure began to build everywhere, like those storm clouds over Big Sur—with two major battles behind us, the worst lay ahead.
Tropic of Cancer sold more than 68,000 hardcover copies in the first week of publication. By the third week it was on bestseller lists all over the country, including those of the New York Times and the New York Herald Tribune. And by the end of 1961, Publishers Weekly listed Cancer sixth in the Bookstore Bestsellers (non-paperback) with 100,000 in sales, right behind The Carpetbaggers by Harold Robbins.
Despite such healthy sales, more trouble was brewing. One month before our June 24, 1961 publication date, the executive vice president of Brentano’s, a major bookstore chain in New York City, had warned Aaron Sussman, the gifted head of our advertising agency, a man who was fiercely loyal to us, “Our counsel has very strong feelings about the inherent danger in the sale of this book and continues to advise us against it. . . . I am very unhappy about this situation and want you to know it.”
Soon enough, Doubleday, Scribner’s, and Macy’s refused to carry Tropic of Cancer, and in August the Chicago Tribune announced it would no longer list “filthy” books—namely Cancer—on its bestseller list.
These lists were influential but inherently flawed in the way they were generated. Writing in July to Belle Rosenbaum of the New York Herald Tribune book review staff, I pointed out,
I am most happy that you are interested in our rather unique problem. I can’t recall such a situation in the history of publishing. We have contacted many of the stores on your list of 43 best-sellers reporting for your bestsellers’ list, “What People Are Reading” of last week (July 9) and found some astounding and, I might add, disheartening facts: at least 11 of these 43 are not even selling Tropic of Cancer. Another six are selling it under the counter. I’m sure you can see what this does to the accuracy of the best-seller lists. . . .         An interesting sidelight to the whole problem is that, although the above figures show that 26 percent of the bookstores reporting to you do not carry Tropic of Cancer, our sales reports indicate that nationally only 10 per cent are not. This apparently means that the “little” stores are handling the book. Why this is true, I don’t know. Unfortunately, the small stores, where the book is selling marvelously, don’t report to the best-seller lists and consequently don’t help to solve this inequitable situation.
By then most reviews were in. Many critics treated the book as a serious work, finding parts repulsive but still holding that Cancer as a whole was not obscene. Time, however, referred to Cancer as “a very dirty book indeed,” one of many such books “sewer-written by dirty-fingered authors for dirty-minded readers,” while Life suggested “Tropic will be defended by critics as an explosive corrosive Whitmanesque masterpiece (which it is) and attacked as an unbridled obscenity (which it is). It will probably sell a million. On Tropic’s literary merit? Guess again.”
Meantime, Massachusetts Attorney General Edward J. McCormack, Jr. was less ambiguous. He found the book “positively repulsive” and “an affront to human decency,” adding, “I have never in my life read anything that was so degrading and demoralizing and so brazenly animalistic.” He asked for a recommendation from the state’s Obscene Literature Control Commission on the “filthy . . . rotten” book.
I fired back at him, “It appears that Massachusetts, with the one-track mind of the rhinoceros, is again about to assault the Constitution and its amendments which the forefathers of her citizens fought so hard to obtain. If the Commission supports the Attorney General, we are prepared to fight the case in court with all our resources.”
This was our chosen course, even if the obstacles were mounting. On July 20 the Commission unanimously recommended that the Attorney General take legal steps to ban Tropic of Cancer in the state of Massachusetts. The book was also banned in Texas on August 15, with the chief of police in Dallas condemning its “crude, vile, indecent language.”
The expanding legal situation in itself was sapping our resources at Grove, but we faced even more pressing problems. The $7.50 hardcover edition was doing well, but we knew Cancer would really find its market in paperback. Our most immediate danger was that the book was effectively out of copyright, in that the US government would not grant copyright to materials that were considered obscene, and other publishers were lining up to cash in on ground Grove had painstakingly broken.
I discovered in September that the Hall Printing Company in Chicago, one of the country’s biggest printers, had already printed a 75-cent edition of Cancer for Universal Publishing, a company with a name suggesting its desires, but not its real dimensions. Their copies would be ready for sale by October, so the pressure was on to stop them.
