The Trials of Portnoy: how Penguin brought down Australia’s censorship system

THE TRIALS OF PORTNOY

Patrick Mullins is a Canberra-based academic and writer. He has a PhD from the University of Canberra, and his first book, Tiberius with a Telephone, a biography of former prime minister William McMahon, was published by Scribe in 2018.

Scribe Publications

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First published by Scribe 2020

Copyright © Patrick Mullins 2020

Excerpts from Portnoy’s Complaint by Philip Roth, copyright © 1969, 1997, by Philip Roth. Used by permission of Random House, an imprint and division of Penguin Random House LLC.

All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the prior written permission of the publishers of this book.

9781925849448 (Australian edition)

9781913348175 (UK edition)

9781925938265 (ebook)

Catalogue records for this book are available from the National Library of Australia and the British Library.

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Contents

Chapter 1 Wrap and pay

Chapter 2 In the national interest

Chapter 3 Another country

Chapter 4 The lady

Chapter 5 A literary onanism

Chapter 6 Regulation 4A

Chapter 7 Straws in the wind

Chapter 8 An endemic complaint

Chapter 9 Literature and liberty

Chapter 10 Peppercorns and pyrrhic victories

Chapter 11 A kick in the ribs

Chapter 12 The beginning of the game

Chapter 13 The subject of expert evidence

Chapter 14 Figures in dusty light

Chapter 15 A cloistered and untried virtue

Chapter 16 Paper tigers

Chapter 17 Stories of Australian censorship

Acknowledgements

Notes

Bibliography

CHAPTER 1

Wrap and pay

A few minutes before noon on Monday 31 August 1970, two men alighted from a car parked on Castlereagh Street, Sydney, and crossed the road, heading toward the Angus & Robertson bookstore. A cool wind was curling through the city and the street around them was busy: cars and buses stopping and starting on the road, lunching city workers jostling with wandering shoppers on the footpath. But amid this, the two men noticed, was a hubbub of activity. Outside Angus & Robertson, a film crew and television presenter were speaking to people on the street, and those with time were stopping to watch. As the two men approached, they observed an elderly man waving a book and talking into a proffered microphone, attracting favourable murmurs from the gathered crowd.

The two men noted the book the man was waving, but did not stop to listen. They made their way through the throng and entered the bookstore so slightly apart that no one could tell if they were together. Neither entered Angus & Robertson with the look of openness and idleness with which many enter bookstores. Once inside, they did not look around to gather their bearings. They did not browse the shelves, nor approach an attendant for help. Strangers to the store, they knew very well what they were doing.

The older of the two men, Quill, began walking towards the back of the store. His companion, Mitchell, followed two steps behind him. Their destination was the paperback section — a vast part of the store that encompassed seven display cases, two swivel shelves, and a wall of books that extended almost to the high ceiling. On any given day there were nearly 1,500 titles on those shelves: a varied and immense library of novels, poetry, short-story collections, works of history, philosophy, science, geography, and biography.

As Quill and Mitchell entered that section, uninterested in the books and undaunted by their number, they took note of the people milling around the shelves and the neat young man who was standing behind a counter, serving customers. There was a long, thin sign above him that read ‘Wrap and Pay’, and beside him, helping to package books, was a young woman with long, dark hair. There was a queue circling from behind the counter to the front, and Mitchell, with a nod from Quill, joined it. He made a mental note of those in front of him: a young woman with straight brown hair and no makeup, dressed in a navy-blue uniform and carrying a brown Globite bag; a man in his twenties, bearded, wearing a shabby navy skivvy, jeans, and old brown sandals; a middle-aged woman with grey hair, wearing a yellow coat; and, in front of her and at the head of the queue, three middle-aged men, all in suits and ties and all marks of respectability.

With Mitchell in the queue, Quill positioned himself so that he could see the counter. Both watched what happened there. They saw people exchange money for a book, which was withdrawn from below the counter, slipped into a brown-and-green Angus & Robertson–branded paper bag, and then handed over. It was the everyday commerce of any bookshop, but Mitchell and Quill watched as if it was the most interesting thing they had ever seen.

