Law and Literature Part 21

hosewhodisagreewith the preceding chapter and thus believe that literature can make us better people are apt also to think that the wrong kind of literature can make us worse people. In the words of Irving Kristol, "If you believe that no one was ever corrupted by a book, you have also to believe that no one was ever improved by a book."1 Censors.h.i.+p is encouraged by the moralistic approach to literature. To someone who believes that literature to count as such must be edifying, immoral books are by definition not literature and banning them cannot impair literary values.

Government censors.h.i.+p of nonpictorial imaginative literature on grounds of immorality has long been in decline and by now has virtually disappeared in Western countries (with the surprising exception of Canada, as we'll see). The end was slow in coming. Ulysses could not be sold in England for decades after its publication in 1922. The novels of Henry Miller, and D. H. Lawrence's novel Lady Chatterley's Lover, could not be 1. Kristol, "p.o.r.nography, Obscenity and the Case for Censors.h.i.+p," New York Times Magazine, Mar. 28, 1971, p. 24. There is no "have to" about it, as one can see by subst.i.tuting "sermon" for "book" in Kristol's statement.

497.

*sold legally in the United States until the 1960s.2 The censors.h.i.+p of the English theater also lasted until the sixties; Oedipus Tyrannus was not performed on the English stage, in an English translation, until 1912, because it depicted an incestuous relations.h.i.+p.3 The portrayal of h.o.m.os.e.xuality in a favorable light was under an informal but effective ban until recently. But today the limits of society's toleration of s.e.xual description are so broad that certainly in the United States no canonical literature exceeds them. The closest to doing so may be Aristophanes' plays, especially Lysistrata (the subject of which is a wives' s.e.x strike), and the novels of Henry Miller-and not only is the pressure to suppress these works nil but they could not lawfully be suppressed in any event. The Supreme Court, taking a big step beyond Judge Woolsey's opinion in the Ulysses case (discussed below), has interpreted the First Amendment to forbid the suppression of any text that has any social value: "the social value of a book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness."4 Moreover, although cultural differences need not prevent one from enjoying the literature of the past (almost by definition literature is of the past), its aphrodisiacal effects do often wane with time, at least if society is becoming more relaxed about s.e.xual displays.5 That takes care of Aristophanes and Henry Miller; our licentious culture can't be shocked by shockers composed in more decorous times.

Yet although prosecutions have ended, public libraries, and especially the libraries of public schools, respond to community pressures in deciding what books to stock, and this quasi-censors.h.i.+p shows no signs See generally Allison Pease, Modernism, Ma.s.s Culture, and the Aesthetics of Obscenity (2000). On the shock induced by the Gerty MacDowell episode in Ulysses-one of the high points of the book-see Walter Kendrick, "The Corruption of Gerty MacDowell," 37 James Joyce Quarterly 413 (2000).

J. Michael Walton, "Good Manners, Decorum and the Public Peace: Greek Drama and the Censor," in Modes of Censors.h.i.+p and Translation: National Contexts and Diverse Media 143, 148149 (Francesca Billiani ed. 2007).

4. Memoirs v. Ma.s.sachusetts, 383 U.S. 413, 419 (1966).

5. The suggestion by one of the dissenting Justices in the Memoirs case that reading John Cleland's Memoirs of a Woman of Pleasure (1750) (more commonly known as f.a.n.n.y Hill) might incite the reader to commit s.e.x crimes up to and including "s.e.x murder," 383 U.S. at 452, is ridiculous.

of abating. Colleges and universities practice self-censors.h.i.+p extensively, sometimes under the spur of angry students, who may have been whipped up to a frenzy by angry faculty or alumni. Just the choice of what works of literature to teach reflects in part the politics of teachers or students and is a factor in the decline of the literary culture in America. The pressure for informal censors.h.i.+p comes from the religious Right as well as from the egalitarian Left and is resisted by civil libertarians on the Left and by libertarian conservatives on the Right.

The most celebrated American judicial decision holding that a work of literature is not obscene is Judge Woolsey's 1933 decision exonerating Joyce's Ulysses.6 The decision is generally regarded, though with some exaggeration, as the turning point in the American law of obscenity.7 Woolsey ruled that the likely effect of a literary work on s.e.xual behavior must be determined by reference to the average rather than the most susceptible potential reader, that the work must be judged as a whole rather than by its most shocking pa.s.sages, and that literary merit is pertinent to whether the work can lawfully be suppressed.

Although no one anymore would be likely to question the result, Paul Vanderham has attacked Woolsey's reasoning. He criticizes each of its four premises: First, that literary works like Ulysses have nothing in common with works of p.o.r.nography; second, that artistic intention precludes other intentions-moral, political or religious-that might oppose or undermine values which the law (rightly or wrongly) upholds; third, that l'homme moyen sensuel, the average person, responds to art in a resolutely esthetic and therefore static manner; and fourth, that the effect of a literary work as a whole is necessarily the effect of any one of its parts, and that because a work like Ulysses, taken as a whole, is One Book Called "Ulysses," 5 F. Supp. 182 (S.D.N.Y. 1933), affirmed, 72 F.2d 705 (2d Cir. 1934).

Marisa Anne Pagnattaro, in an excellent brief history of that law, "Carving a Literary Exception: The Obscenity Standard and Ulysses," 47 Twentieth Century Literature 217 (2001), notes that there were liberal decisions before, and conservative decisions after, the Ulysses decision.