We realized we had a serious headache with copyright and took every legal action we could think of—along with some extra-legal ones to boot—to stall both Hall and Universal. We did the same with Kable News Company, another distributor, and also circulated this letter to retail stores:
Word has just reached us of a turn of events that must fill all responsible members of the book trade with a sense of outrage: In defiance of the specific protests of Henry Miller, an unauthorized paperback edition of Tropic of Cancer is at this moment being prepared by another publisher for distribution.
Henry Miller has informed all parties concerned that Grove Press is the only authorized publisher of Tropic of Cancer. Yet despite this warning, preparations for the unlicensed edition are going ahead.
Naturally, we would have preferred to continue with the sale of the hardcover edition. But the turn of events has left us no choice. We are rushing through our own AUTHORIZED paperback edition of Tropic of Cancer, and we will get it into your hands as quickly as possible. . . . This edition will be:
1. The ONLY paperback edition authorized by Henry Miller;
2. The ONLY paperback edition on which Henry Miller is being paid royalties (the advance and royalties have been substantial);
3. The ONLY paperback reprint of the famous hardcover edition which has risked prosecution and costly legal battles to fight for the admission of . . . Cancer in the United States;
4. The ONLY paperback reprint of the famous Grove Press edition which, as a result of substantial sums spent in advertising and promotion, has become one of the nation's leading bestsellers
Any unlicensed and unauthorized edition is evidently trying to hitch a free ride on the coattails of Grove Press and the efforts we have made on behalf of Tropic of Cancer. An unauthorized edition also exploits the courage of booksellers throughout the country without whose help the fight for admission of the book could never have been won.
This turn of events is reminiscent of that of two years ago when a number of publishers sought to take advantage of your and our efforts for Lady Chatterley’s Lover. We appealed for your help then, and you responded magnificently. We are asking for your help again now. You can help by ordering and displaying prominently the AUTHORIZED paperback edition of Tropic of Cancer.
Our discussions with Universal were tense and fractious but in the end we agreed to buy the 400,000 copies of the book they had already printed in Chicago and pay $30,000 in cash immediately. We stripped and discarded the covers and reprinted the first thirty-two pages to include a passionate and thoughtful introduction by Karl Shapiro, entitled “The Greatest Living Author.” Universal accepted our claim to copyright and promised not to pirate the book again. Our erstwhile enemy was now our Exhibit A that the book should be considered in copyright.
Grove’s paperback edition of Tropic of Cancer was printed by Western Printing Company, based in Wisconsin. They too were feeling anxious about what lay ahead. I received—and signed—a request from Mark Morse at Western to the effect that Grove Press agreed to indemnify and hold Western harmless against any and all claims, demands, suits, actions, proceedings, or judgments arising from their printing of Cancer.
And of course Macfadden Publications, Inc., which had taken over from Dell, also required full indemnity before taking on the book. The contract included the following clause (which we accepted):
If any suit is brought, or prosecution instituted, against you or one of your officers, for selling or distributing Tropic of Cancer by Henry Miller, published by us, on the ground that the book is obscene, we shall undertake the defense at our own cost, provided we shall have the right to designate the attorney and (provided that the books shall have been paid for). If copies of the book are seized and confiscated by government authority because the book is alleged to be obscene, you will be credited with the price paid by you or charged to you for such copies seized and confiscated.
Since taking off in 1939, paperbacks had become a huge market. In 1960 Americans bought a million paperbacks a day from more than 5,000 newsstands, cigar stores, supermarkets, drugstores, bookstores, colleges, and schools. Sales volumes like this gave a vital boost to the publishing industry and were a key part of Grove’s future, if it was to have one.
We issued a 95-cent paperback edition of Cancer on October 10, 1961. It helped launch our Black Cat line, our “pocketbook” paperback-size imprint. We were prepared for adverse reaction but the sheer scale of acrimony still caught us all by surprise. Nothing like it had ever been seen before. Lawsuits sprang up all over the country with Cy Rembar providing a standard defense and Grove financing legal costs locally for each case.
