Obscenity Law and Its Consequences in Mid-Nineteenth-Century America


OBSCENITY LAW AND ITS CONSEQUENCES
IN MID-NINETEENTH-CENTURY AMERICA

DONNA I. DENNIS*

The conventional history of obscenity and pornography in America
begins about one hundred thirty years ago with the passage of the Comstock
Act in 1873, which banned obscene literature from the mail.' A resulting
climate of sexual repression prevailed until the middle of the twentieth
century, when the United States Supreme Court's decision in Roth v. United
States,2 and later in Miller v. California,3 loosened restrictions on the sale of

* Associate Professor of Law, Rutgers School of Law-Newark. The author thanks
Sherry Colb, Claire Dickerson, Suzanne Goldberg, Dirk Hartog, Stan Katz, Nancy Louden,
Liz Lunbeck, Jim Pope, Robert Post, and Chris Stansell for their generous assistance and
encouragement at various points in this project. She is also grateful to the participants at the
2005 Columbia-Georgetown-USC Junior Scholars Law and Humanities Workshop,
especially commentators David Rabban and Reva Siegel, the Spring 2005 Rutgers School of
Law-Newark Faculty Colloquium, and the 2004 annual meeting of the American Society for
Legal History for their valuable insights and suggestions on earlier drafts. Any errors, of
course, are the author's alone. In connection with the research for this Article, the author
received funding from the Mrs. Giles Whiting Foundation in the Humanities and the Dean's
Fund of the Rutgers School of Law-Newark.

1 An Act for the Suppression of Trade in, and Circulation of, Obscene Literature
and Articles of Immoral Use, 17 Stat. 598 (1873) [hereinafter Comstock Act]. Its popular
name reflects the critical lobbying role played by America's most famous and aggressive
censor, Anthony Comstock, in securing passage of the Act and his more than forty-year
tenure as a special agent of the Post Office overseeing its enforcement. For informative
studies of Comstock, see NICOLA BEISEL, IMPERILED INNOCENTS: ANTHONY COMSTOCK AND
FAMILY REPRODUCTION IN VICTORIAN AMERICA (1997); PAUL S. BOYER, PURITY N PRINT:
BOOK CENSORSHIP IN AMERICA FROM THE GILDED AGE TO THE COMPUTER AGE (2d ed. 2002);
HEYWOOD BROUN & MARGARET LEECH, ANTHONY COMSTOCK: ROUNDSMAN OF THE LORD
(1927); HELEN LEFKOWITZ HOROWITZ, REREADING SEX: BATTLES OVER SEXUAL KNOWLEDGE
AND SUPPRESSION IN NINETEENTH-CENTURY AMERICA (2002); Craig L. LaMay, America's
Censor: Anthony Comstock and Free Speech, 19 COMM. & L. 1 (1997). For analysis of
historiography on nineteenth-century obscenity regulation, including the Comstock Act, see
Donna I. Dennis, Obscenity Law and the Conditions of Freedom in the Nineteenth-Century
United States, 27 LAW & SOC. INQUIRY 369 (2002).

2 354 U.S. 476 (1957).

S413 U.S. 15, 24 (1973). Miller identifies the current test for obscenity as follows:

(a) [W]hether 'the average person, applying contemporary community
standards' would find that the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable



Columbia Journal of Gender and Law [Vol. 16:1

sexually explicit material to adults. The standard narrative picks up again in
the late twentieth century with the efforts of feminist theorists and activists
Catharine MacKinnon and Andrea Dworkin to suppress pornography as a
violation of women's civil rights.4 It ends with present-day controversies
over the flood of sexually explicit images on the Internet and panic over
child pornography.

5

However, a significant untold history of both sexual representation
and obscenity prosecution precedes the usual starting point of this
narrative.6 This early history helps to explain how pornography emerged as
a cultural and economic phenomenon in American life.7 It also offers

state law; and (c) whether the work, taken as a whole, lacks serious

literary, artistic, political, or scientific value.

Id.

4 See generally ANDREA DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN

(1981); IN HARM'S WAY: THE PORNOGRAPHY CIVIL RIGHTS HEARINGS (Catharine A.
MacKinnon & Andrea Dworkin eds., 1998); CATHARINE A. MACKINNON, FEMINISM
UNMODIFIED: DISCOURSES ON LIFE AND LAW (1987) [hereinafter MACKINNON, FEMINISM

UNMODIFIED]; CATHARINE A. MACKINNON, ONLY WORDS (1993); CATHARINE A.
MACKINNON, WOMEN'S LIVES, MEN'S LAWS (2005).

5 For perceptive discussions of contemporary panic over child pornography, see
Amy Adler, The Perverse Law of Child Pornography, 101 COLUM. L. REV. 209 (2001);
MARJORIE HEINS, NOT IN FRONT OF THE CHILDREN: "INDECENCY," CENSORSHIP, AND THE

INNOCENCE OF YOUTH (2001).

6 For a detailed history of erotic publishing and obscenity prosecution in pre-

Comstock era New York, see Donna 1. Dennis, Obscenity Regulation, New York City, and
the Creation of American Erotica, 1820-1880 (2005) (unpublished Ph.D. dissertation,
Princeton University) (on file with author). My forthcoming book on commerce in
pornography and obscenity regulation in nineteenth-century New York, Licentious Gotham,
is under contract to Harvard University Press. For important early recognitions by cultural
and literary historians of the existence of a market for erotic literature in antebellum New
York, see TIMOTHY J. GILFOYLE, CITY OF EROS: NEW YORK CITY, PROSTITUTION, AND THE

COMMERCIALIZATION OF SEX, 1790-1920 (1992); DAVID S. REYNOLDS, BENEATH THE

AMERICAN RENAISSANCE: THE SUBVERSIVE IMAGINATION IN THE AGE OF EMERSON AND

MELVILLE (1988). For a revealing study of wide-ranging conversations about sex and
struggles over sexual speech in nineteenth-century America, see HOROWITZ, supra note 1.

7 Pornography is often treated as a marginal practice, yet nothing could be further
from the truth. See Sixty Minutes: Porn in the U.S.A. (CBS television broadcast Nov. 21,
2003), available at www.cbsnews.com ("It is estimated that Americans now spend
somewhere around $10 billion a year on adult entertainment, which is as much as they spend
attending professional sporting events, buying music or going out to the movies."). For a
recent scholarly recognition of the centrality of pornography to American society, economy,
and culture, see PORN STUDIES (Linda Williams ed., 2004).



2007] Obscenity Law and Its Consequences 45

valuable perspectives on the meaning and function of obscenity law,
fundamental issues that continue to bedevil American law and policy. In
particular, the legal history offered here illuminates the ways in which
obscenity prohibitions often encouraged, rather than suppressed, the growth
of an American pornography trade. 8 It also demonstrates the significant role
that obscenity law played in shaping commercial and cultural constructions
of sexual desire.

Part I of this Article provides a brief summary of the doctrine of
obscenity as it arose in English common law and developed in the United
States in the first half of the nineteenth century. In essence, nineteenth-
century American jurists, following the lead of English treatise writers,
routinely asserted that government officials had the authority to suppress
any speech or conduct that had a tendency to corrupt public morality,
including the authority to punish the sale of "obscene" publications.
Relying solely on these elite expressions of law and on the language of state
statutes that purported to regulate morality, one might well conclude that
state and local governments seamlessly exercised the power to police
morality and suppress indecency in nineteenth-century America.9

8 A note about terminology is in order. While "obscenity" was a widely used term
in mid-nineteenth-century America, "pornography" was not. Indeed, "pornography" did not
appear in any version of Noah Webster's American Dictionary of the English Language, the
leading American dictionary throughout the antebellum period, from its first edition in 1828
through 1860. When "pornography" first appeared in 1864, it was narrowly defined as
"[1]icentious painting employed to decorate the walls of rooms sacred to bacchanalian orgies,
examples of which exist in Pompeii." See entry for "Pornography" in AN AMERICAN
DICTIONARY OF THE ENGLISH LANGUAGE 1013 (Springfield, G. & C. Merriam 1864).
Nonetheless, as this Article makes clear, erotic writing and pictures circulated in the United
States even before the Civil War. Rather than call such representations "pornographic,"
nineteenth-century Americans commonly referred to them as "fancy." When possible, this
Article employs nineteenth-century usage. However, the word "pornography" sometimes
appears as shorthand to describe those publications that presented sexual behavior or sexual
organs in overt form and in ways that violated the moral and social taboos of their day. This
definition represents a slight adaptation of one offered by historian Peter Wagner, who has
characterized eighteenth-century pornography as the "written or visual presentation in a
realistic form of any genital or sexual behaviour with a deliberate violation of existing and
widely accepted moral and social taboos." PETER WAGNER, EROS REVIVED: EROTICA OF THE

ENLIGHTENMENT IN ENGLAND AND AMERICA 7 (1988). While Professor Wagner's
formulation is apt in most respects, I have deleted the emphasis on realism because it
conflicts with the highly metaphorical, often quite flowery, language of many erotic works
sold in the United States in the nineteenth century, even those that directly referred to sexual
behavior.

9 For example, in his prize-winning book, The People's Welfare, William Novak
argues that antebellum morals regulation was pervasive and all-powerful. WILLIAM J.
NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH-CENTURY AMERICA
149-89 (1996). However, Professor Novak relies heavily on the formal language of state



Columbia Journal of Gender and Law [Vol. 16:1

But fully understanding the operation of obscenity law in American
culture and society requires looking beyond formal law.'0 Part II therefore
examines the ways in which obscenity doctrine was applied "on the
ground" in the context of specific criminal prosecutions involving the sale
of obscene books in New York City between the early 1840s, when
significant numbers of obscenity cases first arose, and the start of the Civil
War in 1861. This discussion relies heavily on data compiled from the
unpublished District Attorney Indictment Papers for the principal criminal
court in New York County at that time, the Court of General Sessions."'

New York City provides a natural focal point for this inquiry for
several reasons. By the middle of the nineteenth century, it was not only the
largest city in the United States; it was also the site of the country's
principal financial, manufacturing, and cultural institutions.' 2 In addition, in

statutes and municipal ordinances, supplemented by the uninterrogated pronouncements of
elite jurists who wrote appellate cases and compiled treatises on various areas of legal
doctrine, such as criminal law and nuisance law. As a result, for all its virtues, The People's
Welfare largely neglects to explore whether the law "on the books" was actually enforced or
how it worked in practice. See Harry N. Scheiber, Private Rights and Public Power:
American Law, Capitalism, and the Republican Polity in Nineteenth-Century America, 107
YALE L.J. 823 (1997) (book review) (pointing out the need for historians to investigate
enforcement of laws cited in The People 's Welfare).

I0 A number of instructive studies have highlighted the importance of investigating

how criminal law enforcement actually operated in the nineteenth-century United States. See
GEORGE FISHER, PLEA BARGAINING'S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA
(2003); LAWRENCE M. FRIEDMAN & ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME

AND PUNISHMENT IN ALAMEDA COUNTY, CALIFORNIA, 1870-1910 (1981); ALLEN STEINBERG,
THE TRANSFORMATION OF CRIMINAL JUSTICE: PHILADELPHIA, 1800-1880 (1989); George

Fisher, Plea Bargaining's Triumph, 109 YALE L.J. 857 (2000).

11 The Court of General Sessions had jurisdiction over felonies and all other

indictable offenses except for capital crimes. Mike McConville & Chester Mirsky, The Rise
of Guilty Pleas: New York, 1800-1865, 22 J. L. & Soc'Y 443, 443 (1995). See also MIKE
MCCONVILLE & CHESTER MIRSKY, JURY TRIALS AND PLEA BARGAINING: A TRUE HISTORY 18-

43 (2005) (describing the organization of the criminal justice system in antebellum New
York County). For the period considered in this Article, the borders of New York County
were equivalent to those of present-day Manhattan.

12 EDWARD K. SPANN, THE NEW METROPOLIS: NEW YORK CITY, 1840-1857, at 313

(1981) ("By the 1850s, New York had become a metropolis, a great organization of powers
and skills that strengthened its commercial and cultural dominance of the nation while
making it a major presence in world society."). On the centrality of New York, see also SVEN
BECKERT, THE MONIED METROPOLIS: NEW YORK CITY AND THE CONSOLIDATION OF THE

AMERICAN BOURGEOISIE, 1850-1896, at 19 (2001) (New York in the 1850s was "the center
of the nation's trade, information, and transportation networks. Indeed, in contrast to all

other urban areas in the United States, New York dominated not only its hinterland and the
northeastern region but also the nation as a whole."); AMY BRIDGES, A CITY IN THE



Obscenity Law and Its Consequences

the decades leading up to the Civil War, New York established itself as a
communications capital, pushing aside its chief rivals, Boston and
Philadelphia, to lead the nation's burgeoning publishing industries. 13 Most
importantly for this Article, by the start of the Civil War, New York had
emerged as the headquarters for an ambitious, entrepreneurial network of
publishers who pioneered the production and marketing of sexual writing in
the United States. The city's preeminence in the field of sexually
stimulating publications was widely recognized by the early 1860s, when its
publishers and dealers earned national notoriety for exploiting the
escalating demand for mail-order erotica among Civil War soldiers. 14

In an effort to delineate the early meaning of obscenity, Part 1I goes
on to explore a wide range of non-legal primary sources, including rare
surviving examples of erotica, pulp fiction, popular guides to health,
anatomy, and reproduction, moral reform tracts, and advertising circulars of
publishers who specialized in pornography. Together with evidence from
obscenity indictments, these documents clarify how government officials in
the antebellum era first drew the boundaries between illicit, "obscene"
speech and indecent, but legally permissible (i.e., non-"obscene") speech. In
particular, they reveal the type of representation that lay at the heart of
antebellum constructions of the obscene, namely, overt depictions of female
passion and pleasure. At the same time, they show that government
authorities generally tolerated several other forms of writing that many mid-
nineteenth-century moral reformers vociferously condemned as indecent
and immoral. Examples of genres that escaped prosecution for obscenity
include health manuals that provided advice on birth control and abortion

REPUBLIC: ANTEBELLUM NEW YORK AND THE ORIGINS OF MACHINE POLITICS 39 (1984)

("New York was the commercial, financial, and by 1860 the industrial center of the union,
extending its tentacles of trade over its continental hinterland and in the process becoming
the economic center of a fledgling world power.").

13 On New York's preeminence in book publishing, see RONALD J. ZBORAY, A
FICTIVE PEOPLE: ANTEBELLUM ECONOMIC DEVELOPMENT AND THE AMERICAN READING

PUBLIC (1993). By 1856, New York City publishers produced nearly forty percent of the
total dollar value of all books made in the United States. Id. at 12. On New York's
preeminence in newspaper publishing, see generally DAN SCHILLER, OBJECTIVITY AND THE
NEWS: THE PUBLIC AND THE RISE OF COMMERCIAL JOURNALISM (1981); MICHAEL SCHUDSON,

DISCOVERING THE NEWS: A SOCIAL HISTORY OF AMERICAN NEWSPAPERS 12-60 (1978). On
New York's role as an information center, see ALLAN R. PRED, URBAN GROWTH AND THE
CIRCULATION OF INFORMATION: THE UNITED STATES SYSTEM OF CITIES, 1790-1840 (1973).

14 See ANDREA TONE, DEVICES & DESIRES: A HISTORY OF CONTRACEPTIVES IN

AMERICA 4-5 (2001).

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and sensational novels that combined graphic violence with euphemistic
sex.

Part III analyzes the social, economic, and cultural consequences
that attended the rise of obscenity prosecutions. 15 This section demonstrates
that, rather than eradicating lewd writing, legal restrictions on obscenity
paradoxically promoted the proliferation of erotic representations in at least
three distinct ways. First, obscenity prosecutions inspired entrepreneurial
publishers of illicit sexual literature to turn to new methods of interstate
advertising and distribution via the U.S. mail. Designed to circumvent local
regulation, these strategies had the additional effect of extending markets
for erotica across the nation. Second, obscenity prosecutions spurred the
production of new genres of sexually stimulating publications. These
innovations included America's first pornographic periodical, which sought
to profit from legal prohibitions on female eroticism by disseminating
forbidden stories of independent, sexually assertive women to mail-order
customers throughout the United States. They also included luridly
sensational, so-called "racy" novels, which self-consciously skirted the
perceived border of obscenity and eroticized graphic violence as a substitute
for illicit depictions of sex. Third, obscenity cases generated valuable
publicity for New York's erotic publishing industry just as it was
establishing itself as a new medium of commerce and communication. Each
of these developments subverted the formal power of antebellum
governments to suppress indecent publications, even while treatise writers
and other legal commentators championed state authority to restrict such
commerce under the law of obscenity.

