The Prehistory of Porn Prosecution

How "licentious Gotham" gave rise to today's obscenity laws

Nick Gillespie from the July 2009 issue

Licentious Gotham: Erotic Publishing and Its Prosecution in Nineteenth-Century New York, by Donna Dennis, Cambridge: Harvard University Press, 408 pages, $29.95

When even the most computer-challenged preteen can easily Google an infinite number of very dirty pictures, it is almost quaint to ponder antebellum porn, which was heavy on suggestion and implication when it wasn’t masquerading as medical advice. One representative publication, The Secret Habits of the Female Sex (1848), came translated “from the French of Jean Dubois, M.D.” (ooh la la!) and promised readers “of all classes” clinically graphic details of what happened to young girls who became “the premature victims of a pernicious passion,” along with information about “a Medical Treatment
and regimen which has never failed of success.”

There were also innovative “flash weeklies,” racy tabloids with titles such as The Libertine of New York that publicized the locations of brothels and the services offered within, sometimes under the pretense of investigative journalism. The Weekly Rake reported on a prostitute named Maria who “was decked in all the finery the dry goods and jewelry stores of this city can afford. Her residence is Green Street and she has, (we have her word for it) only three gentlemen visitors. She is a very fine looking woman of 30, about the middle size.”

The editors and publishers of the flash weeklies also routinely blackmailed prominent men who frequented the dens of iniquity, threatening johns with exposure of the worst sort. (That’s a revenue stream the embattled newspaper industry might think about replenishing.) Sometimes the victims fought back in court. A stockbroker dubbed “Big Levy” in the flash press pressed libel charges after being called a “practical amalgamationist” due to his alleged predilection for African-American prostitutes.

Licentious Gotham, a new history by Rutgers law professor Donna Dennis, covers all this and much more in riveting and good-natured detail. It’s not just Dennis’ descriptions and reproductions of old-fashioned dirty pictures that hold the reader’s attention (though both help). Her analysis of legal and social responses to the growth of erotica is as compelling as it is comprehensive. Civic leaders fretted first and foremost that passion-inducing material “posed a special risk of harm because it represented the antithesis of rational, ordered liberty,” writes Dennis.

As the makers of contemporary porn (and video games, movies, andmusic) could tell you, such fears are alive and well in contemporary America. In 2005, while pushing legislation that would restrict distribution of video games, then-Sen. Hillary Clinton (D–N.Y.) told USA Today that the controversial Grand Theft Auto franchise encouraged children “to have sex with prostitutes and then murder them.” Last year the “extreme porn” king Max Hardcore (a.k.a. Paul Little) was sentenced to almost four years in jail after a Florida jury found him guilty of distributing material a judge called “degrading” and “clearly humiliating.” Despite a general decline in violent sexual offenses during the last 30 years—a period in which violent sexual imagery has become almost ubiquitous—guardians of taste, decorum, and public morality continue to insist that porn and erotica lead to crime.

Dennis eschews moralism and underscores ways the prohibitionists and pornographers abetted each other’s efforts. In 19th-century America, she explains, municipal authorities initially had few legal weapons to use against smut, so they eventually created the laws and statutes that continue to govern obscenity prosecutions, albeit in an attenuated way. Porn producers back in the day responded by becoming early adopters of new technologies and distribution methods, including lushly produced editions that, like The Secret Habits of the Female Sex, were often coyly titled and advertised in heavily coded language.

“The prohibitions against obscenity gave rise to innovative ways of creating, marketing and distributing pornography,” Dennis writes. “In turn, new forms of pornography generated new prohibitions, including unprecedented techniques for regulating, investigating and prosecuting pornographers.” Early porn merchants skirted local laws by selling their wares through the U.S. mail, which eventually gave rise to federal prohibitions, “a striking regulatory move” during a period when almost all crimes were prosecuted at the local level. The 1873 Comstock Act, which made it illegal to send obscenity via the postal service, was an early indication of a broad-based shift of power from the states to Washington, D.C.

While most porn cases are still brought by local prosecutors, the federal government sets the overall tone and it’s not immediately clear what signal the Obama administration is sending. As a member of the Clinton Justice Department, Attorney General Eric Holder authored a memo which outlined strategies for prosecuting pornographers. However, one of Holder’s deputy attorneys general, David Ogden, has defended porn producers in the past. In March, Rob Black and Lizzie Borden of Extreme Associates pleaded guilty to conspiring to distribute obscene materials through the mail; their sentencing is scheduled for July (see “Bush-Era Porn Prosecution Ends in Guilty Plea,” page 12). A similar prosecution of Evil Angel Productions’ John Stagliano is still pending. If convicted and given the maximum sentence, he could spend decades in prison. (Full disclosure: Stagliano has given money to the Reason Foundation, the nonprofit publisher of this magazine.)

There’s an important lesson to be drawn from Licentious Gotham: However repugnant the desires, dreams, and fantasies of consenting adults may seem to some, moral regulators cannot effectively police them. Indeed, prohibition typically creates or exacerbates many more problems than it solves. It’s a lesson we are painfully slow to learn as a society, whether the offending substance is alcohol, marijuana, or porn. This book may speed up our education.