Our general briefs always began as follows:
The case before the court involves the resolution of an issue of constitutional law. The First Amendment to the United States Constitution, with its guaranties of freedom of speech and press, protects the publication and sale of Henry Miller’s Tropic of Cancer unless the book can be shown to be utterly worthless trash that lies outside the protection of the First Amendment. . . .
It is submitted that this book, being a recognized work of literature, cannot be found to be worthless, and that therefore its publication and sale may not, under the Constitution, be suppressed or impeded.
We based our free speech argument on the Supreme Court’s declaration that the First Amendment protects speech or writing of the “slightest redeeming social importance.”
We felt we were ready, but nothing could stop lawsuits against us from multiplying all across the country. The American Civil Liberties Union stated in their November 27, 1961 Weekly Bulletin that “The current censorship drive against Cancer is being conducted entirely at the state and local level.”63 We could surrender or we could fight back. No pasarán! I thought, recalling the Spanish Civil War. Our Madrid would not fall easily.
Fred Jordan, one of my most trusted and talented editors at Grove, sent a letter to Harper’s magazine stating:
In the past few weeks police intimidation, whether through threats or actual arrests, has resulted in Tropic of Cancer being taken off sale in a major part of the United States. . . .
If all this had been accomplished by orderly legal procedure, it would have been bad enough, especially in view of the fact that the Department of Justice cleared the book and officially allowed it to go through customs and the mails. But we have seen very little semblance of orderly procedure.
In Amarillo, Texas, the sheriff seized several thousand copies from an interstate carrier after the thoroughly terrorized wholesalers had returned (or were returning) the books. The local paper there states the sheriff wants to burn the books. Perhaps he has.
In New Jersey the Attorney General of the state said the book could not be legally prosecuted. The day after his statement three of his county prosecutors secured a number of criminal indictments and books were seized all over the state. . . .
In suburban Chicago some eleven communities confiscated books through police action and with no due process of law whatsoever. We can point out many, many other such instances.
To our knowledge there have been over fifty arrests. In Chicago itself a detective went into the Greyhound Bus Terminal and asked if the book was on sale. He was told no, but that the store would like to sell it if the detective did not object. He said he had no objection. A clerk sold a copy, the detective arrested him, and the clerk not only is now awaiting trial, but has also been ejected from the YMCA where he lived because the arrest made him undesirable.
Of course, we are defending him and the others. As of now we have some fourteen court actions pending. In most instances we have been hiring legal firms in each area and putting them to work. In three cases (Chicago, Cleveland, and New Jersey) we ourselves have started actions against the police. Of course, when we decided to publish Tropic of Cancer, we anticipated trouble, and were prepared to meet it. Our case on a Federal level was disposed of with a victory on our part. Then we were banned in Massachusetts. After the trial the judge pondered for six weeks to produce a negative decision which charged the book with being indecent and impure and, moreover, with not having a plot.
Since then the roof has fallen in. . . .
There were some bright spots amid all this legal warfare. I found it hugely encouraging that some booksellers refused to bow to intimidation. In Rhode Island, Brown University brought action against the state’s Attorney General. A law firm in Cleveland volunteered to fight police censorship there, as well.
Even so, as Publishers Weekly pointed out in January 1962, Grove was facing “brush-fire censorship, most of it taken in hasty disregard for the due process but most of it highly effective.” Rembar remarked at the time that it was “like being in the middle of a battle. We know we’re being shot at, but we’re not always sure about the direction the shots are coming from.”
Fear in the book trade was widespread. Our sales reports revealed at that point that Cancer was banned across America in at least 57 cities, while the book was being sold openly in only New York, Minneapolis, San Francisco, and Washington, DC. We estimated that 75 percent of the nation’s dealers either refused to handle copies or returned them after shipment because of local police action, actual or threatened.
The tiny tyrants were having their day.
“Tropic of Cancer has run into more massive opposition from censors across the United States than any other serious publishing venture in memory,” reported Anthony Lewis in the New York Times in January 1962. “Though 2,500,000 copies are in print, it is impossible to buy the book in most parts of the country. It is not on sale in Massachusetts, Rhode Island, and these among many cities: Los Angeles, Chicago, Philadelphia, Cleveland, Atlanta, Miami, Dallas, Houston, Seattle, Hartford, Wilmington (Del.), Indianapolis, Des Moines, St. Louis, Trenton, Buffalo, Phoenix, Oklahoma City, Birmingham.”