*not legally obscene (or otherwise harmful in the eyes of the law), it is nowhere obscene, nowhere harmful.8 The opinion's first premise is just an inference from the last three premises and rises or falls with them. The second premise Vanderham is right to question. There is no reason why a writer should not set out to write a book that will be at once literary and p.o.r.nographic or why his aims, whether simple or multiple, consistent or inconsistent, should be thought to determine the book's character or effects. Whatever its predominant character, moreover (I am moving now to the third premise), there is nothing to prevent a reader from using the work in a way that is inconsistent with that character. Last, the aphrodisiacal effect of a book's p.o.r.nographic pa.s.sages might not be diluted by the anaphrodisiacal pa.s.sages that surround them-might even, as we shall see, be enhanced by them. To these criticisms it might be added that determining literary merit is hardly a fit task for a judge or jury-and the modernist works such as Ulysses that bore the brunt of obscenity prosecutions were too recent to have pa.s.sed the test of time.9 Testimony by literary critics often is solicited in order to a.s.sist the judge or jury,10 but because there are no agreed-upon standards of literary merit it is easy to find critics of equal plausibility and credentials to testify on opposite sides. Even if a work of so-called literature is palpably meritless, a reputable critic can be found to testify, as it were with his fingers crossed, to its merit, fearing that any imposition of a sanction on a writer is a harbinger of a more general censors.h.i.+p.

Vanderham, "Lifting the Ban on Ulysses: The Well-Intentioned Lies of the Woolsey Decision," Mosaic, Dec. 1994, pp. 179, 194. He amplifies his a.n.a.lysis in his book James Joyce and Censors.h.i.+p: The Trials of Ulysses, ch. 5 (1998).

Loren Gla.s.s, "Redeeming Value: Obscenity and Anglo-American Modernism," 32 Critical Inquiry 341, 344 (2006).

See the a.n.a.lysis of expert testimony in the obscenity trials of Tropic of Cancer in Al Katz, "Free Discussion v. Final Decision: Moral and Artistic Controversy and the Tropic of Cancer Trials," 79 Yale Law Journal 209 (1969); the transcript of the expert witness's testimony in the obscenity trial of Allen Ginsberg's poem Howl, in J. W. Erlich, The Lost Art of Cross-Examination 151169 (1970); and Frank Kermode, "'Obscenity' and the 'Public Interest,'" 3 New American Review 229 (1968), a report of a critic's experience as an expert witness in an obscenity case.

But Vanderham in turn can be criticized for missing the forest for the trees. Consider who reads works of literature. Literature is read in high school, in college or university, and after graduation. The high school and college readers are for the most part a captive, restive, and unmoved audience. A great teacher can inspire them; great teachers are rare. Anyway, no one is suggesting that p.o.r.nographic literature, even so mild a specimen by current standards as Ulysses, should be prescribed for students. So forget the students. Who is left? Only a tiny minority of Americans continues to read serious literature-cla.s.sics and candidates to become cla.s.sics-after graduating from college,11 and this supports my claim that high school and college readers of literature are for the most part unimpressionable. Those fired to a love of literature in childhood or young adulthood do not cool. They must be relatively few, since adult readers of the cla.s.sics are relatively few. True, this is a huge country, so the relative and the absolute can diverge dramatically. James Joyce has thousands of fans, but even after they are added to all the rest of the literature buffs in the nation the total is a minute and aging fraction of the population. And quite apart from how Joyce and other literary giants are faring in the marketplace, the print media are losing the compet.i.tion with the electronic media in the market for ideas, information, and entertainment. Nowhere is the compet.i.tive struggle more one-sided in favor of the electronic media than in the domain of p.o.r.nography. A verbal description or evocation of s.e.xual activity is highly unlikely to produce as much arousal as a photograph or a film.

To defend works of literature against censors.h.i.+p on the ground that they are little read may seem to be to wield a two-edged sword. If litera 11. In 1990, art, literature, and poetry accounted in the aggregate for only 2 percent of retail sales of books (both hardcover and paperback) in the United States, with 22 percent of the buyers of such books being under the age of 25. This is a much higher proportion than for any other category of books, and is indicative of the importance of the student segment of the literary book market. Book Industry Study Group, Inc., 19901991 Consumer Research Study on Book Purchasing 17, 73 (1991). I have been unable to find current statistics, but Professor Albert N. Greco of Fordham University, an expert in cultural publication (see Albert N. Greco, Clara E. Rodrigues, and Robert M. Wharton, The Culture and Commerce of Publis.h.i.+ng in the 21st Century [2007]), has informed me that by 2005 the percentage of retail book sales accounted for by art, literature, and poetry had fallen to 1.61 percent, a 20 percent decline since 1990 ([2 1.61]/2).

*ture is marginal to the life of the nation, the case for granting it legal protection against prudes and censors may seem to lack urgency. But the concluding discussion in the preceding chapter suggests not. It supports the view that literature should continue to be an important component of high school and college education because of its effects in stretching students' imaginations, multiplying their perspectives, broadening their intellectual and emotional horizons, offering them a range of vicarious experiences, and a.s.sisting them to read difficult texts, express complex thoughts, and write and speak correctly, fluently, and persuasively. The study of literature will not make a young person a more decent human being and it will probably fail to addict him to literature, but it may make him a little more articulate, a little smarter and more successful. However, an education in literature does not require a.s.signing p.o.r.nography to the students.

