“We’ve got this great industrial population, and they’ve got to be fed, so the damn show has to be kept going somehow. The women talk a lot more than the men nowadays, and they are a sight more cocksure. The men are limp, they feel a doom somewhere, and they go about as if there was nothing to be done. Anyhow nobody knows what should be done, in spite of all the talk. The young ones get mad because they’ve no money to spend. Their whole life depends on spending money, and now they’ve got none to spend. That’s our civilization and our education: bring up the masses to depend entirely on spending money, and then the money gives out. The pits are working two days, two-and-a-half days a week, and there’s no sign of betterment even for the winter. It means a man bringing up a family on twenty-five and thirty shillings. The women are the maddest of all. But then they’re the maddest for spending, nowadays.
“If you could only tell them that living and spending isn’t the same thing! But it’s no good. If only they were educated to live instead of earn and spend, they could manage very happily on twenty-five shillings. If the men wore scarlet trousers, as I said, they wouldn’t think so much of money: if they could dance and hop and skip, and sing and swagger and be handsome, they could do with very little cash. And amuse the women themselves, and be amused by the women. They ought to learn to be naked and handsome, and to sing in a mass and dance the old group dances, and carve the stools they sit on, and embroider their own emblems. Then they wouldn’t need money. And that’s the only way to solve the industrial problem: train the people to be able to live, and live in handsomeness, without needing to spend. But you can’t do it. They’re all one-track minds nowadays. Whereas the mass of people oughtn’t even to try to think, because they can’t! They should be alive and frisky, and acknowledge the great god Pan. He’s the only god for the masses, forever. The few can go in for higher cults if they like. But let the mass be forever pagan.
“But the colliers aren’t pagan, far from it. They’re a sad lot, a deadened lot of men: dead to their women, dead to life. The young ones scoot about on motor-bikes with girls, and jazz when they get a chance. But they’re very dead. And it needs money. Money poisons you when you’ve got it, and starves you when you haven’t.
“I’m sure you’re sick of all this. But I don’t want to harp on myself, and I’ve nothing happening to me. I don’t like to think too much about you, in my head, that only makes a mess of us both. But of course what I live for now is for you and me to live together. I’m frightened, really. I feel the devil in the air, and he’ll try to get us. Or not the devil, Mammon: which I think, after all, is only the mass-will of people, wanting money and hating life. Anyhow I feel great grasping white hands in the air, wanting to get hold of the throat of anybody who tries to live, to live beyond money, and squeeze the life out. There’s a bad time coming. There’s a bad time coming, boys, there’s a bad time coming! If things go on as they are, there’s nothing lies in the future but death and destruction, for these industrial masses. I feel my inside turn to water sometimes, and there you are, going to have a child by me. But never mind. All the bad times that ever have been, haven’t been able to blow the crocus out: not even the love of women. So they won’t be able to blow out my wanting you, nor the little glow there is between you and me. We’ll be together next year. And though I’m frightened, I believe in your being with me. A man has to fend and fettle for the best, and then trust in something beyond himself. You can’t insure against the future, except by really believing in the best bit of you, and in the power beyond it. So I believe in the little flame between us. For me now, it’s the only thing in the world. I’ve got no friends, not inward friends. Only you. And now the little flame is all I care about in my life. There’s the baby, but that is a side issue. It’s my Pentecost, the forked flame between me and you. The old Pentecost isn’t quite right. Me and God is a bit uppish, somehow. But the little forked flame between me and you: there you are! That’s what I abide by, and will abide by, Cliffords and Berthas, colliery companies and governments and the money-mass of people all notwithstanding.
“That’s why I don’t like to start thinking about you actually. It only tortures me, and does you no good. I don’t want you to be away from me. But if I start fretting it wastes something. Patience, always patience. This is my fortieth winter. And I can’t help all the winters that have been. But this winter I’ll stick to my little pentecost flame, and have some peace. And I won’t let the breath of people blow it out. I believe in a higher mystery, that doesn’t let even the crocus be blown out. And if you’re in Scotland and I’m in the Midlands, and I can’t put my arms round you, and wrap my legs round you, yet I’ve got something of you. My soul softly flaps in the little pentecost flame with you, like the peace of fucking. We fucked a flame into being. Even the flowers are fucked into being between the sun and the earth. But it’s a delicate thing, and takes patience and the long pause.
“So I love chastity now, because it is the peace that comes of fucking. I love being chaste now. I love it as snowdrops love the snow. I love this chastity, which is the pause of peace of our fucking, between us now like a snowdrop of forked white fire. And when the real spring comes, when the drawing together comes, then we can fuck the little flame brilliant and yellow, brilliant. But not now, not yet! Now is the time to be chaste, it is so good to be chaste, like a river of cool water in my soul. I love the chastity now that it flows between us. It is like fresh water and rain. How can men want wearisomely to philander! What a misery to be like Don Juan, and impotent ever to fuck oneself into peace, and the little flame alight, impotent and unable to be chaste in the cool between-whiles, as by a river.
