Thy Neighbor's Wife (52 page)

Sitting at the counselors’ table, knowing that within moments he would be addressing the Supreme Court bench, Fleishman felt mounting anxiety and also a touch of irritation—the latter being
partly attributable to his having to sit during the last hour and listen to attorney Louis Nizer’s argument in the
Carnal Knowledge
case. In pleading for his client’s vindication, Nizer was needlessly hurting Hamling by emphasizing rather excessively the artistic merits of the Mike Nichols film, separating it from the X-rated fare normally shown along Forty-second Street—whereas Fleishman knew that such Hollywood directors as Nichols would never enjoy full professional freedom if the directors of films like
Deep Throat
did not.

But Fleishman tried to repress his resentment and concentrate on what he would say in defense of Hamling. The main point of his argument today would be that Hamling had been unfairly trapped in a period of legal transition, that he had been sentenced in 1972 to a lengthy prison term and an enormous fine by a San Diego judge who had instructed the jury to apply “national” standards instead of “community” standards in deciding whether or not Hamling’s illustrated brochure was socially acceptable. At the trial in California Fleishman would have preferred that Hamling be judged by community standards as well as national standards because then Fleishman could have introduced as relevant evidence a city-wide survey showing that the San Diego community was more sexually permissive than the nation as a whole, and he also could have presented to the jury a number of reputable San Diego citizens who would have articulately testified in Hamling’s behalf. But after Fleishman’s efforts in this direction had been overruled as irrelevant, and the government had gained a conviction under national standards, the Supreme Court interpreted the law in its
Miller
decision to read that community standards instead of national should prevail in all obscenity cases—prompting Fleishman to demand that Hamling be given a retrial in San Diego, one to be conducted under the test of the community. The Court of Appeals for the Ninth Circuit in California, however, rejected his argument, and affirmed Hamling’s prison term and fine. And so now on this spring day in Washington in 1974, Fleishman’s only hope, however remote, was that at least five of the nine justices would veto
the rulings of the lower courts, believing it unjust to imprison a man for four years and fine him $87,000 for having mailed out glossy brochures that praised the Illustrated Report, criticized President Nixon’s rejection of the commission’s conclusions, and also featured several color photographs showing nude people masturbating, fellating, and participating in group sex.

The photographs, of course, and how each justice responded to them while examining Hamhling’s brochure in their private chambers prior to today’s hearing, would largely determine Hamling’s future—and, Fleishman knew,
that
was why obscenity rulings are so often unpredictable: They were decided so subjectively, emotionally, and in the end, so personally. There is an old saying among First Amendment counselors that “obscenity” is whatever gives a judge an erection. Fleishman believed the same was true of many prosecutors, censors, members of juries: A man might enjoy a stag movie one night at the American Legion hall, and the next day as a juror he might vote to convict the filmmaker. Ultraliberal citizens who favor rehabilitation for convicted murderers, and oppose harsh sentences for drug smugglers, and affix their signatures to countless radical petitions, will often condone, and even applaud, the police raids on “dirty” bookstores and the incarceration of their owners. “While moralists of the Left are opposed to censorship in principle,” wrote Alain Robbe-Grillet, “they also have principles—i.e., moral values inherited from the past, and they soon find themselves opposed to the pornographers and on the side of the censors.” Or, as Gershon Legman commented on the American ethic: “Murder is a crime. Describing murder is not. Sex is not a crime. Describing it is.”

