Theodore Albert Schroeder.

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

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approximation to natural justice of which our minds are ca-
pable of conceiving. When we have abolished moral senti-
mentalizing, have acquired exact and complete information as
to what is natural law, and what is required of us by exact
natural justice and when we shall live in perfect accord with
these requirements, the millennium will be at hand and govern-
ment will cease to have any functions to perform. Until then
we can only work with the view of approximating this unat-
tainable ideal view, each of us striving to promote it in others,
while endeavoring to realize it in our own lives.

It is unreasoned moral sentimentalism and not ethics which
upholds the laws under discussion. It was an unreasoned
moral sentimentalism and not ethics which in the past ages up-
held other literary censorship and abridged intellectual free-
dom. It was unquestionably the intention of the framers of
our constitutions to make that impossible. Shall our constitu-
tions be judicially amended so as to perpetuate and make pos-
sible the further extension of mere psychologic crimes? That
is the all-important question.

The evil consequences of this moral sentimentalism, and
prudish snobbery cannot be overestimated. Here I cannot ad-
equately exhibit it but I can point to a few concrete facts to
show how our compulsory ignorance through legalized prudery
works for human ill.


It is an unwarranted superstition that the members of the
medical profession are safe and intelligent guides and in-
structors in matters of sex. They have adequate knowledge
to give superficial instruction to children about the physiology
and hygiene of sex, and they know a little about the most
common forms of venereal infection. But when it comes to
dealing with the intricate social problems involving sexual psy-
chology most of them are in a wilderness of impenetrable dark-
ness and ignorance, and the few specialists, who have gathered
a few nuggets of truth from years of work with sexual psy-
chopaths, are seldom given an opportunity to spread that



knowledge even among their professional brethren. The re-
sult is that upon the gravest social-sex-problems of the future
the average physician is more ignorant than many laymen with
a variety of "worldly" experience. I charge this ignorance to
be a fact, and to be due almost entirely to prudery, and a
potent cause of vice. The charge is a grave one, and I must
adduce some proof.

I will begin by quoting from a recent Medical Journal
showing the deliberate suppressing of sexual discussion even
within the profession, and also showing their reason for it.
These are the words of Prof. Wm. F. Waugh :

"We do not approve of making a feature of discussion and
investigation of the sexual relations. We fully grant their im-
portance and the need of their study. Men and women are
cursing the day they were born, are fighting, going insane t
driving others insane, making themselves devils and earth a
hell, all for want of the knowledge that can only come from a
free and untrammelled discussion of sexual physiology and
pathology, by those who are competent. But this is exactly
what is not to be had under present conditions. No such dis-
cussion is possible in any publication that circulates by post to
a general public ; hence any attempt in that direction is sure to
be futile. It is not that the attempt to carry it on will surely
bring trouble to a man of the stuff before us, martyrdom
holds out allurements not to be resisted it is because of cer-
tain failure and wasted efforts sadly needed in directions
where success is possible. Our objection is not prudent cow-
ardice but calculating utilitarianism.

"There is this to be said about discussions of sexual mat-
ters: as one goes further into the topic, his viewpoint alters.
The limits he first set to what is permissible in the discussion
recede, until things appear as a matter of course, that at first
we would unhesitatingly have denounced as obscene. Then
he is called to face a charge that is in itself a disgrace. And
we sympathize with a friend who asked for vaccination be-
cause he preferred to 'die of a clean disease/ Once there was
a soldier, noted throughout his division for his many heroic
exploits. Time and again he braved and escaped dangers that
daunted the boldest, but he seemed ever to hold a charmed
life. At last he was tremendously kicked by a big mule, and
this time death was inevitable. When informed of his fate,
to the amazement of all he burst into tears. Seeing the con-
tempt on his comrades' faces, he exclaimed: 'It's not that,



boys ; not that I am afraid to die ; but after all the high and
mighty chances of dying I've had, to be kicked to death by
an infernal long-eared heehawing son of a jackass!' Same
as to Comstock." 7

I have had it upon the authority of one of the most widely
known scientists of America, that many other Medical Jour-
nals hold substantially the same attitude to the discussion of
sexual topics. The silence is the natural result of an uncertain
statute, conferring arbitrary power upon stupid humans by the
uncertainty of its criteria of guilt. Being ignorant himself, the
physician, like our moralist for revenue, profits by the general
ignorance and so joins in the opposition to sexual intelligence
by a postal censorship.