Remarkably, through 1962 and 1963, Cancer would remain on the bestseller paperback list. But while more than two million copies were sold, a further 750,000 copies were returned by bookstores and distributors fearing prosecution.
Though the controversy raged on—Cancer was now targeted by Citizens for Decent Literature (CDL), a national organization founded in Cincinnati, and local pressure groups discouraged public libraries from stocking the book—sales kept us going. The revenue stream financed legal fees and numerous extra costs that snowballed with the controversy. Looking back, I have no doubt Grove would have taken a catastrophic hit had Universal run its pirated edition of Cancer in 1961. But it did not. Obviously our protecting spirit, our numen, was guiding us at each decisive moment.
While all of this was going on, we were preparing to publish Tropic of Capricorn, Henry Miller’s sequel to Cancer, in September of 1962. November of that year would see the sixteen actions in Illinois, which were being handled by Elmer Gertz, transferred to the State Supreme Court, so another protracted siege seemed to be on the horizon. But much to my surprise—not to mention relief—there was no big fuss with Capricorn, though it too had been banned by the Customs Service. Some 25,000 hardcover copies were sold in the first three months after we brought it out.
Meanwhile, litigation with Cancer continued apace. Each case took about four weeks to resolve, with, as Earl Hutchison put it, “verdicts as varied as the judges and juries in the cases.” Publishers Weekly commented on March 5, 1962, “The most censored book in American publishing history has neither been universally exonerated by the law nor universally condemned.”
I was more determined than ever to continue the fight. Obscenity cases with Cancer reached the highest court of five states. Decisions were generally tight but we won in Massachusetts, California, Wisconsin, and Illinois (where an “obscene” ruling was later withdrawn). Surprisingly, we lost in New York.
As far as I was concerned, the Skokie, Illinois, case was the turning point. Illinois, my home state, would be all my previous battles pulled together, made personal, and then settled. I was deeply troubled by the degree of intimidation which the police in Chicago suburbs used to discourage the selling of Cancer. The great journalist Hoke Norris, who covered the trial for the Chicago Sun-Times, wrote a detailed article about it for Evergreen Review, No. 25 (July–August 1962).
The Chicago story seems to begin . . . in Montreal, Canada, at the annual conference of the International Association of Chiefs of Police. . . . One of the chiefs in attendance was George E. Whittenberg of Mount Prospect, a suburb of Chicago. Whittenberg . . . had never heard of Tropic of Cancer before he fell into conversation with a chief of police from a city in the East. “This gentleman asked me if I had ever seen the book or read it, and I said no, I had never heard of it,” Chief Whittenberg said later in a deposition before the trial. “Then he said they had had trouble with it in the East, and he said he understood it was back on the market again.”
On October 9, a Mount Prospect police sergeant, Fred Hedlund, informed Whittenberg that a driver for the Charles Levy Circulating Co., which distributes most of the paperbacks in this area, had informed him “of a book entitled Tropic of Cancer, which he [the driver] thought was an obscene book.”
Whittenberg continued by saying that he had gone with the sergeant to “1 North Main Street and he [the sergeant] pointed out the book to me. . . . He pulled the book out, and I stood there for four or five minutes and thumbed through the book from page to page.”
He was asked by Elmer Gertz, attorney for Grove Press: “And you looked at page 5? . . . And a few other places?”
Page five (along with much of six), again and again seems to have been the police’s fixation. “O Tania, where now is that warm cunt of yours, those fat, heavy garters, those soft, bulging thighs?” it reads in part. “There is a bone in my prick six inches long. I will ream out every wrinkle in your cunt, Tania, big with seed. . . . After me you can take on stallions, bulls, rams, drakes, St. Bernards.”
This sort of instantaneous literary and judicial judgment was to be found throughout the case, not only among police officials but also newspaper columnists, clergymen, and the writers of wrathful letters. Chief Whittenberg went to six drugstores and found Tropic of Cancer stocked in five of them. At the first store where he discovered copies, he pointed it out to the manager, one Max Ullrich. “I asked Mr. Ullrich,” the chief said, “to please check the book entitled Tropic of Cancer before he put it out on the racks. . . . He took one of the books out of the package . . . and . . . thumbed through it. He thanked me for stopping in, and he said he would not put it out for sale.”