One by one, the line advanced. The exchange was repeated. It was quickly done. Each person in the queue was at the counter for barely a minute. As other people joined the queue, Quill and Mitchell continued to observe the transactions. They watched the middle-aged woman ask in a timid voice for a book, then smile nervously when she received it. They watched the shabbily dressed man. They watched the young woman. The two men were especially interested in her: they noted that her purchase — bold, unabashed, even a little loud — occurred without so much as a batted eyelid.

Finally, Mitchell reached the front of the queue. Quill watched him approach the counter. He saw it almost as an animatronic sequence, of action and reaction and reaction again. He saw Mitchell speak, the man behind the counter nod, the girl reach down and withdraw a book, which she slipped into a brown-and-green bag. She handed it over; the man behind the counter spoke again; Mitchell handed him a $2 note and received change. Then it was over: Mitchell was off, making for the exit.

Quill followed. Outside the store, amid the wind and the people and the noise of the city, Mitchell opened the bag and withdrew the book. He and Quill looked at it. It was a small, unremarkable thing: a paperback with an orange spine and a plain black cover. The publisher’s colophon was in the top-right corner — an ambling penguin, facing to the left. The title of the book was printed in graceful white text; the author’s name appeared above it in thick block capitals of yellowing scarlet.

Quill and Mitchell nodded to one another, satisfied, as though they had been doubtful they would receive the real thing.

They did not know it at that time, but by their simple purchase these two men had helped to set in train events that would lead to the collapse of a system that was, for many Australians, a simple and immutable fact of life. The government apparatuses that enforced censorship in Australia would be left tottering when a decision to prosecute those who had published and sold this book provoked a legion of booksellers, publishers, authors, journalists, and academics to rise to its defence. Those coming to this book’s defence believed that Australians had the right to read whatever they wanted; that censorship was stifling Australian intellectual and cultural life; that closed-minded wowsers were enforcing a system of morals that was hypocritical, outdated, and out of sync with the country that Australia was becoming. Many of these beliefs had been long-held — indeed, in the fights between censors and their opponents, these beliefs had regularly incited great passion and fine words.

But in two years’ time the battles would be virtually over. The censorship system, as it existed, would be all but abolished. And the slim novel that now rested in Mitchell’s hands would be at the heart of the reason why.

At that moment, on that cool day at the end of winter, as they stood on Castlereagh Street, neither man knew this. Neither Mitchell nor Quill had any inkling of what would eventuate from their visit to the Angus & Robertson bookstore. For them, this was simply routine, the banality of day-to-day police work.

They slipped the copy of Portnoy’s Complaint back into its bag. Then they turned and began walking towards King Street, unremarkable and unnoticed among the crowds. There was another bookshop to visit.

CHAPTER 2

In the national interest

By the time Australia federated in 1901, there existed already a thicket of laws to prevent publication and dissemination of the indecent and the obscene. ¹ Derived from English statutes and largely passed in the preceding quarter-century, when each of the states was a colony, these state-based laws constituted the first thorny element of Australia’s censorship regime. The second element was introduced later that year, when the new Commonwealth adopted the Customs Act and the Post and Telegraph Act. The former gave unbridled power to the Department of Trade and Customs to control all imports to Australia; the latter empowered the Postmaster-General’s Department to police the distribution of material through the postal system within Australia.

The powers exercised under these laws stemmed from the belief that censorship was protection: Australia was an outpost of the British Empire, and as susceptible to the contamination of impure literature as it was to foreign invasion. The vulnerable masses of the new nation had to be quarantined from material that would undermine character and moral virtue; where that material grew indigenously, it needed to be rooted out like a weed. ²

It was moral guardianship writ large, and the Commonwealth Government wasted no time in donning the mantle of protector. On 8 July 1901, before the Customs Act had even been proclaimed, officials in Melbourne seized a shipment of books imported by bookseller George Robertson & Co. ³ The two works that were the cause of ire were Honoré de Balzac’s Droll Stories and Paul de Kock’s Monsieur Dupont : bawdy, licentious, lively works of fiction, written in the realist style, about prostitutes, adulterers, violence, and poverty. To Customs officials, these French novels were dangerous and unacceptable works.

