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Theodore Albert Schroeder.

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

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rheally infected men are responsible for 20% of involuntary
sterile marriages. Sixty per cent, of the children gestated

12 Practically all of this information about venereal infection is taken from
"Social Diseases and Marriage," by Dr. Prince Morrow, and from the publica-
tions of the Am.. Soc. for Sanitary and Moral Prophylaxis, of which he is President.
The State Medical Board of Indiana has recently issued a pamphlet giving very
similar statistics.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

by syphilitic mothers die in utero, or soon after birth. Only
two in five will survive even through a short life ; 20 to 30%
of gonorrheally infected women abort and from 45 to 50%
are rendered irrevocably sterile.

Fournier's general statistics, embracing all classes of
women, show that one in every five syphilitic women con-
tracted syphilis from her husband soon after marriage.
Among the married females in his private practice, in 75% of
the cases the disease was unmistakably traced to the husband.
D. Bulkley's statistics, in "Syphilis in the Innocent," state that
in private practice fully 50% of all females with syphilis ac-
quired it in a perfectly innocent manner, while in the married
females 85% contracted it from their husbands. The report
of a medical committee of seven gave it that in from 30 to 60%
of the syphilitic women who had the disease it was commun-
icated by the husband. Dr. Morrow in his experience in the
New York Hospital found that 70% of the women who applied
for treatment for syphilis were married and claimed to have re-
ceived the disease from their husbands. 60% of all gynocolo-
gic surgical operations are chargeable to gonococcic infection.

To emphasize the danger which comes to the innocent from
the infamous and ignorant conspiracy of silence, let me quote
these awful words from a specialist of high authority. He
says: "It may be a startling statement but nevertheless true,
that there is more venereal infection among virtuous wives
than among professional prostitutes in this country." The
latter, being the more intelligent in such matters, use personal
propylaxis, and secure treatment earlier after infection, while
the ignorant virtuous wife continues to suffer in silence. In
view of this appalling condition, what are you going to say
to those moral sentimentalizers, who for fear of making vice
safe, seek to penalize all announcements that venereal diseases
can be cured? Will you by education help protect the inno-
cent sufferers or will you through moral cowardice give silent
support to the infamous taboo upon sexual education?

I have now shown the practical operation of the doctrine
that to make men suffer the penalties of vice is the best safe-
guard to virtue, yet if you would issue general instructions
for the detection of venereal infection, or for personal pro-
phylaxis, all prurient sentimentalists would say you are mak-
ing vice safe, you must go to jail for your "obscenity" and
the "immoral tendency" of your book. Thus it is that the in-

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OBSCENITY, PRUDERY AND MORALS.

nocent must continue to suffer, and the family physician con-
tinues to lie to the wronged wife, in order to protect her hus-
band, and maintain the "sanctity" of such a home. Infected
husbands must be screened at any cost of suffering to the in-
nocent wife and children, simply because we are afraid that
someone will say we are trying to safeguard vice.

In many states efforts have been made, and have almost
succeeded, the success of which would have made it criminal,
even in a hospital report or a professional treatise on venereal
disease, to make it known where or how sexual ailments could
be cured, and the excuse offered is that such information tends
to make vice safe.

DEMAND OPPORTUNITY FOR KNOWLEDGE.

I have tried to point out the urgency for general education
and the laws which preclude it. I cannot doubt that you are
quite convinced that the situation is sufficiently grave to de-
mand an immediate change if we would maintain a semblance
of purity. I submit that a decent regard for the moral wel-
fare of the community, or for the innocent sufferers of vene-
real infection, compels us to demand for the general public
such liberty of the press, and other means of publicity, as will
protect each in his right to learn and to know, just how terri-
ble are the ravages of these diseases how their presence may
be detected and that they can be cured, and their spread pre-
vented. The practical legal question which all this presents
is this: DOES THERE EXIST ANYWHERE UNDER OUR CONSTITU-
TIONS ANY AUTHORITY VESTED WITH POWER TO SUPPRESS SEX-
UAL INTELLIGENCE, AND THUS BY LEGALIZED COMPULSION IN-
FLICT SUCH ILLS UPON HUMANITY?

ON THE DANGERS OF LIBERTY.

