Thy Neighbor's Wife (50 page)

The Burger opinion, which commanded headlines in newspapers across the nation, was applauded most enthusiastically by congressmen representing conservative districts, and by clergymen and such crusading citizens as Charles Keating, who declared in a statement published in the
National Decency Reporter
: “For more than fifteen years, since I started CDL, the pornographers have run rough shod over the American public, engulfing this nation in a tidal wave of filth and turning her along the path of moral corruption and decay. Their reason was money. Big money. Billions of dollars. And for money they were willing to sell their country, their fellow-citizens, and our children into the bondage of sexual debauchery. These gutter merchants wrapped their soiled merchandise in the flag of the United States, and cowered behind the Constitution. They tried to use that great document which freed men’s minds and spirits as a device to enslave the men and debase the women of America. Those sordid years are now behind us. One day soon we will look back with shock and disbelief at the depths to which we allowed ourselves to be dragged in the name of ‘freedom.’” But, Keating’s editorial continued, “now it is our turn. And your turn. The decent people of America, backed by the United States Supreme
Court, are going to wage a holy, yes, a
holy
war against the merchants of obscenity. From this day forward I will not rest, and no one connected with CDL will rest, until every pornographer in America is out of business, in jail, or both.”

Among those who disagreed with Burger’s ruling were four of his colleagues on the Court—Douglas, Stewart, Brennan, Marshall—and several metropolitan newspaper publishers who had previously supported “antismut” clean-up campaigns, having failed to recognize a direct connection between
their
First Amendment rights and the rights of sexual expressionists. The Burger ruling, the New York
Times
conceded on its editorial page, gives “license to local censors. It may, as Justice Douglas fears, unleash ‘raids on libraries.’ In the long run it will make every local community and every state the arbiter of acceptability, thereby adjusting all sex-related literary, artistic and entertainment production to the lowest common denominator of toleration. Police-court morality will have a heyday.”

Within days of the Burger ruling, state officials in Utah announced that
Last Tango in Paris
, which had been scheduled to open in Salt Lake City, would be prohibited; and in Hollywood, two studios that had been negotiating to film Hubert Selby’s book about working-class homosexuals,
Last Exit to Brooklyn
, abruptly abandoned the project. “We don’t want to produce law suits, we want to produce pictures,” explained one studio executive. Jack Valenti, president of the Motion Picture Association of America, regretted that the new Court ruling “can create fifty or more fragmented opinions as to what constitutes obscenity,” while other industry spokesmen predicted that the major moviemakers, and certainly everyone working in television, will now become less “adult” and more queasy when dealing with censorable subjects.

The upcoming covers of
Playboy, Screw
, and other sex-oriented publications were quickly modified by their art directors; and in porno bookshops across the country, customers lined up to buy great quantities of merchandise because they feared that at any moment it would be eternally banished from the shelves. “The immediate effect of this decision,” Bob Guccione of
Penthouse
said, “will be to drive a multibillion-dollar industry underground—and that means graft and crime in the real sense. It’s the same thing as a return to Prohibition.” Linda Lovelace, the star of
Deep Throat
, was quoted in the press as saying: “The last person that started censorship was Adolf Hitler, and the next thing they’ll be doing is knocking on your door and taking away your TV and your radio.”

Among the novelists who expressed concern over the Burger opinion—a group that included Kurt Vonnegut, Jr., Truman Capote, and John Updike—Joyce Carol Gates saw the ruling as symptomatic of a militant society that was partly frustrated because it could no longer release its aggressions in Vietnam. “When America is not fighting a war,” she explained, “the puritanical desire to punish people has to be let out at home.”

William Hamling read avidly the responses of other people to the issue of obscenity; but throughout the summer of 1973, as his case moved closer in time, he wondered how specifically the new law would affect him when he took Marvin Miller’s place in the great hall of justice in Washington. It had been his hope, since he had initially been sentenced by a San Diego judge on the basis of “national” instead of “community” standards—and since there were authoritative surveys showing that San Diego’s standards were more liberal sexually than those of the nation as a whole—that he would have at least gained a retrial due to the
Miller
interpretation. But a petition for rehearing during 1973 and 1974 by Hamling’s attorneys failed to win either a new trial or a reduction of the judge’s severe sentence of four years and $87,000 in fines.

