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THE MOST LOVED, MOST HATED MAGAZINE IN AMERICA:
THE RISE AND DEMISE OF CONFIDENTIAL MAGAZINE
Samantha Barbas
*
INTRODUCTION
Before the National Enquirer, People, and Gawker, there was Confidential.
In the 1950s, Confidential was the founder of tabloid, celebrity journalism in the
United States. With screaming headlines and bold, scandalous accusations of illicit sex,
crime, and other misdeeds, Confidential destroyed celebrities’ reputations, relation-
ships, and careers. Not a single major star of the time was spared the “Confidential
treatment”: Marilyn Monroe, Elvis Presley, Liberace, and Marlon Brando, among
others, were exposed in the pages of the magazine.
1
Using hidden tape recorders,
zoom lenses, and private investigators and prostitutes as “informants,” publisher
Robert Harrison set out to destroy stars’ carefully constructed media images, and in
so doing, built a media empire. Between 1955 and 1957, Confidential was the most
popular, bestselling magazine in the nation.
2
Confidential, published under Harrison’s direction between 1952 and 1958,
3
marked a watershed in the history of American media and celebrity culture. Confi-
dential also played an important, little-known role in legal history and the history of
freedom of the press. In the mid-1950s, the provocative, highly sexualized magazine
became the subject of a nationwide campaign to eradicate it from the nation’s news-
stands. These efforts culminated in obscenity, criminal libel, and conspiracy charges
* Associate Professor of Law, State University of New York at Buffalo Law School; J.D.
Stanford Law School; Ph.D., University of California, Berkeley. Many thanks to the archivists
and researchers who assisted me with this project, at the Margaret Herrick Library of the
Academy of Motion Picture Arts and Sciences; the Rare Books Library at the University of
Illinois Urbana–Champaign; the Mudd Library at Princeton University; the National Archives;
the Popular Culture Archives at Bowling Green State University; Beinecke Library at Yale
University; and the UCLA Special Collections Library.
1
See, e.g., infra notes 23, 44, 423, 478 (discussing Liberace, Monroe, Brando, and
Presley respectively).
2
See infra notes 25–28 and accompanying text.
3
HENRY E. SCOTT, SHOCKING TRUE STORY: THE RISE AND FALL OF CONFIDENTIAL,
“AMERICA’S MOST SCANDALOUS SCANDAL MAGAZINE” 10, 188 (2010). The magazine con-
tinued to publish until 1978, but it ceased publishing celebrity gossip in its original format in
1958 as a result of the legal campaign against it. See ANTHONY SLIDE, INSIDE THE HOLLYWOOD
FAN MAGAZINE: A HISTORY OF STAR MAKERS, FABRICATORS, AND GOSSIP MONGERS 180
(2010); Robert Harrison, Confidential’s New Policy, CONFIDENTIAL, Apr. 1958, reprinted
in SAMUEL BERNSTEIN, MR. CONFIDENTIAL: THE MAN, HIS MAGAZINE & THE MOVIELAND
MASSACRE THAT CHANGED HOLLYWOOD FOREVER 268 (2006).
121
122 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
brought by the state of California, and a star-studded 1957 Los Angeles trial, described
as the “O.J. Simpson trial of its time.”
4
The extensive litigation against Confidential
killed the magazine, and Robert Harrison ceased publishing in 1958.
5
Only sixty
years ago, at a time when First Amendment protections for speech were fairly well-
developed, the most popular magazine in the country was effectively run out of busi-
ness by the law. How and why this happened is the subject of this Article.
Confidential magazine has been written about extensively in the context of celeb-
rity history and film history, but its legal history has yet to be documented.
6
Drawing
on unpublished legal and archival sources, this Article tells the story of the rise and
fall of Confidential between 1955 and 1957, and in so doing, illuminates a significant
and transformative episode in the history of freedom of the press.
The decade after the Second World War was a time of uncertainty and tension
around the meaning of freedom of the press and the legal limits of public expression.
The 1950s were a crossroads in First Amendment history, a time when liberalizing
trends of earlier decades were in retreat, and moral and political panics in the early
Cold War years led to widespread support for official measures suppressing alleg-
edly immoral and subversive publications.
7
Censorship became a contested issue,
pitting conservative social reformers against a coalition of publishers, journalists,
and civil libertarians.
8
Wildly popular and at the same time reviled for its salacious content, Confiden-
tial became a focal point in the debate over censorship and government restraints on
4
SCOTT, supra note 3, at 172.
5
See infra Part V.
6
For books and chapters on Confidential magazine and celebrity culture, see BERNSTEIN,
supra note 3; MARY R. DESJARDINS, RECYCLED STARS: FEMALE FILM STARDOM IN THE AGE
OF TELEVISION AND VIDEO (2015); SAM KASHNER & JENNIFER MACNAIR, THE BAD AND THE
BEAUTIFUL: HOLLYWOOD IN THE FIFTIES (1st ed. 2002); SCOTT, supra note 3; Mary Desjardins,
Systematizing Scandal: Confidential Magazine, Stardom, and the State of California, in
HEADLINE HOLLYWOOD: A CENTURY OF FILM SCANDAL (Adrienne L. McLean & David A.
Cook eds., 2001); Anne Helen Petersen, The Gossip Industry: Producing and Distributing Star
Images, Celebrity Gossip, and Entertainment News, 1910–2010 (May 2011) (unpublished
Ph.D. dissertation, University of Texas, Austin) (on file with author). The dearth of scholarship
on Confidential’s legal battles may result, in part, from a mistaken assumption that the trial
records do not exist. See B
ERNSTEIN, supra note 3, at 11 (“[N]o copy of the transcripts seems
to have survived anywhere . . . .”). Records of the Confidential trial exist in the archives of the
Los Angeles County Superior Court and also at the University of Illinois Urbana–Champaign
Rare Books Library.
7
See infra Part II.
8
On censorship in the 1950s, see generally PAUL S. BOYER, PURITY IN PRINT: BOOK
CENSORSHIP IN AMERICA FROM THE GILDED AGE TO THE COMPUTER AGE (James Danky &
Wayne Wiegand eds., 2d ed. 2002); MORRIS L. ERNST & ALAN U. SCHWARTZ, CENSORSHIP:
THE SEARCH FOR THE OBSCENE (1964); ROBERT W. HANEY, COMSTOCKERY IN AMERICA:
PATTERNS OF CENSORSHIP AND CONTROL (1960); TERRENCE J. MURPHY, CENSORSHIP:
GOVERNMENT AND OBSCENITY (1963); Thomas I. Emerson, The Doctrine of Prior Restraint,
20 L
AW & CONTEMP. PROBS. 648, 649 (1955).
2016] THE MOST LOVED, MOST HATED MAGAZINE 123
publishing.
9
While commentators across the political spectrum agreed that Confiden-
tial was trash and should be eliminated from newsstands, how to get rid of the maga-
zine became a matter of dispute. Reformers proposed an array of restrictions on the
magazine, including outright bans on Confidential.
10
Civil libertarians denounced such
measures as censorship—as unconstitutional prior restraints.
11
At the same time, the dialogue around the “Confidential problem” elicited con-
sensus on fundamental points. Civil libertarians and conservative reformers agreed that
freedom of speech was not absolute, and that the law had an important role to play
in regulating publishing content.
12
Both sides agreed that legal procedures resulting in
civil and criminal liability were preferable to prior restraints, and supported existing
libel and obscenity laws as limitations on injurious speech.
13
This consensus would
soon unravel, as civil libertarians and the Supreme Court moved towards more abso-
lutist positions on speech in the 1960s.
14
The Confidential episode marked the begin-
nings of a transition in freedom of speech—a moment when older views of the First
Amendment, in which authorities had greater latitude to restrain and punish offensive
material, were beginning to be eclipsed by a more modern, civil libertarian framework.
Confidential was not the first “scandal magazine,” nor the first to write about
Hollywood gossip. Sensational, tabloid-style magazines focusing on crime, immoral-
ity, and celebrity romances existed since the early twentieth century.
15
But Confidential,
with its revelations of homosexuality and interracial sex, may have been “the most
scandalous scandal magazine” to that time.
16
Part I explains the origins of Confidential,
the career of publisher Robert Harrison, and the magazine’s inner workings. Part II
describes the debate over censorship in the 1950s, and Part III the legal campaign
against Confidential.
9
See infra Part I.B.
10
See infra Part III.
11
See infra notes 294–99 and accompanying text.
12
See infra Part II.C.
13
Id.
14
See infra notes 651–59 and accompanying text.
15
See BOYER, supra note 8, at 155. Paul Boyer writes of the “frankly erotic and sensa-
tional magazines” that became big business in the 1920s, among them True Story Magazine,
“devoted to repentant tales of sexual misdeeds”; True Confessions; Screen Secrets; and Modern
Romance; and newspaper tabloids “with lurid and prurient coverage” of high-profile divorce
and murder trials. Id.; see also T
HEODORE PETERSON, MAGAZINES IN THE TWENTIETH
CENTURY 339 (1956) (noting magazines from earlier decades trafficking in “uncomplicated
sex and unsophisticated smut”).
16
Thomas K. Wolfe, Public Lives: Confidential Magazine: Reflections in Tranquility by
the Former Owner, Robert Harrison, Who Managed to Get Away With It, ESQUIRE, Apr.
1964, at 87. As journalist Harold Conrad described it, “[i]t’s the devil’s diary. Harrison has
undressed half of Hollywood on its pages with blow-by-blow descriptions of bedroom
encounters—and I do mean blow-by-blow.” HAROLD CONRAD, DEAR MUFFO: 35 YEARS IN
THE
FAST LANE 97 (1982).
124 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
Part IV focuses on California’s war on Confidential. The State’s attack was a
direct result of film industry pressure, and also the political ambitions of Attorney
General Edmund “Pat” Brown, soon-to-be governor.
17
Following a state congressional
investigation of Confidential’s newsgathering methods, Brown sought criminal charges
against Confidential for violations of obscenity and criminal libel laws.
18
Part V de-
tails the spectacular trial of Confidential in 1957 and public reactions to it. Despite
Brown’s obvious political motivations, the pressures of the film industry, and the
vagueness of California’s criminal libel and obscenity laws, the trial was celebrated
as a triumph of democracy and the legal process over more overt and authoritarian
censorship methods.
19
Not long after the trial, Confidential disappeared from the scene. In the end, it
was not criminal charges, postal bans, or “anti-scandal” legislation that did it in, but
rather the collective toll of the litigation it faced—in particular, staggering attorneys’
fees.
20
The Conclusion contemplates the legacy of Confidential and its legal travails.
However brief its scandalous life may have been, Confidential had an enduring im-
pact on freedom of the press, the cult of celebrity, and popular publishing.
I. CONFIDENTIAL
The 1950s saw the rise of the “scandal magazines.” Featuring celebrity gossip,
shocking, breathless headlines, and titles like Dynamite, Exposed, Hush-Hush, The
Lowdown, Private Lives, Suppressed, Top Secret, and On the QT,
21
the staple of the
scandal magazines was sin and sex: sexual transgressions and other misconduct by
actors and other prominent persons.
22
Articles were short, had glamorous pictures, and
were easy to read.
23
Typical stories included exposés that “[a] singing star is wire-
tapped and found to be constantly entertaining her ostensibly estranged husband. . . .
A Hollywood ing[é]nue is shown to be a nymphomaniac. . . . A wealthy heiress may
be addicted to artificial stimulants[,]” in Newsweek’s words.
24
In 1955, the sale of the
scandal magazines reached around ten million copies per issue.
25
The leading scandal magazine was Confidential, the biggest newsstand seller in
American history to that time, with a per issue sale of 4.6 million in July 1956.
26
In
17
SCOTT, supra note 3, at 161–62.
18
Infra Part IV.
19
See infra Part V.
20
SCOTT, supra note 3, at 187.
21
Id. at 116.
22
See generally Petersen, supra note 6, at 86–127 (outlining how celebrity magazines,
led by Confidential, presented stars as violating social morals).
23
See, e.g., Horton Streete, Why Liberace’s Theme Song Should Be . . . ‘Mad About the
Boy’, CONFIDENTIAL, July 1957, at 16, 16–21, 59–60.
24
The Curious Craze for ‘Confidential’ Magazines . . . , NEWSWEEK, July 11, 1955, at
50 [hereinafter Curious Craze].
25
Richard Gehman, Confidential File on Confidential, ESQUIRE, Nov. 1956, at 67.
26
Id.
2016] THE MOST LOVED, MOST HATED MAGAZINE 125
the mid-1950s, around sixteen million Americans read Confidential each week.
27
Its
nearest rival on the newsstands, TV Guide, could boast only about 2.3 million, and
Life magazine, around 900,000.
28
“What our readers want is facts, gossipy facts, that
they don’t get elsewhere,” publisher Robert Harrison told the Wall Street Journal.
29
Said a former editor of Confidential who became editor of Suppressed Magazine,
“[w]hat we give them is what they can’t get on television.”
30
A. The Magazine
1. Origins
Confidential publisher Robert Harrison was no stranger to the world of sleazy
publishing. Born in 1904 in New York, Harrison got his start in the publishing in-
dustry in the 1920s when he worked on the tabloid the Evening Graphic, and after
that, a series of movie industry trade publications.
31
In the early 1940s he started the
first of his several “girlie” magazines, Beauty Parade, in his two-room apartment in
New York.
32
By the end of the forties, he had five such magazines.
33
His reign as the
“Cheesecake King”
34
was short-lived, however. In 1952, his accountant informed him
that his company was broke, and he began searching for a new concept.
35
Harrison got the idea for Confidential when he saw the public response to the
televised 1951 Senate hearings on organized crime led by Senator Estes Kefauver.
36
Millions of Americans abandoned their work to watch gangsters and prostitutes testify
against each other.
37
27
9 Transcript of Record at 1043, California v. Meade, No. 190871 (Cal. Super. Ct., L.A.
Cty. Aug. 21, 1957).
28
Id.
29
J. Howard Rutledge, Sin & Sex: Gossipy Private Peeks at Celebrities’ Lives Start
Magazine Bonanza, WALL ST. J., July 5, 1955, at 1.
30
Curious Craze, supra note 24, at 51 (internal quotation marks omitted).
31
Gehman, supra note 25, at 144.
32
SCOTT, supra note 3, at 15. It was a “‘fetishist magazine.’ It featured nothing but pic-
tures of almost-undressed girls, wearing very high-heeled shoes, threatening each other with
whips . . . .” Gehman, supra note 25, at 145.
33
Gehman, supra note 25, at 145.
34
Rutledge, supra note 29.
35
Neal Gabler, Confidential’s Reign of Terror, VANITY FAIR (Apr. 1, 2003, 1:47 PM),
http://www.vanityfair.com/hollywood/2003/04/robert-harrison-confidential-magazine
[https://perma.cc/HKY2-ZMP9].
36
Gehman, supra note 25, at 145.
37
On the Kefauver hearings, see Thomas Doherty, Frank Costello’s Hands: Film, Tele-
vision, and the Kefauver Crime Hearings, 10 FILM HIST. 359, 368 (1998) (“During the two-
week run of the Kefauver Committee in New York, most of [New York City] stopped to watch
the riveting real-time, real-life television drama. . . . [T]axi drivers cruised deserted streets,
housewives neglected housework, and apartment dwellers held ‘Kefauver block parties’. [sic]”).
126 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
When the Kefauver Committee was conducting its TV hearings . . .
people were nuts about it. . . . [E]verybody[—]office workers,
housewives, average people[—]were . . . wrapped up in watching
characters they’d read about—thieves, prostitutes, racketeers—get
up on the stand and be questioned. I figured if that’s what they
wanted—real facts about people they constantly read about—
something about their personal lives—I’d give it to them[,]
Harrison explained.
38
Six months later, Confidential hit newsstands. The name Confidential came from
a series of recent, bestselling “exposé books” by journalists Lee Mortimer and Jack
Lait, titled New York Confidential, Chicago Confidential, Washington Confidential,
and U.S.A. Confidential.
39
Harrison intended Confidential to be a “fact magazine,”
a muckraking news publication that would “expose rackets, phony consumer prod-
ucts, corrupt public officials, Reds, and show-business people who are fakes”
40
—“an
expos[é] type of magazine . . . that told the stories that the newspapers did not tell,
or other magazines did not tell.”
41
As Harrison promised in Confidential’s first issue:
The lid is off! The bunk is going to be debunked! In this, its
first issue, CONFIDENTIAL will open your eyes and make them
pop. It pulls the curtain aside and takes you behind the scenes,
giving facts, naming names and revealing what the front pages
often try to conceal!
You’ll get plain talk without double-talk. You’ll get what you’ve
always wanted to get—the real stories behind the headlines—
uncensored and off the record!
42
When the first few issues of Confidential had disappointingly low circulation,
Harrison decided he needed “more and hotter stories on Hollywood personalities.”
43
In 1953, he hit upon a new formula when he published a sensational article on the
38
Confidential: Between You and Me and the Bedpost, FORTNIGHT, July 5, 1955, at 24,
25 [hereinafter Between You and Me].
39
See JACK LAIT & LEE MORTIMER, CHICAGO CONFIDENTIAL (1st ed. 1950); JACK LAIT
& LEE MORTIMER, NEW YORK CONFIDENTIAL (1st ed. 1948); JACK LAIT & LEE MORTIMER,
U.S.A. CONFIDENTIAL (1st ed. 1952); JACK LAIT & LEE MORTIMER, WASHINGTON
CONFIDENTIAL (1st ed. 1951).
40
Howard Rushmore, I Worked for Confidential, CHRISTIAN HERALD, Jan. 1958, at 32,
36 (internal quotation marks omitted).
41
2 Transcript of Record (Aug. 9, 1957), supra note 27, at 125.
42
Confidentially Speaking, CONFIDENTIAL, Dec. 1952, at 4.
43
2 Transcript of Record, supra note 27, at 127.
2016] THE MOST LOVED, MOST HATED MAGAZINE 127
breakup of Joe DiMaggio’s marriage to Marilyn Monroe titled Why Joe DiMaggio
Is Striking Out with Marilyn Monroe!
44
When it became apparent that the magazine
would sell out, Harrison launched a new policy. “[W]e needed hot, inside stories from
Hollywood,” he told his staff.
45
He wanted readers to say, “[w]e never knew that
before.”
46
The new criteria for running a story was, “is the star’s name big enough and
well enough known to sell the magazine?”
47
The plan worked. At the height of the
magazine’s success in 1956, Harrison was earning a profit of over $350,000 per issue,
making him one of the most successful magazine publishers in American history.
48
2. ‘Nothing But Smut’
Each issue of Confidential had around fifteen articles presenting “inside stuff”
on entertainment celebrities, mostly having to do with sex.
49
Some of the magazine’s
most famous articles included a story alleging that Frank Sinatra ate Wheaties while
lovemaking to enhance his sexual prowess,
50
an article on actress Maureen O’Hara
engaging in romantic activities with a lover in the back of a movie theater,
51
and a
piece on a failed “raid” of the apartment of Marilyn Monroe’s lover by Joe DiMaggio
and Frank Sinatra.
52
Exposés revealed negligent parents, drug addictions, and extra-
marital affairs, with titles like How Rita Hayworth’s Children Were Neglected,
53
Gary Cooper’s Lost Weekend with Anita Ekberg,
54
and Caught—Guy Madison in
Barbara Payton’s Boudoir.
55
For the most part, news reporting on celebrities had been
tame and sanitized—a product of Hollywood’s power over the publishing industry,
conservative social morals, and mainstream journalism’s tendency to shun risqué
44
Harrison L. Roberts, Why Joe DiMaggio Is Striking Out with Marilyn Monroe!,
CONFIDENTIAL, Aug. 1953, at 3, 18.
45
2 Transcript of Record, supra note 27, at 130.
46
Id. (internal quotation marks omitted).
47
Rushmore, supra note 40, at 36.
48
Gehman, supra note 25, at 143.
49
Sin, Sex, and Sales, NEWSWEEK, Mar. 14, 1955, at 88, 88. Seventy-eight percent of
articles in Confidential emphasized the value of “sex” and “sex-love.” Jerome Michael Kelly,
The Credibility of Confidential Magazine and the Newspaper Compared 35 (June 1957)
(unpublished M.A. thesis, Stanford University) (on file with author).
50
See Gabler, supra note 35.
51
R.E. McDonald, It Was the Hottest Show in Town When . . . Maureen O’Hara Cuddled
in Row 35, CONFIDENTIAL, Mar. 1957, at 10, 10.
52
J. E. Leclair, From a Private Eye’s Confidential Report . . . The Real Reason for
Marilyn Monroe’s Divorce, CONFIDENTIAL, Sept. 1955.
53
Jay Breen, How Rita Hayworth’s Children Were Neglected, CONFIDENTIAL, Sept.
1954, at 41.
54
Horton Streete, Gary Cooper’s Lost Weekend with Anita Ekberg, CONFIDENTIAL, Jan.
1956, at 20.
55
Stephen James, Caught—Guy Madison in Barbara Payton’s Boudoir, CONFIDENTIAL,
Mar. 1956, at 23.
128 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
matter in order to court “respectable” audiences.
56
For their time, Confidential’s arti-
cles were truly shocking and groundbreaking.
The magazine featured what one writer described as a “neo-tabloid” style, with
“screaming headlines,” “innuendo-laden blurbs,” and “smoking-car tone” writing.
57
Confidential’s language was “sexist, homophobic, and reactionary,” in the words of
writer Steve Govoni.
58
“Women were referred to as sirens, beauties, dishes, lassies,
cuties, wenches, chicks, or pigeons.”
59
“Prostitutes were called chippies, play-for-pay
honeys, love-for-loot dates, or cuddle-for-cash cuties.”
60
Confidential was obsessed
with interracial relationships,
61
socially taboo at the time. The black women alleg-
edly involved in such relationships were “tan tootsies, chocolate bon-bons or night-
blooming sepia sirens.”
62
Confidential played on the public’s fear of, and fascination with, homosexuality.
63
Gay men were described as “limp-wrists” or “lavenders.”
64
Harrison was said to be
obsessed with “outing” actors and other public figures.
65
A 1954 article revealed that
56
See generally John Summers, Whatever Happened to Sex Scandals? Politics and
Peccadilloes, Jefferson to Kennedy, 2000 J. AM. HIST. 826 (discussing norms of professional
journalism that mandated concealing the sexual affairs of public figures). Before the 1950s,
the primary publications featuring news about film celebrities were fan magazines, with titles
like Photoplay and Modern Screen. See generally SLIDE, supra note 3. The fan magazines
were essentially extensions of Hollywood studio publicity departments, presenting false and
highly glorified descriptions of celebrities as upstanding, wholesome and moral. See gener-
ally id.; Petersen, supra note 6, at 46–53 (describing the editorial collusion between Hollywood
and magazines to maintain stars’ images). Gossip columnists writing for major newspapers,
such as Louella Parsons and Hedda Hopper, occasionally broke celebrity scandals, but like the
fan magazines, these writers were generally beholden to the Hollywood studios and loath to
print anything that might turn public opinion against the film industry. See generally
SAMANTHA BARBAS, THE FIRST LADY OF HOLLYWOOD: A BIOGRAPHY OF LOUELLA PARSONS
(2005); Petersen, supra note 6, at 53–69 (explaining the close relationships between gossip
columnists and Hollywood studios).
57
Gehman, supra note 25, at 67.
58
Steve Govoni, Now It Can Be Told, AM. FILM, Feb. 1, 1990, at 28, 30.
59
Id.
60
Id.
61
Id.
62
Id.
63
On the panic around homosexuality in the 1950s, see generally JOHN D’EMILIO &
ESTELLE B. FREEDMAN, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA 292–95
(1988); George Chauncey, Jr., The Postwar Sex Crime Panic, in TRUE STORIES FROM THE
AMERICAN PAST 160 (William Graebner ed., 1993); Fred Fejes, Murder, Perversion, and
Moral Panic: The 1954 Media Campaign Against Miami’s Homosexuals and the Discourse
of Civic Betterment, 9 J. HIST. SEXUALITY 305 (2000).
64
Govoni, supra note 58, at 30.
65
Gabler, supra note 35. See generally SCOTT, supra note 3, at 80–94 (detailing Harrison
and Confidential’s rigorous pursuit of stories about homosexual stars in Hollywood).
2016] THE MOST LOVED, MOST HATED MAGAZINE 129
actor Van Johnson was gay.
66
An article titled Why Liberace’s Theme Song Should
Be . . ‘Mad About the Boy’ claimed that the pianist Liberace was gay and had been
making advances on a male press agent.
67
“The Untold Story of Marlene Dietrich”
reported that many of “Dietrich’s dalliances . . . were not with men!”
68
“Dietrich
going for dolls? Her adoring fans the world over will shriek, ‘Impossible!’ It’s the
truth, though. In the game of amour, she’s not only played both sides of the street, but
done it on more than one occasion.”
69
The magazine also outed several prominent pub-
lic officials. In 1956 Confidential published a story that outed President Eisenhower’s
former Appointments Secretary, Arthur H. Vandenberg, Jr.;
70
under-Secretary of State
Sumner Welles was outed by the magazine in May 1956.
71
In between these tawdry stories were so-called “public service exposés.”
72
Con-
fidential described children being poisoned by aspirin and household insecticides,
the dangers of smoking, and other risks to society.
73
Screaming headlines alerted the
public to THE ONE-HOUR PREGNANCY TEST!,
74
DANGER—BORIC ACID AS A
POISON!,
75
SURGERY’S NEWEST BUST MIRACLE,
76
NEW TWO-WEEK ULCER
CURE,
77
NOW—HOMOSEXUALS CAN BE CURED!,
78
NOW—SURGERY CURES
FRIGID WIVES,
79
CIGARETTES DO NOT CAUSE CANCER,
80
and Warning! Coffee
CAN Make You Fat.
81
Harrison would use these “public service” articles to defend
himself against charges that the magazine was nothing but “smut.”
82
66
Bruce Cory, The Untold Story of Van Johnson, CONFIDENTIAL, Sept. 1954, at 13.
67
Streete, supra note 23, at 17.
68
Kenneth G. McLain, The Untold Story of Marlene Dietrich, CONFIDENTIAL, July 1955,
at 22.
69
Id.
70
Truxton Decatur, Why Ike Bounced Arthur Vandenberg, Jr., CONFIDENTIAL, Nov.
1956, at 22.
71
Truxton Decatur, We Accuse . . . Sumner Welles, CONFIDENTIAL, May 1956.
72
KASHNER & MACNAIR, supra note 6, at 19.
73
See id. at 19–20.
74
CONFIDENTIAL, Nov. 1955.
75
CONFIDENTIAL, July 1955.
76
CONFIDENTIAL, Jan. 1956.
77
CONFIDENTIAL, July 1956.
78
CONFIDENTIAL, May 1957.
79
CONFIDENTIAL, July 1957.
80
CONFIDENTIAL, Nov. 1957.