Arguing that expository prose is worthier of legal protection in the name of free speech than imaginative literature is, Frederick Schauer claims that "fiction is parasitic on nonfiction, if by nonfiction we mean simply telling the whole truth as accurately as possible."12 It is true that without a conception of truth we would not have a conception of fiction. But it is irrelevant. Descriptive accuracy does not exhaust the concept of truth, let alone of value. Scientific models frequently purchase explanatory and predictive power at the price of descriptive inaccuracy, as in Newton's law of falling bodies, which a.s.sumes that objects fall in a vacuum. Does this counterfactual a.s.sumption make Newton's law a fiction parasitic on truth? Aristotle's concept of literature as a selection from the welter of particulars resembles the scientist's concept of a model. Some fiction is truer than some nonfiction, even than some accurate nonfiction.

It would be worse to abolish all political, scientific, or religious expression than all literary and artistic expression. Better a technologically advanced philistine democracy than a totalitarian artocracy. But the practical choice is never that; it is always whether to suppress a particular political, artistic, scientific, or religious work. It is far from clear that, evaluated at the margin in this way, literary expression is characteristically less 12. Frederick Schauer, "Liars, Novelists, and the Law of Defamation," 51 Brooklyn Law Review 233, 266 (1985).

valuable than political, scientific, or religious expression. I am not even sure that Schauer is right in claiming that society would not suffer "nearly as much" from losing the novels of Edith Wharton as it would have suffered from being "deprived of the exposure of Watergate and its a.s.sociated crimes."13 That may just be the prejudice of a political science major.

Reference to the Watergate scandal, in which most of the princ.i.p.als from Nixon on down were lawyers, triggers one's recollection that in its wake all law schools were required by the accrediting authorities to inst.i.tute compulsory courses in legal ethics. Does anyone believe that lawyers' ethics have since improved? Is this not further evidence that talking about ethics doesn't make people more ethical? The main purpose and effect of requiring that legal ethics be taught in law schools is to persuade a few laypersons that lawyers are more ethical than they really are.

Censors used to worry that s.e.xually explicit literature would encourage s.e.xual freedom and experimentation and by doing so weaken the family. The eighteenth-century French p.o.r.nographic novel presented the "fantasy . . . [of ] a free-loving, freethinking, female philosophe."14 Since the traditional family was patriarchal, one might have expected feminists, who want to undermine it, to rally to the defense of p.o.r.nography. Instead radical feminists like Catharine MacKinnon and Andrea Dworkin became p.o.r.nography's fiercest antagonists, arguing that it preaches and inculcates female subordination-that it depicts women as enjoying s.e.xual submission to men and that by doing so it incites men to rape, hara.s.s, and discriminate against women.15 MacKinnon and Dworkin wanted to Id. at 255.

Robert Darnton, The Forbidden Best-Sellers of Pre-Revolutionary France 114 (1995).

15. The feminist approach to p.o.r.nography is sketched in K. K. Ruthven, Feminist Literary Studies: An Introduction 8790 (1984). For fuller statements, see Andrea Dworkin, p.o.r.nography: Men Possessing Women (1981); Catharine A. MacKinnon, Only Words (1993); Take Back the Night: Women on p.o.r.nography (Laura Lederer ed. 1980); Kathleen E. Mahoney, "Obscenity, Morals and the Law: Challenging Basic a.s.sumptions," in Justice beyond Orwell 77 (Rosalie S. Abella and Melvin L. Rothman eds. 1985). Not all radical feminists want to suppress p.o.r.nography. See Carlin Meyer, "s.e.x, Sin, and Women's Liberation: Against p.o.r.n-Suppression," 72 Texas Law Review 1097 (1994); Robin West, "The Feminist-Conservative Anti-p.o.r.nography Alliance and the 1986 Attorney General's Commission on p.o.r.nography Report," 1987 American Bar Foundation Research Journal 681.

*s.h.i.+ft the emphasis in the regulation of p.o.r.nography from excessive frankness in the depiction of s.e.x, the sort of thing the old-fas.h.i.+oned censors forbade, to harm to women.

Such a s.h.i.+ft is ominous from the standpoint of preserving literature because many distinguished literary works portray with approval the subordination of women to men (though this is not the same thing as depicting women enjoying that subordination-the particular concern of the feminist opponents of p.o.r.nography-though there is plenty of that too). Consider Briseis and Chryseis in the Iliad, treated as chattels. Or the humiliation of Kate in The Taming of the Shrew. The Bible contains many examples of misogyny, beginning with Eve's being blamed for the fall of man. Paradise Lost, as we saw in chapter 7, is overtly misogynistic (though perhaps covertly feminist, as I have argued), as is Eumenides (chapter 2)-the list is endless. Customs officers in Canada, which has enacted a version of the feminist position on p.o.r.nography, have seized literary works by Oscar Wilde, Marguerite Duras, bell hooks-and Andrea Dworkin.16 MacKinnon does not care whether her concept of censorable p.o.r.nography sweeps within it the occasional cla.s.sic: "If a woman is subjected, why should it matter that the work has other value? Perhaps what redeems a work's value among men enhances its injury to women. Existing standards of literature, art, science, and politics are, in feminist light, remarkably consonant with p.o.r.nography's mode, meaning, and message."17 A more conciliatory feminist might not grasp the nettle of aesthetic value but instead argue that as long as the only works suppressed are s.e.xually explicit the threat to literature is small, for how much literature is s.e.xually explicit? But the answer is-a great deal. Authors of great works of Nadine Strossen, Defending p.o.r.nography: Free Speech, s.e.x, and the Fight for Women's Rights 229239 (1995); Forbidden Pa.s.sages: Writings Banned in Canada (1995). Margaret At-wood and Joyce Carol Oates are other woman writers whose graphic depictions of brutal treatment of women might make their works eligible for suppression under Canadian law. See also A. Alan Borovy, "Freedom of Expression: Some Recurring Impediments," in Justice beyond Orwell, note 15 above, at 125, 144152.

