When I was growing up, I read a children’s book called The Arabian Nights, an innocent version of the Islamic classic One Thousand and One Nights. Perhaps surprisingly, a group of Egyptian lawyers has recently called for a ban of a newly-released version of the Nights, on the grounds that it is “obscene” and could lead people to “vice and sin”. At the same time, another Egyptian group has called for a ban on the controversial novel Azazeel (Beelzebub) by Youssef Ziedan, which won the 2009 International Prize for Arabic Fiction. And, irony of ironies, just in time for Bloomsday, a manga comic book version of James Joyce’s novel Ulysses had almost been banned from the Apple App Store for obscene images, but Apple then relented, and reversed its earlier decision to remove panels containing nude images, though it still continues to reject less famous apps.

These examples of censorship of literature on the grounds of obscenity are simply the latest instances of a long and dishonourable tradition. In an earlier post, I considered whether Lady Chatterley’s Lover is obscene. In Akdas v Turkey 41056/04 (15 February 2010) (judgment in French; press release in English), the European Court of Human Rights was faced with a similar question earlier this year, when it had to consider whether a Turkish ban on Guillaume Apollinaire’s Les Onze Mille Verges (or, The Eleven Thousand Rods) was consistent with Article 10 of the European Convention on Human Rights. It held that the ban infringed Article 10 (see see ECHR Blog | Guardian | Inforrm | Strasbourg Observers). However, the reasoning by which it reached this eminently sensible conclusion could have profound consequences for states attempting to rely on “the protection of morals” in Article 10(2) to justify restrictions on speech otherwise protected by Article 10(1).

In Handyside v UK 5493/72, [1976] ECHR 5, (1976) 1 EHRR 737 (7 December 1976), the first case on Article 10, the Court took a broad view of what was protected by Article 10(1), but when it came to whether a restiction could be said, in terms of Article 10(2) to be “necessary … for the protection of morals”, the Court held that there is no “uniform European conception of morals” (para 48), with the result that States were afforded quite a generous margain of appreciation to determine in the first instance whether a restriction was indeed necessary for the protection of morals. Subsequent cases have taken a similar approach, but Akdas v Turkey marks a signficant departure from this model.

Paying due obeisance to the Handyside approach, the Court nevertheless tempered it by observing that more than a century had passed since the first publication of the work in France, that it had thereafter been published in numerous countries in various languages, and it that had been inducted into the prestigious Bibliothèque de la Pléiade, now an imprint of Gallimard, a dozen years before being seized in Turkey. As a consequence, the Court held that reliance upon the margin of appreciation would not avail Turkey in this case (in Inforrm’s Blog translation):

[30] … the recognition given to the cultural, historical and religious singularities of member states of the Council of Europe cannot go so far as to prevent public access in a particular language, in this case Turkish, to a work which forms part of the European cultural heritage.

This concept of the European cultural heritage has the potential to act as a signficant check upon over-reliance on the morals exceptoin in Article 10(2). It is certainly a long way from the Handyside assertion that there is no uniform European conception of morals. As Maris Burbergs on Strasbourg Observers points out:

the Court states that the acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage. Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need.

Antoine Buyse on ECHR Blog goes further:

Thus, apparently, what has become part of the “canon of art” can no longer be prohibited within Europe. One may wonder what happens in cases where such works truly are offensive to large groups of people and also one may question who decides when a work becomes elevated to this European literary Olympus. Here the Court becomes an interesting player in the ongoing discussion on what is Europe’s common heritage!

Similarly, Inforrm’s Blog says that this conclusion has wide ranging implications:

Many readers of Eleven Thousand Rods will find the contents of the book highly offensive – as indeed did the French public at the time of its publication and for many decades later. When the book was published in England in the 1970s whole chapters were deleted and replaced by short descriptions of the violent acts which were described. The idea that, four decades later, any restriction on the publication anywhere within the Council of Europe States, whatever local sensibilities, is at first sight very surprising. The notion of the “European literary heritage” is one which lacks clear boundaries – certainly in countries which do not have the benefit of the “Pléiade” collection. The judgment does, however, show that contrary to the views of some English critics, the Court of Human Rights continues to take a robust view in “traditional freedom of expression” areas such as obscenity.