81
CONFIDENTIAL, Jan. 1958.
82
Harrison said,
[I]n each issue there are frequently one, two, three articles that are of
a crusading type. For example: aspirin. . . . We found out that aspirin
was the greatest number one killer of children. . . . Now to me that was
doing a great deal of good. I can tell you this very frankly that if we
didn’t put our spicy stuff in there no one would ever read that.
Gehman, supra note 25, at 143 (internal quotation marks omitted); see also John Sisk, The
Exposé Magazines, C
OMMONWEAL, June 1, 1956, at 223, 223 (“These magazines may conduct
130 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
3. How It Worked
Commentators speculated on the reasons behind Confidential’s success. Some
saw the popularity of the magazine as an indication of a decline in social morals—
“widespread emotional and spiritual immaturity.”
83
Others saw the rise of the scandal
magazines as a sign of Americans’ growing boredom at the workplace.
84
Ray Fiore,
the vice-president of the company that distributed Confidential, offered perhaps the
most trenchant explanation: a cynical, world-weary public.
85
This is the age of cynicism. Right? Trace it back. Up to 1929
Americans had credulous minds. They believed everything they
read in the papers and the magazines.
Then came the crash [of 1929]. Then came 12 years of hunger,
people selling apples. Then six, seven years of war, and six, seven
years of cold war.
So pretty soon the people begin to realize that life is tough.
And they start not believing what they’re told. About two, three
years ago they reach a pinnacle of cynicism and doubt.
Along comes Confidential. It tells the people about crime,
filth, vice, corruption. Just what the people want, just what they
suspected was going on.
86
public-interest crusades against frauds or abuses of one sort or another and sometimes culti-
vate a moralistic tone, but this is . . . window dressing.”).
83
Edith Roosevelt, Who Are the ‘Confidential’ Readers? Sexually Lost, Uncultured,
Doctors Say, MANSFIELD NEWS-JOURNAL, Sept. 23, 1957, at 36.
84
Design Jobs for Workers, Executive Says, DAILY REG., Apr. 5, 1956, at 4 (“People
aren’t getting the satisfaction they used to from their work, an insurance company personnel
director said today, because their jobs are boring. Workers are turning to TV, movies and
scandal magazines . . . and the result is ‘creative sterility.’”).
85
Jack Olsen, Titans of Trash, SUNDAY HERALD, Nov. 6, 1955, at M2; see also Curious
Craze, supra note 24, at 50–51:
The U.S. public is the most communication-glutted group of people in
world history. Daily bombarded by “facts” which conflict, daily told
opposite versions of the same incidents, hopelessly incapable in this
complicated world of sorting out the truth, a great many Americans have
undoubtedly built a thick shell of skepticism around themselves.
Understandably, the shell often hardens into cynicism. Having seen
more than his share of legitimate scandals and exposures, the reader
begins to think that every story must have some kind of a “lowdown”
beneath the surface, some “uncensored” facts known only to a “confi-
dential” few.
86
Olsen, supra note 85, at M2 (internal quotation marks omitted).
2016] THE MOST LOVED, MOST HATED MAGAZINE 131
Confidential also rose to prominence because Harrison was able to play on the
public’s penchant for celebrity gossip. The magazine promised to explode the pristine
celebrity narratives that had long circulated in popular culture and to reveal that sexual
and moral deviance ran rampant in Hollywood. The rise of Confidential “bespoke a
hunger for this type of coverage,” wrote historian Anne Helen Petersen.
87
Harrison capitalized on recent developments in the film industry: the decline of the
studio system and with it, Hollywood’s tightly controlled system of celebrity publicity.
Since the 1920s, the film industry had been organized into a “studio system.”
88
Five
vertically integrated film companies dominated film production, distribution, and
exhibition.
89
In 1948, the Supreme Court, in United States v. Paramount Pictures,
Inc.,
90
declared that the studios held a monopoly over film production, distribution,
and exhibition, and forced them to divest.
91
The studios sold off their theater chains.
92
This spelled financial disaster for the studios, since exhibition had been their primary
source of profit.
93
Hollywood was also undermined by the rise of television, which
reduced film attendance.
94
The demise of the studio system transformed celebrity publicity. Under the studio
system, studio publicity departments had been responsible for publicizing actors who
were under contract to the studios. To conceal stars’ “sexual preferences, illicit sexual
dalliances, and illegal activities,” publicists issued phony, laudatory biographies and
news releases that portrayed actors as upstanding, wholesome, and moral.
95
Maga-
zines showed actresses “in [their] kitchen[s], dicing carrots, and spouting . . . thoughts
about motherhood, the sanctity of marriage, and the intrinsic goodness of God.”
96
Writers for fan magazines were required to submit all articles to the studio publicity
departments before publication, and interviews with celebrities had to be conducted
with a studio publicist present.
97
Journalists who violated these rules were banned
from studio lots.
98
“The Hollywood press corps . . . was about as autonomous as
TASS, the Soviet news agency,” observed journalist Sam Kashner.
99
“If you printed
87
Petersen, supra note 6, at 118.
88
On the origins of the studio system, see generally TINO BALIO, GRAND DESIGN:
HOLLYWOOD AS A MODERN BUSINESS ENTERPRISE 1930–1939 (1993); DOUGLAS GOMERY,
THE HOLLYWOOD STUDIO SYSTEM: A HISTORY (2005).
89
SCOTT, supra note 3, at 34–35.
90
334 U.S. 131 (1948).
91
Id. at 152.
92
MICHAEL CONANT, ANTITRUST IN THE MOTION PICTURE INDUSTRY: ECONOMIC AND
LEGAL ANALYSIS 107 (1960).
93
See generally id. at 129–35 (explaining the result of Paramount for studio profits).
94
See Petersen, supra note 6, at 144–45.
95
Id. at 121.
96
John Crosby, Liz’s Libel Suit, CUMBERLAND NEWS (Md.), Dec. 8, 1960, at 15.
97
Petersen, supra note 6, at 51; see also Gordon Kahn, The Gospel According to
Hollywood, ATLANTIC, May 1947, at 98.
98
Petersen, supra note 6, at 51.
99
Sam Kashner, Confidential, GQ, Mar. 2000, at 218.
132 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
something about, say, Rock Hudson that wasn’t approved by Universal Pictures,
you didn’t get invited to press conferences anymore. You were blackballed from the
Hollywood beat.”
100
After the Paramount decision and the divestment decree, many stars were no
longer under contract to the studios. Publicity came increasingly from the press agents
that stars hired on their own.
101
“Without studio mediation, a star’s actions became
increasingly transparent,” wrote Petersen.
102
If a star was arrested or caught in a tryst,
the studio’s “fixers” were no longer available to cover up for them.
103
“The gossip
floodgates were essentially opened.”
104
Confidential played on these vulnerabilities. With the help of his lawyers, Harrison
devised an elaborate system for cultivating, channeling, and verifying gossip from
anonymous Hollywood informants, who were paid between $100 and $1,000 for
“tips.”
105
“[C]ops, private detectives, prostitutes, B actors,”
106
and “friends of celebrities,
enemies of celebrities . . . disgruntled discharged maids and butlers . . . press agents
who formerly worked for celebrities and even press agents who currently work for
celebrities” were happy to have a lucrative outlet for the tips they picked up.
107
Actors
would rat on their colleagues when they were short of cash, and mainstream journalists
were paid to “pass along gossip that their own newspapers deemed too hot to handle.”
108
Informants reported to Confidential’s Hollywood agents or sent tips to the magazine’s
offices in New York, often in plain envelopes.
109
Harrison paid his sources in cash, or
100
Id. In the words of Time, Inc.’s Hollywood writer Ezra Goodman, “The studios and
the press agents have never favored an independent press. All they want from the journalists
is paeans of praise and a constant quota of sweetness and light. . . . The resultant blackout on
fact and truth has made the celluloid curtain as impenetrable as any supposed iron curtain.”
EZRA GOODMAN, THE FIFTY-YEAR DECLINE AND FALL OF HOLLYWOOD 41 (1961).
101
See Petersen, supra note 6, at 78–80.
102
Id. at 68.
103
Id.
104
Id.
105
Gehman, supra note 25, at 139.
106
SCOTT, supra note 3, at 36.
107
Gehman, supra note 25, at 142.
108
VAL HOLLEY, MIKE CONNOLLY AND THE MANLY ART OF HOLLYWOOD GOSSIP 28 (2003).
109
Gehman, supra note 25, at 142. Harrison told a potential contributor:
Look, you don’t have to do the work. You don’t write the story.
You just type the idea on a piece of paper. We got men in the office
that will write it up. Or you can telephone it in if you got an idea for a
story. Nobody will know you gave us the idea. We could pay you in
cash so no checks will be traced back to you.
Don’t worry about nothing. We put private detectives on the trail
to make sure the facts are right. I have spent thousands of dollars check-
ing on a story. All we want is the tip. You hear a good rumor, you phone
it in to me personally and you got yourself five hundred dollars.
Maurice Zolotow, Confidentially, It’s Pay Dirt, DETROIT FREE PRESS, Nov. 13, 1955, at 4-C
(internal quotation marks omitted).
2016] THE MOST LOVED, MOST HATED MAGAZINE 133
checks signed to fictitious names, to protect their identities.
110
Sometimes Confidential
threatened actors and studio personnel, practically forcing them to divulge secrets.
The Universal-International studio gave Confidential information about actor Rory
Calhoun’s jail record in exchange for Confidential’s agreement to withhold articles
outing a star, Rock Hudson, who was more important to them than Calhoun.
111
In 1955, Harrison opened Hollywood Research Incorporated, a “research bureau”
headquartered in Hollywood.
112
Hollywood Research became a clearinghouse for
tips. It coordinated the gathering of data, payment to informants, and fact-checking—
the important “authentication” or “verification” process.
113
The bureau was run by
Harrison’s niece, Marjorie Meade, and her husband Fred.
114
Harrison provided the
Meades with $5,000, bought them an expensive home for entertaining in Beverly
Hills, and the Meades worked their way into Hollywood social circles.
115
In 1955,
the Meades pursued over 750 story leads.
116
Established freelance writers were hired to turn the raw data into finished stories.
Freelancers were often “rewrite men and reporters on the New York dailies who
[were] looking to supplement their incomes; [or] former first-rate writers . . . who, for
some reason, generally involving temperament or booze, can no longer work for the
popular family magazines,” noted Esquire.
117
The articles, published pseudonymously,
were edited and polished by Confidential’s small in-house staff of four writers and free-
lance writers.
118
The editors put the articles into Confidential’s trademark “toboggan
ride” style
119
—as Harrison described it, “racy and free of embroidery, [which] keeps
the reader on the edge of his seat.”
120
4. The Legal Department
Knowing the wrath his exposés would likely incur, Harrison structured Confi-
dential’s operations around the possibility of legal threats and legal retribution.
121
Though based in New York, Confidential had no corporate or jurisdictional connec-
tion to its printer, wholesaler, distributor, and sellers.
122
The magazine was printed in
110
Gehman, supra note 25, at 142.
111
GOODMAN, supra note 100, at 52.
112
SCOTT, supra note 3, at 125.
113
See id.
114
Id.
115
See id. at 125–26.
116
Gabler, supra note 35.
117
Gehman, supra note 25, at 139.
118
Rutledge, supra note 29, at 15.
119
HOLLEY, supra note 108, at 28.
120
Rutledge, supra note 29, at 15 (internal quotation marks omitted).
121
SCOTT, supra note 3, at 125–26.
122
Giesler Heads Committee to Protect Stars, Denounces Industry, SAN BERNARDINO
DAILY SUN, Apr. 19, 1957, at 8.
134 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
Illinois, by an independent publisher called the Kable Company, and its entire press
run was purchased by a wholesale distributor, The Periodical Distribution Company,
which sold the magazine to distributors in other states.
123
Most of the magazine’s
five million copies were sold at newsstands, rather than by subscription; newsstand
copies were distributed by truck, rather than mail, to head off potential problems with
the Post Office.
124
Harrison paid the small New York law firm Becker, Ross and Stone $100,000 a
year to advise him on Confidential.
125
Lawyers Daniel Ross and Albert DeStefano sat
in on editorial conferences, read text, and consulted with staff writers.
126
Confidential’s
lawyers read every word of every issue, considering the legal ramifications of each
sentence, article, and photograph.
127
To head off libel lawsuits—Confidential’s primary concern—articles often im-
plied, rather than stated, scandalous facts.
128
Many Confidential stories were based
on so-called “composite facts.”
129
While the basic core facts of an incident might have
occurred, such as an actor’s past arrest, those facts were often juxtaposed with un-
related facts and sensational headlines and captions.
130
“Incidents having no causal,
temporal or other significant relationship” to the event were “skillfully arranged to
insinuate relationship.”
131
“By sprinkling grains of fact into a cheesecake of innu-
endo, detraction and plain smut,” noted Time magazine, “Confidential creates the
illusion of reporting the ‘lowdown’ on celebrities. Its standard method: dig up one
sensational fact and embroider it for 1,500 to 2,000 words. If the subject thinks of
suing, he may quickly realize that the fact is true, even if the embroidery is not.”
132
123
SCOTT, supra note 3, at 167–68; Giesler Heads Committee to Protect Stars, Denounces
Industry, supra note 122, at 8.
124
Harrison’s years as the “Cheesecake King” made him sensitive to the legal risks
involved in magazine publishing. On one project for one of his girlie magazines in the 1940s,
Harrison had driven a carload of models to a golf course and took pictures of them running
across the fairways half-nude. SCOTT, supra note 3, at 17. Police arrested him for taking
pornographic pictures. Id. Later, a “postal inspector [threatened] to rescind Harrison’s
second-class mailing privileges on the grounds that his magazines were obscene. Called in
to advise him, the prominent civil-rights attorney Morris Ernst suggested that Harrison
change the format and eliminate the semi-nudity. He did,” and circulation declined. Gabler,
supra note 35. The magazines “‘may be mailable,’ he joked, ‘but they aren’t salable.’” Id.
125
Gabler, supra note 35.
126
2 Transcript of Record, supra note 27, at 281.
127
Id.; Gabler, supra note 35.
128
Gabler, supra note 35.
129
Irwin O. Spiegel, Public Celebrity v. Scandal Magazine—The Celebrity’s Right to
Privacy, 30 S. CAL. L. REV. 280, 282 (1957).
130
Id.
131
Id.
132
Success in the Sewer, TIME, July 11, 1955, at 92. Harrison’s “specialty is printing scan-
dalous personal material, as libellous [sic] as he can make it while still including an admixture
of provable fact, as a precaution against being sued,” observed one critic. Dancing on a
Tightrope, L
INCOLN EVENING J. (Neb.), July 12, 1955, at 4. “[He and his lawyers] . . . figure
2016] THE MOST LOVED, MOST HATED MAGAZINE 135
Confidential’s lawyers also checked the magazine for potentially obscene material,
although they were less concerned with obscenity than libel.
133
The magazine did not
explicitly describe sexual acts, and there were no nude images; there was nothing
pornographic about it.
Harrison employed informants, including prostitutes and private detectives, to
confirm every statement in the magazine.
134
“We have to have the exact time, exact
date, the bungalow number, everything documented, just in case,” Harrison boasted.
135
“There is not one word that goes into this book that is not thoroughly authenticated
and documented.”
136
DeStefano refused to approve any story with facts that could
not be verified.
137
Using the latest surveillance technologies such as hidden cameras and miniature
recording devices, Confidential’s informants bugged offices and homes to check
facts.
138
Ronnie Quillan, a prostitute working in Hollywood, alleged that Harrison
asked her to go to lunch with actress Lizabeth Scott, who was an alleged homosexual,
and to use a concealed recording device to get “verification.”
139
“Some of my exclu-
sives cost me $5000,” Harrison said.
I can’t just take the word of a maid or a butler—who would be-
lieve them in court? I got to get additional stuff. Why, I’ve sent
people to Morocco to get stuff I needed. I sent a lawyer to Europe
to check something on Marlene Dietrich—I spent $7000 on that
story alone.
140
DeStefano required affidavits from participants in, or witnesses to, the incidents
described in a story.
141
The affidavits read, “I swear that all the events described in
that a few actual facts stirred into the scurrilous mixture will be enough to persuade the
victim that he had better just squirm and take it.” Id. Harrison described it this way:
Once we establish the star in the hay and that’s documented, we can
say anything we want and I think we make [the stories] a hell of a lot
more interesting than they really are. What’s a guy gonna do, sue us
and admit he was in the hay with the dame, but claim he didn’t do all
the other things we dress the story with?
CONRAD, supra note 16, at 99 (internal quotation marks omitted).
133
See generally Desjardins, supra note 6, at 208–10 (comparing the state of libel and
obscenity laws and their relationships to scandal magazines).
134
Gehman, supra note 25, at 142.
135
Curious Craze, supra note 24, at 51 (internal quotation marks omitted).
136
Between You and Me, supra note 38, at 25 (internal quotation marks omitted).
137
SCOTT, supra note 3, at 40.
138
Desjardins, supra note 6, at 210; Govoni, supra note 58, at 29.
139
SCOTT, supra note 3, at 98.
140
Gehman, supra note 25, at 143 (internal quotation marks omitted).
141
See SCOTT, supra note 3, at 40 (noting that sworn affidavits “provided further legal
protection”).
136 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
the above story are true and that I was a participant in these events.”
142
The affidavits
were kept in a locked file cabinet in the Confidential office.
143
Until 1957, Confidential
had an impressive track record when it came to libel. After five years of existence,
Confidential had racked up only a dozen libel lawsuits out of 450 articles—“an im-
posing batting average,” according to Esquire.
144
Before 1956, Harrison could proudly
claim that he never paid out a cent in libel suits.
145
It was not only Harrison’s lawyers
who kept him out of court; Confidential’s greatest protection was the subjects’ natural
disinclination to sue. Many who were smeared in the magazine did not want to draw
attention to the accusations with a lawsuit.
146
Some worried that if they sued, Confi-
dential would respond with more damaging disclosures in court.
147
“Confidential’s
main leverage over celebrities was fear,” recalled the son of one of Confidential’s
editors.
148
“The editors were convinced that . . . you could keep people from suing
because there was always more dirt to be discovered.”
149
B. Responses
1. The Film Industry
Confidential hit the film industry at a time when it was vulnerable, and the maga-
zine’s success struck terror in Hollywood.
150
“The effect [of Confidential] among
142
CONRAD, supra note 16, at 98–99; 2 Transcript of Record, supra note 27, at 140–41.
Working from a tip, the magazine . . . put a private investigator on the
story, tailing the subject over a period of time. When a sufficiently
detailed and documented dossier had been compiled, complete with
vouchers from witnesses, the magazines would run a portion of the
story, holding the rest of the evidence in abeyance should there be any
kickback.
GOODMAN, supra note 100, at 51.
143
See CONRAD, supra note 16, at 98.
144
Gehman, supra note 25, at 142.
145
See Ssh!, TIME, Apr. 2, 1956, at 86, 86. Observed Newsweek:
The impressive thing about Harrison’s current operation, apart from his
sales, is that he has never been brought to court for libel. One reason:
While Confidential often, and artfully, stretches small facts into huge
insinuations, the facts he uses are painstakingly checked by detective
agencies, by his excellent lawyers, by his own photostating service, and
by other more intimate methods.
Sin, Sex, and Sales, supra note 49, at 88.
146
Success in the Sewer, supra note 132.
147
See id.
148
Govoni, supra note 58, at 43.
149
Id.
150
GOODMAN, supra note 100, at 50–51 (“[T]he scandal magazines were feared—and also
held a horrible fascination for most everyone.”).
2016] THE MOST LOVED, MOST HATED MAGAZINE 137
Hollywood notables . . . amounts to general fright,” Newsweek reported in 1955.
151
“Overnight, some of Hollywood’s biggest stars have been tagged as deviates, rakes,
nymphomaniacs, lunatics, drunks and hopheads[,]” and the result was immediate
havoc on relationships and careers.
152
Theater bookings were cancelled because of
Confidential exposés.
153
At least one star had no job offers after being featured in
Confidential.
154
There was talk in the South of banning the films of a white actress
who had been linked with a black actor in the magazine.
155
Fearing that any actions against the magazine would lead to reprisals, film execu-
tives at first did nothing.
156
“These are individual problems; it is up to the individuals
whether they want to take action,” a spokesman for the Motion Picture Producers
Association told the press.
157
Actors balked. “What do they mean by that double talk?”
asked Humphrey Bogart.
158
“Actors belong to the movie industry; they’re products of
the industry, and they should be backed up by the industry. If somebody kept writing
that Cadillacs had lousy brakes, wouldn’t the Cadillac company take some action?
The industry needs some guts.”
159
Eventually realizing “that the vast circulation of the
magazines” would have “the cumulative effect of convincing the public that Hollywood
is wild and wicked,” the film industry launched a campaign against Confidential in
1955.
160
The Motion Picture Industry Council, the industry’s public relations arm, set
up a committee to run counter-publicity and combat attacks by scandal magazines.
161
Hollywood created a list of writers and tipsters who supplied Confidential.
162
Every-
one on the list was to be blacklisted, banished from Hollywood socially and profes-
sionally.
163
Producer-director Mervyn LeRoy contacted a private detective, who said
he would need $350,000 to recruit former F.B.I. agents to investigate Confidential
151
Curious Craze, supra note 24, at 52.
152
Jack Olsen, Film Stars Target of Smut Magazines, TOLEDO BLADE (Ohio), Nov. 4, 1955.
153
Id.
154
Id.
155
Id.
156
Bob Thomas, Hollywood Has Been Fair Game for All Scandalmongers Since 1920
Scandals, KINGSPORT NEWS (Tenn.), Sep. 30, 1957, at 8.
157
Id. (internal quotation marks omitted).
158
SCOTT, supra note 3, at 63 (internal quotation marks omitted).
159
Id. (internal quotation marks omitted).
160
Thomas, supra note 156, at 8. Secretly, some wondered whether Confidential wasn’t
good for Hollywood. Journalist Bob Thomas wrote that “[t]here [was] a minority view, not
expressed in the high councils of the town, that maybe the scandal mags [hadn’t] been all bad
for Hollywood. Some . . . [felt] that much of the magic and excitement of Hollywood had
vanished in its search for respectability; that the onrush of racy publicity . . . helped restore
glamor to the town.” Id.
161
Actor Raps Trial, Calls for Action, HARTFORD COURANT, Aug. 18, 1957, at 12A; Jack
Jones, Magazine Lied About Her and Boxer, Mae West Says: Charges Chalky Wright was
Tricked into Talking, L.A. TIMES, Aug. 23, 1957, at 2.
162
Id.
163
12 Transcript of Record (Aug. 27, 1957), supra note 27, at 1594.
138 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
and prove its articles false.
164
The project was dropped when the studio heads became
apprehensive, fearing that an attack would have a “boomerang” effect.
165
In 1957, Hollywood fought back against Confidential with a film. MGM released
Slander, a movie about a sleazy, fictional magazine called Real Truth.
166
The story
revealed the blackmail and extortion that scandal magazines used to get their stories.
167
In the end, the villainous publisher—based clearly on Robert Harrison—is murdered
in cold blood.
168
The film not only took a swipe at Harrison, noted Time, but also at
his many “accomplices”: “the readership which settles in cloudlike millions on the
garbage which the scandal sheets provide.”
169
2. The Public Response
Among the reading public, Confidential struck a nerve. The magazine’s gritty
exposés were wildly popular and, at the same time, denounced and deplored.
170
“[E]verybody reads it, but they say the cook brought it into the house,” Humphrey
Bogart remarked famously.
171
Subscription orders asked that Confidential be sent
“in plain wrapper.”
172
A Chicago society woman summarized the simultaneous dis-
gust and attraction that she felt for the magazine: “I’ve read it from cover to cover,
and I think it ought to be thrown out of the house.”
173
At a time of nationwide concerns with juvenile delinquency, critics worried about
the effects of Confidential’s highly sexualized content on teenagers, children, and
164
Charles Denton, Scandal Mag Probers to View Nude Photos of Anita Ekberg, BRIDGE-
PORT POST, Mar. 1, 1957, at 7.
165
Id.
166
SLANDER (Metro-Goldwyn-Mayer 1957).
167
The Screen: Is it True What They Say About Oedipus?, COMMONWEAL, Feb. 8, 1957,
at 488, 488.
168
SLANDER, supra note 166. “Scandal . . . Smear . . . Slander: See how careers are blasted
and lives are broken by the yellow reporting in the vicious scandal magazines!” read an ad-
vertisement for the film. See, e.g., Scandal! . . Smear! . . Slander! . . , GLOBE-GAZETTE
(Mason City, Iowa), Mar. 29, 1957, at 6; see also The Screen, COMMONWEAL, Feb. 8, 1957,
at 488.
169
Cinema, TIME, Feb. 11, 1957, at 96.
170
HANEY, supra note 8, at 84.
Many adults would doubtless be regular readers of the cheap magazines
if they did not fear the social stigma that would result. They pass by
Confidential in favor of Reader’s Digest because they demand reading
that will bolster their social standing. . . . The pulp magazines, on the
other hand, sell primarily to people who like such trash and don’t care
who knows it.
Id. (internal citations omitted).
171
Success in the Sewer, supra note 132 (internal quotation marks omitted).
172
Rushmore, supra note 40, at 38.
173
Success in the Sewer, supra note 132 (internal quotation marks omitted).
2016] THE MOST LOVED, MOST HATED MAGAZINE 139
other suggestible persons. The scandal magazines “[were] dangerous because they
encourage[d] unstable individuals to express sexual deviations and . . . provide[d]
even average persons with ‘an extra incentive to practice adultery or promiscuity,’”
noted one critic.
174
“[L]urid stories about the actions of . . . rich and beautiful people,
invariably hint[ ] broadly that they have done something thrilling and against social
mores—and gotten away with it.”
175
“One cannot but wonder how much of this sen-
sational junk is taken into U.S. homes by mothers of families.”
176
By 1955 there was a broad consensus that Confidential should be eradicated
from the nation’s newsstands—the question was how.
177
Some advocated bringing
social pressures against the magazine—protests, boycotts, and moral suasion.
178
“The
best . . . pressure that can be brought [on Confidential] . . . is moral condemnation
by private groups,” wrote one commentator.
179
The answer to the Confidential prob-
lem is “educating the public against buying scandal magazines. If people could be
made aware of how damaging such magazines can be[,] . . . [it] might dictate the
best remedy—refusal to pay money to enrich the smut peddlers.”
180
Others sought government bans on Confidential. In 1957, the Los Angeles Sentinel
published “man on the street” interviews with residents of the city, who agreed that
“scandal magazines” should be “outlawed.”
181
“All scandal magazines should be
taken off the market. They are a menace to society. They carry nothing but trash and
that is no good for our youth,” stated one observer.
182
“Scandal magazines and the
derogatory, vicious material they carry interfere with a person’s private and personal
174
Roosevelt, supra note 83, at 36.