MacKinnon, Toward a Feminist Theory of the State 202 (1989) (footnote omitted). For criticism, see J. M. Coetzee, "The Harms of p.o.r.nography: Catharine MacKinnon," in Coetzee, Essays on Censors.h.i.+p 61 (1996).

literature that were s.e.xually explicit by the standards of their times (and in some of my examples for centuries, even millennia, afterward) include Aristophanes, Boccaccio, Rabelais, Joyce, and Lawrence. John Millington Synge's play The Playboy of the Western World was deemed obscene when first performed (1907) because it used the word "s.h.i.+ft" for a woman's slip.18 Some works that are s.e.xually explicit by today's standards may someday be recognized as great literature-unless their creation is deterred by a broad definition of p.o.r.nography. Conversely, standards may become more conservative. In that event, literature that is not explicit by today's liberal standards may come to be thought so in the future. Shakespeare was too bawdy for the nineteenth century and was bowdlerized; maybe Joyce will be too bawdy for the second half of the twenty-first century.

Feminists are concerned not only with the possible effect of p.o.r.nography on violence against women but also with what they believe to be its tendency to foster s.e.xual stereotypes, such as that of women as merely the s.e.xual playthings of men, and with the consequences of those stereotypes for the treatment of women in the workplace. Whether p.o.r.nographic books have such a tendency and such consequences is unknown but unlikely. p.o.r.nography does not purport to present a realistic picture of women. Nor does it consistently depict them as submissive or demure. (Just compare Molly Bloom with her cuckolded husband.) Often it portrays them as s.e.xually aggressive; that is a traditional trope of p.o.r.nography. p.o.r.nography as we know is suppressed in patriarchal societies and flourishes in egalitarian ones, a pattern that radical feminism cannot explain. The Catholic Church, an opponent of feminism, is one of p.o.r.nography's fiercest antagonists. A traditional conservative criticism of p.o.r.nography is that it encourages masturbation,19 a "selfish" practice (like oral or a.n.a.l intercourse, whether heteros.e.xual or h.o.m.os.e.xual) because it is not procreative. (Hence the sin of Onan, who spilled his seed on the Hugh Kenner, A Colder Eye: The Modern Irish Writers 2021 (1983). On trends in the literary depiction of s.e.x, see Charles I. Glicksberg, The s.e.xual Revolution in Modern American Literature (1971); Glicksberg, The s.e.xual Revolution in Modern English Literature (1973).

See, for example, Kristol, note 1 above. That is not the Catholic religious objection, which is that masturbation involves an unnatural use of the s.e.xual organs.

*ground to get out of making a Levirate marriage.) Radicals see this criticism as an effort to reinforce the ideology of capitalism by making s.e.x a form of production-production of children.20 If the objection to p.o.r.nography is that it induces pernicious beliefs (such as that s.e.x should be for pleasure and not just for procreation, so that any form of or aids to s.e.x should be permitted that do not cause physical or psychological injury),21 the s.e.xually explicit angle is a red herring and we are in the presence of a ma.s.sive challenge to freedom of expression. That challenge is the logical terminus of the edifying school of literary criticism and casts further doubt on the program of that school. If literature is to be valued for its moral content, then it is likewise to be condemned for its immoral content. The result is to deform the literary canon from two directions, with results described by David Lodge, reviewing an anthology of young American fiction writers: An intellectual environment in which it is frowned upon or expressly forbidden to say or write anything that might offend any individual's or group's values, self-esteem, sense of cultural and ethnic ident.i.ty, religious beliefs, or special interests is not one in which the budding literary imagination is likely to flourish. Important writers are often rebellious, arrogant, irreverent, even outrageous . . . Political correctness encourages caution, parochialism, and self-censors.h.i.+p.22 As an example of the outrageous, consider Yeats's sonnet "Leda and the Swan": A sudden blow: the great wings beating still Above the staggering girl, her thighs caressed See, for example, Herbert Marcuse, Eros and Civilization: A Philosophical Inquiry into Freud (1955).

Though that is not MacKinnon's objection. She claims that "the message of [p.o.r.nography] is 'get her' . . . This message is addressed directly to the p.e.n.i.s, delivered through an erection, and taken out on women in the real world." MacKinnon, Only Words, note 15 above, at 21. She ignores both m.a.s.o.c.h.i.s.tic and h.o.m.os.e.xual p.o.r.nography.

Lodge, "O Ye Laurels," New York Review of Books, Aug. 8, 1996, pp. 16, 20. See also Steven G. Gey, "The Case against Postmodern Censors.h.i.+p Theory," 145 University of Pennsylvania Law Review 193 (1996); Alan Soble, s.e.xual Investigations, ch. 6 (1996).