The trials of English bookseller Henry Vizetelly in 1888 and 1889, for publishing and selling translations of novels by Émile Zola, were catalysts for this panic and fear. British moralist Samuel Smith had claimed in the House of Commons that Zola’s work was poisonous and corrupting. Look what such literature had done for France, he said. It had ‘overspread that country like a torrent’. Its ‘poison’ was ‘destroying the whole national life’. Was Westminster to wait until this ‘deadly poison spread itself over English soil and killed the life of this great and noble people’ as well? ⁴

The wave of moral panic that Smith helped to whip up swept across the oceans and reached Australia. ⁵ Alfred Deakin, then the chief secretary in Victoria, ordered police to hunt in Melbourne’s bookshops for copies of Vizetelly’s translations; in 1889, his colleague the minister for customs, James Patterson, ordered prosecution of bookseller Edward Cole for importing a selection of French novels written in the same realist tradition. That prosecution had been widely applauded. ‘Probably every sane person,’ intoned The Age, ‘agrees that Zola is not only filthy but [also] revolting.’ ⁶ There were, moreover, calls for greater control over the books imported to Australia. As The Daily Telegraph asked, ‘Are we prepared to allow the more subtle and deadly infection of French literary vice to be emptied upon our bookstalls, and into the imagination of our children?’ ⁷

The motivations for the 1901 prosecution of George Robertson & Co. were therefore well understood and the explanations familiar. In the hearings in the Melbourne City Court that September, the Crown argued that prosecution was ‘in the interests of public morality’. Books by Balzac and de Kock were ‘literary garbage of the worst order, not even possessing literary quality to redeem them.’ The minister for trade and customs, South Australian MP Charles Kingston, had deemed the books ‘debasing, demoralising, and indecent’, and in the course of the trial the experts summoned by the prosecution hastened to agree.

But there was a strong undercurrent of ridicule and disapproval at the prosecution. ⁸ The defence pointed out that there had been no warning that a prosecution might be launched, and no consistency in its application — the same books having been imported in Sydney without incident by the same ship. These books had been imported for more than forty years without question, and the library at Parliament House held an illustrated edition of Droll Stories. Why had court action been taken?

As would become standard practice, the judiciary would not dissent from the moral mission of censorship. The magistrate ‘regretted’ that the action had been brought, but agreed that the books were indecent within the meaning of the act and that a penalty would have to be enforced. George Robertson & Co. was fined £100, mitigated to £25, without costs. ⁹

Successful in name, the result was hardly auspicious for the new Customs administration. Widespread criticism followed, especially from those uneasy at the prospect of politicians and officials determining the moral character of Australia’s citizens. But if the puritan, Irish-Catholic-dominated department was scalded by the public opprobrium it had attracted, it was not dissuaded from the righteousness of its mission. ¹⁰

In 1904, when a New South Wales royal commission on the declining birth rate identified a link between morality in the community and the use of contraceptives, Customs reasserted itself with a vehemence that was striking. It acted immediately on the commission’s recommendation that it prohibit and impede all ‘goods, articles, contrivances or other things designed or intended for use for the prevention of conception in women’. ¹¹

With the fervent agreement of the state governments, it worked to expand obscenity from the English law definition — the Hicklin definition, in play since 1868, of the power to deprave or corrupt — to include the functions of the body. Works that discussed, described, or advertised birth control, in particular, were now obscene. And in spite of the legal precedent to the contrary, the effect was that such information was banned. ¹² Similar revisions of what constituted obscenity and indecency would follow: ten years later, Customs would inform its officers that ‘indecent’ should be defined by what officers believed was ‘contrary to what is fit and proper’, and that they should be guided ‘by their experience of what is usually considered unobjectionable in the household of the ordinary self-respecting citizen’. ¹³