Nick Gillespie ([e-mail]) is editor in chief of reason.tv and reason.com. A shorter version of this article appeared in the New York Post.

Comments

|6.12.09 @ 12:24PM|#

The 1873 Comstock Act, which made it illegal to send obscenity via the postal service, was an early indication of a broad-based shift of power from the states to Washington, D.C.

< oldtimeyfont >"Verily, it is for the child'rn."< / oldtimeyfont >

Warty|6.12.09 @ 12:57PM|#

I see on the news that there is an AIDS outbreak in the porn industry, but none of the stories tell me which pornwhores have the hi-5. This is most vexatious.

Brian Sorgatz|6.12.09 @ 12:59PM|#

Nineteenth-century porn will turn our youth into craven rapscallions who tie women to railroad tracks as they twirl their handlebar mustaches. Hiss! Boo!

|6.12.09 @ 1:10PM|#

Warty, would that be a porndemic?

shecky|6.12.09 @ 1:17PM|#

s an AIDS outbreak in the porn industry

Yes, there are some chains rattling over the prospect of enforcing some kind of "condom use in the workplace" OSHA-type rule. Though it seems that the industry is doing a pretty good job of policing itself. Sharon Mitchell is usually the one to go to for good opinion on the matter.

|6.12.09 @ 1:32PM|#

Sorgatz, your post reminded me of Norm McDonald's fantastic roast of Bob Saget. (Though this one was addressed to Gilbert Godfrey.)

"If you see the restroom marked 'gentlemen', pay no heed and go on in. You'll not find one marked 'scoundrels'."

[crowd silent, other comedians practically doubled over]

Warty|6.12.09 @ 1:46PM|#

FrBunny, you may be a vegetarian, but you're still full of baloney in my book.

|6.12.09 @ 1:48PM|#

Love in the Time of Petticoats
Chapter One

Julia was never aware of the exact point in her life when she knew that she wasn't like the other girls, but as she straightened her bowtie to wear in public for the first time, she knew in her heart that Miss Bushelrod's small schoolhouse would never be the same.

I don't want to give too much away, but the book follows Julia into college and her attempt to break into the exclusively male club of big city undertakers. But it's not all local politics and gender ambiguity. There's quite a bit of corset-loosening and corset-tightening. Page after page of meaningful glances. Careless things said in the heats of passion and anger. Misunderstandings, so many misunderstands. False signals. Accusations. Denials. Shame. Hope. Redemption. And finally love, lots and lots of love... in the form of graphic lesbian sex. But it has a happy ending, at the end of the book, she and her lover found the WNBA.

Jeff P|6.12.09 @ 1:53PM|#

Top Kinescopes for Excitable Adults:
Strumpets of Questionable Morals Volume 5
An Ill-Advised Gathering of Wenches
Ungentlemanly Acts involving Negresses
Knickersnappers!

|6.12.09 @ 1:57PM|#

Warty, you have a lot of well-wishers here tonight. And some people who just want to push you down one!

...A well, that is. They want to murder you. In a well.

|6.12.09 @ 1:59PM|#

Excellent, Jeff P.

Naughty Teen Octoroons 3
Bustle Benders
Barely Consumptive Vol. 27
Chamberpot Maid Splash Party
Bundling Board Confessions

Xeones|6.12.09 @ 2:25PM|#

Ah SugarFree, always good with the really bizarre links (when they actually work).

Jeff P|6.12.09 @ 2:52PM|#

Oh! Such Ribaldry!
Millicent and the Sultan
The Man with the Vigorous Pelvis
Making Sport of Prudence's Virtue
Uppity Suffragettes

And of course
Cartpetbaggers!

Henry|6.12.09 @ 3:36PM|#

Nick Gillespie is new at Reason?

Jeff P|6.12.09 @ 3:42PM|#

Matrons I'd Like to Fornicate With.
Devilish Dalliances

|6.12.09 @ 4:12PM|#

Asslick and Old Lace

|6.12.09 @ 4:37PM|#

Great Dissipations
Ye Old Bicuriosity Shoppe
Barnaby Nudge Nudge
A Sale of Two Titties
The Dipwick Capers
Martin Chuzzlecum
David Cunningfeel'd
Hard Times [sic]

|6.12.09 @ 4:40PM|#

Brandybuck

Those are by Charles "Big'un" Dickens, right?

Heather |6.14.09 @ 12:41PM|#

I love how this discussion turns away from the idea that restricting and forbidding something makes it more appealing to giving the classics porn names.

For Whom the Belle Toils.

|6.14.09 @ 2:38PM|#

Two Maides, One Flagon

|6.15.09 @ 9:59AM|#

One look at his wife and I would think Obama must be pro-pornography.

Unless he's got a thing for body building apes.

ATX-ShotCaller|6.16.09 @ 7:48PM|#

Porn these days is the reason, pun intended, to manifest these "To Catch a Predator" maniacs into their sexual terror. I agree with freedom of speech of course, since it is in our constitution, but how do we deal with the negative effects of porn, despite all the positive!