By the dark webs, her nape caught in his bill, He holds her helpless breast upon his breast.

How can those terrified vague fingers push The feathered glory from her loosening thighs?

And how can body, laid in that white rush, But feel the strange heart beating where it lies?

A shudder in the loins engenders there The broken wall, the burning roof and tower And Agamemnon dead.

Being so caught up, So mastered by the brute blood of the air, Did she put on his knowledge with his power Before the indifferent beak could let her drop?

This is pretty graphic (the caressed thighs, the "white rush") and expresses the poet's and possibly even the victim's approval of the rape. It supports the feminists' observation that "images of the victim's physical beauty and the male's b.e.s.t.i.a.lity pervade legal descriptions of violent crimes against women,"23 although the "beauty" in the poem is not the rape victim herself but a child of the rape (Helen). The poem is also a blasphemous parody of the Annunciation and thus a companion piece to the blasphemous Nativity of "The Second Coming." The poem could well be thought an outrage both to Christianity and to womanhood.24 Yet it is a great poem. The challenge to feminist jurisprudence is to formulate a principled and reasonably definite standard for deciding when if ever literature ought to be suppressed because of its misogynistic content.

In 1953 a federal court of appeals upheld an order to destroy copies of Tropic of Cancer and Tropic of Capricorn by authority of a federal statute forbidding the importation of obscene books.25 The court's opinion de 23. Lisa Binder, "Law and Literature: 'With More Than Admiration He Admired': Images of Beauty and Defilement in Judicial Narratives of Rape," 18 Harvard Women's Law Journal 265 (1995).

24.See Elizabeth Butler Cullingford,"The Case of Yeats's 'Leda and the Swan,'"in Representing Women: Law, Literature, and Feminism 165, 174185 (Susan Sage Heinzelman and Zipporah Batshaw Wiseman eds. 1994).

25. Besig v. United States, 208 F.2d 142 (9th Cir. 1953).

*scribes the novels as a "sticky slime" of filth and degradation that nevertheless "lure on [the reader] with the cleverness of scene, skillfulness of recital, and the use of worse than gutter words . . . Dirty word description of the sweet and sublime, especially of the mystery of s.e.x and procreation, is the ultimate of obscenity" (pp. 145146). The opinion distinguishes cla.s.sical authors from Henry Miller on the basis only of cultural relativity, and intimates that if they were writing today they would be in trouble: "We are not well acquainted with Aristophanes or his times, but we know they were different from ours. We have chanced upon Chaucer and we know his times were different from ours. Boccaccio is lurid. The Bible is not free from the recounting of immoral practices. But the translators, from the languages in which The Bible was originally written, did not word-paint such practices in the lurid-Miller-morally-corrupt manner" (p. 146). Later the court retracts the suggestion that cla.s.sical authors might be forgiven for having written in ruder times: "We risk the a.s.sertion that there is an underlying, perhaps universal, accord that there is a phase of respectable delicacy related to s.e.x, and that those compositions which purposefully flaunt [sic] such delicacy in language generally regarded as indecent come under the ban of the statute" (p. 147).

Insensitive to contradiction, the court suggests both that certain aspects of human experience (for example, excretion) and dirty words are out of bounds even to the moral artist and that if only Miller had depicted his sordid subject matter disapprovingly he might, like the authors of the Bible, have avoided the morally corrupt manner that marks the books as obscene. The court concedes that Miller's novels have literary merit, but that only makes them more dangerous. They may incite old men to commit s.e.x crimes. "Salacious print in the hands of adults, even in the hands of those whose sun is near the western horizon, may well incite to disgusting practices and to hideous crime" (p. 146).

Although the opinion in the Besig case is so ridiculous that one might imagine it as a parody of an obscenity opinion (yet it was cited approvingly in a number of cases decided during the 1950s and 1960s), the judges' reasoning is close to that of the feminist denouncers of p.o.r.nography. The judges draw the same highly speculative connection between reading p.o.r.nography and committing s.e.x crimes that feminists do and express the same indifference to aesthetic values that Catharine MacKinnon does. And notice the complacency with which the court acknowledges its ignorance of the cla.s.sics. The judges are proudly, and she unapologetically, philistine.

The feminist campaign against p.o.r.nography has failed and thus might seem just the latest chapter in the history of censors.h.i.+p, a history usually presented as a tale of folly and futility. Yet so widespread and persistent an inst.i.tution cannot plausibly be ascribed merely to public stupidity and the prurient interests of would-be censors. Robert Darnton's study of illegal literature in eighteenth-century France suggests that literature can affect public opinion and that the literature in question played a role in bringing about the French Revolution.26 The books and pamphlets that the censors tried unsuccessfully to suppress "molded public opinion in two ways: by fixing disaffection in print (preserving and spreading the word), and by fitting it into narratives (transforming loose talk into coherent discourse)."27 The literature that had these effects was primarily the political rather than the p.o.r.nographic literature of the period. The latter was viewed chiefly as an aid to masturbation.28 The censors weren't worried about masturbation. Their objections to p.o.r.nography had mainly to do with the frequent admixture in it of political and anticlerical themes.29 Consistent with one of Vanderham's criticisms of the opinion in the Ulysses case, the presence of political and philosophical pa.s.sages in eighteenth-century French p.o.r.nography appears not to have diminished the p.o.r.nographic impact of these works and may actually have enhanced it by underscoring their transgressiveness.