Of course part of the problem, as Fleishman knew, and as Tynan wrote, is that pornography is “orgasmic in intent”—one of its fundamental purposes is to give men erections and allow them to masturbate; and therefore it is difficult to defend pornography without defending masturbation, and
that
, quoth Shakespeare, is the rub, for masturbation remains in the minds of many people an unmanly act, a delinquent pleasure, an admission of failure in wooing a woman who might be a superior substitute for the
paper princess who reigns for ten minutes on a bedroom pillow. Masturbation is deplored as wasted seed by the Church, as sexual selfishness by many married couples; and books that induce masturbation are rarely regarded as literature, even though the critic Lionel Trilling once acknowledged that he saw no reason “why literature should not have as one of its intentions the arousing of thoughts of lust.” But lustful literature, and its orgasmic culmination, has never been tolerated as a proper act of free expression by the judicial interpreters of the First Amendment, in part because the Supreme Court has been primarily composed since the eighteenth-century of elderly men whose ascension was marked by conformity to the law and the social norm, and who have maintained in their personal lives, at least on the surface, an almost mythical standard of morality. Except for Justice Douglas, none has ever been divorced; and except for one justice who had a fatal heart attack decades ago while allegedly in the bed of an unmarried woman, no member of the Court has even been rumored to have kept a mistress.

If the element of aphrodisia inherent in pornography has ever influenced the controlled habits or private proprieties of a justice, none has ever acknowledged this in a posthumously published diary or memoir; and during obscenity hearings in the Supreme Court building, the justices’ demeanor is entirely tempered and dispassionate, and all of their references to sex are cloaked in circumlocution and the arcane language of law,
even
when the material they are judging reeks of ribaldry and seduction, of rakish barons and sullied scullery maids, of lissome ladies and muscled men swinging sweatily in circuses of debauchery—or, as in the case of Hamling’s brochure, which the government had produced in evidence and Fleishman was now about to defend, unabashedly exhibits couples copulating, masturbating, and sodomizing.

In a stentorian voice, Chief Justice Warren Burger announced to the Court: “We’ll hear arguments next in 73505—Hamling against the United States.” Nodding from his high-backed black
chair down toward the attorney, Burger added: “Mr. Fleishman, I think you may proceed whenever you are ready.”

Fleishman pushed himself up from behind the counselors’ table, and, in a rolling motion, pivoted his five-foot body between two crutches and moved by the strength of his shoulders toward the podium. At first his body seemed almost gnomish, a small figure in a dark tailored suit, advancing slowly, noisily, heavily in front of the bench. But when he stopped at the podium and turned toward the justices, after pounding his rubber-tipped crutches into a firm position on the floor, he seemed suddenly to transcend any sense of frailty. His shoulders were massive. His head was held high and was topped by thick curly black hair. With a sharp jaw, a prominent nose, and deep penetrating eyes, his was a sculptor’s face, chiseled and strong, and as he stood alone in the front of the room his presence suggested an unfinished masterwork, a heroic head and torso supported by scaffolding. When he began to speak, his voice was resonant and reverberated through the large chamber, reaching the farthest row. Unlike many attorneys who appear before the High Tribunal, Fleishman seemed unintimidated, exuding a manner that would have bordered on cockiness were it not for his attitude of respect and formality. He was a defense counselor who was not on the defensive.

“Mr. Chief Justice, may it please the Court…” he began. “Mr. Hamling has been given a prison term of four years…including [a fine of] $87,000 for mailing a brochure that hurt no one. The brochure advertises a book, a book of plain serious political value. The book is an illustrated version of a government report which basically concluded that the law of obscenity in a free community such as ours requires that willing adults be permitted to make their own choice with regard to whether or not they will or will not expose themselves to sexually explicit material….”

Chief Justice Burger leaned forward and asked, “Was the original report illustrated, Mr. Fleishman?”

“No, sir, it was not,” Fleishman replied, but he quickly added that at Hamling’s trial in San Diego two former members of the
presidential commission had testified that Hamling’s illustrated report was “more valuable” than the original report because its pictures clarified for the reader the specific sort of sexual material that had concerned the Congress and had led to the creation of the President’s fact-finding commission.

“Was there any reason,” asked Justice Rehnquist, “why the jury wouldn’t be free to disbelieve these witnesses just as they would any other witness?”

“I believe not, your honor…” Fleishman said. “A commissioner who spent two years on the commission report simply has an opinion that is better than that of a lay jury.”

“But,” Rehnquist insisted, “juries
do
disbelieve experts for a number of reasons, don’t they? And there is no rule of law that says they
have
to believe.”