I. THE DOCTRINE OF OBSCENITY

Throughout the nineteenth century, elite sources of American law
made sweeping doctrinal pronouncements declaring that states and
localities had inherent power to regulate morality. 16 Treatise writers

15 My thinking on this subject has been greatly informed by the important body of
scholarship on the constitutive effects of law. For two landmark articles, see Robert W.
Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 57-125 (1984); Austin Sarat &
Thomas R. Kearns, Beyond the Great Divide: Forms of Legal Scholarship and Everyday
Life, in LAW tN EVERYDAY LIFE (Austin Sarat & Thomas R. Kearns eds., 1993).

16 On strong support for morals regulation in nineteenth-century legal doctrine, see
NOVAK, supra note 9, at 149-89; Herbert Hovenkamp, Law and Morals in Classical Legal
Thought, 82 IOWA L. REV. 1427 (1997).

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Obscenity Law and Its Consequences

frequently cited the suppression of indecency through the prosecution of
obscene speech as a paradigm of morals regulation. 7

A major source for obscenity doctrine in the United States was the
English common law of obscene libel. In England, the King's Bench first
recognized obscenity as an offense in 1727.18 The occasion was the
conviction of the notorious British pornographer Edmund Curll for printing
Jean Barrin's anti-Catholic novel about a group of sexually overheated
nuns, seductively entitled Venus in the Cloister; or The Nun in her Smock.19

Over the next century, English jurists developed a broad definition of
obscene libel. Francis Ludlow Holt, a leading English authority on libel,
included a chapter on "Libels Against Morality and the Law of Nature" in
his landmark treatise, The Law of Libel. As a general matter, Holt
explained, an "indictment at common law may be supported for any offence
which is against public morals, decency, and good manners. 2 ° Obscene
libel, by extension, "comprehended every species of representation, whether
by writing, by picture, or by any manner of sign or substitute, which is
indecent and contrary to public order and natural feeling.",2' While
blasphemous and seditious libel were understood as attacks on religion and
the state, respectively, an obscene representation was perceived as an
affront against "public decency," "public order," and "natural feeling." As
another nineteenth-century English authority described the wide-ranging
offense of obscene libel, "[ilt is now fully established, that any immodest

17 See, e.g., THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL

LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN
UNION 596 (1868) ("The preservation of public morals is peculiarly subject to legislative
supervision, which may forbid the keeping, exhibition, or sale of indecent books or pictures,
and cause their destruction if seized.").

IS Obscenity was the last form of libel to emerge as a crime. The other forms were

individual libel, seditious libel, and blasphemous libel. See Colin Manchester, A History of
the Crime of Obscene Libel, 12 J. LEG. HIS. 36 (1991) (providing background on the
emergence of the common law of obscene libel in England).

19 R v. Curl, (1727) 2 Str. 788 (K.B.). On the popularity of this work and the erotic

content of much anti-Catholic literature in eighteenth-century Britain, see WAGNER, supra
note 8. Curll's edition of A Treatise of the Use of Flogging also appears to have triggered his
indictment. Manchester, supra note 18, at 39.

20 
FRANCIS LUDLOW HOLT, THE LAW OF LIBEL 63 (1812).

21 1d

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Columbia Journal of Gender and Law

and immoral publication, tending to corrupt the mind, and to destroy the
love of decency, morality, and good order, is punishable." 22

In the United States, as early as the second decade of the nineteenth
century, appellate courts began to cite the English common law of obscenity
with approval. In 1811, James Kent, chief judge of the Supreme Court of
New York, wrote a widely admired opinion in People v. Ruggles23

upholding the importation of English common-law doctrines that enabled
state and local authorities to punish immoral speech. Although Ruggles
dealt specifically with blasphemy, Kent warmly sanctioned prosecutions
against other publications "which corrupt moral sentiment," such "as
obscene actions, prints and writings., 24 In rejecting the claim that New
York's republican form of government and constitutional protection for
religious liberty prevented criminal charges for blasphemy, Kent's opinion

22 2 THOMAS STARKIE, A TREATISE ON THE LAW OF SLANDER AND LIBEL 155

(1813).

23 People v. Ruggles, 8 Johns. 290 (N.Y. Sup. Ct. 1811). Ruggles was convicted of
blasphemy for declaring: "Jesus Christ was a bastard, and his mother must be a whore." In
his defense, he relied on the provision of the New York Constitution protecting religious
liberty:

And whereas we are required, by the benevolent principles of rational
liberty, not only to expel civil tyranny, but also to guard against that
spiritual oppression and intolerance wherewith the bigotry and ambition
of weak and wicked priests and princes have scourged mankind, this
convention doth further, in the name and by the authority of the good
people of this State, ordain, determine, and declare, that the free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever hereafter be allowed, within
this State, to all mankind: Provided, That the liberty of conscience,
hereby granted, shall not be so construed as to excuse acts of
licentiousness, or justify practices inconsistent with the peace or safety
of this State.

N.Y. CONST. of 1777, art. XXXVIII.

24 Ruggles, 8 Johns. at 297. In upholding Ruggles's blasphemy conviction, Kent

affirmed the validity of a seventeenth-century English precedent that had established
Christianity as part of the common law. R v. Taylor, (1676) 1 Vent. 293. For a more
extensive discussion of the Ruggles case, see LEONARD W. LEvY, BLASPHEMY: VERBAL

OFFENSE AGAINST THE SACRED, FROM MOSES TO SALMAN RUSHDIE (1993); Sarah Barringer
Gordon, Blasphemy and the Law of Religious Liberty in Nineteenth-Century America, 52
AM. Q. 682 (2000) [hereinafter Gordon, Blasphemy]; Robert C. Post, Cultural Heterogeneity
and Law: Pornography, Blasphemy, and the First Amendment, 76 CAL. L. REv. 297 (1988).

[Vol. 16:1



2007] Obscenity Law and Its Consequences 51

invoked a fundamental opposition between liberty and license. 25 By
classifying blasphemy and obscenity as dangerous forms of "license" or
"licentiousness," Kent justified suppression of immoral speech as a vehicle
for preserving, rather than threatening, republican liberty.

Soon thereafter, the highest courts of Pennsylvania and
Massachusetts expressly recognized the English common-law crime of
obscene libel on American soil.26 In Commonwealth v. Sharpless, the first
American appellate case to deal directly with the legality of commerce in
sexual representations, the Supreme Court of Pennsylvania affirmed the
conviction of six men from Philadelphia for exhibiting a painting of a "man
in an obscene, impudent, and indecent posture with a woman. 27 In reaching
its decision, the court held that any offense "may be punishable, if in its
nature and by its example, it tends to the corruption of morals., 28 In 1821,
the Supreme Judicial Court of Massachusetts upheld the conviction of a
printer for publishing a "lewd, wicked, scandalous, infamous and obscene
printed book. 29

In a matter of decades, the law of obscene libel was well established
in the criminal law of American states. Francis Wharton's influential
Treatise on the Criminal Law of the United States tersely but strongly

25 The opposition between liberty and license was central to eighteenth-century

political thought, especially civic republicanism, and deeply influenced American political
and constitutional theory throughout the eighteenth and nineteenth centuries. See generally
GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 23 (1969)
(discussing meaning of license in eighteenth-century republican theory). For further analysis
of the importance of this distinction in American jurisprudence on blasphemy, see Gordon,
Blasphemy, supra note 24. See also NORMAN ROSENBERG, PROTECTING THE BEST MEN: AN
INTERPRETIVE HISTORY OF THE LAW OF LIBEL (1986) (discussing importance of the liberty-
license opposition in the context of nineteenth-century libel law); Sarah Barringer Gordon,
"The Liberty of Self-Degradation ": Polygamy, Woman Suffrage, and Consent in Nineteenth-
Century America, 83 J. AM. HIST. 815, 817-23 (1996) (discussing distinction between liberty
and licentiousness in the context of antipolygamy sentiment). As indicated in note 23, supra,
this distinction was incorporated into the original New York constitutional provision
protecting religious liberty.

26 See Commonwealth v. Sharpless, 2 Serg. & R. 91 (Pa. 1815), reprinted in
EDWARD DE GRAZIA, CENSORSHIP LANDMARKS 35-39 (1969); Commonwealth v. Holmes, 17
Mass. 336 (1821), reprinted in EDWARD DE GRAZIA, CENSORSHIP LANDMARKS 40-41 (1969).

27 Sharpless, 2 Serg. & R. 91, reprinted in DE GRAZIA, supra note 26, at 35.

28 Id. at 38.

29 Holmes, 17 Mass. 335 (1821), reprinted in DE GRAZIA, supra note 26, at 40-41.

The book in question was Memoirs of a Woman of Pleasure, which is discussed further in
Part 1I, infra.



Columbia Journal of Gender and Law

reaffirmed the validity of the common-law principles first articulated in
Sharpless: "It is an indictable offence at common law to publish an obscene
book or print; or to publicly utter obscene language; and so of any offence
tending to corrupt the morals of the people. 30 Consequently, on the
doctrinal level, obscene libel provided an expansive tool that state and local
officials could use to ban seemingly "indecent" or "immodest" expression
that injured no particular person, but merely had a tendency to corrupt "the
morals of the people.'

' 1

In addition to obscene libel, local and state officials seeking to
restrict supposedly indecent or immoral publications could tap the
longstanding common-law tradition of criminal nuisance. William
Blackstone, the leading authority on English law for antebellum Americans,
described this doctrine as permitting governments to suppress "such
inconvenient or troublesome offenses, as annoy the whole community in
general. 32 Among the earliest forms of criminal nuisance recognized by
American courts were public displays that violated a community's norms of
decency and morality. As the Supreme Court of Errors of Connecticut
declared in 1808, "[e]very public show and exhibition, which outrages
decency, shocks humanity, or is contrary to good morals, is punishable at
common law.",33 By 1850, the United States Supreme Court summarily
concluded that "[t]he suppression of nuisances injurious to public health or
morality is among the most important duties of government., 34 Moreover,
unlike other types of criminal nuisances, prosecutions involving moral
nuisances required no showing of harm to the "community in general,"
aside from the morally offensive example of the challenged speech or
conduct.

30 FRANCIS WHARTON, A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES

841 (1855).

31 See generally DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS (1997)

(describing the "bad tendency" test and its widespread use by nineteenth-century jurists to
punish many kinds of purportedly dangerous or immoral speech).

32 
WILLIAM BLACKSTONE, 4 COMMENTARIES * 167.

33 Knowles v. State of Conn., 3 Day 103 (Conn. 1808).

34 Phalen v. Virginia, 49 U.S. 163, 168 (1850).

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Obscenity Law and Its Consequences

II. OBSCENITY LAW IN PRACTICE: DEFINING THE OBSCENE
IN THE NATION'S PUBLISHING CAPITAL

In the twentieth century, Justice Potter Stewart famously claimed
the meaning of obscenity was self-evident, remarking "I know it when I see
it."' 35 For much of the nineteenth century, the formal definition of obscenity
was similarly open-ended, though even more expansive than what Justice
Stewart had in mind. As discussed in Part I, antebellum jurisprudence
broadly defined obscenity as any representation that had a tendency to
promote indecency or corrupt public morality, without troubling to develop
a more precise standard.36 Given the seemingly limitless reach of this
formulation, one might expect that a vast range of representations were
condemned as obscene. However, this was not the case.

As a general matter, the intense censorship of sexual writing
engineered by Anthony Comstock during the last three decades of the
nineteenth century, which involved the destruction of more than thirty-six
tons of obscene books,37 has meant that few of the erotic texts that
circulated in the nineteenth century, including the antebellum period, have
survived. Fortunately, however, the indictment papers of the New York
County District Attorney have preserved a significant number of extracts
from texts identified as obscene, providing scholars with valuable evidence
to reconstruct the meaning of obscenity in its formative era. These records,
together with rare instances of extant erotic books, publishers' catalogues
and advertisements, newspaper articles about obscenity prosecutions,
sensational novels, moral reform tracts, and other primary sources from the

35 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

36 The first attempt by an American court to define obscenity beyond its general

tendency to corrupt morality appeared in 1879 in United States v. Bennett, a case in which
freethinker D.M. Bennett challenged the constitutionality of his conviction under the
Comstock Act for distributing a pamphlet discussing free love and contraception in the mail.

United States v. Bennett, 24 F. Cas. 1093 (C.C.S.D.N.Y. 1879). Bennett adopted a test first
devised by the Queen's Bench of England in 1868: "[T]he test of obscenity is this, whether
the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds
are open to such immoral influences and into whose hands a publication of this sort may
fall." R. v. Hicklin, (1868) 3 L.R.Q.B. 360, 371. Critics charged that the new standard was
just as vague and all-encompassing as the old one, and perhaps more so, in that it focused on

the tendency of obscene material to "deprave and corrupt" those populations thought to be
especially vulnerable to corruption, such as male and female adolescents.

37 See The Twenty-Seventh Annual Report of the New York Society for the
Suppression of Vice 6 (New York, 1901).

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Columbia Journal of Gender and Law [Vol. 16:1

period, illuminate the initial distinctions drawn between obscene and non-
obscene speech. These distinctions had important consequences for the
development of the pornography trade in both New York and the nation at
large.

A. The Obscene: "Fancy" Books and Female Desire

A review of antebellum indictments reveals that New York grand
juries identified twenty separate books (listed in Table 1) as obscene
between 1842, when municipal officials began to prosecute obscenity cases
in substantial numbers, and the Civil War.38 Most of these books were
originally printed in England or France. 39 New York publishers likely
pirated the texts, set them onto stereotype plates, and reprinted the books at
will, common practices in the publishing industry in an era before the
United States adopted an international copyright law.4° Whatever their
provenance, publishers' circulars and other advertisements indicate that
dealers commonly marketed these titles as "fancy," a nineteenth-century
term for what we might now describe as extreme or "hard-core."'', But what

38 See appendix, infra, for the titles of books named in New York County

obscenity indictments, 1840-1860. A discussion of the causes of obscenity prosecutions is
beyond the scope of this Article, but this issue will be addressed in my forthcoming book on
obscenity regulation and the pornography trade in nineteenth-century New York.

39 For descriptive bibliographies of erotic books named in antebellum New York
indictments, see generally HENRY SPENCER ASHBEE, CATENA LIBRORUM TACENDORUM

(Documentary Books 1962) (1885); Haven Hawley, American Publishers of Indecent Books,
1840-1890 (2005) (unpublished Ph.D. dissertation, Georgia Institute of Technology) (on file
with author).

40 The United States did not take steps to protect foreign authors and publishers

from piracy until 1891, when Congress passed the first international copyright legislation,
known as the Chace Act, 26 Stat. 1106 (1891). Even then, obscene material was not subject
to copyright protection. On the American practice of stereotyping texts, see Michael
Winship, Printing with Plates in the Nineteenth-Century United States, 5 PRINTING HISTORY
15 (1983).

41 Years later, an undercover agent for Anthony Comstock's organization, the New

York Society for the Suppression of Vice, conveyed this meaning of the term "fancy" when
he asked a target of an investigation: "Those pictures you have exhibited are well enough,
but can't you get something for us a little 'stronger' or more fancy?" D. R. M. BENNETT,

ANTHONY COMSTOCK: HIS CAREER OF CRUELTY AND CRIME 1047 (Da Capo Press 1971)
(1878). For a mid-nineteenth-century example, see a New York publisher's circular from c.
1860 captioned Genuine Fancy Books, held at the American Antiquarian Society in
Worcester, Massachusetts [hereinafter Genuine Fancy Books Circular]. It advertises titles
such as Fanny Hill, The Lustful Turk, and The Cabinet of Venus Unlocked.



Obscenity Law and Its Consequences

do these indictments tell us about what made a particular book "fancy" to
publishers and "obscene" to regulators?

First, the court records reveal that almost all of the forbidden books
either described or directly referred to sexual conduct. Many of the
activities they depicted would have been regarded as quite transgressive at
the time, such as sex between women, orgies, masturbation, and public sex.
The book that provoked the most prosecutions, John Cleland's eighteenth-
century English classic, Fanny Hill or Memoirs of a Woman of Pleasure,
included graphic accounts of no less than thirty-nine different sexual
encounters.42

Second, the specific passages identified in the indictments as
obscene often focused on female sexual desire or sexual pleasure, usually
narrated by women in the first person. As historians of gender have made
clear, new middle-class norms that arose in the first half of the nineteenth

43century prescribed sexual purity and "passionlessness" for women.
Indeed, a primary cultural achievement of the antebellum bourgeoisie was
its assertion of fundamental sexual differences between men and women.
By eliding sexual difference and highlighting feminine pleasure, erotic tales
narrated by women flew in the face of bourgeois conventions enshrining
female piety and chastity.

