The Trials of Portnoy

by Patrick Mullins

  This was an important and overdue refining of the Hicklin test. Walsh had foreshadowed it in 1963 when he argued that actual corruption or depravity caused by a publication should be proven, not accepted as a potentiality of a publication.23 But this standard would not stand long. Charges against the magazines Censor and Obscenity reached the High Court in 1968 and resulted in the ruling that there was no onus on the prosecution to prove the Hicklin test for corruption and depravity: ‘It is assumed incontrovertibly by the common law that obscene writings do deprave and corrupt morals, by causing dirty-mindedness, by creating or pandering to a taste for the obscene.’24

  There was change, however, at the state level. In May 1965, in response to controversy caused by the sentences given to the Oz team, the state Liberal Party opposition leader, Robin Askin, promised to introduce trial by jury in obscenity cases, should his party win that year’s election. In 1967, it followed through, replacing the ‘lottery of the magistrate’ that had so markedly affected the outcomes of the Oz case. As new New South Wales chief secretary Eric Willis was to say, ‘Matters relating to what is acceptable or otherwise in the community should be decided by a representative of the community.’25

  Willis became another notable figure in the censorship fights.26 Then aged forty-five, he had been in politics for more than fifteen years and, in that time, developed a reputation for mirthless efficiency. Like Rylah, his appearance — lacquered dark hair, a blue, clean-shaven jaw, heavy glasses, and narrow eyes — seemed to echo his qualities: an absolute professional who was diligent, stern, sharp, and somewhat cold. Deputy leader to Askin, Willis ruminated publicly about the ‘serious conflict of principles’ that censorship posed for ‘true liberals’ like himself:

  There is the thought in the minds of all responsible people that they must ever be anxious to remove any influence in the community that is liable to corrupt moral standards, particularly those of the more youthful members of the community. But at the same time there is a revulsion on the part of people reared in the British tradition against any curtailment of our inherent freedom … Somewhere between the two extremes of censorship and complete license, there is a point that the vast majority of the members of the public would regard as a satisfactory medium.27

  But, over and over again, Willis established himself as another bulwark against liberalisation of censorship. Simultaneous to his introduction of jury trials in obscenity cases, he increased the penalties for those found to have published and sold obscene and indecent works, and he tried to stamp out the small magazines of the alternative presses by restricting the circumstances in which they could be sold.28 Citing polling that showed continued majority community support for censorship, disavowing his own agency in censorship decisions, and spurred by the support of the League of Welfare and Decency, Willis proclaimed that he was doing his best to ‘drive the smut pedlars from the street’.29

  What most confirmed Willis’s wowserish reputation were his attempts to stop performances of the third one-act instalment (titled ‘Motel’) of the play America Hurrah. The play had run for five weeks without incident at the New Theatre on Peter Street, Sydney, but one complaint from a grandmother disturbed by the profanities written on the walls of the set prompted a massive response. Police warned the cast and crew that they would serve summonses if performances went on unamended. Willis agreed, threatening prosecution under the Theatre and Public Halls Act. The only people who would object to this, he told the ABC, ‘would be hippies and the lunatic fringe’. He scoffed at suggestions that he was impinging on cultural freedom: ‘Just because pornography is on the stage, it is not culture.’30

  The theatre agreed to rework the play, but defenders mobilised to organise to stage a free performance of the original version, hoping that they would evade the act by not charging for admission.31 Willis responded by threatening to prosecute under the Vagrancy Act, which prohibited the writing, drawing, or utterance of obscene language in a public place. The organisers — including Russell Drysdale, Cyril Pearl, Tony Blackshield, Harry Seidler, and the youthful South Australian Labor leader Don Dunstan — were not cowed. Seidler told the press that prosecution ‘would be worth it’.