Censors.h.i.+p presupposes that books, including works of fiction, a frequent target of censors.h.i.+p, can have moral and political effects. The aesthetic tradition in literary criticism does not deny this. But the decline of literary censors.h.i.+p is evidence that those effects are no longer significant in Western cultures. (The sensitivities of the Muslim minorities in European nations present a special case.) "In an era when television and radio did not challenge the supremacy 26. Darnton, note 14 above, ch. 10.

27. Id. at 191. Cf. Steven L. Winter, "The Cognitive Dimension of the Agon between Legal Power and Narrative Meaning," 87 Michigan Law Review 2225, 2272 (1989).

Darnton, note 14 above, at 103, 222.

See id., ch. 3.

*of the printed word, books aroused emotions and stirred thoughts with a power we can barely imagine today."30 Writers themselves made the point. According to Dante, it was while reading a book together about courtly love that Paolo and Francesca fell in love,31 with fatal consequences. Julien Sorel developed his fatal ambition while reading Napoleon's memoirs. Emma Bovary and Don Quixote were led astray by reading romances. And recall how Hamlet tried to use the performance of a play to unseat the king-a possible echo of an incident in 1601 in which followers of the Earl of Ess.e.x commissioned Shakespeare's company to give a special performance of Richard II on the eve of Ess.e.x's rebellion in an unsuccessful effort to drum up support for the rebellion.32 Sh.e.l.ley thought poetry "a radical force for spiritual and social liberation. He [saw] poetry as, crucially, formative of cultural ideas and social mores rather than just imitative of them,"33 and famously called poets the "unacknowledged legislators of the world." Any powerful source of ideas is bound to be viewed Id. at 217.

One day, for pleasure, We read of Lancelot, by love constrained: Alone, suspecting nothing, at our leisure.

Sometimes at what we read our glances joined, Looking from the book each to the other's eyes, And then the color in our faces drained.

But one particular moment alone it was Defeated us: the longed-for smile, it said, Was kissed by that most n.o.ble lover: at this, This one, who will now never leave my side, Kissed my mouth, trembling.

A Galeotto [a go-between, a panderer], that book!

And so was he who wrote it; that day we read No further.

Dante, Inferno (V.112123) (Robert Pinsky trans. 1994). According to James Boyd White, Living Speech: Resisting the Empire of Force 62 and n. 5 (2006), but not I think according to Dante, Francesca's love for Paolo "has no content at all except in its conformity to the conventions of courtly love . . . She is still connected with Paulo, true, but who is he to her?" Francesca's marriage was an arranged marriage to Paolo's elder brother, a hunchback, but Dante omits these details. The brother killed both Paolo and Francesca when he discovered their affair. This background may explain Dante's sympathetic treatment of the adulterers.

32. Louis Montrose, The Purpose of Playing: Shakespeare and the Cultural Politics of the Elizabethan Theatre, chs. 5, 7 (1996).

33. Ronan McDonald, The Death of the Critic 63 (2007).

with suspicion by a government worried about its ability to maintain control of the population. But works of fiction, especially highbrow fiction, are no longer powerful molders of values or public opinion in our society, and the government is not worried about revolution.

Indifference to the possible effects of literature on behavior has reached a point at which, despite the enormous public concern with child p.o.r.nography, there is no movement to ban Vladimir Nabokov's novel Lolita.34 True, it does not contain graphic s.e.xual descriptions. But it is unclear why that should matter, especially since it is unlikely that detailed description would be the most effective method either of advocating pedophilia or of inducing public tolerance of it. The s.e.xually graphic portions of distinguished h.o.m.os.e.xual novels such as Jean Genet's Our Lady of the Flowers (1943) and Alan Hollinghurst's The Swimming-Pool Library (1989) repel the heteros.e.xual reader. Offensiveness and harm must not be confused. Were there any reason (there is none) to think that literature could turn a heteros.e.xual into either a pedophile or a h.o.m.os.e.xual, there would be pressure to ban books like Lolita and Maurice, neither of which is s.e.xually graphic. The absence of graphic detail would be an aggravating rather than a mitigating factor. Advocates of h.o.m.os.e.xual rights do not garnish their advocacy with graphic descriptions of h.o.m.os.e.xual s.e.x.

The harmlessness of imaginative literature is not a universal law. But in our time and place, works of nonpictorial imaginative literature do not have significant power for good or for evil. Lawyers and judges will not become better people by trolling in literature for ethical insights, and other readers will not become worse people by seeking erotic stimulation in p.o.r.nography.

Defamation by Fiction A credible public statement that impugns a person's character tends to harm him by injuring his reputation and as a result making other people less willing to transact with him, whether personally or commercially.

34. Nabokov finished the novel in 1954, but was unable to find a U.S. publisher for it until 1958. See Elisabeth Ladenson, Dirt for Art's Sake: Books on Trial from Madame Bovary to Lolita, ch. 7 (2007).

*The harm may occur whether the statement is true or false, but of course the normative implications are different. A true statement about a person's character promotes the efficient functioning of the market in reputations. A false one distorts that market, just as fraud distorts markets in goods and services.35 The costs of such distortion are "external," in the terminology of economics: the author or publisher will not bear them unless forced to do so. The law of defamation is intended to force the author and publisher to bear ("internalize") them.