In the Medical Council for October, 1908, is an article on
"How shall we advise our boys on the question of sexual and
moral prophylaxis?" by Prof. Frederic R. Sturgis. He is the
author of "Sexual Debility in Man." other books and numer-
ous essays in medical journals. He was formerly Clinical
Professor of Venereal diseases in the Medical department of
the University of the City of New York and of the Post
Graduate Medical College; sometime visiting surgeon of the
venereal division of the city hospital, Blackwell's Island, and
has attained great distinction in his profession. (See Phy-
sicians and Surgeons of America, Edition of 1906, p. 326).
When the manuscript was first submitted to the editor he was
in doubt as to its availability, because the uncertainty of the
statute made it impossible for him to find out if it were mail
able. In this perplexity he submitted the manuscript to the
Post Office authorities, and was told that it was not mailable.
After expurgation it was published as above indicated. So it
has now come to pass that a layman to the medical profes-
sion occupying a clerical position in the Post Office Depart-
ment decides what the doctors may be permitted to publish or
read upon sexual subjects. Future generations will look
back with amazement at the cowardice and stupidity of a pro-
fession and of a general public which submitted without pro-
test of such a censorship over the literary output of one of the
most distinguished specialists in the United States. Had Dr.
Sturgis told the lie that no sexual irregularities exist, or had
he advised every one to lie to their sons about the subject of
sex, so as not to run counter to the moral sentimentalizing of
our ascetical theologasters, his falsehoods would have passed

'Am. Journal of Clinical Medicine, May, 1907. Prof. Wm. F. Waugh.


the cer


the censorship. But having a wide experience in such matters
he preferred to portray our human sexuality as he found it,
and to tell parents to tell the whole truth about it to their sons.
This is the unpardonable sin in the code of our moral tinkers
for revenue, and so one physician may not even advise another
to tell his son the whole truth as it is conceived in the mind of
the specialist. Thus our purism most efficiently promotes the
vices, the suppression of which brings prosperity to our moral-
ists for coin.


Reform organizations such as the Woman Christian Tem-
perance Union, and the National Purity Federation, have
been for years agitating the question of giving instruction in
the public schools as to the hygiene and physiology (also
theology) of sex, because they believe such instruction a mor-
alizing force. Some members of the medical profession are
falling into line as is shown by the organization of the Ameri-
can Society of Sanitary and Moral Prophylaxis, and kindred
societies, and by such action as was recently taken by the Illi-
nois Medical Association. 8 But here again prudery makes the
accomplishment of this plan impossible, first because prudish
public sentiment won't tolerate such instruction, and secondly,
even if it did, thanks (?) be to prudery, there are none willing
or competent to teach. Dr. Helen C. Putman, of Providence,
R. I., quotes two leading educators, in sympathy with sexual
education, as saying: "I know no men in the schools of my
city and but few women, whom I would be willing to have
talk on sex matters to my boy and girl." Dr. Putman adds:
"I could quote others." She calls attention also to the fact
that prudery has excluded the subject of sex hygiene from
text books, and from the curriculum of the normal school,
and consequently from the teacher's mind. She then shows by
other investigations how the legalized and unlegalized prudery
have produced a condition of affairs where none are com-
petent to instruct. 9

The literature upon the subject of sex which is prepared
for general consumption is practically all either useless or
pernicious, and always from prudish causes. On the one hand,
because prudery compels general ignorance, we have developed
a class of physicians who thrive by misinformation which
scares the ignorami, systematically created by us, into the net
of the quack.

"Medical Record, Oct. 12th, 1906, pp. 594 to 600.