  Around 3,000 people showed up at the 500-seat theatre, with police mingling not-so-anonymously among them. The performance proceeded: two actors dressed as dolls simulated sex, wrecked the set, and drew on the walls the words fuck, shit, and a big cock up my juicy cunt. As police all over the theatre leapt to their feet, the actors jumped into the audience and made for the side doors. At this, play director John Trasker recalled, ‘pandemonium broke out’. Audience members obstructed the police, and bought time for the actors to change out of their costumes and re-enter the theatre, where they were lost in the dispersing audience. Moreover, when police tried to seize the partitions on the set as proof that the obscenities had been written, the audience surged onto the stage and shredded them.32

  Plays would remain contentious. Further performances of America Hurrah were curtailed. The one-act play Norm and Ahmed, by Australian playwright Alex Buzo, attracted police attention for the use of fucking in the script, and fines were levied on actors in performances in Victoria and Queensland. Perhaps most famously of all, The Boys in the Band — about a group of gay men in New York gathering for a birthday party — played for months in Sydney without incident. But when it moved to Melbourne in 1969, police decided that the line ‘Who do I have to fuck to get a drink around here?’ warranted prosecution, and successfully charged and prosecuted three of the principal actors.

  ***

  Another of the most committed and pivotal protagonists in the censorship fights was Wendy Bacon.33 A postgraduate student of sociology at the University of New South Wales, Bacon was twenty-four when she was elected as an editor of campus newspaper Tharunka in 1970. A loose affiliation with the clique of left-wing Sydney-based libertarian intellectuals called The Push gave Bacon and her fellow editors, Alan Rees and Val Hodgson, a serious intellectual basis for their agitation against censorship. As Bacon recalled, their opposition was prompted by the belief that the abolition of censorship would allow a broader debate about gender, sexuality, education, and power. ‘This was a time of cultural foment,’ she said later. ‘The Pill had come out, there were protests, there were debates and big issues going on.’34 To force those debates, they began publishing material that was edgy and confrontational: a guide to cannabis, criticism of the campus doctor for his issue of contraceptives, a review of Anne Koedt’s ‘The Myth of the Vaginal Orgasm’.35 But it was the 18 March publication of a poem, ‘The Ballad of Eskimo Nell’, that catapulted Tharunka to the forefront of the censorship battles. The bawdy, ribald poem on the back cover — a staple of sporting teams in the locker room and at the bar — caused outrage:

  When a man grows old and his balls grow cold and the end of his nob turns blue,

  When it’s bent in the middle like a one-string fiddle, he can tell a yarn or two.

  So find me a seat and stand me a drink and a tale to you I’ll tell,

  Of Dead-Eye Dick and Mexico Pete and the gentle Eskimo Nell.36

  The poem was accompanied by a declaration of serious intent. The question at stake in the censorship fights, the three editors argued, was freedom — freedom to think, read, write, and publish anything, irrespective of its obscenity or quality. Defending a work for its literary or artistic merit was simply a way to change the issue: obscenity itself was a legitimate expression, and the public should be free to use it.37 ‘We thought the literary merit [justification] was a distraction and elitist,’ Bacon said later.38

  Bacon, Rees, and Hogson also promised more. A newspaper was a vehicle for ‘direct action’ against censorship, the editors declared, and the time was right to use that vehicle. They laid out exactly how they would drive that vehicle and the strategy behind it: ‘If the government prosecutes in all cases, it slows up the courts; if it picks and chooses, their ridiculous inconsist
ency will be even more apparent and underlined; if it prosecutes in no cases, at least there will be a temporary and minor victory against censorship and for freedom.’39

  Bacon, Rees, and Hodgson therefore continued much in the same vein, publishing issues of Tharunka replete with four-letter words, frank depictions of sex and violence, and innumerable articles of satire. Although eventually forced to resign, the three editors found favour with their readers. They had distributed more than 17,000 copies of the ‘Eskimo Nell’ issue, and their efforts in spin-off titles, Thorunka and Thor, continued to command attention. Writers — including academics and journalists, some of whom were well beyond university age — were attracted by the force, creativity, and freedom that they found there. ‘It was my first experience of illegal or “underground” journalism,’ wrote Frank Moorhouse, who became one of the paper’s stalwart forces, ‘and it was the first time in our lives that we had written for, or had available, an uncensored public outlet for our writing.’40