The importance of truth and falsity in the law of defamation makes the use of that law against producers of fiction problematic.36 If the work is indeed one of fiction and is so represented to its readers, it is not intended to be believed. "The question of fiction's referentiality-does fiction make true statements about the world?-is the wrong question, because fiction does not ask us to believe things (in a philosophical sense) but to imagine them (in an artistic sense)."37 But if a fiction is believed, there can be no defense of truth if the author is sued for defamation.

The dilemma is real, but this formulation of it ill.u.s.trates the fallacy of imposing arbitrary definitions on literature. It ignores the factual content of literary works. Even poetry, the most "literary" of literary genres, regularly crosses the line between the fictional and the real. Much of Yeats's poetry, as we know, is at one level about real people, such as Maud Gonne and Robert Gregory, and real events, such as the 1916 Easter Rising. A work of literature cannot be put into a box labeled "fiction-not intended to be believed." Some works of fiction are didactic, or at least were in their origin (think of Swift, Orwell, and C. S. Lewis), and have a slant-political, religious, or ethical-that the author desperately wants the reader to accept. Some are romans a clef-thinly disguised descriptions of rea*For an elaboration of this approach to a.n.a.lyzing reputation, see my book Overcoming Law, ch. 25 (1995).

On the general subject of liability for defamation by fiction, see Mary Frances Prechtel, Comment, "Cla.s.sical Malice: A New Fault Standard for Defamation in Fiction," 55 Ohio State Law Journal 187 (1994).

James Wood, How Fiction Works 237 (2008), citing Brigid Lowe, Victorian Fiction and the Insights of Sympathy (2007). On the baffling philosophical issue of the truth value of works of fiction, see Kenneth L. Walton, Mimesis as Make-Believe: On the Foundations of the Representational Arts, ch. 2 (1990).

people and real events. Even works of fiction that fall into neither of these cla.s.ses are characteristically peopled with the author's acquaintances and relatives,38 often thinly disguised. Some of the major characters in Proust's novel have real-life models (such as Charles Haas for Swann and Robert de Montesquieu for Charlus), though most are composites. Many characters in Joyce's Ulysses are transparently modeled on real people-for example, Buck Mulligan on Oliver St. John Gogarty-and likewise characters in "The Dead."39 Often the models are characterized unflatteringly40-making them potential defamation plaintiffs. The infamous Uriah Heep of David Copper-field was based on Hans Christian Anderson,41 while Julien Sorel in The Red and the Black is a merger of two criminals about whom Stendhal had read newspaper accounts with Stendhal himself.42 The Romantic poet Leigh Hunt appears in Bleak House under the name Harold Skim-pole, that epitome of childish selfishness and irresponsibility who sponges off Mr. Jarndyce.43 Hunt's feelings were badly hurt and d.i.c.kens wrote him a letter of apology.44 Casaubon, the dusty pedant who is the most riveting character in Middlemarch, is transparently modeled on a former patron of George Eliot, Dr. Robert Brabant. Lady Ottoline Morrell was For an account of how one great writer transformed living persons and actual events into subjects of fiction, see Norman Sherry, Conrad's Eastern World (1966) and Conrad's Western World (1971).

See Richard Ellman, "The Backgrounds of 'The Dead,'" In James Joyce, Dubliners: Text, Criticism, and Notes 388 (Robert Scholes and A. Walton Litz eds. 1976).

See William Amos, The Originals: Who's Really Who in Fiction (1985); H. M. Paull, Literary Ethics: A Study in the Growth of the Literary Conscience, ch. 22 (1928); Thomas Mann, The Story of a Novel: The Genesis of Doctor Faustus (1961), esp. pp. 8788, 199, 216, 218; Henry Ordower, "Protecting Defamatory Fiction and Reader-Response Theory with Emphasis on the German Experience," 22 Georgia Journal of International and Comparative Law 249 (1992); Randy P. Nelson, The Almanac of American Letters 181204 (1981).

Doris Alexander, Creating Characters with Charles d.i.c.kens 78 (1991).

Wallace Fowlie, Stendhal 9198 (1969).

Alexander, note 41 above, at 42. When a fictional character is a composite of several living persons-see, for example, Albert Rothenberg, The Emerging G.o.ddess: The Creative Process in Art, Science, and Other Fields 312315, 326327 (1979)-the risk of a defamation suit is much reduced.

Paull, note 40 above, at 246247. But cf. Oxford Companion to English Literature 485 (5th ed., Margaret Drabble ed. 1985).

*savaged by D. H. Lawrence in Women in Love under the name of Hermione Roddice, and Polonius in Hamlet may have been modeled on Lord Burghley.45 Some works of fiction add real persons under their own names to the dramatis personae to lend verisimilitude or for other reasons: think of Napoleon in War and Peace, Martin Luther in Michael Kohlhaas, Booker T. Was.h.i.+ngton in Ragtime, Aharon Appelfeld in Operation Shylock, Machiavelli in The Jew of Malta. A number of real people appear under their proper names in Ulysses. Much literature was originally written as nonfiction and thus is about real people: such works as Boswell's Life of Johnson, Gibbon's Decline and Fall, and much of Orwell's journalism. And Shakespeare? The history (including the Roman) plays are-historical. Only one character in Julius Caesar (the boy Lucius) does not appear in Plutarch's lives of Caesar and Brutus.

