So what should his strategy be? ‘I decided that my best option was to challenge the objectivity of what the experts were saying.’ Suspecting that it was an in-principle opposition to censorship that motivated those witnesses, Viner decided to challenge the veracity of their opinions, especially their claims to the excellence of the humour in Portnoy. ‘My line was to read aloud slabs of the book — such as the passage where he masturbates into a liver, or masturbates while on the bus — and ask, “What’s funny about that?” I was asking this question sincerely. For myself, I could not see that it was funny. I thought that asking if it really was as funny as the witnesses were claiming was the best way to refute that argument.’14
It was, at times, an effective strategy. To such questions, the explanations of jokes, puns, and exaggerations could seem laboured and underwhelming; the claims for excellence could sound insincere and exaggerated. But the gross nature of the material could also seem unexceptional if the witnesses were laconic or willing to temper their praise of it. Hungerford, for example, shrugged off questions about the necessity of chapter titles such as ‘Cunt crazy’ (‘If Roth felt it was necessary, it was necessary’), downplayed the use of terms like cocksucker (‘Very common in the United States’), and laughed off the suggestion that the liver episode was revolting (‘I belly laughed’).
Writer Peter Cowan, of Angry Penguins notoriety, similarly withstood Viner’s questions about passages that provoked a feeling of revulsion. Having stated under Davies’ questioning that Portnoy had a ‘high degree of literary merit’ and had contributed to a ‘new freedom in writing’, Cowan pointed out that Portnoy’s ability to prompt revulsion was not accidental: doing so required the exercise of considerable skill from the writer. Moreover, any sexual revulsion prompted was not as bad, nor as easily achieved, as revulsion to violence or destruction. Roth was exploring why people could be revolted. It was his job: ‘The writer’s job is often to revolt.’
Allan Edwards, professor of English at the University of Western Australia, provided what Davies later called a ‘highlight’ of the trial with his answers to Viner’s questions.15 A devotee of literature with a lilting voice and a guru’s manner, Edwards was highly regarded in the West Australian literary community, and was well connected — even Davies was a former student. Edwards said that there was ‘no doubt’ that Portnoy’s Complaint had literary merit, and was effusive about the realism of Portnoy’s psychology. ‘Normally one only finds such an account in history books,’ he said. ‘… There is a great difference in understanding something in one’s head and in feeling inside yourself that you are this particular victim. It is here that I find the book very powerful. It deals with a peculiarly Jewish problem, but enables one to understand this problem from the inside. It is at once pathetic and moving, and it is so because, not in spite of, the jokes.’
Viner’s cross-examination focused on those jokes. ‘I would ask, “How can you say it has literary merit?”’ he said later. ‘“Is it really funny to read that someone is masturbating into a piece of liver, and then goes home and eats it? Is that really so funny?”’16 He read aloud, at length, passages that appeared to be disgusting; he read aloud passages containing an abundance of four-letter words; he even asked about the epigraph that prefaced the book and provided the explanation of the title.
This question backfired conspicuously. Edwards shrugged. ‘Very funny,’ he said, of the epigraph. ‘It is a take-off of solemn scholarly journals.’
Was the title of the fictional scholarly journal in which the complaint was published — The Puzzled Penis — relevant, Viner asked. Was the joke there really necessary?
‘The expression is very succinct,’ replied Edwards. ‘That was Portnoy’s problem. He didn’t know whether to put it in or pull it out.’
Guffaws of laughter filled the court. Even Malley covered his mouth to hide his snicker.17 It was the best laugh of the case, Davies thought, and it all but terminated Viner’s cross-examination.
***
Viner’s strategy did not alter with subsequent witnesses. Again and again, he would read a licentious passage and ask for opinions. Sometimes he could get witnesses to hesitate. ‘Not beautiful,’ said John Deakin, a retired superintendent in the education system and book reviewer for Perth’s Sunday Times, who appeared the next day, 2 December, and was asked about Portnoy’s adolescent sexual experiences. But passages that were grotesque could also provoke defence and explanation. ‘Without this writing there is no book,’ Deakin said, at another instance. ‘The novel must be accepted as a whole.’