“Well, so many words, because I can’t touch you. If I could sleep with my arms round you, the ink could stay in the bottle. We could be chaste together just as we can fuck together. But we have to be separate for a while, and I suppose it is really the wiser way. If only one were sure.
“Never mind, never mind, we won’t get worked up. We really trust in the little flame, in the unnamed god that shields it from being blown out. There’s so much of you here with me, really, that it’s a pity you aren’t all here.
“Never mind about Sir Clifford. If you don’t hear anything from him, never mind. He can’t really do anything to you. Wait, he will want to get rid of you at last, to cast you out. And if he doesn’t, we’ll manage to keep clear of him. But he will. In the end he will want to spew you out as the abominable thing.
“Now I can’t even leave off writing to you.
“But a great deal of us is together, and we can but abide by it, and steer our courses to meet soon. John Thomas says good night to lady Jane, a little droopingly, but with a hopeful heart.”
Bibliographical Note
In October 1926, after his final visit to England, D. H. Lawrence began work on his last novel, his “English novel,” Lady Chatterley’s Lover, at the Villa Mirenda, Scandicci, Florence, and he completed the first version in February 1927. After an expedition to a number of Etruscan tombs in April, he wrote a second version which was completed before summer. Late in 1927 and during January of 1928, after a long and desperate siege of illness, he wrote the third and present version. With the help of Mrs. Aldous Huxley, a typescript was prepared for private publication under the imprint of the Florentine bookseller, Giuseppe Orioli; and on March 9, 1928, Lawrence and Orioli delivered the work to a painter who could not read English and some of whose assistants could not read at all. By March 15, Lawrence was sending out subscription forms (one thousand copies were to be printed and sold at two pounds each) to friends in England, France, and the United States. He began reading proofs in early April and the last were finished on May 24; the book was in press at the very end of that month. Finished books were being mailed out by the end of the first week in July 1928, and before the end of the year, Orioli had published a second edition of two hundred copies, printed “on common paper, to be sold at a guinea.” (The present text reproduces the first Orioli text except for
the correction of obvious typographical errors and mechanical irregularities.) The novel was immediately and frequently pirated in the United States and France, and to bring this theft to an end, Lawrence published a popular edition (“The Author’s Unabridged Popular Edition”) in Paris in May 1929. This edition carries an introductory essay called “My Skirmish with Jolly Roger,” which Lawrence subsequently lengthened and enriched in the essay called “A Propos of Lady Chatterley’s Lover,” posthumously published in June 1930. Two years after Lawrence’s death in 1930, an abridged version was issued by Alfred A. Knopf in New York and by Martin Secker in London, and this version has been widely distributed in inexpensive reprints since. It is not, of course, the novel as Lawrence wrote it, and cannot be so judged. The complete version has been published in English in many continental countries and in translation in most. In 1944, the Dial Press published Lawrence’s first manuscript version under the title The First Lady Chatterley. The second manuscript version has never been published except in an Italian translation issued by Mondadori in Milan. The third and final version has never been published in Great Britain, and never legally in the United States. The three manuscripts, beautiful in themselves and beautifully preserved, were until recently in the possession of Angelo Ravagli in Taos, New Mexico, and it was only through his great kindness and that of the late Frieda Lawrence Ravagli that the introduction to the present edition was made possible. It is reprinted from Evergreen Review, Volume I, Number I (1957).
M.S.
Decision of
Judge Frederick vanPelt Bryan,
United States District Court
Southern District of New York
GROVE PRESS, INC., Plaintiffs
against
ROBERT K. CHRISTENBERRY, Defendant
July 21, 1959
BRYAN, District Judge:
These two actions against the Postmaster of New York, now consolidated, arise out of the denial of the United States mails to the recently published Grove Press unexpurgated edition of “Lady Chatterley’s Lover” by D. H. Lawrence.
Plaintiffs seek to restrain the Postmaster from enforcing a decision of the Post Office Department that the unexpurgated “Lady Chattertey’s Lover”, and circulars announcing its availability, are non-mailable under the statute barring obscene matter from the mails (18 U. S. C. § 1461)1 They also seek a declaratory judgment to the effect (1) that the novel is not “obscene, lewd, lascivious, indecent or filthy” in content or character, and is not non-mailable under the statute or, in the alternative, (2) that if the novel be held to fall within the purview of the statute, the statute is to that extent invalid and violates plaintiffs’ rights in contravention of the First and Fifth Amendments.
Grove Press, Inc., one of the plaintiffs, is the publisher of the book. Readers’ Subscription, Inc., the other plaintiff, is a book club which has rights to distribute it.