Writers of fiction incorporate real people into their work so often that there can be no presumption that any resemblance to a person living or dead is coincidental. This means that real people can be hurt by fiction, but it also means that writers would be seriously inhibited if fear of being sued deterred them from ever incorporating living persons into their work. As we shall see in the next chapter, the modern emphasis on originality as the touchstone of creativity has obscured the extent to which even the greatest literary works borrow extensively, improving what they borrow rather than creating ex nihilo. And sometimes what they borrow are the identifying characteristics of real people.

But what of works of literature that are intended to defame? Louise DeSalvo has noted the frequency with which writers use their fiction as a vehicle for settling scores with their enemies.46 Mark Arnot notes that after Michael Crowley wrote a critical profile of the novelist Michael Crichton, a character named Mick Crowley-like Michael Crowley a Yale graduate and Was.h.i.+ngton political journalist-appeared in Crichton's next novel, depicted as being on trial for sodomizing a two-year-old and hav 45. Ruby V. Redinger, George Eliot: The Emergent Self 134135, 470471 (1975); Louise DeSalvo, Conceived with Malice 164207 (1994); A. L. Rowse, William Shakespeare: A Biography 323 (1963).

46. DeSalvo, note 45 above.

ing "a small p.e.n.i.s."47 Arnot speculates that the "small p.e.n.i.s" touch may have been intended to deter Crowley from suing (and in fact he did not sue) because, if he did, that embarra.s.sing "fact" would become known to people who had not read Crichton's book or, if they had read it, had not connected Mick Crowley with Michael Crowley.48 Dante populated h.e.l.l with his personal enemies under their proper names, albeit only those who had died before 1300, the date of the events depicted in the Divine Comedy. Paolo and Francesca, for example, were real people, Paulo Malatesta and Francesca da Rimini, and although the only name given in the poem is "Francesca" the original readers would have known who she and her lover were. Shakespeare relentlessly libeled the House of York in his history plays. Mac Flecknoe is a savage libel of Dryden's rival Shadwell. The Dunciad is an extended libel of Pope's literary antagonists. Ulysses contains a fair amount of score settling. Hemingway worked into For Whom the Bell Tolls a devastating description of his father. Some of these works defamed persons already dead when the work was written; and the heirs of a defamed person cannot (with immaterial exceptions) sue for defamation. But others defamed living persons.

So even though literature is not centrally concerned with making claims of literal truth, and thus one of the adjustments we make in reading a work as literature rather than as history or sociology is generally to ignore issues of factuality, there is defamation by fiction and let us consider whether the law's efforts to prevent it could harm literary enterprise seriously.

Any case of defamation by fiction, or, what is closely related, invasion of legally protected privacy by fiction,49 presents a clash between two interests-the interest that any person has in not being defamed and an au Arnot, Note, "When Is Fiction Just Fiction? Applying Heightened Threshold Tests to Defamation in Fiction," 76 Fordham Law Review 18531854 (2007).

48. Id. at 1854.

A writer or publisher can commit the tort of invasion of privacy by describing a person in a "false light" or by revealing intimate or embarra.s.sing, though not necessarily defamatory, details of his life. See, for example, Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993). Another branch of the privacy tort allows a person to complain about the use of his name or likeness in advertising without his consent. One case holds that inserting a real person, under his real name, into a work of fiction (like Martin Luther in Michael Kohlhaas) may be tortious on this theory, especially if his name is mentioned in the advertising for the book. Marcinkus v. NAL Publis.h.i.+ng Inc., 522 N.Y.S.2d 1009 (S. Ct. 1987).

*thor's interest, shared by readers, in being allowed to work real people into a fictional work. Weighing these competing interests is difficult. Although the existence and magnitude of a harm to reputation can be approximated by the methods of litigation, literary merit cannot be, especially since the issue is not the merit of the work in its original form but its merit if revised to eliminate the defamation.

The Supreme Court, in the name of the First Amendment, has limited the liability of authors and publishers for defamation of public figures by requiring proof that the defendant (the author, the publisher, or both) knew that the offensive characteristic that the work attributes to the public figure is false, or was indifferent to whether it is false or not.50 But this doctrine, so protective of free speech, is inapplicable to cases in which the people defamed are private rather than public figures; a private figure need prove only negligent falsehood.51 If a trait that the writer attaches to a fictional character so identifies the person on whom the character is based to those who know (or know of) him that readers will a.s.sume the fictional character is he,52 the rote disclaimer-"any resemblance of the characters in this book to persons living or dead is purely coincidental"- will probably not save the author's skin.53 It is so often false that it is no longer widely believed, if it ever was. Discrepancies between the fictional character and the real person will be ascribed not to coincidence but to the novelist's having made changes for the sake of his art or to ward off a libel suit.

But the likelihood that a work of fiction will cause a serious injury to a person's reputation is less than if the work is ostensibly factual, while the danger of impeding literary creativity is significant-and for the further reason that the falsity of the ascription may be essential to the author's purposes. Remember that authors aim at probability or plausibility rather than historical accuracy. Like the chronicler of history, the author of fiction is concerned with particular lives and concrete incidents; but unlike the chronicler he is concerned with the representative life and the New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

52. Peter Mack, "Thou Art Not He nor She: Authors' Disclaimers and Att.i.tudes to Fiction," Times Literary Supplement, Dec. 15, 1995, p. 12.