“Yes, sir,” Fleishman hastily agreed, not wanting to debate further this oblique point; he was allowed only a half hour to speak, and part of this time would be used by his cocounselor, Sam Rosenwein, in defending the three Hamling staff members who had collaborated on the illustrated book and brochure. Also, even before the hearing had begun today, Fleishman had all but written off Rehnquist’s vote, knowing that the latter was as opposed to pornography as Burger and Blackmun. Fleishman had decided instead to direct most of his argument toward Justices White and Powell, one of whom he hoped would vote with the four liberal members of the Court. Although White and Powell were hardly liberal interpreters of the First Amendment, they had in the past seemed less self-righteous and predictable than Rehnquist, Blackmun, and Burger; and they might even find merit in Fleishman’s argument that his client had been caught in a “period of transition,” a constitutional “no-man’s-land”—Hamling had been victimized in San Diego by a courtroom verdict based on legal logic that in 1973 had been declared illogical by the very members of the Supreme Court that Fleishman now faced.

As Fleishman continued his speech to the justices, he went on (referring to the 1973 Miller ruling): “This Court has said there are no national standards—they are unascertainable, they are un
provable, they are unrealistic, they are abstract. And this Court has said that a jury trying to answer the question of obscenity within the framework of national standards was engaged in an exercise in futility. Therefore,” Fleishman continued, his voice rising, “the petitioners [Hamling et al.] were convicted of offending standards that, simply on the Court’s own terms, do not exist.”

Fleishman reasoned further that, since community standards are now sovereign in obscenity cases, his client deserved better than he had received in San Diego, where the judge had thwarted every attempt by the defense to introduce evidence relating to the sexual standards of the community. “We, for example, had called a witness who had made a survey in the San Diego area with regard to the identical brochure in question,” Fleishman recalled, “and on a scientific basis, she asked 718 people their opinion with regard to the brochure. Overwhelmingly, as the record shows, they were of the view essentially that the brochure as it stood should be allowed to be circulated to the American people generally. That evidence was excluded, however, solely on the grounds that the only test that was applicable was the national standards, and not the local standards. So that if again we are to follow the suggestion of the government that local standards are to be used, then plainly there has to be a reversal in this case….”

William Hamling, sitting in the crowded room surrounded by people who did not recognize him as the offstage protagonist in this case, occasionally nodded his head in agreement with the points his attorney was making. Next to him sat his wife, Frances, looking at the distant faces of the justices and searching for some indication of how they might be reacting to Fleishman’s words. She sensed nothing. On the other side of her daughter, Deborah, who seemed tense, sat Fleishman’s nineteen-year-old daughter, Judy, who seemed calm. Judy Fleishman had accompanied her father to court before, and she was confident that this case, like the others, would be favorably concluded.

Meanwhile the bailiffs of the Supreme Court walked up and
down the aisles as Stanley Fleishman spoke, watching the spectators and making sure that nobody was using a tape recorder or a camera, or was even taking notes; whispering was forbidden, as was sitting with legs crossed or arms resting over the back of the pews. Suddenly, one of the bailiffs stopped in the aisle next to where the Hamlings were seated and he glared at Judy Fleishman, shaking his finger. Judy had been caught chewing gum. As casually as she could, she removed it from her mouth, wrapped it into a Kleenex, and deposited it in the pocket of her dress.

When she directed her attention once more to the podium, she saw that her father was temporarily relinquishing his place to his cocounselor, Sam Rosenwein, a balding gray-haired man in his late sixties, who explained to the justices: “The issue I am devoting myself to is the issue of scienter—the question of guilty knowledge, and what is the mental element requisite for a constitutionally permissible prosecution…” Pausing, Rosenwein continued, “In answer to our motion for a bill of particulars, the [prosecution] stated it was
not
claiming that these defendants knew in fact that the material was obscene—all that it was claiming was that they knew the
contents
of the brochure, and
that
was sufficient to satisfy the scienter requirement.”