175
Libel is Mudslinging, PANAMA CITY NEWS, Sept. 4, 1957, at 4.
176
Women Are Expose Fans, AMERICA, Feb. 11, 1956, at 520; see also Rushmore, supra
note 40, at 38 (“Several surveys taken by Confidential’s circulation department showed that
about 75 per cent of the magazine’s readers were women. . . . I am sure that only a tiny percent-
age of Confidential’s readers are teen-agers, and a minority are men. Its appeal is directed
primarily at feminine readers.”); Gehman, supra note 25, at 143 (according to Harrison, “the
majority of our readers are women”) (internal quotation marks omitted). Complaining to a
local newspaper about the “scandal magazines,” one Los Angeles resident observed that “42%
of all major crimes are committed by young people under 18" and “J. Edgar Hoover has called
lewd literature an ‘important contributory factor in juvenile delinquency.’ . . . It is about time
we took some preventive measures before well over [1 million] delinquents grow to [2
million] by 1960, as has been predicted,” he advised. A.M. McMahon, Letter to the Editor,
Corrupting Influences, L.A.
TIMES, Mar. 4, 1957, at 46.
177
A rare few praised Confidential’s exposés: “These magazines tell us many things, for
instance the real story behind the cancer drug[.] . . . These scandal magazines expose rackets
and tell us how to protect ourselves from them. The popularity of these magazines is caused
by the fact [that] the people believe they are getting the truth.” M. A., Letter to the Editor, The
Real Scandal, DECATUR SUNDAY HERALD & REV. (Ill.), Oct. 6, 1957, at 47.
178
Editorial, To Deflate Scandal, TRAVERSE CITY REC.-EAGLE (Mich.), Sept. 24, 1957, at 4.
179
Editorial, Curbing Printed Smut, N. ADAMS TRANSCRIPT (Mass.), Dec. 20, 1957, at 6.
180
To Deflate Scandal, supra note 178, at 4.
181
Inquiring Reporter, L.A. SENTINEL, July 11, 1957, at 6.
182
Id.
140 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
business.”
183
“Yes, I certainly feel their publication and sale should be outlawed,”
said another.
184
The Reverend Billy Graham, addressing a public rally in 1957, com-
plained “that our laws are so lenient as to allow the scandal magazines . . . to be sold
in almost every part of the United States.”
185
“I believe in freedom of the press but
the law should be changed to protect individuals . . . from this type of journalism,”
actress Joan Bennett told reporters.
186
A ban on Confidential did not violate freedom
of the press, Confidential’s opponents argued, because the First Amendment did not
protect “smut publishers.”
187
II. CENSORSHIP
The idea of a government ban on Confidential was not as jarring then as it would
be today. In the 1950s, many believed that free speech rights could be sharply limited
in the interest in enforcing public morals, and that governments could restrain or
suppress publications that had the potential to create social discord or promote un-
rest.
188
As Better Homes and Gardens magazine opined in 1957, “the framers of the
Constitution never meant the First Amendment to protect filth peddlers who poison
minds.”
189
“[W]e are not ready to accept such junk as . . . the smut magazines as any
part of the [constitutionally protected] press.”
190
Popular support for official restraints on publishing,
191
and increased government
restraints on publishing in the 1950s, marked something of a reversal in free speech
trends.
192
On the whole, the trend in free speech law between the early 1900s and 1950
had been in the direction of liberalization.
193
“An evolution” of free speech that began
in the 1920s “amounted to a revolution” by the 1940s, one legal scholar observed.
194
By World War II, there was a “tendency on the part of . . . [the] courts to grant to the
183
Id.
184
Id.
185
Sound Moral Warning, Graham Asks President: Decadence Threatening U.S., He
Says; Scandal Magazine Readers Are Scored, ANNISTON STAR (Ala.), Aug. 22, 1957, at 12-
A (internal quotation marks omitted).
186
Curious Craze, supra note 24, at 52 (internal quotation marks omitted).
187
Jack Harrison Pollack, Newsstand Filth, a National Disgrace, BETTER HOMES &
G
ARDENS, Sept. 1957, at 10, 197 [hereinafter Newsstand Filth].
188
See, e.g., id.
189
Id.
190
Cleanup Needed, REDLANDS DAILY FACTS (Cal.), Feb. 20, 1957, at 12 (“Perhaps we
should define the meaning of the word ‘Press,’ and decide if these sex and bedroom magazines
can truly be considered a part of the press as it is properly conceived.”).
191
See, e.g., Newsstand Filth, supra note 187, at 197.
192
Comment, Censorship of Obscene Literature by Informal Government Action, 22 U.
CHI. L. REV. 216, 216–17 (1955) [hereinafter Censorship of Obscene Literature].
193
See, e.g., Near v. Minnesota, 283 U.S. 697 (1931) (holding that prior restraints on the
press were generally unconstitutional); Gitlow v. New York, 268 U.S. 652 (1925) (incorpo-
rating the First Amendment’s free speech principles to the states).
194
MURPHY, supra note 8, at 101.
2016] THE MOST LOVED, MOST HATED MAGAZINE 141
press an ever increasing freedom to print and publish.”
195
One critic, writing in the early
1950s, claimed that “sex censorship was almost passé.”
196
That would soon change.
A. A ‘Moral Panic’
The resurgence of legal restraints on publishing was spurred, in part, by an in-
crease in mass communications. In the 1950s, newspaper circulation reached historic
highs;
197
by 1960, there were 1.3 newspapers per American.
198
Television was intro-
duced, and by the end of the decade eighty-eight percent of Americans owned a
television set.
199
In the 1930s, a paperback revolution made books available for as
low as twenty-five cents, and in 1953 a quarter of a billion paperback books were
published.
200
During the 1950s, Americans were spending $18 billion annually on
recreational pursuits, including books, magazines, and newspapers.
201
Encouraged by a climate of greater sexual openness after the war, popular media
featured sensational and suggestive themes.
202
Pulp magazines and girlie publications,
including Playboy, flooded newsstands.
203
Comic books, many violent and sadistic,
became nearly $100 million a year business,
204
and “lurid designs and suggestive
copy” were prevalent in paperback books.
205
Once limited to all-male environments
such as “barbershops, saloons and Army posts,” suggestive material was being dis-
tributed to a mass audience through mainstream outlets such as drugstores, news-
stands, dime stores, confectionaries, and supermarkets.
206
The proliferation of racy publications contributed to the era’s moral panic. In the
1950s, there were deep anxieties in the culture around the effects of World War II on
195
Frederick S. Siebert, Legal Developments Affecting the Press, 219 ANNALS OF AM.
ACAD. POL. & SOC. SCI. 93, 93 (1942).
196
MURPHY, supra note 8, at 101 (citing Eric Larrabee, Morality and Obscenity, in
FREEDOM OF BOOK SELECTION 25 (Frederick J. Moshner ed., 1954)).
197
SAMANTHA BARBAS, LAWS OF IMAGE: PRIVACY AND PUBLICITY IN AMERICA 160 (2015).
198
Id.
199
Id. at 156.
200
Theodore Waller, Paper-Bound Books and Censorship, 47 AM. LIBR. ASS’N BULL.
474, 474 (1953).
201
BARBAS, supra note 197, at 160.
202
MURPHY, supra note 8, at 82 (“The World War II era saw paperback and pocket-size
books, comic books, girlie and picture magazines become big business. A significant portion
of the new publications brought in its wake a widespread and critical public reaction.”).
203
D’EMILIO & FREEDMAN, supra note 63, at 280.
204
BRADFORD W. WRIGHT, COMIC BOOK NATION: THE TRANSFORMATION OF YOUTH
CULTURE IN AMERICA 155 (2001).
205
D’EMILIO & FREEDMAN, supra note 63, at 280 (“After World War II, pornography, as
well as other media products that titillated males by [sexualizing] women’s bodies, moved
beyond their customary place in a marginal underground world. Soldiers who had graced
their barracks . . . with photos and drawings of ‘pin-up’ girls returned . . . with pornography
obtained abroad.”).
206
Margaret Culkin Banning, Filth on the Newsstands, READER’S DIG., Oct. 1952, at 116,
116.
142 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
family life, sexual attitudes, and gender norms.
207
Women had entered the workforce
during the war;
208
sexual activity became freer;
209
cities expanded, and with them came
rising crime.
210
Communism was linked in the popular imagination to promiscuity and
sexual deviance,
211
and concerns with juvenile delinquency heightened the public’s
fear of suggestive books and magazines.
212
The 1950s saw an alleged “epidemic” of
juvenile delinquency. In 1954, one million youths were said to be involved with the
police.
213
A Chicago police commissioner claimed that the influence of “lurid maga-
zines and books” contributed to the “recent increase in rape and sex crimes.”
214
FBI
director J. Edgar Hoover alleged that racy periodicals “play[ed] an important part in
the development of crime among the youth of our country.”
215
These developments led to a series of efforts to suppress publications.
216
A “purity
movement” battled against the public display of sexuality,
217
and by 1951, books,
207
See generally Joanne Meyerowitz, The Liberal 1950s? Reinterpreting Postwar U.S.
Sexual Culture, in GENDER AND THE LONG POSTWAR: RECONSIDERATIONS OF THE UNITED
STATES AND THE TWO GERMANYS, 1945–1989, at 295 (Karen Hagemann & Sonya Michel
eds., 2014).
208
See generally Martha L. Hall, Belinda T. Orzada, & Dilia Lopez-Gydosh, American
Women’s Wartime Dress: Sociocultural Ambiguity Regarding Women’s Roles During World
War II, 38 J. AM. CULTURE 232 (2015).
209
D’EMILIO & FREEDMAN, supra note 63, at 242.
210
See generally BARRY LATZER, THE RISE AND FALL OF VIOLENT CRIME IN AMERICA
75–78 (2016) (describing the increase in urban crime in the 1950s).
211
MIRIAM G. REUMANN, AMERICAN SEXUAL CHARACTER: SEX, GENDER, AND NATIONAL
IDENTITY IN THE KINSEY REPORTS 9 (2005).
212
Fred Millett, The Vigilantes, 40 AM. ASS’N PROFESSORS 47, 54–55 (1954). In the view
of one critic, one of the most “immediate” causes of censorship was the:
general atmosphere of hysteria and fear of communism that [was] being
systematically engendered in America . . . . The conversion of commu-
nism into the national bogey-man [had] encouraged the transference of
distrust, hostility, and fear to a great many other entities than commu-
nism. . . . The irrational fear that [made] it impossible for people to study
or discuss communism dispassionately quickly spill[ed] over and inun-
dat[ed] any other product of contemporary culture that for some reason
seem[ed] strange or baffling or threatening to the half-educated mind.
Id.
213
MURPHY, supra note 8, at 92.
214
Banning, supra note 206, at 116.
215
Newsstand Filth, supra note 187, at 10.
216
See Charles G. Bolte, Security Through Book Burning, 300 ANNALS AM. ACAD. POL.
& SOC. SCI. 87, 91 (1955) (“At the moment, the chief censorship activity in this country is
directed against publications not on political but on moral grounds.”). On political censorship
during the anticommunist hysteria of the late 1940s and 1950s, see Geoffrey R. Stone,
Justice Brennan and the Freedom of Speech: A First Amendment Odyssey, 139 U. PA. L.
REV. 1333, 1336–38 (1991).
217
D’EMILIO & FREEDMAN, supra note 63, at 280 (“Every step toward greater [sexual]
openness was matched by renewed efforts to hold the line against ‘filth.’”).
2016] THE MOST LOVED, MOST HATED MAGAZINE 143
radio, television, magazines, and newspapers were “all feeling increased pressure
from advocates of censorship,” noted the New York Times.
218
“A recrudescence of
Puritanism is . . . epidemic in the United States,” observed two critics in 1955.
219
“As
in the years following both the Civil War and World War I,” printed matter was
“under general attack because of [its] alleged” immorality.
220
Lawmaking bodies were
“passing censorship laws so fast that it [was] difficult to make an accurate count.”
221
By the middle of the decade, state legislatures were inundated with demands for
new laws against obscene literature.
222
Several cities and states passed laws regulat-
ing the sale and distribution of violent comic books.
223
Some criminalized what they
characterized as lewd and indecent publications, and even all material “inimical to
the public health, safety and morals.”
224
Some proposed measures that “declare[d] the
newspaper, magazine and periodical publishing business [to be] ‘clothed with a public
interest and subject to [content-based] regulation.’”
225
These measures generated
widespread support. Sixty percent of Americans in one poll believed that “police and
other groups should have the right to censor or ban books and movies.”
226
Less than
half of students at Purdue University thought that “[n]ewspapers and magazines should
be allowed to print anything they want except military secrets.”
227
A Gallup poll
found that half of Americans were in favor of “freedom of speech for everybody,”
but that forty-five percent would seriously limit or qualify that right.
228
218
Murray Schumach, Censorship Fight Waged on a Nation-Wide Front, N.Y. TIMES,
Nov. 1, 1953, at E7. A writer in 1954 noted “the wave of suppression that . . . swept over this
free land of ours during the past two or three years.” Millett, supra note 212, at 48. Publishers’
Weekly in 1953 wrote that “book censorship [was] reaching epidemic proportions.” Book
Censorship Is Reaching Epidemic Proportions, PUBLISHERS’ WKLY., Feb. 28, 1953, at 1058.
219
William B. Lockhart & Robert C. McClure, Obscenity in the Courts, 20 LAW &
CONTEMP. PROBS. 587, 587 (1955).
220
Id.; see also Eric Larrabee, The Cultural Context of Sex Censorship, 20 LAW &
CONTEMP. PROBS. 672, 676–77 (1955) (questioning the decade’s association between ob-
scenity, moral decay, and crime).
221
Lewis C. Smith, Jr., The Truth Beaten Down, 4 C. COMPOSITION & COMM. 138, 139
(1953).
222
Newsstand Filth, supra note 187, at 205 (discussing that there were proposals for
“stricter, tougher, clearer, more enforceable anti-obscenity laws,” with heavier fines and jail
terms). In 1953 alone, “fifteen state legislatures considered bills to control, penalize, or change
the penalties for the distribution of literature.” James Rorty, The Harassed Pocket-Book
Publishers, 15 ANTIOCH REV. 411, 422 (1955).
223
Crime Comics and the Constitution, 7 STAN. L. REV. 237, 237–38 (1955).
224
Henry E. Schultz, Censorship or Self Regulation?, 23 J. EDUC. SOC. 215, 217 (1949).
225
Bill Sent to Florida Aims at Ruling Press, N.Y. TIMES, Apr. 8, 1951, at 46.
226
Leslie G. Moeller, Dir., Sch. of Journalism, State Univ. of Iowa, How Free is the Press?:
the Proper and Judicious Use of Freedom (Sept. 9, 1957), in 23 VITAL SPEECHES 750, 751
(1957).
227
Id. (internal quotation marks omitted).
228
The Quarter’s Polls, 13 PUB. OPINION Q. 709, 726 (Mildred Strunk ed., 1950).
144 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
In some jurisdictions, official “review boards” were set up to screen and ban
publications offered for sale.
229
In Detroit, the police department and its review board
vetted all material on newsstands; if they found a publication objectionable, it was
submitted to the district attorney, who pressured the vendor to remove it under threat
of prosecution under obscenity laws.
230
In 1956, Georgia established a “state literature
commission” to study “questionable literature” “violating normal, traditional and
contemporary patterns of decency” and to make reports to the state solicitor general
for prosecution for obscenity.
231
The St. Cloud, Minnesota City Council passed an
ordinance creating a “board of review” to screen literature sold in the city and to order
distributors and newsdealers to cease selling material condemned by the board.
232
Citizens’ committees for “decent literature” sprung up across the country.
233
The
National Organization for Decent Literature, a Roman Catholic group, was described
as “the most potent force against comic books, paper-bound books, and pulp maga-
zines in America.”
234
Along with women’s clubs, veterans’ organizations, PTA groups,
and other civic associations, NODL branches pressured newsstands and booksellers
to remove books and magazines.
235
Citizens’ committees provided lists of disfavored
publications to police, who warned vendors that material they were selling was ob-
jectionable and must be removed from sale.
236
Implicit in these requests were threats
229
See, e.g., Indiana Governor Backs Smut Drive, N.Y. TIMES, Aug. 30, 1959, at 45
(discussing “literature review boards” in Indiana).
230
William J. Hempel & Patrick M. Wall, Note, Extralegal Censorship of Literature, 33
N.Y.U. L. REV. 989, 999–1000 (1958).
231
James P. Wesberry, Georgia Scrubs Its Newsstands, CHRISTIAN CENTURY, Dec. 23,
1953, at 1498–99.
232
How Far Should Book Censors Go, DECATUR HERALD (Ill.), Mar. 16, 1953, at 6.
233
Hempel & Wall, supra note 230, at 992; Censorship of Obscene Literature, supra note
192, at 220–21. See generally Arthur E. Farmer, Pressure-Group Censorship—and How to
Fight It, 42 AM. LIBR. ASS’N BULL. 356 (1948) (distinguishing public review boards from
private interest groups who sought to ban publications).
234
HANEY, supra note 8, at 88. On the NODL, see generally Rorty, supra note 222.
235
Slugging the “Exposé” Magazines, NEWSWEEK, June 1955, at 75.
In most cases the group conducting a drive against literature it deems
objectionable is one informally organized by local citizens who are
supported by no outside organization. Sometimes, however, the cam-
paign is either initiated or supported by influential national organiza-
tions, or their local branches, whose main function is unrelated to the
control of literature. . . . [such as] the Veterans of Foreign Wars, the
Women’s Christian Temperance Union, and various P.T.A. groups.
Hempel & Wall, supra note 230, at 992–93 (internal citations omitted).
236
One police chief sent a letter: “Enclosed is a list of objectionable or obscene magazines
which you are requested to remove permanently from sale by local output. . . . I would like
this to become effective immediately upon receipt of this communication.” HANEY, supra
note 8, at 87. Certificates were given to newsdealers who complied, and boycotts threatened
against those who resisted. In some communities, signs were placed in store windows calling
attention to dealers who cooperated in magazine clean-up drives. William B. Lockhart &
2016] THE MOST LOVED, MOST HATED MAGAZINE 145
that noncooperation would produce “trouble,” including prosecution under obscenity
laws or visits by building and health inspectors.
237
“[W]ithout judicial determination
of obscenity” or other criminal violations, noted one critic, “a sizable number” of
publications disappeared from public consumption.
238
B. Freedom of Speech
1. Prior Restraints
The constitutionality of these measures was unclear in most cases, generally
untested, and often dubious.
239
Although many areas of First Amendment law were
still poorly defined and had yet to be addressed by the Supreme Court, there were
fairly well-developed protections for freedom of publishing within existing First
Amendment law.
Since the 1930s, it was a fundamental tenet that the First Amendment prohibited
prior restraints.
240
A prior restraint, in its most basic form, was an “official restric-
tion[] imposed upon speech . . . in advance of actual publication.”
241
The rule against
prior restraints, derived from Blackstone’s Commentaries on the English common
law,
242
became a First Amendment requirement in Near v. Minnesota.
243
In Near, the
Supreme Court struck down a Minnesota law that prohibited the publication of a
“malicious, scandalous and defamatory newspaper, magazine or other periodical.”
244
The law provided that all such “nuisances” could be enjoined from further publica-
tion.
245
The majority in Near characterized the Minnesota law as a prior restraint, “the
essence of censorship.”
246
The “chief purpose” of freedom of the press, it declared, is
“to prevent previous restraints upon publication.”
247
The rule against prior restraints
Robert C. McClure, Literature, the Law of Obscenity, and the Constitution, 38 MINN. L. REV.
295, 310 & n.93 (1954).
237
Censorship of Obscene Literature, supra note 192, at 230 (“Police threats need not
involve criminal prosecutions under the obscenity laws. . . . The threat ‘to send the inspectors
around’ can be extremely effective in any city where there are lengthy, strict, or outmoded
health and safety ordinances.”); see also Bolte, supra note 216, at 92 (“The consequence of
[noncooperation] is nontrade. Most dealers go along.”).
238
HANEY, supra note 8, at 87 (giving the example of Stamford, Connecticut).
239
See Bolte, supra note 216, at 91.
240
See generally Emerson, supra note 8.
241
Id. at 648.
242
See DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS 132 (1997).
243
283 U.S. 697, 713 (1931).
244
Id. at 701–02 (quoting MINN. STAT. §§ 10123-1–3 (1927)) (internal quotation marks
omitted).
245
Id.
246
Id. at 713.
247
Id.
146 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
was not absolute; prior restraints could be justified in “exceptional cases. . . . No one
would question but that a government might prevent . . . publication of the sailing
dates of transports or the number and location of troops. On similar grounds, the
primary requirements of decency may be enforced against obscene publications,”
according to the Near majority.
248
The prior restraint in Near was a judicial injunction.
249
In the 1930s and 40s, the
Court applied the concept of prior restraint to provisions other than injunctions, in-
cluding permit requirements
250
and license taxes.
251
In Thomas v. Collins,
252
the Court
held a statute requiring the registration of union organizers before permitting them
to carry on solicitation to be an unconstitutional prior restraint.
253
In cases involving
the proselytizing efforts of Jehovah’s Witnesses, the Court said that a tax upon sellers
of wares, as applied to purveyors of religious tracts, was a prior restraint.
254
Since
the early twentieth century, films had been censored in several states; movies could
not be exhibited unless approved by a government board of review.
255
In Burstyn v.
Wilson,
256
the Court declared film licensing to be an unconstitutional prior restraint.
257
Though the term was widely used, there was “no common understanding as to what
constitute[d] ‘prior restraint,’” observed First Amendment scholar Thomas Emerson
in 1955.
258
“The term [was] used loosely to embrace a variety of different situations.”
259
One distinguishing feature of a prior restraint was that a banned communication never
reached the public.
260
The decision to ban a publication often “rest[ed] with a single
government functionary rather than with a jury”; prior restraints were often determined
by administrative rather than criminal procedures, meaning that “[t]he presumption
of innocence, the heavier burden of proof borne by the government, the stricter rules
of evidence, the stronger objection to vagueness, [and] the immeasurably tighter and
more technical procedure” did not apply.
261
In Emerson’s words:
248
Id. at 716.
249
Id. at 705.
250
See Thomas v. Collins, 323 U.S. 516 (1945).
251
See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
252
323 U.S. 516 (1945).
253
Id. at 534.
254
Follett v. McCormick, 321 U.S. 573, 577 (1944) (invalidating a license tax as applied
to religious tracts); Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943) (invalidating a law
taxing the sale of books or other literature); Lovell v. Griffin, 303 U.S. 444, 451 (1938)
(invalidating a municipal law requiring a permit to distribute “literature”).
255
Burstyn, 343 U.S. at 495, 510–11 (Frankfurter, J., concurring).
256
343 U.S. 495 (1952).
257
The “previous restraint” was a “form of infringement upon freedom of expression to
be especially condemned.” Id. at 503 (citing Near v. Minnesota, 283 U.S. 697 (1931)).
258
Emerson, supra note 8, at 655.
259
Id.
260
Id. at 648.
261
Id.
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A system of prior restraint usually operates behind a screen of
informality and partial concealment that seriously curtails oppor-
tunity for public appraisal and increases the chances of discrimi-
nation and other abuse. Decisions are less likely to be made in the
glare of publicity that accompanies a subsequent punishment. The
policies and actions of the licensing official do not as often come
to public notice; the reasons for his action are less likely to be
known or publicly debated; material for study and criticism are
less readily available; and the whole apparatus of public scrutiny
fails to play the role it normally does under a system of subse-
quent punishment.
262
2. Subsequent Punishments
Since the 1930s, subsequent punishments had been governed by a “clear and pres-
ent danger” standard, as a constitutional requirement.
263
When determining whether
to uphold punishments for speech, courts had to ask, “whether the words used are
used in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about [a] substantive evil[] that [the government] ha[d] a
right to prevent.”
264
The Supreme Court’s adoption of the “clear and present danger”
test marked a revolution in First Amendment law. The earlier standard for judging free
speech claims had been a “bad tendency” test; governments could employ their police
power broadly to punish speech that had a propensity, however slight or remote, to
promote unrest or corrupt public morals.
265
The Court’s adoption of “clear and present
danger” reflected emerging ideals of pluralist democracy—the notion of democracy
as a participatory enterprise built on discussion involving all members of society.
266
Democracy depended on vigorous debates on “matters of public concern”—“all
issues about which information is needed or appropriate to enable the members of
society to cope with the exigencies of their period.”
267
262
Id. at 658. The line between a prior restraint and subsequent punishment was not always
clear. As commentators and the Supreme Court recognized, the threat of criminal punishment
could suppress speech as thoroughly as a prior restraint. See, e.g., Paul A. Freund, The Supreme
Court and Civil Liberties, 4 V
AND. L. REV. 533, 573 (1951). “An injunction running against
a particular individual may, to be sure, deter him more sharply than the broad command of a
criminal statute; but just as possibly the underlying statutory prohibition, whether enforceable
by injunction or by criminal sanctions, may have a deterrent effect,” noted one law review
writer. Id. “It will hardly do to place ‘prior restraint’ in a special category for condemnation.
What is needed is a pragmatic assessment of its operation in the particular circumstances.”
Id. at 539.
263
See Schenck v. United States, 249 U.S. 47, 52 (1919).
264
Id.
265
See RABBAN, supra note 242, at 132.
266
Lester E. Mosher, Mr. Justice Rutledge’s Philosophy of Civil Rights, 24 N.Y.U. L.
REV. 661, 666 (1949).
267
Thornhill v. Alabama, 310 U.S. 88, 101–02 (1940).
148 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
Before the 1960s, the Supreme Court applied “clear and present danger” only to
political speech, not morals regulations involving literature or entertainment media.
268
The Court indicated, however, that overly broad, vague, or subjective content-based
restrictions on art, literature, and entertainment could potentially violate freedom of
the press.
269
Winters v. New York
270
invalidated a New York law that criminalized the
publication of material depicting “bloodshed, lust or crime,” holding it to be uncon-
stitutionally vague.
271
The case involved a magazine called Headquarters Detective,
True Cases from the Police Blotter, June 1940,
272
containing “a collection of crime
stories which portray in vivid fashion tales of vice, murder and intrigue.”
273
While
recognizing a state’s interest in “minimiz[ing] all incentives to crime, particularly
in the field of sanguinary or salacious publications with their stimulation of juvenile
delinquency,” the Court limited a state’s ability to exercise value judgments about the
worth of a publication under the guise of the police power.
274
At the same time, some categories of speech, including libel and obscenity, were
said to be entirely unprotected by the First Amendment.
275
“Libelous utterances not
being within the area of constitutionally protected speech, it is unnecessary . . . to con-
sider the issues behind the phrase ‘clear and present danger,’” declared the majority in
Beauharnais v. Illinois.
