Literary Bootlegging

By 1922, a black market had emerged in New York for banned books. Distribution of such “obscene” material remained illegal in the state until a 1948 Supreme Court decision struck the law down as unconstitutional.

This 1922 New York Times Magazine article detailed the underworld for books and other literary works:

And now a committee in Boston places “Simon Called Peter” on the black list. The Roman Catholics put the works of Anatole France on the Index. In New York the latest additions to the list of tabooed books are “A Young Girl’s Diary,” “Casanova’s Homecoming,” and “Women in Love.” All of these books are, however, to be had surreptitiously.

Distributing such a book could be punished by up one year in prison or a $100 fine for each offense, equivalent to about $1,785 in 2022 dollars.

1948’s Supreme Court decision Winters v. New York would later strike down the law as unconstitutional, on both free speech and vagueness grounds. A man named Murray Winters was convicted of intending to sell magazines deemed indecent, namely ones featuring lurid details of real-life tales from society’s criminal element.

The ruling overturning Winters’ conviction was 6-3. Justice Stanley F. Reed wrote for the majority opinion:

Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to !he protection of free speech as the best of literature.

Justice Felix Frankfurter wrote for the minority dissent, noting that New York was one of 20 states at the time with a similar law on the books, all now rendered unconstitutional:

This body of laws represents but one of the many attempts by legislatures to solve what is perhaps the most persistent, intractable, elusive, and demanding of all problems of society – the problem of crime, and, more particularly, of its prevention. By this decision the Court invalidates such legislation of almost half the States of the Union.

2021 saw an unprecedented number of attempts to ban books from libraries or schools, according to the American Library Association, at least since they began tracking such statistics 20 years prior.

In April 2022, New York Public Library began offering access to digital copies of certain banned books for free, to anybody age 13+, anywhere in the country — not just New York City. “Making these books available shouldn’t feel like an act of defiance,” NYPL President Tony Marx wrote in a blog post, “but sadly, it is.”

Literary Bootlegging

Published: Sunday, August 6, 1922

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