The librarian at the University of Western Australia, Leonard Jolley, echoed Deakin’s views. There were objectionable passages, but the book had to be taken as a whole, he said. He had read of the novel in newspapers and magazines — and had read the extract of Portnoy that had appeared in Partisan Review, which had come to Australia unimpeded by censorship. On the basis of the reviews and the extract, Jolley had ordered the novel for the university library. ‘When I got the book,’ he said, ‘I thought I was justified in ordering it.’
James Lumsden, a psychologist with a PhD and expertise in literature, sang from the same songsheet, though he added another tune — one about the book’s psychological acuity. ‘The book has the truth of a tone poem or landscape,’ Lumsden said. ‘No case-history can be quite like this, but it looks like case-history.’ In a claim that would make headlines across Australia, Lumsden argued that Portnoy’s Complaint had a utility beyond entertainment: ‘The book would be of use to a student of psychology. The understanding of the origins of Portnoy’s problems would be of assistance to society generally.’
Viner avoided probing this claim, and instead continued his attempts to puncture claims of literary merit. ‘What is funny about this?’ he asked, after reading out a colourful passage. ‘What is poetic about that?’
Eventually, he read out the passage about Portnoy and the liver. Lumsden agreed that it was shocking, but added that it was intended to shock. The tension was then punctured, deliberately, he said, by Portnoy’s subsequent comment that the worst thing he had done was to fuck his own family’s dinner.
‘And what’s funny about that?’
Lumsden smiled. ‘If you don’t think that’s funny, I can’t help you.’18
Subsequent witnesses continued to build the case. Journalist and writer Hal G.P. Colebatch had been convinced to appear at the trial by Dorothy Hewett; despite his subsequent regret at appearing, Colebatch testified that Portnoy’s Complaint had merit, that it was well written, and that — as a study of one human — it had an ‘essential educational function’.19 The poet Fay Zwicky, who followed Colebatch, argued similarly: she had read the book three times, and thought it a ‘work of considerable literary merit, particularly on re-reading’. A psychology lecturer at the University of Western Australia, Arthur ‘Jock’ Bownes, testified that Roth’s psychological mapping of Portnoy’s character was valid. ‘Extreme behaviour of Portnoy is characteristic of an upbringing such as he had,’ he said. ‘Going from woman to woman, in a desperate attempt to find his manhood and finding little satisfaction, is a common problem to clinical psychologists.’ Bownes echoed Lumsden’s claim for the book’s utility. He recommended it for students of abnormal psychology; during his cross-examination, he went even further: the novel was ‘scientifically valid’.
Ronald Downie, who testified the next day, Thursday 3 December, continued this claim. A clinical psychologist and part-time tutor of English at the Adult Education Board, Downie said that the novel followed ‘the line of American literature’ that ran from Mark Twain to Hemingway. Portnoy’s Complaint was about alienation. ‘This is today’s problem,’ he said. ‘I find this so as a clinical psychologist.’ Downie was emphatic that the profanities were appropriate. ‘In clinical practice, one endeavours to allow the client complete freedom of expression. After all, this is the setting of the book … In this book, Portnoy’s outpourin
gs seem highly probable. Clients tend to speak without self-censorship, from depths of feelings. It is the only way in which a person can grow therapeutically.’ Viewed as a clinical case, he said, Portnoy’s Complaint had a ‘tremendous amount of fidelity’; moreover, for it to have the kind of impact and the truth that he had described, it had to have ‘complete literary merit’.
Next came G.M. Glaskin. The author of No End to the Way described how he had heard of the novel and had ordered a copy from New Zealand. At the time, he said, it was not on the official list of banned books, and he had been outraged that he had not been permitted to read it. It was only after negotiations with Customs that he was allowed to: he had to read it within one month and, in the company of a customs officer, post it back out of Australia.