It is perhaps apparent now that our present tests of ob-
scenity are grossly ridiculous in their results if impartially ap-
plied, and I am sorry to confess that I cannot furnish a better,
because what is deemed objectionable is always a personal mat-
ter which cannot be defined in general terms. Furthermore,
no man can tell a priori what is of bad tendency. If you
have received the right training from your parents or precep-
tors, even the worst bawdy picture may produce a wholesome
revulsion. Once open the door to all serious discussions of
sex, and soon the healthy curiosity will be satisfied, which now
becomes morbid only from the denial of satisfaction. No one
thinks of caricaturing the reproductive mechanism of our do-

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

mestic animals only because no one has any morbid curiosity
about it, because there is no concealment. With the develop-
ment of healthy mindedness through sexual education in our
schools, all morbidity of curiosity would disappear in one gen-
eration. The demonstration of this is to be found among art
students.

Years ago when it was proposed to prohibit the sending of
abolition literature through the mails, because of its "immoral"
tendency toward insurrection, the Hon. John P. King, a
United States Senator from the South, protested and said: "I
prefer the enjoyment of a rational liberty at the price of vigi-
lance and at the risk of occasional trouble, by the error of mis-
guided or bad citizens, to the repose which is enjoyed in the
sleep of despotism." With this I concur. Liberty has dangers
of its own, which we must overcome, or forego progress. If we
have confidence that we have right on our side, we need not
fear open discussion and warfare with error.

This then concludes the several preliminary discussions,
which seemed necessary to clear away some of the mists of our
moral sentimentalism, and brings us to the more direct dis-
cussion of the several constitutional questions involved.



128






CHAPTER VII.

ON THE IMPLIED POWER TO EXCLUDE "OBSCENE"
IDEAS FROM THE MAILS. 1

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 authorise 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 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 differential test of mail mat-
ter, based upon the opinions transmitted through the mails, or
the psychological tendencies of such opinions upon the ad-
dressee 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 establish-
ment 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
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 execution of the power to establish post
offices and post roads, or some other power expressly granted,
and it cannot, under the pretence of regulating the mails, ac-
complish objects which the Constitution does not commit to
the care of Congress. Such an unconstitutional object is the

^Central Law Journal, V. 65, p. 177, Sept. 6, 1907.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

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.

The present postal laws against "obscene" literature, as
the same are judicially administered, make the mailability of
matter depend not only upon the so-called "obscenity" of that
which is actually transmitted through the mails, but also upon
ideas not actually transmitted, but according to their potential
capacity for suggestiveness to the prurient, though the words
and sentiments in themselves are free from objection. The
question is, has Congress the implied power to make such regu-
lations? Three thousand lawyers have been employed by the
defendants in as many cases, and none of these have thought
it worth while to question the existence of such a power.

This discussion involves only two clauses of the constitu-
tion, viz : The power "to establish post offices and post roads"
and the authority "to make all laws necessary and proper" to
the establishment of post offices and post roads. It has become
the statement of an axiom to say that "the national govern-
ment possesses no powers but such as have been delegated to
U." 2 "Whenever, therefore, a question arises concerning the
constitutionality of a particular power, the first question is,
whether the power be expressed in the constitution. If it be,
the question is decided. If it be not expressed, the next in-
quiry must be whether it is properly an incident to an express
power and necessary to its execution. If it be, then it may be
exercised by congress. If not, congress cannot exercise it." 3
The constitution nowhere expressly confers upon congress the
power legislatively to discriminate between "moral" and "im-
moral" opinions.

IS THE IMPLIED POWER TO REGULATE UNLIMITED?

I now momentarily waive the contention that no such qual-
ities belong to any opinions. The question then is, has congress
the implied power to create a "moral" censorship over the opin-
ions which may be transmitted through the mails, which im-
plied power, if it exists, must arise wholly from the power to
maintain post offices and post roads? The power to establish
a postal system and to make all "necessary and proper" laws
incident thereto, undoubtedly implies the unavoidable exercise

'Oilman v. Philadelphia, 70 U. S. 713-725; Martin v. Hunter's Lessee, 1 Wheat.
804-326; M'Culloch v. Maryland, 4 Wheat. 405; Pacific Ins. Co. v. Soule, 7 Wall.
444; United States v. Cruikshank, 92 U. S. 542.

Story's Commentaries on the Constitution.

