Saul Landau and Queer Legal History: A Tribute

Saul Landau passed away this week from bladder cancer, at the age of 77. He is primarily remembered as “a determinedly leftist documentary filmmaker and writer,” with a “prolific career that spanned nearly 50 years,” during which he “wrote 14 books, directed or produced 10 film and television documentaries, and worked as an investigative journalist.” Personal testimonies at the Nation and Huffington Post commemorate him in glowing terms; it sounds as if he was a genuinely good and generous person. 

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I didn’t know Landau, though for many years interviewing him was on my to-do list. I now profoundly regret not having followed through, and I’d like to pay tribute by offering an angle that seems wholly absent from his various obituaries: his minor, but noteworthy, role in queer legal history.

In the mid-60s , Saul Landau was a Bay Area activist engaged in cultural work with the S.F. Mime Troupe; you can see a 1965 playbill for their production of A Minstrel Show; or, ‘Civil Rights in a Cracker Barrel’ here. I don’t know enough about the play to offer substantive commentary, though its program notes declaring, “we bring back the stereotype Negro—the minstrel,” suggest it was perhaps one of the many moments in which the white-dominated New Left should have considered racial privilege a bit more deeply.

The playbill also notes that the troupe, under Landau’s direction, had been screening avant-garde and experimental films, such as Stan Brakhage’s work and Jean Genet’s Un chant d’amour.

Best known for his homoerotic prison novels (and later, his plays), the French author Genet had directed his only film in 1950, but it remained largely unviewable in the United States for years—overt and even semi-overt expressions of queer sexuality were constantly targeted by obscenity laws, from Bob Mizer’s Physique Pictorial to Kenneth Anger films like Fireworks and Scorpio Rising (I’ve written an article on this, which I’d be happy to share with anyone interested). Un chant d’amour went beyond any of these American works in its graphic content, offering a 26-minute fever dream without words:

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In the mid-60s, the queer avant-garde remained a key battleground in the legal struggles over sexual expression (for instance, Bryan Frye has done a great job of excavating the ordeals of Jack Smith’s Flaming Creatures in a recent law article). In 1964, Landau screened Un chant d’amour at the Mime Troupe’s home base, an abandoned church in the Mission District; according to Landau, they had already been harassed by the police for screening Smith’s work, but the crowd for Genet’s film ran into the hundreds. Police busted this one too, seizing the film. But the DA declined to press obscenity charges because he didn’t believe he’d win the case—San Francisco was where Allen Ginsberg’s Howl had been exonerated, after all.

Landau wrote a fascinating essay on the film in late 1964 (reprinted in Scott MacDonald’s Canyon Cinema), noting that “No one quite knew how to deal with the film, with their concepts of pornography, with their image of the self, and with their easy-to-deal with clichés about homosexuals and homosexuality. In this sense it was very threatening.” Indeed, he added, “several heterosexuals [the context makes clear he means men] confessed that they became aroused.”

After that decidedly queer screening, Landau was less fortunate in Berkeley: after showing the film once (at the campus YMCA in Stiles Hall), Landau was informed by police that he faced arrest if he did it again. So he filed an action for declaratory relief against the authorities—and lost. As the trial court explained, “the film explicitly and vividly revealed acts of masturbation, oral copulation, the infamous crime against nature (sodomy), voyeurism, nudity, sadism, masochism and sex and that it was ‘nothing more than cheap pornography calculated to promote homosexuality, perversion, and morbid sex practices.’”

An appellate court affirmed, with a very dubious bench-doth-protest-too-much assurance that “At the outset, we wish to make it patently clear that our conclusion is not based on the particular relationships depicted in “Un Chant d’Amour”—before going on to list its “acts of sexual perversion.” The court noted the artistic presentation of the film, but then made much of the fact that it is silent—which apparently prevented it from having a “dominant theme.” It’s a convoluted opinion—you can read it here.

So upward and onward to the U.S. Supreme Court—which was more or less reversing all obscenity convictions by this point. Except queer ones—in the 1966 Mishkin case it affirmed the conviction of NYC smut merchant Edward Mishkin for his BDSM and lesbian-themed merchandise. I’ve written about this in an article and my book, but this citing of myself is getting ridiculous, so instead let me suggest Marc Stein’s Sexual Injustice: Supreme Court Decisions from Griswold to Roe, a powerhouse analysis of the Court’s heteronormative limits.

We can see the heteronormative logic of the court in operation from the very first step, the clerk memos that summarize and suggest angles on cases for the justices; here’s what a clerk sent Chief Justice Earl Warren in April, 1967:

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PEJ, memo to Earl Warren, 4/22/67, Warren Papers, box 300, folder 8, Library of Congress

That term, as the Court reversed obscenity case after case, it affirmed in Landau v. Fording. Though a four-justice bloc voted to reverse, Justice William Brennan (usually among the liberals on obscenity) sided with the conservative majority. Landau (and Genet) had lost.

There’s much more that could be said about the legal complexities of the case—which, had it come up just a year or two later, would quite likely have turned out otherwise—but Landau does not seem to have belabored it. By that point he was gearing up for his impressive filmmaking career, and since there were no actual criminal penalties involved, it wasn’t of great personal consequence to him.

Still, the case that bore his name took the defense of a landmark queer film to the highest court in the nation—and without question should have won. By 1967, any text possessed of the slightest social value was (theoretically) not obscene by prevailing doctrine, and Genet’s short masterpiece was undeniably valuable, then and now. Landau v. Fording was one more reminder—a minor one, but nonetheless telling—of the legal double standard that even today continues to marginalize and discriminate against queer sexuality. Un chant d’amour, meanwhile, is available on YouTube. And still, I suppose, technically obscene, since Landau v. Fording has never been reversed. Don’t tell Google corporate.

So, for placing his name on this bid for queer sexual freedom, in addition to his numerous more touted accomplishments, I offer this tribute to Saul Landau. May he rest in peace.

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