The first grand jury indictments issued against publishers of
obscene books in New York County, both from 1842, are illustrative. The
defendants were Richard Hobbes, a publisher from Westchester County
who supplied bookstore and bookstand proprietors in the city with erotica,
and Henry R. Robinson, a celebrated political caricaturist and lithographer

42 See Peter Wagner, Introduction to JOHN CLELAND, FANNY HILL OR MEMOIRS OF

A WOMAN OF PLEASURE 28 (Peter Wagner ed., Penguin Books 1985) (1748-49) [hereinafter
FANNY HILL].

43 The reference to female "passionlessness" comes from Nancy Cott's path-
breaking article on this topic. Nancy F. Cott, Passionlessness: An Interpretation of Victorian
Sexual Ideology, 1790-1850, 4 SIGNS 219 (1978) (arguing that evangelical women helped to
create ideology of female passionlessness in order to elevate cultural status of bourgeois
women in antebellum America) [hereinafter Cott, Passionlessness]. The literature on sexual
difference, domesticity, and bourgeois class formation is extensive. See especially NANCY F.
Corr, THE BONDS OF WOMANHOOD: "WOMAN'S SPHERE" IN NEW ENGLAND, 1780-1835 (2d
ed. 1997) [hereinafter COTT, BONDS OF WOMANHOOD]; BARBARA LESLIE EPSTEIN, THE

POLITICS OF DOMESTICITY: WOMEN, EVANGELISM AND TEMPERANCE IN NINETEENTH-

CENTURY AMERICA (1981); MARY P. RYAN, CRADLE OF THE MIDDLE CLASS: THE FAMILY IN

ONEIDA COUNTY, NEW YORK, 1790-1865 (1981); KATHRYN KISH SCLAR, CATHARINE
BEECHER: A STUDY IN AMERICAN DOMESTICITY (1973); Cott, Passionlessness, supra.

2007]



Columbia Journal of Gender and Law [Vol. 16:1

who operated a large retail print shop in Manhattan.4 4 The district attorney's
files in these two cases provide an excellent guide both to New York's
inventory of bawdy literature and to the legal construction of obscenity at
the onset of municipal efforts to regulate sexual publications.

The indictments against Hobbes and Robinson identified the same
nine books, a coincidence that suggests these titles comprised the entire
corpus of erotic works sold by New York publishers that authorities
considered obscene in early 1840s New York.45 All of the books named
were published originally in England or France, a sign that American
authors had not yet begun to develop sexually arousing themes, at least for
commercial distribution.4 6

44 People v. Richard Hobbes, Sept. 28, 1842, District Attorney's Indictment
Papers, New York Court of General Sessions (N.Y. Mun. Archives); People v. Henry R.
Robinson, Sept. 28, 1842, District Attorney's Indictment Papers, New York Court of General
Sessions (N.Y. Mun. Archives). For additional background on Hobbes and Robinson, see
Dennis, supra note 6, at ch. 4; HOROWITZ, supra note 1, at 211-12. In addition to the two
publishers, the same grand jury presented indictments on charges of "Obscene Books"
against five print shop owners and bookstand operators whom the publishers had supplied.
See People v. Francis Kerrigan, Sept. 28, 1842, District Attorney's Indictment Papers, New
York Court of General Sessions (N.Y. Mun. Archives); People v. Cornelius Ryan, Sept. 28,
1842, District Attorney's Indictment Papers, New York Court of General Sessions (N.Y.
Mun. Archives); People v. Hiram Cure, Sept. 28, 1842, District Attorney's Indictment
Papers, New York Court of General Sessions (N.Y. Mun. Archives); People v. James Jones,
Sept. 28, 1842, District Attorney's Indictment Papers, New York Court of General Sessions
(N.Y. Mun. Archives); People v. Charles Heustis, Sept. 28, 1842, District Attorney's
Indictment Papers, New York Court of General Sessions (N.Y. Mun. Archives); People v.
William Bradley, Sept. 28, 1842, District Attorney's Indictment Papers, New York Court of
General Sessions (N.Y. Mun. Archives).

45 The following are the titles named in the indictments: Memoirs of a Woman of
Pleasure; Memoirs of the Life and Voluptuous Adventures of the Celebrated Courtesan
Mademoiselle Celestine of Paris written by herself, The Cabinet of Venus Unlocked; The
Curtain Drawn Up, or The Education of Laura; The Confessions of a Voluptuous Young
Lady of High Rank; The Amorous Songster or Jovial Companion; The Lustful Turk; The
Amorous History and Adventures of Raymond De B-and Father Andouillard; The Auto-
Biography of a Footman.

46 For background on the European publishing history of these texts, see ROBERT

DARNTON, THE LITERARY UNDERGROUND OF THE OLD REGIME (1982); ROBERT DARNTON,

THE FORBIDDEN BESTSELLERS OF PRE-REVOLUTIONARY FRANCE (1995); IAIN MCCALMAN,

RADICAL UNDERWORLD, PROPHETS, REVOLUTIONARIES AND PORNOGRAPHERS IN LONDON,

1795-1840 (1993); PETER MENDES, CLANDESTINE EROTIC FICTION IN ENGLISH, 1800-1930: A
BIBLIOGRAPHICAL STUDY (1993); LYNDA NEAD, VICTORIAN BABYLON: PEOPLE, STREETS AND
IMAGES IN NINETEENTH-CENTURY LONDON (2000); LISA Z. SIGEL, GOVERNING PLEASURES:

PORNOGRAPHY AND SOCIAL CHANGE IN ENGLAND, 1815-1914 (2002); WAGNER, supra note 8;
THE INVENTION OF PORNOGRAPHY: OBSCENITY AND THE ORIGINS OF MODERNITY, 1500-1800

(Lynn Hunt ed., 1996); Hawley, supra note 39.



2007] Obscenity Law and Its Consequences 57

The Hobbes indictment began with three passages from one of the
central texts of the antebellum market for "fancy" books, Memoirs of a
Woman of Pleasure, better known today as Fanny Hill.47 This work, which
Cleland wrote in 1748 to get out of debtors' prison in London, recounts the
life of the eponymous heroine, a humble country girl forced to move to the
city after the death of her parents and become a prostitute.48 The first
excerpt depicted a scene in which the young Fanny's heterosexual desires
are aroused by spying on her brothel companion having sex with an Italian
customer. 49 The second selection was plucked from Fanny's extensive
description of an orgy among four couples in Volume Two, while the third
offered an explicit account of her experience of anal intercourse.5 °

47 People v. Richard Hobbes, Sept. 28, 1842, District Attorney's Indictment

Papers, New York Court of General Sessions (N.Y. Mun. Archives). It was not until 1964
that the New York Court of Appeals, by a four-to-three vote, declared that Fanny Hill was
not obscene. It reversed an appellate decision that had granted a request by the corporation
counsel and district attorneys of New York City to enjoin Putnam's publishing house from
selling or distributing the book in the city. Larkin v. G. P. Putnam's Sons, 200 N.E.2d 760
(N.Y. 1964). Even then, the Court of Appeals ruling provoked two outraged dissents, one of
which described Fanny Hill as "one of the foulest, sexually immoral, debasing, lewd and

obscene books ever published, either in this country or abroad." Id. at 765. (Scileppi, J.,
dissenting). Two years later, the U.S. Supreme Court reversed a Massachusetts decision that
banned the sale of Cleland's work, finding that it was not obscene. A Book Named "John
Cleland's Memoirs of a Woman of Pleasure" v. Attorney Gen. of Com. of Mass., 383 U.S.
415 (1966).

48 For background on Cleland and the circumstances of Fanny Hill's production,
see FANNY HILL, supra note 42, at 1-30.

49 As Fanny relates:

The young Italian (still in his shirt) stood gazing and transported at the
sight of beauties that might have fired a dying hermit; his eager eyes
devoured her, as she shifted attitudes at his discretion; neither were his
hands excluded their share of the high feast, but wandered, on the hunt of
pleasure, over every part and inch of her body, so qualified to afford the
most exquisite sense of it.

People v. Richard Hobbes, Sept. 28, 1842, District Attorney's Indictment Papers, New York

Court of General Sessions (N.Y. Mun. Archives). The quoted passage, with small changes,
can be found in FANNY HILL, supra note 42, at 67.

50 The second passage in the indictment, taken from the orgy scene, ends abruptly

in mid-sentence:

And as he kissed, he gently inclined his head, till it fell back on a pillow
disposed to receive it, and leaning himself down all the way with her, at
once countenanced and endeared her fall to her. There, as if he had
guessed our wishes, or meant to gratify at once his pride in being the



58 Columbia Journal of Gender and Law [Vol. 16:1

According to the indictment, this Hobbes edition of Fanny Hill also
contained "wicked, false, feigned, impious, impure, bawdy, and obscene
prints, representing and exhibiting men and women in the act of carnal
copulation, in various attitudes and postures. 51

The Hobbes indictment transcribed additional excerpts from three
other allegedly obscene books. One was chattily entitled The Cabinet of
Venus Unlocked in a Series of Dialogues Between Louisa Lovestone and
Mariana Greedy, Two Cyprians! Of the Most Accomplished Talent in the
Science of Practical Love.52 The selection chosen by the district attorney,
which conveyed a rapturous, quasi-religious narration by a woman of her
delight in sexual intercourse and mutual orgasm, seemed well calculated to
offend the bourgeois sensibilities of the grand jury, accustomed as they
were to public affirmations of female piety and purity. 53

master, by title of present possession, of beauties delicate beyond
imagination-

It was surely no accident that the district attorney truncated this passage right before the
moment of revelation, with the man's "discovery" of the woman's breasts. As the sentence
continues in the full text, "he discovered her breasts to his own touch and our common
view." FANNY HILL, supra note 42, at 152. The final selection, though intended by Cleland
as comedy, was also the most explicit. While working at a "refined" brothel for rich
gentlemen, Fanny becomes frustrated with her clients' increasingly elaborate sexual fetishes
(her last customer had been obsessed with deflowering virgins), and offers herself free of
charge to a sailor in a public house. When the sailor attempts anal intercourse, she at first
protests. To her complaint, he makes a nautical quip: "Any port in a storm." See People v.
Richard Hobbes, Sept. 28, 1842, District Attorney's Indictment Papers, New York Court of
General Sessions (N.Y. Mun. Archives); FANNY HILL, supra note 42, at 178. Many of the
indictments against the other defendants charged with selling obscene books in 1842 repeat
the three passages from Fanny Hill quoted in the Hobbes indictment. See People v. Francis
Kerrigan, Sept. 28, 1842, District Attorney's Indictment Papers, New York Court of General
Sessions (N.Y. Mun. Archives); People v. Hiram Cure, Sept. 28, 1842, District Attorney's
Indictment Papers, New York Court of General Sessions (N.Y. Mun. Archives); People v.
William Bradley, Sept. 28, 1842, District Attorney's Indictment Papers, New York Court of
General Sessions (N.Y. Mun. Archives).

51 People v. Richard Hobbes, Sept. 28, 1842, District Attorney's Indictment

Papers, New York Court of General Sessions (N.Y. Mun. Archives).

52 In eighteenth and nineteenth-century pornography, "cyprian" was a common

term for prostitute. The author is not aware of any surviving copy of The Cabinet of Venus
Unlocked.

53 The excerpt in the indictment reads as follows:

Oh, what rapturous exquisite delight as I took it, when it rushed in and
filled the whole deep cavity where I felt it swell and throb as if it would
burst with its exertions within. I strained and struggled with him to the



Obscenity Law and Its Consequences

Another part of the indictment quoted a scene from The
Confessions of a Voluptuous Young Lady of High Rank. Though no copies
survive today, the full title of this book, The Confessions of a Voluptuous
Young Lady of High Rank. Disclosing her Secret Longings and Private
Amours Before Marriage. Forming a Curious Picture of Fashionable Life
and Refined Sensuality, emphasized the theme of female ardor. According
to Henry Spencer Ashbee, the leading nineteenth-century bibliographer of
erotica, the text of this work related the sexual confessions of an unusually
amorous "heroine-authoress, Tilly Touchitt. ' '54 Like the "obscene" excerpt
from The Cabinet of Venus Unlocked, the one taken from The Confessions
highlighted a detailed narration by the female protagonist of her experience
of sexual penetration.55

The Hobbes indictment concluded by noting that the "most gross
and filthy scenes of lewdness and obscenity" from Memoirs of the Life and
Adventures of the Celebrated Courtesan Mademoiselle Celestine of Paris
were "not fit or proper to be used, named, or mentioned in any language, or
in any Court of Justice. 56 The same reticence marked the district attorney's
treatment of the Hobbes editions of The Lustful Turk and The Auto-
Biography of a Footman, reflecting a strategy that would become

57increasingly common in the coming years.

utmost of my strength, and seemed inspired beyond my natural powers
in every effort. I screamed with excessive extacy [sic], and, oh! god of
burning lust! At the last flush and overwhelming flow of bliss that
gushed into me from him, my senses were wholly entranced and the
whole world of love seemed swallowed up in the heavenly sweet
delirium.

People v. Richard Hobbes, Sept. 28, 1842, District Attorney's Indictment Papers, New York
Court of General Sessions (N.Y. Mun. Archives).

54 ASHBEE, supra note 39, at 305-06. The excerpt in the indictment recounted the
heroine's first sexual experience, which took place after she had been caught admiring the
naked body of her male cousin through a keyhole. Id.

55 People v. Richard Hobbes, Sept. 28, 1842, District Attorney's Indictment
Papers, New York Court of General Sessions (N.Y. Mun. Archives).

56 
id.

57 The exclusion of "obscene" materials in order to preserve the "chastity" of court
records was a recognized exception to the requirement that indictments specify the nature of
the offensive language or conduct with precision. See Commonwealth v. Holmes, 17 Mass.
335 (1821).

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Columbia Journal of Gender and Law

The bill against Hobbes also declined to offer an example from The

Curtain Drawn Up, or The Education of Laura, an asserted translation of
another libertine Enlightenment classic, Mirabeau's Le Rideau Lev ou
L 'Education de Laure.58  Fortunately for scholars, accompanying
indictments against a print shop owner and a bookstand operator who sold
this book included three allegedly obscene selections from the edition
produced by Hobbes. 9 Just as the Hobbes indictment defined obscenity in
terms of female sexual knowledge and desire, the other indictments focused

on passages from The Curtain Drawn Up that conveyed the heroine's
preoccupation with sex and her eager erotic spectatorship. °

Turning to obscenity prosecutions for the 1850s, five of the books

condemned in the earlier cases-Memoirs of a Woman of Pleasure, The
Curtain Drawn Up, The Lustful Turk, The Confessions of a Voluptuous
Young Lady of High Rank, and Memoirs of the Life and Voluptuous
Adventures of the Celebrated Courtesan Mademoiselle Celestine of Paris-
also appear in indictments for this decade, an indication that they
constituted a core of popular erotic texts that authorities regarded as

58 A London copy of The Curtain Drawn Up, or The Education of Laura is held at

the Kinsey Institute for Research in Sex, Gender, and Reproduction in Bloomington, Indiana.
The title page indicates it was translated "[f]rom the French of the Comte Mirabeau" and
published in 1818. The place of publication is bawdily described as "London Putitin, Rogers
and Co., Nineinch Street."

59 People v. James Jones, Sept. 28, 1842, District Attorney's Indictment Papers,

New York Court of General Sessions (N.Y. Mun. Archives); People v. Charles Heustis, Sept.
28, 1842, District Attorney's Indictment Papers, New York Court of General Sessions (N.Y.
Mun. Archives).

60 For instance, they quoted this item from Laura's diary, which alluded to female

masturbation and described her obsessive observation of male genitalia:

Arrived at home. I failed not to profit by the knowledge I had acquired
through Isabella and, like her, procured myself each day the most

delicious sensations of pleasure, and frequently my heated imagination
urged me to double the dose. I thought of nothing but a man, and I never
saw one without fixing my eyes upon that part which I knew contained
the idol of my desires, and which the very idea of filled me with a fire
that was insupportable.

People v. James Jones, Sept. 28, 1842, District Attorney's Indictment Papers, New York

Court of General Sessions (N.Y. Mun. Archives); People v. Charles Heustis, Sept. 28, 1842,
District Attorney's Indictment Papers, New York Court of General Sessions (N.Y. Mun.
Archives).

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Obscenity Law and Its Consequences

obscene.6' Other titles, such as The Adventures of Silas Shovewell and The
Secret Habits of the Female Sex, first surfaced in indictments during the
1850s, but then recurred multiple times, suggesting that they were recent
additions to the inventory of New York publishers that soon joined the
pornographic canon. Moreover, even though at least one New York
publisher began to experiment with selling erotica composed by American
authors in the mid-I 850s, European imports continued to dominate both the
New York market for "fancy" print and the records of obscenity
prosecutions.