And so finally on April 15, 1974, on a windy Monday morning in Washington, together with his wife and his daughter, William Hamling climbed the white marble steps of the Supreme Court building toward the main entrance leading to the chamber where the nine eminent men would ponder the case of
Hamling
v.
United States of America
.

A
WAITING THE
arrival of the justices, William Hamling sat with his wife and daughter on a mahogany pew in the sixth row of the ornate and crowded sanctuary of the Supreme Court, looking up at the high coffered ceiling, the marbled columns, the classical statuary; and he felt, as he had decades ago during the High Masses of his Chicago boyhood, a mingling of anxiety and awe, a trembling sense of grandeur. On this morning Hamling’s appeal would be heard, his destiny debated. But whether he won or lost, his name and his case,
Hamling
, v.
United States of America
, would everlastingly be listed in legal texts, the doomsday books of American jurisprudence. He remained hopeful about the outcome of this hearing. He believed that the lawyer who represented him, a diminutive and crippled man that he could barely see at the counselors’ table near the front of the room, was the nation’s most persuasive defender of the indefinable crime of which he was accused.

Hamling’s wife, however, did not share his optimism. To Frances Hamling, a strong-willed and discerning woman visiting Washington for the first time, this trip was a meaningless excursion, an interesting spectacle to be observed by the hundreds of tourists and law students in the room but, for her husband, a pro forma affair that would doubtless affirm the conviction already levied against him by lesser judges. Not that she considered the
Supreme Court justices to be superior; they, too, were ordinary men under their magisterial robes, political appointees, biased arbitrators who had already predetermined her husband’s fate, even though they had yet to appear on the raised burnished bench that loomed before her like an altar.

As a staunchly supportive wife of a much-prosecuted publisher, and as a woman who had quietly suffered through the many trials of this man who had married her as a widow in 1948, and had lovingly adopted her four young children, she deeply resented the presumption of other men to pass judgment on his moral character; and during the last year, her view of the nation’s enforcers of law had become increasingly skeptical and cynical. The United States Attorney General, John N. Mitchell, who had personally had the grand jury indict her husband for distributing the Illustrated Report, was himself now indicted for his role in the Watergate scandal. Vice-President Spiro Agnew, who had seemed so sanctimonious in his condemnation of the Report in 1971, had resigned from office under pressure, following charges of graft and tax evasion. And the nation’s peerless moral hypocrite, President Nixon, was now desperately cornered in his Oval Office because of his Watergate deceptions, while news reports on radio and television each day speculated on his impeachment or imprisonment.

Still, she noticed while touring the capital earlier in the week that the huge and cumbersome federal bureaucracy continued to endure and to wield its costly ways upon the tax-paying public, which was the most appalling impression she had of Washington: the sheer size of its bureaucracy, the endless gray buildings housing multitudes of employees, the traffic jams of stately limousines and government sedans transporting hither and yon untold numbers of supernumeraries and factotums who were padding the payroll and undoubtedly contributing nothing to the efficient service of American citizens.

The same seemed to be true within the Supreme Court itself. Everywhere in the building, as she and her husband walked through the corridors, they saw rooms crowded with clerks,
guards, receptionists, secretaries, bookkeepers; but after arriving at the marshal’s office, where Hamling’s attorney had arranged for their special seating in the Court chamber, they were dismayed to learn that the marshal’s staff had erroneously left their names off the list. And so instead of being assigned to sit near the front with a full view of the proceedings, they were escorted to a row in the rear half of the chamber, greatly irritating her husband, who, having already invested $400,000 in this case, believed that the courtesy of the Court should have guaranteed him on this special occasion a ringside seat to the final round of the most costly legal battle of his life.

She was also displeased by the officious manner in which the guards had frisked her, together with her daughter and husband, prior to admitting them to the chamber. First they insisted that she remove the new yellow coat that she had bought for this occasion and check it in the cloakroom; then they opened and searched through her leather handbag, and, after discovering that it contained a camera, they sternly reminded her that picture taking was disallowed and confiscated the camera with the instruction that she reclaim it after the hearing.