Customs did this in the shadows. Avoiding public court trials, the minister for trade and customs made use of his power under section 52c of the Customs Act to ban by proclamation the import of any work deemed by him to be obscene, indecent, or blasphemous. Lists of the banned or restricted works — what David Marr would later call the ‘index of Australia’s innocence’ — were themselves kept secret. ¹⁴ Aided by close relationships with the British government, which sent warnings of suspect publications, Customs officials inspected imported books on the wharves and runways, and seized questionable material from travellers’ suitcases almost unfettered; clerks in far-flung offices screened parcels and letters sent via the post, and Vice Squad officers inspected bookshops for illicit material. State laws on obscenity and indecency — now compounded by legislation for public health, crimes, advertising, defamation, commerce, and gaming, among other areas — allowed material to be seized and destroyed by fiat.

Societal good was the aim and the defence. Customs ‘would not hesitate to push the law to its utmost extent, in the public interest’, said H.N.P. Wollaston, the comptroller-general of customs, in 1907. ¹⁵ Nor would it allow its standards to drop. When it came time, in 1910, to ratify an agreement with the British on obscene publications, Australia’s government hesitated. Its censorship system and policies were pervasive and effective — more effective, even, than the British system that had been Australia’s model. The discrepancy was such that, as the historian Deana Heath would argue, Australia now regarded the imperial metropole with deep concern: it was a threat to the purity that Australian censorship had done so much to foster and protect. ¹⁶

***

The outbreak of the Great War allowed the censorship regime to widen its ambit to include explicitly political work. At the behest of the government of Billy Hughes, parliament passed the War Precautions Act in 1915. As its drafter, Sir Robert Garran, was to say, the act ‘suspended’ Magna Carta and gave to Hughes and Garran ‘full and unquestionable powers over the liberties of every subject’. ¹⁷ The intention of that act was to restrict distribution of seditious literature — but, in the view of a government grappling with staggering casualties and, from 1916 on, controversial plans to introduce conscription, this came to include an enormous amount of material, benign or otherwise. Moreover, loath to surrender these powers at war’s end, the Hughes government maintained them until 1921, whereupon it issued Proclamation 24, drawn from section 52g of the Customs Act, which all but duplicated those powers. ¹⁸

While aiming to check the spread of communist, anarchist, and fascist thought in Australia, the proclamation widened the scope for the seizure and destruction of material far beyond the stated purpose. Magazines ranging from Harper’s Bazaar to Cosmopolitan were banned; works on the 1916 Easter Rising in Ireland were seized; even important works of fiction, such as Ernest Hemingway’s A Farewell to Arms and Erich Maria Remarque’s All Quiet on the Western Front, were prohibited. The Scullin government revised the proclamation in 1929, but it was restored to its prior scope when the United Australia Party, led by Joseph Lyons, came to the government benches in 1932.

The following year saw the appointment of T.W. ‘Tommy’ White as minister for trade and customs. Son-in-law of Alfred Deakin and a decorated veteran of the Great War, White was a fervent anti-communist, a determined advocate for the military, and a pugnacious, even combative, politician. As minister for customs, he became closely identified with a resurgence of censorship. In 1935, he accused the Scullin government of allowing into Australia ‘scores of publications previously banned as seditious’, and he increased the number of bans on seditious works, targeting leftist publications about communism. ¹⁹

But a crucial factor in the growth and consolidation of censorship in Australia was changing. ²⁰ Banning pamphlets by small socialist organisations was one thing: they would rarely attract widespread and sustained attention. Banning works of fiction that were famous and acclaimed was different. And famous and acclaimed works of modernism — which sought a deliberate break from the empirical, the civilised, and the hierarchical, and prized instead the relentlessly new, the subjective, the chaotic, and the taboo — presented an impossible challenge for the censors. Bans placed on James Joyce’s Ulysses, in 1929, Norman Lindsay’s Redheap, in 1930, and Aldous Huxley’s Brave New World, in 1933, were extensively reported and aroused considerable public criticism. The ban on Redheap caused Lindsay to scoff that censorship was as effective as banning air. ‘Do they really think they can keep this country as an ignominious little mental slum, isolated from the world of serious intellectual values?’ he asked. ‘Do they think that an ostrich policy of sticking their own silly heads in the sand is going to save them from exposure elsewhere?’ ²¹ For their part, booksellers were stunned by the volte-face that had rendered their stock a liability. ‘The ban is utterly stupid,’ said an employee of Melbourne bookseller Robertson & Mullens, of the ban on Brave New World. ‘It will make us appear ridiculous to the English people … It is about time that the people knew who makes these decisions.’ ²²