62

By this second decade, district attorneys routinely declined to
include specific passages deemed to be obscene in their indictments, out of
an ostentatious concern with protecting the modesty of the court's records.
Though the 1850s indictments are therefore less revealing, the titles of the
indicted works suggest that first-person female narrations of sexual desire
continued to be a trigger for charges of obscenity. Indeed, the ban on overt
representation of feminine sexual agency appeared to apply regardless of
the erotic content of the publication. The repeated prosecution of sellers of
The Secret Habits of the Female Sex, allegedly written by a French
physician, Dr. Jean Dubois, is a prime case in point. Despite its salacious
title, The Secret Habits of the Female Sex was actually an extremely dour, if
sensationalized, anti-masturbation tract. 63 Clever marketing by publishers
with a reputation for producing "fancy" books, along with the title's
allusions to the mysterious sexual practices of women and its French author,
probably misled men into buying it for the purpose of sexual excitement or
satisfying their curiosity about female sexuality. 64 Moreover, the book's

61 Nearly three decades later, Anthony Comstock's first roundup of New York
pornography dealers for obscenity involved the sale of two of these titles: The Curtain
Drawn Up and The Confessions of a Voluptuous Young Lady of High Rank. See People v.
James McDermott, March 14, 1872, District Attorney's Indictment Papers, New York Court
of General Sessions (N.Y. Mun. Archives); People v. William Brooks and Charles Brooks,
March 14, 1872, District Attorney's Indictment Papers, New York Court of General Sessions
(N.Y. Mun. Archives).

62 See Dennis, supra note 6, at tbl. 2.

63 The practice of marketing ostensibly didactic anti-masturbation tracts as vehicles

for sexual titillation dated back to the early eighteenth century in England, when works such
as Onania, or, The Heinous Sin of Self-Pollution, and All Its Frightful Consequences in Both
Sexes, Considered were sold as a kind of soft-core pornography. See WAGNER, supra note 8,
at 6, 16-19. For further insights on the early publishing history of Onania, see THOMAS W.
LAQUEUR, SOLITARY SEX: A CULTURAL HISTORY OF MASTURBATION (2003).

64 Copies of The Secret Habits of the Female Sex sold in New York may also have

contained objectionable illustrations. For instance, an extant 1848 edition published in New

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Columbia Journal of Gender and Law

discussion of sexually aroused girls and young women, even though it
dwelled on the morbid consequences of their physical explorations, ran
directly afoul of the emerging legal taboo against expressions of female
desire.

B. The Immoral But Non-Obscene

"Fancy" works containing unambiguous accounts of sex and nudity
or featuring female passion and pleasure were not the only forms of sexual
discourse available in the antebellum New York book market. In
reconstructing the meaning of obscenity, it is therefore instructive to
consider not only what kinds of sexual representations triggered
prosecutions, but also what kinds did not.

L Pulp Fiction and the World of the "Racy"

The proliferation of American sensation fiction in the 1840s and
1850s provides an especially revealing guide to the meaning of obscenity in
antebellum New York. This genre originally derived from European "city
mystery" novels and British "penny dreadfuls. ' '65 The American version,
often called "yellow-jacket" literature (a reference to the garish yellow
covers of these early paperbacks, although they could also come in bright
blue, salmon, or orange),66 reveled in portraying "tales of criminal
underworlds, urban squalor, and elite luxury and decadence." 67 The most
risqu6 examples also specialized in graphic, horrifically detailed depictions
of violence and torture combined with euphemistic, titillating references to
sexual license. 68 The erotic scenes, while elliptical in content, nonetheless

York and held at the Kinsey Institute for Research in Sex, Gender, and Reproduction in
Bloomington, Indiana includes an engraving of a naked, nubile young woman reaching up
for a cluster of grapes as its frontispiece.

65 See generally Kimberly R. Gladman, Upper Tens and Lower Millions: City

Mysteries Fiction and Class in the Mid-Nineteenth Century (2001) (unpublished Ph.D.
dissertation, New York University) (on file with author) (discussing European sources of
sensation literature).

66 See Hawley, supra note 39, at ch. 4.

67 MICHAEL DENNING, MECHANIC ACCENTS: DIME NOVELS AND WORKING-CLASS

CULTURE IN AMERICA 85 (1987).

68 REYNOLDS, supra note 6, at 212 ("The distinguishing feature of the American

erotic writing of the 1840s was its unique combination of prurient sexuality and grisly
gore.").

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Obscenity Law and Its Consequences

raised highly provocative themes. As literary historian David Reynolds has
pointed out, the sexual practices alluded to in sensation fiction included
"incest, sadomasochism, homosexuality, group sex, miscegenation, child
sex, [and] mass orgies., 69 Because of its obsession with the dark secrets and
sexual excesses of life in the big city, literary critics Joseph Ridgely and
Christopher Looby have appropriately termed this body of literature
"American porno-gothic.

70

The leading publishers of "American porno-gothic" novels were
often the same men who published the more expensive, "fancy" books that
typically provoked indictments for obscenity. Frequently using a separate
imprint to distinguish the genres, they marketed this relatively safe category
of indecent sensation literature as "racy" reading. Unlike "fancy" books,
which were often bound in cloth and priced at two dollars or more, racy
novels were usually issued as slim, paper-covered pamphlets that cost only
a quarter and were therefore accessible to a much broader segment of the
population. 71 Less than 100 pages long, small enough to fit in a pants
pocket, and illustrated only with a few rough woodcuts, they were meant to
be read quickly and probably disposed of with similar dispatch.7 2

Native New Yorker George Thompson wrote much of the most
sexually scandalous and violent sensation fiction that was published in New
York in the late 1840s and 50s. While living in Boston and New York
during his twenties and early thirties, Thompson participated in a raucous,
bohemian subculture of writers, reporters, actors, and theater producers who

69 Id. at 223.

70 Christopher Looby, George Thompson's "Romance of the Real ": Transgression

and Taboo in American Sensation Fiction, 65 AM. LITERATURE 651 (1993); Joseph Ridgely,
George Lippard's The Quaker City: The World of the American Porno-Gothic, 7 STUD.
LITERARY IMAGINATION 77 (1974) (coining term "American porno-gothic"). A sub-genre of
"American porno-gothic" literature focused on the secrets and horrors of urban life,
especially in major centers like New York City. Scholars generally refer to these mid-
nineteenth-century American novels as "city mysteries." For insightful discussions of city-
mysteries novels in Europe and America, see generally Gladman, supra note 65; Paul Joseph
Erickson, Welcome To Sodom: The Cultural Work Of City-Mysteries Fiction in Antebellum
America (2005) (unpublished Ph.D. dissertation, University of Texas) (on file with author).

71 Compare Genuine Fancy Books Circular, supra note 41 (describing "fancy
books" as "richly bound in cloth" and listing prices between one and four dollars per book)
with Venus' Miscellany, May 23, 1857, at 2 (advertising "Rich, Rare, and Racy Reading"
and listing prices of 25 cents per book).

72 David S. Reynolds & Kimberly R. Gladman, Introduction to VENUS IN BOSTON

AND OTHER TALES OF NINETEENTH-CENTURY LIFE xi-xii (David S. Reynolds & Kimberly R.
Gladman eds., 2002).

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Columbia Journal of Gender and Law

made their living from popular entertainment7 3 For his part, Thompson
churned out lurid blends of graphic violence and euphemistic sex with
titillating titles like The Ladies' Garter (c.1851), The Gay Girls of New
York (1854), and The Bridal Chamber, and Its Mysteries (1856). 74

In what he described as his "own peculiar style," Thompson
perfected the art of inverting conventional sources of mid-nineteenth-
century moral and social authority. 75 In blatant mockery of those who
envisioned the city as an orderly, well-governed society, Thompson's
novels presented the metropolis as bizarre, carnivalesque, and terrifying. It
was a world where ministers were always licentious and immoral, middle-
class women were always faithless and lecherous, and judges were always
lawless and unjust. 76 Sex and violence, often linked together, were
Thompson's signature vehicles for expressing these themes of disorder and
darkness. As his leading biographers, David Reynolds and Kimberly
Gladman, have asserted, Thompson's works are "filled with gore, sex, and
perversity to such a degree that Thompson can be identified as the most
shockingly sensational and openly erotic American writer of his day., 77 In
particular, he strove to eroticize many of the most culturally taboo forms of
sex, violence, and even death.

73 According to his autobiography, Thompson was born in New York in 1823.
GEORGE THOMPSON, MY LIFE: OR THE ADVENTURES OF GEO. THOMPSON (1854), reprinted in

Reynolds & Gladman, supra note 72, at 315. For a full discussion of Thompson's life and
work, see id. at ix-liv; REYNOLDS, supra note 6, at 219-24.

74 Henry Spencer Ashbee estimated that Thompson may have produced a hundred
books; references to more than sixty of these survive today along with twenty-five novels in
their entirety. ASHBEE, supra note 39, at 219; Reynolds & Gladman, supra note 72, at xi-xii.

75 Editorial Salutation, THE WEEKLY WHIP, Feb. 12, 1855, at 1. Literary scholars
have vigorously debated the political implications of Thompson's self-consciously
iconoclastic style. Compare REYNOLDS, supra note 6, at 211-24 (interpreting Thompson's
novels as politically oppositional and subversive) with Looby, supra note 70, at 666-67
(arguing that Thompson's novels served a reactionary function by channeling political
opposition into voyeurism and by reaffirming the value of bourgeois domestic ideology
while pretending to critique it).

76 For example, in Thompson's novel, City Crimes, a wife "becomes so bored and

sexually frustrated by her proper husband, whom she calls a 'canting religionist' always
'discoursing upon the pleasures of the domestic circle, and such humbugs,' that she arranges
with her daughter Josephine to have him killed so they can lead a life of shameless
promiscuity." Reynolds & Gladman, supra note 72, at xxxv.

" Id. at xi.

[Vol. 16:1



2007] Obscenity Law and Its Consequences 65

Unlike the authors of "fancy" books, however, Thompson wrote
about sex with coy allusiveness and naughty winks to the reader. In a
characteristic passage from one his most popular novels, City Crimes,
Thompson related an incestuous sexual triangle comprising a lecherous
mother, her equally lascivious daughter, and the captain of a ship whom
they have seduced: "And clasping both ladies around the waists, he kissed
them alternately, again and again. That night was one of guilty rapture to all
the parties; but the particulars must be supplied by the reader's own
imagination., 78 In contrast to this elliptical treatment of sex, Thompson
lavished extensive detail on descriptions of violence, horror, and torture.79

The preoccupation of mid-nineteenth-century American sensation
fiction with sexual transgression, violence, and crime often led moral
reformers and other critics to condemn it as immoral and dangerous.8 ° They
were especially concerned about the dangers such books presented for
young, working-class readers. In their eyes, shop girls and mechanics
seemed particularly susceptible to the charms of cheap literature, although
they acknowledged that the well-off sometimes succumbed to its
temptations as well. An anonymous 1855 book by a Chicago doctor, The
Confessions and Experience of a Novel Reader, was emblematic of growing
concern over the harms of sensation novels:

If any one has any doubts as to the fearfully rapid increase of this
public poison-a demoralizing literature, the real "Pandora's box
of evil passions"-the flood-gate, from beneath whose slimy jaws
runs a stream of pollution, sending forth its pestilential branches
to one great ocean of immorality, let such a one take a trip with
me through the length and breadth of our land.81

78 GEORGE THOMPSON, CITY CRIMES; OR LIFE IN NEW YORK AND BOSTON (1849),

reprinted in Reynolds & Gladman, supra note 72, at 105, 248.

79 In Part lII, infra, this Article analyzes how sensation novelists like Thompson
learned to substitute violence for the sex that the law forbade.

80 Indeed, Karen Halttunen has argued that the sadomasochistic tendencies of

American sensation fiction arose precisely because middle-class moral reformers, such as
anti-slavery advocates, were developing new humanitarian sensibilities that made
representation of pain immoral and revolting. In this sense, the grotesque violence featured
in racy novels flew in the face of all that antebellum moralists were trying to achieve. KAREN
HALTTUNEN, MURDER MOST FOUL: THE KILLER AND THE AMERICAN GOTHIC IMAGINATION

60-90 (1998).

8I Reynolds & Gladman, supra note 72, at xxvi (quoting CONFESSIONS AND

EXPERIENCE OF A NOVEL READER 11 (1855)).



Columbia Journal of Gender and Law

According to the doctor, the very survival of the nation depended on the
suppression of indecent literature. Otherwise, it threatened to "subvert the
purity of our Republican institutions" and foment "elements of revolution"
that "will crush us in the might and majesty of our fancied security." 82

Foreshadowing the heated campaigns of Anthony Comstock against
"vampire literature ' 83 in the late nineteenth century, one New York writer
mourned the growing prevalence of what he called "satanic literature": "Got
up in cheap form, rendered attractive by meretricious engravings and
exaggerated titles, these pernicious books are thrust into almost every
accessible place, and are infecting to the core a large portion of the youth of
the country. 84

Despite widespread criticism of this sort, the distinctive fusion of
sexual allusion and graphic violence in racy pulp fiction failed to provoke
the ire of legal authorities in New York. Throughout the antebellum period,
obscenity prosecutions targeted only sex, not violence, no matter how gory
or eroticized its presentation.85

2. Quasi-Scientic Literature on Human Anatomy, Marital Sex,
Reproduction, and Family Limitation

A second major category of writing that touched on sexual matters
but largely escaped indictment for obscenity in 1840s and 1850s New York
(although not later on)86 was quasi-medical information, ostensibly
designed for married people or "those about to marry," concerning human

82 Id. at xxvi-xxvii.

83 Anthony Comstock, Vampire Literature, 153 N. AM. REv. 160 (1891).

84 Satanic Literature, 2 NAT'L. MAG. 25, 25 (1853).

85 After the Civil War, "blood-and-thunder" sensation novels and newspapers

containing violent crime reports became major targets of the legislative campaigns of
Comstock and other moral reformers. By the 1880s, religious activists had persuaded many
states, including New York, to pass laws prohibiting the sale of such publications to minors
or their display in the vicinity of minors. See, e.g., N.Y. Sess. Laws § 380 (1884). See also
Elizabeth Bainum Hovey, Stamping Out Smut: The Enforcement of Obscenity Laws, 1872-
1915 (1998) (unpublished Ph.D. dissertation, Columbia University) (on file with author)
(discussing the 1884 New York indecency statute).

86 In 1868, the first anti-obscenity statute in New York included a ban on
advertisements for any "article or medicine for the prevention of conception or procuring of
abortion." N.Y. Sess. Laws § 430 (1868). In 1873, the Comstock Act outlawed the mailing
of materials that could be used "for the prevention of conception or procuring of abortion."
17 Stat. 598 (1873).

[Vol. 16:1



2007] Obscenity Law and Its Consequences 67

anatomy, sexual technique, reproduction, contraception, and abortion. Many
of the most popular titles, such as Frederick Hollick's The Marriage Guide
and Thomas Low Nichols' Esoteric Anthropology, were published in New
York and sold freely there. 87 Historian Janet Brodie, for instance, has
substantiated the increasing volume and explicitness of books on
reproductive control and sexual anatomy that became available to lay
audiences after 1850, calling it a veritable "boom" in self-help literature.88

Thinly veiled advertisements for contraceptive devices and abortionists in
popular newspapers and mail circulars were also common. 89

Like sensation fiction, physiological discussions of contraception
and abortion were frequently denounced by conservative moral reformers. 90

Nonetheless, there is no record in antebellum New York of any successful
prosecution specifically directed at a seller of literature on contraception or
abortion. On one occasion in 1847, wealthy abortionist Ann Restell's
husband, Charles Lohman, was indicted for selling The Married Woman's
Private Medical Companion.91 This tract, published just a few months
before under the pseudonym "Dr. A.M. Mauriceau," contained plainly
marked sections offering advice on the "prevention of pregnancy" and
providing information on methods of abortion. 92 But the case file in the

87 FREDERICK HOLLICK, M.D., THE MARRIAGE GUIDE, OR NATURAL HISTORY OF

GENERATION; A PRIVATE INSTRUCTOR FOR MARRIED PERSONS AND THOSE ABOUT TO MARRY,

BOTH MALE AND FEMALE; IN EVERY THING CONCERNING THE PHYSIOLOGY AND RELATIONS
OF THE SEXUAL SYSTEM AND THE PRODUCTION OR PREVENTION OF OFFSPRING-INCLUDING
ALL THE NEW DISCOVERIES NEVER BEFORE GIVEN IN THE ENGLISH LANGUAGE (Arno 1974)

(1850); T. L. NICHOLS, M.D., ESOTERIC ANTHROPOLOGY: A COMPREHENSIVE AND
CONFIDENTIAL TREATISE ON THE STRUCTURE, FUNCTIONS, PASSIONAL ATTRACTIONS AND

PERVERSIONS, TRUE AND FALSE PHYSICAL AND SOCIAL CONDITIONS, AND THE MOST INTIMATE

RELATIONS OF MEN AND WOMEN (published by the author, at his Reform Book Store, No. 65
Walker Street 1854).

