Pornography and the Courts

Commentary (November 1968).

Review of The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill, by Charles Rembar.


“Permissive decisions by the Supreme Court in obscenity cases constituted one of the main issues in the struggle over confirmation of Associate Justice Abe Fortas as Chief Justice. So there is not an “end of obscenity” just yet; whether or not there ought to be remains a subject of debate in institutions that share the power of government with the Supreme Court and may yet, directly or indirectly, have the last word. Nor does Charles Rembar, author of The End of Obscenity, claim that the Supreme Court has necessarily loosed every kind of writing, let alone performance, that might earlier have been deemed obscene and restrained as such. He couldn’t very well. On the very day on which he achieved the crowning success in the course of litigation that he lovingly and proudly describes in this book, the Supreme Court also found Ralph Ginzburg and one Edward Mishkin, two defendants not represented by Mr. Rembar, guilty of having published obscene materials, and affirmed stiff jail sentences against them. Mr. Rembar purports to understand the distinctions that the Court perceived between the wares of Ginzburg and Mishkin and his own clients’ books, and he does not seem to disapprove of the Court’s actions in the Ginzburg and Mishkin cases, even though they tended to dim the lustre of his own climactic triumph. Mr. Rembar claims to have achieved an end of obscenity in the sense merely that books and other printed matter—not theater, motion picture, or television performances—which treat openly and grossly of sex, but are not shockingly indecent by contemporary standards, and have some measure of social value, are now protected by the First Amendment against suppression.