Viner’s cross-examination sought to damage Glaskin’s objectivity. Glaskin admitted that he had made his difficulties with Customs public, and that he had spoken about his disagreements with censorship policy. But, Glaskin added, lest the court think otherwise, he did not believe that censorship should be wholly abolished. He believed that people aged sixteen and over should be able to judge for themselves whether to read a book. This view was not out of line with the community, he said. It was a common view.
More and more witnesses followed: Ronald Unger, a reviewer for the Weekend News; Kenneth Munro and John MacLaurin, both English schoolteachers; Merv Lilley, a poet and short-story writer; David Ambrose, a classics tutor at the University of Western Australia; and Donald Stuart, a novelist and short-story writer. All testified to much the same point: Portnoy’s Complaint was a work of literary merit. Roth had bought considerable skill to bear upon it. He had approached his material with serious intent. The language was necessary, and the subject matter was worthy of writing about. It was a convincing book. ‘I’ve felt compassion for many people, in many books,’ Stuart testified. ‘Portnoy is one for whom I feel utmost compassion.’
The final witness was Dorothy Hewett. A former communist, former wife to Lloyd Davies, and now married to Merv Lilley, Hewett was already the author of a novel — the acclaimed Bobbin Up — three plays, and two collections of poetry. She was writing and teaching at the University of Western Australia, and on the stand she lauded Portnoy for reasons that were different from those of witnesses who had preceded her, adding another reason to read the novel:
It is a comment on modern society. It tells more of what it is like to be a Jew and comment on man in his society. Not man the hero or centre of the universe, but man the anti-hero, unable to cope with the environment he made himself … [The] value of the novel seems to be, in fact, that it can teach Australians, notorious for their prudery, how to be honest about and with themselves. It should be prescribed reading for all mothers and sons. It is invaluable in a puritan, male-oriented society. It is a novel which helps women to understand men and all of us who live with the disease of sex-hatred.
Viner had no questions for Hewett. And with that, the defence case was closed.
***
Malley reserved his decision until the new year. In his judgement, handed down on 18 January 1971, he was forthright about the novel’s obscenity. ‘Having read the work in question and applying the principles laid down [from a survey of Justice Windeyer’s opinion, in Crowe v Graham],’ he said, ‘I have no hesitation in reaching the conclusion that Portnoy’s Complaint is patently and often nauseatingly obscene.’
Malley brusquely disposed of the facts of the sale of Portnoy’s Complaint. Broomhall had not contested testimony about the novel being on sale, and her testimony about the limits she had applied on its sale — that is, not selling it to children — was immaterial, given that he had found the novel to be obscene. He moved on to the exemption provided by section 5 of the Indecent Publications Act, and its likely definition: ‘What constitutes a work of recognised literary merit?’
He had heard the evidence of a large number of witnesses, all of whom were qualified. Although there was considerable variation in their interpretation of Portnoy’s Complaint, all of them were unanimous that it had literary merit. ‘From the positions and qualifications, or by virtue of their own writing skills,’ Malley said, ‘many of these persons are in a position to pass a considered judgement on the work in question and all have been prepared to put their professional reputation to the test in asserting and therefore recognising the literary merit of this book. No contrary evidence has been tendered, and I therefore conclude that Portnoy’s Complaint has recognised literary merit within the meaning of section 5 of the Act.’
Malley now paused to interrogate what ‘recognised literary merit’ meant. Was it the case that the legislature, while enacting section 5, only intended to provide protection for ‘old and recognised standard works in which there may be some obscene or mischievous manner’?
If this was the case, the defence might well have failed. No new work, if Malley agreed that this intention was reflected in the law, could ever fall within the purview of section 5, no matter how acclaimed or well received.
But he did not. ‘The relevant words of the section appear to me to have a plain and unambiguous meaning,’ he said. ‘… I consider that even though there be a finding that a book is obscene, once it is accepted as having recognised literary merit, then it is exempted from the penal provisions of the Act …
‘The complaint therefore fails,’ finished Malley, ‘and the charge will be dismissed.’20
Broomhall and Davies had won. Portnoy’s Complaint could be sold, legally, in Western Australia.