Our attorney asked, “Did you call his attention to any particular pages?”
“Page five, yes.”
Whittenberg followed up his personal persecution of the book by calling his fellow chiefs, including the police chief in Des Plaines, the Niles police chief, and others to alert them to the danger. One of these chiefs, in turn, called the village of Skokie to tell their acting chief of police, Robert Morris, about Cancer. “Captain Morris later showed page five to the Skokie juvenile officer, the assistant village manager, and the corporation counsel; it was agreed that the book was ‘obscene and vulgar.’ ”
As Norris further noted in Evergreen:
Oddly enough, there was only one arrest in the suburbs during all this activity. It was made in Maywood [by an officer who said] . . . “Well, when we walked into the store I showed [a copy to the owner] Mr. Penney, I scanned through the book and I happened to look at page 5 and showed Mr. Penney page 5 and I asked him, I said, ‘This isn’t the sort of thing, the sort of book, that we would like to see get into the hands of the children around town here,’ and he says, ‘So what?’ I said, ‘So I think that you ought to not display it here where the kids can come in and buy it.’ ‘Make me,’ he said. I said, ‘Well, listen, either you cooperate or we are going to go over and see the judge and let him make a decision as to whether you can. . . .’ He said, ‘You wouldn’t dare.’ So I said, ‘Well, I just would dare, and you will have to come along,’ and we took the books off the shelf and locked up the store for him and went over there [to a judge].
Norris continues, “The first legal action against the suburban policemen was taken by Mrs. Isabel Condit, a housewife from Morton Grove, and Franklyn S. Haiman, professor of group communication at Northwestern University, chairman of the North Shore chapter of the American Civil Liberties Union, and president of the Northwestern chapter of the Association of University Professors. They asked for a restraining order against the police chiefs.” Attorneys were supplied by the ACLU. Condit and Haiman “charged that the chiefs had abridged their rights by interfering with the sale of Tropic of Cancer.”
Things then further heated up. Grove Press and Henry Miller, represented by Elmer Gertz and his associate, Sidney Z. Karasik, joined the case. Known as Haiman v. Morris, Acting Police Chief of Village of Skokie, the case was heard in January 1962 by Judge Samuel B. Epstein in Chicago. Apart from appearing before the grand jury in Brooklyn, it was the only occasion during the whole controversy when I was called upon to testify.
Hoke Norris’s Evergreen Review piece summarized the city’s state of mind and the issues in the trial:
In this most Puritan, most evil, most enlightened, most bedeviled, most entertaining, most dingy and corrupt city, where snow turns black overnight and you can hear the best music you ever listened to—here there was never any doubt from the start that it was the book was on trial. The complaint did state that the defense lay elsewhere. Certain police officials of Chicago and some of its suburbs had interfered with the sale of the book, and its publisher and others were asking for an injunction that would keep their hands off it. But before they could be restrained, or go unrestrained, we had to know whether this was a good book or an evil book—whether it was a work of literature, or a work of pornography. . . .
Mr. Mabley, who used to work for the Chicago Daily News, said Tropic of Cancer was “like a slut walking down a neighborhood street, half undressed and spewing filth to those near her,” and that it “deals heavily with carnal experiences, with perversion, with human filth and excrement.”
That set the tone for much of the debate in court.
The first witness was Dr. Richard Ellmann, professor of English at Northwestern University, a PhD from Yale, and the author of several books, including a monumental biography of James Joyce which won the National Book Award for nonfiction in 1960. Ellmann characterized Tropic of Cancer as “a criticism of life in Paris at that time and, by extension, a criticism of life throughout the world at that time,” proclaiming the book “a work of literary merit and literary importance.”
Kilgallon then asked about “the method of masturbation employed by one of the characters where he cores out the center of the apple and smears it with cold cream and uses it in that fashion.”
Ellmann answered, “I should say it was slightly disgusting but that it’s an essential element in the disgusting picture of the Tropic of Cancer which is a diseased civilization. You must represent disease as disease.”
