The Trials of Portnoy

by Patrick Mullins

  ‘I do not think I want great long tracts of this read out,’ Ross interrupted, at one point.

  But O’Hearn barely seemed to hear him. ‘Well, could I go on about that?’ he said, and continued just as he had before. To Ross’s consternation, the galleries responded. Emphasising the comic aspects, O’Hearn read a long passage full of Jewish jokes that had spectators convulsing with laughter.13 Then came the scolding: Flanagan asked about Portnoy’s plot. Turning to the prosecutor haughtily, O’Hearn exclaimed, ‘We don’t use terms like plot!’

  Court adjourned for the weekend and resumed on Monday 26 October. One after another, witnesses such as Vincent Buckley, David Martin, Jean Battersby, and Manning Clark lined up to scotch the prosecution’s argument that Portnoy’s Complaint was obscene and without literary merit. Martin spoke at considerable length, as though delivering a morning lecture; Battersby was firm and direct; Clark, with a glance at the tiny blue notebook in which he had scratched some notes, called the book a ‘complaint against God’, and said that Roth had held ‘a mirror up to life’. Buckley, a poet and chair of English Literature at the University of Melbourne, gave serious evidence but later poked fun at the whole show. In ‘Portnoy’s Revenge’, he described Ross snoozing, Flanagan humming Dies Irae, and a witness — ‘the Famous Witness’ — showboating on the stand:

  So you admit the book is disgusting,

  said Flanagan QC. It is your own word.

  Disgusting as life is disgusting, said the Famous Witness,

  and beautiful like life, full of despair and joy.

  Would you call it filthy? Pornographic? Sexually arousing?

  As Life is, said the Famous Witness. Radically

  filthy, pornographic, sexually ar …

  Aargh, said Flanagan QC, for God’s sake.

  The Famous Witness sat down beside me

  and glanced at my averted eyes.

  How did I go? he whispered.

  I’ll tell you later, I muttered, barely turning.

  After a minute, he got up and left.

  You should have finished the bloody book, I thought.14

  Jennifer Strauss, of Monash University, also found the trial comical.15 That morning, Flanagan stood and interrupted proceedings, saying, ‘There is a child in this court, and it is not seemly that the ears of children should be polluted by the evidence that will be heard.’ People looked around. Where was this child? Eventually, they realised that Flanagan was referring to a baby, cradled by its mother in the public gallery. Ross gave a serious pause as he decided how to respond.

  ‘Well,’ he said, ‘it seems to me that the child is too young to be polluted by what it will not understand.’

  This was a cheap move from Flanagan, thought Strauss, who also decided that he was ‘exactly the kind of person to make you think that you are absolutely right to defend Portnoy’s Complaint.’ As she said later, ‘He was running every petit-bourgeois objection to the novel. He was concentrating on the fact that it had sex in it, and bad language. He had no interest in the social dimensions, or the Freudian elements in it.’ Strauss viewed this lack of interest dimly: ‘They were so much of a piece with that ignorant, closed state of mind that made Australia at that time so insular.’

  She also thought that the outcome was preordained. She felt that Ross’s mood was somewhere between boredom and amusement, and it seemed to her that this was because he already knew the verdict. ‘He had probably already decided that the book was obscene, but was just working out whether it had literary merit.’

  Thirty-seven years old and a mother of three, Strauss was aware that she and the other women coming to the stand were living examples of the defence argument that Portnoy’s Complaint was not a corrupting or depraving influence. She was also aware that they had been deliberately chosen. ‘We thought that the magistrate, the press, and politicians,’ Stephen Charles recalled, ‘would be surprised and impressed by the fact that women — ordinary, decent women; the epitome of good women at the time — were prepared to stand up and talk about it.’ They were also best placed, Hilary McPhee recalled, to rebut the argument that censorship was necessary for the protection of children.16

  But Strauss was also determined that her voice and those of her fellow female witnesses be heeded in the matter — and not merely as mothers or wives or ‘good women’. ‘We were not to be passive recipients of what other people thought was proper for us to read or not read,’ she said later. As teachers and scholars of expertise and credibility, they had informed views to offer: ‘I suspect, in fact, that Flanagan was quite shocked at all of us.’

