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U



OBSCENE' LITERATURE



AND



CONSTITUTIONAL LAW



A FORENSIC DEFENSE OF FREEDOM OF THE PRESS



BY



THEODORE SCHROEDER

P

LEGAL COUNSELLOR TO THE MEDICO-LEGAL SOCIETY OF NEW YORK
COMPILER OF FREE PRESS ANTHOLOGY



" Let us be fret from all fear of the world or of consequences, in a
manly purpose to find and follow the truth as we see it." HUGH
O. PENTECOST.



PRIVATELY PRINTED

FOR FORENSIC USES

NEW YORK
1911

Copyright by the Author, 1911



" HE that would make his own liberty secure, must
guard even his enemy from oppression, for if he vio-
lates this duty he establishes a precedent that will
reach to himself,"

Thomas Paine,

" Those powers of the people which are reserved
as a check upon the sovereign can be effectual only so
far as they are brought into action by privats individ-
uals, Sometimes a citizen by the force and perseve-
rance of his complaints, opens the eyes of a nation,"

DE Lolme,

" I will be harsh as truth and as uncompromising as
justice, I am in earnest ; I will not equivocate ; I will
not excuse; I will not retreat a single inch; and I
will be heard,"

Garrison,



Prolegomena
Chapter I.
Chap. II.

Chap. III.

Chap. IV.
Chap. V.

Chap. VI.
Chap. VII.

Chap. VIII.



Chap.

Chap.

< Chap.

Chap.



IX.

X.

XI.

XII.



Chap. XIII.

Chap. XIV.

Chap. XV.

Chap. XVI.

Chap. XVII.



CONTENTS

PAGE

. 7

A Statement of the Contentions . 1 1

OntheAdver.se Emotional Predisposition 24
No " Obscene " Literature at Common

Law . . 33

The Etiology and Development of Our
Censorship of Sex-Literature . 42

The Reasons Underlying Our Consti-
tutional Guarantee of a Free Press,
Applied to Sex-Discussion . . 74

Obscenity, Prudery, and Morals . 101

On the Implied Power to Exclude " Ob-
scene " Ideasjfrom the Mails . .129

Concerning the Meaning of "Freedom of
the Press" . . . . 142

The Judicial Destruction of Freedom of
the Press 154

Judicial Dogmatism on " Freedom of the
Press" 163

The Historical Interpretation of " Free-
dom of Speech and of the Press" . 206

Science versus Judicial Dictum : A State-
ment of Novel Contentions and a
Plea for Open-Mindedness . . 240

Ethnographic Study of Modesty and
Obscenity 258

Psychologic . Study of Modesty and

Obscenity 271

Uncertainty of the "Moral "Test of
Obscenity . . . . . .279

Varieties of Official Modesty . . 302
Varieties of Criteria of Guilt . . 326

328^51



CONTENTS

Chap. XVIII. " Due Process of Law " in Relation to
Statutory Uncertainty and Construct-
ive Offenses. Part I. The Scientific
Aspect of Law ....

Chap. XIX. "Due Process of Law" in Relation to
Statutory Uncertainty and Construct-
ive Offenses. Part II. General Con-
siderations Concerning Uncertainty and
Due Process of Law ....

Chap. XX. "Due Process of Law" in Relation to
Statutory Uncertainty and Construct-
ive Offenses. Part III. Historical
Interpretation of "Law" in Relation
to Statutory Certainty

Chap. XXI. "Due Process of Law" in Relation to
Statutory Uncertainty and Construct-
ive Offenses. Part IV. Certainty Re-
quired by Modern Authorities

Chap. XXII. "Due Process of Law" in Relation to
Statutory Uncertainty and Construct-
ive Offenses. Part V. The Synthesis
and the Application

Chap. XXIII. Ex Post Facto Criteria of Guilt are
Unconstitutional



PAGE



343



355



365



384



402



416



ERRATA.






Page 31 : Westermarck, Finnish scholar, not Swedish.

P. 71 : Foot-note 20 probably refers to whole article, as no refer-
ence figure appears in the text.

P. 308 : Foot-note corresponding to Reference 91 (Ohio Decameron
case, U. S. Court) is missing.

P. 318 : Foot-note, Walls tone craft, not "Woolstonecraft."

P. 320: Foot-note 113 should refer to Prof. W. I. Thomas, not to
"Fables for the Female Sex."

P. 392 : Foot-note corresponding to Reference 63 is missing.

P. 401: Foot-note 86, quoted from memory, is State vs. Holland,
37 Mont., 393." Also, a decision from Oregon or Washington holding
invalid an anti-cigarette ordinance for want of a definition of what con-
stitutes a cigarette.