276
As the majority wrote in Chaplinsky v. New Hampshire,
277
“it is well understood that the right of free speech is not absolute at all times and under
all circumstances. There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which has never been thought to raise any
constitutional problem.”
278
The Court went on to note that:
These include the lewd and obscene, the profane, the libelous, and
the insulting or “fighting” words. . . . It has been well observed
that such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by
the social interest in order and morality.
279
268
See, e.g., Winters v. New York, 333 U.S. 507 (1948); Fox v. Washington, 236 U.S. 273
(1915) (upholding a law that prohibited publication of material advocating illegal conduct).
269
Winters, 333 U.S. at 515–18.
270
333 U.S. 507 (1948).
271
Id. at 508, 519–20.
272
Id. at 508 n.1.
273
People v. Winters, 48 N.Y.S.2d 230, 231 (N.Y. App. Div. 1944), rev’d, 333 U.S. 507
(1948).
274
Winters, 333 U.S. at 510.
275
See Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE
L.J. 877, 922 n.52, 937 (1963).
276
343 U.S. 250, 266 (1952).
277
315 U.S. 568 (1942).
278
Id. at 571–72 (citations omitted).
279
Id. at 572.
2016] THE MOST LOVED, MOST HATED MAGAZINE 149
C. The Anticensorship Movement
The formal and informal suppression of publications led to a nationwide anticen-
sorship movement. Various organizations denounced “the outbreak of censorship of
paper-bound books and other media.”
280
“Slowly, at first, but with increasing vigor,
anti-censorship groups have begun a nation-wide fight,” noted the New York Times
in 1953.
281
“Industries concerned with movies, books, radio, television, newspapers,
magazines have joined with teachers and librarians to help form community groups
to combat censorship that they regard as unwarranted.”
282
“The freedom to read is es-
sential to our democracy [and i]t is under attack,” the American Library Association
announced in a public statement.
283
Private groups and public authorities in various parts of the coun-
try are working to remove books from sale, to censor textbooks,
to label “controversial” books, to distribute lists of “objectionable”
books or authors, and to purge libraries. These actions apparently
rise from a view that our national tradition of free expression is no
longer valid; that censorship and suppression are needed to avoid
the subversion of politics and the corruption of morals.
284
Some of the “decency” reformers, while supporting government restrictions on
publications, were uncomfortable with more aggressive forms of official control,
such as the “police threat” or review board systems. In the context of the early Cold
War, the public was highly sensitive to restrictions on speech that could be seen as
totalitarian or undemocratic.
285
Many of the so-called “decency advocates” main-
tained that bans on publications were a last resort; self-regulation by publishers, lia-
bility for libel and obscenity, and pressure on newsdealers were preferred alternatives
to “precensorship.”
286
If “good citizens . . . get a cleanup of newsstands without
censorship, they will be satisfied,” wrote the author Margaret Culkin Banning, one
280
Censorship Called Threat, N.Y. TIMES, Mar. 15, 1953, at 54.
281
Schumach, supra note 218, at E7.
282
Id.
283
The Freedom to Read, 47 AM. LIBR. ASS’N. BULL. 481 (1953).
284
Id.
285
In the 1950s, “references to totalitarianism cropped up with particular frequency in the
litigation surrounding restrictions on expression,” observed legal historian Reuel Schiller.
Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of
the Modern First Amendment, 86 VA. L. REV. 1, 82 (2000). Litigants in free speech cases
“often reminded the courts that such an action was typical of the behavior of totalitarian
governments.” Id.
286
See generally H.R. REP. NO. 2510, at 81–84 (1952) (testimony of Joseph Carlino,
Chairman, Joint Legislative Committee to Study the Publication of Comics).
150 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
of the leaders of the “decency” movement.
287
Otherwise government restraint “is on
its way.”
288
The desire to restrain objectionable material, and simultaneous concern with
more overt forms of repression, can be seen in the work of the Gathings Committee.
In May 1952, the House of Representatives created a Select Committee on Current
Pornographic Materials “to determine the extent to which current literature—books,
magazines, and comic books—containing immoral, obscene, or otherwise offensive
matter . . . are being made available to the people of the United States” and the “ade-
quacy of existing law to prevent the[ir] publication and distribution.”
289
“In Decem-
ber 1952, the Committee filed its report.”
290
It disavowed prior restraints—“[t]here
are other means of handling this problem than by the ban of the censor, means which
can be applied without danger of infringing on the freedom of the press . . . .”
291
The
Committee instead called on publishers to eliminate, on their own initiative, “border-
line” and “objectionable” literature,
292
recommended the enactment of federal legis-
lation to prohibit interstate transportation of obscene literature by private carriers, and
“[g]ranting authority for the Post Office to impound mail addressed to merchants of
pornography and pertaining to the sale of obscene material.”
293
While some conservative reformers were uneasy about more authoritarian re-
straints on expression, civil libertarians were not entirely opposed to government
restrictions on publishing. The American Civil Liberties Union was the nation’s fore-
most defender of free speech, noted for litigating the rights of unpopular speakers
from socialists and anarchists to nudists.
294
The ACLU opposed prior restraints or
“precensorship”—the “essence of censorship”
295
—but it was not yet “absolutist” on
speech, as it would become in later years. It accepted the Supreme Court’s position
that libel and obscenity were not included in the First Amendment, and political theo-
rist “Alexander Meikeljohn’s distinction between political speech, which enjoyed
full protection, and other forms of expression.”
296
Though it discouraged obscenity
prosecutions, expressed concerns about vague definitions of obscenity in statutes and
judicial opinions, and believed that matters of taste and morals were better worked out
in the marketplace of ideas than legislatures and courts, ACLU leaders believed that
287
Banning, supra note 206, at 119.
288
Id.
289
H.R. RES. 596, 82nd Cong. (1952) (enacted).
290
MURPHY, supra note 8, at 93.
291
H.R. REP. NO. 2510, at 5 (1952).
292
Larrabee, supra note 220, at 678.
293
MURPHY, supra note 8, at 94; see also Bernard DeVoto, The Easy Chair: The Case of
the Censorious Congressmen, HARPER’S, Apr. 1953, at 44.
294
For a history of the ACLU’s activism in the postwar period, see generally SAMUEL
WALKER, IN DEFENSE OF AMERICAN LIBERTIES: A HISTORY OF THE ACLU 173–257 (S. Ill.
Univ. Press 2d ed. 1999).
295
Near v. Minnesota, 283 U.S. 697, 713 (1931).
296
WALKER, supra note 294, at 228; see also H.R. REP. NO. 2510, at 111.
2016] THE MOST LOVED, MOST HATED MAGAZINE 151
a workable legal definition of obscenity could be achieved and that obscene material
deserved less protection than other forms of speech.
297
The ACLU’s “primary goal” since the 1920s, writes historian Samuel Walker, was
to transfer “[c]ensorship powers . . . from government bureaucrats to the courts for
a judicial hearing.”
298
Wrote the ACLU’s Alan Reitman in 1955:
If reading matter is obscene it can be prosecuted under the law,
in an orderly manner, and a court and a jury can decide the facts
of the case. This is vastly superior to the idea of a single govern-
ment administrator or agency selecting what magazines should
be read by the people.
299
“Pressure groups” and government review boards operated without principle or process:
[a]n overzealous American Legion post, a D.A.R. chapter, a reli-
gious or national group, or even an individual may feel so antago-
nistic toward . . . another faith or philosophy that it would deprive
everyone else of the opportunity to read about them. They do not
apply the “clear and present danger” principle; in fact, they apply
no rational principle at all but act from a deeply felt emotion.
300
III. THE WAR ON CONFIDENTIAL
By 1955, Robert Harrison and his associates faced a massive, nationwide legal
assault. Confidential’s opponents sought postal bans on the magazine, filed lawsuits
for libel, brought obscenity prosecutions, and proposed legislation that would crim-
inalize publishing and selling a “scandal magazine.” The attack on Confidential rep-
resented one of the most extensive legal campaigns against a magazine in American
publishing history.
A. The Post Office
The Post Office Department launched one of the first major attacks on Confi-
dential in 1955.
301
Under the Comstock Act of 1873,
302
the Postmaster General had
297
See WALKER, supra note 294, at 228, 233.
298
Id. at 228.
299
Letter from Alan Reitman to the Reporter and Confidential (Nov. 1, 1955), ACLU
Papers, Mudd Library, Princeton University (on file with author).
300
Leon Carnovsky, The Obligations and Responsibilities of the Librarian Concerning
Censorship, 20 LIBR. Q.: INFO., COMMUNITY, POL’Y 21, 25 (1950).
301
Confidential Fights Order Barring Mails to Magazine, HARTFORD COURANT, Sept. 10,
1955, at 8 [hereinafter Confidential Fights].
302
Comstock Act, ch. 258, 17 Stat. 598 (1873) (repealed 1909).
152 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
the power to prohibit “obscene” or “immoral” publications from the mails.
303
This
prerogative, the Supreme Court concluded, did not violate the First Amendment, as
Congress’s power to establish a postal system, granted by the Constitution, gave it
near-absolute authority of the mails.
304
In the early 1950s, the conservative, hyper-
vigilant Postmaster General Arthur Summerfield announced a “‘clean up the mails’
campaign designed to block a rising tide of obscene books, magazines and similar
material.”
305
Summerfield claimed that his staff had been recently faced with a seventy-
three percent increase in “pornographic magazines and books.”
306
The Postal-Inspection
Department was receiving 700 letters a day “from parents protesting the corrupting
of their children and demanding [that the Post Office take] action.”
307
Summerfield be-
lieved that “material should be barred from the mails if it violate[d] . . . ‘the “ordinary
standard of common decency of average representative citizens,”’” and that “‘abysmal
ignorance’ [was] displayed by those who cr[ied] ‘censorship’” when risqué material
was banned from the mail.
308
On August 27, 1955, Summerfield issued a “withhold from dispatch” order bar-
ring the November edition of Confidential from the mails.
309
The order instructed the
postmaster at Mt. Morris, Illinois, where the magazine was printed, to halt distribution
and to send copies to the Post Office Department in Washington for examination.
310
The Department claimed that it had received complaints from concerned citizens alleg-
ing that the magazine was “objectionable.”
311
Summerfield had also gotten frantic calls
from Hollywood executives, imploring him to take action.
312
No one in the Post Office
Department had seen a copy of the November edition before issuing the order.
313
The
Department made no official announcement of the order and did not offer Harrison
a hearing to contest it.
314
The Post Office Department had recently come under criticism for its arbitrary
mail ban procedures.
315
Under existing procedures, when the Postmaster General
303
Schiller, supra note 285, at 38.
304
Id. at 39 (citing In re Rapier, 143 U.S. 110, 134 (1892)).
305
Public Help Sought in Clean Mail Drive, BRIDGEPORT POST (Conn.), Mar. 17, 1955, at 6.
306
Id.
307
Rackets: The Spread of Smut, NEWSWEEK, Apr. 27, 1959, at 36, 41.
308
Public Help Sought in Clean Mail Drive, supra note 305, at 6.
309
Confidential Fights, supra note 301, at 8D (internal quotation marks omitted).
310
Id.
311
Magazine’s Suit Seeks to Block Postal Ban, WASH. POST, Sept. 10, 1955, at 40.
312
See, e.g., Gehman, supra note 25, at 146. “Unless they take away that bastard Harrison’s
mailing privileges, this industry is done for,” one producer said to him. Id. (internal quotation
marks omitted).
313
EDWARD BENNETT WILLIAMS, ONE MAN’S FREEDOM 265 (1962).
314
Id.
315
See generally ZECHARIAH CHAFEE, JR., 1 GOVERNMENT AND MASS COMMUNICATIONS
276–366 (1947); Edward de Grazia, Obscenity and the Mail: A Study of Administrative
Restraint, 20 LAW & CONTEMP. PROBS. 608, 608–09 (1955); James C.N. Paul & Murray L.
Schwartz, Obscenity in the Mails: A Comment on Some Problems of Federal Censorship,
2016] THE MOST LOVED, MOST HATED MAGAZINE 153
determined that material was obscene, he notified the local postmaster not to carry
it.
316
The mailer was notified and given a short time to contact the Post Office Depart-
ment to object.
317
In the meantime, the publication was not delivered.
318
If the sender
did protest, he could argue only to the lawyers who had decided initially against him,
and there was no appeal.
319
On issues of fact and the application of statutory stan-
dards like “obscene” to the facts, the determination of the Postmaster General and
his subordinates was treated as final.
320
In 1945, this practice was deemed illegal by the U.S. Court of Appeals for the
District of Columbia.
321
The court held that the Post Office Department must provide
open, formal hearings before an adjudicator who had not already decided the case
against the mailer.
322
The Post Office ignored the decision.
323
Then, a year later, Con-
gress adopted the Administrative Procedure Act,
324
which required that any agency
determination must be preceded by a hearing with notice and opportunity to present
evidence and cross-examine adverse witnesses.
325
The Post Office refused to apply
the Act’s provisions to postal proceedings, claiming that if it applied, every “disap-
pointed purveyor of obscenity” could force them to undergo a “time-consuming,
expensive administrative hearing,” and that if material could still be mailed while
a hearing was under way, the effectiveness of a mail ban would be vitiated.
326
This was where things stood when Robert Harrison called on the famed criminal
defense lawyer Edward Bennett Williams, who had recently represented Senator
Joseph McCarthy in his Senate censure hearings.
327
In September 1955, Williams,
106 U. PA. L. REV. 214 (1957) [hereinafter Problems of Federal Censorship]; Harvey Lyle
Zuckerman, Obscenity in the Mails, 33 S. CAL. L. REV. 171 (1960); Comment, Obscenity and
the Post Office: Removal from the Mail under Section 1461, 27 U. CHI. L. REV. 354 (1960).
316
JAMES C.N. PAUL & MURRAY L. SCHWARTZ, FEDERAL CENSORSHIP: OBSCENITY IN THE
MAIL 94 (Greenwood Press 1977).
317
Id. at 92.
318
Id.
319
Id. at 94.
320
See CHAFEE, supra note 315, at 316–17.
321
Walker v. Popenoe, 149 F.2d 511, 513 (D.C. Cir. 1945); Zuckerman, supra note 315,
at 177–78.
322
Walker, 149 F.2d at 513.
323
de Grazia, supra note 315, at 610.
324
Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551 et
seq. (2012)).
325
5 U.S.C. § 556(d).
326
PAUL & SCHWARTZ, supra note 316, at 96.
327
WILLIAMS, supra note 313, at 266; Confidential Fights, supra note 301, at 80. Said
Williams,
It seemed to me that the action of the Post Office Department constituted
a shocking abridgement of freedom of expression . . . .
If the Postmaster General could bar Confidential from the mails
without notice, without charges and without a hearing he could do the
154 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
a noted civil libertarian and defender of free speech, helped Harrison file suit against
Postmaster General Summerfield, asking for an injunction requiring the Post Office
to lift its ban, and claiming that the order violated the First Amendment, the Fifth
Amendment, and the Administrative Procedure Act.
328
“The First Amendment guar-
antees one thing minimally, and that is freedom from previous restraint, freedom from
prior censorship,” Williams said.
329
The ACLU issued a press release describing the
Post Office’s action as “unbridled censorship.”
330
“We offer no comment on the content of the articles pub-
lished in Confidential or the kind of journalism it reflects . . . .
However, as long as the First Amendment is to have meaning
and force with respect to the distribution of published material,
the Post Office has no right to pre-censor.”
“If a publication has violated the law, then it should be
properly charged and its case heard in a court of law. Under our
democratic system, we do not rely on individual Government
administrators to decide what material should be read by the
public.”
331
According to Williams, “Harrison swore in his complaint that he would be forced
to discontinue publication if the order remained in effect . . . .”
332
This claim was not
true, since most issues were sold to newsstands and delivered by truck,
333
and only
around 30,000 were sold by subscription.
334
same to any periodical. . . . I respected Arthur Summerfield, but I
didn’t think he or anyone else was qualified to be the literary dietitian
of America.
WILLIAMS, supra note 313, at 266.
328
Andrew W. Bingham, Inside Confidential, HARV. CRIMSON (Oct. 27, 1955),
http://www.thecrimson.com/article/1955/10/27/inside-confidential-pbob-harrison-publisher
-of/ [https://perma.cc/TN5J-JK4W]; Confidential Fights, supra note 301, at 8; Magazine’s
Suit Seeks to Block Postal Ban, supra note 311, at 40.
329
ROBERT PACK, EDWARD BENNETT WILLIAMS FOR THE DEFENSE 56 (1983) (internal
quotation marks omitted). Harrison alleged in his complaint that Confidential “has expended
substantial sums of money in carefully building up among the American public a valuable
reputation and good will for impartial, objective and fearless reporting of newsworthy
events.” Confidential Fights, supra note 301, at 8D (internal quotation marks omitted).
330
Press Release, ACLU (Sept. 23, 1955) (on file with author).
331
Liberties Union Protests Mailing Ban on Magazine, WASH. POST & TIMES HERALD,
Sept. 26, 1955, at 19.
332
WILLIAMS, supra note 313, at 266–67.
333
See supra note 124 and accompanying text.
334
Success in the Sewer, supra note 132, at 92.
2016] THE MOST LOVED, MOST HATED MAGAZINE 155
On October 7, 1955, Judge Luther Youngdahl of the U.S. District Court of the
District of Columbia ordered the Post Office to rescind the order.
335
He declared that
“to withhold [the magazine] from the mails without notice, charges and a hearing con-
stituted a violation of due process of law.”
336
Henceforth, if the Post Office considered
any issue nonmailable, it would have to notify the publisher, and an administrative
hearing would have to be held.
337
In order for the Post Office to bar Confidential from
the mails while the hearing was under way, it would have to obtain an injunction.
338
Voluntarily, in response to the Post Office’s request, Confidential agreed to submit
each successive issue to the Post Office Department for an informal review, within
24 hours after printing and binding.
339
Confidential’s lawyers described the decision as a triumph: “If the officials think
any particular issue is obscene, they must ask for a hearing and can’t interfere with the
distribution of that number,” Daniel Ross told reporters.
340
The victory was short-
lived, however. Harrison had just submitted the March issue to the Post Office for
review when it declared the issue “obscene, lewd, lascivious . . . filthy” and non-
mailable.
341
An article, The Pill that Ends Unwanted Pregnancy—a commentary on
a new antileukemia drug, aminopterin, that was being used by some doctors for ther-
apeutic abortions
342
—allegedly made the magazine not only obscene, but unfit for
mailing under a law that prohibited from the mails “[e]very paper, writing, advertise-
ment, or representation that any . . . drug, medicine, or thing may, or can, be used or
applied for . . . producing abortion . . . .”
343
The Post Office Department, after giving
Confidential only one hour’s notice, had gone to the federal district court and asked
for a temporary restraining order barring the issue from the mails.
344
In the hearing before Judge Joseph C. McGarraghy of the U.S. District Court
for the District of Columbia in January 1956, Williams cited Near v. Minnesota,
335
Bingham, supra note 328.
336
WILLIAMS, supra note 313, at 267.
337
Id. at 268.
338
Id.
339
Confidential Wins a Round, TIME, Oct. 17, 1955, at 91. Under the agreement, Confidential
should not begin to ship the magazine in any way, that is whether by
freight, or express, or truck, or mail, until the Postmaster General had . . .
opportunity to check it; and if the Postmaster . . . did find any fault with
any particular issue, he had to go into court and convince the court to
that effect.
7 Transcript of Record (Aug. 19, 1957), supra note 27, at 874.
340
Bingham, supra note 328 (internal quotation marks omitted).
341
PACK, supra note 329, at 57 (internal quotation marks omitted).
342
SCOTT, supra note 3, at 103; Confidential Revisited, TIME, Mar. 18, 1957, at 76, 76.
343
18 U.S.C. § 1461 (1952).
344
The district court issued a restraining order, and the Court of Appeals refused to stay
it. “The government came back into court . . . seeking to convert its temporary restraining
order into a preliminary injunction.” Confidential Case, Feb. 17, 1956, ACLU Papers, Mudd
Library, Princeton University.
156 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
prohibiting prior restraints under the First Amendment.
345
For Williams, Near stood
for the proposition that “the appropriate remedial action is not injunction, but it is
subsequent punishment.”
346
In the point that ultimately settled the case, Williams
told McGarraghy that the Post Office was trying to ban Confidential by filing a mo-
tion in a case that had been dismissed three months earlier by Judge Youngdahl.
347
McGarraghy turned down the Post Office’s motion for a preliminary injunction.
348
The temporary restraining order lapsed, and Confidential was mailed on schedule.
349
The Confidential decision had impact: in 1959, the Post Office Department promul-
gated regulations consistent with the decision.
350
The regulations provided that the
mailers of allegedly obscene material must receive notice from the Post Office
Department of the charges against them, must have the opportunity to answer the
345
PACK, supra note 329, at 57 (citing Near v. Minnesota, 283 U.S. 697 (1931)).
346
Id. (internal quotation marks omitted).
347
“Your honor, . . . I must call your attention to the fact that . . . it is basic hornbook law
that one cannot use as a vehicle for obtaining injunctive relief a case that has been dismissed
from the dockets of the Court.” Id. at 59 (internal quotation marks omitted).
348
Another Attempt To Bar Magazine Is Refused, HARTFORD COURANT, Jan. 5, 1956, at
4B; Magazine Wins Round with P.O. on “Obscenity,” WASH. POST & TIMES HERALD, Jan. 5,
1956, at 21.
349
Magazine Wins Round with P.O. on “Obscenity,” supra note 348, at 21. Shortly after-
wards, on January 13, 1956, the Post Office tried to appeal “Youngdahl’s order claiming that
it [was] inequitable and that the Mailability Section of the Post Office Department cannot live
under it.” Confidential Case, supra note 344, at 3. They asked to again be allowed to bar
periodicals which they deemed nonmailable without a hearing and a court order. The ACLU
sent a letter to postal officials urging them to drop their appeal:
“Under our democratic form of government . . . censorship and
denial of due process of law are abhorrent. . . . The reasons for . . . our
repeated protests concerning the Post Office Dept.’s power is the con-
cern that a serious abuse of power, which denies civil liberties, results
from the Dept.’s action. . . . Pre-publication censorship is the mark of
totalitarianism and our country is vigorously challenging this kind of
attack on the press in Iron Curtain countries. Yet should we imitate it
in our democracy?”
“Our concern about the civil liberties issues in the [Confidential] case
should not be construed as support for the content of the magazine or
the kind of journalism it represents. We are disturbed only by the wide-
reaching implications of the Post Office Dept.’s action, and for this reason
we again urge that it reconsider its appeal of Judge Youngdahl’s order.”
Press Release, ACLU (Feb. 24, 1956) (on file with author).
Youngdahl did not revise his order. “I am informed by the Assistant United States Attor-
ney in charge of the Confidential case that your release created quite a stir inside the Post
Office Department—all to the good[,]” Williams wrote to the ACLU’s Alan Reitman. Letter
from Edward Bennett Williams to Alan Reitman, Assistant Dir., ACLU (Mar. 1, 1956) (on
file with author).
350
See Zuckerman, supra note 315, at 178.
2016] THE MOST LOVED, MOST HATED MAGAZINE 157
charges and to seek an informal compromise with the Department, and the right to
a fair hearing.
351
B. Confidential’s Allies
Despite its millions of readers, Confidential “had few friends,” observed Edward
Bennett Williams.
352
Though ACLU leaders made clear they found the magazine
distasteful and offensive, the ACLU was Confidential’s only real legal ally, having
embarked on an extensive campaign against censorship through its National Council
on Freedom from Censorship (NCFC),
353
an affiliate of the national ACLU.
354
In
1955, the executive director of the ACLU Patrick Murphy Malin monitored Con-
fidential’s legal entanglements through newspaper accounts and reports from ACLU
members.
355
They also cultivated a connection with Confidential editor Howard
Rushmore, who kept them informed of government and “pressure group” efforts
against the magazine.
356
The mainstream press, historically one of the most vocal advocates of freedom
of the press, had a conflicted relationship with Confidential. A few journalists and
press organizations came to Confidential’s aid in its battles with the Post Office. The
Postmaster General’s order was easy to criticize; a prior restraint, a mail ban was
censorship in its purest form. “Can the Post Office Department, without a hearing,
bar [Confidential] from the mails?” asked Ed Creach of the Associated Press, “If
so, couldn’t any other publication be similarly barred?”
357
“Precensorship invites
arbitrariness and encourages . . . the sort of disregard for due process displayed by
Mr. Summerfield in regard to Confidential.”
358
Yet others in the publishing world supported the Post Office’s actions against
Confidential. At a time when the mainstream press was itself under attack—accused
of inaccuracy, bias, and sensationalism
359
—journalists sought to distance themselves
from Harrison’s sleazy operations. Several publishers denied that Confidential had
the same First Amendment rights as traditional news publications. When it came to
351
39 C.F.R. §§ 203.2–14 (Supp. 1959); Zuckerman, supra note 315, at 178.
352
WILLIAMS, supra note 313, at 264.
353
WALKER, supra note 294, at 228.
354
See Censorship Curb on Books Is Seen: More Authors Are Suffering in U.S. Because
of Political Views, Group Hears, N.Y. TIMES, May 10, 1951, at 7; New Group Planned to Fight
Censorship, N.Y. TIMES, May 22, 1948, at 5 (covering a meeting called by the Council).
355
Letter from Alan Reitman, Assistant Director, ACLU, to Victor Lasky (Aug. 9, 1955)
(on file with author).
356
Id.
357
Confidential Case Arouses Some Editors, CORPUS CHRISTI TIMES, Oct. 22, 1955, at 3.
358
Editorial, Holding Up the Mail, WASH. POST & TIMES HERALD, Sept. 30, 1955, at 20.
359
See, e.g., Editorial, War on Slander, DELTA DEMOCRAT-TIMES (Greenville, Miss.),
June 2, 1957 [hereinafter War on Slander].
158 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
scandal magazines, “censorship [was] a benefit rather than a handicap,” wrote one
editor.
360
“[C]ensorship of publications which thrive on gossip, tearing down reputations
and libeling individuals cannot be argued against,” claimed one student newspaper.
361
In 1955 the magazine The Reporter, usually known for its liberal, progressive posi-
tions, published an editorial in favor of the Post Office ban on Confidential.
362
We cannot agree with [those] who, as soon as something like the
attempted suppression of Confidential occurs, intone the old
Voltaire singsong: “I disapprove of what you say, but I will de-
fend to the death your right to say it.” As a matter of fact, we
cannot imagine ourselves dying for Confidential.
363
Publications like Confidential gave “a bad name to journalism as a profession,” and
were “through their extreme sensationalism endangering a basic principle of freedom
of the press.”
364
C. State and Local Attacks
1. Pressure Groups and Obscenity Prosecutions
Between 1955 and 1957, citizens’ groups across the country pressured booksellers
and newsstands to stop the sale of Confidential.