  She knew that Brusey and Charles wanted their expertise and credibility, but the emphasis that was placed on their respectability could be grating. ‘They wanted us to wear dresses,’ Strauss recalled. ‘They did not want us to wear trousers.’ They were also concerned about Strauss’s determination to take an affirmation rather than an oath sworn on the Bible: ‘They felt it dinted my respectability.’

  Strauss persisted. She made an affirmation, and spoke on the nature of satire and exaggeration. ‘One of the complaints about Portnoy was that it was negative and excessive,’ she said, ‘particularly about the mother. I argued that the point about complaint was that it was a form of satire, and by its very inherent nature it was excessive! That is the very definition of satire. It’s about exaggerating flaws and foibles in order to make people see their absurdity.’

  Joanne Lee Dow, aged thirty-two and an academic at both the University of Melbourne and Monash University, became involved in the trials via Strauss.17 She did not need much convincing to appear. Lee Dow was scornful of censorship. It inhibited teaching, and it deprived readers of the fullness of life. The censors, she believed, did not understand literature, and their aims were inconsistent with their actions. ‘The logic of it would have meant that they ban Shakespeare,’ she said. ‘It was just silly, and uptight.’

  Ross looked tired and old, ‘as though he needed oxygen’, when she took the stand, and the courtroom was stuffy, even sleepy. The galleries remained full, but there was a clear sense that the important witnesses had come and gone. Attentiveness had waned. This left Lee Dow self-conscious. She was twice interrupted by objections from Flanagan, and became overwhelmed with embarrassment and nerves. She felt that her subsequent testimony was excruciating, and that Stephen Charles, who was leading her questioning, was no help to her. She was ashamed and infuriated when the lunchtime adjournment came and he indicated that he wished for her to return to the stand: ‘I wanted to crawl into a hole.’

  Lee Dow said this to Vincent Buckley over lunch. Buckley’s reply surprised her. ‘Charles is not as unhelpful as he seems, Joanne. I was looking at the faces of the magistrate and the prosecutor — who cares about it more than any of us — and they were both actually listening to what you were saying.’

  Buckley contrasted it with his own testimony. ‘I was too formal, too impersonal,’ he said, ‘and Dinny [O’Hearn] was, at best, ineffectual.’ He smiled at Lee Dow. ‘Stephen Charles has got you in there and he’s called you back because they are all listening to you and you are talking in ways that they can understand.’

  This was a consistent theme for the women who appeared for the defence. Experienced in reaching students who were uninterested in or baffled by literature, witnesses like Lee Dow could situate Portnoy’s Complaint in a place where it was interesting, relevant, and accessible. Brusey and Charles knew it, and were happy to do all they could to make it so. It helped, too, that Lee Dow was ‘hopelessly candid’ about the book. When she returned to the stand, she remarked that for a book about an adolescent boy there was less masturbation in it than might be expected; when Flanagan sought to discomfort her by asking her to read aloud the passage where Portnoy masturbates into the liver, she did so unperturbed. Then he sought to embarrass her by asking if she would read it to her children as a bedtime story. She gave this short sh
rift: ‘Don’t be stupid.’

  Lucy Frost, aged twenty-nine and a lecturer at La Trobe University, came next.18 An American who had moved to Australia with her husband after finishing her PhD on contemporary American fiction, Frost had been infuriated when the Australian censors ‘relieved’ her of a good portion of her books. ‘Everything by William Burroughs, including Naked Lunch, was taken away. All of my copies of Henry Miller’s books were taken,’ she recalled. ‘I was just beside myself with fury.’ In addition to galvanising her willingness to participate in the Portnoy trial, Frost’s involvement in the civil rights and anti-war movements in the US had given her an awareness of the theatre involved in court proceedings. A mother already, and with another baby on the way, Frost knew that she appeared wholesome, virtuous, demure. She played it up, particularly as Ross offered her water, offered a chair, and took her gently through the particulars of her oath.