"Boston Medical and Surgical Jonrral, Sept. 31st, 1907, p. 132.



Another class, who are almost as culpable, systematically
obtain money under false pretences by advertising and selling
sex-books. This class of books are sold on false representation,
more or less definitely made, that they will give some helpful
and detailed information upon one's concrete personal prob-
lems. Instead of answering the questions, which as young
men and women we wanted answered and had a right to know
about, the purchaser receives a little moral sentimentalism,
some stupid and often truthless dogmas, which, together with
some that is really true, is promptly disregarded, because no
convincing reasons accompany the information. After the
reading of such "purity" books, so well filled with vague and
mystifying phrases, which mean absolutely nothing to those
who do not already know what is sought to be hinted at, one
is convinced that he has been robbed of his money without
being enlightened, and the young come from the reading of
these books feeling more mystified and helpless than ever be-
fore, over the personal problem.

Of another class of books, Pres. G. Stanley Hall, of Clark
University, has this to say: "Realizing that God and nature
have wrought an indissoluble bond between love and religion,
these writers rely upon conversion, confirmation, prayer, or
new resolutions, while some add an appeal to the sense of
honor. There can be no doubt of the good intention of the
writers of this class., nor that they have done good, but to me
they all seem to have more zeal than knowledge." The ab-
sence of knowledge is again due to the prudery which makes
the acquisition of satisfying knowledge difficult or impossible.
He might also have quoted Jonathan Edwards, Bishop Laving-
ton, Rev. S. Baring Gould, Dr. Spurgeon, and innumerable
other clergymen to the effect that many of this class of re-
formers are ignorantly and unconsciously developing in others
an abnormal lewdness, by the very excesses of emotional en-
thusiasms which they work into their methods of religious re-
form. 10

Dr. Hall continues thus : "The last class of books that
stand out clearly are writings that appear to be by mothers or
aunts, for boys, and which are pervaded by sentiment, poetic,
religious, and aesthetic, the interests of posterity and the chiv-
alry which the true gentleman should feel for those of the other
sex. Such appeals may effect girls, but the boy, at the callow,
pin-feather age of fourteen, is rarely aesthetic, and if at this

10 "Religion and Sensualism" in vol. 3, p. 16, of Amer. Jour, of Religious



age he can be truly called a perfect gentleman there is some-
thing wrong with him."

Thus far I approve of Dr. Hall's criticism of purity lit-
erature, made almost useless by prudishness. Now let me
show you how the same cause has also impaired the moral
good which he designed by his article. 11

He is trying to enlighten parents about what they must
tell their children. The boy must be told of "the fact that
not one, but both, of the most prevalent diseases due to im-
purity of life are of the gravest danger." Parents already
familiar with these diseases did not need to be told of their
danger. His article was written for that great mass who
know nothing about them and who on reading Dr. Hall's arti-
cle might wonder whether he meant the croup, scarlet fever
or small-pox. Had he expressed his thought in the homely
words we probably all heard in our youth, the uninformed
reader whom he was trying to reach might have understood
what he meant. But if he had found a publisher at all, legal-
ized prudery would have sent him to jail. Had he used the
scientific words gonorrhea and syphilis, the reader might at
least have found out what he meant, by using a medical dic-
tionary. But, as it is, prudery so dominated even this eminent
scientist that he wrote a message designed to curtail vice, but
which in large part was made useless by the avoidanc'e of
direct phrase and scientific exactness, such as he would have
used in discussing every other subject. Thus again does pru-
dery encourage vice.

Not long since I attended a meeting of the American So-
ciety of Sanitary and Moral Prophylaxis, where Professor
Wilder, of Cornell Medical College, was announced to lecture
upon the desirability of educating the young in matters of sex.
He had prepared a discourse to show the great evils coming
from ignorance. When he got to that portion where from
medical journals and kindred sources he apparently was pre-
paring to make concrete statements of facts about venereal in-
fection and its result, he became visibly embarrassed, and
scarcely having begun he announced that he hadn't the courage
to proceed according to his original intention. Here then is a
scientist of international prominence, so overawed by a con-
sciousness of the general prudery which has developed with
and from our legalized prudery, that he must withhold from
an audience gathered to receive it information of the greatest

^Ladies' Home Journal, Sept., 1907, p. 26.



value. The resultant ignorance upholds these laws, promotes
crime and disease, and these are a direct evil result of our le-
galized prudery.