  Amid rising fury from politicians and outraged community leaders, court summonses duly arrived. In August 1970, the director of student publications at the University of New South Wales, the printer of the June issue of Tharunka, and Hodgson appeared at the Sydney Central Court on obscenity charges — only to be eclipsed by Bacon, who protested outside wearing a nun’s habit that had been embroidered with the phrase, I have been fucked by God’s steel prick. She was arrested, charged with wearing an obscene publication, and released on $100 bail.41 Arrested again two days later, Bacon was convicted in the Sydney Quarter Sessions Court the following February for a litany of charges relating to Tharunka and her wearing of the habit.42 But Bacon and her fellow editors were not dissuaded from continuing their fight, even as further charges piled up, and punishments — such as the one-week prison sentence Bacon received — followed. By 1972, the promise of that early editorial in Tharunka had been fulfilled: charges were clogging the New South Wales court system. Eventually, when the Supreme Court overturned Bacon’s conviction for obscenity, the exhausted and frustrated authorities gave it up.

  But even this was not enough. Bacon would not desist from the campaign to see censorship ended. In March 1971 she promised to continue so long as censorship remained in place: ‘I’m going to be really keen to keep doing it.’43

  For those still pressing for the enforcement of censorship, messages of this kind were the last thing they wished to hear.

  CHAPTER 4

  The lady

  The weeping sore in the censorship battles was Lady Chatterley’s Lover. D.H. Lawrence’s 1928 novel about a young married woman’s affair with a gamekeeper had been banned in Australia since 1929, but by the 1960s it had become a totemic title in censorship struggles around the world.1 In 1959, the US District Court of New York allowed the novel’s free publication in America; in the following year, UK paperback publisher Penguin published the novel and successfully defended a prosecution brought against it in a six-day trial at the Old Bailey. The pressure was on Australian authorities to follow suit.

  Penguin had approached the Commonwealth government to request a review of the ban on Lady Chatterley in February 1960. Citing the novel’s age, fame, and the reputation of its author, the Literature Censorship Board recommended its release. But Denham Henty deferred a decision until proceedings in the UK had been resolved; then, after the trial, he referred the book back to the board, with the directive that it be reassessed as ‘an isolated novel’ — that is, with no consideration of its place in Lawrence’s oeuvre, and with no regard for Lawrence’s standing. Henty also sought advice on ‘whether it would be in the best public interest to release a cheap paper-backed edition’. The board was unmoved: it recommended, again, that the book be released.

  It was plain that the government wanted the ban to continue and — as ever — would disregard advice on censorship matters as it saw fit. It was a mark, however, of how seriously it took the matter that it went to cabinet on 16 February 1961. Henty noted the history of the book, Penguin’s application, and the advice from the experts. ‘They recommend to release,’ he said, ‘but in effect it was a contradictory report … My own view is to ban.’ He conceded that Penguin might take action in court against the government, but added, ominously, that failure to maintain the ban on Lady Chatterley ‘might well be the end of any effective censorship of imported literature’ in Australia.2

  Cabinet was in no mood to disagree: it opted to maintain the ban.3

  The reaction was hostile. Critics accused the government of allowing political factors to influence the decision, and the press asked the obvious question: why, when accounts of the British trial included lengthy discussions of the merit of Lady Chatterley, should the book be banned?4 Were the witnesses who had testified so mistaken? Was the jury decision wrong? Moreover, why should English readers be able to read Lady Chatterley, but not Australians?

  Almost immediately there came a new problem: Penguin’s publication of a transcript of the Lady Chatterley trial. Edited by the pseudonymous C.H. Rolph, a writer and former police officer, The Trial of Lady Chatterley allowed a glimpse of the clash between ‘the striped-trousered ones’ ruling Britain, as Orwell called them, and the liberalising forces agitating for change. But Henty would not allow the book. Citing its inclusion of passages from Lady Chatterley, Henty added Trial to the banned list.

