Roth served the full term in Lewisburg, and then returned to New York to the livelihood that inevitably could lead him only back to jail. A friend of his once speculated that Roth possibly liked being in jail, or sought beatification as a literary martyr. But Roth denied this. His prison record, he said, was easily explained—“I am at war with the police”—and by this he meant not only patrolmen and detectives but also district attorneys, FBI agents, postmasters and clergymen and their confederates in the antivice societies and on the judicial bench—anyone who sought to restrict what could be read or written was at war with Roth, and as such he was resigned to a lifetime of rifts and reprisals.
He became accustomed, after leaving Lewisburg, to being followed through the New York streets by plainclothesmen, who soon learned of his new office address at 693 Broadway. Working in his office at this time, in addition to his wife and a few fanciful employees, were his daughter and son, scholarly teenagers who, though grieved and sometimes embarrassed by his legal difficulties, shared his commitment to free expression. Roth’s daughter translated from the French the first book that he published after his prison release—Claude Tillier’s novel
My Uncle Benjamin
—and Roth’s son, until called into the Army, worked part-time in the firm’s sales department.
Hoping to confuse the postal inspectors and to protect his books from the notoriety of his name, Roth used a variety of business aliases on his office stationery and on the packages containing the books he mailed out; some labels indicated that his books were being published by a company called Coventry House, others by Arrowhead publishers, still others by the Avalon Press, or Boar’s Head publishers, or the Biltmore Publishing Company. Roth occasionally arranged to have books left in the metal
lockers of New York bus terminals or train stations, with the keys later provided to special customers. These books—by such writers as Henry Miller, Frank Harris, and the anonymous Victorian author of
My Secret Life
—were usually expensive editions that had been smuggled in from France, although during World War II the professional smuggler was being outdone by amateurs from the United States Army. With so many veterans returning from overseas with duffel bags concealing contraband books, the literary black market in America seemed threatened by saturation; but the government after the war, as if to exorcise what remained of an unconquered enemy, intensified its drive against pornography, and not only Roth’s books were affected but also some of the more sensual works of modern authors published by distinguished houses.
Among the better-known novels prosecuted after the war were Lillian Smith’s
Strange Fruit
, Erskine Caldwell’s
God’s Little Acre
, and Edmund Wilson’s
Memoirs of Hecate County
. The campaign against Wilson’s book in New York had been led by the Society for the Suppression of Vice, and after the New York State courts sustained a lower court decision that the novel was obscene, Edmund Wilson’s publisher, Doubleday & Company, took the case to the United States Supreme Court. This resulted in a four-to-four deadlock because Justice Felix Frankfurter, a friend of the author, disqualified himself; and thus the rulings in New York against the book were upheld.
Among the books seized by the police in Philadelphia during an antipornography raid in 1948 were William Faulkner’s
Sanctuary
and James T. Farrell’s
Studs Lonigan
trilogy; and these books might have lingered for years in the literary underground had it not been for the surprising legal opinion of a judge in Pennsylvania named Curtis Bok.
In condemning the Philadelphia raid, Judge Bok declared that books were obscene only if they provoked readers into criminal behavior; but he doubted that it could be proved that books alone had this negative power because readers are also influenced by factors not on the page. “If the average man reads an obscene
book when his sensuality is low, he will yawn over it,” Judge Bok wrote. “If he reads the
Mechanics Lien Act
when his sensuality is high, things will stand between him and the page that have no business there.”
This benign assessment of pornography was shared by few other judges in 1948. The great majority of them viewed an obscene book as a criminal entity, even if it did not directly drive a reader into crime; and since this legal thinking prevailed through the 1940s into the 1950s, Samuel Roth was prosecuted for every possible offense.
After being cited for selling the allegedly obscene
Waggish Tales of the Czechs
, he was accused by postal inspectors of having salaciously advertised through the mail two books that were not salacious. One book, entitled
Self-defense for Women
, was advertised in a way that might have appealed to male masochists. The other, advertised as a pulsating romance, was a passionless novel called
Bumarap
that Roth himself had written in jail. For his advertising deceptions, Roth was charged with “fraud.”