365
Confidential was on several lists
of “disapproved” periodicals that were given to newsdealers with a demand that they
be taken off sale.
366
Irving Ferman, head of the Washington ACLU, was an “avid
reader” of Confidential.
367
In August 1955, when he went to purchase it from a drug-
store, he was told that it was no longer sold there.
368
A local organization “had ap-
proached the druggist and threatened to boycott the store if he continued to sell
360
Editorial, Stock in Scandal, CHARLESTOWN COURIER (Ind.), Feb. 21, 1957.
361
Editorial, A Perspectus of Publications, DAILY TAR HEEL (Chapel Hill, N.C.), May 15,
1957, at 2.
362
Confidentially, REPORTER, Nov. 3, 1955, at 6.
363
Id. at 6. The ACLU responded with a curt letter: “The American Civil Liberties Union
disagrees with your comment. In our opinion it cuts across the civil liberties framework
which [The Reporter] itself laudably has defended on numerous occasions, and which is the
basis of our American democracy.” Memorandum from Alan Reitman on The Reporter and
Confidential (Nov. 1, 1955) (on file with author).
364
War on Slander, supra note 359.
365
On these censorship “pressure groups,” see Farmer, supra note 233; Hempel & Wall,
supra note 230; Censorship of Obscene Literature, supra note 192.
366
Slugging the “Exposé” Magazines, supra note 235, at 75.
367
Letter from Victor Lasky to Patrick Murphy Malin, Exec. Dir., ACLU (Aug. 5, 1955)
(on file with author).
368
Id.
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[Confidential].”
369
“[C]itizens’ groups . . . have begun to exert ‘book-burning’ pres-
sure aimed at preventing sales of [Confidential],” newspaper columnist Victor Lasky
warned ACLU leaders.
370
“I am no devotee of [Confidential]; but . . . I am troubled by
some of the methods being employed by well-meaning citizens in their efforts to put
[Confidential] out of business.”
371
Urged by civic and religious groups, police and prosecutors seized copies of Con-
fidential and threatened retailers with obscenity prosecutions and the loss of their
licenses if they sold it.
372
In 1957, nineteen magazines, including Confidential, were
named as “objectionable” in Baton Rouge in a warning to dealers from the district
attorney.
373
In several jurisdictions, Confidential was targeted by official literature re-
view boards.
374
A Burlington, New Jersey, Literary Control Board banned Confidential
and twenty-six other magazines.
375
The police chief and his department were authorized
to arrest dealers who sold banned material and to bring them to trial.
376
In November
1957, the North Carolina Sheriff’s Association put fifty-one “objectionable” publi-
cations on a list, including Confidential.
377
In Knoxville, the City Board of Review
banned issues of magazines containing “offensive text,” including Confidential, and
secured the agreement of city’s two main magazine distributors “not to distribute
anything banned.”
378
Civil liberties groups condemned these measures as unconstitutional prior
restraints. The American Library Association described official and unofficial “liter-
ature committees” as unconstitutional, leaving newsdealers and booksellers “without
recourse to the courts or to any due process of law.”
379
“The current censorship
movement is characterized by voluntary or semi-official ‘literature committees’ and
by law enforcement officers operating extra-legally,” observed a critic from the
American Library Association.
380
“The more extortionary of these police practices
[were] prior restraints on a free press.”
381
The Bar Association of the City of New
369
Id.
370
Id.
371
Id.
372
See, e.g., Kay Blincoe, Burlington Eases Ban on Magazine If It Toes Line, BRISTOL
DAILY COURIER, March 27, 1957, at 1; War on Slander, supra note 359.
373
War on Slander, supra note 359.
374
See, e.g., Burlington Places Ban on 9 Magazines, COURIER POST (N.J.), Apr. 2, 1957,
at 26; Whit Whitfield, Lewd and Lascivious? Or Puritanical Prowess, DAILY TAR HEEL
(N.C.), Nov. 9, 1957, at 2.
375
Burlington Places Ban on 9 Magazines, supra note 374, at 26.
376
Blincoe, supra note 372, at 1.
377
Whitfield, supra note 374, at 2.
378
City Bans Six Mags to Keep Knox ‘Pure,’ KINGSPORT TIMES (Tenn.), Feb. 6, 1957, at
15 (internal quotation marks omitted).
379
Waller, supra note 200, at 475.
380
Id.
381
Crime Comics and the Constitution, supra note 223, at 244.
160 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
York issued a statement protesting “pressure-group tactics” against books and
magazines: when “one group within the community is compelling the balance of the
community to conform to its standards[,] . . . censorship [is] exercised[.] [S]ince it
is that of a private group, [it] is without the benefit of the procedural safeguards
established by law.”
382
In some jurisdictions, formal obscenity charges were brought against Con-
fidential,
383
but threats of prosecution were more common than actual prosecu-
tions.
384
The publicity surrounding an obscenity trial only increased demand for
the material, and prosecutions were costly and likely to be unsuccessful.
385
The legal
definition of obscenity in most states was amorphous and elastic; obscenity was
what was “disgusting, filthy, indecent, immoral, improper, impure, lascivious,
lewd, licentious, [or] vulgar.”
386
Even in conservative jurisdictions, there was
382
Bolte, supra note 216, at 93. Newsdealers and publishers brought court actions against
“pressure-group censorship” and “police censorship” and were successful in some cases.
Waller, supra note 200, at 475–76. In Youngstown, Ohio, a publisher sought an injunction
in federal district court against the police chief, who screened and banned objectionable
publications. New Am. Library of World Literature v. Allen, 114 F. Supp. 823, 825 (N.D.
Ohio 1953). The judge sided with the publisher, declaring that the police chief’s actions were
invalid as an arbitrary exercise of power and a violation of due process. Id. at 832–34. A similar
case in New Jersey resulted in an injunction against the police. Bantam Books v. Melko, 96
A.2d 47, 63 (N.J. Super. Ct. Ch. Div. 1953), modified, 103 A.2d 256 (N.J. 1954). The
“decision should give pause to all would-be censors,” said Walter Pitkin, Executive Vice
President of Bantam Books. Walter Pitkin, Jr., Letter to the Editor, To Defeat Censorship:
Affirmation of Press Freedom Seen in Recent Ruling on Books, N.Y. TIMES, Apr. 15, 1953,
at 30. “This important decision reaffirms the liberty of the press which the First Amendment
guarantees.” Id.
383
Infra notes 388–402 and accompanying text.
384
Cf. Note, Regulation of Comic Books, 68 HARV. L. REV. 489, 494–99 (1955) (providing
an overview of informal censorship tactics used by police and prosecutors). According to one
law review article, there were “very few” criminal prosecutions under obscene literature
ordinances and statutes. Lockhart & McClure, supra note 236, at 309.
385
Lockhart & McClure, supra note 236, at 309.
[T]hose anxious to suppress [material] that offend[s] them [were] reluc-
tant to use the normal and traditional legal procedure . . . . A judicial
proceeding is a public affair in which the merits as well as the demerits
of a questioned book may be considered, in which those interested in the
preservation of a free literature as well as the censorious may be heard.
Id.
386
Id. at 323. “In the forty-seven states where statutes relating to obscenity exist[ed], all
but six define[d] it by adding one or more of the following words: disgusting, filthy, indecent,
immoral, improper, impure, lascivious, lewd, licentious, [or] vulgar.” Larrabee, supra note
220, at 674 (quoting id.).
Prior to the 1930s, the leading judicial definition of obscenity came from the English case
Regina v. Hicklin; the test of obscenity was whether “the tendency of the [matter charged as
obscene] to deprave or corrupt any whose minds are open to immoral influence”—namely,
2016] THE MOST LOVED, MOST HATED MAGAZINE 161
often significant disagreement as to what was obscene, indecent, lustful, impure,
or lewd.
387
In 1957, Confidential and its distributors faced obscenity charges in New Jersey
and New York.
388
Following a five-month investigation in Albany, two book and
magazine distributors were charged with distributing obscene literature, including
Confidential.
389
In New Jersey, the publishers and distributors of Confidential and
six men’s magazines were indicted on charges of conspiracy to violate a law forbid-
ding the sale of indecent literature.
390
The action followed complaints by the mother
of a nine-year-old boy, who said her son had brought two of the magazines home.
391
The judge agreed to place Confidential on probation when its lawyers promised that
the magazine would “eliminate expos[é] stories on the private lives of celebrities”
and become as innocuous as “the Saturday Evening Post.”
392
In early 1957, Confidential and its Illinois publisher, the Kable Company, were in-
dicted under the federal obscenity statute,
393
which prohibited mailing any “obscene,
lewd, lascivious . . . article, matter, [or] thing . . . intended for preventing contraception
or producing abortion . . . .”
394
The charges, noted the Hartford Courant, “typif[ied]
those that people of conscience [had] wished on the magazine for years.”
395
The
indictment was based on the March 1956 article, “The Pill that Ends Unwanted
children. Lockhart & McClure, supra note 236, at 394. By the 1950s, most courts had
abandoned that standard; newer tests—albeit vague and poorly defined—looked at the effect
of material on normal adults, whether it incited “lustful thoughts” or “stir[red] the sex
impulses.” Id. at 329–30 (describing the various phrases courts used to describe obscene
material); see also Roth v. United States, 354 U.S. 476, 487 (1957) (“Obscene material is
material which deals with sex in a manner appealing to prurient interest.”).
387
See Times Film Corp. v. Chicago, 365 U.S. 43, 69–73 (1961) (Warren, C.J., dis-
senting) (discussing the disparity of censorship standards in various U.S. cities for films).
Edward Bennett Williams believed that Confidential could not be considered obscene under
any existing test; it was not “hard-core pornography,” did not appeal to “prurient interests,”
and “did not tend to excite lustful thoughts and desires in the normal reader.” WILLIAMS,
supra note 313, at 280.
388
Confidential, 6 Other Publishers Indicted: New Jersey Charges Magazines with Plot
to Sell Indecent Literature, L.A. TIMES, Apr. 30, 1957, at 7.
389
Memorandum from Alan Reitman, ACLU, to Censorship Panel (Dec. 13, 1957) (on
file with author).
390
Publishers of Seven Spicy Magazines Are Indicted, SAN BERNARDINO DAILY SUN,
Apr. 30, 1957, at 6.
391
7 Magazines Face Charges of Indecency, KINGSPORT TIMES, Apr. 30, 1957, at 1.
392
Confidential Magazine Has No Defense Plea to Charge, LUBBOCK MORNING
AVALANCHE (Tex.), Dec. 18, 1957, at 11 (internal quotation marks omitted).
393
Confidential Indicted: Magazine Accused of Mailing Abortion Information, N.Y.
TIMES, Mar. 8, 1957, at 23; U.S. Judge Rips Magazine, but Drops Charge, CHI. DAILY
TRIBUNE, June 7, 1957, at C13.
394
18 U.S.C. § 1461 (1952 & Supp. IV 1956).
395
A Federal Court Bears Down on Confidential, HARTFORD COURANT, Mar. 9, 1957, at 8.
162 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
Pregnancy.”
396
Confidential’s attorney described the article as a warning against the
use of the pill,
397
but the indictment said the story gave information on how abortions
could be produced.
398
In a statement reprinted widely in the press, Judge Joseph Sam Perry of the U.S.
District Court for the Northern District of Illinois described Confidential as a maga-
zine that is “a purveyor of social sewage.”
399
Confidential was “like a bad boy and
ought to be whipped for that.”
400
He proceeded to find that Confidential was not
legally obscene, and he dismissed the indictment.
401
Confidential’s attorney “hailed
the ruling as upholding the constitutional guarantee of freedom of the press.”
402
2. “Anti-Scandal” Legislation
With Confidential and other “exposé magazines” in mind, many state legisla-
tures considered bills dealing with “indecent literature,” and several states expanded
the definition of obscenity in existing laws to cover scandal magazines. The North
Carolina legislature granted a local judge the authority to ban “publications which
he deem[ed] unfit for public consumption.”
403
“The legislation [was] aimed at curbing
[Confidential and] the [other] sex and scandal magazines which have flooded the
newsstands in recent years,” reported the Daily Tar Heel.
404
Vermont considered a law that would impose fines “with possible jail terms . . .
for persons who provide minors with corruptive literature,” including Confidential.
405
In 1957, Oklahoma passed a law, aimed at Confidential, to create “a censorship board
to ban ‘obscene literature on the newsstands.’”
406
The New York Assembly proposed
396
Confidential Magazine is Indicted, INDIANAPOLIS STAR, Mar. 8, 1957, at 23.
397
Kable Co., Confidential Acquitted, FREEPORT J.-STANDARD (Ill.), June 7, 1957, at 1.
398
Confidential Magazine is Indicted, supra note 396, at 1.
399
Kable Co., Confidential Acquitted, supra note 397, at 1 (internal quotation marks
omitted).
400
Id. (internal quotation marks omitted).
401
United States v. Confidential, No. 57 CR 163 (N.D. Ill. June 6, 1957) (on file with
author); Kable Co., Confidential Acquitted, supra note 397, at 1.
402
Find Confidential ‘Not Guilty’ of Obscenity Charge, ANDERSON HERALD (Ind.),
June 7, 1957, at 25.
403
George W. Wolff, Censorship and Civil Liberty, DAILY TAR HEEL (N.C.), May 21,
1957, at 2.
404
Id.
405
Crackdown: Sale of Corruptive Literature to Minors Now Illegal; State is Preparing
to Enforce Law, BENNINGTON EVENING BANNER (Vt.), July 23, 1957, at 1. “Covered under
the [law were] magazines and printed matter ‘tending to the corruption of the morals of
youth’ because of obscenity, or ‘devoted to the publication of criminal news, police reports,
criminal deeds or horror situations.’” Id.
406
Bill Crawford, Did Lack of Parental Supervision in Reading Create Censor Board?,
LAWTON CONST., June 13, 1957, at 15. The bill was met with opposition from Oklahoma
Press Association officials, who denounced it as a violation of freedom of the press. Id.
2016] THE MOST LOVED, MOST HATED MAGAZINE 163
measures to “curb traffic in sexy ‘girlie’ magazines.”
407
One of the bills would re-
strict “tie-in sales,” in which magazine distributors forced newsstands “to handle sex
and ‘expos[é]’ magazines” to obtain standard magazines,
408
which was a common
distribution practice at the time.
409
A similar bill was passed in Idaho.
410
Declaring
that the “traffic in immoral publications . . . creates an emergency,” a bill was intro-
duced in Texas in 1953 that would penalize the publishers of printed matter devoted
to “scandals, whoring, [and] lechery.”
411
In 1957, Illinois proposed one of the most far-reaching legislative measures
against Confidential.
412
That May, the state Senate approved an “exposé type of pub-
lication bill” that prohibited the “sale, distribution, lending, or giving away of publi-
cations which are devoted primarily to the publication of information concerning
improper, indecent, or scandalous marital, sexual, moral and social conduct and
behavior of well-known personalities . . . .”
413
Any person who willfully or know-
ingly sold, distributed, or possessed any “exposé-type of publication” would be guilty
of a misdemeanor, punishable by a fine or by imprisonment in a county jail.
414
The
407
Assembly Passes Two Bills to Curb Obscene Matter, TROY REC. (N.Y.), Mar. 7, 1957,
at 1.
408
Id. (internal quotation marks omitted).
409
Regulation of Comic Books, supra note 384, at 502.
410
Banning, supra note 206, at 118. The bill “in the state legislature provid[ed] for
punishment of any person or firm which should ‘require a retail dealer to take all or certain
groups of such publications at the sole discretion of [the] distributor.’” Id. at 118; see also
1951 Idaho Sess. Laws 421.
411
S.B. 105, 48th Leg. Reg. Sess. (Tex. 1953).
412
See Bill Would Ban ‘Expose’ Magazines, ALTON EVENING TELEGRAPH, May 21, 1957,
at 10.
413
An “exposé type of publication” included
books, pamphlet [sic], magazines, periodicals and other publications
which are devoted primarily to the publication of information concerning
the lives, behavior and conduct of well-known personalities through the
exposé or revelation of incidents or information concerning improper,
indecent or scandalous marital, sexual, moral and social conduct and
behavior of such personalities; . . . .
S.B. 361, 70th Gen. Assemb. Reg. Sess. (Ill. 1957).
[T]he emphasis of such publications on sex, immorality, depravity,
scandalous conduct and, at times, even obscenity . . . causes irreparable
damage to the character and reputation of the subjects of such pub-
lications, [and] also endangers the public morals, stimulates lewd and
lascivious conduct, threatens basic concepts of decency and honesty,
improperly influences the ethical and moral development of youth, and
constitutes a threat to the fundamental concepts regarding the proper
ideals and principles of human conduct and behavior.
Id.
414
Id. There was also a “tie-up” provision:
Any person, firm or corporation, or any agent, officer or employee
thereof, engaged in the business of distributing books, magazines,
164 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
measure received the minimum thirty votes necessary for passage with thirteen op-
posed in the state senate. The Illinois House of Representatives opposed the bill
because it was a “dangerous step toward censorship.”
415
Even though the bill exempted news publications, the ACLU and several news-
paper publishers branded the measure as vague, overbroad, and unconstitutional.
416
“The Illinois Senate struck a low blow against freedom of the press this week when
it passed a bill aimed at the expos[é] types of magazines such as [Confidential],”
wrote the Alton Telegraph.
417
“It would be an initial movement to tell the press what
it must avoid in its published contents. . . . Soon the press would be operating in an
endless morass of censorship.”
418
The Chicago Tribune likened the measure to the
“gag law” invalidated in Near v. Minnesota, and cited the opinion by Justice Hughes
in that decision: “[s]ubsequent punishment for such abuses as may exist is the ap-
propriate remedy, consistent with constitutional privilege.”
419
The Illinois House of
Representatives tabled the bill on June 27, 1957.
420
D. Libel
Libel suits were often proposed as a remedy to the “Confidential problem”—
a means of bankrupting the magazine, compensating its victims, and avoiding the
periodicals or other publications to retail dealers who refuses to furnish
to any retail dealer such quantity of books, magazines, periodicals or
other publications as the retail dealer normally sells because said retail
dealer refuses to sell or offer for sale any expos[é] type of publication,
is guilty of a misdemeanor, and upon conviction thereof is punishable
by a fine of not less than $10 nor more than $100.
Id.
415
Stratton’s Program Made Big Strides Last Week, ALTON EVENING TELEGRAPH (Ill.),
May 22, 1957, at 23. A state senator who was a “publisher of a weekly newspaper, said the
bill was ‘bad, unconstitutional and unnecessary,’ [since] persons ‘pilloried in such “expose”
magazines’ . . . [had] recourse to libel laws.” Id.
416
See Illinois Law to Ban Lewd Literature Receives Challenge, TERRE HAUTE TRIBUNE-
STAR (Ind.), May 18, 1957, at 28. The director of the Illinois Division of the ACLU argued
that “the bill could not stand a single court test.” Id. (internal quotation marks omitted).
417
Editorial, Foot in Freedom’s Door, ALTON TELEGRAPH (Ill.), May 17, 1957, at 4.
418
Id. The bill “is as repugnant to the American concept of freedom of the press as the maga-
zines themselves . . . . While the scandal magazines may be reprehensible to most Americans,
legislation cannot put them out of business without threatening the freedom of all magazines
and newspapers. What is improper? Indecent? Scandalous?” Editorial, Confidential-ly, It’s
a Bad Law, SOUTHERN ILLINOISIAN, May 17, 1957, at 4.
419
The “Expose Magazine” Bill, CHI. DAILY TRIBUNE, May 17, 1957, at 14 (citing Near
v. Minnesota, 283 U.S. 697, 720 (1931)) (“The bill is unconstitutional and an infringement
of freedom of speech and of the press, no matter how offensive to good taste the publications
in question may be.”).
420
S.B. 361, 70th Gen. Assemb. Reg. Sess. (Ill. 1957).
2016] THE MOST LOVED, MOST HATED MAGAZINE 165
difficulties of prior restraints—but it was far from ideal. Most victims of Confidential
were reluctant to sue for libel.
421
“So you sue ‘em and it takes years to get into court.
Leave ‘em alone and it’s forgotten. People have forgotten it already,” observed actor
Gary Cooper.
422
“Filing a suit would only give [magazines] the publicity they want.
By the time the suit was tried, they’d get more in publicity than the judgment could
ever cost them,” commented Marlon Brando.
423
There were other difficulties with libel
suits: truth was a defense in libel cases, and much of what appeared in Confidential was
true.
424
In California, where most potential plaintiffs resided, statements of “defama-
tion by implication”—statements that were not defamatory on their face—were not
actionable without a showing of special damages.
425
By mid-1955, a few celebrities had filed libel suits against Confidential.
426
Errol
Flynn sued over two stories, one about an alleged two-way mirror in his bedroom and
another that said he’d walked out on his wife on their wedding night to sleep with
421
As one newspaper noted:
This question arises: Why are not these magazines sued out of
existence? For the simple reason that most public figures do not like to
bear the expense in publicity and popularity of a lengthy and filthy libel
suit. And it is difficult to litigate damages in any type [of] libel suit . . . .
There are hundreds of legal loopholes in libel statutes and libel cases are
among the most difficult to try. Criminal libel suits, for the most part,
would gain the victims nothing. So they bear the brunt of attacks and hope
their public is mature enough to hear the stories with an objective ear.
Pending suits against the publications merely increase their popularity.
The “expos[é]” magazines also play vulture to those public figures
who have previously been in trouble, knowing full well that once an
individual has a charge against him it is much more difficult to establish
a reputation that is damageable.
Editorial, Yellow Streaks in the Ink, D
AILY J.-GAZETTE AND COMM. STAR (Ill.), Feb. 6, 1956,
at 4.
422
Erskine Johnson, Hollywood Today, IRONWOOD DAILY GLOBE (Mich.), Dec. 8, 1955,
at 7. Harvard University declined to sue Confidential over accusations in the May 1953 issue,
in an article by Howard Rushmore titled “There’s Plenty of Red in the Harvard Crimson.”
J. Anthony Luk, Harvard Confidential: The Fourth Estate, H
ARV. CRIMSON (Mar. 11, 1954),
http://www.thecrimson.com/article/1954/3/11/harvard-confidential-plike-any-controversial
-public/ [https://perma.cc/3DMG-5YF2]. The article described Harvard as the center of “wide-
spread Communist infiltration.” Id. Officials declined to bring a libel case “and thus bring the
issue of Communism at Harvard into the newspapers again.” Id. It had been the university’s
policy “to ignore such articles, reasoning that the resultant publicity from a libel suit would
be far would be far [sic] worse for Harvard than the effect of one such article.” Id.
423
Brando Ignores Scandal Mags, TUCSON DAILY CITIZEN (Ariz.), July 20, 1957, at 10.
424
See supra notes 128–43 and accompanying text.
425
CAL. CIV. CODE § 45a (West 2016); see also Irwin O. Spiegel, Defamation by
Implication—In the Confidential Manner, 29 S. CAL. L. REV. 306, 316–20 (1956).
426
See generally SCOTT, supra note 3, at 122–25.
166 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
a prostitute.
427
In May 1955, Robert Mitchum sued for $1 million over an article,
Robert Mitchum . . . the Nude Who Came to Dinner,
428
that claimed that Mitchum
had appeared nude at a party, lathered with catsup, and told a roomful of guests,
“[t]his is a masquerade party, isn’t it? Well, I’m a hamburger . . . well done.”
429
Mitchum was represented by the famous, flamboyant Hollywood lawyer Jerry
Giesler.
430
Giesler was a longtime supporter of the film industry, and he saw Mitchum’s
suit as an opportunity to strike a blow against the magazine.
431
“Heretofore the cir-
culation of these [scandal] magazines has been rather small,” he said in a television
interview.
432
“But recently one of them in particular has grown to quite some dimen-
sion and because of that it cannot be ignored [any] longer. Therefore, people have to,
to protect their good name, come out and bring the action.”
433
“We’ll file civil suits
and criminal libel complaints. We’ll sue the publishers, the writers, the printers, the
distributors. . . . This smut is going to stop.”
434
In July 1955, actress Lizabeth Scott, represented by Giesler, sued over an article
implying that she was a lesbian, “prone to indecent, illegal and highly offensive acts
in her private and public life.”
435
Socialite and tobacco heiress Doris Duke, another
client of Giesler’s, sued for $3 million, claiming that an article in the May 1955
issue describing her as having an affair with a “[n]egro handyman and chauffeur,”
436
caused her “mental anguish, shame, and humiliation.”
437
Harrison was reported to
have been delighted by the court actions, which he regarded as “good publicity.”
438
“Not one of them will dare risk a jury trial,” he told his editors confidently.
439
The Mitchum, Duke, and Scott libel suits failed; Confidential was a New York
corporation and immune from suit in California.
440
More libel suits followed. Dennis
427
Flynn v. Confidential, Inc., 169 N.Y.S.2d 784, 785–86 (N.Y. Sup. Ct. 1957); Flynn v.
Confidential, Inc., 145 N.Y.S.2d 499 (N.Y. App. Div. 1955); Errol Flynn Sues Confidential
Magazine $1 Million for Libel, FREEPORT J.-STANDARD (Ill.), June 18, 1955, at 12.
428
Charles Jordan, Robert Mitchum . . . The Nude Who Came to Dinner, CONFIDENTIAL,
July 1955, at 18–19, reprinted in SCOTT, supra note 3, at 120–21.
429
Bob Mitchum Sues Magazine, PLAIN SPEAKER (Pa.), May 10, 1955, at 23; accord LEE
SERVER, ROBERT MITCHUM: “BABY I DON’T CARE” 287–88 (1st ed. 2001).
430
SCOTT, supra note 3, at 122.
431
Id.
432
Id. (internal quotation marks omitted).
433
Id. (internal quotation marks omitted).
434
Id. at 123 (internal quotation marks omitted).
435
Lizbeth Scott Sues Confidential, SAN MATEO TIMES, July 26, 1955, at 14 (internal
quotation marks omitted); accord SCOTT, supra note 3, at 122.
436
Sewer Trouble, TIME, Aug. 1, 1955, at 50; SCOTT, supra note 3, at 122.
437
Heiress Doris Duke Files $3,000,000 Suit Against Confidential Magazine, L.A. TIMES,
July 19, 1955, at 1.
438
Rushmore, supra note 40, at 36 (internal quotation marks omitted).
439
Id. (internal quotation marks omitted).
440
Lizabeth Scott’s Suit Loses Out in Court Here, L.A. TIMES, March 8, 1956, at 36;
Scandal Mag Trial Record, S
AN MATEO TIMES, Aug. 15, 1957, at 20 (stating that Mitchum’s
2016] THE MOST LOVED, MOST HATED MAGAZINE 167
Hamilton, the husband of British actress Diana Dors, brought a million-dollar libel
suit over an article headlined What Diana Dors never knew about her ever-loving
hubby.