Mr. Kilgallon next asked Dr. Ellmann about Miller’s description of a painting of “a nude woman being half raised from the sofa in a position so that she could fart,” and the description of a female artist who was “painting a nude and had difficulty painting the cunt in that the brush slipped in and she couldn’t get it out again.” Weren’t these passages pornographic?
“No,” Dr. Ellmann replied, the passages were not pornographic when considered in their context.
Later Kilgallon inquired, “Would you recommend this book, Tropic of Cancer, to your students whom I put in the adolescent category?”
“Well,” Ellmann said, “when I informed them I was going to testify here there were suppressed cheers. . . . The answer is that I would recommend this book for good reading to students, yes.”
The judge then stepped in. “Would you recommend that this portion [the notorious page five] and perhaps other abridgements be made in the book without seriously affecting the literary merit of the book?”
“No,” Ellmann responded. “I feel that the whole literary merit of the book depends upon its bluntness and honesty in this kind of representation of somewhat exaggerated feelings. . . .”
I was the next witness, called to the stand on Friday, January 12. Gertz later wrote that I was “a scrappy one who sometimes found it difficult to be patient with his interrogators.” Probably true.
What really agitated the guardians of public virtue was the book’s coming out in paperback. It had been quite a test getting this far, but when Cancer hit the market in paperback the gloves really came off. As I say, we never expected the legal battle to escalate the way it did, but it quickly became clear that paperback books were treated very differently from hardbacks. Reasons for targeting paperbacks were neatly summarized by William B. Lockhart and Robert C. McClure in “Literature, The Law of Obscenity, and the Constitution,” published in the Minnesota Law Review in 1954:
The volume of their sales, the manner of their distribution, their modest price and ready accessibility to the public, the provocative nature of some of their jackets and blurbs, and the existence of a national organization that had already sharpened its teeth on comic books and magazines [the National Organization for Decent Literature]—all these contributed to the outbreak of censorship aimed at literature in this form.
In other words, the less affluent were not as well-equipped with the intellect necessary to withstand sexual temptation when presented in book form as the affluent and educated. The wrongheadedness and elitism of this assumption infuriated me. This was not the way I believed a democratic society should function.
Paul Molloy, TV and radio critic for the Chicago Sun-Times, wrote on March 16, 1962:
This book, we are told, was published for the edification of adults willing to pay $7.50 for a wallow in Miller’s sewer. Sure it was—except that shortly after the $7.50 hardcover was published, out came the paperback version. Judge Epstein can find it in many drugstores right near the soda counter—where teen-agers can buy it for the price of two banana splits.
As I pointed out in my testimony, “We, naturally, thought that at some much later date, we would bring out a softcover edition,” but the attempt of a rival house to bring out an unauthorized edition prompted Grove to rush a paperback version into print “in order to protect our very, very substantial interest in this book.” I further told the court, “I would imagine that I would be perfectly content to have my child read this book whenever he or she wished to do so. If another parent felt differently, I wouldn’t argue with him.” Furthermore, I did not “believe in the idea of second-class citizenship,” especially concerning the right to read books.
The district attorney set out to prove that my motive in publishing Cancer was purely to make money. He wanted to portray me as an illiterate money-grubber peddling a “literary” sex item. That was when I pulled out of my jacket pocket the school paper I had written at Swarthmore in 1940, titled, “Henry Miller Versus ‘Our Way of Life’” and started to read it aloud. How could he argue that I had no commitment to the novel’s literary value when I had been making a case for it since before I’d even graduated from college? He hastily stopped me and removed me from the witness stand, not to be called back.
Marvin Glink, attorney for Robert Morris, asked whether Tropic of Cancer was autobiographical and attempted to ascertain the novel’s facts. Cross-examining Dr. Ellmann on January 11, 1962, Glink said, “Doctor, let me read to you from page one: ‘Last night, Boris discovered that he was lousy. I had to shave his armpits and even then the itching did not stop . . .’ Is that believable and truthful?” Told that it was, Glink asked, “When you were in Paris in ’37 or ’38, did you encounter people who would become infested with lice?”