The moral snobbery and legalized prudery of the profes-
sional vice-hunter and moralist for revenue is based wholly on
stupid moral sentimentalizing, and not at all upon any rational
or scientific ethics, and has made it impossible for parents to
qualify themselves as instructors for their children, and those
children are kept in ignorance upon a subject where ignorance
is the most potent for evil, and yet that ignorance is lauded as
a virtue, though it very often leads to ruin, as is shown by the
records of our insane asylums.

These miscalled "purity" associations primarily destroy
the opportunity of all for gratifying a healthy and natural cu-
riosity and thus of necessity they aid in developing morbidity
in relation to sex. Out of this morbidness, created mainly
through their efforts, comes the market for that erotic and
prurient literature which the salaried vice-hunters profess to
deplore, and which they unconsciously foster and gladly profit
by. With all restrictions removed and general opportunity for
public-school education in sex matters, the second generation
would be so healthy-minded as to destroy all market for the
stuff which the "purists" profess so much to abhor.

In France, although general sexual education is wanting,
it is openly asserted that the greater part of the demand for
prurient literature and art comes from American and English
tourists, and customers. I am aware that some of the "pur-
ists" profess to believe that there should be education about
matters of sex, given to young people, but they invariably mean
by this the theology of sex and not sexual science, which is a
very different thing. In my view every human being should
have an unlimited opportunity for knowing all that there is to
be known about every part of the human anatomy, and that
to preach against such intelligence, or impede its spread is
always an outrage and always productive of evil.

Another way in which this evil manifests itself lies in
this, that the "purists' " efforts, by their insane over-valuation
of sex importance, always destroy people's perspective, much
to the public injury. If there had been no attempted interfer-
ence with "Mrs. Warren's Profession," most people would have
seen in that play only the presentation of a social problem, by
the consideration of which all of the visitors to the theater, and



society at large, might have profited. After and by virtue of
the stupid protest of morbid prudes, who were so obsessed by
their own lewdness that they could see nothing but the sensual
features of the play, it at once became impossible for the great
mass of people to see any moral problem in it. From that
time on they were induced by the very outcry of the "purists"
to concentrate their attention on a watch for only its sensual
stimuli. The same thing is true of their efforts to suppress
the nude in art. By their very effort lewd moralists for rev-
enue make it impossible for a great many people to see any-
thing but the sensual features of a picture, whereas, if left
alone without this interference from prurient prudes, which
in such matters always misdirects the public attention, it would
be possible for most people to see the beauties of form and of
physical perfection.

Let me say right here that I am not devoting myself to
criticising Mr. Comstock for any mistakes he may have made
in the exercise of an arbitrary power, which an outrageous!}
uncertain criminal statute seems to vest in him, and I have no
patience with those critics of Comstockery who are devoting
themselves to criticism of Mr. Comstock, instead of the condi-
tions which he helps to perpetrate and which make him possi-
ble, and prosperous. My complaint is most with those stupid
people who by their moral sentimentalizing are supporting the
arbitrary power which authorizes his mistakes. I am not con-
cerned in the least as to how that arbitrary power is exer-
cised, whether wisely or unwisely. I am very much concerned
that the arbitrary power itself should be destroyed, by making
the law conform to the constitutional requirements of cer-
tainty in the statutory criteria of guilt. Mr. Comstock is simply
exercising his ordinary right of being a moralist for revenue
under the opportunities offered by a stupid public.