  But then she began to answer questions, developing her argument that Portnoy was drawing on a theme interrogated in literature as old as classical Greece. ‘At the centre of the book is a struggle, a problem of the mind and the body being split,’ she said later. ‘That was my line. I talked about how important it was to have the frame story, of Portnoy talking to a psychiatrist, because he’s so completely obsessed with that body part of himself and with masturbation that he can’t overcome that split. I was trying to set his masturbating into the liver in a context of literary tradition.’

  Frost knew that understanding this might be difficult for a magistrate more familiar with grubby questions of assault, murder, and petty crime. She was careful to speak plainly and to make connections obvious, using examples that Ross was likely to have encountered. She had the feeling she was successful: he asked questions with a degree of seriousness that indicated he was engaged. ‘I felt that he was listening to me very carefully. But,’ she added, ‘that he was also uncomfortable.’

  ***

  Witnesses continued to testify that day: Stephen Murray-Smith, the editor of Overland and a lecturer in education at the University of Melbourne, and Josephine Barnes, a West Australian academic. The next day, Tuesday 27 October, it was the turn of ANU academic Bob Brissenden, La Trobe University lecturer Jennifer Gribble, and Patrick White, the future Nobel Prize–winning author of The Tree of Man, Voss, Riders in the Chariot, and The Solid Mandala.19 All testified that Portnoy’s Complaint was a work of literary merit and not obscene. The overlap of their evidence and repetition of their arguments was such that Barnes questioned its value. ‘This has been stated over and over again,’ she said to Brusey, when he asked her to detail the book’s themes. ‘I can only repeat it.’

  ‘I am afraid each witness, as it were, starts again,’ Brusey replied, gently. ‘And so without you necessarily repeating everything else said, we do want to hear what your expert testimony is.’

  White was aware of the humour and the theatre of the proceedings.20 He arrived at court in an austere black coat and homburg, looking for all the world like a British banker.21 Onlookers were astonished, not least by the hat. ‘He must have had it stashed away from the days when, after leaving Cambridge, he was cutting a dash in London,’ remarked Geoffrey Dutton later.22

  The respectability that this costume lent, when added to his stature, made White an imposing, if modest, witness. Asked if he had made a special study of English literature, he affected nonchalance: ‘Well, I have been reading it all my life.’ He agreed that he was the author of eight books, and dismissed his poetry: ‘Oh, that’s something we forget about.’ He testified that Portnoy’s Complaint was ‘in the tradition of great comic novels’, that it was ‘written with great style’, possessed convincing characterisation, and was ‘terribly funny’. He had no problems with the use of cunt, prick, or fuck: ‘Bad language is used all around one. I use it myself, daily. It prevents me blowing up.’

  White knew he might be undermining the defence case by emphasising the book’s humour. ‘The whole thing has to be conducted with great solemnity, I realise,’ he wrote to Tom Maschler afterwards, ‘but I couldn’t resist saying what a funny book I think Portnoy is: I hope I didn’t put my foot in it.’23

  Nobody but White believed that he might have. Hilary McPhee recalled his appearance as the most impressive moment of the trial. ‘He knew exactly what he was saying. He spoke slowly, and he didn’t mock the questions. He answered them with great deliberation, and spoke of the quality of the writing and the appropriateness of the writing.’ Brian Kiernan recalled White’s appearance in similar terms. ‘Very confident, assertive, with nothing histrionic,’ he said later. ‘Everything was quietly, firmly, decisively spoken.’24

  The defence team felt good about the trial. The support that Penguin enjoyed was always palpable. ‘We had everyone in the courtroom with us except the coppers who were in there, Walters — who was the head of the Vice Squad — Len Flanagan, and the magistrate,’ recalled Stephen Charles. ‘Everyone else who was there was with us, enthusiastically supporting Portnoy’s Complaint and the right for that book to be published.’ More importantly, there had not been a moment in the trial where Flanagan had surprised them. ‘We knew the sort of evidence they were going to give. We knew the law. We knew the problems we were going to have to overcome. We thought that we were likely to get a good result, one way or the other.’ And they could not help but be amused at Flanagan’s hackneyed attempts to provoke outrage: ‘Flanagan was reading parts of the book out — really scaly bits — and expecting people to cringe and react with disgust. But they were hooting with laughter.’