P. 401 : The foot-note here, Mcjunkins vs. State, 10 Ind., 145
(A. D. 1858,) should go to page 406 as foot-note 87.

P. 406 : Foot-note now numbered 87 should be numbered 88, Cook
vs. State, 59 N. E. Ind. 489-90 (1901).

P. 407 : Foot-note 89 should be, " Requoted from Hey wood's
Defense, p. 29."

P. 407 : Foot-note 90 should be, Ex parte Andrew Jackson, 45 Ark.
164 (1885).

P. 407 : Foot-note 91 should be, U. S, vs. Commerford, 25 Fed.
Rep. 904, West. Dist. of Texas.

P. 407 : Foot-note now numbered 91 is astray, there being no
corresponding reference in text.

There are quite a number of breaks in the continuity of several
series of the foot-notes and the corresponding reference figures in the
text, due to the transference of parts of the text to other places in the
book after the citations and the foot-notes were linotyped.



PROLEGOMENA

I understand a preface to be the place used by authors for
explaining the reason of the existence and the character of
their performance, and sometimes to aid the reader to some
advance appreciation of the author's purpose and viewpoint.
To these ends I will devote this introduction.

My numerous smug friends, who pride themselves on their
"eminent respectability," often reproach me gently for my ex-
tensive advocacy of freedom of speech and press, and of
uncensored mails and express. To defend the right of all
humans to an opportunity to know all there is to know, even
about the subject of sex, to the polluted minds of my "pure"
friends, is to defend an "uncleanness " not at all unclean so
far as it relates to their own bodies, but "unclean" to talk and
read about not "unclean" as to any acts or facts in their own
lives, but ''unclean" only to admit a consciousness of those
facts. I reluctantly confess that all such hypocritical moral
cant, or diseased sex-sensitiveness, arouses in me the most
profound contempt of which my phlegmatic nature is capable.
Perhaps that is ONE reason why I was impelled to do this un-
compensated and unpopular work and sometimes to do it in a
manner that is devoid of tact, according to the judgment of
those who dare not countenance robust frankness.

They say to me, "What do you care? You know all you
wish to upon the tabooed subject; what do you care, even
though the general public is kept in ignorance, and a few
[thousand] go insane as the result? That doesn't harm you
any, and may be the public is benefited, in that, together with
serious and searching sex-discussion, much real smut is also
suppressed." Such has always been the specious plea of the
shortsighted and the cowardly, during the whole period of the
agitation for a secular state and freedom of speech.

The answers to such specious "arguments" have been often
made in the contests of past centuries, and I can do no better
than to quote the answer of Dr. Priestly : "A tax of a penny is
a trifle, but a power imposing that tax is never considered as a



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

trifle, because it may imply absolute servitude in all who sub-
mit to it. In like manner the enjoining of the posture of kneel-
ing at the Lord's supper is not a thing worth disputing about
in itself, but the authority of enjoining it is; because it is in
fact a power of making the Christian religion as burdensome
as the Jewish, and a power that hath actually been carried to
that length in the church of Rome. * * * Our ancestors,
the old Puritans, had the same merit in opposing the imposition
of the surplice that Hampden had in opposing the levying of
ship money. In neither case was it the thing itself they ob-
jected to, so much as the authority that enjoined it and the
danger of the precedent. And it appears to us that the man
who is as tenacious of his religious as he is of his civil liberty
will oppose them both with equal firmness. * * * The
man of a strong and enlarged mind will always oppose these
things when only in the beginning, when only the resistance
can have any effect; but the weak and the timid, and short-
sighted, will attempt nothing till the chains are riveted and re-
sistance is too late. In civil matters the former will take his
stand at the levying of the first penny by improper authority,
and in matters of religion, at the first, though the most trifling,
ceremony that is without reason made necessary, whereas
the latter will wait till the load, in both cases, is become too
heavy to be either supported or thrown off."