Broomhall was ecstatic. People were queueing at the doors of the Pioneer Bookshop the next day to purchase copies; within days, the police had trooped in to return the copies they had seized, muttering as they did that there were no hard feelings.21 Bookshops that had held off from further sales while Broomhall’s case was heard had put copies back on sale: ‘I’ve sold about 9,000 in all,’ an elated Arthur Williams, of the In Bookshop, told the press, ‘and they’re still going!’22 The matter had turned out almost entirely in favour of Broomhall and the Communist Party. At meetings in March, Broomhall and Gandini would be commended for sticking ‘their necks out’, and the party resolved to use the Portnoy profits to renovate the Pioneer ‘with wall to wall carpet’ to stop it looking like ‘a second-hand junk shop’.23
Davies, for his part, was especially pleased. He saw the verdict as a decisive rejection of the prosecution’s arguments that Western Australia was unwilling to accept the language and frankness of Portnoy’s Complaint. The isolationism and provincialism implicit in those arguments, he wrote later, had been rejected. There was a ‘regional significance’ in the verdict, and a national significance, too, he claimed. The outcome in Western Australia had dealt the censorship system ‘a heavy kick in the ribs’.24
That was certainly true. Though banned in Victoria, and with court action pending elsewhere, Portnoy’s Complaint was now freely available in two states. Was it possible that this state of affairs could be maintained? What would happen if more states allowed the book’s distribution and sale? Prodded by his departmental officials, Don Chipp wrote to the West Australian police minister, James Craig, to find out what the government would do. Would the verdict be appealed? Would it be overturned? ‘The recent decision handed down in Perth,’ wrote Chipp, ‘gives cause for doubts about the practical application of such an agreement [of uniform action on obscene publications] in Western Australia. I would be interested to learn what problems you consider may now arise in attempts by your government to support the scheme of uniform censorship, and whether you can overcome these problems.’25
But the West Australians seemed paralysed. Craig was unwilling to appeal the decision, and, although he ordered his department to have the exemption in the act closed off, the impending state election meant that work could not proceed much further.26 Attention to it would not resume until late in February, when Jerry Dolan was appointed to succeed Craig as police mini
ster after David Brand’s Liberal–Country Party government lost office to the Labor Party, led by John Tonkin. It took until May for Dolan to take to cabinet proposals to amend the Indecent Publications Act. Changes would include the repeal of section 5 and its replacement with a new section that would, in effect, give protection only to works of ‘dated origin’ — which would have rendered defenceless any new work found to be obscene. There were also proposed changes to include the possession of obscene material as an offence under section 2, in order to prosecute offenders who would otherwise escape prosecution, and to move jurisdiction of the act to the chief secretary, who otherwise held responsibility for censorship matters in the state.27 On 1 June, the West Australian cabinet agreed to transfer the jurisdiction of the act to the chief secretary, but otherwise held off on further changes.28
The signs of strain in the censorship system were clear. On 9 January, nine days before the verdict had been handed down in Western Australia, Don Chipp had announced that the Literary Review Board had decided to revoke its ban on seven novels by the American writer Henry Miller, including his 1934 novel, Tropic of Cancer. Booksellers who had furtively sold copies now moved them from under the counter to above it, and were forthright when asked for their reactions to the news. Bob Gould pointed out that he had already been selling Cancer for a long time. Angus & Robertson store manager Ronald Dingley contrasted the treatment of Miller with Portnoy’s Complaint: ‘Miller has been around so long most people have read something of his, despite the ban. He’s not contemporary like Portnoy is. And Miller is legal now, while Portnoy isn’t. Once people can buy a book legitimately they lose interest.’ That was a point that James Thorburn agreed with: people would buy Tropic of Cancer because they could, now — ‘But they won’t finish it.’29
The Trials of Portnoy Page 18