KC Johnson

Smathers on Fortas

Strom Thurmond invited a figure named James Clancy, head of “Citizens for Decent Literature,” to testify regarding Fortas’ votes against laws outlawing pornography, which he portrayed as part of “a set of decisions by the U.S. Supreme Court which completely throws caution to the winds, and is an open invitation to every pornographer to come into the area and distribute millions of copies—and I am not exaggerating—millions and millions of copies of what historically had been regarded in France as hardcore pornography.”

Clancy highlighted one ruling, a one-sentence 5-4 decision, Schackman v. California, which overturned the decision of a lower court denying 1st amendment protection to a film called 0-7. Clancy shared with interested senators the film in question—prompting this concerned, and occasionally hilarious, call between the President and Florida senator George Smathers (one of only three Southern senators to back the Fortas nomination).

President Johnson and George Smathers, 25 July 1968, 11.30pm, ref. no. 13218

Now, you get a real nut like Strom Thurmond, who up until this point hadn’t really made much sense . . . there are just enough people that will fall for a line like this, that it worries me, very much.

George Smathers: The Supreme Court, by a 5-4 decision, which they did not write an opinion, but the Court itself—it’s what they call per curiam, by the Court. They just ruled 5-4 that it was all right. And they, apparently, looked at the film.

Now, that was all right till the damn thing—Strom Thurmond, and this Committee for Decent Literature, and so on, decency—got hold of the damn thing and began to circulate it around. Strom Thurmond got a hold of it. And he invited (Strom did) the newspaper people to come in and look at it with him. And it’s one of those things.

So, here it is, Fortas is lined up having voted for this circulation, or the allowance of the circulation of this thing, pornographic movie. So what happened is a lot of guys that don’t want to be recorded as for, that are looking for some reason to be against him . . . I’ve seen a number of fellows who have been talking about it –a number of senators are talking about it: “You know, God, I can’t be for a fella that let this kind of literature out on the newsstand, and be showing it.” As usual, they are making a lot of exaggerated statements in connection with it—such as, that it was being shown in public movies, and it’s your mother and your sister and your daughters, and everybody to go see this damn thing.

Well, because there was no real opinion written by the Court, it’s really, it’s difficult to know exactly what they were saying. There are five cases in this area, having to do with obscenity and pornographic stuff. And, frankly, Abe had voted in each instance that it was a violation of free speech to limit this.

Now, you get a real nut like Strom Thurmond, who up until this point hadn’t really made much sense . . . there are just enough people who will fall for a line like this, that it worries me, very much. And they’ve invited Abe back to talk about it, and I just think that—frankly, my first reaction is that he just ought not to come. And just see . . .

And my other reaction is at the moment—[Michigan senator] Phil [Hart] went to see the movie. I said, “I’m not going to see the damn movie, because I want to be in a position to say, as far as I’m concerned, I don’t look at any kind of goddamned pornographic stuff.” It’s all over the streets, and always has been. And it’s a man’s choice. And I choose not to look at it. But others may choose to look at it. And if a fella wants to look at it, why, the Court’s voted that he can. That’s a matter of choice.

I don’t look at it. I haven’t seen it, so I’m not passing judgment on whether or not this is the kind of thing that should be shown around, or shouldn’t. Now, Phil’s view was that probably you should see it. And he didn’t think it was so bad, although when he told me that, “I’ve seen many just like that, and I’m sure most every fella just has, everyone belonging to sort of a man’s club.”

President Johnson: [The President chuckles.] Mm.

Smathers: But they’re really making a big thing out of it. Now, of course, a poor fellow like Bob Byrd of West Virginia, and [Virginia senator William] Spong hasn’t said what he’s going to do, but I heard him agonizing about it. It’s sort of a marginal thing. And I really think it’s pretty dangerous, insofar as Abe’s concerned.

President Johnson: Well, you ought to tell him that. You ought to tell Paul [Potter] that.

Smathers: Well, I tried to reach Paul today; I couldn’t get him. Just to tell him, my God, they better think hard as to what the answer is, because this is a really tough one. John McClellan, who heretofore had not opened his mouth pretty much about Abe, has now come out very strongly; and in the meeting yesterday, when Phil [Hart] made the motion that we take up for consideration Fortas, and Eastland just shot it real quick, well, God damn, he did say, “John, Senator McClellan has asked that it go over for a couple of weeks.”

So, then . . . I’m sitting there, I’m the junior member on that committee; and I finally got into it, and said, “Now, I want to understand; we’re using up the week, the courtesy week, is this what John’s asking for?” Well, John starts preaching about this movie, that he had seen, with Phil Hart, and with [Nebraska senator Roman] Hruska, I guess it was. (Oh, it wasn’t Hruska; it was [Hawai’i senator Hiram] Fong, I guess it was.)

But anyway, they were all, seemed to be pretty well shook up by it—not all of ‘em. John was, but Phil Hart wasn’t. John was preaching, and ranting and raving about how this kind of thing was ruining the life of his grandchildren, and everybody else. He wanted a long time to look into this, and he was going to look into it very deeply.

President Johnson: He ought to go see this Graduates [sic]. [Chuckles.]

Smathers: That’s right. Well, anyway, the only thing I was able to get, the contribution I was able to make, was that this was technically the use of the one week, so that that could not be asked for again. And I finally got that established that John was really . . .

President Johnson: Well, will you vote on it next Wednesday?

Smathers: So, we’re due to vote on it next Wednesday.

President Johnson: Well, won’t they filibuster it?

Smathers: Yeah. They’re going to filibuster it again.

President Johnson: In the committee?!

Smathers: In the committee. That’s what I think is going to happen—they’re going to filibuster it in the committee.

President Johnson: Well, can you just do that, constantly?

Smathers: Well, with the cooperation of [Jim] Eastland, I don’t know how you’re going to stop it. If [Mike] Mansfield would just let us meet, and then just agree that this—have the Senate go out right away, so that they can’t make a point of order, we could just sit there. I’m prepared to sit there, and I think others are.

President Johnson: Well, wouldn’t he just adjourn the committee, then?

Smathers: I don’t think that he can just summarily adjourn the committee. I don’t . . .

President Johnson: You better talk to Hart, and get some strategy, and I’ll talk to you tomorrow.

Smathers: All right. OK, sir.

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