“Eternal vigilance is the price of liberty.” – Wendell Phillips, 1852
In October, 1998, Congress passed and President Clinton signed into law the Child Online Protection Act (COPA), the federal law that criminalized constitutionally protected speech on the Internet. [47 U.S.C. 231: “Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.” ACLU v. Ashcroft: http://epic.org/free_speech/censorship/copa.html]
For writers who did not earn their livelihood through writing and/or publishing erotica online, it was easy to whisk away like a pesky fly all that COPA promised to derail about the First Amendment. Unlike me, a woman who was internationally known for her erotica writing since 1990; who founded and directed the Erotic Authors Association in 2001; who began publishing what was considered hardcore erotic eBooks & POD (the EAA Signature Series) in 2005 – those writers weren’t facing the very real threat of up to 6 months of jail time and a possible $50K fine they could ill-afford to pay.
People simply scoffed at it – the notion that John Ashcroft would prevail and send us back to the Dark Ages. After all, this was a free country.
Hmmm. Dark Ages? Can anyone say, “1963”?
When I was in my early twenties, specifically the years 1983 – 1985, I had the privilege of working for Ralph Ginzburg at Avant Garde Media, his publishing company in midtown Manhattan. Ralph Ginzburg was not only an author, editor, publisher, and photo-journalist, but he was also the last American to serve prison time for violating the federal obscenity laws. He was convicted in 1963 , whereas, the Dark Ages generally spanned the years 476 to 1453 AD.
Okay, I’m being a little obnoxious about that point, but maybe that’s because I’m fifty years old and can readily remember 1963. For me, it doesn’t feel that long ago. In fact, I spoke to a writers’ group in Ohio recently, and mentioned in passing that erotica publishing had only been legal in this country since the early 1960s [when Barney Rosset, then-owner of Grove Press, won the right to publish Lady Chatterly’s Lover and Tropic of Cancer here in the United States] and the group was flabbergasted by this news. Nowadays, “writing erotica” is generally construed as writing harmless erotic romances, in any of its multitude of sub-genres, and usually getting them published in eBook format wherein you stand to make a handy and often impressive sum in monthly royalties.
Yes, in general, that’s true. But that’s only part of what the long and, frankly, iconoclastic history of erotica encompasses; a whole lot of that history involved breaking laws, fighting or paying heavy court fines, and sometimes enduring imprisonment.
In the summer of 2006, when the ACLU was gearing up for another fight in the federal courts to outlaw COPA, my telephone rang. I was not happy about it. It was the ACLU asking me to testify on behalf of not only the authors I was publishing, but on behalf of my entire career. “You can’t be serious,” I said meekly. “You mean shine a spotlight on the hardcore erotica I’ve been publishing online since 1998; literature that’s now for sale and easily accessed by anyone of any age as long as they can get on the Internet; everything that COPA says is illegal and which carries a penalty of a hefty fine and imprisonment?”
“That would be correct.”
“But the COPA law is crazy; it violates the Constitution. It’s going to go away.”
“Not without fighting, it won’t. Congress already passed it into law once.”
When I hung up the phone – after agreeing to testify because I considered myself proud to be an American and that entailed practicing eternal vigilance – I ran straight for the bathroom before my bowels gave way. The thought of prison has that effect on me.
On October 31, 2006, I testified at the COPA trial on behalf of the ACLU. The trial took place in First Federal Court in Philadelphia, the same court system in the same city that found Ralph Ginzburg, my former boss, guilty of violating the federal obscenity laws and then sending him to prison. I dashed to the bathroom many times. Not only at the courthouse, but in the really lovely suite at the Marriott where the ACLU had stashed me and wherein they spent many hours with me, meticulously going over my testimony prior to the trial. I was so nervous about testifying under the specter of Ginzburg’s historic loss, that I even made my mother, the perennial security blanket against all things terrifying, accompany me to Philadelphia. (I was forty-six!)
The US Justice Department did their best to publicly humiliate me, having me read aloud from some of the more sexually explicit passages of books by other writers that I’d recently published – passages that were simultaneously viewed in the courtroom on a large overhead screen. [You can read my testimony in its entirety, pages 74 – 105, at: http://www.aclu.org/files/pdfs/freespeech/copatranscript_20061031.pdf] And I did my best to not allow the humiliation. I wore a black suit and a simple strand of pearls; I stayed calm and collected on the stand (stopping those many trips to the bathroom, finally), in order to fight for the First Amendment rights of writers in America – and in this case, exceptionally talented writers who wrote erotic literature that stands in its modern history as among the best of the best: Simon Sheppard , Michael Hemmingson , Maria Isabel Pita , to name a few.
The COPA law was finally struck down for good by the U.S. Supreme Court but that didn’t happen until 2007. That’s not that long ago. Most American writers weren’t even aware that the fight was going on. I’m not suggesting that all writers have to be as vigilant of the rights of erotica writers as I am, but I’ve been writing in the genre for twenty years now; it’s a genre that has meant a lot to me – I know its auspicious history by heart and was privileged enough to meet many of the audacious writers and publishers of the early legalized erotica in this country over the course of my career. I was even privileged enough to give a Lifetime Achievement Award to Barney Rosset on behalf of the Erotic Authors Association in 2002. Still, that’s eight years ago; I no longer helm the EAA but I’m willing to bet that most of its current members do not know who Barney Rosset is or what he achieved to make erotica writing and publishing legal in this country less than fifty years ago.
It’s not that the erotica community didn’t see John Ashcroft coming; we did. We were a pretty political group back then and we did our best to stave the tide of Puritanism in the wake of the G.W. Bush Era, but it came anyway and it came swiftly. We fought it and we won, but the point is that we fought it; not just to keep the Internet free for our own careers, but for the careers of those writers who came after us and who still keep coming. After all, it’s fun to write erotica online; you can be bold and even a little sassy and, of course, it’s so easy to hide behind the anonymity of a pen name, isn’t it? You can keep a safe distance from all those things you’re writing about sex (even though it’s perfectly legal to write about it, right?), and you might not get called upon to read your work out loud in front of the whole world…
I leave you with some now-familiar platitudes to ponder: It’s a free country. It can’t happen here. Eternal vigilance is the price of liberty. A word to the wise is sufficient.
About Marilyn Jaye
Causes Marilyn Jaye Lewis Supports
The Film Council of Greater Columbus, Columbus, OH
The Adrienne Shelley Foundation, NY, NY
Paralyzed Veterans of America, Washington, DC...