The judge broke in to indicate that the truth or falsity of a particular statement might not be relevant. But Glink explained, “I am going to point out a fact that shows that this is absolutely unbelievable, judge.”
“Well, let’s find out what parts are truthful and what are fiction.”
Mr. Gertz interrupted, “I could show you places in Chicago where you see vermin.”
Glink asked his next question: “Doctor, . . . isn’t it a fact that at this time, lice control was not exercised by means of shaving but by ointments?”
“That’s beyond my competence. I am not an expert on lice.”
Judge Epstein sustained the objection to this preposterous line of questioning and struck it from the record. Under further questioning Dr. Ellmann also disqualified himself as a medical expert on whether argyrol was used at the time in the treatment of gonorrhea or silver nitrate was used for the protection of the eyes of newborn infants. Asked later about the subject of the lectures delivered in Dijon by the hero of the novel, Ellmann replied that the subject was the love life of animals.
“Elephants’ fornication, isn’t that right?” Glink asked.
“I don’t think elephants fornicate . . .” Dr. Ellmann said. “They have sexual relations.”
It was all utterly absurd.
In the midst of this, a highly poignant and unexpected intervention occurred outside the spotlight. One day, a young man came up to me and introduced himself as the judge’s son. I had never met him or his father previously. This young man quietly told me that his dad had said that if we slightly adjusted a legal tactic, and he told me specifically what it was, everything would probably work out just fine. It involved some minute point of legal procedure and I cannot remember it. He had spoken to me, perhaps, thinking I had known that my father and Judge Epstein had been friends. I passed the word on to Gertz and Rembar, we shifted to whatever it was I had been told to do for a defense strategy, and the rest is history.
Judge Epstein announced his decision on February 21, 1962. He wrote, “It is a book of social significance, a literary work acclaimed by many eminent critics. Its effect on children is irrelevant.”
This was the climactic moment of the entire Miller crusade for me. The police were instantly enjoined from interfering with the sale of Tropic of Cancer. My father had died some years before, but that episode with the judge’s son made it feel as if he, or his spirit, was personally involved in the case. Along with my testimony, it made the whole thing all the more special. Needless to say, I was elated.
The day the judge handed down his decision, I sensed we were in the home stretch. No matter what came next, I knew Tropic of Cancer had been set free from the philistines. Indeed, of all the opinions handed down, Judge Epstein’s was the one that tapped into something deeper than mere questions of obscenity when he observed that
taste in literature is a matter of education. Those who object to the book are free to condemn and even to urge others to reject it. . . . Voluntary discrimination is a far cry from censorship established by law whereby all readers are geared to the taste of the relatively few. . . . Let the parents control the reading matter of their children; let the tastes of the readers determine what they may or may not read; let each reader be his own censor; but let not the government or the courts dictate the reading matter of a free people. The constitutional right to freedom of speech and press should be jealously guarded by the courts.
A statement supporting Epstein’s decision and calling for an end to the ban on Cancer was signed by 198 leading American writers, critics, and the heads of 64 publishing companies. We printed the decision and the list of people supporting it on the cover and in the first two inside pages of Evergreen Review, No. 25. That cover and those two pages brought alive to me my own sense of the numinous.
Judge Epstein endured condemnation for his decision, and the Illinois Supreme Court reversed it, but by then it little mattered. Shortly after, the US Supreme Court ruled in our favor.
The other time I testified was when Henry Miller became, as Earl Hutchison put it, “a wanted man in his old hometown of Brooklyn.” Before the Supreme Court ruling, a grand jury accused him, me, and Grove Press of “conspiring to produce an obscene book.” The charge was outrageous, as anyone except the Kings County district attorney could see, but we had to defend ourselves. Was there ever a better chance for a counterpunch?
Henry was named as defendant, along with me, Grove Press, and three distributors. The Brooklyn grand jury first considered the case in the fall of 1961 and decided the following summer to consider indicting under Penal Law 1141, which stated that “A person who sells . . . or has in his possession with intent to sell . . . any obscene, lewd, lascivious, filthy, indecent, or disgusting book . . . is guilty of a misdemeanor.”