88 JANET FARRELL BRODIE, CONTRACEPTION AND ABORTION IN NINETEENTH-

CENTURY AMERICA 180-203 (1994).

89 Kathleen L. Endres, 'Strictly Confidential': Birth-Control Advertising in a 19th-

Century City, 63 JOURNALISM Q. 748 (1986).

90 As Professor Brodie notes, while a few publishers of books on reproductive

control were recognized as reputable, on the whole the business "was neither openly
accepted nor respectable." BRODIE, supra note 88, at 194.

91 People v. Charles Lohman alias Dr. A. M. Mauriceau, Sept. 15, 1847. The city
directory of New York for 1847 identified Lohman's occupation as publisher. DOGGETT'S

NEW YORK-CITY DIRECTORY FOR 1847 & 1848 at 251 (1847).

92 On Lohman and The Married Woman's Private Medical Companion, see

BRODIE, supra note 88, at 23 1; AMY GILMAN SREBNICK, THE MYSTERIOUS DEATH OF MARY



68 Columbia Journal of Gender and Law [Vol. 16:1

district attorney's papers make clear that this indictment was triggered by
the perception that the book was really just an extended advertisement for
the lucrative abortion practice of the notorious "Madame Restell," who was
then facing trial for manslaughter.93 Even under those circumstances,
authorities did not pursue Lohman's prosecution for obscenity.94 Nor did
Lohman's indictment impede sales of The Married Woman's Private
Medical Companion, which went through nine editions between 1847 and
1860. 9'

It should be noted that other antebellum cities showed less tolerance
for literature of this sort. In Philadelphia, health reformer Frederick Hollick
was indicted for obscene libel in 1846 for distributing a collection of his
popular lectures on health, sex, and anatomy, somewhat suggestively
entitled The Origin of Life. A Popular Treatise on the Philosophy and
Physiology of Reproduction in Plants and Animals, Including the Details of
Human Generation with a Full Description of the Male and Female

ROGERS: SEX AND CULTURE IN NINETEENTH-CENTURY NEW YORK 100-02 (1995); HOROWITZ,

supra note 1, at 209. On Restell, see CLIFFORD BROWDER, THE WICKEDEST WOMAN IN NEW

YORK: MADAME RESTELL THE ABORTIONIST (1988).

93 The complainant in Lohman's case, James B. Lloyd, wrote to District Attorney
John McKeon, bringing The Married Woman's Private Medical Companion to his attention
and emphasizing Lohman's connection to Restell: "This book contains about 160 pages and
its sole object is the advertising of Madame Restell's pills under the name of M. De
Someaux's Preventive to Conception." According to Brodie, the pills were to be used as a
douching solution. BRODIE, supra note 88, at 231. Complaining that "this Lohman boasts of
having sold over twenty five thousand of these books in less than three months" and that
Lohman advertised both his book and Restell's abortion practice extensively in newspapers
throughout the country, Lloyd implored the District Attorney to take action against the
"immense... dealings of this couple in wholesale murder." People v. Charles Lohman alias
Dr. A.M. Mauriceau, Sept. 15, 1847, District Attorney's Indictment Papers, New York Court
of General Sessions (N.Y. Mun. Archives). On Restell's prosecution, see People v. Caroline
Lohman alias Ann Lohman alias Madame Restell, Sept. 7, 1847, District Attorney's
Indictment Papers, New York Court of General Sessions (N.Y. Mun. Archives). A transcript
of the trial was published as Wonderful Trial of Caroline Lohman, alias Restell with
Speeches of the Counsel, Charge of Court and Verdict of the Jury [n.p.n.d.]. For another
indictment of Restell in 1847, see People v. Ann Lohman, alias Caroline Lohman, alias
Madame Restell, Dec. 15, 1847, District Attorney's Indictment Papers, New York Court of
General Sessions (N.Y. Mun. Archives). See also SREBNICK, supra note 92, at 99-107
(discussing the trials of Madame Restell).

94 People v. Charles Lohman alias Dr. A.M. Mauriceau, Sept. 15, 1847, District
Attorney's Indictment Papers, New York Court of General Sessions (N.Y. Mun. Archives);
BROWDER, supra note 92, at 77, 103; HOROWITZ, supra note 1, at 209.

95 BRODIE, supra note 88, at 231.



Obscenity Law and Its Consequences

Organs.96 A second indictment charged Hollick with circulating obscene
pictures in the form of anatomical illustrations included in the book.97

Hollick's philosophy was indeed controversial in its day. In his
lectures and writings, he emphasized the importance of sexual pleasure and
argued for the right of both women and men to control their own bodies. 98

He also offered advice on contraception, advertised condoms, and promoted
the use of aphrodisiacs like tea, coffee, and marijuana to improve sexual
performance and enjoyment.99 Significantly, however, Hollick was never
prosecuted in New York, even though The Origin of Life was published
there and even though he frequently lectured in the city. After moving to
New York, he published a second book in 1850, The Marriage Guide,
which was even more successful. 0 0 Like his earlier work, The Marriage
Guide provided candid descriptions of sexual anatomy, offered explicit
instructions on contraception, and showed a flair for the sensational.' 0 ' That
Hollick was never prosecuted in New York demonstrates the relatively free
commerce enjoyed by the city's antebellum publishers in works on health
reform, reproductive advice, and sexual physiology.

3. Artistic Representations of Sex

A final category of writing that escaped prosecution for obscenity
was comprised of literary works that contained sexual allusions. A
revealing example is Walt Whitman's Leaves of Grass, first published in
New York in 1855. Many critics charged that Whitman's frank treatment of
sexual desire was obscene and some urged prosecution. A review in the
New York Criterion, for instance, concluded: "Thus, then, we leave this

96 April Haynes, The Trials of Frederick Hollick: Obscenity, Sex Education, and

Medical Democracy in the Antebellum United States, 12 J. HIST. SEXUALITY 543 (2003).

" Id. at 550. A third bill stemmed from his use of a life-size, papier-mach6 model
of a naked woman on his lecture circuit. Id. at 543, 550.

98 Id. at 552.

99 Id. (characterizing Hollick's philosophy as "sex-positive").

100 HOLLICK, THE MARRIAGE GUIDE, supra note 87. On the wide circulation and

frequent reprinting of this work, see BRODIE, supra note 88, at 201.

101 Listed among its chapter headings were "The Vagina," "The Penis," "Proper

Time for Sexual Indulgence," and "Singular Case of Female Hermaphrodism." It included
numerous illustrations, with captions like "View of the Organs with the Clitoris hanging
down in its Natural position, when not erect." HOLLICK, THE MARRIAGE GUIDE, supra note

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Columbia Journal of Gender and Law

gathering of muck to the laws which, certainly, if they fulfill their intent,
must have power to suppress such gross obscenity."' 10 2 Commentators
heaped similar abuse on Nathaniel Hawthorne's The Scarlet Letter,
assailing it as an immoral book that encouraged sexual license. 10 3 Cultural
arbiters opposed to the "licensed libertinism of our established literature"
also denounced Byron's Don Juan and Rousseau's Confessions. 104

The comparative restraint of New York authorities caused the
tabloid National Police Gazette to complain about an alleged double
standard for reputable publishers of poetry and clandestine purveyors of
"coarser books": "The strictly moral may go further than they have yet
gone, and seize upon certain editions of modern poetry, and confiscate them
for immorality-an immorality that exceeds in its pernicious effects
anything that the coarser books, surreptitiously sold on street corners and up
sheltering alleys, contain."' 1 5 Despite invitations of this sort, criminal

102 N.Y. CRITERION, Nov. 10, 1855, at 24. Similarly, an 1856 review of Leaves of

Grass in Frank Leslie 's Illustrated Newspaper carped:

We shall not aid in extending the sale of this intensely vulgar, nay,
absolutely beastly book, by telling our readers where it may be
purchased. The only review we shall attempt of it, will be to thus
publicly call the attention of the grand jury to a matter that needs
presentment by them....

WALT WHITMAN'S LEAVES OF GRASS 259 (David S. Reynolds, ed. 2005).

103 See William B. Lockhart & Robert C. McClure, Literature, the Law of

Obscenity, and the Constitution, 38 MINN. L. REV. 295, 325 (1954); ALBERT MORDELL,
NOTORIOUS LITERARY ATTACKS 122-37 (1926) (reprinting 1851 denunciation of The Scarlet
Letter).

104 See, e.g., Satanic Literature, 2 NAT'L. MAG. 25 (1853). In 1823, an English

court of equity denied copyright protection to Don Juan on the grounds that it was obscene.
See Colette Colligan, Obscenity and Empire: England's Obscene Print Culture in the
Nineteenth Century 70-74 (2002) (unpublished Ph.D. dissertation, Queen's College,
Kingston, Ontario) (on file with author). Likewise, in the following decade, American
literary critics charged publishers of Swinbume's Poems and Ballads with immorality. A
relatively gentle notice in the North American Review concluded that this volume portrayed
"forms of passion so very abnormal and impure, that the mere contemplation of them seems
to smutch and stain." 104 N. AM. REV. 287, 289 (1867).

105 The Immoral Literature of the Day, NAT'L POLICE GAZETTE, Dec. 8, 1866, at 2.

Such attacks gathered fuel from several highly publicized European prosecutions of literary
obscenity that took place at the end of the 1850s. In 1857, for instance, French authorities
tried the publisher and printer of Madame Bovary, as well as Flaubert himself, on charges of
obscenity. Though all of the defendants were acquitted, just a few months later French
prosecutors obtained a conviction against Charles Baudelaire, who had recently published
Les Fleurs du Mal, for "offenses against public morality." See WALTER KENDRICK, THE

[Vol. 16:1



Obscenity Law and Its Consequences

authorities in antebellum New York consistently declined to censor artistic
works issued by relatively highbrow publishers, even when they offended
mainstream moral sensibilities.1

0 6

III. THE ROLE AND IMPACT OF OBSCENITY PROSECUTIONS

In assessing the function and consequences of obscenity
prohibitions in the mid-nineteenth century, one can identify three arenas in
which they had the effect of promoting, rather than restraining, the
development of an American pornography industry. Section A below
analyzes some of the commercial consequences of legal constraints, in
particular the turn by publishers to the U.S. mail as the preferred mode for
marketing and distributing proscribed materials. Section B addresses the
ways in which interdictions on obscenity encouraged the production of new
genres of indecent literature, influencing the content of both "fancy" and
"racy" print. Section C highlights the ways in which obscenity prosecutions

provided advertising for the emerging pornography trade, disseminating
knowledge about sexual publications and generating interest in them among
potential consumers.

A. New Methods of Marketing and Distribution

By the mid-nineteenth century, New York publishers of "fancy,"
forbidden books had come to perceive the law of obscenity as a significant
threat to both their liberty and property. Several prosecutions for obscenity
in the 1840s had resulted in prison sentences for the defendants. For
instance, the publisher that Anthony Comstock later identified as the most
prolific pornographer of the nineteenth century, Williams Haines, served
three months in jail in 1846 for selling an illustrated copy of The Curtain
Drawn Up, or The Education of Laura in a public square. 07 By the 1850s,

SECRET MUSEUM: PORNOGRAPHY IN MODERN CULTURE 105-15 (discussing prosecutions of
Flaubert and Baudelaire).

106 In 1882, supporters of Anthony Comstock succeeded in suppressing the
publication of a new edition of Leaves of Grass in Boston by using the threat of obscenity
prosecution. See BEISEL, supra note 1, at 164-67. Even then, as Beisel astutely notes, the
censorship campaign backfired: "Whitman took his book to Philadelphia, where the furor
aroused by its suppression in Boston made it an enormous financial success." Id. at 165.

107 People v. William Haines, July 17, 1846, District Attorney's Indictment Papers,

New York Court of General Sessions (N.Y. Mun. Archives); N.Y. TRIB., July 23, 1846, at 2.
On Haines' prominence, see ANTHONY COMSTOCK, FRAUDS EXPOSED 388 (Patterson Smith
1969) (1880).

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72 Columbia Journal of Gender and Law [Vol. 16:1

fewer prosecutions ended in incarceration of the defendants, especially
those involving major, relatively well-capitalized publishers who occupied
the top of the supply chain. 10 8

Nonetheless, in the minds of antebellum pornographers, the law of
obscenity continued to present very real risks. At a minimum, purveyors of
morally objectionable texts wanted to protect substantial investments of
capital from police raids and confiscations. This fear was entirely rational,
given large seizures of publishers' stock in both the 1840s and 1850s. 10 9

They also wanted to minimize the need to pay kickbacks to local police,
judges, and court officers. Such kickbacks were an increasingly common
cost of doing business that consumed a large portion of their profits.110

Moreover, because they operated in a zone of criminalized speech
whenever they marketed or sold "fancy" publications, New York publishers
pursued their trade in the omnipresent "shadow of the law" and its
punishments, constantly confronted with and responsive to the threat of
arrest and imprisonment.'

Yet the risk of prosecution for obscenity did not induce these men
(or the women who sometimes assisted them) to mend their ways, abandon
the obscene book trade, and become virtuous, orderly citizens. Instead, it
prompted them to strategize about ways to navigate their business ventures
around the law. One critical consequence of the desire of erotica publishers
and dealers to evade arrest for obscenity was the development of new

108 See Dennis, supra note 6, at ch. 5 (providing a detailed account of prosecutions

for obscenity in 1850s New York).

109 See id. at chs. 4-5 (providing a detailed account of prosecutions for obscenity in

1840s and 1850s New York).

110 For example, William Haines's wife told Comstock in 1872 that she and her
husband would have been wealthy if they had not been forced to pay blackmail to New York
police detectives. See Arrest Records of the New York Society for the Suppression of Vice,
Manuscript Division, Library of Congress (entry for "William Haynes") [hereinafter Arrest
Records of NYSSV]. See also Letter of Anthony Comstock to Rep. Clinton L. Merriam,
dated January 18, 1873, in support of An Act for the Suppression of Trade in and Circulation
of Obscene Literature and Articles of Immoral Use, CONG. GLOBE, 42nd Cong., 3d sess. app.
168-69 (1873) ("[Haines] has for years been the victim of black mail by the detectives of
New York city, and in this manner has been practically licensed by them to do this
business.").

1 For a classic account of how social actors operate within the "shadow of the
law," see Robert H. Mnookin & Lewis Komhauser, Bargaining in the Shadow of the Law:
The Case of Divorce, 88 YALE L.J. 950, 951 (1979). See also MICHAEL GROSSBERG, A
JUDGMENT FOR SOLOMON 2 (1996) (applying the concept of bargaining in the shadow of the
law to a nineteenth-century child custody dispute).



Obscenity Law and Its Consequences

channels for marketing and distributing illicit publications. This impulse led
many New York pornographers to attempt to insulate themselves from the
point of sale by relying on a network of peddlers to distribute their "fancy"
books and prints on streets, docks, trains, and in hotel lobbies throughout
the city. 112

By the mid-1850s, however, the desire to elude obscenity
prosecutions had inspired a vanguard of New York publishers to move
away from local sales and to embrace the relative privacy, anonymity, and
safety of mail-order operations. At this point in time, Congress had not yet
taken steps to ban obscenity from the mail or other instruments of interstate
commerce. By exploiting the U.S. mail system to advertise and deliver their
goods, these men hoped to create an inconspicuous, secure vehicle for
marketing and selling publications that municipal authorities considered
obscene.' 1 3

At least one mid-nineteenth-century New York pornographer, an
innovative publisher, editor, and all-around sexual entrepreneur named
George Akarman, went so far as to abandon local sales of "fancy" materials
that he delicately described as "in opposition to law" altogether. 14 By
distributing his products through the U.S. mail, Akarman sought to deprive
municipal governments, especially officials in New York City, of the legal
power to regulate what he hoped would become an exclusively interstate,
entirely mail-order business in obscene publications. In the process, he
relinquished the profits that could have been gained from participating in
New York's thriving local market for erotica. As he explained his strategy,
"none of those books which are condemned by the laws have ever been sold
or distributed by me in this city." Instead, he sold such books only by mail

112 See, e.g., People v. Frederick Brady alias Henry S.G. Smith, Feb. 12, 1858,

District Attorney's Indictment Papers, New York Court of General Sessions (N.Y. Mun.
Archives) (including affidavits of peddlers who regularly acquired books from Brady to sell
on the streets).

113 From the opposing corner, this is how Anthony Comstock conveyed the

benefits of the U.S. mail for nineteenth-century purveyors of erotica: "The mail of the United
States is the great thoroughfare of communication leading up into all our homes, schools
and colleges. It is the most powerful agent, to assist this nefarious business, because it goes
everywhere and is secret." COMSTOCK, supra note 107, at 391.

114 George Akarman, Letter to the Editor, N.Y. HERALD, Sept. 20, 1857, at 8. For a
detailed analysis of Akarman's life and career, and the pivotal role he played in the
development of the American pornography trade, see Dennis, supra note 6, at chs. 7-8.

