In December 1968 while on a trip to the United States I bought paperback copies of Gore Vidal’s Myra Breckinridge and Sanford Friedman’s Totempole, the former being the best-selling novel at the time in America. With a large number of other books I posted these back to myself. The Customs Department opened the parcel, seized the books and informed me they were confiscated under Section 4A of the Customs Act. Thirteen months later a decision of Justice Levine in a District Court returned Totempole to me and Myra Breckinridge to the Customs Department.
In retrospect I embarked on this case almost by accident. It appeared that the revised Customs Act made a court challenge possible, and further that a challenge through the district court would be cheap and avoid the problem of costs. It also appeared that the Council for Civil Liberties would assist me. I therefore proceeded to sue for return of my books, an appropriate action to take against a government which talks so much about the sanctity of private ownership.
I pass over the preliminary skirmishes which are of interest only in showing that justice is not only blind but also extremely slow. After a number of letters and a motion for expedition by my lawyers, the case of Altman v. Collector of Customs was finally listed to be heard before Justice Levine last December, and was promptly adjourned so that the judge might read the books. With some relief I noted that this judge had upheld an appeal by Oz Magazine some years ago against a conviction for obscenity.
The hearing took place in the Queens Square Courts, in a small cell-like room with pea-soup green walls and a large fan. Present were the judge, his clerk, lawyers representing myself and the Customs Dept., several reporters, a middle-aged woman and daughter (the Minister’s?, the Collector of Customs’?) and several men from the Department with short-cropped hair and large brief cases seemingly filled with copies of the books in question.
The Customs lawyer began the case with an extraordinarily dull discussion of Australian (and one New Zealand) decisions relating to obscenity. Out of this it emerged: 1) That the Customs Prohibited Imports Regulations forbids the entry of anything ‘blasphemous, indecent or obscene or which unduly emphasises matters of sex, horror, violence and crime or is likely to encourage depravity’; 2) That obscenity is defined by what an average ‘decent’ member of the community would find obscene; 3) That in determining this a judge is his own arbiter of community standards. As an American Supreme Court Justice once said: ‘I can’t define obscenity but I know it when I see it.’
The preliminaries over he moved to attack the books themselves, quoting page references with some relish. The Customs officials snapped to attention and followed this part in their own copies; I unfortunately did not have the books before me and the lawyer was discreet enough not to read any of the offending passages to the court.
Myra Breckinridge is seemingly dirty from page 3 on, though it reaches a ‘highlight of offensiveness’ in chapter 29. (This describes the anal rape of a young man by Myra, with some aid from technology. It is this scene that the producer of the forthcoming film version has said will be handled ‘with perfect taste’.) It would be tedious to run through his arguments, which consisted largely of adjectival judgments, except in so far as they revealed:
1) Obscenity can only be defined in subjective terms—‘dirt for dirt’s sake’, ‘crude allusions’, etc.
2) An implicit class bias in the Customs case—‘a cheap edition designed for distribution to the public at large’.
3) That argument for unorthodox sexual views is apparently seen as obscene—to ‘exalt’ bisexuality is ‘offensive to the Australian community’.
The lawyer did concede that Myra was satirical. However, he added, the satire would be lost on any decent minded member of the community.
Of Totempole there was less to say: indeed he had to wade through 370 pages to discover real dirt. (The Customs men skipped the first six sections immediately.) Here there was ‘unnecessary detail’ and the book was therefore obscene. For those who may buy the book, now it’s been released, other good pages are seemingly 173, 217, 241, and 402.
In his reply my counsel was limited by the strict rules of Australian evidence procedure. No reviews could be quoted—this he got round by ‘adopting’ reviews as his own views. No hard evidence of ‘community standards’ can be produced. And as part of the latter restriction he was forbidden to produce the expurgated edition of Myra B., available in Australia, which contains some of the passages referred to by the defendant.
Thus although he could point to changes in community standards essentially this matter was for the judge to determine. In the end the case boiled down to one lawyer standing up and calling two books dirty and the other standing up and denying it. My lawyer, having the advantage of reviews supplied by the two authors, was able to argue his side with considerably more elegance. Meanwhile the judge made what seemed on the whole helpful interjections; he seemed to have appreciated chapter 29 more than the Customs Department.
The arguments concluded, the Judge decided he would re-read the books in light of the discussion. Six weeks later he announced his decision.
Totempole he saw as a ‘sensitive’ book and one that does not offend community standards. Myra B., on the other hand, was objectionable—‘the author has spelled out, as it were, physical details as to permit the reader to form only mental pictures which the words “filthy, bawdy, lewd and disgusting” aptly describe.’ The final outcome was thus a draw, although some of the press regarded it as a victory against censorship—‘an historic event’, wrote Noel Pratt in The Australian.
What are the implications of this case? First I believe Judge Levine acted as he had to within the confines of the law; that is, if one has a law banning obscenity and if this is determined by reference to ‘community standards’ with no room for questions of literary or social importance, his decision was correct. (Ironically Vidal’s is, I believe, a far more significant book.) That it is possible to get some books through by a court challenge does not answer the far broader objections to censorship.
Moreover I am doubtful whether much is gained by replacing the judgment of the minister by that of a judge. In practical terms the average judge is probably no more liberal than the average minister. In terms of principle it seems to me equally obnoxious that any official should determine what we can and cannot read.
Is there anything further to be said about censorship in Australia? Perhaps one thing only, and this is that the general assumption that our censorship is ‘about sex’ is wrong, or at least too simple. Censorship in Australia has strong political implications and this has increased as the use of obscenity as a political weapon has increased.
Under the guise of preventing obscenity we in fact ban material of a political nature—the clearest example is perhaps Norman Mailer’s Why Are We In Vietnam?, a book in which Mailer suggests that the war is an outgrowth of the obscenity of American society, and uses the appropriate terms. Other examples would be LeRoi Jones’s System of Dante’s Hell and William Burroughs’s Naked Lunch, which has a certain explicit political content as in its depiction of democracy as cancer:
The end result of complete cellular representation is cancer. Democracy is cancerous, and bureaus are its cancer. A bureau takes root anywhere in the state, turns malignant like the narcotics bureau, and grows and grows, always reproducing more of its own kind, until it chokes the host if not controlled or exorcised….Bureaucracy is as wrong as a cancer, a turning away from the human evolutionary direction of infinite potentials and differentiation and independent spontaneous action to the complete parasitism of a virus.
Further examples are the very large number of underground periodicals (and sometimes above ground—e.g. Playboy) denied access to Australia either because of partial obscenity or because they depict politics in obscene terms.
As political and cultural radicalism increasingly coalesce, and radicalism is expressed in attacks on traditional moral virtues, censorship acts not only to preserve ‘good taste’, but also to exclude radical critiques. Geographic isolation and our peculiar brand of lower middle class puritanism have made us very resistant to cultural radicalism, and any liberal belief in personal freedom appears weak in comparison. If Australia has an essentially liberal political culture ours is the liberalism of Hancock’s milch cow rather than John Stuart Mill.
The Customs Minister (Mr. Chipp) has made this clear. However objectionable censorship may be as a philosophical principle, he has said, the public demands it, and what the public wants the public gets. Tocqueville would have understood completely.