In the chamber, she sat close to her husband, trying to repress the anxiety she felt about his future. Four years in prison and $87,000 in fines was hardly a matter of casual contemplation. Since nobody was supposed to speak or even whisper in the chamber, she diverted herself by glancing around at the room’s opulent interior, the impressive bone-white columns and red velvet draperies that formed the background behind the polished judicial bench and high black leather chairs. A gold clock hung down from between two pillars, signaling that it was 9:57
A.M.
—a few minutes before the justices’ scheduled arrival. Along the upper edge of the front of the room, close to the top of the forty-four-foot ceiling, Frances noticed an interesting, voluptuous section of Classical art: It was a golden beige marble frieze that extended across the width of the room and showed about twenty nude and seminude men, women, and children gathered in various poses. The figures symbolized the embodiment of human wis
dom and truth, righteousness, and virtue; but the bodies to her could as easily have represented an assemblage of Roman hedonists or orgiasts, and it struck her as ironic that such a scene should be hovering over the heads of the jurists who would be questioning her husband’s use of illustrations in the Presidential Report on Obscenity and Pornography.

Abruptly, her musings were interrupted by the sharp sound of the marshal’s gavel. As everyone in the room quickly stood, the Court crier began to chant: “Oyez! Oyez! Oyez! All persons having business before the Honorable the Supreme Court of the United States are admonished to draw near and give their attention….” Suddenly, with a theatrical flourish, the red draperies parted and the nine black-robed men appeared between the openings in the velvet, stepped forward, and took their places, as the crier continued: “The Court is now sitting. God save the United States and this Honorable Court!”

Seated in the center, his solid florid face topped by a carefully combed head of soft lustrous white hair, was the sixty-six-year-old Chief Justice, Warren Burger. To his right, wizened and small-boned, was the most senior of the associate justices, William O. Douglas, seventy-six, a member of the Court for thirty-five years. To Burger’s left was the bespectacled, balding, seventy-four-year-old William Brennan, an Eisenhower appointee in 1956 and one of six Catholics to serve on the Court during its nearly two-hundred-year history. Extending out from these aging veterans sat the other justices—a rather chunky, friendly faced midwesterner of fifty-nine named Potter Stewart; the strong-jawed fifty-seven-year-old Byron (Whizzer) White, a onetime Rhodes scholar and star halfback who now seemed grim under a high-domed head shaped like an old-style leather football helmet; and the broad-chested, sixty-six-year-old mustachioed Thurgood Marshall, the first black man ever to serve on the Court. On the outer edge of the bench were the Nixon appointees: the tidy, horn-rimmed, thin-lipped Harry Blackmun, sixty-five; the lean, somewhat frail-looking sixty-six-year-old Virginian, Lewis Powell; and the youngest member of the Court, forty-nine-year-old
William H. Rehnquist, a tall and hefty cool-eyed conservative with slick dark hair and long razor-edged sideburns.

In his commanding voice, Chief Justice Burger announced that the first of the two cases to be heard on this morning would be the one involving the Hollywood film
Carnal Knowledge
, which had been declared obscene in the rural city of Albany, Georgia. Frances Hamling relaxed, knowing that since the rival lawyers in the
Carnal Knowledge
case would each receive a minimum half hour to express their differing views, her husband’s hearing would not be heard for at least another hour; and so she listened calmly and unemotionally as
Carnal Knowledge
’s legal representative, the dapper and prominent Louis Nizer, stood behind the podium and declared that the prosecution of the film was an incredible miscarriage of justice—an opinion that had already been expressed repeatedly by editorial writers around the country. Since there had been no hard-core sex scenes in the film, the arrest and conviction of the Georgia theater manager for showing it had astonished the Hollywood industry, the media, and most members of the legal profession. But because of the Supreme Court’s “community standards” rule in its recent five-to-four
Miller
opinion, even a mildly erotic intellectual film could be legally challenged by a faction of prudish citizens in a small town—which is what had happened in Albany, and which was later affirmed by the highest court in Georgia, a state which restricted sexual expression between consenting adults more severely than it did the sodomitical acts of Georgia residents upon farm animals.

