'A horrible fascination': segregation, obscenity & the cultural contingency of rights.

AuthorWalker, Anders

TABLE OF CONTENTS INTRODUCTION I. THE 'UNPREJUDICED' MIND II. MORAL REGULATIONS III. SOCIOLOGICAL WARFARE IV. CULTURAL EXCHANGE V. PERFECT AMMUNITION CONCLUSION INTRODUCTION

During the summer of 1959, Virginia newspaper editor James Jackson Kilpatrick adopted the alias "Billy Williams" and began purchasing large quantities of pornography through the mail. (1) While Kilpatrick was himself a married father of three, (2) Billy was "a twenty-three-year-old bakery salesman, a high-school graduate, interested in dirty pictures, dirty movies, [and] sexy correspondence." (3) Within weeks, Billy's inquiries led to a flood of obscene material, including an offer "to buy action films from Copenhagen." (4) Inspired, Kilpatrick generated a second fictive persona, "Joseph Rocco," "an effeminate, fruity sort of character, devoted to bondage pictures, male nudes ... and the more delicate and bizarre forms of erotica." (5)

Kilpatrick's pornographic personae marked a dramatic departure from the man that most Virginians knew him to be--a loyal supporter of arch-conservative Senator Harry Flood Byrd and one of the South's foremost advocates of massive resistance to Brown v. Board of Education (6) Since 1955--a year after the Supreme Court's landmark decision--Kilpatrick had used the editorial page of his newspaper, The Richmond News Leader, to criticize the ruling. (7) In editorial after editorial, he blasted Brown as a violation of states' rights, celebrated Senator Byrd's call for "massive resistance," and even "revived" an eighteenth-century theory of constitutional defiance known as "interposition." (8) The doctrine of interposition held that states could reject federal authority whenever they believed "that authority violated the Constitution," a notion rooted in Madisonian opposition to the Alien and Sedition Acts of 1798. (9) By 1957, almost every southern state had adopted interposition as either official or symbolic policy, making Kilpatrick one of the single-most important architects of southern opposition to the supreme court. (10)

How, if at all, did Williams and Rocco fit into this picture? Were there ties between Kilpatrick's views of Brown and his views of prominent 1950s supreme court obscenity cases, such as Kingsley Books v. Brown and Roth v. United States? (11) Or, was it mere coincidence that he began to develop fictive alter egos interested in pornography at the very same time that he led the South's legal charge against civil rights? A letter Kilpatrick penned on January 7, 1960, provides a clue. "All this is now futile," he began. (12) Though "the interposition movement of four years ago had great political value," he continued, "[y]ou know what has happened since then as well as I. The full power and weight of the Federal judiciary have been thrown into enforcement of the doctrines laid down generally in Brown v. Board of Education, and the impact of that decision no longer can be avoided." (13) Rather than continue massive resistance, argued Kilpatrick, the south needed to follow the tactics employed by the repeal forces to end Prohibition, namely "labor unceasingly to create a climate of opinion nationally in which the decision itself, if not actually reversed, will be effectively modified or controlled by acts of Congress." (14) This called not for "foolish and useless laws," concluded Kilpatrick, but "propaganda, publicity, and education." (15)

Kilpatrick's plea for propaganda marked a new turn, one that helped explain his sudden interest in obscenity--a topic that he declared held a "horrible fascination" for him. (16) As this Article will demonstrate, Kilpatrick wove threads of interposition into his 1960 book The Smut Peddlers, and used the battle against pornography to build a new coalition against the supreme court, this time under the rubric of upholding morality--itself a front for undermining civil rights. Rather than a quixotic, one-man quest, Kilpatrick's turn to prudence joined a larger, regional campaign, a constitutional guerilla war mounted by moderates and extremists alike that swept onto cultural, First Amendment terrain even as the frontal assault of massive resistance succumbed to federal might. Dubious moral regulations emerged across the region, southern officials declared the need to reinvigorate decency, and land bridges between the South and the nation began to surface, particularly as civil rights protest devolved into urban riots in 1965.