  Brusey gave his closing address, requesting that Ross find Penguin not guilty on grounds that Portnoy was not obscene, that Portnoy was possessed of literary merit, and that the publication, distribution, and keeping of the novel was justified. ‘Looking at this case on the evidence, Your Worship,’ Brusey said, ‘you must feel uncomfortable about convicting. I ask for an acquittal on each of the charges, including the show-cause summons.’

  Flanagan’s address was consistent with what he had said all along. ‘We say the book is obscene. It is obscene by contemporary standards of decency of the people in the street. It suggests that young people’s minds are likely to be affected by reading the book.’ All but ceding the ground of literary merit — leaving that for Ross to determine — Flanagan pointed to the circumstances of the book’s publication as reason to find Penguin guilty. ‘Even if you were to find that the book did have literary merit, we say: whatever its literary merit, the publication in the circumstances was not justified.’ A guilty verdict was the only correct verdict.

  When Flanagan finished, Ross nodded. He would consider the evidence, and reserve his decision until 9 November. Court was adjourned.

  CHAPTER 10

  Peppercorns and pyrrhic victories

  Ross was as good as his word: he handed down his verdict at ten o’clock on Monday 9 November.1 The whole affair was ‘quite extraordinary’, thought Hilary McPhee: television crews were massed outside, and the courtroom was crowded with people. Both sides played nice for the observing press. Flanagan, sporting a fresh haircut and a black-and-white checked shirt — ‘a concession to fashion’, McPhee called it — joked and chatted with Brusey as they waited for matters to get underway. Eventually, an elegant clerk whom no one had ever seen before appeared in the courtroom, boomed for them to stand for Ross’s entry, and then mangled the name of the case, confusing it with another. ‘Is it possible it’s not the most important case going through the City Court?’ McPhee laughed, at this.

  Ross walked to his seat without looking at anyone, sat, and read his judgement in its entirety. From a first reading, he said, it was obvious that a considerable portion of Portnoy’s Complaint was devoted to sexual matters: ‘Adjectives such as disgusting, indecent, filthy, sordid, [and] shocking apply to this book.’ Section 154 of the Victorian Obscenity Act defined an obscene work as one that unduly emphasised matters of sex. ‘This book,’ Ross s
aid, ‘by its bulk comes under this category.’ Was this undue? Standards do change from time to time, and there was a ‘new frankness’ in the community regarding matters of sex. But, he went on, ‘I find it does offend against the ordinary man.’ The book was obscene.

  Penguin had expected little else. The next question that Ross considered was crucial: whether the book possessed the literary merit that the defence had claimed. Ross noted the strengths of the defence case, in particular the gallery of witnesses it had assembled. ‘One could not fail to be impressed by [the] witnesses.’ With ‘no evidence to support a contrary view’, Ross said he was ‘satisfied that the book had literary merit before Penguin published it’. The qualifier was important. Portnoy’s Complaint was still relatively new when it was published in Australia, and some might well have argued that the defence of literary merit had been a convenient, after-the-fact justification for defying the law. Had the literary merit been recognised before this, then? Yes, Ross judged. It had been. The defence had discharged its onus.

  But even as the defence celebrated this, Ross made clear his judgement that the book had been distributed and sold in a manner intended for the ‘widest possible distribution’. The cheap price implied no restriction of availability: ‘All classes and age groups could have it.’ The blurb described Portnoy’s Complaint as a dirty book. Penguin, he went on gravely, had promoted it as such. That dirtiness might even have had the effect of putting off serious readers. Therefore, Ross ruled, the book was obscene, and the plans for its distribution were indiscriminate.

  ‘I find that the publication, distribution, and keeping were not justified in the circumstances,’ he said. ‘I find the charge proved.’