Calls for public attention and scrutiny cut through. Newspapers took up the cause. ‘Whatever one believes,’ the Adelaide-based News editorialised, ‘he [or she] will hardly agree that the present system of censorship, under which a Minister of the Federal Government is the final arbiter of what Australians shall read, is anywhere near ideal.’ ²³

The glare of public scrutiny was anathema to censorship: it required secrecy and shadows. This attention from newspapers and the public was crucial to forcing change in censorship practices. For White, it was galling. A month after Brave New World was banned, he said that ‘the irritating critics’ should fight the ban or be quiet. They should order a copy from London; tell Customs so that it could be seized; and then sue for its return. The courts could decide. ‘I will meet the critics on their own ground,’ he promised. ²⁴

But the government wished to shut the debate down. In May 1933, it created the Book Censorship Board, an honorary body composed of three qualified and interested persons who would recommend whether a work should be banned. ²⁵ Designed to defuse criticisms of the lack of expert judgement and to defer responsibility for decisions from the minister, the committee’s lack of remit and the secrecy surrounding its work demonstrated that its establishment was largely for show. The committee did not consider seditious works; White could override its recommendations; and the mechanism by which it considered works meant that it only ever followed in the department’s footsteps.

White made clear his expectation that little would change. ‘Fine writing by prominent writers will not save them if their work is tinged with obscenity,’ he said. ‘My idea is that authors like [Richard] Aldington and Huxley should not escape the provisions of the law.’ ²⁶ Moreover, the lists of banned publications — works deemed obscene, blasphemous, seditious, or likely to deprave by an undue emphasis on sex or crime — only ever continued to grow during White’s tenure. Records indicate that in December 1933 there were sixty-six publications that had been deemed seditious and remained banned; eighteen months later, that list had grown to 157 publications. ²⁷

The founding of the Book Censorship Abolition League in 1934 was the inevitable consequence of these continued controversies. Driven by University of Melbourne academic William Macmahon Ball and bookseller Roy Rawson, the league initially sought abolition of all censorship by means of public campaigns and legal challenges. ²⁸ It was clear from the beginning that the league’s ideological poles would affect how it pursued this: Ball, a liberal political philosopher interested in education, was spurred to action after Customs seized six books on communism and the Soviet government that he had ordered for a course he was teaching. Rawson, meanwhile, was a socialist and radical who papered the back wall of his store with Customs confiscation notices. ²⁹

Barely three months passed between the league’s founding, in November 1934, and the first outbreak of dissent, with questions over whether abolition of all censorship was practical or even politically feasible. Ball himself wrote to The Age in February 1935 to call complete abolition ‘an extreme view’. ‘It is not the policy of the League,’ he went on, ‘and not a policy which would win any public support.’ ³⁰

That month, the league presented a petition signed by 20,000 people calling for return to Scullin government–era censorship policy and release of all books that freely circulated in England. White was unmoved: ‘The Cabinet is not taking the slightest interest.’ There were political grounds to explain White’s scorn: despite its popularity, the league had struggled to extend its influence beyond Victoria, and the presence of socialist and communist elements suggested that the league was a less liberal body than Ball’s advocacy suggested. Moreover, White was aware that censorship enjoyed considerable support around the country. Letters from church groups and community organisations poured into his office and fortified White’s resolve. ‘I am quite sure that the majority of people appreciate what is being done in carrying out the laws of the country regarding the exclusion of indecent or seditious literature,’ he wrote to one supporter. ³¹ Criticism levelled at him in the press, which he regarded as overtly personal, did much to reinforce White’s view that he was in the right. ³²

Increasingly of the view that compromise with White was impossible, the league sought to circumvent him. Its opportunity came in December 1935, when the minister for industry and the attorney-general, Robert Menzies, returned to Australia. Then aged forty-one, Menzies was a former barrister who had served as deputy premier of Victoria until his election in 1934 to the federal seat of Kooyong. A man of spritely intelligence, with a fine speaking manner and a talent for debate, Menzies’ skills were too many to be left unused on the backbench. Joseph Lyons, the prime minister, therefore elevated him immediately to the ministry and, almost as quickly, took him to London to participate in trade talks and celebrations for the silver jubilee of King George V.