130



of the power to determine the gross physical characteristics of
the matter to be transmitted and excluded. But does it follow
that in other particulars there is any implied power to regulate
the contents of the mails, and if so, is it unlimited? Has con-
gress the power to say that nothing at all be carried which is
not written or printed upon paper produced at a particular
factory, and to penalize the transmission of otherwise un-
distinguishable paper coming from a rival factory? Clearly
not. If the paper in all its physical characteristics is undis-
tinguishable, a discriminating judgment based upon its differ-
ent manufacturers, who themselves bear precisely the same
relationship to the government and its postal system, cannot
be a "necessary and proper" power impliedly existing in con-
gress, because a decision upon that question is not necessary
to either the establishment or maintenance of post offices and
post roads, nor of any other power expressly delegated to the
United States. To assert the contrary is to make the control of
postal regulations a political prize, to be used in securing a
monopoly in the manufacture of paper, and such an evil pos-
sibility is not to be tolerated, or called into being by any judicial
process of unnecessarily creating implied power. When it is
"necessary and proper" as an incident to any other expressed
grant of power, it is possible that the postal system, and the
mode of its regulation, by necessary implication, could be made
subservient thereto. Thus congress has undoubted power to
pass many criminal laws, and might, perhaps, prescribe depri-
vation of mail privileges as a penalty to be inflicted upon con-
viction, or it probably could prohibit the use of the mails as an
instrument directly contributing an essential factor in the act-
ual commission of such other actual crime, within the power of
congress to create. But does it follow that therefore con-
gress also has the power arbitrarily to deny the use of an es-
tablished postal service to all citizens who bear the name of
"Smith," or who do not believe in Christian science, or do not
approve of a protective tariff? Clearly not. Because a de-
cision based arbitrarily upon the name of the postal patron, or
upon his characteristics of opinion merely, is not "necessary
and proper" to the establishment of post offices and post roads,
nor to the exercise of any other expressed power of the fed-
eral government. Admitting now the "necessary and proper"
implied power in congress to determine the geographical ex-
tent and distribution of post offices and post roads, and the un-

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

avoidable, and therefore "necessary and proper" implied power
to determine the gross physical characteristics of what
may be transmitted, does it follow, all other conditions,
including the physical characteristics, being the same, that
congress has the power arbitrarily to make discriminations
according to arbitrary standards, based upon the varying intel-
lectual valuations of conflicting opinions, or opinions of sus-
pected conflicting tendencies? Can the literature of Catholics,
free-lovers, theists, and agnostics be excluded as unapproved
by the law-making power, while the literature of evangelicals,
polygamists and Christian scientists is transmitted because
approved ? May the literature of trades unionism be excluded
and that of the employer's association transmitted? May the
literature favoring the single tax, free trade, or state owner-
ship of railroads be excluded, and those favoring an income
tax, protective tariff and the repeal of anti-trust laws, be trans-
mitted? Has congress the power to so regulate the mails as
to transmit all literature "tending" to a centralization of power,
progressive tyranny, moralization by force and that which
"tends" to foster the ascetic ideal of sexual life, while it ex-
cludes all matter which "tends" toward decentralization and
personal liberty, or "tends" to foster unconventional ideas of
sex-life, all other conditions being the same? May the litera-
ture of prohibitionists be excluded, while that of their op-
ponents is transmitted? Clearly, if congress has the implied
power to do one of these things, it has the implied power
to do them all, because they all bear the same relation,
or more accurately, no relationship, to the establishment of
post offices and post roads. We are not concerned with the
question as to the likelihood of such a power being exercised
to the fullest, nor are we concerned with the tremendous pos-
sibility for evil which might come from the abuse of so extra-
ordinary a power, though that would make us hesitate to
affirm its existence, unless the implication was an unavoidable
one. Again we ask, has congress any such implied power?
Clearly not, because its exercise bears no "necessary and
proper" or conceivable relation to the establishment of post
offices and post roads, nor to any other enumerated power of
the federal government.

HOW IS THE IMPLIED POWER LIMITED?