While appealing these rulings to higher courts, Roth was visited by FBI agents who, having heard that he had volunteered to testify in behalf of Alger Hiss, warned him against doing so. Roth was not personally acquainted with Hiss, the former State Department official then suspected of espionage, but he had known Hiss’s accuser, Whittaker Chambers, during the 1920s in Greenwich Village when Chambers was an aspiring poet. In those days Chambers had submitted poetry to Roth under the pen name “George Crosley,” the same name that Hiss later claimed Chambers had used when subletting Hiss’s apartment in Washington.
When Chambers testified that he could not recall ever having used that name, Roth contacted Hiss’s attorneys with his recollections about “Crosley” that could have damaged Chambers’ credibility as the star witness for the House Committee on Un-American Activities and its prosecutor, Richard Nixon; and Roth would have taken the stand, despite the FBI warning, had not
Hiss and his attorneys decided finally that the help of a highly publicized pornographer was of dubious value.
Alger Hiss later conceded, however, after his conviction and imprisonment, that perhaps a mistake had been made in not calling Roth. By the time Hiss admitted this, Roth had become an even more discredited celebrity.
He was denounced on network radio as a smut king by Walter Winchell, who was angry with Roth for having published an anti-Winchell biography written by Lyle Stuart. In 1954, on the day after Winchell had concluded a broadcast with the suggestion that Roth be jailed again for obscenity, the police were at Roth’s apartment door at 11 West Eighty-first Street. They had a search warrant stating that Roth and his wife were engaged in a possible conspiracy and, despite Roth’s protests, the lawmen forced their way in and began to scrutinize the entire apartment, opening bedroom closets, bureau drawers, and overturning furniture. Roth was prevented from telephoning his attorney, and when he later ran out of the apartment toward a telephone booth downstairs, two policemen overtook him, pinned him against a wall, and charged him with assault.
Roth and his wife were driven downtown to the office of the Manhattan district attorney, Frank Hogan, where Roth saw some of his employees in the waiting room and heard from them that his publishing office had also been raided—all the filing cabinets, desks, and books had been removed in police vans, all the mail had been opened, and the telephones were now being answered by the police. The raid was under the supervision of Hogan’s assistant, Maurice Nadjari, who, when asked by one of Roth’s employees about the future of the firm, replied, “As far as I’m concerned, your boss is out of business.”
In night court, Nadjari demanded that Roth and his wife each be held in $10,000 bail, saying that thirteen vans containing more than fifty thousand obscene books had been confiscated. For the next few days, the raid was major news; but months later, as a higher court ruled that the search and seizure of the Roths’ property had been illegally conducted, the news coverage was mini
mal. The district attorney’s office consented to dismiss the case if Roth promised not to sue the city. He reluctantly agreed, being too preoccupied at this point in 1955 with federal cases pending against him, and also a subpoena that he had received compelling him to appear before a Senate subcommittee hearing on pornography and juvenile delinquency, headed by Senator Estes Kefauver of Tennessee.
Senator Kefauver, a Democratic presidential candidate who had achieved national recognition as a crime fighter during his televised interrogation of Mafia leaders in 1951, was privately known to some members of the press as an eminent womanizer, and on at least one occasion this restricted his campaign against organized crime. In Chicago, where he had scheduled a public hearing on gangster influence, Kefauver had been secretly photographed in his hotel bed with a young woman connected with the underworld. After he learned of the photographs—according to later reports in the New York
Times
—he canceled the public hearings in Chicago.
But his investigation of pornography was not compromised by such senatorial circumstances, and during the hearings in the federal court building in New York he was very accusatory toward Roth, whose business he called “slime,” and whose influence he partly blamed for the existence of juvenile delinquency in America.
