Lady Chatterley and Alexander Portnoy: Narrowing the Limits of Censorship in Australia

Nov 1, 2020

On the eve of the sixtieth anniversary of the Lady Chatterley’s Lover trial in London it still is not clear why Allen Lane and his fellow Directors at Penguin felt able to print 200,000 copies of the book prior to the trial which they had been clearly warned would result. But they gambled and they won. Patrick Mullins’ study of The Trials of Portnoy published this month by Scribe tells us a large part of how Penguin Books Australia finessed the strategy to beat the ban on Portney’s Complaint fifty years ago.

In 1962 Robert Hughes and Geoffrey Dutton lunched with Allen Lane who was visiting his sister at the expensive side of Sydney Harbour. Reaching for the bottle of red, Hughes tripped over a white flokati rug that had been brought back from Greece by his hosts.

Hughes recalled:

“I fell flat on my face and the wine came glugging copiously out onto the white pile. “Fuck!” I exclaimed. ‘ Their outraged host ‘rose to his feet and demanded that we should all leave at once. He would not have such filthy language used in his own house,in front of his own wife. His brother-in-law, Allen Lane, saved the day by declaring “I made a fortune off that word. You can’t throw us out because of Lady Chatterley.” We then settled down to a surprisingly convivial lunch.”

Lane and his company Penguin Books had sold over three million copies of the unexpurgated version of D.H.Lawrence’s Lady Chatterley’s Lover in the eighteen months following the November 1960 decision at London’s Old Bailey that a book containing the words ‘fuck’ 30 times and ‘cunt’ 14 according to the Director of Public Prosecutions’ count was fit to be openly published and sold for the price of a pack of cigarettes after thirty years of being banned. I have explored how this was achieved without the jury’s attention being explicitly drawn to the scenes of heterosexual sodomy, which was an illegal sex act that could be punished by life imprisonment even if consented to by both partners within marriage in the UK at the time of the trial.

Lane and his fellow Directors at Penguin felt able to print 200,000 copies of the book prior to the trial which they had been warned several times by the authorities would result. Indeed, they facilitated the trial by ‘publishing’ a dozen copies to the police officer who came by appointment to their offices, for which he issued a receipt that could be shown in court when he became the only witness for the prosecution in October 1960.

A decade later Penguin Books Australia’s director John Michie adapted the London strategy to force the hands of the censors at both state and federal levels by publication of an unexpurgated version of Phillip Roth’s Portnoy’s Complaint – compulsive male masturbation. Patrick Mullins gives us a useful litany of the blow by blow progress of those cases that came to court in The Trials of Portnoy how Penguin brought down Australia’s censorship system(Scribe Melbourne and London 2020), published now on the eve of the 60th anniversary of the Lady Chatterley trial in London that established the defence of the possibility of literary merit even in obscene writings.

Michie and his colleagues had computerised Penguin’s distribution system throughout the Australian states. Meanjin recently republished a 1975 article by Michael Wilding that sets out how in the 1970s ‘Australia is a very profitable book market; consequently Australian publishing has become dominated by foreign-owned companies.’ Mullins refers in a footnote to P.R. Stephensen’s 1962 statement that Australia imported around a quarter of total British book production – around £18 million worth of books – each year during the 1960s.

Mullins shows how the Penguin Australia strategy depended on the company’s ability to not only print 75,000 copies in Australia rather than importing them but also to get them distributed to bookshops in all the states before the expected summons and trials. ‘If this were done right, police would be unable to seize all the copies, and it would be impossible for the state governments to bury the case. There would have to be court action in every state. There would be headlines in newspapers, and bulletins on television and radio across the country. There would be public attention. There would be public demand. There would be public accountability for the censorship laws.’ There would be a very nice cash cow for Penguin Books Australia.

And so it came to pass. An unexpurgated edition of Portnoy’s Complaint was printed in Australia, thereby circumventing the Customs jurisdiction and forcing each state to fight its own battlealbeit under a recently reached agreement for uniform censorship. Or, like Don Dunstan in South Australia, to decline to prosecute.

The case was tried twice in New South Wales and both times the juries failed to deliver a verdict. Michie wrote to London, according to Mullins, that apparently ten of the twelve jurors in the first trial voted that the book was obscene, nine that it had literary merit and nine also thought its publication was justified.

The second jury asked for packs of playing cards well before the required 7 hours of deliberation was up because they couldn’t see ‘any possible chance’ of agreement.

Less than three weeks later Don Chipp announced that Portnoy’s Complaint would be removed from the list of booksbanned from import by Customs regulations. ‘The decision has been taken because the Australian edition of the book is now freely on sale in three States and in the Australian Capital Territory. It would be absurd, in the circumstances, to maintain the prohibition on the imported edition.’

The jury in the Lady Chatterley trial a decade earlier had reached a unanimous verdict of ‘Not Guilty’ although it had not been required to give reasons. As a rueful postmortem memo in the UK National Archives to Lord Hailsham, Lord President of Council in mid-December 1960 pointed out:

‘The verdict could mean that (a) all the members of the jury were of the opinion that the book was not obscene; or (b) all the members of the jury were of the opinion that the book was obscene but that it’s publication was justified as being for the public good on the ground that it is in the interests of literature; or (c) that some members of the jury were of the opinion were of the opinion that the book was not obscene and the others that it was but that its publication was for the public good. The only thing that can be said with certainty is that no member of the jury was of the opinion that the book was obscene and that its publication was not justified for the public good; if there had been a juryman of this opinion, then the jury would have reported disagreement.’

In the case of Portnoy’s Complaint it was the failure of two juries in Sydney to reach a verdict that wore down Don Chipp’s resistance. Mullins reports in a footnote that ‘Polling in 1969 by Roy Morgan showed 60 percent support among the public for either increasing or maintaining censorship; by December 1970 support would only have slipped by five percentage points.’ So 24 Australians (and it’s not clear if they included women) proved the tipping point at the fag end of the Gorton government.

Mullins doesn’t explore beyond the case study he usefully sets out and doesn’t give either sociological context or philosophical analysis of the role of censorship in Australian society. He gratuitously reports Arthur Rylah’s tailor as saying he had ‘a bull neck, a pigeon chest, and a scholar’s stoop.’ Rylah’s NSW counterpart Eric Willis had ‘lacquered dark hair, a blue, clean-shaven jaw, heavy glasses and narrow eyes.’ Don Chipp had ‘dark, crinkled hair, automatic smile, and permanent tan’. But all the Penguin principals and their supporters were fair of face and full of grace. And it must be said Scribe do a handsome publication, easy on the eye and feels good in the palm of one’s hand.

When Richard Hoggart appeared in defence of Lady Chatterley he told the prosecutor that he had heard the word ‘fuck’ used several times on his walk to the Old Bailey that morning. Patrick White said ‘Worse things happen in Sydney’ than those portrayed in Portnoy’s Complaint.

A four year old who had expanded her vocabulary at kinder told me in the early seventies ‘Teacher says bum can’t be a rude word because everybody has one.’ But it is more complicated than that as I found when I sat on paedophile and other sexual assault medical fitness to practice cases including public masturbation in the wake of Operation Ore a decade

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