In itself it may not be of great importance that by uncon-
stitutional statutes, much disagreeable literary and inartistic
matter about sex is suppressed, nor even that the best scien-
tific literature about sex is withheld from the laity, and to some
extent even from physicians ; it may not even be of importance
that, as a result of this general compulsory ignorance about
sex, thousands of people are in asylums who would not be
there but for our legalized prudery, and compulsory ignorance,
but it is of infinite importance to destroy a precedent which im-
plies the admission of a power to wipe out any literature upon
any subject, which, through popular hysteria or party passion,
may be declared "against the public welfare."

So long as the present laws against "obscene" literature
stand unchallenged as to their constitutionality, we admit that
here, as in Russia, liberty of the press is liberty only by per-
mission, not liberty as a matter of right. With the "obscenity"
laws as a precedent, our censorship has grown until now (and
I say this deliberately and later may furnish the proof of it),

8



PROLEGOMENA.

liberty of the press in the United States is more perniciously
and more extensively curtailed than it was in England at the
time of our revolution. That sounds strange to the American
dullards who on the Fourth of July talk about liberty without
knowing its meaning, but a comparison of the laws then and
now will justify my conclusion.

Most of the following essays have already appeared in va-
rious popular, radical, medical and legal journals. My in-
tention was primarily to address an argument to the members
of the bar generally and to others interested. I have not
thought it best to change any of the substance of my argu-
ment or the manner of stating it on account of the fact that it
may be presented to a judicial tribunal. I hope I do not over-
estimate the intellectual hospitality of our appellate courts, by
not having taken into account those little tricks of intellectual
expediency which lawyers often feel compelled to resort to
when addressing judges of smaller mental caliber. I have
bluntly stated what to me seemed to be the truth and I wish
to remind the judges who may do me the honor to read this,
that no litigant whose interests may 'be involved can be justly
held accountable for my indiscretions or want of tact. I am
almost glad that I did not have time thoroughly to revise
these essays after their publication in the magazines, lest I
should have been tempted to withdraw the compliment to our
courts, which is implied' in my robust frankness.

At the very outset, I feel an urgent necessity for express-
ing some misgivings which I entertain, as to the arguments
that follow, and thus incidentally I express my apologies there-
for if such are deemed to be due from me. In many places,
it seems to me that I have unnecessarily elaborated what per-
haps is so elementary that I should have assumed every lawyer's
familiarity with it. If I fail to make this assumption, it is
because I remember that thousands of lawyers, in as many
cases, have had opportunity, and courts have had the duty, to
make a practical application of these fundamental principles,
without giving a hint that they knew of their existence. Many
of these cases have gone to appellate courts, including the
Supreme Court of the United States.

Am I in error in thinking these principles elementary ? Or
is it error to assume that innumerable distinguished lawyers
and courts are familiar with elementary principles ? These are
the questions which perplex. It seems to me that others have



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

unconsciously taken too much for granted ; shall I then deliber-
ately repeat their error? In this perplexing situation, I must
resolve all doubts against myself. In view of all the facts relat-
ing to innumerable prosecutions where the principles herein-
to-be contended for should have been applied, I feel myself
unqualified to determine what is safe to take for granted. If
I am wrong in that which I will claim, the courts will correct
me, when this argument reaches them, as it ultimately will. If
I am right, I dare not take for granted that others know it as
axiomatic, for I must heed the warning given me by the re-
corded experience of others.

In closing, I must again ask that judges to whom this argu-
ment may be presented will not hold either the lawyers who
may refer to it or their clients responsible for my indiscre-
tions, if I am deemed guilty of such. This argument has been
prepared, as also all possible revised editions of it will be, with-
out reference to any particular case, or any particular court.
Had a thorough revision been possible before book-pubJica-
tion, I should have eliminated many repetitions of thought,
which seemed necessary in preparing the separate magazine
articles.

New York City. THEODORE SCHROEDER.



CHAPTER I.
A STATEMENT OF THE CONTENTIONS

Revised from The Albany Law Journal, Nov., 1907.

