From Nights of Horror #11 (1954). Taken from Secret Identity and posted by the Web-Ed on 04/12/2013 (click to double-size).
Nights of Horror #11 featured a story entitled "Web of Evil" in which young Ann Ames is subjected to the debauchery of her supposed Aunt Irene and a man named Mr. Harley. Most of the details are predictably tawdry, but apparently her Aunt believes in old-fashioned discipline and at one point decides to apply the hairbrush. Now the hairbrush is one implement that really cries out for the OTK position, but for some reason the writer, Clancy (here calling himself "Ron North"), wanted Shuster to use the incredibly ugly and awkward position shown here. That's actually an assumption on our part - no one can know exactly what instructions Joe Shuster received - but given the nature of the material, we think it's a good bet Clancy described the content he wanted for each illustration to Shuster. Aunt Irene seems to be sitting half on the sofa and half astride Ann, whose head and neck are twisted uncomfortably. Shuster drew Ann's panties attractively enough in other panels, but here makes them look like boyshorts (ahead of his time, but we don't like them), and her bottom is oversized and not at all well-presented. This is the least of all of Shuster's spanking efforts that we have seen.
Now back to the legal efforts to have Nights of Horror destroyed. Kingsley Books appealed the case to the U.S. Supreme Court, which rendered its decision in June 1957, three years after the books had first been offered for sale. The case was Kingsley Books, Inc. v. Brown (354 U.S. 436) and while Yoe gives a summary in Secret Identity, we decided to look up the case for ourselves. By the narrowest possible margin, 5-4, the Court ruled in favor of New York and upheld the lower court's injunction against further distribution and order that the books be destroyed.
Justice Frankfurter, who in 1920 had helped found the American Civil Liberties Union(!), wrote a rather narrow opionion for the majority, holding on technical grounds that New York could restrain the publication of Nights of Horror: "It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law." He was joined by Justices Clark, Whittaker, Burton, and Harlan.
Chief Justice Earl Warren dissented: "It is the manner of use that should determine obscenity. It is the conduct of the individual that should be judged, not the quality of art or literature. To do otherwise is to impose a prior restraint, and hence to violate the Constitution." Note the concern with "prior restraint" - even Warren is not suggesting (as we would) that the State lacked the power to punish obscenity after a judicial finding that the materials were, in fact, obscene.
Justice Brennan, a notorous judicial activist, wrote a separate dissent based around the lack of a trial by jury. Brennan was later to rule against public officials trying to intimidate the press with threats of libel suits in a much more famous case, New York Times v. Sullivan.
Justice Douglas (joined by Justice Black) also dissented, but wrote a separate opinion. "nothing is more devastating to the rights that it [the First Amendment] guarantees than the power to restrain publication before even a hearing is held. This is prior restraint, and censorship at its worst." [Emphasis added] Douglas was not our model for what a Supreme Court Justice should be, but he was right on the money here, as he was to be also in the later landmark obscenity case Miller v. California (1973).
None of the Justices mentioned Shuster's drawings, and in fact may never have seen them as they were not called on to determine whether Nights of Horror was, in fact, obscene. It would be interesting to know how they would have ruled on that question. We don't know of any other case in which the U.S. Supreme Court came close to reviewing materials which contained spanking illustrations.
