Dirty Works: Obscenity on Trial in America’s First Sexual Revolution
Brett Gary recent book, Dirty Works: Obscenity on Trial in America’s First Sexual Revolution, fills a crucial gap in the history of obscenity law. The study details the career of American Civil Liberties Union lawyer Morris Ernst who, along with his colleagues Alexander Lindey and Harriet Pilpel, championed free speech in a series of important censorship trials beginning in the 1920s and continuing through the 1950s. Although Ernst’s career and commentary have often featured in censorship histories, this is the first major study to survey his entire career.
Gary covers trials targeting a wide variety of obscene materials, including education pamphlets, literary works, birth control, and sex research. Along the way, we learn about Ernst’s role in defending major figures in the history of obscenity liberalization. Dirty Works narrates Ernst’s vindication of sex educators, including Mary Ware Dennett, author of the educational pamphlet The Sex Side of Life (1919), and Marie Stopes, author of Married Love (1918). The book also explores how Ernst protected literature from censorship. Ernst defended novels like Radclyffe Hall’s The Well of Loneliness (1928) and James Joyce’s Ulysses (1922) and led lesser-known legal battles to clear publications by authors such as Nathan Asch and Arthur Schnitzler. Finally, Dirty Works includes chapters chronicling Ernst’s work on behalf of birth control advocate Margaret Sanger and sex researcher Alfred Kinsey.
According to Gary, Ernst strove to bring about an era of “sexual enlightenment” through the free circulation of sexual information (p. 28). To this end, Ernst focused on defending clients reputed to be serious experts and artists who dealt with sexuality in a responsible fashion. After many skirmishes with censors, Ernst succeeded in establishing a framework for defending obscene works that continued to win court cases for years to come. Ernst worked to overturn the Hicklin standard, a Victorian era test that determined obscenity based on a publication’s predicted effect on children and other vulnerable readers. He also brought expert witnesses into the courtroom to testify to the value of the publications he defended, and he fought for the idea that judges and juries should evaluate books based on their interpretation of the work as a whole rather than based on readings of isolated passages. At the same time, Ernst turned to the court of public opinion, using trials in media campaigns to showcase the repressiveness and irrationality of contemporary free speech restrictions. Dirty Works shows that Ernst’s struggle against censorship helped make possible what Gary calls the First Sexual Revolution: a general thawing of public discussion about sexuality that preceded and enabled the better-known revolution in morals in the 1960s.
Gary’s study is important not only because it addresses a neglected figure but also because it covers a period in obscenity law that has often been either overlooked or only examined from a partial perspective. Critical scrutiny has remained largely focused on either the emergence of modern obscenity law in the Comstock Act of 1873 or the contested redefinitions of the obscene between the U.S. Supreme Court’s Roth v. United States (1957) and Miller v. California (1973) decisions. When scholars do turn their attention to obscenity law in the first half of the twentieth century, they tend to narrow in on specific trials or subtopics, such as the modernist novel’s use of obscenity. As a result, many censorship studies have separated debates over the illegality of diaphragms and marriage manuals from arguments over the literary value of explicit texts. Through this monograph, Gary succeeds in showing the interconnectedness of these free speech controversies and the centrality of Ernst’s efforts to relax prohibitions on obscenity in the decades prior to Roth.
Dirty Works is meticulously researched, including careful attention to primary documents, and we can see a deep enthusiasm for archival exploration throughout the book. Thanks to the author’s diligence, readers will find a wealth of new information. For example, I was surprised to read about how Fredric Wertham—a psychiatrist best known for his crusade against sex and violence in comic books after World War II—contributed key arguments to Ernst’s legal memorandum arguing on behalf of Radclyffe Hall’s queer coming-of-age novel. The study also addresses aspects of Ernst’s career that are often passed over in discussions of the lawyer’s record as a civil libertarian, including how he became a cheerleader and informant for J. Edgar Hoover after turning to hardline anticommunism in the 1940s. These last details prevent Dirty Works from becoming merely a hagiography, which is always a danger in histories of free speech. The book is incredibly thorough, and anyone working on this period in obscenity law will want to consult its pages.
At the same time, Dirty Works’ intense focus on detail sometimes means that it passes up opportunities to make bolder interpretive claims. Many of the more interesting arguments with other scholars remain buried in the footnotes, while the body text sometimes dwells at great length on seemingly minor incidents, such as Ernst’s protracted attempts to get the New York Society for the Suppression of Vice’s John Sumner to return confiscated books cleared of obscenity. We learn a great deal about Ernst’s arguments and strategies for overturning censorship laws, and Dirty Works does include ample historical and social context, but I sometimes found myself wanting to see more critical reflections alongside its descriptive accounts of Ernst’s victories and setbacks. Often obscenity liberalization is framed as a narrative of progress—sometimes halting, sometimes reversed, sometimes proceeding through half-steps or compromises, but generally moving toward the present level of sexual candor and erotic liberty with each court case Ernst wins. Accordingly, the book only interprets Ernst’s legal defenses based on whether they succeeded in achieving their aims in court. Free speech liberalism is taken for granted as a given, which means that the lawyer’s ideological commitments remain largely uninterrogated. Although Gary does express some reservations about free speech liberalism’s hand in enabling the ubiquitous circulation of hardcore pornography, for example, he does not submit Ernst’s legal strategies to anything like a thoroughgoing queer or feminist analysis.
This is a missed chance because so much recent scholarship on the legal history of free speech and obscenity has called into question liberal perspectives on decensorship. Laura Weinrib has shown that the success of the American Civil Liberties Union came only at the cost of its deradicalization (2016), Marc Stein has demonstrated that the fight for sexual freedom in the Supreme Court often opened a space for greater privacy by enshrining the sanctity of the heteronormative bedroom into law (2010), and Whitney Strub has proven that Supreme Court battles over obscenity law frequently turned on political considerations rather than abstract questions of First Amendment jurisprudence (2010). Some of the most exciting censorship scholarship of the past two decades has focused on liberalism’s biases, contradictions, paradoxes, and limitations. Gary is clearly aware of much of this work and cites some of it but does not take many of these theoretical innovations on board in the framework of his book.
Nevertheless, Gary has done a wonderful job of recovering important information about Ernst’s career. This study is also written in a manner that is clear and accessible to general audiences. Readers approaching the topic of obscenity for the first time will receive a useful overview of early twentieth century developments in American law, while more advanced scholars will certainly find something new here. Hopefully this book will set a trend for further studies of free speech lawyers such as Charles Rembar while spurring further considerations of early twentieth-century conflicts over obscenity.
Hall, Radclyffe. 1928. The Well of Loneliness. London, UK: Jonathan Cape.
Joyce, James. 1922. Ulysses. Paris, FR: Shakespeare and Company.
Stein, Marc. 2010. Sexual Injustice: Supreme Court Decisions from Griswold to Roe. Chapel Hill, NC: University of North Carolina Press.
Stopes, Marie Carmichael. 1918. Married Love or Love in Marriage. New York, NY: The Critic and Guide Company.
Strub, Whitney. 2010. Perversion for Profit: The Politics of Pornography and the Rise of the New Right. New York, NY: Columbia University Press.
Weinrib, Laura. 2016. The Taming of Free Speech: America’s Civil Liberties Compromise. Cambridge, MA: Harvard University Press.
Jordan S. Carroll is a visiting assistant professor of English at the University of Puget Sound. He is the author of Reading the Obscene: Transgressive Editors and the Class Politics of US Literature (Stanford University Press, 2021).