Charles Rembar, a literary lawyer whose defense of three notorious novels in the 1960s defined an important principle in American law on obscenity, died Tuesday in New York. He was 85.
“Pornography,” Rembar once said, “is in the groin of the beholder.” That was the essence of the legal tenet established through his defense of D.H. Lawrence’s “Lady Chatterley’s Lover,” Henry Miller’s “Tropic of Cancer” and John Cleland’s “Fanny Hill,” three of the most controversial books in the annals of American publishing.
Rembar argued the “Fanny Hill” case before the United States Supreme Court, which agreed that the 18th century novel about an orphan’s sexual awakening in a London bordello had literary merit.
Over a six-decade career in New York as a lawyer and sometime literary agent, Rembar represented many notable writers, including Herman Wouk, John Jakes, Michael Dorris, Louise Erdrich and Tom Clancy. One of his first clients was his young cousin, Norman Mailer.
Rembar was himself a well-regarded writer--of books on the law, including “The End of Obscenity” in 1968; of articles for such magazines as Life and Atlantic; and of opinion pieces on subjects from baseball to the advantages of being old.
But he was best known for his work in the censorship cases that lifted bans on books popularly perceived as pornographic. Establishing that works of literary merit are protected by the 1st Amendment was, he once rather modestly told the New York Times, “a good thing so far as books are concerned.” After the “Fanny Hill” case, no American court in a final decision has found a book to be obscene.
Rembar was the son of a cattle farmer and hotelier who encouraged him to study law when he graduated from Harvard in 1935. He entered law school at Columbia University, where he became managing editor of the law review. He earned his law degree in 1938 and, after some government work and service in the Army Air Corps during World War II, entered private practice in New York.
He got his start in obscenity law in 1954 when Rinehart & Co. refused to publish Mailer’s third novel, “The Deer Park,” because of six salacious lines. After Rembar filed suit for advance royalties, Rinehart settled with Mailer, essentially paying him a fee for the privilege of not publishing his work.
In 1959, Barney Rosset, the head of Grove Press, approached Rembar, whom he knew from the tennis courts, to try a case for him. It involved Grove’s efforts to publish an unexpurgated version of “Lady Chatterley’s Lover,” which had been banned by the postmaster general for promoting “indecent and lascivious thoughts.” Rembar eagerly accepted the challenge of defending a work popularly perceived as well-written pornography, which was, he said, “something the courts had always condemned.”
The Lawrence novel, which had been published in Italy in 1928, had appeared only in bootlegged versions in the United States. Rembar defended its frank use of anatomical terms and four-letter words used to describe sexual intercourse. A New York district court judge ruled that it was not obscene, a decision that was upheld on appeal in 1960.
A few years later, Rembar spearheaded the defense of “Tropic of Cancer,” which Grove published in 1961. Miller’s semiautobiographical account of his early years and sexual adventures in Paris had been published there in 1934, but in the U.S. it was blocked by more than 60 court cases in 21 states. Rembar, according to Felice Flanery Lewis in “Literature, Obscenity, and Law,” led a “massive effort to assist every bookseller prosecuted, regardless of whether there was a legal obligation to do so.” He prevailed in Massachusetts, but the book was judged obscene in New York and other states.
In 1965 Rembar took on “Fanny Hill,” first published in 1749 as “John Cleland’s Memoirs of a Woman of Pleasure.” In defending the G.P. Putnam’s Sons edition of the novel, he argued that it had literary merit and historical significance. He assembled literature experts from Harvard, Brandeis, MIT, Boston University and Williams College who testified that “Fanny Hill” was at least a minor work of art that belonged more to “the history of English literature rather than the history of smut.”
The court agreed, in a 6-3 vote, on March 21, 1966. Writing for the majority, Justice William J. Brennan Jr. wrote that a book must be “unqualifiedly worthless before it can be deemed obscene.” In their view, “Fanny Hill” failed that test.
The decision was a boon to booksellers and publishers, but Rembar felt its greatest impact was on writers, whose creativity would not be hindered by fear of censorship.
One writer who offered confirmation was Erdrich, who had won a National Book Critics Circle award for her 1984 novel “Love Medicine.”
“She wrote a letter saying that when she’s writing she frequently thinks of me,” Rembar told the New York Times, “because she is aware of the fact that she can write with candor about situations that some years ago she wouldn’t have been able to.”
Rembar is survived by his wife, Billie; two sons; and a granddaughter.