We had assumed we would be arrested when we appeared in the courtroom. Beforehand, Miller and I had lunch at the Albert Restaurant on Sixth Avenue with Cy Rembar and several others. We planned to head over to court for our expected arrest, but when lunch was over, Henry wouldn’t go. Cy and I went without him.
They arrested and fingerprinted me, and Cy convinced them to let me go without bail. The charge was that I had commissioned Henry Miller to write Tropic of Cancer in Brooklyn. But in 1934, when Cancer was originally published, I had never been in Brooklyn and I was twelve years old! I mean, how worried can you get with charges like that? Besides, Miller obviously wrote the book in France!
The hearing proceeded. When I was brought before a grand jury, I thought they looked like nice, ordinary people—possibly sympathetic.
The district attorney, Edward Silver, asked me, “Do you know that these people [on the grand jury] have children who go to school here in Brooklyn and right near the school is a book stand selling Tropic of Cancer? Do you know how terrible that is?”
My reply was swift and simple. “If those children are buying that book and they actually read it all the way through then their parents are to be congratulated.”
The jurors seemed very amused. The district attorney asked me to read page five of the book aloud, and so I did. And that’s when the jury really started laughing and ultimately refused to indict me.
The DA, determined to the end, then had to go it alone. He produced what is known as an “information,” a charge a district attorney can make when he fails to persuade the grand jury to find cause for further court procedure. The charge against us, once again, was for violating the state anti-obscenity law. It ranked as a misdemeanor, not a felony, but it carried a maximum penalty of three years of imprisonment. To me it felt more like a scare tactic than anything else, but as far as Henry was concerned it had the desired effect. The rest of us saw it as the farce it was, but because it could still hurt us we had to take it seriously.
The information was made on two counts—conspiracy to commit a crime as well as actually committing it. And, lest we forgot, our crime related to “the said obscene, lewd, lascivious, filthy, disgusting and indecent book.”
Rembar pleaded not guilty on my behalf. The district attorney asked to set my bail at $500 but I was released on my own recognizance. It was decided that Henry would be treated separately. The Criminal Court issued a warrant for his arrest but the Brooklyn DA never pursued Henry’s extradition from California. Maybe he lost heart after seeing California’s highest court rule Cancer was not obscene. Statements were prepared for a hearing in early 1964 but it was impossible to insulate the Brooklyn case from legal developments elsewhere.
The Illinois Supreme Court reversed Judge Epstein’s decision on June 18, 1964. Gertz and Rembar felt the Illinois ruling finally gave us an opportunity to reach the US Supreme Court. Our strategy was to petition for certiorari, a ruling by which the Supreme Court can review a lower court decision on the basis of certifying constitutional rights or the constitutionality of a state statute. But the battle took an unexpected turn when an intermediate court in Florida also ruled against the book. The Florida court’s opinion was based on a local statute that also provided us with a reasonable chance to apply for certiorari. Even though we rated our chances very good with the Illinois case, a 5–4 majority of US Supreme Court Justices agreed to review Florida’s Grove Press, Inc. v. State, Gerstein on a certiorari basis, and all five reversed it. No papers were filed or arguments presented, but in announcing the judgment on June 22, 1964, the Supreme Court referred to another obscenity case judged earlier that same day (Jacobellis v. Ohio, Jacobellis being the owner of a movie theater, arrested for “possessing and exhibiting an obscene film,” Louis Malle’s The Lovers), which had the same verdict—Not Guilty.
Justice William J. Brennan’s ruling on the case was widely publicized, and followed the defense strategy we had taken all along.
It follows that material dealing with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a “weighing” of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance.
We were finally in the clear. It took a few months after the Supreme Court decision before everything else fell into place. On October 2, 1964, the Brooklyn Criminal Court granted a motion by the Kings County district attorney to dismiss the information against us. The warrant against Henry was also withdrawn. At last Henry Miller and his books did not have to hide. The pivotal moment in the American travails of Tropic of Cancer had ended in victory for all of us: Henry, me, Grove Press, our attorneys, the laws of our land, our people, and our Constitution. My determination to publish Tropic of Cancer was consistent with my long-held conviction that an author should be free to write whatever he or she pleased, freedom of the reader to read anything, and a publisher free to publish anything. Anything.