I am now making a statement of the questions to be here-
after discussed. I will briefly outline them, giving refer-
ences to a few preliminary discussions in professional peri-
odicals and pamphlets. These contentions, when adequately
presented, I believe must result in the judicial annulment of all
present State and Federal laws against "obscene" literature.
That such laws have been enforced vigorously for nearly half
a century without having their constitutionality seriously ques-
tioned, is as unusual as are the factors to which the Constitu-
tion must be applied in order to reach the result herein con-
tended for. Many of the problems here involved are difficult
of solution to those who are not trained specialists in psychol-
ogy and especially in sexual psychology. Later on, in the com-
pleted argument, when we come to study the nature and psy-
chology of modesty, we will find the explanation of this long
acquiescence to be of the very essence of our emotional life,
which, coupled with the general absence of psycho-sexual intelli-
gence, have so befogged the critical capacity of the members of
the profession as even to preclude a search for the discovery of
such questions as I am about to raise. My contention is that
the postal and other laws against "obscene and indecent" liter-
ature are unconstitutional for the following reasons :

I. Because not within any expressed or implied power of
the Congress to enact.

Syllabus of the Argument: The power to create a postal
system implies the power to pass all laws "necessary and
proper" to the end of executing the power to establish post
offices and post roads, but it does not authorize Congress,
under the pretext of creating and maintaining post offices, to
make the postal system a means to the accomplishment of
ends not entrusted to the care of Congress. The very creation
of a postal system necessarily involves a determination of the

ii



OBSCENE LITERATURE A XL) CONSTITUTIONAL LAW.

gross physical characteristics of that which is to be carried or
excluded and therefore implies the power to determine such
qualities. A like implication cannot be made in favor of a
power to determine what are mailable ideas, because a differ-
ential test of mail matter, based upon the opinions transmitted
through the mails, or the psychological tendencies of such
opinions upon the addressee of the mails, or a differential test
based upon an idea which is not actually transmitted, but is
suggested by one that is transmitted, bears no conceivable
relation to the establishment or maintenance of post offices or
post roads for the transmission of physical matter only.

It may be admitted that the power granted implies the power
to preclude the use of the mails as an essential element in the
commission of a crime otherwise committable, and over which
the Congress has jurisdiction (such as fraud and gambling),
within the geographical limits of its power. But it is claimed
that the power of Congress is limited to the use of means which
are a direct mode of executing the power to establish post
offices and post roads, or some other power expressly granted,
and it cannot, under the pretense of regulating the mails, ac-
complish objects which the Constitution does not commit to
the care of Congress. Such an unconstitutional object is the
effort of Congress, under the pretext of regulating the mails,
to try to use the mails as a means to control the psycho-sexual
condition of postal patrons. 1

Neither can the exercise of the present power be justified as
an incident to the power to regulate interstate commerce, be-
cause the censorship is not limited thereto. It includes Intra-
state transmission as well as that of private letters, or gifts,
which are not at all matters of commerce either Inter-state or
otherwise, and so cannot be upheld as a regulation of Inter-
state commerce. 2

For these reasons the power exercised is not vested in
the Congress at all.

a 2. The postal laws against "obscene" literature are void
under the constitutional prohibition against the abridgment of
freedom of speech and of the press. Likewise all similar State
legislation is void under State Constitutions.

Syllabus of the argument : This constitutional guarantee of

'"ON THE IMPLIED POWER TO EXCLUDE 'OBSCENE' IDEAS FROM THE MAILS."
Central Law Journal, V. 65, p. 177. (Sept. 6, 1907.)

2 Howard vs. 111. Cent. R. R., 28 Sup. Ct. Rep. 141.

12



STATEMENT OF THE CONTENTIONS.

freedom of the press is violated whenever there is an artificial
legislative destruction or abridgment of the greatest liberty
consistent with an equality of liberty, in the use of the printed
page as a means of disseminating ideas of conflicting tendency.
The use of printing is but an extended form of speech. Free-
dom of speech and press is abridged whenever natural opportu-
nity is in any respect denied, or its exercise punished, merely
as such; that is, in the absence of actual injury, or when by
legislative enactment there is created an artificial inequality
of opportunity, by a discrimination according to the subject-
matter discussed, or a discrimination as between different ten-
dencies in the different treatment of the same subject-matter, or
according to differences of literary style in expressing the same
thought. All this is now accomplished under obscenity laws as
at present administered, and therefore our laws upon the subject
are unconstitutional.