441
In New York, socialite Robert Goelet brought a privacy lawsuit against
Confidential, alleging that a January 1956 article used “photographs, images or like-
nesses, incorporating my name as part of a sordid, fictional article entitled Bobby
Goelet’s Rock ‘n’ Roll Romance.”
442
Dorothy Dandridge filed a libel suit over an article accusing the actress, who was
black, of engaging in sexual activity with a white bandleader.
443
Maureen O’Hara sued
suit was dismissed for “a question of jurisdiction”); see also Takes Up Battle Against Scandal
Mags, PORT ANGELES EVENING NEWS, Apr. 20, 1957, at 11 (“Giesler has filed suits totalling
10 million dollars against Confidential magazine on behalf of Robert Mitchum, Lizabeth
Scott, Doris Duke, and other clients. He said the magazine apparently is immune to legal
attack in California . . . .”). Confidential then filed a libel suit against syndicated columnist
Inez Robb of the United Feature Syndicate. Cat-o’-Nine-Tale, TIME, Aug. 8, 1955, at 66.
Robb had written,
Miss Duke has just struck a blow for Liberty, freedom and decency by
filing a libel action . . . against the most putrid of the so-called “expos[é]”
magazines now defiling the newsstands.
Let us hope she not only collects the three [million], but that she is also
awarded attorneys’ fees and costs in the sum of another million or so. . . .
In a way, I am sorry Miss Duke is suing. I am sorry that, instead, she
didn’t organize an old-fashioned vigilante party and horsewhip the shabby
crew responsible for this verbal assault. A cat-o’-nine-tails speaks a
powerful language that might even penetrate the elephant hide and con-
science of these lice.
Inez Robb, Gutter Journalism, PITTSBURGH PRESS, July 22, 1955, at 15. The ACLU sent a
letter to the New York World Telegram and Sun: “We must not resort to lynch law to curb
free speech as Miss Robb suggests. That is the totalitarian way. The democratic way of meeting
abusive speech is through the persuasiveness of free speech itself, and not ‘horse whipping.’”
Letter from Patrick Murphy Malin, Exec. Dir, ACLU, to Lee B. Wood, Editor, N.Y. World
Telegram & Sun (Sept. 1, 1955) (on file with author).
441
Briton Suing the Magazine, N.Y. TIMES, Aug. 20, 1957, at L53.
442
N.Y. SOCIETY FIGURE SUES CONFIDENTIAL, L.A. TIMES, July 2, 1957, at B1 (internal
quotation marks omitted).
In defending the article, Confidential’s lawyers asserted that it had dealt
with the “then curren[t] and always newsworthy fact that Robert Goelet,
Jr. a member of one of New York’s oldest and most socially prominent
families, grandnephew of Mrs. Cornelius Vanderbilt . . . was seeking
to divorce his wife in order to marry Gloria Green, a colored beautician
he had found working in a minor Broadway hotel.”
‘Confidential’ Mag-Suit Switches to Manhattan, A
TLANTA DAILY WORLD, Sept. 11, 1957
(quoting Confidential’s legal counsel). See also Goelet v. Confidential, Inc., 17 N.Y.S.2d 223
(N.Y. App. Div. 1958).
443
SCOTT, supra note 3, at 78; “Preposterous,” Says Dorothy Dandridge, AFRO-AM.
(Balt.), Sept. 14, 1957, at 8.
168 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
over the article It Was the Hottest Show in Town when Maureen O’Hara Cuddled
in Row 35.
444
Confidential alleged that O’Hara had been spotted in a passionate
encounter with a “Latin Lothario” in a theater.
445
Liberace also brought a libel suit,
charging that a story that implied he had romantically pursued a male press agent
was “false and malicious.”
446
In addition to filing libel suits, Giesler urged the California legislature to pass
a law forcing “scandal magazines . . . who do business in California [to be] responsi-
ble in California.”
447
He also asked Congress to act.
448
“It is our hope that some
government agency will step in and put a stop to the publication and distribution of
such scandal sheets,” he told the press.
449
“Such magazines should be completely
suppressed. . . . I hope that Congress in the near future will bar interstate shipment
of such publications.”
450
Giesler’s comments provoked alarm among ACLU leaders.
Columnist Victor Lasky sent a letter to Patrick Murphy Malin alerting him to “recent
statements attributed to Jerry Giesler” “lobbying for federal legislation aimed at ban-
ning magazines like [Confidential].”
451
Lasky feared that “in this period of hysteria,
a person of Mr. Giesler’s eminence could well persuade Congress to ban publications
of the expos[é] variety.”
452
The ACLU’s Alan Reitman proposed writing an “open let-
ter to Giesler, presenting our views on pressure group censorship and prior restraint.”
453
Giesler also asked California Attorney General Edmund “Pat” Brown to take ac-
tion, sending him depositions of Harrison he had taken for the libel suits.
454
Brown,
a liberal Democrat who was considering running for governor, was sympathetic.
455
In the coming months, Giesler and film industry leaders pressured Brown to crack
444
Maureen O’Hara Sues Confidential for Million: Actress Charges Article Was False
and ‘Did Maliciously Degrade Her’, L.A. TIMES, July 10, 1957, at 14; see also McDonald,
supra note 51, at 10.
445
Gabler, supra note 35.
446
Confidential Defends its Story on Liberace, L.A. TIMES, July 18, 1957, at 4; see supra
notes 23, 67 and accompanying text.
447
Giesler May Be Called in Scandal Hearings, L.A. TIMES, Feb. 21, 1957, at 8.
448
Giesler Declares War on Scandal Magazines, L.A. TIMES, July 27, 1957, at 15.
449
Screen Star Sues; Scott Joins Others Against Magazine, CINCINNATI ENQUIRER,
July 26, 1955, at 14 (internal quotation marks omitted).
450
Magazine Sued for $3 Million, SAN BERNARDINO DAILY SUN, July 19, 1955, at 3
(internal quotation marks omitted).
451
Letter from Victor Lasky, supra note 367.
452
Id.
453
Letter from Alan Reitman, Assistant Dir., ACLU, to Confidential (Aug. 9, 1955) (on file
with author).
454
See Indictments Name 11 in Confidential Quiz, L.A. TIMES, May 16, 1957, at 1; Lloyd
Shearer, “The Stars Won’t Be Hurt,” PARADE, Oct. 6, 1957, at 20.
455
SCOTT, supra note 3, at 162. On Brown’s campaign, see DONALD CRICHTLOW, WHEN
HOLLYWOOD WAS RIGHT: HOW MOVIE STARS, STUDIO MOGULS, AND BIG BUSINESS REMADE
AMERICAN POLITICS 135–37 (2013).
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down on Confidential, knowing he would need the industry’s financial support in his
gubernatorial bid.
456
IV. CALIFORNIA V. CONFIDENTIAL
Against a backdrop of legal actions against Confidential around the country, and
under pressure from the film industry and social reformers, California moved against
Confidential in 1957.
457
The state’s efforts attracted the interest of the nation.
458
It
was thought that if California were successful in eradicating Confidential, its actions
could guide other states,
459
or that if Confidential could be eliminated in California,
Harrison would simply shut down the magazine.
460
A. The Kraft Committee
In early 1957, California established the Senate Interim Committee on Collections
Agencies, known as the Kraft Committee, after its chairman, Republican State Senator
Fred Kraft.
461
The committee, formed to look into allegations of misconduct by private
detectives, was an effort to undermine Confidential by going after the magazine’s
newsgathering methods, rather than its content.
462
Kraft believed—correctly—that
private detectives were selling information to Confidential,
463
and alleged that the
456
SCOTT, supra note 3, at 161–62; Giesler to Head Fight on Scandal Magazines, L.A.
TIMES, Apr. 19, 1957, at 4. According to Hollywood historian Jeannette Walls, “[Brown] was
tight with Frank Sinatra, who would be a big contributor to his gubernatorial campaign. He
was friendly with the Kennedy brothers, who knew that Confidential had the goods on their
sexual escapades.” JEANNETTE WALLS, DISH: HOW GOSSIP BECAME THE NEWS AND THE
NEWS BECAME JUST ANOTHER SHOW 19 (2000).
457
Indictments Name 11 in Confidential Quiz, supra note 454, at 1.
458
SCOTT, supra note 3, at 172; see also Publisher of Confidential Reported Indicted on
Coast, CHI. DAILY TRIBUNE, May 16, 1957, at 17; Grand Jury Indicts “Confidential,” WASH.
POST & TIMES HERALD, May 16, 1957, at B6.; Indictments Name 11 in Confidential Quiz,
supra note 454, at 1.
459
See, e.g., Libel is Mudslinging, supra note 175 (“Mudslinging and scandal mongering
never has done as much good as it has harm. If Confidential magazine is found guilty of libel in
California, then it has violated Florida laws and should not be distributed in Florida cities.”).
460
Scandal Magazine Faces Showdown on West Coast, DELTA DEMOCRAT-TIMES, May 3,
1957, at 4.
461
See Subpoena on Sinatra Defended, INDEP. (Long Beach), Feb. 22, 1957, at 16.
462
See Giesler May Be Called in Scandal Hearings, supra note 447, at 8.
463
“The scandal magazines and the unscrupulous collection agencies
both employ professional goons who will stop at nothing—even to the
breaking of an arm or a leg—to collect an unpaid debt from a working
man,” Kraft said.
“Our investigators have found that these same floaters, all ex-
convicts and known hoodlums, also work at gathering material for the
scandal magazines.”
170 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
practice was compromising the integrity of the state’s private detective industry.
464
The Kraft investigation was a result of film industry pressure.
465
According to the
Associated Press, film “executives believ[ed] that a thorough airing of how the maga-
zines [got] their stories can all but kill their mass circulation appeal.”
466
Detective Fred Otash testified before the committee in March 1957.
467
Otash ad-
mitted that he had a retainer agreement with Confidential, and that his work involved
bugging celebrities’ homes and taking pictures of them using zoom lenses and hid-
den cameras.
468
Otash’s sensational testimony made national news: it was the first the
public had heard about Confidential’s inner workings.
469
The Kraft committee concluded:
The committee is satisfied that a definite tieup between some
private detective agencies and the scandal and exposé magazines
does exist. . . . To spy on Hollywood celebrities in an arbitrary
James Bacon, California Begins Probe of Scandal Publication, ABILENE REPORTER-NEWS
(Tex.), Feb. 27, 1957, at 11-A (quoting Sen. Fred Kraft).
464
See REPORT OF THE SENATE INTERIM COMMITTEE ON COLLECTION AGENCIES, PRIVATE
DETECTIVES AND DEBT LIQUIDATORS, S. Res. 21, at 5 (Cal. 1957) [hereinafter KRAFT COM-
MITTEE REPORT].
The present committee has focused its attention on violations of consti-
tutional rights of private citizens and other unethical practices by private
investigators, collection agencies, and the proraters.
While the hearing involved scandal-type magazines, this was ac-
tually a side issue growing out of the committee’s major study, but it
surely attracted much more attention. The problem of what can be done
to get such publications out of interstate commerce, or out of the retail
outlets within this State, is a big one. Their regulation is outside the scope
of this committee’s investigation, except insofar as private detectives
are used either to verify or obtain information for them.
Id.
465
Scandal Magazines Facing Thorough Legislative Probe, DAILY J. (Tex.), Feb. 27,
1957, at 1.
466
Id. Kraft’s investigation focused on the famous “Wrong Door Raid” of 1954, in which
Frank Sinatra, Joe DiMaggio, and two private detectives were accused of breaking into a
Hollywood apartment, looking for DiMaggio’s wife, Marilyn Monroe, allegedly with a lover.
They broke down the wrong door, frightening a middle-aged woman named Florence Kotz.
The true story of the incident appeared in Confidential. See Gabler, supra note 35.
467
Gladwin Hill, Detective Tells Inquiry He “Checked Out” 150 “Scandal” Articles from
Confidential, N.Y. TIMES, Mar. 1, 1957, at 13.
468
Questions and Answers of Otash at Hearing, L.A. TIMES, Mar. 1, 1956, at 2.
469
Otash told of an assignment for Confidential in which he was to document a “pre-marital
tryst” between actress Anita Ekberg and her husband, actor Anthony Steel. Otash described
how he made “hidden movies” of the actress while she was relaxing on the beach and in her
apartment. Hill, supra note 467, at 13; Private Eye Tells About Anita Ekberg, PITTSBURGH
POST-GAZETTE, Mar. 1, 1957, at 2. On Otash, see generally FRED OTASH, INVESTIGATION
HOLLYWOOD! (1st ed. 1976).
2016] THE MOST LOVED, MOST HATED MAGAZINE 171
manner for the express purpose of furnishing material and photo-
graphs for scandal magazines is an abuse of the privilege to hold
an investigator’s license.
470
The committee recommended that private detectives be regulated by the Attor-
ney General, who would revoke the licenses of detectives who hired “strong arm
goon squads,”
471
which “would go far toward drying up the source for these scandal
stories.”
472
Kraft proposed that the California legislature authorize a committee to
delve further into Confidential’s operations.
473
“You have a very bad situation in
Southern California,” he said.
474
“My committee has merely hit on the highlights. We
now must dig below the surface . . . . I shall ask for authority to do so.”
475
In the spring
470
KRAFT COMMITTEE REPORT, supra note 464, at 10.
471
Scandal Magazine Quiz by U.S. Urged: Sen. Kraft Sums Up Hearing in L.A., Calls for
Congress to Study Situation, L.A. TIMES, Mar. 5, 1957, at 1 (internal quotation marks omitted).
472
State Sen. Kraft Asks U.S. Scandal-Mag Quiz, INDEPENDENT (Cal.), Mar. 5, 1957, at
A-2 (internal quotation marks omitted).
The Legislature should consider the passage of a new section making
it unlawful for any licensee to accept employment for verifying, or the
sale of, information of a scandalous nature to such magazines. . . . An
effective law should be drafted to protect the right of privacy of our
citizens and not at the same time to hamper the freedom of the press.
KRAFT COMMITTEE REPORT, supra note 464, at 10. Kraft also sought legislation aimed at
Hollywood ‘party girls’ who sold information to Confidential. Solon Seeks Laws Aimed At
Party Girls, INDEPENDENT (Cal.), May 17, 1957, at A-3.
In addition, Kraft and California officials called for a federal investigation of Confidential.
State Sen. Kraft Asks U.S. Scandal-Mag Quiz, supra, at A-2. U.S. Representative Pat Hillings,
a member of the House Judiciary Committee, said he was interested in “[Kraft’s] views on
public interstate extortions by private investigators and scandal publications.” US Action
Vowed on Scandal Magazines, L.A. TIMES, Mar. 6, 1957, at 7. Another Congressman “asked
Postmaster General Summerfield . . . what [could] be done to preven[t] [Confidential] from
circulating through the mails[;]” he was “particularly concerned because his district include[d]
Hollywood, many of whose prominent residents have been victimized by practices exposed
in the Kraft investigation.” Id.
473
See Senators May Extend Scandal Magazine Probe, REDLANDS DAILY FACTS, Mar. 2,
1957, at 1.
474
Id. (internal quotation marks omitted).
475
Id. (internal quotation marks omitted). Liberal publications such as The Nation protested
Kraft’s call for “special legislation” against Confidential:
[L]egislative inquiries of the type being conducted in Hollywood merely
bring the scandal to the front pages of the nation’s press and give rise to
dangerously half-baked suggestions that “something must be done” about
the scandal magazines. To date there has been no showing that the exist-
ing libel and slander laws are inadequate to protect individuals against
the type of scandal-mongering in which these magazines indulge.
Editorial, The Scandal Business, N
ATION, Mar. 30, 1957, at 266.
172 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
of 1957, two proposals were introduced into the state assembly—one that would per-
mit “court action against scandal magazines published outside [the] state if they are
distributed in California,”
476
and another asking for a “judiciary committee study of
scandal magazines.”
477
Independent of the Kraft probe, the state attorney general’s office had been inves-
tigating the possibility of bringing criminal charges against Confidential.
478
During
the Kraft hearings, the attorney general’s investigators were “busily subpoenaing
financial records of [Confidential], Hollywood Research, the Meades and other
persons purported to be supplying the smear magazine.”
479
In March 1957, Brown
announced that his office was ready to go after the “agents, the printers, [and] the guy
behind” Confidential.
480
State officials began a series of conferences to prepare evi-
dence for prosecution on criminal libel and obscenity charges.
481
“[W]e want to put a
crimp in the operation of Confidential and its breed in California and we’re going to
try every way we can,” said a spokesman for the California Department of Justice.
482
California’s attorneys claimed that the State did have jurisdiction over Confidential;
the magazine had a corporate presence in California through Hollywood Research
Incorporated, a branch of Confidential, Incorporated.
483
Brown told the press that
criminal charges against Confidential were not censorship, and that he did “not intend
to act as censor.”
484
He denied that the film industry had pressured him, alleging he
476
Day in Sacramento, SAN MATEO TIMES, Apr. 23, 1957, at 6; see also S.B. County
Loses Bid For Second State Senator, SAN BERNARDINO DAILY SUN, Apr. 23, 1957, at 5.
477
Day in Sacramento, SAN BERNARDINO DAILY SUN, June 1, 1957, at 7.
478
This investigation apparently had been underway for two years. See Leonard Lyons,
Lyon’s Den: Bombing Japan, INDEPENDENT (Cal.), Sept. 14, 1955, at 28 (“If a Hollywood
actress agrees to testify before the Grand Jury, the District Attorney will seek an indictment
for criminal libel against the editor of an expose magazine.”). One reason Brown allegedly
took so long to bring charges was that he couldn’t find “big-name witnesses,” Hollywood
actors, to testify before a grand jury. Drew Pearson, Magazine Under Fire to Reform, DETROIT
FREE PRESS, May 13, 1957, at 1 (stating that Marilyn Monroe and Elvis Presley, subjects of
Confidential articles, declined to testify); see also Grand Jury Quiz Looming Over Scandal
Magazines: Brown Aide in Huddle Here with M’Kesson, L.A. TIMES, Mar. 28, 1957, at B1.
479
Indictments Name 11 in Confidential Quiz, supra note 454, at 23.
480
Indictments on Scandal Stories Eyed: Brown Indicates Magazine Publishers May Be
Prosecuted, L.A. TIMES, Mar. 26, 1957, at 2.
481
See, e.g., Scandal Mag Owners Face Indictments, MIRROR NEWS (Cal.), Mar. 27,
1957, at 1.
482
Grand Jury Quiz Looming Over Scandal Magazines, supra note 478, at B1 (internal
quotation marks omitted).
483
Scandal Magazines Face Trouble in the Courts, N.Y. TIMES, May 5, 1957, at 208.
484
Confidential Publisher to Fight Extradition to L.A.: Harrison and Five of Staff Sur-
render in N.Y., L.A. TIMES, June 12, 1957, at 4 [hereinafter Confidential Publisher]. “[T]he
censorship question is worthy of serious study by public groups, including newspapers, the
American Civil Liberties Union and public officials,” Brown told the press. Brown Outlines
2016] THE MOST LOVED, MOST HATED MAGAZINE 173
had been motivated to act because of “the effect of such publications on children.”
485
Brown said he believed that Confidential “caused divorces and broken homes, and
[led] to blackmail.”
486
On May 15, 1957, a Los Angeles County grand jury charged Confidential, its
staff, printer, and distributor, and Hollywood Research, Inc., with conspiracy to cir-
culate material pertaining to abortion, conspiracy to circulate material pertaining to
“lost manhood,” conspiracy to circulate “obscene and indecent” material, and con-
spiracy to commit criminal libel.
487
The libel
488
and obscene literature
489
charges were
misdemeanors, as was the “lost manhood” charge.
490
Conspiracy to commit a mis-
demeanor was a felony, carrying imprisonment up to three years or a $5,000 fine.
491
The abortion count was a felony per se, and penalty for conviction was up to five
years imprisonment.
492
Confidential, noted columnist Drew Pearson, had been slapped
with “one of the toughest criminal suits in the history of American magazines.”
493
B. Conspiracy
To be clear, Confidential was charged with a single crime, conspiracy to commit
obscenity and criminal libel, not obscenity and criminal libel, as reported in many
Steps to Halt Crime Rise: District Attorney Told He Will Call Conference to Tackle Problem,
L.A. TIMES, June 20, 1957, at B9.
485
Confidential Publisher, supra note 484, at 4.
486
Drew Pearson, Scandal Magazine Faces Showdown on West Coast, DELTA DEMOCRAT-
TIMES (Miss.), May 3, 1957, at 4. In an interview years later, Brown also claimed that “[i]t was
a rather personal thing. Dorothy Dandridge . . . came to Sacramento for a benefit and told me
that a story about her in Confidential came from a God-damned liar. I was so outraged that
I turned the matter over to one of my deputies.” Govoni, supra note 58, at 32.
487
See Indictment, People v. Harrison, No. 190871 (Cal. Super. Ct., L.A. Cty. May 15,
1957). An article, Pega Palo—the Vine that Makes You Virile, was the state’s evidence of
conspiracy to circulate material pertaining to male rejuvenation. See THEO WILSON, HEADLINE
JUSTICE: INSIDE THE COURTROOM: THE COUNTRY’S MOST CONTROVERSIAL TRIALS 54 (1996).
The article Beware The Newest Abortion Menace: The Pill that Ends Unwanted Pregnancy
was evidence of a conspiracy to “circulate material pertaining to abortion.” See id.
488
CAL. PENAL CODE §§ 248–257 (West 1955) (repealed 1986), invalidated in part by,
Eberle v. Mun. Court, 127 Cal. Rptr. 594 (Cal. Ct. App. 1976).
489
CAL. PENAL CODE § 311 (West 1955) (current version at CAL. PENAL CODE § 311–
311.12 (West 2016)).
490
CAL. BUS. & PROF. CODE § 600 (West 1955) (repealed 1978). For statutory definitions
for felonies and misdemeanors in California, see CAL. PENAL CODE § 17 (West 1955) (current
version at CAL. PENAL CODE § 17 (West 2016)).
491
CAL. PENAL CODE § 182 (West 1955) (current version at CAL. PENAL CODE § 182
(West 2016)).
492
CAL. BUS. & PROF. CODE § 601 (West 1955) (amended 1965, 1971), invalidated by
People v. Orser, 107 Cal. Rptr. 458 (Cal. Ct. App. 1973).
493
Pearson, supra note 478, at 1.
174 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
newspapers of the time.
494
So what mattered legally was not only the content of
Confidential’s articles, but the intent behind them—whether Harrison and his asso-
ciates intended and conspired to publish libelous and obscene material, and material
violating the abortion and “lost manhood” sections of the state penal code.
Like most obscenity statutes, California’s obscenity law did not specifically define
“obscenity.”
495
Under California Penal Code section 311, “every person who willfully
and lewdly . . . [w]rites, composes, stereotypes, prints, publishes, sells, distributes,
keeps for sale, or exhibits any obscene or indecent writing, paper, or book” was
guilty of a misdemeanor.
496
The dominant test of obscenity used by the California
courts was that a book was obscene “if it has a substantial tendency to deprave or
corrupt its readers by inciting lascivious thoughts or arousing lustful desire.”
497
The
indictment described the entire May 1955, May 1956, and September 1956 issues of
Confidential as being “lewd and obscene.”
498
Under section 248 of the California Penal Code, criminal libel was the publication
of defamatory matter with malicious intent.
499
A defamatory publication was presumed
to be false unless the defendant could prove it to be true, and presumed malicious if
no justifiable motive for publishing it could be shown.
500
A justifiable motive included
publishing “matters of actual public interest,” such as “matters of public health,
safety, and security, and all facts pertaining to them, as causes of epidemics . . . and
the news of crime waves.”
501
The state’s libel charge implicated only half a dozen
494
See, e.g., Grand Jury Indicts “Confidential,” supra note 458, at B6; Pearson, supra
note 486, at 4.
495
Hunter Wilson, California’s New Obscenity Statute: the Meaning of “Obscene” and
the Problem of Scienter, 36 S. CAL. L. REV. 513, 513 (1963).
496
CAL. PENAL CODE § 311 (West 1955). The words “obscene” or “indecent” were nowhere
defined in the statute; scienter was not a required element of the offense. See id. “[T]he in-
frequency of prosecution, and, hence, of judicial construction, under the statute, and . . . the
flexibility of the statute, which made no effort to define ‘obscene,’ [left] the courts free to
develop socially workable and constitutionally acceptable definitions of obscenity.”Wilson,
supra note 495, at 513 (internal quotation marks omitted).
497
People v. Wepplo, 178 P.2d 853, 855 (Cal. App. Dep’t Super. Ct. 1947) (quoting
Commonwealth v. Isenstadt, 62 N.E.2d 840, 844 (Mass. 1945)).
498
WILSON, supra note 487, at 54.
499
See CAL. PENAL CODE § 248 (West 1955) (“A libel is a malicious defamation . . . .”)
(repealed 1986), invalidated by Eberle v. Mun. Court, 127 Cal. Rptr. 594 (Cal. Ct. App. 1976).
500
CAL. PENAL CODE §§ 250–251 (West 1955) (repealed 1986), invalidated by Eberle v.
Mun. Court, 127 Cal. Rptr. 594 (Cal. Ct. App. 1976). The defendant would be acquitted if
it could prove to the trier of fact that the matter was true and published with “good motives”
and for “justifiable ends.” Id. See generally Jon H. Sylvester, How California Governs the
News Media, 26 S
ANTA CLARA L. REV. 385–86 (1986); Alvin M. Glick, Comment, Group
Libel and Criminal Libel, 1 BUFF. L. REV. 258, 261 (1952).
501
WILLIAM R. ARTHUR & RALPH L. CROSMAN, THE LAW OF NEWSPAPERS 220–21 (2d
ed. 1940).
2016] THE MOST LOVED, MOST HATED MAGAZINE 175
articles, including Robert Mitchum—the Nude Who Came to Dinner, which the
prosecution thought sufficient to demonstrate malicious intent.
502
The criminal libel charge against Confidential was unusual, as the crime of libel
was practically defunct by the 1950s.
503
Criminal libel laws had originated in the fif-
teenth century with the English Star Chamber;
504
criminal libel statutes were adopted
in the American colonies and remained on the books in most states into the twentieth
century.
505
The premise of criminal libel was that libels caused violence, and could
thus be punished by the state: “libels, regardless of what actual damage results to the
reputation of the defamed, may be penalized by the state because they tend to create
breaches of the peace [i.e., duels and fistfights] when the defamed or his friends under-
take to revenge themselves on the defamer.”
506
While the action for civil libel was
based upon the damage done to the individual, the basis for criminal libel was the
injury done to society.
507
A criminally libelous publication did not have to lead to a
breach of the peace; it only had to have a “tendency” to cause the libeled person to
breach the peace.
508
One reason for the decline of criminal libel by the mid-twentieth century was that
civil actions had largely replaced physical violence as a remedy for defamation.
509
Criminal libel was also disfavored as officials recognized its potential conflict with
modern views on freedom of the press.