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Columbia Journal of Gender and Law

order to individual customers whom he described as "'gentlemen' at a
distance."' 15

By the end of the 1850s, William Sanger, a New York physician
and public health expert who conducted an extensive study of the city's
commercial sex trade, astutely described how the U.S. postal service
enabled publishers like Akarman to survive in the midst of a legal system
that criminalized obscene publications. As he observed, police raids on the
city's major suppliers of obscene books simply encouraged pornographers
to redirect their business from relatively public, over-the-counter or street-
level sales to secret, mail-order advertising and distribution:

More caution is observed now, and the post-office is made the
vehicle for distribution. Circulars are issued which describe the
publications and their prices, modes of transmitting money are
indicated, and the advertiser plainly says that he will not allow
any personal interviews on account of the dangers which
surround the traffic. 1 6

Thus, one consequence of obscenity prosecutions in antebellum
New York was to prompt resourceful sexual entrepreneurs to pursue new
methods of marketing and distributing pornography, including a system of
advertising, payment, and delivery via the mail.1 7 In moving to the mails,
of course, publishers of erotica not only circumvented local prosecutions for
obscenity, but also dramatically expanded markets for sexual print across
the nation.

115 George Akarman, Letter to the Editor, N.Y. HERALD, Sept. 20, 1857, at 8. The

Genuine Fancy Books Circular also emphasized the privacy and security of the mail-order
business:

To ensure safety and defy detection, all [fancy] books are sent privately
by mail, done up in strong wrappers, closely sealed up with wax, and full
letter postage paid on every book. . . . Recollect none of the above
articles can be had at my office in New York, or through any agency or
bookseller whatever. All orders must come by mail ....

Genuine Fancy Books Circular, supra note 41.

116 WILLIAM W. SANGER, THE HISTORY OF PROSTITUTION 522 (1858).

117 In shifting to the mail, publishers were greatly aided by a fortuitous change in
postal regulations in 1851 that allowed bound books to be transported in the mail for the first
time. See RiCHARD R. JOHN, SPREADING THE NEWS: THE AMERICAN POSTAL SYSTEM FROM
FRANKLIN TO MORSE 39 (1995); Richard B. Kielbowicz, Mere Merchandise or Vessels of
Culture? Books in the Mail, 1792-1942, in 82 PAPERS OF THE BIBLIOGRAPHICAL SOC'Y OF
AM. 169, 176-77 (1988).

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Obscenity Law and Its Consequences

B. New Genres of Erotic Representation

The threat of obscenity charges also shaped the editorial and
marketing strategies of pornographic publishers, who began to classify
erotic texts by their relative risk of prosecution and by their relative
attractiveness as more or less "forbidden." The influence of obscenity law
can be traced in both "fancy" publications that violated legal conventions of
obscenity and "racy" publications that deliberately skirted the borders of the
obscene.

1. Prohibition and Desire: The Erotic Imaginary of Venus'
Miscellany

Theorists of sexuality long ago explained the importance of
prohibition to sexual desire. As Sigmund Freud declared early in the
twentieth century: "Some obstacle is necessary to swell the tide of the libido
to its height; and at all periods of history, wherever natural barriers in the
way of satisfaction have not sufficed, mankind has erected conventional
ones in order to be able to enjoy love." ' 8 Later in the century, Georges
Bataille argued that the pleasure of pornography depends on an
accompanying prohibition that it appears to transgress and thereby
"completes."" 19 More recently, theorists such as Michel Foucault and Judith
Butler have explored the "productive and multiple possibilities of the
law,"'' 20 demonstrating the ways in which ostensible instruments of
"repression" and "prohibition" instead publicized sex, promoted sexual

118 SIGMUND FREUD, The Most Prevalent Form of Degradation in Erotic Life, in 4

COLLECTED PAPERS 203, 213 (Joan Riviere trans., 1959).

119 GEORGES BATAILLE, EROTISM: DEATH & SENSUALITY 63 (Mary Dalwood trans.,

1986) (1957) ("The transgression does not deny the taboo but transcends it and completes
it."). Bataille pointed out how outlets for sexual expression that appear to be subversive, such
as pornography, in actuality operate as forms of repression and social control. In this scheme,
pornographers want to maintain cultural taboos against frank depictions of sex so that they
may offer fulfillment by transgressing them. See id. at 36 (arguing that a transgression
"suspends a taboo without suppressing it"). See also JESSICA BENJAMIN, THE BONDS OF
LOVE: PSYCHOANALYSIS, FEMINISM, AND THE PROBLEM OF DOMINATION 63-66 (1988)
(discussing Bataille). For an exploration of similar themes, see HERBERT MARCUSE, EROS
AND CIVILIZATION (1966).

120 JUDITH BUTLER, EXCITABLE SPEECH: A POLITICS OF THE PERFORMATIVE 117

(1997) ("[P]rohibition does not seek the obliteration of the prohibited desire; on the contrary,
prohibition pursues the reproduction of prohibited desire and becomes itself intensified
through the renunciations it effects.... [T]he prohibition not only sustains, but is sustained
by, the desire that it forces into renunciation.").

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76 Columbia Journal of Gender and Law [Vol. 16:1

discourse, and created the conditions for new forms of desire.121 As
Foucault famously reinterpreted Freud's theory of sexual repression, "what
is involved is the production of sexuality rather than the repression of sex..

,122

The emergence of obscenity regulation in antebellum America
confirms the insights of these theorists. By banning depictions of sexual
acts, obscenity prosecutions conveniently interposed a legal prohibition that
incited the public's desire for representations of sex. Moreover, by singling
out feminine avowals of carnal passion for special condemnation, obscenity
prohibitions made such representations seem especially appealing. One
result was a new type of American periodical, surreptitiously marketed to
bourgeois readers through the mail, that portrayed middle-class American
women, particularly middle-class American wives, in a boldly lascivious
light.

In 1856, George Akarman set out to exploit the commercial
possibilities presented by legal and cultural taboos against expressions of
female desire. In that year, he unveiled the nation's first pornographic

121 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION 158

(Robert Hurley trans., 1990) ("[W]hat we now perceive as the chronicle of a censorship and
the difficult struggle to remove it will be seen rather as the centuries-long rise of a complex
deployment for compelling sex to speak, for fastening our attention and concern upon sex. .
. .11).

122 Id. at 114. For examinations of the ways that contemporary obscenity law

invites and proliferates sexual images through its powers of taboo and transgression, see
Adler, supra note 5, at 246-50 (discussing the "dialectic between prohibition and
transgression" in the context of child pornography law); David Cole, Playing by
Pornography's Rules: The Regulation of Sexual Expression, 143 U. PA. L. REv. 111, 167
(1994) ("Much of pornography's appeal lies in approaching and transgressing the social
taboos that we develop to regulate it."). Catherine MacKinnon also describes the relationship
between obscenity law and pornography as one in which the former actually "helps keep
pornography sexy":

[O]bscenity law, like the law of rape, preserves the value of, without
restricting the ability to get, that which it purports to both devalue and to
prohibit. Obscenity law helps keep pornography sexy by putting state
power-force, hierarchy-behind its purported prohibition on what men
can have sexual access to.

MAcKINNON, FEMINISM UNMODIFIED, supra note 4, at 162. For a valuable discussion of
Foucaultian and other theoretical insights on censorship, see Robert C. Post, Censorship and
Silencing, in CENSORSHIP AND SILENCING: PRACTICES OF CULTURAL REGULATION (Robert C.
Post ed., 1998).



Obscenity Law and Its Consequences

periodical, a weekly sex journal called Venus' Miscellany.'23 Far more
explicit than any periodical yet published in the United States, Venus'
Miscellany offers a fascinating portrait of the origins of American erotica. It
also provides a rich, indeed virtually unparalleled, perspective on the mid-
nineteenth-century male sexual imagination, a perspective that challenges
much of the received wisdom about the history of pornography. 124 Among
other things, the paper's persistent affirmations of female agency call into
question those interpretations that identify the subordination of women as
the central convention of Victorian erotic writing. z5

The most distinctive feature of Venus' Miscellany, highlighted in
the letters to the editor that contained the most graphic sex, was its
celebration of female passion and sexual independence. Significantly, the
women of Venus' Miscellany were never portrayed as prostitutes. Instead,
they were valorized as desiring subjects who engaged in sex for their own
amusement and pleasure. To be sure, the paper carried a fair number of
testimonies from men boasting of their sexual conquests of young virgins.
But many more of the letters offered sexual confessions from seemingly
respectable, often married, women. Though one strongly suspects Akarman
as the author of these confessions, the first-person narration by domestic,
"average" American women is nonetheless noteworthy. Indeed, it
represented a marked shift away from pervasive negative portrayals of
sexually active women in American literature up to this point. In racy
novels, for instance, sexually aggressive women were typically limned as
monstrous, violent figures who delighted in inflicting pain and in destroying
men.

126

123 The first surviving issue of Venus' Miscellany, dated January 31, 1857, is

numbered Volume I, Whole No. 12. This suggests publication began in November 1856.

124 For an extended analysis of Venus' Miscellany and its implications for the mid-

nineteenth-century erotic imaginary, see Dennis, supra note 6, at ch. 7.

125 For scholarship on nineteenth-century pornography that interprets it as a

medium that oppressed women, see STEVEN MARCUS, THE OTHER VICTORIANS: A STUDY OF
SEXUALITY AND PORNOGRAPHY IN MID-NINETEENTH-CENTURY ENGLAND (1964) (portraying
Victorian pornography as an exclusively male genre in which men control, objectify, and
violate women). See also JOAN HOFF, Why Is There No History of Pornography?, in FOR
ADULT USERS ONLY: THE DILEMMA OF VIOLENT PORNOGRAPHY 30 (Susan Gubar & Joan
Hoff eds., 1989) ("Without gender analysis, no analysis or definition of pornography will
expose its basic sexism or its function as an ideological representation of patriarchy and an
exercise in the 'practice of power and powerlessness."').

126 See REYNOLDS, supra note 6, at 214-19 (discussing portrayals of sexually

voracious women as dangerous and monstrous in 1840s sensation fiction).

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Columbia Journal of Gender and Law

A series of correspondence between two married women is
emblematic of Akarman's interest in providing positive depictions of
women's erotic subjectivity and control over sex.1 27 With these letters,
Akarman cleverly combined a classic pornographic device, dating back to
Aretino's sixteenth-century Ragionamenti, of a dialogue between two
courtesans, with the modem, democratic tool of reader participation. In the
first letter, a woman named "Maria C." reveals that her "husband has a
peculiar taste which he desires me to gratify.' 28 The "peculiar taste" is
having his wife tell him whether she has ever been "naughty" with other
men. Maria relates that, while reading a racy book together one night, her
husband suddenly urges her to tell him whether she had "enjoyed the
delights of love" before their marriage. 129 When she confesses to one affair,
he responds enthusiastically. 130 But should she gratify her husband's
voyeuristic desires by confessing her dalliances since their marriage?
Confused, she solicits advice not from the male editor but from other female
readers: "If you publish this perhaps some of your readers whose husbands
have the same kind of desire, will be able to answer even better than
you.'

13 1

In answer to Maria's request, the very next issue brings a response
from a married woman who has seen Maria's letter. 32 Predictably, this
woman wholeheartedly endorses Maria's disclosures to her husband and her
adultery too. "Be assured," she counsels, "that the greater pleasurist your

127 This series appeared in the correspondence columns of issues of Venus'

Miscellany, dated May 9, 1857, May 16, 1857, and July 11, 1857.

128 Mr. Editor, VENUS' MISCELLANY, May 9, 1857, at 3.

129 Id. The book in question was George Thompson's Amours of Margurite of

Burgundy, which Akarman serialized in early numbers of Venus' Miscellany and advertised
in book form in the same issue in which Maria C.'s letter appeared.

130 As she recounts:

[P]resently disrobing me, he smothered me with kisses on every part of
my person, and declared it was the most delightful moment he had ever
enjoyed with me, nor did he withdraw from the ardor of his embrace till
he had three times subdued himself in my arms, all the time whispering
to me the delight he felt and urging me to tell him all about it.

Id.

131 Id.

132 To Maria C., VENUS' MISCELLANY, May 16, 1857, at 3.

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Obscenity Law and Its Consequences

husband finds you, the more he will love you, and the oftener he will take
you to his arms. 133 Maria's correspondent then confesses to being an avid
pleasurist herself, putting a libidinous twist on the free love movement of
the 1850s, a middle-class, bohemian cause that opposed marriage and
supported sexual relationships rooted in "passional attraction" rather than
law. 134 "My husband and I," she relates, "found out the first night, the true
secret of Love. The consequence is, that we are both pleasurists. He enjoys
whom he pleases. Perhaps I sometimes wander myself."'' 35 One of the
pleasures she describes is that she and her husband, primed by reading the
latest issue of Venus' Miscellany, pursue a mdnage i trois with their female
neighbor, Martha, every Saturday night. "[S]atisfied myself," the writer
explains, "I turn my back." As she blithely puts it, "[w]hy be jealous and
wicked?"'

136

Two months later, Maria writes to inform the editor that she has
followed her correspondent's advice about confessing her affairs to her
husband.137 As a result, she and her husband now "enjoy one continued
stream of happiness, heightened to the highest degree by pleasurable
conversation, and to the height of ecstasy by softly whispered
confessions.', 38 Manifesting a new emphasis on the pleasures of reading,
Maria and her husband also arouse each other by perusing Venus'
Miscellany. As she compliments the editor: "The spicy tales, anecdotes, and
correspondence contained in your excellent sheet, bring ten thousand thrills
of delight to your readers, and increase the mutual pleasure tenfold.' 39

But Maria takes her correspondent's advice about "pleasurism" to
heart as well, and begins to pursue a torrid relationship with her married
female neighbor, "Mrs. S." Indeed, she reports that she and Mrs. S. "have
enjoyed each other's society twenty times since I last wrote to you.' 140

133 id.

134 Id. On the free love movement, see generally HAL D. SEARS, FREE LOVE IN

HIGH VICTORIAN AMERICA (1977); JOHN C. SPURLOCK, FREE LOVE: MARRIAGE AND MIDDLE-

CLASS RADICALISM IN AMERICA (1988).

135 To Maria C., supra note 132.

136 id.

131 My Dear Sir, VENUS' MISCELLANY, July 11, 1857, at 3.

138 id.

1
39 

id.

140 id.

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Columbia Journal of Gender and Law

When Maria confesses the lesbian affair to her husband, he is not angered in
the slightest; on the contrary, the revelation throws him into another
"ecstasy of delight., 141 Given his taste for voyeurism, he of course declares
"he must be a witness of the scene."'1 42 Generously, Maria agrees that he can
watch her and her neighbor make love by "peeping through a hole he had
made in the door., 143 She also provides readers with a description of her
mutual oral sex with Mrs. S., including a moment that presumably pleased
male audiences by having the spying husband take his wife's place in
"completing the pleasure."1 44

In his role as editor, Akarman likely had a strong hand in creating
these letters. He obviously believed there was a demand among male
readers for stories that inverted prevailing cultural norms by eroticizing
female agency and male passivity in the sexual sphere. By defying legal as
well as moral prohibitions on depictions of erotic knowledge and power
among women, it is not hard to imagine that stories like Maria's provided
Akarman's male customers with a delicious thrill of transgression. 145

But one pressing question is, were women like Maria purely
figments of the male editor's imagination? In other words, what can Venus'
Miscellany teach us about the nature of female desire in the mid-nineteenth-

141 Id.

142 id.

143 Id.

144 As Maria describes the scene:

At length, as we had before arranged, I had her in such a position, her
back to the door, and our heads and tails somehow so mixed that we
were laying at reverse ends, when my husband crept softly in and
assisted me in completing the pleasure, without for the moment her
becoming aware of it.

Id. Clearly, passages like these were designed both to parody the free love cause and to
titillate male audiences with depictions of women making love, a continuing staple of
twenty-first-century male fantasy. Another use of the free love movement for the purpose of
sexual titillation can be found in George Thompson's Fanny Greeley; Or, Confessions of a
Free-love Sister Written by Herself, published by H.S.G. Smith sometime in the 1850s. For a
description of Fanny Greeley, see ASHBEE, supra note 39, at 210-17.

145 Akarman's interest in inverting prescribed gender roles also manifested itself in

stories about cross-dressing. See, e.g., Dear Venus, VENUS' MISCELLANY, June 6, 1857, at 3.
Within a mainstream culture that presented sexual differences between men and women as
innate and inevitable, such stories provided a titillating counterpart to normative
conventions, at the same time as they offered comic release.