However, as Nizer dramatically emphasized before the Supreme Court bench,
Carnal Knowledge
was not a sexually explicit film, was not patently offensive, was not erotically arousing, nor did it show genital contact between the actors on the screen. It was, on the contrary, a serious and subtle work that should have been legally acceptable in any community in America; and it was also an artistic achievement by one of the nation’s most gifted directors, Mike Nichols, an Academy Award winner. As Nizer continued to praise the film, Frances Hamling looked
around the room to see if there were any famous Hollywood faces in the crowd, such as the stars of the film, Jack Nicholson and Ann-Margret. But she recognized no one; and since only attorneys are permitted to speak before the Supreme Court, there would have been no necessity for actors to be present. She did recognize in the crowd the president of the Motion Picture Association of America, Jack Valenti; and she also noticed that Valenti had managed to procure for himself a seat near the front.

As Nizer continued to speak, pausing occasionally to answer a brief question from one of the justices, Frances glanced over at her blond daughter, a college sophomore at San Diego State, who was listening intently. Deborah Hamling, the second child born of Frances’ second marriage, was studying to become a nurse. Next to Deborah sat a dark-eyed young woman of nineteen who had dropped out of Bennington—Judy Fleishman, the youngest of the three daughters of the Hamling publishing company’s attorney, Stanley Fleishman. Fleishman, who sat at the counselors’ table, had previously appeared more than a half-dozen times before the United States Supreme Court; and it was Fleishman who had directed the successful legal strategy of the
Redrup
v.
New York
case that involved the two Hamling paperback novels purchased by a plainclothes detective in Times Square.

At fifty-four, Stanley Fleishman was recognized within his profession as a brilliant and shamelessly committed advocate of the rights of American eroticists and libertines; and after more than twenty years of arguing obscenity cases in countless courtrooms—among his chastised clientele were the exhibitors of
Deep Throat
, the publishers of Henry Miller novels, the distributors of Diane Webber photographs, and the owners of Sandstone Retreat-Fleishman took pride in the fact that none of his defendants had ever served hard time in prison.

The Sandstone litigation had been initiated by a few Los Angeles County officials and a citizens’ group after John Williamson had opened his nudist estate to club membership in 1970, a
decision that the prosecution charged was in violation of an antinudity ordinance first established in Los Angeles during the 1930s. But after much legal maneuvering and several hearings, Fleishman finally convinced the Intermediate Appellate Court of California that the county ordinance was unconstitutional—it was an invasion of privacy, an infringement upon the Sandstone members’ legal rights of free association and assembly; and Sandstone was permitted to continue its operation without further interference.

Fleishman’s defense in 1965 of a nude photograph of Diane Webber, in addition to the pictures of other California models who had been featured in magazines owned by Los Angeles publisher Milton Luros, was a more expensive trial than Sandstone’s because the government insisted that the case be argued in Iowa, having proven that some of Luros’ magazines and erotic paperbacks had been mailed there; and the trial in Sioux City, which lasted three months, was heard by a cranky judge and a jury that consisted almost entirely of farmers’ wives. Since the trial coincided with the harvesting season, nearly all the potential male jurors succeeded in avoiding jury duty; and the ten women that Fleishman faced seemed to be a joyless gathering, blushing or frowning at his every reference to sex—and, not surprisingly, they convicted Luros of obscenity at the conclusion of the trial. But Fleishman immediately carried the case up to the Court of Appeals for the Eighth Circuit and succeeded in having the verdict against Luros overturned.

Stanley Fleishman was not a man to be discouraged by temporary setbacks. Though his small body had been ravaged and twisted by polio since childhood, he moved determinedly, with the aid of braces and crutches, into courtrooms throughout the country, overcoming handicaps that only he refused to recognize. Born in 1920 on New York’s Lower East Side of immigrant Russian-Jewish parents, he was transported around the neighborhood for years by his mother in an oversized baby carriage. At five, he was enrolled in a home for crippled children in Queens, where his parents moved so that they could regularly and conveniently
visit him. At the institution, despite the full-length cast that confined his body, he learned to stand and walk with crutches. He remained institutionalized for nearly ten years with forty other handicapped children and adolescents, receiving his grammar-school education there.