Theodore Albert Schroeder.

Obscene literature and constitutional law; a forensic defense of freedom of the press online

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usual and unprudish manner, it would be declared criminal.
But why?

Again 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 probably would have and produce the same moral
consequences whichever of the foregoing modes of expression
is used, notwithstanding the difference in the emotions evoked
by the different thought-symbols. All this only proves over
again that "obscenity" is not in the idea conveyed, nor in
differences as to the moral consequences of variously express-
ing the seventh commandment, but wholly and exclusively in
the emotions associated with particular methods of symbolizing
the thought.

It is all but a special illustration of the rule stated by Pro-
fessor Thomas when he says: "When once a habit is fixed,
interference with its smooth running causes an emotion. The
nature of the habit broken is of no importance. If it were
habitual for grandes dames to go barefoot on our boulevards
or to wear sleeveless dresses at high noon, the contrary would
be embarrassing." 2 So it is in literary fashion as well. "The
most objectionable word in the English language" has become
so only in recent times. It is found in the unexpurgated edi-
tions of Shakespeare, and was the word in polite use at his time.

2 Sex and Society, p. 207.



In that edition of the Bible published in London in 1615, known
as the "Breeches" edition (because of the use of that word in
Genesis iii, 7), we find "the most objectionable word in the
English language" at I Corinthians, chap, vi, verse 9. In N.
Bailey's dictionary, that same "most objectionable word in the
English language" has only a figurative application to the pro-
creative act and its meaning is "to plant." By reason of its
coming into general use, those who wished to be different from
the common people invented new words to express the same
fact. When these new words cease to operate as a veil, be-
cause their former figurative meaning has become literal, and
they have come into general use among the vulgar, emotions of
disapproval will come to be associated with the new words.
Other words are then coined by the polite, and what formerly
was "good form" now becomes obsolete and is denounced as
"obscene," but rational morality is not in the least concerned
with this change of literary fashion. No ! It is only a matter
of ethical sentimentalizing of the morals of hysteria and
has to do only with modes of expression that is, with literary
style, and not moral consequences. The claim that the latter
is its motive comes as a result of that very ancient and still
very popular error of trying to objectivize our emotional (sub-
jective) moral estimates. Persons with trained minds recog-
nize some difference between a literary style which is offensive
to chaste people and so may reinforce the chastity of their
lives, and that literary style which, without the coarseness
which excites aversion, seduces to libidinous conduct. Our
literary purists usually fail to distinguish between an offense
to modesty and the endangerment of chastity, which are two
very different conditions^ as different as vexation and tempta-
tion, or aversion and desire So it comes that their opposi-
tion is too often the most vehement where the question of
morals is least real.


This is not a new thought, for it was expressed over 300
years ago by the erudite Peter Bayle, and he furnished many
illustrations in support, some of which will be reproduced. He
says : "Such is the nice taste of our Purists, they blame one
expression and approve another, though they equally offer the
same obscenity to the mind. * * * The new whims of
those, who, as I am told, begin to reckon the words glister
and physic among the obscene terms, and use the general word



remedy in their room, would be less unreasonable. The word
glistere (Glister) was laid aside, as including too many cir-
cumstances of the operation, and the word lavement took its
place, having a more general signification. But because the
idea of the word lavement is become specific, and takes in too
many circumstances, it will be quickly laid aside for fear of
sullying the imagination, and none but general phrases will be
used, such as J'etois dans les remedes, un remede lui sut ar-
donne, &c., which do not more particularly denote a glister or
a purge, than a bag of herbs hung about the neck. These are
certainly very strange whims."

Furthermore I believe it can easily be demonstrated that
if there is any ethical effect at all that then vulgarity of liter-
ary style in dealing with sex subjects must be more conducive
to puritan morality than are the refined insinuations of veiled

Upon this question I am also fortunate to be able to quote
judicial decisions in support of my contention. Here is the
language of a United States Judge. "The most debasing topic
may be presented in the choicest language. In this garb it is
the more dangerous. Impure suggestions clothed in pleasing
attire allure and corrupt, when bald filth would disgust and
repel." 3

I want to elaborate this thought and in doing so vindicate
my assertion that an equally strong case can be made to
prove that superior moral consequences may be expected from
using vulgar phrasing in discussing sex. First let us get at
the reason for this and later illustrate it by application to sex

Suppose I publish of a man the statement that he values
his political principles so lightly that they are easily outweighed
by small material advantage. That is so very delicate a way of
saying that he will sell his convictions that one would scarcely
feel any indignation over his moral turpitude. If on the other
hand I denounce the same conduct of the same man by calling
him "a political prostitute" we at once feel more profound
resentment, because of the emotions of aversion which are
usually associated with the last word of the phrase and conse-
quently felt for everything to which it can be applied. It is the
same in discussing matters of sex. To do so in coarse and
vulgar language is to arouse an aversion never experienced in
the polite phraseology of the unobscene. If then morality is

S U. S. vs. Smith, 45 Fed. Rep. '477.



at all involved it must follow that vulgarity of style is more
adapted to promote aversion to sensualism than is the unob-
jectionable form of sex discussion.


Here too, I could quote elaborately from learned authority
in support, but since I cannot take the space to reproduce all
of Mr. Bayle's erudite discourse entitled, "An Explanation Con-
cerning Obscenities," I must content myself with quoting only
a few more paragraphs. Writing of those who use the veiled
phrase to picture their nudities, he says:

"The delicacy of their touches has only this effect, that the
people look upon their pictures the more boldly, because they
are not afraid of meeting with nudities. Modesty would not
suffer them to cast their eyes upon them, if they were naked
obscenities ; but when they are dressed up in a transparent
cloth, they do not scruple to take a full view of them, without
any manner of shame, or indignation against the Painter : and
thus the object insinuates itself more easily into the imagina-
tion, and is more at liberty to pour its malignant influence into
the heart, than if the .soul was struck with shame and
anger. *****

"Add to this, that when an obscenity is expressed only by
halves, but in such a manner that one may easily supply what
is wanting, they who see it finish themselves the picture which
sullies the imagination; and therefore they have a greater
share in the production of that image, than if the thing had
been fully explained. In this last case they had only been pass-
ive, and consequently the admission of the obscenic image
would have been very innocent ; but in the other case they are
an active principle, and consequently are not so innocent, and
have more reason to fear the contagious effects of that object,
which is partly their work. Thus this pretended regard to
modesty, is really a more dangerous snare ; it makes one dwell
upon an obscene matter, in order to find out what was not
clearly expressed. *****

"This is of still greater force against the writers who seek
for covers and reserves. Had they used the first word they
met with in a Dictionary, they had only touched upon an ob-
scene thing, and gone presently over that place ; but the covers
they have sought out with great art, and the periods they have
corrected and abridged, till they were satisfied with the fine-
ness of their pencil, made them dwell several hours upon an
obscenity. They have turned it all manner of ways ; they have



been winding about it, as if they had been unwilling to leave
such a charming place. Is not this ad sirenum scopulos con-
senescere, to cast anchor within reach of the syren's voice, and
the way to spoil and infect the heart? It is certain, that ex-
cepting those who are truly devout, most of our other Purists
are not in the least concerned for modesty, when they avoid
so carefully the expressions of our ancestors ; they are pro-
fessed gallants, who cajole all sorts of women, and have fre-
quently two mistresses, one whom they keep, and another who
keeps them. Truly it becomes such men very well to exclaim
against a word that offends modesty, and to be so nice when
something is not left to be supplied by the reader's imagina-
tion ! We may apply to them what Moliere said of a pretended
prude : 'Believe me, those women who are so very formal, are
not accounted more virtuous for it. On the contrary, their
mysterious severity, and affected grimaces, provoke all the
world to censure their actions. People delight to find out
something to blame in their conduct. And to give an instance
of it, there were the other day some women at this play oppo-
site to our box, who by their affected grimaces during the
whole representation, and turning aside their heads, and hiding
their faces, made people tell many ridiculous stories of them,
which had never been mentioned if they had not behaved so;
nay, a footman cried out, that their ears were chaster than all
the rest of their body.' The men I speak of, think only of
making themselves admired for the delicacy of their
pen. *****

"This cannot be denied: Nay, women of an imperfect
virtue would run less danger among brutish men, who should
sing filthy songs, and talk rudely like soldiers, than among
polite men who express themselves in respectful terms. They
would think themselves indispensably obliged to be angry
with those brutes, and to quit the company, and go out of the
room with rage and indignation. But soft and flattering com-
pliments, or at most such as are intermixed with ambiguous
words, and some freedoms nicely expressed, would not startle
them ; they would listen to them, and gently receive the poison.
A man who courts a maid would immediately destroy all his
hopes, should he grossly and filthily propose his ill design ; he
is a perfect stranger to the Art of Love, if he has no regard
to modesty in the choice of his expressions. There is no father,
but would rather have his daughters blush than laugh at some



stories told in their presence. If they blush they are safe;
shame prevents the ill effect of the obscenity ; but if they laugh,
it makes an impression, and nothing diverts the stroke. If
they laugh, it is doubtless because the obscenity was artfully
wrapped up, and seasoned with an apparent modesty. Had it
been grossly expressed, it would have excited shame and in-
dignation. Farces in our days are more dangerous than those
of our ancestors ; in former times they were so obscene, that
virtuous women durst not appear at them ; but now they do
not scruple to see them under pretence that obscenities are
wrapped up, though not in impenetrable covers. Are there
any such ? They would bore them through, were they made up
of seven hides like Ajax's shield.

"If anything could make La Fontaine's Tales very per-
nicious, it is their being generally free from obscene ex-

"Some ingenious men, much given to debauchery, will tell
you that the satires of Juvenal are incomparably more apt to
put one out of conceit with lewdness, than the most modest
and most chaste discourses that can be made against that vice.
They will tell you that Petronius is not so dangerous, with all
his gross obscenities, as he is in the nice dress of Count de
Rabutin; and that the reading of the book entitled, Les
Amours des Gaules, will make gallantry much more amiable
than the reading of Petronius. * * * *

"I know the Stoics laughed at the distinction of words, and
maintained that every thing ought to be called by its proper
name, and that there being nothing dishonest in the conjugal
duty, it could not be denoted by any immodest word, and that
therefore the word used by clowns to denote it is as good as
any other. * * * *

"If chastity was inconsistent with impure ideas, we should
never go to church, where impurity is censured, and so many
banns of matrimony are bid : we should never hear that office
of the Liturgy that is read before the whole congregation on
a wedding-day: we should never read the most excellent of
all books, I mean the Holy Scriptures ; and we should avoid,
as so many infectious places, all the conversations where people
talk of pregnancies, childbirths, and christenings. Imagina-
tion is a rambler which runs in a moment from the effect to
the cause, and finds the way so well beaten, that it goes from
one end to the other, before reason has time to stop it." 4

4 Bayle's Historical and Critical Dictionary, pp. 845 to 850, edition of 1837.



All these considerations prove again that literary vulgarity
and immorality are not at all related to each other as Purists*


No habit of human thought is more universal and more
pernicious than that by which the social utility, or evil, of con-
duct is measured by the intensity and kind of the emotional
states which we associate with it. Most of humanity still ap-
proves all human conduct which induces agreeable emotions
and likewise assumes that the degree of badness may be ac-
curately measured by the intensity of the resentment which is
felt towards those whose act is to be judged. This is moral
sentimentalizing, though often it is characterized by more pre-
tentious names. Scientific or rational ethics is the very antith-
esis of this. Instead of measuring moral values by "moral"
emotions, the scientific mind limits moral emotions by moral
values which are measured according to objective standards.

Where the emotions are most concerned there the check of
right reason is least effective, and moral sentimentalism. for
that very reason, is most potent and most misleading. Thence
it comes that in determining statute laws and ethical creeds,
regulative of sex-conduct, we are more often controlled by the
vehemence of hysteria, than by calm judgments derived by
the scientific method. Even those who live natural lives with
sound bodies, and therefore have too healthy minds to indulge
themselves in frantic moral sentimentalizing, yet readily suc-
cumb to the maniacal persistence and vehemence of the moral-
ists-of-diseased-nerves. This is so because even the healthy
minded ones lack clear insight to a rational ethics, and there-
fore they cannot frame to their own satisfaction arguments
sufficiently convincing to afford the courage of resistance.

Here do we also find the explanation for those conspicuous
discrepancies between statute law and actual life, that is, be-
tween public pretense and a personally justified secret con-
duct. On the whole, in such matters as sex-ethics, our un-
coerced behavior is quite as likely to be in accord with a harm-
less and healthy naturalness as are our pretensions. The latter
are apt to be controlled in such manner as to avoid the censure
of the most boisterous sentimentalizer of the community, who-

"Condensed from The Pacific Medical Journal for Nov., 1907.



in turn are the least safe guides to a rational ethics. In the
matter of sex-ethics this means that, as to their pretensions,
those who possess only an .ordinary healthy bodily mechanism
and a healthy mind not highly trained will be cowed into an
acquiescence with others who are possessed by abnormal sen-

The only time that the subject of sex becomes a matter of
real controversy before the public is when the excessively
sensual of different modes of thought are pitted against one
another. As illustrations we may point to the past contests
between the Mormon polygamists, or the Bible Communists
of Oneida, on the one hand, and prurient prudes and senti-
mental monogamists ,on the other. Can any one recall a single
real argument for social utility that has ever been advanced
upon either side? It is all mere violent outbreaks of moral
sentimentalizing, expressed in dogmatic verbalisms and ques-
tion-begging epithets, all inspired by diseased nerves. And
yet we allow these hysterical yelps upon both sides to be the
only views that ever achieve public expression or reach the
legislative and judicial ear. No wonder then that the few who
can or try to reason, even about sex-ethics, stand aghast at the
achieved results of such mania, and the general public remains
densely ignorant in spite by the "arguments" of mere "right-
eous" vituperation. There is room for difference of opinion
upon many problems arising from sex, and it is an outrage
that these are never allowed to be publicly and fundamentally
discussed by the clean-minded with superior capacity. The
stupid and untrue dogmatism which is tolerated, and the pas-
sionate outbursts of salacious prudes and voluptuaries, which
come upon us in spite of repression, only make bad matters

The abnormal aversion to healthy sensualism is never
founded upon sexual indifference, but always the reverse.
Acute eroto-phobia differs but slightly in degree and not at all
in its essence, from prudery. I remind the reader that I am
writing of the real prudery, and not its ignorantly parroted imi-

Thus understood, all genuine prudery is always the mani-
festation of excessive sensuality, coupled with a proportion-
ately extravagant, fear-created, desire to conceal it, all inducing
violent emotions of aversion, either simulated or real.

The kinship of the relation between insanity and health,
on the one hand, and moral sentimentalizing and rational ethics



on the other, is far more real than apparent. From modesty,
through prudery, to acute eroto-phobia, is but a difference of
degrees in the intensity of emotional aversion. All these dif-
ferent degrees may be excited in different persons by the same
objective stimulus, which, however, will leave one who is com-
paratively indifferent to sex, without any consciousness either
of modesty or of shame.

Moderate modesty, like milder forms of mono-mania, is
due to a lost perspective, imposed by perverse education. A
sex-centered attention thus induced, easily destroys all capacity
for seeing the obsessing subject-matter in its right proportion
to related objects. When to this we add that emotional inten-
sity and certitude, which are the product of diseased nerves,
modesty becomes eroto-phobia. The degree of prudery is usu-
ally the exact measure of the individual's hypersensualism.

So then it comes to this, that modesty, like insanity, in the
kind and degree of its sensitiveness, is dependent primarily
upon subjective conditions. Each person's modesty is sensi-
tive to lascivious suggestion, just to the degree that such in-
dividual is sensually obsessed, and the degree to which the
sexual nerve centers are diseased. All prudery which is not a
mere stupid mimicing of others, that is all genuine prudery, is
therefore seen to be founded upon excessive lewdness.

Abnormal sex-sensitiveness always produces sex over-valu-
ation, either of the beneficence or the sin fulness of the sensual
appetite. Similarly we see that intense religious enthusiasm
always conduces to the apotheoses of love, and sex, and to
excessive venery, either of indulgence or suppression. Where
religion seeks to spiritualize sex-passion, science rationalizes it.
As against moral sentimentalizing, a scientific ethics traces
causes and results and builds moral standards according to
ascertained, material, social consequences.

All emotions, including those which are generally classified
as "moral," have varieties of intensity according to one's en-
vironment, education and healthy or diseased condition of the
nerves. Hence the same fact will produce more intense emo-
tions of approval or aversion in a hysterical person than
in a healthy one. Again, the intensity of the emotion
evoked by an object is in inverse ratio to the duration of the
stimulation. That to which we have become accustomed is not
so shocking as it was when it first interfered with a fixed con-
trary habit of thought or of life. So it comes that moral senti-
mentalizing varies not only as between different individuals,



but also differs at different times in the same individual. From
these facts arises the danger of submitting to the guidance of
our "moral" feeling.

The "moral" emotions are intense as the nerves are dis-
eased. The doctrine that men may rightfully claim to know
because they feel and to be firmly convinced because strongly
agitated, finds its extreme of absurdity in this, that the certi-
tude of a feeling-conviction often reaches its highest degree in
the obsessive illusions of the insane, and the absurd conduct of


Individually and racially, according to its pleasurable or
painful effects on them, men come to associate some conduct
with emotions of approval and other conduct with emotions of
disapproval. In these matters each individual is a law unto
himself, and only an unconscious sympathetic imitation induces
the superficial appearance of similarity. As these emotional
"moral judgments" become habitual by frequent repetition, the
unreason of their origin becomes progressively less conspicu-
ous, and when lost sight of humanity enthrones this moral sen-
timentalizing on an imaginary pedestal outside the brain, calls
it "conscience," and now the emotional association, perhaps
founded on diseased nerves, is believed to constitute an in-
nate and therefore infallible moral guide. Then "good, peo-
ple," ever confident in the inerrancy of their feelings, begin to
regulate their neighbors' conduct, especially their sex-conduct,
because our emotional nature is more involved therein, and
because upon the subject of sex-ethics we have, on that ac-
count, been less accustomed to reason than upon any other sub-
ject. Here moral sentimentalizing is most natural and most
pernicious, precisely because it is here sure to be least "tainted"
by right-reason.

The mistake in all this popular method of arriving at "mor-
al truth" lies in the fact that, like the insane, we ascribe to con-
duct those qualities which are mere associated emotional states
of the perceiving mind. To cease the objectivizing of our emo-
tional "moral judgments" is the beginning of rational ethics,
and the highest degree of it will have been reached when all
moral sentimentalizing shall have been abolished and each in-
dividual, from his own perfect knowledge of natural law, in
which I include natural justice, shall no longer have the desire
to live contrary to it.

We shall never be able to disnense with those mental proc-



esses which produce what we call conscience, but we will ap-
proach a higher and better humanity only in so far as we abol-
ish from our own lives the authority of that conscience which
is only moral sentimentalizing, and in lieu of that authority en-
throne a pure cold logic machine which, without artificial hu-
man restraint, shall control our self-regarding action according
to natural law, and our social conduct according to the nearest

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 11 of 43)