510
As First Amendment scholar Zechariah
Chafee observed in 1948, criminal libel was a “pretty loose kind of crime.”
511
“[A]
502
WILSON, supra note 487, at 54.
503
David Riesman, Democracy and Defamation, Control of Group Libel, 42 COLUM. L.
REV. 727, 745–50 (1942); see also John Kelly, Criminal Libel and Free Speech, 6 U. KAN.
L. REV. 295, 317 (1958) (“Prosecutions have been rare and in spite of the paucity of judicial
statistics, it is clear that libel actions, especially criminal actions, are unusual.”).
504
Kelly, supra note 503, at 300.
505
Id. at 305–06, 320. “The most ancient and direct instrument for the legal control of
communication has been the law of criminal libel.” Id. at 295.
506
Kelly, supra note 503, at 301.
507
ARTHUR & CROSMAN, supra note 501, at 206 (“The state’s sole interest in preventing
the publication of libels is the preservation of the peace and tranquillity of the realm, and the
prevention of turmoil and riots among citizens.”(internal quotation marks omitted)); Glick,
supra note 500, at 260; Kelly, supra note 503, at 319. By the 1950s, some states had elimi-
nated the “breach of peace” requirement; many statutes declared the nub of criminal libel to
be the publication of matter tending to injure “reputation,” the same definition as in civil cases.
Kelly, supra note 503, at 320.
508
ARTHUR & CROSMAN, supra note 501, at 207.
509
Robert A. Leflar, Legal Remedies for Defamation, 6 ARK. L. REV. 423, 431 (1952); see
Garrison v. Louisiana, 379 U.S. 64, 69 (1964) (“[P]reference for the civil remedy, which
enabled the frustrated victim to trade chivalrous satisfaction for damages, had substantially
eroded the breach of the peace justification . . . .”).
510
See, e.g., Constitutionality of the Law of Criminal Libel, 52 COLUM. L. REV. 521,
526–33 (1952).
511
CHAFEE, supra note 315, at 115.
176 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
publisher never knows when the law may be applied to him; arbitrary and discrimi-
natory prosecutions are encouraged by such an unclear . . . rule.”
512
A 1956 study in
the Texas Law Review found that many criminal libel cases since the 1920s involved
“political controversies” and were used by in-groups to punish their enemies.
513
In
a press release in 1955, the ACLU argued that a Pennsylvania criminal libel statute
“endanger[ed] press freedom throughout the nation.”
514
Criminal libel was “easily
used as a weapon for intimidating speech.”
515
In 1957, Confidential became the first national publication in history to be put
on trial for conspiracy to commit criminal libel. Attorney General Brown told the press
that California was reviving criminal libel, “pioneering new fields in the prosecution
of criminal libel.”
516
C. May 1957
The twenty-five witnesses subpoenaed before the grand jury
517
in May 1957
included journalists and detectives who worked for Confidential, informants and
tipsters, the manager of the trucking company that shipped the magazines, and a
postal inspector from Washington.
518
Maureen O’Hara and Liberace appeared before
the grand jury as volunteer witnesses and labeled the Confidential stories about them
“outright lies.”
519
The state’s star witness was former editor Howard Rushmore, who
had recently left Confidential after disputes with Harrison over editorial policies.
520
Harrison agreed to assume any liability Rushmore faced for libel and paid him $2,000
512
Kelly, supra note 503, at 320.
513
Robert Leflar, Social Utility of the Criminal Law of Defamation, 34 TEX. L. REV. 984,
985–86 (1956).
Commonest among the political cases were those in which prosecutions
were filed against an unsuccessful political candidate or his supporters
for statements made during a campaign, now ended, concerning his now
successful opponent. . . . One may suspect that in such cases the law
was being used by the successful personage or his friends as a means
of punishing their less potent enemies.
Id.
514
Press Release, ACLU (Feb. 14, 1955) (on file with author). “Conviction of a Pennsylvania
newspaper editor last year for criminal libel ‘endangers press freedom throughout the nation,’”
announced an ACLU press release in 1955. Id.
515
Kelly, supra note 503, at 320.
516
Brown Outlines Steps to Halt Crime Rise, supra note 484, at B9 (internal quotation
marks omitted).
517
Confidential Magazine Faces Grand Jury Quiz, L.A. TIMES, May 13, 1957, at 5.
518
Maureen O’Hara, Liberace Hit “Lies,” L.A. TIMES, May 15, 1957, at 1.
519
Id. at 1 (internal quotation marks omitted).
520
Id.
2016] THE MOST LOVED, MOST HATED MAGAZINE 177
to settle his contract.
521
Rushmore took the money and flew to California, where he
offered himself as a witness against Confidential.
522
Rushmore testified how the maga-
zine got its information from “call girls, private eyes, [and] bed partners,” and said
that the elimination of Confidential would be a “service to American journalism.”
523
The grand jury indicted Confidential on all the charges.
524
Bail was set at $25,000
for Robert Harrison and $10,000 each for the other defendants.
525
Harrison and his
staff were booked in New York as “fugitives from justice”
526
but were able to resist
extradition through court actions.
527
In Illinois, Assistant Attorney General Clarence
Linn unsuccessfully requested the extradition of two executives of Confidential’s
printer, the Kable Corporation.
528
Kable’s attorneys argued that the case “look[ed]
like harassment of the press;”
529
“Don’t wrap yourselves and that magazine in the
freedom of the press,” Linn retorted.
530
“[D]irt and smut have nothing to do with
freedom of the press.”
531
Fred and Marjorie Meade were in New York City; they went
back to Los Angeles with defense attorney Arthur Crowley, apparently to avoid a
trial in absentia.
532
Crowley, who would represent Hollywood Research, Inc. at the
trial, was a well-known Hollywood divorce lawyer described as the “most famous
trial lawyer in Los Angeles.”
533
521
SCOTT, supra note 3, at 134.
522
Id. at 134, 163.
523
Scandal on Scandal Mag: Ex-Editor Relates “Bedroom Sources,” INDEPENDENT
(Cal.), May 15, 1957, at 1 (internal quotation marks omitted).
524
Indictments Name 11 in Confidential Quiz, supra note 454, at 1.
525
Id.
526
“Confidential” Staffers Surrender in New York, BEND BULL., June 11, 1957, at 5
(internal quotation marks omitted).
527
SCOTT, supra note 3, at 170; see also Confidential’s Head Fights Extradition,
WILMINGTON MORNING NEWS, July 24, 1957, at 8. Milton Pollack, Harrison’s attorney,
argued to the Governor’s chief legal advisor that permitting extradition would “‘open the
floodgates to wholesale reprisal’ against the magazine in other states.” Hearing On Pub-
lisher: Harrison of Confidential Fights Extradition on Libel, N.Y.
TIMES, July 24, 1957,
at 51.
528
California Seeks 2 of Illinois Firm, EDWARDSVILLE INTELLIGENCER (Ill.), July 18,
1957, at 6.
529
Id. (internal quotation marks omitted).
530
Id. (internal quotation marks omitted).
531
Id. (internal quotation marks omitted).
532
“Confidential” Couple Fly Back to L.A.: Meade and Wife Surrender on Conspiracy
Count, L.A. TIMES, May 21, 1957, at 2. “We’ve come back voluntarily at our own expense.
We’ve committed no crime whatsoever,” Fred Meade told the press. Id. Marjorie Meade,
wearing “a fur scarf and a five-karat diamond ring,” told reporters, “[d]on’t you think this
whole thing has a little to do with destruction of freedom of the press?” Id. (internal quota-
tion marks omitted).
533
Daniel Miller, The Remarkable Life and Quiet Death of Hollywood’s Forgotten
Superlawyer, H
OLLYWOOD REP., http://www.hollywoodreporter.com/news/remarkable-life
178 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
Meanwhile, the state threatened Confidential’s California dealers with criminal
liability if it continued to carry and sell the magazine.
534
Distributors promised to
ship 100,000 copies of Whisper, another magazine Harrison pushed that was similar
to Confidential, back to Harrison in New York.
535
“I don’t think [Confidential] will
ever be on sale in this State again,” Linn said.
536
“Ultimately, it won’t go any place.
Other States will see that we’ve been able to run it out and they will do the same.”
537
Harrison’s lawyers then filed suit against Brown and Linn, seeking damages of $3
million.
538
“Your unlawful suppression of the distribution [of the magazine] . . . con-
stitutes precensorship of the most arbitrary nature and a flagrant violation of the
freedom of the press guaranteed by the California and U.S. Constitutions,” they told
Brown in a telegram.
539
U.S. District Judge Harry Westover dismissed the claim, con-
cluding that Brown and Linn were within their authority in warning distributors that
they could be prosecuted for selling the magazines.
540
Confidential appealed to the
Ninth Circuit,
541
and the ACLU of Southern California filed an amicus brief, protesting
unlawful “precensorship.”
542
The Ninth Circuit dismissed the appeal.
543
Panicked, Harrison and his attorneys proposed a deal in which the magazine
would cut all “sex and scandal” from its California edition if the charges were
dropped.
544
Harrison threatened Brown that the trial, which would involve airing facts
about celebrities’ private lives, would be the dirtiest in history.
545
“[O]ne defense
-quiet-death-hollywood-171274 [https://perma.cc/CB5F-8SU3] (internal quotation marks
omitted).
534
Jack Smith, Confidential Case Defense Set Back, L.A. TIMES, Aug. 20, 1957, at 1. Linn
alleged that if Confidential were placed on sale in California he would seek grand jury
indictments against the distributors. $2,047,125 Suit Filed by Confidential Here, L.A. TIMES,
June 14, 1957, at 20.
535
Publisher of Confidential Threatens to Sue Brown: Plans Action Over Ban on Whisper
Sales, L.A. TIMES, June 4, 1957, at 2.
536
New Confidential Issue Won’t Be Sold in State: Publisher Shelves Plan to Distribute
Forthcoming Issue Here, Linn Reveals, L.A. TIMES, July 2, 1957, at B1 (internal quotation
marks omitted).
537
Id. (internal quotation marks omitted).
538
$2,047,125 Suit Filed by Confidential Here, supra note 534, at 20 (stating that
Confidential sued Brown and Linn for $2,047,125 while Whisper asked for $1,008,120).
539
Publisher of Confidential Threatens to Sue Brown, supra note 535, at 2.
540
Confidential Loses Two More Rounds of Battle, L.A. TIMES, July 9, 1957, at 17.
541
Id.
542
Brief Hits Brown Order on Scandal Magazines, L.A. TIMES, Aug. 8, 1957, at 29;
Liberties Union to Help Magazines, MEDFORD MAIL TRIBUNE (Or.), Oct. 20, 1957, at 9
(“The ACLU emphasized its interest in the case [was] consistent with past efforts supporting
the right to sue government officials for damages.”).
543
Confidential Case Plea Dismissed: U.S. Court Upholds Rules in Damage Suit Naming
Brown, L.A. TIMES, Dec. 3, 1957, at 7.
544
Brown Rejects Confidential’s Deal to Eliminate Sex, Scandal, SAN BERNARDINO
DAILY SUN, May 14, 1957, at 1.
545
Id.
2016] THE MOST LOVED, MOST HATED MAGAZINE 179
against criminal libel is the truth, [and] therefore [we] intend to call top name wit-
nesses to show that [we] have been printing the truth,” the defense said.
546
Brown
rejected the offer.
547
That summer, Harrison’s lawyers, through Fred Otash, subpoenaed more than
100 stars to testify at the trial.
548
“Many actors successfully avoided Otash, including
[Frank] Sinatra and Gregory Peck, who headed for Las Vegas.
549
Half of Hollywood
was said to have “hurried to vacation in Mexico.”
550
“It looked like the Exodus from
Egypt,” Crowley recalled.
551
An executive at a major studio was said to be working
full-time to keep stars from being called to testify.
552
Hollywood was “working full
steam behind the scenes” to keep the trial from turning into a scandal.
553
Though his public face was one of hubris and bravado, Harrison was deeply
troubled by the attack on Confidential. According to a journalist for the New York
Post who interviewed Harrison in 1957, “[i]n the offices of his attorney, last week, the
smell of success around Harrison was noticeably sour. There was no trace of swagger
as he paced continually from wall to wall of the room.”
554
Harrison believed that he
was being unfairly attacked; several magazines, including respected publications such
as Look and the Saturday Evening Post, published scandalous gossip about celebri-
ties, he noted.
555
“Why do they pick on me?” he asked.
556
“What about Look? What
about the [articles] they did on Sinatra and Gleason?”
557
Confidential was in peril. It was not from diminished readership; the newsstand
bans were most likely offset by increased circulation and interest in the magazine
generated by the censorship campaigns and celebrity lawsuits. Instead, Harrison was
being crushed by attorneys’ fees.
558
546
Drew Pearson, What Did Coy Confidential Breathe into the DA’s Ear, ALTOONA
TRIBUNE (Pa.), May 13, 1957, at 3.
547
Brown Rejects Confidential’s Deal to Eliminate Sex, Scandal, supra note 544, at 1.
548
Lee Belser, “Confidential” Gets Subpoenas for Stars. But Who Wants Them?, DAILY
DEFENDER (Chi.), Aug. 13, 1957, at 18.
549
Miller, supra note 533.
550
HOLLEY, supra note 108, at 35 (“The eight-week period of the Confidential trial was
one of the quietest times on record in Hollywood. Many stars had skipped town or even the
country to avoid being subpoenaed.”); Miller, supra note 533.
551
Gabler, supra note 35 (internal quotation marks omitted).
552
Film Leaders are Working to Keep Down Scandal, UKIAH DAILY J. (Cal.), Aug. 6,
1957, at 3.
553
Id.
554
David Gelman & Edward Katcher, The Man Behind Confidential, N.Y. POST, Sept. 6,
1957, at M2.
555
Id.
556
Id.
557
Id.
558
SCOTT, supra note 3, at 187; SLIDE, supra note 3, at 180.
180 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
V. THE TRIAL OF CONFIDENTIAL MAGAZINE
On August 2, 1957, 135 Hollywood personalities jammed the courtroom of Judge
Herbert Walker of the Los Angeles Superior Court, followed by a throng of curious
onlookers.
559
A necktie salesman peddled his goods in the courtroom, selling them
from a suitcase.
560
Witnesses went outside the court and freely voiced their opinions
in front of TV cameras.
561
In the summer of 1957, the trial of Confidential magazine
was “the most publicized single news item in most of the newspapers today.”
562
A. Arguments
Represented by Clarence Linn and Assistant Los Angeles District Attorney
William Ritzi, the prosecution promised to illustrate that Confidential intentionally
published matter that was obscene, false and defamatory, without good motives and
justifiable ends.
563
Confidential “maliciously dredged up from forgotten gutters a
slip from the straight and narrow path by a prominent individual and depicted it as
the individual’s way of life,” Linn told the jury.
564
Stars were haunted by “forgotten
sins, dredged from long-ago gutters and blown up into fanciful tales.”
565
The prosecution focused on Confidential’s newsgathering methods, which it
claimed would demonstrate Harrison’s intent to injure and defame.
566
Confidential
hired “women of the night life” to entice prominent people in Hollywood, then report
the incidents to the magazine, Linn said.
567
A Hollywood prostitute, one of Confiden-
tial’s informants, testified that Harrison “told me that he wanted stories primarily deal-
ing with the sexual activities of celebrities . . . the more lewd and lascivious the story,
the more colorful for the magazine.”
568
Editor Howard Rushmore recalled Harrison’s
zeal to dig up incriminating scandal—to get “hot, inside stories from Hollywood that
559
Jury is Being Chosen to Try Confidential, N.Y. TIMES, Aug. 3, 1957, at 22; Stars Crowd
Start of Trial of Magazine, WASH. POST & TIMES HERALD, Aug. 3, 1957, at B10.
560
Victor Davis, The Father of Scandal, 13 BRIT. JOURNALISM REV. 74, 78 (2002).
561
Id. at 78–79.
562
Editorial, Publicity and Stars, FAIRMOUNT NEWS (Ind.), Sept. 5, 1957, at 2.
563
CAL. PENAL CODE § 251, invalidated by Eberle v. Mun. Court, 127 Cal. Rptr. 594 (Cal.
Ct. App. 1976); see Stars Lured Into Traps, Confidential Trial Told: Enticement of Hollywood
Personalities by ‘Women of the Night’ Cited by Prosecution, L.A. TIMES, Aug. 8, 1957, at
1 [hereinafter Stars Lured].
564
Gladwin Hill, Magazine Draws Scorn and Praise: Confidential on Trial, Called Hirer
of Prostitutes and Servant of Public, N.Y. TIMES, Aug. 8, 1957, at 16.
565
Stars Lured, supra note 563, at 1.
566
See id. at 1; Magazine Linked to Coast Agency: Defense Admits Hollywood Office Got
$150,000 from Confidential Data, N.Y. TIMES, Aug. 24, 1957, at 34.
567
Hill, supra note 564, at 16.
568
4 Transcript of Record (Aug. 13, 1957), supra note 27, at 376.
2016] THE MOST LOVED, MOST HATED MAGAZINE 181
would make our readers whistle when they read them.”
569
Rushmore testified that
while he was editor he wanted to hurt the celebrities he wrote about in Confidential.
“Did you have,” Crowley asked, “the specific intention yourself to injure someone?”
Rushmore replied: “I certainly did.”
570
Crowley contended that Confidential’s articles were true and that “there [was]
no malice concerned.”
571
He cited Confidential articles on subjects such as “social
security, cancer cures, a mink coat racket, [and] telephone blackmailers” to illustrate
that several articles in each issue were “public service” articles.
572
The celebrity arti-
cles also had a public purpose: “the American public has a right to know when the
stars of the motion picture, radio, and tv do not live moral lives,” Crowley argued.
573
“[P]rivate detectives have been hired to verify these stories. They are backed up by
sworn affidavits,” Crowley said.
574
Confidential hired “the best law firm it could find
and paid them a large sum of money to keep from violating the law.”
575
DeStefano described the magazine’s extensive “verification” process, and his
conversations with Harrison about libel and obscenity:
I pointed out to Mr. Harrison that a publication like [Confiden-
tial] could never be guilty of criminal libel because in order to
have criminal libel you must have enmity, you must hate an
individual . . . and that I knew of no case in the history of this
country where a nationwide publication had ever been accused
of criminal libel.
576
On the issue of whether Confidential intended to publish obscenity, Crowley in-
troduced as evidence two large bundles of bestselling novels, including Peyton Place,
From Here to Eternity, The Naked and the Dead, and East of Eden, as well as the
men’s magazines Tomcat, Dazzle, Nugget, and Escapade’s Choicest.
577
Confidential
was far less racy than those popular publications, he argued.
578
Crowley asked Ross
what he had told Harrison about the legal definition of obscenity.
579
Ross referred to
569
2 Transcript of Record, supra note 27, at 130.
570
Id. at 202.
571
Magazine Libel Trial Is Started, WASH. POST & TIMES HERALD, Aug. 8, 1957, at A3.
572
“Confidential” Investigator Testifies Stories Are True, SAN MATEO TIMES, Aug. 22,
1957, at 14.
573
Pearson, supra note 478, at 1.
574
Lee Besler, Tab Hunter Balks at Testifying in Libel Trial of “Confidential,” KINGSPORT
TIMES (Tenn.), Aug. 8, 1957, at 14 (internal quotation marks omitted).
575
Confidential Defense Ends Arguments, L.A. TIMES, Sept. 14, 1957, at B1 (internal
quotation marks omitted).
576
13 Transcript of Record (Aug. 28, 1957), supra note 27, at 1615.
577
Index to 8 Transcript of Record (Aug. 20, 1957), supra note 27 (providing a list of
exhibits introduced by the defense).
578
8 Transcript of Record, supra note 27, at 1021–22.
579
Id. at 932.
182 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
the Supreme Court’s recent decision in Roth v. United States,
580
issued just one week
before the Confidential trial.
581
In Roth, the first case in which the Court addressed
obscenity, Justice Brennan said that the First Amendment protects the communication
of all ideas having “the slightest redeeming social importance,” but “implicit in the
history of the First Amendment [was] the rejection of obscenity as utterly without
redeeming social importance.”
582
Roth set out a constitutional criterion for obscenity:
“[W]hether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to prurient interest.”
583
Roth
was a victory for both social reformers and free speech advocates; the decision nar-
rowed the definition of obscenity yet at the same time reaffirmed obscenity as cate-
gorically without constitutional protection.
584
“[O]bscenity is determined according to the standards and the practices and the
mores of the community,” Ross told the court.
585
Ross continued: “[a]n obscene matter
is one which arouses a prurient reaction—a sexually itchy reaction, an uncontrolled
desire to commit depraved acts.”
586
Creatively interpreting the Roth holding, Ross
explained that he informed Harrison that under a U.S. Supreme Court ruling, if the re-
sult was to make a person “chuckle” he could not have lascivious thoughts at the same
time, and the article was not obscene.
587
“[The articles] were humorous, therefore not
libelous nor obscene,” Albert DeStefano was reported as saying.
588
Harrison’s threat to call hundreds of film stars to testify hung ominously over the
proceedings. About two weeks into the trial, the prosecution moved to deny Crowley
the right to call the stars he’d subpoenaed, contending that only the stars mentioned
in the articles listed as the basis for the indictments could be called as witnesses.
589
Walker agreed to limit testimony to the articles introduced by the prosecution.
590
Hollywood issued a sigh of relief. Walker told Ritzi to read the allegedly obscene and
libelous articles aloud to the jury, which took over two days.
591
Reported the New
York Daily News, “[s]pectators drank in the testimony avidly—it was the first time
580
354 U.S. 476 (1957).
581
8 Transcript of Record, supra note 27, at 1014.
582
Roth, 354 U.S. at 484.
583
Id. at 489.
584
See id.
585
8 Transcript of Record, supra note 27, at 932.
586
Jack Jones, Witness Tells of Party at Actor’s Pool, L.A. TIMES, Aug. 21, 1957, at 1
(internal quotation marks omitted).
587
13 Transcript of Record, supra note 27, at 1710.
588
Seymour Korman, Jury to Visit Confidential’s Theater Scene, CHI. DAILY TRIBUNE,
Aug. 31, 1957, at 8 (internal quotation marks omitted).
589
Confidential Loses Bid to Drop Charges, WASH. POST & TIMES HERALD, Aug. 16,
1957, at A16.
590
4 Transcript of Record, supra note 27, at 377–81; Judge Limits Testimony in Scandal
Trial: Rule Curbs Stars, CHI. DAILY TRIBUNE, Aug. 20, 1957, at 43.
591
5 Transcript of Record (filed Aug. 14, 1957), supra note 27, at 550–51; Confidential Jury
Hears Star Gossip Stories: Magazines Read by Prosecutor, L.A.
TIMES, Aug. 15, 1957, at 1.
2016] THE MOST LOVED, MOST HATED MAGAZINE 183
many of them had heard Confidential’s scandals, for the publication [was] banned
in California.”
592
The articles and accusations were made part of the public record,
and the press gladly reprinted them, detail for sensational detail.
593
Ultimately, the defense never called any celebrities as witnesses.
594
The only stars
who testified were Maureen O’Hara and Dorothy Dandridge, called as prosecution re-
buttal witnesses.
595
O’Hara claimed that she never had romantic activity in Grauman’s
Chinese Theater, and that she hadn’t even been in the United States at the time.
596
Dandridge denied the story about her alleged tryst with a white bandleader.
597
There
was too much racial prejudice in 1950 for her to have openly had an affair with a
white man, she said.
598
African-American newspapers across the country celebrated
Dandridge’s forthright testimony.
599
Wrote the Baltimore Afro American: “The tiny
star’s blast at American standards . . . visibly impressed the jury, the judge, the prose-
cution, and took the wind out of the defense’s sails.”
600
In his closing argument, Crowley finally brought up the free press issue, liken-
ing California’s actions against Confidential “to the book burnings and witch hunts of
592
SCOTT, supra note 3, at 174 (internal quotation marks omitted).
593
Newspaper editors claimed that covering the trial presented them with an ethical dilemma:
how to fulfill their responsibility of reporting the news without rehashing Confidential’s
salacious gossip. Clean—And Otherwise, NEWSWEEK, Aug. 26, 1957, at 60, 60. A few
newspapers downplayed the details of the trial, or ran the story on their inside pages—the
New York Times gave instructions to its West Coast reporter to “write this one for your Aunt
Minnie.” Id. at 61. But most did their best to sell papers with the story. The New York Daily
News featured articles with outrageous, outsized headlines such as “14 Stars Shine in Holly-
wood Bedtime Story.” Id. “[P]ractically every newspaper and magazine attacked Confidential
editorially,” observed Howard Rushmore, but they “didn’t hesitate to devote their news col-
umns to reporting the lurid . . . details of the trial . . . us[ing] blaring headlines, sexy photo-
graphs and thousands of words reprinting what Confidential had said months before . . . .”
Rushmore, supra note 40, at 33.
594
If he were to call the stars to testify, he would be bound by their answers, even if they
were subsequently found perjurious. Bob Thomas, “Confi” Closes Defense; More Fireworks
Possible, SAN BERNARDINO DAILY SUN, Aug. 31, 1957, at 1. If the state called them,
Crowley could attack their stories on cross-examination. Id.
595
Gladwin Hill, 2 Film Actresses Testify on Coast: Maureen O’Hara, Dorothy
Dandridge Deny Stories Carried in Confidential, N.Y. TIMES, Sept. 4, 1957, at 40.
596
Id. Judge Walker permitted the jurors to be taken to the theater, by bus, to view the site
of the alleged episode. Jack Smith, Confidential Trial to Move Over to Grauman’s Theater:
Jury to See Alleged Love Scene Site, L.A. TIMES, Aug. 31, 1957, at B1. Both the prosecution
and members of the jury wanted to know if it would be physically possible for O’Hara to
have been in the position described by the theater usher. See id.
597
Hill, supra note 595, at 40.
598
15 Transcript of Record (Sept. 3, 1957), supra note 27, at 1907.
599
See, e.g., Charles Denton, Dandridge on Witness Stand: Dandridge on Stand, Rips
“Birds and Bees” Story, DAILY DEFENDER (Chi.), Sept. 4, 1957, at 1; No Walk in Woods—
Dottie, AFRO-AM. (Balt.), Sept. 14, 1957, at 1.
600
No Walk in Woods—Dottie, supra note 599, at 1.
184 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
history.”
601
The trial was “one of the worst cases of suppression of freedom of the
press that I have ever seen.”
602
601
Confidential Case Defense Pleads Freedom of Press: Trial Nearing End, Likened to
Witch Hunts, L.A. TIMES, Sept. 12, 1957, at B1. Harrison introduced the “free press” issue
in the September 1957 Confidential, in a two-page article titled Hollywood v. Confidential:
That this magazine is under assault in the California courts is, we assume,
a fact known to most of our nine million readers. . . .