Animating this shift was a pervading sense that the Civil Rights Movement had to be engaged on its own terms, not with violence or vitriol but moral rhetoric and aspirational politics. Just as movement leaders such as Martin Luther King, Jr., extolled black heroism and disciplined nonviolence, so too did segregationists like Kilpatrick feel compelled to celebrate the best of the white South: its civility, its manners, and its paternalist concern for African Americans whom, of course, segregationists then painted as illegitimate, immoral, and inept. If successful, Kilpatrick hoped to undermine the persuasive power of black leaders like King while winning national support for the struggle against Brown at the same time. However, accomplishing such a task involved delicate cultural politics. On the one hand, white officials aimed to delegitimate civil rights by increasing moral regulations of extramarital sex, common law marriage, and illegitimacy, essentially reframing black culture as pathological. On the other hand, they recast white southerners as morally principled arbiters of decency, a move reinforced by a sudden interest in the seemingly non-race related subject of pornography.

To illustrate, this Article will proceed in five parts. Part I recovers the first signs of a cultural backlash to Brown in the South, showing how segregationists feared the ruling's effect on the indoctrination of racial prejudice in white youth, even as they seized on the opinion's social science evidence to forge a statistically constructed moralist response. Part II shows how said response bled onto legal terrain, sparking a web of regulations on marriage, adoption, and illegitimacy, all aimed at preserving segregation through coded, legislative means. Part Ill shows how segregationists applied these means to the national framework, looking to bridge southern interests with voters in both the North and West. The segregationists went so far as to posit amendments to the United States Constitution under the rubric of controlling pornography. Part IV reveals the manner in which such discursive moves intersected with the direct action phase of the Civil Rights Movement, prompting a series of exchanges between black activists and white segregationists on the explicitly cultural terrains of language, dress, and literature. Finally, part V recovers the constitutional implications of these intersections, first through victories against illegitimacy, and then a surprising right-hand turn on the Supreme Court.

What lessons do we learn from such an inquiry? First, though legal historians have tended to portray southern resistance to Brown in terms of massive resistance, (17) such readings only scratch the surface of segregationist strategy in the 1950s and 60s. Second, while southern historians like David Chappell argue that the white South failed to develop a Christian response to the prophetic religion of the civil Rights Movement, (18) a close look at segregationist turns to moral regulations indicates that segregationists did in fact assemble such a response, though not one articulated in prophetic terms. Rather than invoke prophetic religion, segregationists turned to a discourse of personal morality, one that proved particularly insidious precisely because it merged puritanical notions of sexual sin with longstanding presumptions that the law should in fact be used to control such sin, even if no harm was involved. (19) Even scholars who take segregationist religion seriously have missed this point with their argument that southern whites became preoccupied with "proclaiming the impending end of time and the irrelevance of life in the flesh." (20)

Rather than consider life in the flesh irrelevant, segregationists worked hard to link Evangelical notions of personal purity with conservative fears of delinquency, pornography, and the corruption of minors more generally, (21) laying the foundations for a discourse that would come to win popular support through the end of the twentieth century. (22) Indeed, the significance of segregationist turns to personal morality lay precisely in their ability to appeal across regional lines, transforming the struggle against Brown into a decidedly cultural crusade for the preservation of personal, moral values and Christian virtue.

That obscenity became entangled in this project is worth noting. Even today, attitudes toward obscenity differ significantly based on whether the targets are children or adults. This phenomenon is exemplified in the current disconnect between prosecutions of minors for "sexting" and the constitutional protection of adult-makers of "crush" videos involving the torture of animals. (23) Now, as then, prosecutions for pornography seem to be animated more by an interest in monitoring children than ending exploitation or cruelty, a concern that assumed a bizarrely sinister guise during the struggle for civil rights.

Further, documenting segregationist moves to pornography broadens our understanding not simply of southern resistance to civil rights, but what scholars Paul Brest, Sanford Levinson, Jack Balkin, Akhil Reed Amar, and Reva Siegel call the "processes of constitutional decision-making." (24) Interested in the role that "other political institutions" besides the court play in constitutional interpretation, Brest et al. limit their discussion of segregationist reactions to Brown to "The Southern Manifesto," a document pledging that the South will use "all lawful means" to combat the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT