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sors of literature, being guilty of this habit, it must be a rare
accident if, from a more enlightened view, and in long per-
spective, they be not judged deep in vice.

It is the disregard for and misuse of evidence by the masses
which explains the existence of all pernicious institutions, and
the mischievous opinions which support them and furnish their
hateful durability.

If there can be any intellectual crime, it must consist
of the voluntary neglect of evidence within reasonable access,
and the highest degree of this criminality must attach to those
who deliberately suppress this evidence which otherwise might
be accessible to others prepared to make a right use of it.
No man can be held responsible, nor should he be punished,
for the effect which may be produced on his understanding
by the partial evidence to which alone he had access. From
this it follows that errors of the understanding must be cor-
rected by an appeal to the understanding. Fines and im-
prisonment are bad forms of syllogism, which may suppress
truth, but can never elicit it.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

"The public interest requires that every difficult question
[even questions of the hygiene, the psychology and the ethics
of sex] should be patiently and deliberately examined on all
sides, under every view in which it presents itself; that no
light should be excluded, but evidence and argument of every
kind should have their full hearing. It is thus that the
doubtful truths of one generation become the axioms of the
next; and that the painful results of laborious investigation
and deep thinking gradually descend from the closet of the
learned and pervade the mass of the community, for the com-
mon improvement of mankind."

It must be axiomatic that upon every question of im-
portance to any human being it is the right of each individual
to have the most intelligent opinion of which his capacity for
understanding will permit. That being true, it is his inalien-
able right to have access to all the arguments and evidences
which any other human would be willing to supply, if permitted
to do so. The denial of this right, through the moral cen-
sorship of literature for sane adults, is an infamous tyranny.

"All benefit of having evidence is lost if it comes into a
mind prepared to make bad use of it. The habit of attaching
one's self to one side of a question is a habit of confirmed
selfishness, of low order, and immoral. By the habit of be-
lieving whatever a man [under perverse associations of his
emotions of approval] wishes to believe, he becomes in pro-
portion to the strength of the habit, a bad neighbor, a bad
trustee, a bad politician, a bad judge, a shameless advocate.
A man whose intellect is always at the command of his sin-
ister interest, is a man whose conscience is always at the
command of it."

INTELLECTUAL IMMORALITY.

It irresistibly follows from these considerations that the
only intellectual "immorality" which any man can commit, is
that committed by those who systematically procure the sup-
pression of evidence, and in this regard, no exception can
be made because the subject matter of the suppression is
sexual. I therefore charge that the most "immoral" persons
on earth are those responsible for the suppression of miscalled
"impure literature." If error and knowledge are incompat-
ible, then error and ignorance must be inseparable and the
censors of literature must be the chief perpetuators of mental
and moral stagnation.

"It is a truth that men ought no longer to be led, and it

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

would be a joyful truth, if truth it were, that they are re-
solved no longer to be led blindfold in ignorance. It is a
truth that the principle which leads men to judge and treat
each other, not according to the intrinsic merit of their action,
but according to the accidental and involuntary coincidence
of their opinions, is a vile principle. It is a truth that man
should not render account to man for his beliefs" even on
the subject of sex.

AUTHORITY DESTROYING LIBERTY.

All those who love liberty more than power, and have the
intelligence to see in the present and future the development
of tyranny by our rapid growth of arbitrary power as mani-
fested in our growing censorship of the mails and press; the
spread and development of "constructive contempt" of court;
the progress of executive legislation at Washington ; the asser-
tion through government by injunction that the justice of em-
ployers, or our economic system, is to be criticized only at the
times and places, and to the persons who have the court's per-
mission; the laws creating a censorship over the opinions of
all immigrants, and prohibiting the advocacy within some of
our states of violent resistance of tyranny abroad ; the pun-
ishment of a Philippine editor for publishing our Declaration
of Independence as conducing to insurrection ; the suppression
of an American paper in Porto Rico for criticizing public of-
ficials and denying the rightful opportunity to prove the
truth of its allegation ; the official destruction by the New
York postal officials of several hundred thousand post-cards,
which reflected on a candidate for public office ; the demand of
the beef packers that magazines criticizing their busniess be de-
nied the use of the mails ; the arrest in Idaho of an editor for
publishing questions asking a petty militia-despot where under
the Constitution he found the warrant for his acts during a
strike-disorder all these developments of recent years show in
our country a condition, which, with many other circumstances,
tends to the downfall of our liberties. Unless these tendencies
are checked, and checked effectively, the time may come
when the descendants of those who now will not defend the
liberties of others may have to defend their own under the
added difficulty of multiple precedents.

The best way to prevent this is to re-establish, as the foun-
dation of all liberties, all that freedom of speech and press,
which is now in various ways abridged upon a half dozen sub-
jects, and soon may be abridged upon still other subjects.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.
ON THE RIGHT TO KNOW

All life is an adjustment of constitution to environment.
The seed dies, or has a stunted or thrifty growth, according
to the degree of harmonious relationship it effects with soil,
moisture and sunlight. So it is with man: He lives a long,
happy and useful life, just to the degree that his own organism
functions in accord with natural law operating under the best
conditions. It follows that a growing perfection in the knowl-
edge of those laws is essential to a progressive harmony in the
individual's conscious adjustment to his physical and social
environment, and every one of us has the same right as every
other to know all that is to be known upon the subject of sex,
even though that other is a physician.

Since a comparative fullness of life depends upon the rela-
tive perfection of the individual's adjustment to the natural
order, and since the greatest knowledge of nature's rule of life
is essential to the most perfect conscious adjustment (which
is the most perfect life), it follows that our equality of right
to life, liberty, and the pursuit of happiness entitles every sane
adult person to know for himself, to the limit of his desire
and understanding, all that can be known of nature's processes,
not excluding sex.

Every sane adult person, if he or she desires it, is equally
entitled to a judgment of his or her own as to what is the
natural law of sex as applied to self, and to that end is person-
ally entitled to all the evidence that any might be willing to
submit if permitted. It is only when all shall have access to all
the evidence and each shall have thus acquired intelligent
reasoned opinions about the physiology, psychology, hygiene,
and ethics of sex, that we can hope for a wise social judgment
upon the problems which these present. The greatest freedom
of discussion is therefore essential as a condition for the im-
provement of our knowledge of what is nature's moral law
of sex, and is indispensable to the preservation of our right to
know.

It was precisely this right to know that the framers of our
Constitution intended to guarantee to us by those provisions
against the abridgment of our freedom of speech and of the
press. Prior to our American Constitutions, the English sub-
ject had a liberty to hear, but it was an abridgable liberty,

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

existing as a matter of permission. The makers of our Con-
stitution intended to guarantee to us an unabridgable liberty
to hear and to read, that is, they intended to insure us an un-
limited intellectual liberty as a matter of constitutionally guar-
anteed right.

A SUGGESTION FOR THE TIMID.

Those who reason sanely it seems must conclude that
when any persons are old enough by law to enter matrimony,
when any person is old enough by law to enter matrimony,
which involves actual sex experience, then they should be
conclusively presumed competent to choose for themselves the
quantity and quality of psychic sex stimuli they wish to have,
and whether it shall come through the means of good or bad
art, literature, drama, or music. It is not clear to me why we
should seek by law to control the sexual imaginings of those
persons to whom it accords a perfect right to sexual relations.
I can even see force in the methods of the ancient Greeks who
believed that dancing and athletics in nudity conduced to
health and honored marriage.

Those who esteem mere psychic lasciviousness a more
serious offense than the corresponding physical actuality, lay
themselves open to be justly accused of erotomania. How can
we expect even married people to live wholesome lives so long
as we deny them the opportunity for any detailed discussion
as to what tends toward wholesomeness ?

By giving the widest possible scope for the dissemination,
among adults, of the scientific literature of sex, and by furnish-
ing appropriate instruction in our public schools, the present
morbid curiosity would soon be dissipated and within a genera-
tion practically all parents could be made competent and judi-
cious instructors and guides for their own children. With this
accomplished, you need never again fear the ills which are now
dreaded, and the present sexual intelligence would have been
so much improved as to insure a very general progress in
public morals. Thus through the greatest liberty of speech and
press, at least for the instruction of all over 18 years of age, we
may reasonably hope to secure for the next generation an en-
lightened conscience as to all questions of sexual health and
morals. Since minors bear a different relation to the govern-
ment than do adults, it is probable that Congress and the States



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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

would have power to pass appropriate laws applicable only to
such minors, even though present laws were held unconstitu-
tional. However that may be, our present laws cannot be up-
held without repudiating all those considerations which under-
lie our constitutional guarantees for unabridged liberty of
speech and of the press, nor without the judicial destruction of
those guarantees themselves.



CHAPTER VI.
OBSCENITY, PRUDERY AND MORALS.*

The advocates of our present censorship of literature be-
lieve that their work is justified by the claim of its moralizing
tendency. It is my contrary opinion that to-day there is no
organized force in American life which is more pernicious or
more productive of moral evil in the domain of sex, than the
very work which has come to be known as Comstockery. Of
course this judgment is based upon the broadest possible out-
look, including both the remote and immediate consequences
of that prudery which finds its main stay in the legalized por-
tion of it. This "moral" claim needs closer scrutiny.

I assume that no healthy person, under perfectly natural
conditions, ever intentionally inflicts injury except in the an-
ticipation of a compensating benefit. If then every one pos-
sessed health, infinite wisdom, and power to control those ex-
ternal conditions which now often determine our conduct, no
one would be vicious. If under such possibilities any one de-
liberately injured self or another, it must be a mere matter of
wantonness unexplainable by any normal motive, and hence
would conclusively evidence a diseased mind. Thus viewed
intelligence and vice are incompatible in healthy people, and
ignorance is the efficient handmaid of vice, and the parent of
vice-promoting. Every man who is adequately informed as to
the consequence of his act, and having a mind sufficiently well
trained to enable him accurately to see the remote painful con-
sequence of his conduct and weigh this against its immediate
pleasures, will never be vicious if being virtuous is within his
power. If all possessed such intelligence, it would follow that
the few remaining vicious ones must be either diseased or
acting under external compulsions which make them vicious
in spite of their judgment and desire to be otherwise. There-
fore, general sexual intelligence must be the most efficient
means of minimizing sexual vice in the healthy ones, and like-
wise operate as the most efficient preventive of much of the

*Revised from Am. Journal of Eugenics and To-morrow.

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CBSCENE LITERATURE AND CONSTITUTIONAL LAW.

disease which results from, and in turn increases vice. It
follows that every hindrance to sexual intelligence must be an
aid to sexual vice, and all the sexual vices and diseases are
chargeable to ignorance, and all of the latter is practically com-
pulsory, and most of it is chargeable to prudery legalized and
unlegalized that is Comstockery.

The crowd, with its sensitive vanity and incapacity for
critical thinking, so long as no personal material interests are
involved, readily indorses whatever is labeled "moral" and
claims an "eminently respectable" rating.

An organization devoted to promoting the seemings of
virtue and the substance of vice, and strong in the pietism of
diseased nerves as well as political influence, is now asking the
public to follow our present nonsensical legislation to its log-
ical conclusion. If these unintelligent "dearies" have their
way, we shall soon have not only a sexless, but also a "smoke-
less literature." This means that public libraries are to ex-
clude, and ultimately legislation is to suppress, all books where-
in smoking or drinking is described. Soon all publications
which use the words tobacco or alcohol will be excluded from
the mails, and just as logically and "morally" as what is now
excluded. "Moral" sentimentalizing is naturally expressed in
righteous vituperation. Unenlightened minds readily mistake
question-begging epithets for reasoning, and cowardly political
adventurers enact its sentiments into law, thus bargaining
away the liberties they are sworn to protect.

WHERE ARE THE IMMORAL CONSEQUENCES?

To the end that the unreason of our purists' claim of moral
motive may be shown to be, untrue, let us make a searching
inquiry into the relationship of morals, literary fashion and
our aversion to "obscene" literature.

I never have met a purist nor any one else who would admit
that his own sex-morality had ever been the least impaired as
the result of reading "obscene" books. I never have found
any one even endeavoring to prove that a single case of sexual
depravity would not have been except for "obscene" literature
or art. In my boyhood, and since, I have seen pictures of
lewdness and have read some so-called "obscene" books, and I
cannot discover that it has injured me any, unless it be injury
to have my sex-sensibilities considerably blunted, which I sus-
pect may have come partly as a result of my study of sexual
psychology.

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OBSCENITY, PRUDERY AND MORALS.

Mr. Comstock is also an unconscious witness to the harm-
lessness of obscenities. In a recent report he informs us that
for thirty years he has "stood at the mouth of a sewer," search-
ing for and devouring "obscenity" for a salary; and yet he
claims that this lucrative delving in "filth" has left him, or
made him, so much purer than all the rest of humanity that
they cannot be trusted to choose their own literature and art
until it has been expurgated by him. Why is Mr. Comstock
immune? It may be because he is an abnormal man, upon
whom, for that reason, sensual ideas do not produce their nor-
mal reaction in which case it is an outrage to make his
abnormity a standard by which, under an uncertain statute,
to fix what must be withheld from others. On the other hand,
Mr. Comstock may be an average normal man, who has seen
more "obscene" pictures and read more "obscene" books, and
retained a larger collection of these, than any other living man.
If it is true that his morality is still unimpaired, then it would
seem to follow that "obscenity" cannot injure the ordinary
normal human.

There are no other conditions to the problem than the two
above stated, and this proves that "obscene" literature
and art are morally harmless upon all normal persons,
and that if undesired results shall anywhere manifest them-
selves these are primarily due to abnormity in the individual
and not to any evil inherent in the particular stimulation, which
only brought the evidence of the abnormity to light. This is
illustrated by the fact that reading Uncle Tom's Cabin was
the starting-point in making one man a sex-pervert, and a book
on surgery not connected with sex, as well as much religious
exhortation to "love God," has proved to operate as an aphro-
disiac. Of this more will be said later. The "immorality" re-
sulting from reading a book depends, not upon its "obscenity,"
but upon the abnormity of the reading mind, which the book
does not create, but simply reveals.

The girl-child who stimulates into activity the defloration
mania of some old roue is not responsible for his assault upon
her, and the child should not be suppressed or punished upon
any such theory. A small boy, the sight of whom operates as
an aphrodisiac upon a pervert, should not on that account be
suppressed or punished. If a book or a picture does the same
for a nymphomaniac or a satyr, the book is not to blame ; and
for the same reason that we do not punish the children in the

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

above cases, so we should not punish the publisher in the last
case. The desire for pornographic literature is but the evidence
that healthy and natural curiosity has grown morbid through
the purist's success in suppressing the proper information,
which would satisfy it in the normal state and would be a most
important factor in keeping it healthy. More voluminous and
more free sex-discussion is therefore essential as a prophylactic.
The public welfare and morality are concerned to discover
and cure social diseases and are not in the least concerned in
the mere concealment of their symptoms, and that is all the
purist's present efforts amount to.

LITERARY FASHION AND MORALS

There are still other means of proving the falsity of the
claim that social utility and public morals are concerned in the
suppression of obscene literature. I will now show that in an-
other large number of instances it is a mere matter of un-
reasoned moral sentimentalizing over words, that is, over lit-
erary style, and not over the ideas expressed or suggested nor
their moral consequences, but over the manner in which it is
done.

Even the United States Courts in their varied intellectual
wabblings sometitties agree with me in asserting that the ob-
scenity test of literature is purely a matter of literary style.
Read this decision:

"The problem of population, and other questions of social
ethics and the sexual relations, may be publicly discussed upon
such a high plane of philosophy, thought, and fitness of lan-
guage as to make it legally unexceptionable. They may be dis-
cussed so as to be plain yet chaste, so as to be instructive and
corrective without being coarse, vulgar, or seductive. But
when such publication descends to a low plane of indecent
illustrations and grossness of expression it loses all claim to
respectability/' 1 and therefore is criminal. But the "intel-
ligent" moralists of hysteria are still so certain that it is ethics
and not literary style which is in issue during most "obscenity"
prosecutions, that I must make a more careful analysis of the
moral claim, or pretense, put forth in justification.

Those exemplary moralists, the newspaper-scribblers and
their purist adherents, think, or pretend, that they are conserv-
ing morality by mentioning sexual irregularity only by well-
veiled but effectively pointed insinuations. These verbal mor-

*U. S. vs. Harman, 45 Federal Reporter, p. 423.

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OBSCENITY, PRUDERY AND MORALS.

alists will announce that a divorce has been "granted upon
biblical grounds," when they mean "adultery," but for "moral"
reasons would not use the word. Let us study the question a
little and see if morality is really concerned, or if this is a
mere matter of expediency in politeness of style, and based
upon moral sentimentalizing, instead of rational ethics. Per-
haps I can best show the absurdity of the former contention by
a series of different expressions, all conveying precisely the
same thought which shall be one that is generally considered
as unquestionably moral and then inquire where the immor-
rality begins in the course of several successive changes in
the mode of presenting, without changing the idea itself.

I think I may assume that there is no one so silly as to
object even slightly to such a phrase as this : "Thou shalt not
forsake thy spouse and permit thyself to become a partici-
pant with another in the initial act for the investiture of a
human life." Perhaps no one would object as yet if I became
a little more specific and wrote : "Thou shalt not disobey the
seventh commandment." From the fact that all journals for
general circulation so studiously avoid the exact words of the
commandment, I judge that many must deem it objectionable
to print "Thou shalt not commit adultery."

Now then, I ask, how is morality differently concerned in
these different modes of expressing the same idea? Only the
same identical thought is suggested to the mind in each case,
and that same idea, no matter by what words symbolized, must
present the same moral command notwithstanding differ-
ent emotions are evoked by the different words in whichever
mode of expression is used. That the one set of word-sym-
bols is associated with emotions of approval and another with
emotions of disapproval, concerns exclusively the style of ex-
pression and has nothing whatever to do with morality.

Let me carry this method a little further and see if it must
not lead us always to the same result, even though it may be-
come more difficult to keep our "moral" sentimentalism sub-
ordinate to our reasoning faculties. Having now resolved that
reason shall be your only guide, I will suggest a few other ways
of expressing the seventh commandment.

Let us suppose that some publisher should replace the last
word of the commandment by others, still presenting the same
idea and nothing else, and to that end let us suppose that he
should use the stable-boy's mode of expression. Thus from

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

sheer poverty in vocabulary one might use that word which we
all learned and used during our youth, "the most objectionable
word in the English language." The idea which the command-
ment seeks to implant is unchanged and the morality of it is
not in the least altered, and yet most people would now demand
a prosecution for "obscenity." Then isn't it a mere matter of
literary style?

I might even carry this transition in modes of conveying
the thought still further and suggest the possibility that some
one might take the ten commandments and replace the verbal
symbol of that which is condemned by a pictorial presentation.
The morality of the idea and the idea itself are unchanged in
every instance, and yet for thus expressing the prohibition of
one of the commandments every one (that is, almost every one
who has come under the influence of puritan "civilization")
would rise to demand the severest punishment of the publisher.
Although the idea of the seventh commandment would still be
accurately expressed, but simply because it is done in an un-



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 10 of 43)