This, then, brings me to the more unpleasant features, which
relate to sexual insanities, and venereal infection. No one
worthy to be counted a worker for improved morals can over-
look these most important phases of the sex problem. I know
only the use of the plain, direct, and scientifically chaste man-
ner of speech. It is only by the use of such that I can proceed,
while I briefly recapitulate some concrete facts known to the
medical profession, and by me culled from standard medical
authorities. By every known scientific code of ethics, the



morality of conduct is to be judged by its injurious conse-
quences. Upon the record that follows, and much other kin-
dred material, these damnable facts are all the consequences of
sexual ignorance, and this in turn is mainly the consequence of
our legalized suppression of sexual intelligence. Therefore I
charge our "moral" censorship of literature to be the most
pernicious influence in our American life, and our "highly
respected" prurient prudes the most immoral people in

Picque found a proportion of 88% of gynecological affec-
tion among the insane, and some have found even more. It is
quite generally estimated that of all insanities 66% involve the
sexual mechanism or functioning. Where sex is the primary
cause of the ultimate derangement, sex-intelligence usually
could wholly preclude the evil consequences, or find an early
cure. In other cases where there is some sexual derangement
it is at first but a symptom of mental ailment, only in turn to
become an aggravating cause. Here a greater intelligence on
the part of friends and family, such as the general dissemina-
tion of the literature of sexual science would produce, will
enable them to understand what now seems dubious, and impel
them to apply much earlier for medical aid, when it would be
far more efficacious. Legislators and courts now treat the
sex-pervert as a criminal, thereby discrediting both our in-
telligence and our humanity. In an enlightened community
we will know that usually such are diseased, and thus be
prompted to restore them, rather than wreak vengeance upon


A study of venereal infection gives us some appalling re-
sults. Every year in our country perhaps hundreds of thou-
sands of persons become its victims. Owing to public ignor-
ance and a mawkish sentimentalism, many of these persons
cannot secure treatment from the regular physician, nor will
be received in many hospitals. It is argued that to make them
suffer the penalty of vice is the best safeguard to virtue. Even
if the transgressors were the only sufferers, it would still be
an unpardonable inhumanity not to cure them if possible,
because in such cases they too often suffer in the inverse ratio
of their familiarity with the vicious. More general educa-
tion conduces to more justice in fitting the natural punishment



to the crime. All disease is the result of some form of vicious
living, and if we are to be guided by such irrational aphorisms
we must abstain altogether from trying to relieve human suf-
fering. The pains of dyspepsia or rheumatism must be en-
dured lest by their cure we make vicious eating safe ; dipso-
mania and delirium tremens must remain uncured lest we
make alcoholic beverages safe.


When we come to consider the suffering which is unneces-
sarily inflicted on the ignorant innocent, by adherence to this
absurd dogma, then the public's indifference toward the cure
of venereal diseases becomes almost criminal. It is not in-
frequent that a syphilitic child will infect its uninformed nurse,
or an infected wet nurse not knowing her own condition trans-
mits the disease to the child under her care. Unnumbered
persons become infected merely by a common use of eating,
drinking, or toilet utensils.

That you may properly understand just how infamous is
the taboo which we have placed upon this subject, let me go
more into detail, and here I charge you specially to observe
the suffering of the innocent. Eighty per cent, of the blind-
ness of the new born, and twenty per cent, of this terrible af-
fliction from all causes, is due to gonococcus infection, as also
is a large proportion of vulvo-vaginitis and joint affections of
children. Dr. Neisser estimates that at present there are in
Germany about 30,000 blind persons who owe their affliction to
^his cause. In America no statistics are available.

Pinnard found that in 10,000 consecutive cases of miscar-
riage or abortions 42% were caused by syphilis, the remain-
ing 58% were due to all other causes combined. The mortal-
ity from hereditary syphilis ranges from 60 to 80%, while
those who survive are affected with degenerative changes
which unfit them for the battle of life. Syphilis in France
alone kills every year 20,000 children, producing 7y 2 % of the
mortality form all causes combined. It is computed that 50%
of all gonorrheal women are absolutely sterile, and gonor-

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 12 of 43)