This contention involves the establishment of a new defini-
tion of "freedom of the press," based upon the viewpoint that
the framers of the Constitution intended by that clause to en-
large the intellectual liberty of the citizen beyond what it had
theretofore been under the English system. Some State courts
have erroneously assumed that the only purpose was to ex-
change a censorship before publication for criminal punishment
after publication, without the least enlargement of the right to
publish with impunity so long as no one is injured. The con-
tention will be that the Constitution changed liberty of the press
by permission, to Liberty as a right, because thus only can all
citizens be protected in their proper opportunity to hear and
read all that others have to offer, and without which freedom
unrestricted there is no intellectual liberty at all as a matter
of right. 8

X. 3. The "obscenity" laws violate the constitutional guaran-
tee of "due process of law."

Syllabus of the argument : The statute furnishes no stand-
ard or test by which to differentiate the book that is obscene
from that which is not, because of which fact the definition of
the crime is uncertain. Furthermore, it is a demonstrable fact
of science that obscenity and indecency are not sense-perceived

"THE JUDICIAL DESTRUCTION OF FREEDOM OF THE PRESS," in
Government, for Dec., 1908; Albany Law Journal, Nov., 1908.

"THE SCIENTIFIC ASPECT OF 'DUE PROCESS OF LAW,' " in Ameri-
can Law Re-view, for June, 1908.

"LIBERTY OF CONSCIENCE, SPEECH AND PRESS," in The Liberal
Review, for August and Sept., 1906.

"FREEDOM OF THE PRESS AND 'OBSCENE' LITERATURE," N. Y.,
1007.

13



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

qualities of a book, but are solely and exclusively a condition
or effect in the reading mind. This is evidenced in the result
that it has been, and always will be, impossible to state a defini-
tion or test of obscenity in terms of the qualities of a book, or
such a one that, solely by applying the test to any given book,
accuracy and uniformity of result must follow, no matter who
applies the test, nor such that when there is no dispute about
any physical fact of present or past existence, any man may
know in advance of a trial and a verdict, solely from reading
the statute, what the verdict must be as to the obscenity, and
consequent criminality, of every given book. Neither the
statute, nor the judicially created tests of obscenity or in-
decency, furnish any certain advance information as to what
must be the verdict of a jury upon the speculative problem of
the psychological effect of a given book upon an undescribed
hypothetical reader. Their verdict is, therefore, not according
to the letter of any general law, but according to their whim,
caprice and prejudices, or varying personal experiences and
different degrees of sexual hyperaestheticism and varying kinds
and quality of intelligence upon the subject of sexual
psychology, or moral idiosyncracies. In consequence, every
such verdict is according to a test of obscenity personal to
the court or jury in such a case, and binding upon no other
court or jury and not according to any general law or uniform
rule. One of the reasons underlying this uncertainty is the fact
that "obscenity" is not a quality inherent in a book or picture,
but wholly and exclusively a contribution of the contemplating
mind, and hence cannot be defined in terms of the qualities of
a book or picture, but is read into them. 4

(a) The first result of this uncertainty is that the statute of
Congress herein involved creates no certain or general rule of
conduct for the guidance of citizens, and does not enable them
to know if their proposed act is in violation of the statute, and
therefore every indictment and conviction under said statute is
without due process of law. Unless the statute so defines the
crime that by the application of its letter alone every person
of ordinary intelligence must always draw the same line of

'WHAT IS CRIMINALLY 'OBSCENE.' " Proceedings XV. International
Medical Congress, Lisbon, Portugal, April, 1906; Albany Law Journal, for July,
1906.

"LEGAL OBSCENITY AND SEXUAL PSYCHOLOGY," in The Medico-
Legal Journal for Sept., 1907, and The Alienist and Neurologist, for Aug., 1908.

"VARIETIES OF OFFICIAL MODESTY," in the American Journal of
E-ittn-nics, for Dec., 1907; Albany Law Journal, Aug., 1908.

"FREEDOM OF THE PRESS AND 'OBSCENE' LITERATURE," N. Y.,
190A

14



STATEMENT OF THE CONTENTIONS.

demarkation between the books or pictures which are pro-
hibited and those which are not, then the statute is void for
uncertainty under the old maxim, "Where the law is uncertain
there is no law," and consequently there is no "due process of
law."

(b) Furthermore: "The doctrine is fundamental in Eng-
lish and American law that there can be no constructive
offenses." These are of four kinds. First, where the act to
be punished is by judicial construction brought within a statute
whose plain and literal meaning does not cover it. In this case
the statutory criteria of guilt are assumed to be certain as to
meaning. The second class of constructive offenses arises
where the statutory criteria of guilt are ambiguous, and the
courts presume, by judicial legislation, to penalize an act
which is not clearly within every possible, plain and certain
meaning of the statute. Here the courts make a legislative
choice as to which meaning is to be enforced. The third class
of constructive offenses arises from an uncertainty (as distin-
guished from an ambiguity) in the statutory criteria of guilt.



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