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2007] Obscenity Law and Its Consequences 81

century United States? For instance, it is certainly possible that some
American women may have derived satisfaction from reading Venus'
Miscellany--perhaps, as many of its scenarios suggested, with their
husbands or suitors. Several daily papers expressed horror over the apparent
appeal of Akarman's publications to women, not just as subscribers, but
also as employees, writers, and correspondents. As the New York Times
reported, "[i]t is a disgraceful fact, that out of 3,300 subscribers" to Venus'
Miscellany, "nearly one half were females." 146 Akarman also hired women
to create his pornography, employing them "in stitching the sheets of the
works and in coloring the plates." The Times likely did Akarman a service
by bolstering his effort to portray women as avid readers and eager
contributors to the Miscellany: "Contributions to the literary content of the
paper, in many cases written by females, and of the most obscene
description, were also found., 147 Again, while this article likely exaggerated
the role of women in order to shock the public, other evidence supports its
assertion that women actively participated in the production and
consumption of Victorian pornography. 48

Moreover, it should be emphasized that female passionlessness was
149

an ideological prescription of the bourgeoisie, not a social reality., We can
surmise that numerous antebellum women read sexual advice literature of
the sort published by Frederick Hollick, which advocated a wife's right to

146 Immense Seizure of Obscene Works-Ackerman Again in Trouble, N.Y. TIMES,

Sept. 16, 1857, at 5.

147 Id.

148 For example, Mary Haines, the wife of the largest mid-nineteenth-century

pornographer, William Haines, assisted him throughout his career. See entry for "Mary
Haynes" in Arrest Records of NYSSV, supra note 110. In addition, the wife of William

Simpson, one of the leading New York distributors of pornography in the 1860s, was said to
specialize in selling and lending obscene books to shop girls. See Affidavit of Anthony

Comstock, United States v. William Simpson (S.D.N.Y. Jan. 26, 1874) (Federal Archives)
(indictment filed Oct. 7, 1873) (describing activities of William Simpson's wife). Indeed,

when Comstock began his crusade against obscenity after the Civil War, he insisted that
females, particularly girls and young women, were major consumers of obscene books and
prints.

149 Several historians of sexuality have ably advanced this point, with a

corresponding critique of the notion of a "repressive" nineteenth century. See PETER GAY,

THE BOURGEOIS EXPERIENCE: VICTORIA TO FREUD (1984-1998); KAREN LYSTRA, SEARCHING

THE HEART: WOMEN, MEN, AND ROMANTIC LOVE IN NINETEENTH-CENTURY AMERICA (1989);
CHRISTINE STANSELL, CITY OF WOMEN: SEX AND CLASS IN NEW YORK, 1789-1860, at 171-92
(1987); Carl N. Degler, What Ought To Be And What Was: Women's Sexuality in the
Nineteenth Century, 79 AM. HIST. REV. 1467 (1974).



82 Columbia Journal of Gender and Law [Vol. 16:1

sexual pleasure, as well as manuals on contraception.150 In addition, scores
of adventuresome middle-class women in New York City attended
meetings that openly discussed free love and the perils of sexual monogamy
and marriage.' 5' More provocatively, Rachel Maines has demonstrated that
many middle and upper-class women eagerly sought out doctors and spas
that offered sexual massages and clitoral hydrotherapy treatments in the
mid-nineteenth century. 152

Finally, we should not reject the possibility that the stories in
Venus' Miscellany, by publicizing same-sex passion, could have enabled
subversive readings by women who desired women.15 3 In a popular 1854
work on sex and physiology called Esoteric Anthropology, health reformer
and free love advocate Thomas Low Nichols remarked on the "not
unfrequent" occurrence of what he called "Sapphic love." As he described
this practice, it was a "passion of females for each other, and their mutual
gratification of each other's desires."' 54 While Esoteric Anthropology
categorized such love as a "perversion," the columns of Venus' Miscellany
presented readers with a more affirmative context in which to fantasize
about sapphic sex.

In all probability, when New York's daily newspapers claimed that
half the subscribers to Venus' Miscellany were women, their motives were

150 BRODIE, supra note 88, at 102.

151 See, e.g., The Free-Lovers' Troubles, N.Y. TIMES, Oct. 20, 1855, at 2

(describing a large number of women present at a free love meeting broken up by the New
York City police).

152 See RACHEL P. MAINES, THE TECHNOLOGY OF ORGASM: "HYSTERIA," THE

VIBRATOR, AND WOMEN'S SEXUAL SATISFACTION 72-81 (1999) (discussing the popularity of
sexual massage and hydrotherapy among bourgeois women in the nineteenth century).
George Thompson salaciously alluded to this practice in his 1849 novel, New-York Life: The
Mysteries of Upper Tendom Revealed. He described a particular doctor who developed a
flourishing medical practice by attending to the "private parts" of various respectable New
York matrons, who "'are doctored for no other reason than a liking for the medicine."'
REYNOLDS, supra note 6, at 219 (quoting GEORGE THOMPSON, NEw-YORK LIFE: THE

MYSTERIES OF UPPER-TENDOM REVEALED 78 (1849)).

153 For one account of sexual passion between American women in the period in

which Venus' Miscellany was published, see LISA MERRILL, WHEN ROMEO WAS A WOMAN
205-42 (1999) (describing intense "sapphic desire" between the actress Charlotte Cushman
and a young admirer, Emma Crow).

154 NICHOLS, supra note 87, at 201. In writing this work, Nichols was likely aided

by his wife, Mary Gove Nichols. See HOROWITZ, supra note 1, at 290-91 (discussing
collaboration of T.L. Nichols and Mary Gove Nichols).



Obscenity Law and Its Consequences

heavily sensational. But the shock value of attributing a desire for sexual
stimulation to women may also have conveyed an unsettling truth-that
female readers could use its tales of independent women, its depictions of
sapphic passion, and its insistence on a woman's right to sexual pleasure to
forge erotic fantasies of their own.

2. Obscenity Prosecutions and Mail-Order Erotica: Creating
Pornography for the American Middle Class

By the time he launched Venus' Miscellany, Akarman was well
aware of the risks that obscenity law posed for a paper like his.
Accordingly, he published it under an alias, "James Ramerio." He also kept
plenty of cash on hand to pay bribes to local authorities. 155 In addition, he
dreamed of escaping obscenity regulation altogether by creating a
subscription-only periodical that traveled exclusively through the discreet,
private medium of the interstate mails. As he told readers in an early issue,
it was his intention to place the paper "entirely into a subscription
circulation, which will insure it to those who want it, and keep it from who
do not want it.' 156

Akarman's path-breaking strategy to forego local, street-level
commerce in Venus' Miscellany did not only alter his methods of
distribution. It also affected the ways in which he edited the paper, ways
that dovetailed with his ambition to build a national, middle-class audience
for erotic journalism. The stylistic ramifications of Akarman's desire to
create an interstate, mail-order vehicle for erotica are best appreciated by
comparing Venus' Miscellany with an earlier breed of sexually themed,
disreputable New York periodicals, commonly known as the flash press,
which surfaced in New York in the early 1840s. Less explicit than Venus'
Miscellany, these publications chronicled the rowdy, brazen world of New
York sporting men, prostitutes, and brothel keepers. 157

155 Akarman allegedly often "boasted that he had money enough to buy up all the
Justices in the city." Great Seizure of Obscene Literature, N.Y. HERALD, Sept. 16, 1857, at
5.

156 A Model Love Paper, VENUS' MISCELLANY, Jan. 31, 1857, at 3. See also A

Publishing Establishment Broken Up, N.Y. TRIB., Sept. 16, 1857, at 5 ("The sheet was not
publicly sold, and was only to be obtained by addressing a letter, with the money, to [James
Ramerio], Box No. 4,046, General Post-Office.").

157 Papers like the Flash, the Rake, the Libertine, and the Sporting Whip also
championed a variety of popular, rough-and-tumble male leisure activities, such as drinking
in saloons, mingling in the pits of Bowery theaters, heckling at bare-knuckle boxing matches
and cock fights, hanging out in gambling "hells," and frolicking at neighborhood firemen's

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Columbia Journal of Gender and Law

One fundamental difference between the flash press and Venus'
Miscellany was a shift in editorial tone from speaking to a particularized
metropolitan or, at most, regional market to speaking to a homogeneous,
national one. The flash papers were addressed to a distinctive urban
audience and assumed readers' familiarity with the raucous New York
sporting scene, offering gritty commentary on local politics, reviews of
New York theatrical and sporting events, and detailed information about the
location, employees, and cleanliness of various brothels. In contrast, Venus'
Miscellany rarely mentioned New York people or places. Indeed, Akarman
edited the paper in such a way as to remove it from any particular urban
provenance and to position it within a hazier, national setting. His chief
strategy for achieving this transcontinental reach was to print raunchy
letters to the editor from supposed readers in rural hamlets, small towns,
and cities across the United States. 158

A second point of departure was that Venus' Miscellany printed
erotic fiction and generic sexual humor rather than salacious local gossip.
The flash editors reveled in exposing sexual transgressions among the city's
financial, religious, and political elite, as well as among their own milieu of
urban sportingmen and brothel madams. Venus' Miscellany, however, self-
consciously avoided printing information about real-life individuals.
Instead, Akarman relied on correspondence from purported readers to
provide an air of verisimilitude. In so doing, he both widened his potential
audience and reduced the risk that an offended party would press to have
him indicted for obscenity, as had often happened to his predecessors in the
flash press.159

balls. Literature on the New York flash press and the sporting culture it reported on is now
quite large. See generally PATRICIA CLINE COHEN, THE MURDER OF HELEN JEWETT (1998);
GILFOYLE, supra note 6, at 92-116; ELLIOT J. GORN, THE MANLY ART (1986); HOROWITZ,
supra note 1, at 125-43, 159-93; REYNOLDS, supra note 6, at 168-224; SREBNICK, supra note
92, at 53-54; Patricia Cline Cohen, Unregulated Youth: Masculinity and Murder in the 1830s
City, RADICAL HIST. REV. 52 (1992); Elliot J. Gom, "Good-Bye Boys, I Die a True
American ": Homicide, Nativism, and Working-Class Culture in Antebellum New York City,
74 J. Am. HIST. 388 (1987); Helen Lefkowitz Horowitz, Another 'American Cruikshank'
Found: John H. Manning and the New York Sporting Weeklies, 112 PROCEEDINGS AM.
ANTIQUARIAN SOC'Y 93 (2004); Philip Howell, Sex and the City of Bachelors: Sporting
Guidebooks and Urban Knowledge in Nineteenth-Century Britain and America, 8 ECUMENE:
J. ENVT, CULTURE, MEANING 20 (2001).

158 On the construction of national communities of readers (outside the context of

pornography) and the importance of imaginatively shared reading practices to modern
nationalism, see BENEDICT ANDERSON, IMAGINED COMMUNITIES (1991).

159 On obscenity indictments involving editors of the flash press, see HOROWITZ,

supra note 1, at 159-93; Dennis, supra note 6, at chs. 2-3.

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Obscenity Law and Its Consequences

Moreover, while the flash papers were defiantly lowbrow, loud, and
vulgar in their appeal, Akarman projected an audience of readers who were
refined, middle or upper-class, and, above all, inconspicuous. This change
was at least in part a product of his legal strategy to steer Venus' Miscellany
away from the type of customers who could buy it from any newsboy on the
street, and toward the out-of-town subscribers who possessed the financial
resources and sophistication to negotiate mail-order subscriptions and
purchases. Akarman's ideal customer was one who wished his copy of
Venus' Miscellany to arrive in a post office box concealed in a discreet
paper wrapper, not to be "thrust in the face" of passersby in the public
streets, as peddlers of flash periodicals and racy pamphlets were wont to
do.

160

One of Akarman's most ingenious tactics for reaching a more
upscale audience was to develop a new domestic setting for erotic fantasies.
Very deliberately, he moved sex out of the street and out of the brothel,
which had been the principal subjects of the flash press, and into the newly
idealized, middle-class "home." In City of Women, Christine Stansell
described how the bourgeoisie transformed the traditional household into a
"home" in the antebellum period: "The 'home,' their own term for the
domestic setting, had become for them a pillar of civilization, an incubator
of morals and family affections, a critical alternative to the harsh and
competitive world of trade and politics. '16 1 Many of Venus Miscellany's

160 Cf Editorial, Not Stopped Yet, N.Y. SUN, Aug. 24, 1842, at 2 (complaining that

flash papers were "displayed to the eager eyes of every lad who chose to loiter on his way to
school or to work" and "thrust into the very face of every young lady who ventured out for
the purpose of taking a walk or making a purchase"). Another newspaper article detailed
complaints about similarly aggressive tactics among street peddlers in the 1850s:

Strangers arriving in the City are continually annoyed by the lazy
scapegraces who make a business of hawking about obscene
publications, and indecent pictures. They haunt every hotel, railroad
depot and steamboat landing, and thrust their disgusting wares on all that
come in their way. It is in vain to tell them you don't want to buy; they
will not only exhibit to you the nastiest daubs they have, but go on to
explain them into the bargain: nor will they often refrain from doing so
even though you be accompanied by ladies. In fact there are some who
frequently expose those things to the ladies themselves....

Obscene Publications and Pictures, N.Y. TIMES, Sept. 28, 1855, at 2.

161 STANSELL, supra note 149, at 41. As Mary Ryan also summarized this new

idealization of the "private" domestic sphere:

The adjective public . . . began to designate an unstructured and
intimidating social space. To be in a public space was to be in a crowd of

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Columbia Journal of Gender and Law

fictional encounters took place in this recently created haven of safety and
affection. In this way, Akarman cleverly appealed to new middle-class
tastes by appropriating the accoutrements of bourgeois life as fodder for the
sexual fantasies of his desired middle-class audience. Of course, the
prevailing ideology of domesticity celebrated the home not only as a source
of security and order, but also as the particular sphere of women's moral
power, piety, and virtue. 62 Venus' Miscellany's association of the middle-
class home with female sexual license thus made it especially transgressive
and, as Akarman presumably hoped, especially exciting to his intended
audience.

One of the remarkable things about Akarman's aspirations for a
national, upper-class readership was how well his marketing and editorial
strategies appear to have worked. Admittedly, it is difficult to know the
actual audience for Venus' Miscellany with any certainty. Akarman claimed
the paper had a national circulation of 49,000 readers; newspaper reports
following his obscenity arrest in 1857 confirm the broad geographic reach
and commercial success of the paper. 163 With its flair for the sensational and
hyperbolic, the New York Herald claimed that

strangers, adrift in the anarchy of the streets. Middle-class urbanites
would beat a hasty retreat from this alien public world; they would seek
their refuge in a private home.

RYAN, supra note 43, at 234. See also CoTrr, BONDS OF WOMANHOOD, supra note 43, at 63-
100.

162 STANSELL, supra note 149, at xii ("Designating themselves moral guardians of

their husbands and children," bourgeois women "became the standard-bearers of piety,
decorum and virtue in Northern society. They claimed the home as the sphere of society
where they could most effectively exercise their power."). On domesticity and bourgeois
class formation, see also sources cited in note 43, supra.

163 Using a copy of Akarman's subscription book seized by the police (and shared

with reporters), journalists identified subscribers in rural locales like Williamsport,
Pennsylvania; Bergen, New York; Kensington, Connecticut; and Lane Station, Illinois; small
cities like Lexington, Utica, and Wilmington; and major urban centers like Philadelphia and
Boston-everywhere, it seemed, but New York City. See The Seizure of Obscene Literature,
N.Y. HERALD, Sept. 17, 1857, at 5. Akarman's annual revenue was reported to be a hefty
$60,000, equivalent to more than a million dollars today, with estimated profits of $12,000
for the year, equal to about $235,000 today. For Akarman's business records, see The
Seizure of Obscene Literature, N.Y. HERALD, Sept. 17, 1857, at 5; Great Seizure of Obscene
Literature, N.Y. HERALD, Sept. 16, 1857, at 5; Immense Seizure of Obscene Works-
Ackerman Again in Trouble, N.Y. TIMES, Sept. 16, 1857, at 5. For the current value of 1857
dollars, see The Inflation Calculator, http://www.westegg.com/inflation/ (last visited Oct. 24,
2006).

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Obscenity Law and Its Consequences

the persons who buy these things are the leading men of the
country-preachers, teachers and guides of the people; members
of the national Congress; lights of the pulpit, the bench and the
bar; thunderers upon the political rostrum; presidents of councils
and caucuses and conventions; [and] directors of banks and
insurance offices. 

164

As for Akarman's legal strategies, they failed to spare him from
arrest after an outraged out-of-town parent whose child had received one of
his advertising circulars in the mail demanded that New York officials shut
down his business.' 65 When the metropolitan police seized the contents of
his post office box, they found letters from customers containing "money,
postage stamps, orders for The Venus Miscellany, contributions to its
columns, and orders for obscene books."' 166 But despite several run-ins with
the police and occasional confiscations of his stock, the wily publisher
managed to escape imprisonment throughout his long career. Indeed, for the
rest of the 1850s and through the 1860s and early 1870s, he continued to
profit from selling erotic publications to the national audience that he had
helped to create.

