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Girls lean back everywhere: American censorship and the snail’s pace of social change

I recently finished reading Girls lean back everywhere: The Law of Obscenity and the assault on genius, which is a history of American literary and artistic censorship by a lawyer who argued some of the seminal cases before the supreme court, Edward de Grazia. It’s hard to imagine today how delicately sex had to be treated in early 20th century American writing, lest the author and publisher land before a court. This book documents the long legal shift to the freedom that authors enjoy today, where every Borders has a well-stocked “erotica” section. And it really was a long shift — the protagonists in this story fought over decades, one incremental advance at a time, and knew they were doing so. That is, for me, the biggest lesson.

In 1921 James Joyce’s Ulysses was banned in the US, and its publisher criminally prosecuted, for writing that now seems tame. There aren’t even any dirty words in the passage that caused the most uproar; it’s just a girl leaning back to watch the fireworks, leaning back to show more and more of her stockings and garters and underthings to a man she fancies, and it’s poetic as hell.

A few decades later Allen Ginsburg’s Howl landed the poet before a judge. Books by D. H. Lawrence, William Burroughs, and — my personal favorite — Henry Miller were also banned as obscene at one point or another. All of these works are free today, but it took decades of legal battles.

At first, there were many subjects that simply could not be talked about at all. One of the very first novels to deal frankly with lesbianism, Radclyffe Hall’s 1928 The Well of Loneliness, contained no sex at all other than the sentence “and that night, they were not divided” but was ruled obscene because it depicted “inverts” in a positive light. But even heterosexual sex was illegal to depict, if the writing was sufficiently explicit.

All of this gradually changed. By the mid 50s, American judges had ruled that discussion of sex in itself was not obscene. In 1964, de Grazia defended Miller’s Tropic of Cancer and the Supreme Court ruled that any work “not totally without social value” could not be held obscene. This decision effectively freed the written word entirely, and in subsequent decades, plays and photographs and films would be freed to.

But it took 80 years.

And that’s what struck me most: deep social change takes a long time. The book is a legal history, so it is full of the arcana of American obscenity legislation and long-forgotten legal tactics. But these excruciating details show that the players took a deliberately long view in many cases. Their game was played out over decades. Also, the conflict wasn’t anything so simple as authors versus cops; this is not an underdogs vs. establishment story. Judges played a pivotal role in the freeing of artistic speech, particularly supreme court Justice Brennan who patiently transformed the law, piece by piece as the appropriate cases arose, over almost 20 years. The opposing villains, if they can be called that, included conservative politicians, state prosecutors, and citizen pressure groups.

I think of this now as I ask the question: how do societies change?

We’re Seriously Not Giving These Guys an Education?

Stumbling through the intertubes, I came across an extraordinary blog post by a math teacher who volunteers in San Quentin prison, near San Francisco:

Math 50 is a is a numeracy and pre-algebra course that is a prerequisite for enrollment in math courses for college credit. … San Quentin is the only prison in California that has a college program, and only some 50 of its 5000+ inmates are enrolled in Math 50. Since there is no public funding in the state for prison education beyond the GED or a high school diploma, all instructors are volunteers, and only a prison located so improbably close to a cluster of universities can staff a college program. Working with these students on Friday nights, I wonder at how little it really is they are asking for, how unnecessary it seems that the public will not afford this opportunity to anyone who would make use of it.

So… the state of California is not making pre-college education available to prison inmates. That’s fucked up, especially in the country with the highest fraction of its population in prison of any country in the world. Of course, realistically only the younger and more ambitious inmates are going to attempt college after their time is served (note the enrollment rate mentioned above.) But given that inmates already have a hard time finding work upon their release, not providing preparatory courses to those who might want them seems like a losing strategy for everyone.

The author of this post, a woman named Hanna, goes on to consider whether the denial of education would constitute “differential punishment”:

I wonder, also, whether some argument can not be made that restricting access to education at this level amounts to a kind of differential punishment above and beyond that meted out in accordance with law for whatever misdeed was committed. By analogy, suppose that a person with diabetes commits a crime and is imprisoned. If that person in addition to being confined is deprived of necessary medication and medical supervision to control his illness, that would constitute a differential punishment beyond that implied by his sentence – his punishment would in reality be different from and more severe than that given to a healthy person who had committed exactly the same crime. Can something similar be said for undereducated persons who are incarcerated? To the extent that a certain level of education is necessary in order to function outside the institution, and to the extent that learning meets fundamental human needs, I would say yes. If two people commit the same crime, and the one has a master’s in engineering and the other does not know how to distinguish adding from multiplying, then deprivation of opportunities for learning constitutes a differential punishment, a more severe consequence, for the undereducated person. Restricting access to math at a level afforded by most high schools constitutes a consequence beyond that included in the prison sentence.

Indeed. I don’t think humanity actually knows very much about how to rehabilitate criminals, so I don’t expect miracles, but surely withholding education is not a good idea.

“Low-Profit” Corporations Enable Social Venture Capital

A “low-profit limited liability corporation” is allowed to make money, but can also accept tax-deductible loans. Michigan,Vermont, Wyoming, Utah and Illinois passed laws this year defining a new type of corporation called an L3C, creating interesting new investment incentives and legal protections for socially-conscious market entities.

Chicago tax attorney Mark Lane, who helped get low-profit legislation passed in Illinois, suggests that we think of the L3C as a structure for socially-conscious venture capital.

In this video, Lane painstakingly presents the details of this new type of corporation. On first reading, it does seem like a plan that only a tax attorney could love. The L3C is, in some sense, little more than a carefully designed IRS category — but it could channel a lot of new money to social entrepreneurs. The trick is that private foundations would be allowed to deduct certain kinds of loans to L3Cs just like donations to non-profits, but the L3C would hope to make a profit and eventually return the money with interest. Given that foundations have to give 5% of their net worth to charity every year anyway, it’s a huge win for them to give it as a speculative loan rather than a grant.

The “low-profit” structure could also ease a classic dilemma between public and private operations. Public entities and non-profit corporations are legally obligated to operate in the public interest, but can be horribly inefficient due to the lack of competitive pressures and, often, shielding from financial accountability. Meanwhile, private corporations live or die on their efficiency but can be sued by investors if they fail to maximize raw profit. The L3C is something in between: a business that is required to operate in the public interest and can accept of tax-deductible investments, but can also pay a profit to partners and investors.

This hybrid funding model may prove especially useful in the production of public goods, the things that benefit everyone but are difficult to get anyone to pay for. The L3C has been proposed for groups working in education, small industry, biotech, arts, and journalism.

For more, see overviews from Social Earth and the Non Profit Law Blog.