Defendant has moved and plaintiffs have cross-moved for summary judgment, pursuant to Rule 56, F. R. C. P. There are no disputed issues of fact. The cases are before me for final determination on the pleadings, the decision of the Postmaster General, the record before him and supplemental affidavits.2
On April 30, 1959 the New York Postmaster withheld from dispatch some 20,000 copies of circulars deposited for mailing by Readers’ Subscription, which announced the availability of the new Grove edition of Lady Chatterley. At about the same time he also detained a number of copies of the book which had been deposited for mailing by Grove Press.
On May 8, 1959 letters of complaint issued by the General Counsel of the Post Office Department were served on Grove and Readers’ Subscription alleging that there was probable cause to believe that these mailings violated 18 U. S. C. § 1461, and advising them of a departmental hearing. The respondents filed answers denying these allegations and a hearing was held before the Judicial Officer of the Post Office Department on May 14, 1959.3
The General Counsel, as complainant, introduced the Grove edition and the circulars which had been detained and rested.
The respondents offered (1) testimony as to their reputation and standing in the book publishing and distribution fields and their purpose in publishing and distributing the novel; (2) reviews of the book in leading newspapers and literary periodicals throughout the country; (3) copies of editorials and comments in leading newspapers concerning publication of the book and its anticipated impact; (4) news articles dealing with the banning of the book by the Post Office; and (5) expert testimony by two leading literary critics, Malcolm Cowley and Alfred Kazin, as to the literary stature of the work and its author, contemporary acceptance of literature dealing with sex and sex relations and their own opinions as to the effect of the book on its readers. The editorials and comments and the news articles were excluded.
The Judicial Officer before whom the hearing was held did not decide the issues. On May 28 he issued an order referring the proceedings to the Postmaster General “for final departmental decision.”4
On June 11, 1959 the Postmaster General rendered a departmental decision finding that the Grove edition “ is obscene and non-mailable pursuant to 18 U. S. Code § 1461,” and that the Readers’ Subscription circulars “give information where obscene material, namely, the book in issue in this case, may be obtained and are non-mailable * * * .”
This litigation, which had been commenced prior to the decision, was then brought on for hearing.
I
The basic question here is whether the unexpurgated “Lady Chatterley’s Lover” is obscene within the meaning of 18 U. S. C. § 1461,5 and is thus excluded from the protections afforded freedom of speech and the press by the First Amendment.
However, the defendant takes the position that this question is not before me for decision. He urges that the determination by the Postmaster General that this novel is obscene and non-mailable is conclusive upon the court unless it is found to be unsupported by substantial evidence and is clearly wrong. He argues, therefore, that I may not determine the issue of obscenity de novo.
Thus, an initial question is raised as to the scope of the court’s power of review. In the light of the issues presented, the basis of the Postmaster General’s decision, and the record before him, this question is not of substance.
(1) Prior to Roth v. United States, 354 U. S. 476, the Supreme Court had “always assumed that obscenity is not protected by the freedoms of speech and press.” However, until then the constitutional question had not been directly passed upon by the court. In Roth the question was squarely posed.
The court held, in accord with its long-standing assumption, that “obscenity is not within the area of constitutionally protected speech or press.”6
The court was faced with a dilemma. On the one hand it was required to eschew any impingement upon the cherished freedoms of speech and the press guaranteed by the Constitution and so essential to a free society. On the other hand it was faced with the recognized social evil presented by the purveyance of pornography.
The opinion of Mr. Justice Brennan for the majority makes it plain that the area which can be excluded from constitutional protection without impinging upon the free speech and free press guarantees is narrowly limited. He says (p. 484):
“All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests.”
He gives stern warning that no publication advancing such ideas can be suppressed under the guise of regulation of public morals or censorship of public reading matter. As he says (p. 488):
“The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this are
a cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.”
It was against these constitutional requirements that the Court laid down general standards for judging obscenity, recognizing that it was “vital that [such] standards * * * safeguard the protection of freedom of speech and press for material which does not treat sex” in an obscene manner. The standards were “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
The Court did not attempt to apply these standards to a specific set of facts. It merely circumscribed and limited the excluded area in general terms.
Plainly application of these standards to specific material may involve no little difficulty as the court was well aware. Cases involving “hard core” pornography, or what Judge Woolsey referred to as “dirt for dirt’s sake,”7 purveyed furtively by dealers in smut, are relatively simple. But works of literary merit present quite a different problem, and one which the majority in Roth did not reach as such.8
Chief Justice Warren, concurring in the result, said of this problem (354 U. S. p. 476):
“* * * The history of the application of laws designed to suppress the obscene demonstrates convincingly that the power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social contro-versy. Mistakes of the past prove that there is a strong countervailing interest to be considered in the freedoms guaranteed by the First and Fourteenth Amendments.”