Menzies’ absence from Australia had allowed White to expand his control of censorship policy. The attorney-general’s department was supposed to determine whether a seditious work should be banned or released — not Customs. But, late in 1933, when it started to approve for release works of communist and socialist literature, White countermanded convention by allowing his department to ban books without referring them to the attorney-general’s department.

Menzies’ return, therefore, was important. His mind was stricter on questions of the law than was White’s, and his rapport with Ball — whom he had known since late in the 1920s — was considerably warmer than with his colleague. Moreover, usually unnoticed but important was Menzies’ streak of quiet bohemianism: a willingness to be entertained by bawdy comedy, literary drama, and artistic whimsy. In response to representations from Ball, Menzies saw to it that responsibility for determining whether a publication was seditious was returned to the attorney-general’s department, and he responded favourably to lobbying about specific books. ‘Neither of us has time to waste,’ Menzies replied, to one instance of Ball’s lobbying. ‘The banned books to which you refer will be unbanned in the morning.’ ³³

***

That small victory set in motion the demise of the Book Censorship Abolition League, but the public opposition to censorship it had fomented continued to percolate. Prime Minister Joseph Lyons seemed to respond to this in 1936 when he answered a question on notice, in Hansard, stating that interpretation of censorship policy would be ‘in a spirit consonant with the established British principle of the freedom of the press’. ³⁴

That hint of a change found form the following year, when the Book Censorship Board was reconfigured as the Literature Censorship Board, with formalised, regulatory duties, and an avenue for appealing board recommendations. ³⁵ But, again, belying the extent of actual change — bans on A Farewell to Arms, Brave New World, and Ulysses were rescinded, and censorship of works of communist and socialist thought was relaxed, for example — the overarching powers of the government to reassert its control of censorship remained undiminished. It would delegate powers to mollify criticism and then retrieve them as it wished. This was particularly evident in the aftermath of the recission of the ban on Ulysses.

In September 1941 — six months after James Joyce’s death, two years after the onset of World War II, and four years after the ban on Ulysses had been removed — the president of the Catholic Evidence Guild complained to Eric Harrison, minister for trade and customs in the perilously poised Fadden government, that Joyce’s maze of a novel was ‘blasphemous, indecent, and obscene, almost from cover to cover’. Harrison flicked the matter to his department. A senior clerk obtained a copy of the book, and, citing passages on fifteen pages, reported that its supposed literary merit could not justify its unrestricted circulation in Australia. He claimed, inaccurately, that Ulysses was banned in the United Kingdom and Canada. ³⁶

That clerk’s superiors backed him up. ‘In my opinion,’ wrote A.H. Wilson, acting assistant comptroller-general, ‘the book reeks with indecency, obscenity, and blasphemy and should be prohibited.’ And yet there was a note of hesitancy. Reasserting a ban could be logistically difficult and would certainly be embarrassing. ³⁷ Harrison — a man who saw black and white, and nothing in between — had no such hesitation. ³⁸ On 16 September, he ordered the department to reclassify Ulysses as fit only for ‘restricted circulation’. ³⁹

The decision brought immediate controversy. Criticism of inconsistency and the sidelining of the board filled the newspapers, which carried additional reports of bookshops being rushed for copies. Amid the hoopla were some who simply wanted to know what the fuss was about. Former prime minister Billy Hughes went to the Parliamentary Library to borrow a copy of Ulysses, but found that too many others had been there before him: there were none left to borrow. So he tried Finnegans Wake. ‘This man is an