The nettlesome question of the posthumous rights of authors acquired a few more nettles the other day when the attorney general of Maryland ruled that H.L. Mencken's private diaries may be published if his literary executor so desires. The facts of the case leave little doubt that Stephen Sachs had no choice but to reach this opinion, but facts are not always the end of the story; Mencken's executor is still left with a hard decision in which the obligation to respect Mencken's wishes clashes head-on with the desire of scholars and readers to see his previously unpublished work.

At the outset let me declare my interest, or lack of interest, in the matter. Five years ago I signed a contract to write a biography of Mencken and subsequently made public declaration of my plans; as a prospective biographer I naturally would have much to gain from the publication of the diaries and the freedom to quote from them that this would entail. But earlier this year my publisher and I canceled our contract by mutual agreement, and I have abandoned the biography; though I maintain a lively interest in Mencken and am eager to read the diaries, I am unaware of any way by which I can now profit from their publication and therefore hope that I can write about the issue with some objectivity.

It is not an easy one to write about, though, because it is exceedingly difficult to figure out precisely what Mencken's wishes and intentions were. At his death on Jan. 26, 1956, Mencken left a large storehouse of sealed material in the hands of various libraries, notably the Enoch Pratt Free Library in Baltimore, a public institution that he named as executor -- and a principal beneficiary -- of his will. This storehouse he divided into several sections, each of which was to be opened at a specified date: one in 1971, for example, another in 1981, the last in 1991.

The material upon which Sachs ruled comes from the 1981 batch, which was unveiled with no small fanfare upon the 25th anniversary of Mencken's death and which has caused the library's trustees little except headaches ever since. The material was in nine tightly sealed volumes, four of them "Letters and Documents Relating to the Baltimore Sunpapers" and the remaining five containing the diaries. According to those who have examined these documents, the Sunpapers volumes will be of interest to few readers apart from historians of Baltimore's distinguished newspapers; the diaries, though, are another matter altogether.

This is so because in a memo written two years before his death, Mencken asked his brother and sister to limit access to the diaries to "graduate students or those of a higher grade engaged in serious, critical or historical investigation." Confronted with this request, and with the stated desire of Knopf, Mencken's publisher, to bring out the diaries in book form, the library's trustees asked the attorney general's office for a ruling. What they got was Sachs' decision that since Mencken's request "does not have the legal effect of a will because it was not executed with the formalities required for wills," publication is permissible.

Further, the diaries are a special case not because they are new instances of the legendary Mencken style -- two people who have read them say that they are uncharacteristically flat and inert -- but because they permit us to see a more unbuttoned, and far more unattractive, Mencken than we have previously encountered. Though readers of the diaries vary in their judgment of how they are to be interpreted, they seem unanimous in the view that they show his racism and anti-Semitism in a new and most unflattering light. Apparently the diaries leave us little choice except to conclude that Mencken's notorious prejudices were more than comic effects; apparently he really did have strong feelings about Jews, blacks and others not blessed, as he was, with pure German blood, and those feelings seem to have been contemptuous.

Given the nature of these diaries, then, imagine yourself in the position of the trustees. On the one hand, as Mencken's literary executors they presumably would like to honor his stated if nonbinding wishes and, further, to protect his reputation from the damage the diaries almost certainly would do to it if given a full public airing. On the other hand, they are confronted with material that clearly is "news," even if only of a literary sort, and as people charged with overseeing a public library they would not like to be put in the position of suppressing the free flow of the written word. Just to make matters worse for them, they must think of the library, which is always strapped for funds and which would profit from publication of the diaries.

With all of these conflicting interests and pressures confronting them, the trustees must be pardoned if they approach their decision about the diaries with trepidation. Ordinarily my unsolicited advice to them would be to close the diaries and keep them closed -- to respect the wishes of the writer whose literary estate they are charged with protecting. The problem, though, is that with Mencken it is not all that easy to determine what his wishes really were, and there is good reason to believe that he would have taken satisfaction in having the diaries published.

For whatever it is worth, my private devil theory is that Mencken stretched out the unveiling of his private papers over 35 years not merely out of respect for those whom he mentions in these papers but in order to keep himself in the news, to assure that he would not drift quietly into neglect. I think he knew that the opening of each new batch of papers would be an event of some consequence, and I think he took no small amount of pleasure in contemplating this likelihood. No doubt he did so with a chuckle, for he may well have regarded the whole enterprise as something of a joke; but in his later years his reputation was about all he had left to cling to and he probably was absolutely serious about maintaining interest in himself and his work for as long as possible.

If this speculation has any merit, then the trustees probably have reason enough to let the diaries be published: If Mencken insisted on being ringmaster at his own posthumous circus, then why shouldn't the diaries be part of it? If he really didn't want them widely read, why didn't he destroy them? But there is one essential caveat: If publication is indeed authorized, the trustees must stipulate that it be without expurgation. There cannot be any effort, however well-intentioned, to sanitize the diaries -- and thus Mencken -- by deleting material that many readers will find offensive; if the diaries give us the real Mencken, and if the real Mencken was a bigot, then that is what we must have. No one familiar with Mencken's own views on journalism and publishing can believe that he would have wished otherwise.