  The reaction was as caustic as before. The court proceedings had been reported in Australian newspapers. Why should they now, when placed in a book, be unfit for publication? In June 1961, Sir Allen Lane, Penguin’s founder and managing director, met Henty to discuss the ban. It was a ‘pleasant interview’, Henty commented afterwards, and Lane had ‘agreed’ that the prohibition of both Lady Chatterley’s Lover and The Trial of Lady Chatterley would be reviewed in two years’ time.5

  What Lane could disagree with was never clear; nonetheless, Trial was duly sent for review early in 1964, and the appeals board recommended that it be released. But the new customs minister, New South Wales senator Kenneth Anderson, appointed in June, was unconvinced. Reporting to cabinet that the timing was ‘inopportune’, he opted to maintain the ban.6

  Anderson had a gentlemanly personality, was a former POW at Changi, and had been a real estate agent before entering politics. Asked when he was appointed if he had any ‘conscience problems’ with censorship, Anderson said not — but, like so many before him, he soon discovered otherwise. He was happy to allow a pamphlet of ribald verse by Robert Burns: ‘I’m the son of a Scot, my mother was the daughter of a Scot, I lived in a Scots home, and I’m not going to find my place in history as being the person who banned the immortal bard.’ But works that dealt with sex were subject to different standards. ‘Normal, healthy sex was one thing, that’s life,’ Anderson said later:

  But perverted sex was the thing that got in my gizzard: homosexuality, lesbianism, bestiality. Too often you’d find — this is where the rub came — a book of literary merit, unquestionably with literary merit, would have something in it which, in my judgement, wasn’t normal, healthy, human behaviour … When it got into that other area — I had a blind spot, I suppose — but I could never stomach it.7

  But Anderson would be made to, thanks to the actions of Leon Fink, Alex Sheppard, and Ken Buckley. Fink, a twenty-eight-year-old Sydney-based entrepreneur and businessman, professed utter disdain for the censorship regime: he thought it self-defeating and stifling. Buckley, an economic history lecturer at the University of Sydney and secretary of the New South Wales branch of the Council for Civil Liberties, was certainly no fan; and Sheppard — a bookseller, a tenant in one of Fink’s properties, and a decorated veteran of World War II — was no different.8 A plump man with thinning silver hair, a small moustache, and horn-rimmed glasses, Sheppard was embarrassed by censorship. While attending a PEN International gathering in London in April 1964, he had been stung to overhear the historian Dame Veronica Wedgwood mocking the ‘big, brawny Australi
ans’ who had acquiesced so meekly to the ban on Trial.9

  During a meeting afterwards, Fink, Buckley, and Sheppard bemoaned censorship, and canvassed ways to force change. It did not take them long to alight on the idea of publishing Trial themselves, in Australia. It would evade the federal government’s authority, embarrass them, draw attention to censorship, place the onus on state governments to respond — and, perhaps, force change.

  The three made plans to make the idea a reality. Fink offered to provide the money for publishing the book. Buckley agreed to involve the Council for Civil Liberties: ‘Alright,’ he said, ‘you do it, and, if you’re prosecuted, we’ll find a lawyer to defend you at no cost.’10 Sheppard volunteered to approach Allen Lane to obtain permission for an Australian edition. Since he had been unable to find an Australian printer willing to take the job, Lane was happy to allow Sheppard his head. He licensed the copyright for six months, to begin from 15 April 1965, for a sixpence-per-copy royalty. ‘We did it with the full support of the Penguin group,’ Fink recalled. ‘They were happy for us to take it on.’11

  Next, Fink tasked a UK-based friend with buying a copy of Trial, tearing it into swatches, folding those into letters, and sending them, addressed to various friends of Fink and Sheppard, to Australia via airmail. Those letters were collected and the pages passed on to Fink and Sheppard, who now sought a printer. There were precious few willing to run the risk of prosecution and, for a time, it seemed the whole project would fall through. Sheppard had to write to Allen Lane to plead for his forbearance. Eventually, Sydney printer Edwards & Shaw took the job, on condition that none of their employees did the typesetting. ‘They [Richard Edwards and Roderick Shaw, the owners] said they would only do it if they could typeset it themselves,’ Fink recalled. ‘They didn’t want their employees to be liable to prosecution.’