A California Assistant Attorney General has stated to the press:
“In my opinion, CONFIDENTIAL is finished.”
This is a determined effort, initiated by a segment of the motion
picture industry, to “get” this magazine.
We hold no secrets from our readers. In our first issue, nearly five
years ago, we promised to “publish the facts” and “name the names.”
We have kept that promise; and our readers have made us successful.
We have the world’s largest newsstand sale. . . .
Our success is due to their appreciation of our efforts to establish the
truth and to maintain the right for them to have the truth. . . .
WE ARE NOT GUILTY OF “CONSPIRACY TO PUBLISH CRIM-
INAL LIBEL.”
A precious and historic American principle is this: truth may be
distasteful, but truth can never be libelous. . . .
. . . .
We believe that the truths we have published . . . have been in the
public interest and in the best traditions of American journalism. . . .
. . . .
“Hollywood” is in the business of lying. Falsehood is a stock in trade.
They use vast press-agent organizations and advertising expenditures to
“build up” their “stars.” They “glamorize” and distribute detailed—and
often deliberately false—information about private lives.
Because of advertising money, in these “build-ups” they have the
cooperation of large segments of the daily press, many magazines, col-
umnists, radio and TV. They have the cooperation of practically every
medium except CONFIDENTIAL . . . They can’t “influence” us. So they
want to “get” us. . . .
We do not underestimate this effort to “get” us. We concede that
those who want to “finish” us are powerful and resourceful. They have
some tricky arguments; they are artists in the old three-shell game.
But we expect to survive. For we believe that even those Americans
who may not like what we say will, nevertheless, defend our right to
say it.
We doubt that the time has arrived when Americans can be “gotten”
for the crime of telling the truth.
Robert Harrison, Hollywood v. Confidential: A Publisher’s Statement: California has Accused
us of a Crime—The Crime of Telling the Truth!, CONFIDENTIAL, Sept. 1957, at 22, 22–23.
602
Acquittal Is Asked in Libel Trial, HARTFORD COURANT, Sept. 12, 1957, at 10 (internal
quotation marks omitted). Confidential’s “free press” arguments were mocked in the press.
“In the final arguments in the [Confidential] case in Los Angeles the defense attorney made
2016] THE MOST LOVED, MOST HATED MAGAZINE 185
“The prosecution wants to indulge in censorship . . . to do your thinking for you,”
Crowley said, “to satisfy a certain political segment.”
603
“They’re trying to put the
largest newsstand-selling magazine in the world out of business. Who is the prosecu-
tor and who is the Attorney General . . . to tell you what you can and can’t read?”
604
“Who are these people to impose a censorship, to stifle
thought and reading habits, to encroach on freedom of the press?
Would they burn books like Hitler did, would they engage in
witch hunts?
When you let the state tell you what to read, you are letting
such individuals take away one of the most precious bit sof [sic]
freedom you have.”
605
a fiery speech, purportedly in defense of freedom of the press. But freedom of the press was
not involved in this case,” wrote one editor. Editorial, A Phony Plea, OXNARD PRESS-COURIER
(Cal.), Sept. 14, 1957, at 16. “Publications have not only the right of freedom to print; they
also have the obligation and responsibility not to print certain material which would be against
public morals and decency.” Id. “The principle of freedom of the press has no slight involve-
ment in the right of such magazines to peddle their wares.” Editorial, Two Smut Magazines,
MASON CITY GLOBE-GAZETTE (Iowa), Aug. 13, 1957, at 4.
603
Confidential Case Defense Pleads Freedom of Press, supra note 601, at B1 (internal
quotation marks omitted). Turning to prosecutor William Ritzi, he asked:
“Does Mr. Ritzi think it is a public service to sacrifice freedom of
the press on the altar of expediency to cover up people in this town
who walk around like they wear the purple of ancient Rome?”
. . . .
“There is only one industry where homosexuality is not only con-
doned but protected.”
Confidential Defense Sums Up Arguments, INDEP. J. (San Rafael), Sept. 12, 1957, at 8.
Crowley said that it would be better if the $350,000 “war chest” which he had claimed the
movie industry had raised to destroy Confidential were used to “clean out the homosexuals,
nymphomaniacs, and dope addicts from their ranks.” Id.
604
Confidential Case Defense Pleads Freedom of Press, supra note 601, at B1 (internal
quotation marks omitted).
605
Seymour Korman, Confidential Calls Trial “Witch Hunt”: Charges State Effort of
Censorship, CHI. DAILY TRIB., Sept. 12, 1957, at 10. Ritzi accused Confidential of “hid[ing]
under freedom-of-press laws while showing a lack of responsibility.” Jury Gets Confidential
Case; Deliberations to Start Today: Prosecution in Scorching Last Attack, L.A. TIMES,
Sept. 17, 1957, at B1 (internal quotation marks omitted). Pointing to Fred and Marjorie
Meade, he charged: “People who are most concerned with freedom of the press are those
who see it in a vastly different light than these people. People who are really concerned see
a free press as honest, responsible and truthful. . . . Libel and obscenity are not protected by
our Constitution,” he protested vehemently. Id. (internal quotation marks omitted). “The real
problem here is not ‘a free press,’ but a ‘responsible press versus libel and obscenity.’” Id.
(internal quotation marks omitted).
186 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
B. Proper Procedures
Unlike other efforts against Confidential, California’s case generated virtually no
public criticism.
606
Despite California’s vague criminal libel and obscenity laws, the
pressures of the film industry, and the obvious political motivations behind Brown’s
actions, the ACLU said nothing. Apparently relieved that more overt suppression had
been avoided, the organization remained silent during the trial.
“Naturally there have been efforts to censor and suppress ‘Confidential.’ Such ef-
forts we deplore. Now in Los Angeles the proper method of action is being pursued,”
wrote the Oxnard Press Courier.
607
“[E]xisting laws against obscenity and gratuitous
libel are fairly rigorous, and the current case . . . is the way to compel compliance—
not to set up some board of censors who in an [excess] of zeal might make any reading
not suitable for 12-year-olds, impossible to obtain.”
608
“Censorship tends to spread like
cancer[.] . . . [But] there are laws against libel and slander on the books of all states,”
opined another editor.
609
“The public is also entitled to legal protection against obscen-
ity in its grosser and more obvious forms . . . .”
610
“What is most important about the Confidential case is that it is being prosecuted
under long-established legal procedures,” wrote the Decatur Herald in an article titled
Legal Procedures, Not Censorship, A Proper Approach.
611
Many of the persons who have found the scandal magazines an
affront to good taste have urged special legislation to prohibit the
periodicals from being published. . . .
However . . . such measures endanger the whole concept of
freedom of the press, for who is to say what should be banned?
If these magazines are not publishing the truth, the remedy is
606
The only critic, ironically, was Howard Rushmore. See Rushmore, supra note 40, at 38:
I have said publicly that I considered the recent legislative investigation
of Confidential in California unwise and, in its broad aspects, a threat to
a free press. Although I was, under force of subpoena, a witness for the
State of California in the criminal trial of Confidential’s owners and
researchers, I felt misgivings about certain aspects of the prosecution’s
case. I do not believe that courts should be used to suppress a publication;
persons damaged by publication of false or defamatory material can al-
ways sue in the civil courts.
607
Editorial, The Attack Upon Confidential, OXNARD PRESS-COURIER (Cal.), May 16, 1957,
at 28.
608
Editorial, Through the Courts, MEDFORD MAIL-TRIBUNE (Or.), Aug. 30, 1957, at 4.
609
Editorial, Curbing Printed Smut, NORTH ADAMS TRANSCRIPT, Dec. 20, 1957, at 6.
610
Id.
611
Editorial, Legal Procedures, Not Censorship, a Proper Approach, DECATUR HERALD
(Ill.), Aug. 15, 1957, at 6.
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through such actions as the libel and conspiracy trial being con-
ducted in Los Angeles.
612
Make no mistake about it—we think this type of slush magazine
is a blot on the fair face of America.
But the way to get rid of them is not to limit the right to write
and print freely . . . but to hold them (and all men) responsible for
what they write and print. The way to do this is in the time-tested
and proven way of democracy—through the courts.
It takes longer, this way, and (like other democratic processes)
is “inefficient.” But any other way is risking the totalitarian method
of telling everyone just what they can and can’t do. That way,
freedom dies.
613
C. The End of Confidential
After a record fourteen days of jury deliberation—the longest in California
history—the Confidential trial came to a close.
614
The jury split seven-to-five on the
criminal libel part of the conspiracy charge, and voted eight-to-four on the obscenity
part of the charge.
615
One outspoken juror said that the “freedom of the press” issue
introduced into the case by the defense was an important factor in his stand for ac-
quittal.
616
Because the jury could not reach a unanimous verdict on whether Confi-
dential committed a conspiracy, a mistrial was declared.
617
“Confidential trial lays egg,” read one newspaper headline.
618
“No verdict, no
nothing. . . . Nobody goes to jail . . . . Confidential magazine is still in business.”
619
“Confidential magazine won . . . means a green light for the garbage business.”
620
Harrison claimed to be overjoyed.
621
“The fact that reasonable people of good-will
612
Id.
613
Through the Courts, supra note 608, at 4.
614
The ‘Exhausting’ Juror, NEWSWEEK, Oct. 14, 1957, at 74, 74.
615
Id.; Jack Lefler, ‘Mag’ Jurors Discharged After 2-Week Deadlock, BRIDGEPORT POST,
Oct. 2, 1957, at 48.
616
SCOTT, supra note 3, at 187.
617
Confidential Trial Jury Dismissed in Deadlock: Case Ends in Mistrial as Panel Members
Fail to Reach Verdict After Two Weeks, L.A. TIMES, Oct. 2, 1957, at 1.
618
Confidential Trial Lays Egg, DAILY NOTES (Canonsburg, Pa.), Oct. 2, 1957, at 8.
619
Bob Thomas, Confidential Trial Ends as Expected, FLORENCE TIMES (Ala.), Oct. 7,
1957, at 11.
620
Editorial, Views on the Day’s News, PITTSBURGH PRESS, Oct. 4, 1957, at 26.
621
Publisher Pleased at Libel Trial End, WASH. POST & TIMES HERALD, Oct. 3, 1957, at A3
(“Publisher Robert Harrison said today the failure of a California jury to reach a verdict in the
criminal libel trial of Confidential magazine was a victory for free speech and a free press.”).
188 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
could differ so strongly . . . is proof that there was no basis for a criminal prosecu-
tion . . . ,” he told the press.
622
The trial’s result “constitutes a vindication and reaf-
firmation . . . of our basic constitutional guarantees of freedom of speech and freedom
of the press—not only the freedom of a publisher to publish, but equally, if not more
important, the freedom of the public to read . . . .”
623
The State planned to try the case again.
624
The prospect hit Harrison hard, since
he had paid around $500,000 to his attorneys for the trial.
625
Harrison also faced large
settlements in the Liberace, Dorothy Dandridge, and Maureen O’Hara libel suits.
626
Sensing that Harrison was in financial trouble, Brown offered Harrison a deal, which
he accepted over the objections of his lawyers, who wanted to go back to court and run
up his bill.
627
Under the agreement, Confidential would run no more exposés about
the private lives of celebrities, and Harrison would publicize the magazine’s ‘change
of heart’ in newspaper advertising.
628
The state’s original charges would be reduced
to a token charge of conspiring to publish obscenity.
629
In December 1957, a judge found Confidential guilty of conspiracy to publish ob-
scenity and fined Harrison $5,000.
630
In early 1958, Confidential published advertise-
ments in San Francisco and Los Angeles newspapers claiming that it would “eliminate
exposé stories on the private lives of celebrities.”
631
The announcement, signed by
Harrison, added: “While we have never felt that such stories violated any laws, in a
spirit of cooperation with Edmund G. Brown . . . we have agreed . . . to so change our
format. We are confident that our millions of readers will find the new format inter-
esting and exciting.”
632
622
Confidential Case Retrial To Be Asked, Brown Says, L.A. TIMES, Oct. 3, 1957, at B1.
623
Id. (internal quotation marks omitted).
624
Confidential Retrial: Coast Prosecutor Rules out Compromise in Libel Case, N.Y.
TIMES, Oct. 4, 1957, at 45.
625
SCOTT, supra note 3, at 187 (“[The trial] had cost [Harrison] an estimated $500,000,
a sum equivalent to $3.5 million today.”); Retrial in Doubt for Confidential: A Court Hearing
This Week May Reveal Decision on Prosecuting Magazine, N.Y. TIMES, Oct. 6, 1957, at 60
(“The trial was estimated by state officials to have cost, on the prosecution side, about a million
dollars . . . . The defense probably cost a better part of $500,000.”); see also TAB HUNTER WITH
EDDIE MULLER, TAB HUNTER CONFIDENTIAL: THE MAKING OF A MOVIE STAR 185 (2005).
626
HUNTER WITH MULLER, supra note 625, at 185.
627
Id.
628
Id.
629
Gladwin Hill, Accord Approved for Confidential Magazine: Magazine Agrees It Will
Run No More Exposes and State Drops Major Charges, N.Y. TIMES, Nov. 13, 1957, at 42.
630
Confidential, Whisper Convicted, Fined $5,000, L.A. TIMES, Dec. 19, 1957, at 5.
631
Confidential Clean Up?, NEWSWEEK, Nov. 25, 1957, at 81, 81.
632
Announcement by Confidential & Whisper Magazines, L.A. TIMES, Nov. 12, 1957, at
A11. Editor Al Govoni “knew immediately that the magazine was history, but Harrison re-
fused to believe it. Then he found out how tough it was to serve up [that] kind of journalism
under the watchful eye of the lawyers. ‘The settlement was so binding,’” Govoni wrote to a
friend, “that it became impossible to put out a book with any guts.” Govoni, supra note 58,
at 33.
2016] THE MOST LOVED, MOST HATED MAGAZINE 189
In February 1958, Harrison began to put out a toned-down Confidential, which
featured such “safe” stories as What’s Wrong with the Oil Burner in the White House
Basement? and Penicillin Can Save Your Life!
633
“If Confidential seems changed . . .
if you’ve noticed a new complexion, it’s because we’ve broadened our outlook,” the
magazine announced.
634
“We’re quitting the area of private affairs for the arena of
public affairs. . . . Where we pried and peeked, now we’ll probe, and occasionally we’ll
take a poke. . . . If wiseacres say that we’ve retreated from the bedroom, we’ll say yes,
that’s true . . . .”
635
Newsstand sales of Confidential, once nearly four million, went
down to around one million in May 1958.
636
In the spring of 1958, Harrison announced he was getting out of the publishing
business.
637
He could no longer withstand the financial burden of defending his
magazines: there were “too many lawsuits,” in his words.
638
Harrison sold the rights
to Confidential to entrepreneur Hy Steirman for $25,000.
639
Steirman mandated non-
Hollywood stories;
640
issues focused on such noncontroversial subjects as bankruptcy,
weight loss remedies, rabies, phone jewelry, and bad dentists.
641
Sales nosedived.
642
It was then that the real results of the trial became apparent. “Perhaps it is just as
well that the two-month Confidential trial ended in a hung jury . . . . [F]or the litigation
seems already to have served its primary purpose of toning down the lurid scandal
publications,” noted one critic.
643
The magazines still may not be fit for most living rooms, but it
is generally agreed that they are not quite so bad as they were
before . . . . The heavy expenses of the trial appear to have made
the publishers and editors of Confidential and her scandalous
sisters more conscious of their responsibilities in putting out
magazines under the protection of the First . . . Amendment to
the Constitution.
644
633
Roger Price, Droodles, PITTSBURGH PRESS, Feb. 8, 1958, at 15.
634
Robert Harrison, Confidential’s New Policy, CONFIDENTIAL, Apr. 1958, reprinted in
SCOTT, supra note 3, at 186.
635
Id.
636
High Price of Virtue, TIME, May 26, 1958, at 56.
637
Id.
638
Jack Jones, Gable Denies Romance with Miss De Scaffa: Scandal Jury Told of Story,
L.A. TIMES, Aug. 13, 1957, at 1 (“There have been too many lawsuits and the expose field
magazine—except for Confidential—is dead.”) (internal quotation marks omitted).
639
BERNSTEIN, supra note 3, at 266.
640
Id. at 267.
641
Id.
642
SCOTT, supra note 3, at 188 (“[C]irculation plunged to roughly 200,000 before it closed
in the early 1960s.”).
643
Editorial, Another Trial for Confidential?, DECATUR HERALD (Ill.), Oct. 12, 1957, at 4.
644
Id.
190 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
[M]en who hope to make a fat living by publishing scandal are
put on notice that they may be subject to costly law suits. It is
true that Mr. Harrison was not put in jail but it is also true that
the profit from his venture was much reduced. This is handwrit-
ing on the wall for others to read.
645
In the end, Confidential had been censored, but not in the way its opponents had
planned or expected. The elimination of Confidential from the nation’s newsstands
was accomplished not through official bans, postal restrictions, anti-scandal legisla-
tion, or criminal sanctions, but rather through the exhaustion and financial depletion
of publisher Robert Harrison. Forced to defend himself on multiple fronts for over two
years, Harrison could no longer afford to pay his attorneys. This kind of “censorship”
was entirely within the purview of the First Amendment.
CONCLUSION
The year 1958 saw the effective end of Confidential, and the end of an era. Laws
governing publishing content, and public attitudes towards government involvement
in the press, soon changed, as did popular views on celebrities, sex scandals, and the
coverage of public figures in the media.
Within a few years of the Confidential trial, the entire apparatus of official censor-
ship was crumbling.
646
The use of “lists” by policemen and prosecutors to threaten
newsdealers and booksellers diminished between the mid-1950s and the early 1960s.
647
Following public criticism by the ACLU in 1958, the influence and prestige of the
National Organization for Decent Literature waned.
648
Several government review
boards were dismantled after court decisions.
649
Detroit’s notorious censorship system
ended in 1957 when a court enjoined officials from making threats of prosecution to
booksellers and newsdealers.
650
Obscenity law was liberalized in the 1960s by several decisions of the U.S. Su-
preme Court.
651
A leading publishers’ attorney called the era the “end of obscenity”
645
Editorial, Confidential Not Acquitted, REDLANDS DAILY FACTS (Cal.), Oct. 3, 1957,
at 10.
646
See WALKER, supra note 294, at 235.
647
William B. Lockhart & Robert C. McClure, Censorship of Obscenity: The Developing
Constitutional Standards, 45 MINN. L. REV. 5, 7 (1960).
648
Id.
649
See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 69–72 (1963) (invalidating un-
constitutional restraints by Rhode Island’s Commission to Encourage Morality in Youth);
Holding v. Nesbitt, 259 F. Supp. 694, 698–99 (W.D. Okla. 1966), aff’d in part sub nom.
Blankenship v. Holding, 387 U.S. 95 (1967), rev’d in part on other grounds, 387 U.S. 94
(1967) (invalidating action of Oklahoma Literature Commission).
650
Lockhart & McClure, supra note 647, at 7–8.
651
See infra notes 655–59 and accompanying text.
2016] THE MOST LOVED, MOST HATED MAGAZINE 191
and of “censorship.”
652
The ACLU at last took a firm stand on obscenity, concluding
that “the constitutional guarantees of free speech and press apply to all expression and
there is no special category of obscenity or pornography to which different constitu-
tional tests apply.”
653
The ACLU also advanced a near-absolutist position on libel,
announcing its “opposition to virtually all libel actions as restrictions on free speech,
except in cases of reckless disregard for the truth.”
654
In 1964, the Supreme Court’s decision in New York Times v. Sullivan
655
imposed
constitutional restrictions on the libel tort.
656
Criminal libel was all-but-eliminated. In
1961, the drafters of the Model Penal Code refused to include a criminal libel section:
“[u]sually we reserve the criminal law for harmful behavior which exceptionally dis-
turbs the community’s sense of security. . . . It seems evident that personal calumny
falls in neither of these classes in the U.S.A., [and] that it is therefore inappropriate for
penal control.”
657
Three years later, the Supreme Court in Garrison v. Louisiana
658
recognized the diminishing need for criminal libel statutes:
Changing mores and the virtual disappearance of criminal libel
prosecutions lend support to the observation that “. . . under mod-
ern conditions, when the rule of law is generally accepted as a
substitute for private physical measures, it can hardly be urged
that the maintenance of the peace requires a criminal prosecution
for private defamation.”
659
Several states, including California, declared their criminal libel laws unconstitutional
and repealed them.
660
652
WALKER, supra note 294, at 236. The California legislature drafted a new obscenity statute
in 1961 in which it adopted a new definition of obscenity, consistent with the Roth decision:
“Obscene” means that to the average person, applying contemporary
standards, the predominant appeal of the matter, taken as a whole, is to
prurient interest, i.e., a shameful or morbid interest in nudity, sex, or
excretion, which goes substantially beyond customary limits of candor
in description or representation of such matters and is matter is which
is utterly without redeeming social importance.
Act effective Sept. 15, 1961, ch. 2147, § 5, 1961 Cal. Stat. 4427, 4427 (codified as amended
at CAL. PENAL CODE § 311(a) (West 2016)).
653
WALKER, supra note 294, at 234.
654
Id. at 230.
655
376 U.S. 254 (1964).
656
Id. at 283–84.
657
MODEL PENAL CODE § 250.7 cmt. 2 (AM. LAW INST., Preliminary Draft 1961), reprinted
in BRUCE W. SANFORD, LIBEL AND PRIVACY § 4.14 at 4-76–4-76.1 (2d ed. 2007 & 2015 Supp.).
658
479 U.S. 64 (1964).
659
Id. at 69 (quoting Emerson, supra note 275, at 924).
660
The California criminal libel statute was held unconstitutional in 1976 and repealed in
1986. C
AL. PENAL CODE §§ 248–57 (1957), partially invalidated by Eberle v. Mun. Court
192 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 25:121
These transformations in the law were driven by changing public attitudes—a
shift in the prevailing moral climate that was spurred, in part, by publications like
Confidential. By the end of the 1950s, there were significant changes in public opin-
ion regarding censorship.
661
The 1960s saw far less opposition to sexually suggestive
material than the previous decade; sexual imagery abounded in the culture, and “sex
became an integral part of the public domain,” observe historians John D’Emilio and
Estelle Freedman.
662
With their daring exposés of public figures’ sexual affairs, Con-
fidential and the scandal magazines altered popular sensibilities around the public
discussion of sexual matters. Confidential contributed to a more open cultural milieu
that encouraged freedom of expression and freedom of the press.
Confidential’s legacy lives on in America’s tabloid culture. Robert Harrison has
been described, rightly, as the godfather of tabloid journalism, and his style and tactics
spawned scores of imitators, from The National Enquirer, which debuted in 1965, to
People (1974) to TMZ (2005).
663
Confidential transformed the nation’s media more
broadly. By 1960, elements of the “scandal magazine” style had become a part of main-
stream journalism.
664
“[M]any high class . . . magazines” were starting to print “eye-
raisers and ‘inside stuff’ that tabloid lawyers delete,” gossip columnist Walter Winchell
wrote in 1957.
665
Weekly magazines were publishing sensational material that “would
have been censored by the attorneys of even Confidential,” and family magazines
were digging up scandalous matter “in much the same manner that Confidential would
have done.”
666
Confidential ended the “hero-worshiping era” of Hollywood.
667
After Confidential,
“the public no longer expect[ed] its screen heroes to be [idols] who regularly pay off
the mortgage, teach Sunday School, and retire by 10 each night,” Jerry Giesler told the
127 Cal. Rptr. 594 (Cal. Ct. App. 1976), repealed by Act of June 9, 1957 ch. 141, 1986 Cal.
Stat. 311.
661
WALKER, supra note 294, at 232.
662
D’EMILIO & FREEDMAN, supra note 63, at 300.
663
In 1965, Newsweek wrote with alarm about the rising circulation of the tabloid The
National Enquirer. “The editorial policy behind these profits is unabashedly simple. . . . If a
story is good, no matter how vile,” it would run it. No Matter How Vile, N
EWSWEEK, Jan. 18,
1965, at 48 (internal quotation marks omitted). The Enquirer was based on “tips” from news-
paper reporters, “for stories too ghastly to appear in regular dailies.” Id.
664
Id.; see also HUNTER WITH MULLER, supra note 625, at 185.
665
Walter Winchell, Broadway & Elsewhere: The Broadway Orbit, LOGANSPORT PHAROS-
TRIBUNE (Ind.), Dec. 17, 1957, at 4.
666
Rushmore, supra note 40, at 34, 37 (“Even the sedate movie fan magazines that for
years had been publishing details of the stars’ eating habits and preferences in such things as
clothes, homes and perfumes, now began to use semi-sensational materials with suggestive
titles over every story.”); see also GOODMAN, supra note 100, at 53. “The one contribution
the expose type [magazine made] to the field of journalism was to emphasize that people are
interested in other people,” noted one commentator in 1961. Hy Gardner, Hy Gardner Calling,
OGDEN STANDARD EXAMINER (Utah), Apr. 2, 1961, at 6. “This led to more national magazines
publishing more candid personal stories than ever in history, many in the first person.” Id.
667
Crosby, supra note 96, at 4 (“When I was a boy . . . fan magazines were entirely filled
2016] THE MOST LOVED, MOST HATED MAGAZINE 193
press near the end of the trial.
668
Rather than shun the scandal magazine treatment, stars
learned to embrace it, turning salacious revelations into part of their public personas.
669
In early 1958, one critic noted that “[i]t was only a few weeks ago that movie stars
were taking to the hills to escape questioning as witnesses in a Hollywood libel trial
against a scandal magazine. Now they are literally tumbling over each other to tell it
all in slick-paper magazines.”
670
For years, Robert Harrison remained bitter about what happened to Confidential.
In 1964, Harrison was interviewed by journalist Tom Wolfe for Esquire magazine.
671
Harrison said he was working on creating a tabloid called “Inside News” (“This is
going to be bigger than Confidential,” he promised), and also thinking of writing his
own memoir: Now It Can Be Told.
672
None of these ever came to fruition.
“You couldn’t put out a magazine like Confidential again,” Harrison told Wolfe.
673
“You know why? Because movie stars have started writing books about themselves! . . .
They tell all! No magazine can compete with that.”
674
with chocolate marshmallow sauce. . . . Then ‘Confidential’ magazine came along. Overnight
the character of our movie goddesses changed . . . .”); Shearer, supra note 454, at 22.
668
Shearer, supra note 454, at 22.
669
Editorial, Tarnished Glitter, SALEM NEWS (Bos.), Jan. 16, 1958, at 4.
670
Id. As Walter Winchell wrote in late 1957, “[i]t’s getting rougher for [gossip] colum-
nists when celebs peddle the lowdown on themselves that they threaten to sue about.” Walter
Winchell, On Broadway, DAILY RECORD (Scot.), Dec. 16, 1957, at 4.
671
See Wolfe, supra note 16.
672
Id. at 89.
673
Id. at 157.
674
Id.