16 7

3. The Law of Obscenity and Racy Novels

Another effect of the interdiction on obscenity was to stimulate
demand for a distinct style of salacious, often violent, sensation literature,
described in Part II as "racy," that self-consciously skirted but did not
transgress the boundary of obscenity. In his important study, Beneath the
American Renaissance, literary scholar David Reynolds has argued that the
indirectness that characterized sexual expression in even the most lurid
examples of New York's sensation fiction stemmed from "deep-seated

164 The Moral Condition of the Country, N.Y. HERALD, Sept. 18, 1857, at 4.

165 People v. George Ackerman, Sept. 25, 1857, District Attorney's Indictment

Papers, New York Court of General Sessions (N.Y. Mun. Archives). Although this
indictment spells his name as Ackerman, a letter written by Akarman to the editor of the
leading New York daily newspaper provides the correct spelling. See George Akarman,
Letter to the Editor, N.Y. HERALD, Sept. 20, 1857, at 8.

166 A Publishing Establishment Broken Up, N.Y. TRIB., Sept. 15, 1857, at 5.

167 See Names and Description of Persons Dealing in Obscene Literature, not

Arrested, but From Whom Stock was Seized During the Year 1872. Also Those Forced to
Give Up, and Get Out of the Business, During the Same Year (entry for "George Ackerman")
in Arrest Records of NYSSV, supra note 110 (noting Akarman's more than twenty-year
career in publishing and dealing obscenity and his success in evading criminal penalties).

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Columbia Journal of Gender and Law

guilt" about sexual desire and the "residual repressiveness of a Puritan
conscience. ' 6 This guilt, writes Reynolds, "engendered a notably furtive
quality in erotic expression, as seen in ... the prevalent use of euphemisms
like 'snowy globes."'' 169 One is indeed struck when reading these texts by
the wide disparity between the vivid, detailed presentation of violence and
the allusive, elliptical presentation of sex and the human body. However,
the "odd combination of furtive sexuality and unbridled violence"1 70 that
Reynolds observes in the popular fiction of the 1840s and 50s, rather than
expressing puritanical guilt, instead reflected the legal culture in which
sensation writers produced their texts and the strategic maneuvering of
individuals working in the field of popular entertainment.

For writers and publishers, a crucial feature of late antebellum legal
culture was the existence of criminal bans on certain types of sexual
representations, especially in explicit form. Even though racy sensation
novels were not subject to prosecution in mid-nineteenth-century New
York, the genre of the racy was strongly informed by the law of obscenity.
In particular, the obscenity bar provided a symbolic prohibition that
stimulated a fascination with and desire for sexual representations
(especially of female lust), a demand that publishers of racy books rushed to
satisfy in a safe, non-criminal context.' 71

In his monumental 1858 work, History of Prostitution, physician
William Sanger blamed licentious literature for driving men to brothels and
fueling the expansion of prostitution.17 2 The chief culprit was not explicit
sexual writing, which after all was expensive and relatively scarce, but the
widespread dissemination of titillating paperbacks that hinted at sexual
disclosure but stopped short of "absolute obscenity." Sanger singled out one

168 REYNOLDS, supra note 6, at 222.

169 Id.

171 Id. at 223.

171 It should be noted that legal factors were not the only ones influencing the

proliferation of racy sensation novels in the late antebellum period. The international
publishing success of Eugene Sue's The Mysteries of Paris (1843) and G.W.M. Reynolds'
The Mysteries of London (1844), which served as models for the city-mysteries genre in the
United States, also account for the commercial appeal of sensation fiction to New York
publishers. Nonetheless, as the discussion below makes clear, New York authors, publishers,
and critics believed that a central attribute of American "yellow-jacket" literature was its
capacity to manipulate legal prohibitions on obscenity.

172 For a description of the pervasiveness of prostitution in 1850s New York, see,

e.g., GILFOYLE, supra note 6, at 119-78.

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Obscenity Law and Its Consequences

unnamed novelist as especially dangerous. Like George Thompson, this sly
author wrote "in a strain eminently calculated to excite the passions, but so
carefully guarded as to avoid absolute obscenity, and embellishe[d] his
works with wood-cuts, which approach[ed] lasciviousness as nearly as
possible without being indictable."' ' 73

Thompson was particularly adept at invoking the law of obscenity
in order to invest his tales with an aura of illicit excitement. One of his
favorite stylistic devices was to draw attention to a sexual scene and then
abruptly "draw the curtain" or "draw the veil." He often attributed such
restraint to a desire to avoid censure by authorities and, presumably, legal
censorship. In a typical passage from one of his novels, Thompson begins to
describe a dinner party served by naked adolescents that turns into an orgy
between the teenagers and the adult guests, a scene he claims has actually
taken place in New York. Just as the sexual action takes off, Thompson
pulls back: "Our ready pen longs-yea, longs to glide off into the most
delicious details . . . but Society, like a grim and harsh pedagogue,
flourishes its rattan of Censure above our devoted pate, and talks of
'morality,' and 'propriety."", 174 His calculated omission of explicit sexual
acts only heightened the prurience of his plots and invested the point at
which he "drew the curtain" or "drew the veil" with extra frisson. At the
same time, it helped to fetishize the perceived boundary between the
"obscene" and the "non-obscene," as evidenced by the prolonged leering at
partially clothed women, exposed cleavages, and the like that runs
throughout his work.

Through such strategies, sensation novelists like Thompson were
able to profit from the distinction between those merely suggestive or racy
works that "excite[d] the passions" by flirting with obscenity and those
works, to use Sanger's words, of "absolute obscenity" that were frequent
targets of indictment. At a basic level, authors and publishers of racy books
employed literary indirection because doing so spared them from the threat
of prosecution. 175 But producers of such texts more than made up for what
they could not show in terms of sex with exceedingly graphic portrayals of
violence, which metropolitan authorities did not consider obscene.

173 SANGER, supra note 116, at 522.

174 Looby, supra note 70, at 658 (quoting GEORGE THOMPSON, THE HOUSE

BREAKER; OR, THE MYSTERIES OF CRIME 20-21 (1848)).

175 On the relationship between censorship and literary allusion, see ANNABEL

PATTERSON, CENSORSHIP AND INTERPRETATION (1984).

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Columbia Journal of Gender and Law

Deference to the obscenity taboo also offered the benefit of
heightening the public's interest in sexual representations, enhancing the
appeal of sensation novels that approached but did not transgress the legally
constructed boundary of obscenity. 176 At the same time, by inscribing the
prohibition on explicit representations of sex in their writing, racy authors
invited its violation in illegal, "fancy" books issued by the same men who
marketed racy paperbacks.

177

Thus, once again, legal regulation of obscenity had the paradoxical
effect of expanding the universe of sexual representations available for
public consumption. By inciting the production of the racy as well as the
"fancy," obscenity prosecutions dramatically increased the sheer volume of
sexual discourse that was commercially available in the antebellum city. To
give just one example, the New York Tribune reported that, during a raid on
George Akarman's establishment in 1857, the police found not only
"several dozens of volumes of the most obscene and filthy stuff that ever
disgraced language, with illustrations to match," but also "several thousand
specimens of yellow-covered literature."'1 78 Similarly, Akarman estimated
his ratio of "humbler pamphlets" of racy fiction that circulated freely to
those bound, "fancy" books that were "in opposition to law" at nearly
twenty to one. 179

Sensation novels also multiplied the types of sexual practices that
were represented in antebellum culture. At their most tame, racy books re-
worked and re-presented the once scandalous subjects of the 1840s flash
press-prostitution, sex crimes, the misdeeds of the rich and powerful-but
made them more palatable by coating them with a veneer of fiction. At
other times, sensation novels thematized subjects that were understood as
far more transgressive than prostitution. By eliding the description of actual
sex acts, racy novels therefore reproduced sexual possibilities that were at
least as provocative as those in the books that prosecutors typically

176 See REYNOLDS, supra note 6, at 211 (noting the "great vogue" enjoyed by
American erotic sensation fiction beginning in the 1840s).

177 To aid this process, characters in sensation fiction often referred to the titles of

forbidden literature. For example, in George Thompson's The Mysteries of Bond Street; Or,
The Seraglios of Upper Tendom (1857), a cruel seducer installs the innocent heroine in a
brothel, which has a library containing copies of Fanny Hill, The Lustful Turk, Betty Ireland,
and other "detestable volumes." ArTITUDES TOWARD SEX IN ANTEBELLUM AMERICA: A BRIEF
HISTORY WiTH DOCUMENTS 148 (Helen Lefkowitz Horowitz ed., 2006).

' A Publishing Establishment Broken Up, N.Y. TRIB., Sept. 16, 1857, at 5.

179 See George Akarman, Letter to the Editor, N.Y. HERALD, Sept. 20, 1857, at 8.

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Obscenity Law and Its Consequences

regarded as obscene. And they did so in a relatively democratic,
inexpensive medium that was increasingly available to a mass audience., °

Thus, the interdiction on obscene speech did little to enforce order
or improve the morals of the metropolitan community. Indeed, rather than
limit indecent sexual expression, it encouraged the production of risqu6
sensation fiction that permeated antebellum culture with a multiplicity of
licentious representations.

C. Censorship and Publicity

Observers of modem communications often note that censorship
creates free advertising for a suppressed publication, boosting publicity and
circulation far beyond what it otherwise would have achieved. What is
noteworthy is how early this phenomenon became apparent in American
law and culture and the crucial role that American pioneers of sexual
writing played in bringing it about.

Consider the experience of the popular health reformer and sexual
science advocate, Frederick Hollick. As noted in Part II, Hollick was
arrested for selling copies of The Origin of Life, a collection of his lectures
on human anatomy, sexual happiness in marriage, reproduction, and
contraception, in Philadelphia in 1846. At his subsequent obscenity trial, the
court required Hollick to post $1,000 in security that he would not sell his
book in that city pending the continuation of the trial and admonished that if
his lectures "contain language as low and obscene as some that is found in
his book[,] he had better suspend them for the present." 181

Despite this defeat in the courtroom, the enterprising Hollick soon
triumphed over his would-be censors. Rather than stand trial again in
Philadelphia, Hollick skipped out on his bail and relocated his headquarters
to the more welcoming legal and publishing environment of New York. 182

In the tenth edition of The Origin of Life, published in 1846, Hollick
proclaimed: "I am happy to state that, during this persecution, my practice
has been more extensive than before, and that it is still on the increase. I am
now preparing to resume my lectures, at the proper season, and I have also

180 On the appeal of sensation fiction to urban, working-class audiences, see

generally DENNING, supra note 67.

181 Haynes, supra note 96, at 559.

182 Id. at 573.

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Columbia Journal of Gender and Law

written and published some new scientific works-for the million!"' 83

Hollick later characterized his obscenity prosecution in Philadelphia as "an
absurd and bungling attempt" that "not only failed, most completely," but
also "increased the popularity of both books and lectures by a hundred fold,
while the would-be monopolists of knowledge became truly pitiable objects
of public scorn and contempt."' 8 4

Condemnations of obscenity also generated valuable publicity for
books that were overtly designed to sexually arouse readers. To appreciate
this dynamic, consider a relatively routine, even mundane notice from a
popular tabloid paper in 1855 reporting an arrest for obscenity under the
heading "Obscene Books":

James Tivner, of 68 Centre Street, made an affidavit before Judge
Osborne, on Thursday last, setting forth that he had called at the
store of one John Atcheson, 76 Nassau street, and purchased a
book called "The Mysteries of Venus; Or, The Amatory Life and
Adventures of Miss Kitty Pry" . . . The collection of books and
prints seized .. .were of the most beastly and revolting nature.
There are other shops of the kind in the city, which we hope may
soon be similarly visited. Such panders to the most degrading of
vices, should be severely punished. 185

A couple of points stand out. First, even though the paper that published
this item had a reputation for tawdry and immoral content, it endorsed
obscenity prosecutions by egging on severe punishment for the sale of
books of "an immodest character." In addition, the article disclosed the
address of the bookseller and the title of the allegedly "beastly and
revolting" book, thereby providing curious readers with knowledge about
the forbidden literature and precisely where to purchase it.

The capacity of sexual censorship to promote the very object it
sought to suppress did not escape the notice of antebellum commentators.
Indeed, the most widely expressed objection to obscenity prosecutions (far
more than concerns about restrictions on freedom of speech or freedom of
the press) stemmed from the realization that they often served to publicize
the practices they were intended to eradicate. By the 1850s, some civic

183 Id. at 573-74 (quoting Frederick Hollick, Introduction to THE ORIGIN OF LIFE
xxxv (10th ed. 1846)). Though it first appeared in 1846, The Origin of Life went through ten
editions in one year. BRODIE, supra note 88, at 199, 360.

184 Id. at 563 (quoting HOLLICK, THE MARRIAGE GUIDE, supra note 87, at 420).

185 Obscene Books, N.Y. ATLAS, Feb. 18, 1855, at 2.

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Obscenity Law and Its Consequences

reformers began to question the wisdom of condemning obscene texts,
given the tremendous publicity that spectacles of police raids, arrests, and
book burnings created for alleged wrongdoers.1 86 Moreover, observers
readily grasped the close connections between prosecuting obscenity and
the "natural effect" such actions had in exciting interest in obscene
literature. Writing in 1857, on the heels of a raid on Akarman's publishing
firm, the New York Herald concluded that it was an "open question"
whether obscenity prosecutions were "of any particular benefit to public
morals," especially since the "natural effect of the seizure[s] will be to whet
... bad appetites, instead of destroying them."' 8 7

IV. CONCLUSION

The history of obscenity prosecutions in antebellum New York
demonstrates the critical role that obscenity law played in the making of the
American pornography industry. As publishers of sexual material
increasingly oriented their marketing and distribution techniques toward
mail-order purchases in order to evade local prosecutions, they helped to
forge a nationwide audience of middle-class readers who discreetly
consumed obscenity in the privacy of their homes. Savvy publishers also
became expert at manipulating taboos on obscene expression in order to
incite demand for erotic literature. One paradoxical result of prosecutions
aimed at suppressing representations of female desire was the birth of a new
type of illicit, sexually explicit periodical that specialized in affirmative
portrayals of women as knowing, self-assured sexual actors. Bans on
obscenity also inspired the production of a huge body of sexually
suggestive "semi-pom" that self-consciously skirted the perceived border of
obscenity and eroticized graphic violence as a substitute for forbidden
depictions of sex. In these ways, obscenity prosecutions did not clamp
down on the production of publications considered morally objectionable so
much as they created new markets, new genres, and new audiences for
erotic texts.

186 See, e.g., Vice and Crime, N.Y. TIMES, Sept. 17, 1857, at 4.

187 The Obscene Literature Again-Effects ofFourierism, N.Y. HERALD, Sept. 20,

1857, at 4.

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94 Columbia Journal of Gender and Law [Vol. 16:1

TABLE 1

TITLES OF BOOKS NAMED IN NEW YORK OBSCENITY
INDICTMENTS, 1840-1860

(in order of first appearance)

Memoirs of a Woman of Pleasure

Memoirs of the Life and Voluptuous Adventures of the Celebrated
Courtesan Mademoiselle Celestine of Paris Written by Herself

The Cabinet of Venus Unlocked in a Series of Dialogues Between
Louisa Lovestone and Mariana Greedy, Two Cyprians! Of the
Most Accomplished Talent in the Science of Practical Love

The Curtain Drawn Up, or The Education of Laura (translated
from the French)

The Confessions of a Voluptuous Young Lady of High Rank

The Amorous Songster or Jovial Companion Being an Entire New
and Choice Collection of Modern Songs Distinguished for Taste,
Humour, Mirth and Merriment

The Lustful Turk

The Amorous History and Adventures of Raymond De B- and
Father Andouillard Detailing Some Curious Histories and
Disclosing the Pastimes of a Convent, with Some Remarks on the
Use and Advantages of Flagellation

The Auto-Biography of a Footman

The Married Woman's Private Medical Companion

The Directory or Pocket Companion Containing a List of all the
Gay Houses and Ladies of Pleasures in the City of New York



Obscenity Law and Its Consequences

Life and Adventures of Silas Shovewell

La Rose d'Amour

How to Raise Love

The Voluptuary or Woman's Witchery, A Romance of Passion

The Secret Habits of the Female Sex, Letters Addressed to a Mother
on the Evils of Solitude and its Seductive Temptations to Young
Girls

Mysteries of Women or Guide to the [illeg.], Containing Advice to
Husbands and Wives, as Regarding the Means of Making the
Marriage Bed, the Throne of Venus'Joys

The Adventures and Intrigues of the Duke of Buckingham, Charles
the Second and the Earl of Rochester

Mary Ann Temple

The Marriage Bed, or Wedding Secrets

2007]