One way to test this rather fluid conception of the European literary heritage is to apply it to not just to European books like The Eleven Thousand Rods, Ulysses or Lady Chatterly’s Lover, but to non-European classics such as The One Thousand and One Nights or to important recent publications like Azazeel. If there is no substantive or qualitative difference between them, then the pressure will be on the Court to expand its notion of the European literary heritage, and to narrow the margin of appreciation afforded to member states when the seek to rely on the morals exception. This would be no bad thing.

No, at least so far as the law is concerned. But after its initial publication in 1928, it was not until the 1960s that litigation in the US and the UK allowed it to become generally available. An op-ed by Fred Kaplan in the today’s New York Times, entitled The Day Obscenity Became Art, (with added links) tells us that

today is the 50th anniversary of the court ruling that overturned America’s obscenity laws, setting off an explosion of free speech — … The historic case began on May 15, 1959, when Barney Rosset, the publisher of Grove Press, sued the Post Office for confiscating copies of the uncensored version of D. H. Lawrence’s 1928 novel “Lady Chatterley’s Lover,” which had long been banned for its graphic sex scenes.

… Mr. Rosset hired a lawyer named Charles Rembar, … [who] presented “Lady Chatterley” as a novel of ideas that inveighed against sex without love, the mechanization of industrial life and morbid hypocrisy. … On July 21, 1959, Judge Bryan ruled in favor of Grove Press and ordered the Post Office to lift all restrictions on sending copies of “Lady Chatterley’s Lover” through the mail.

That case was Grove Press v Christenberry 175 F.Supp. 488 (S.D.N.Y., 1959); it was upheld on appeal (at 276 F.2d 433 (2nd Cir., 1960) (Justitia | OpenJurist); and Robert McHenry on Britannica blog has also entertainingly marked the anniversary.

Rembar wrote about his experiences defending this book and other controversial novels in The end of obscenity; the trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill (New York, Random House, 1968): Tropic of Cancer reached the Supreme Court in Grove Press v Gerstein 378 US 577 (1964), and Fanny Hill reached the same court in Memoirs v Massachusetts 383 US 413 (1966).

When these cases were decided, the leading US Supreme Court decision on obscenity was the relatively conservative Roth v US 354 US 476 (1957), and these cases were decided within its confines: the value of Grove Press v Christenberry was that it demonstrated that the Roth standard did not preclude First Amendment protection to obscene speech, at least where that speech embodied ideas of redeeming social importance. It laid the foundations for cases like Grove Press v Gerstein, Jacobellis v Ohio 378 US 184 (1964) and Memoirs v Massachusetts. These, in turn, led to the far more progressive stance taken by the Supreme Court in Miller v California 413 US 15 (1973), which held that a work is obscene and can be regulated by a State where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. The plaudits probably belong to all of these cases, and not merely to Grove Press v Christenberry, but it is still an important and entertaining case for all that.

Moreover, Lady Chatterley’s Lover had also been the basis for a contemporary challenge to the UK’s Obscene Publications Act, 1959. It is an infamous trial, from the prosecution’s notorious and patronising rhetorical demand of the jury whether it was something they would want their wives or servants to read, to the cast of literary worthies who testified to the novel’s worth, to the jury’s acquittal on 2 November 1960. The following day, Penguin sold its entire first print run of 200,000 copies, and sold 2 million copies in six weeks. The Times has a wonderful collection of archive material about the case, the full papers from the trial are now available at Bristol University Library; Penguin have recently re-issued their classic account of the trial; and the BBC have made a marvellous drama (BBC | imdb | Times) of two fictional jurors’ experience.

These were undoubtedly important developments, but I can’t help but fear that the days of such trials might come back again.

At the University of Washington and Lee’s branch of the American Constitution Society event last Thursday, I heard Rodney Smolla (Dean of that university’s First Amendment issues: the speech rights of high school students (on which contrast here and here), and First Amendment law on obscenity.

High School Speech
(Insert High School Musical joke to taste here).

The first case he discussed was Morse v Frederick 551 US __ (2007) (Justice Talking (NPR) | oyez | wikipedia), in which the Supreme Court had to decide whether a banner bearing the slogan “Bong Hits 4 Jesus” at a school outing to watch the Olympic torch run through town (though not on school property) got First Amendment protection. Roberts CJ held that, because schools may take steps to safeguard students from speech that can reasonably be regarded as encouraging illegal drug use, the school did not violate the First Amendment by confiscating the banner and suspending the student.

Dean Smolla argued that there were three key elements to Roberts CJ’s reasoning. Read the rest of this entry »