Roth denied this, alluding to the fact that his own children, who were not delinquents, had grown up around him and had worked in his office, and he suggested that juvenile delinquents as a group were perhaps the least affected by books because they rarely read them. While Roth had a cogent reply for every question, his self-assured manner and his retorts delivered in his mild British accent suggested a tone of condescension that irritated Kefauver. After Roth had attributed literary value to most of what he had published, Kefauver noted that Roth had once tried to negotiate a contract with the prostitute Pat Ward of the Mickey Jelke case.
“Why would you like to have a book about a person who had just been in a notorious trial?” Kefauver asked.
“I believe,” Roth said, “that the New Testament rotates around just that kind of woman.”
Kefauver paused, but soon recovered; and in his concluding remarks he repeated that Roth’s business was “reprehensible,” an opinion seconded by Senator William Langer. Then Kefauver permitted Roth to have a final word before the committee.
“I believe the people who have criticized me are wrong,” Roth said; and looking at Kefauver: “I believe you are a great deal more wrong than they are, because you are sitting in judgment on me, and I believe that I will someday within the very near future convince you that you are wrong.”
“It will take a good deal of convincing,” Kefauver said.
“I will do it,” insisted Roth.
When Roth left the federal building, he believed that he had made an impressive showing, and he expected to pay dearly for it. But he was nevertheless overwhelmed when he later learned from his lawyer that the government had amassed a twenty-six-count obscenity indictment against him, and was planning to bring him to trial almost immediately. The most prominent items that he had been accused of sending through the mail were several issues of a pocket-sized magazine called
Good Times
, which displayed photographs of airbrushed nudes, and a single edition of the hardcover quarterly
American Aphrodite
that had reprinted “Venus and Tannhäuser,” written and illustrated by Aubrey Beardsley.
While Roth did not believe that a jury would be offended by either
Good Times
magazine or Beardsley’s frolicking drawings and esoteric erotica, he still asked the court to postpone the date so that he might prepare himself more fully for the trial and also devote some time to his floundering business and interrupted homelife. But his request was denied, and in January 1956 he found himself in court facing a jury and a large red-faced judge who had once been an assistant district attorney.
The trial lasted for nine days, and during that time Roth did
not testify in his own behalf, accepting the advice of his family that his interests would be better served if he remained silent. Roth did telephone Dr. Alfred Kinsey to ask if he would serve as a defense witness, but Kinsey firmly refused, saying that he could not support obscenity. Those who did testify for Roth tried to present him to the jury as a defender of individual rights and an appreciator of literature, but the prosecution was more effective in portraying him as a profane and lurid peddler.
After twelve hours of deliberation, and a cursory examination of the material Roth had distributed, the jury found him guilty on four counts—one for reprinting Beardsley’s “Venus and Tannhäuser” and three others for the sexually suggestive advertising circulars that he had mailed. Though dejected by the decision, Roth believed that since he had been exonerated on twenty-two of the twenty-six counts, his punishment would not be more than a ninety-day sentence. But his attorney, reacting to information received from a source in the Justice Department, told him to prepare for something much worse. “You’re an old offender entitled to the limit,” the attorney said. “And your enemies include a member of the United States Senate.”
This grim assessment of the situation proved to be prophetic when on February 7, 1956, Roth stood before the judge and was told that his sentence would be five years in a penitentiary and a fine of $5,000. Samuel Roth, sixty-two years of age, felt the ebbing of his existence—a life that had begun in a Carpathian mountain village would probably end in an American dungeon. Before he could turn to speak to his family, two guards had grasped his arms, led him from the courtroom through a side door, and hastened him to a room where he was locked behind bars.
While his attorney appealed the ruling to higher courts, Roth’s guilt was affirmed at every stage, although one federal judge named Jerome Frank did recommend that the United States Supreme Court review the case and modernize the legal meaning of “obscenity.” The definition as it now existed in 1957 was still influenced by the English law of 1868, the
Hicklin
decision,
which stated: “The test of obscenity is 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.”