Let us abandon the discussion from the standpoint of en-
grafting necessary exceptions upon an assumed unlimitedness

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IMPLIED POWER TO EXCLUDE " OBSCENE" IDEAS FROM MAIL.

of the implied power, and discuss the matter by developing
the implications from the constitution itself. Congress is not
expressly authorized by the constitution to determine even the
gross physical qualities of mail matter, but that power is un-
avoidably implied from the authority to establish post offices
and post roads, because the latter cannot be executed without
the exercise of a discretion as to the physical characteristics of
postal matter. Can the same be said about a discretion as to
the psychologic tendencies of ideas expressed upon the trans-
mitted matter? Congress is not expressly authorized to dis-
criminate according to the intellectual or "moral" qualities of
that which may be expressed upon, or suggested by that
which is transmitted through the mails. Congress can have
the implied power to make such differentiations according
to psychologic standards only if post offices and post roads are
impossible of establishment and maintenance without the im-
plication of such power. But if on the contrary, it is essential
to the establishment or maintenance of post offices and post
roads, that congress exercise a legislative discrimination be-
tween mail matter, not only according to the opinions actually
transmitted, but also according to the psychologic tendency of
that which is only suggested by, but not expressed in the mat-
ter actually transmitted, then such power will be implied. A
mere analytical statement of the question shows how absurd is
the claim of such a power.

Every publication undoubtedly suggests different things to
many different people. In each, that which it suggests depends
upon what, by prior varying experiences, has become associated
in his mind with that which has been written. That which I
send through the mail is one element, but not at all the deter-
mining element in the resultant varying ideas suggested to
the different readers. How ridiculous and monstrous it is to
assert that a discrimination between mail matter, not according
to its own inherent definable qualities, but according to its
mental associations in the reader's mind, is a "necessary and
proper" incident to, or "a direct mode of executing the power"
to establish post offices and post roads! Yet according to
such tests of obscenity are present laws executed. What has
the reader's sensitiveness to the discovery of lewd suggestions,
or the existence of an associated lascivious idea, or the jury's
capacity for psycho-sexual receptivity, to do with establishing
post roads? Plainly and unmistakably nothing at all. Here

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

it is desirable to emphasize the fact that the incidental and im-
plied powers of congress are required by the federal consti-
tution to be both "necessary and proper." If this power under
investigation is deemed only "proper," but not "necessary," in
the sense of being unavoidable, *hen it does not exist. This
does not mean that the particulai regulation must be indis-
pensable, but the existence of a general power to choose be-
tween this particular regulation and some other, must be indis-
pensable to the expressed power, as a "direct means of execu-
ting it." This is not a question of regulating the physical charac-
teristics of mail matter, or postal charges, nor preventing the
commission of another crime over which congress has been
given authority, by another part of the constitution. This is an
effort, by means of the postal system, to regulate, in the
thoughts of the mail recipient, certain ideas which are not in
themselves criminal. The theory is that these certain ideas
tend to induce conduct which in itself is not necessarily either
criminal or immoral, but sometimes becomes so, and which con-
duct, when it is criminal, is so by virtue of state laws, and is
not within the power of congress to regulate, because that
potential sexual conduct, if crime it be, when it has materialized
into actuality, is never in any of its essential parts committed
in the mails or on the post office's premises, where congress
has jurisdiction over it. Unlike fraud and lottery-gambling,
fornication and adultery cannot be committed by mail, and
when otherwise committed in a place where congress has
authority, it can be adequately punished without invoking the
pretense of postal regulation, and when committed within the
states is none of the concern of congress.

Our contention is that while congress may in its discretion
use "any direct mode of executing" its expressed authority,
it has no power to make the end authorized by the constitution
a mere means to the accomplishment of an end that is not so
authorized. Chief Justice Marshall expressed it thus : "Should
congress, under the pretext of executing its powers, pass laws
for the accomplishment of objects not entrusted to the govern-
ment, it would become the painful duty of this tribunal * * *
to say that such an act was not the law of the land." 4 Since
Judge Marshall wrote the foregoing, numerous acts have been
declared unconstitutional for coming within the foregoing

*M'Culloch v. Maryland, 17 U. S. 423.

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IMPLIED POWER TO EXCLUDE "OBSCENE" IDEAS FROM MAIL.

prohibition. 6 That which Judge Marshall in M'Culloch v.
Maryland said could not be done by congress is precisely what
has been done in the legislation now under consideration. To
control the psycho-sexual condition of the addressee of mail
matter is not one of the expressed powers of congress ; neither
is the regulation of the psycho-sexual condition of the ad-
dressee o mail "a direct mode of executing" the power to
establish post offices and post roads. In fact it bears no pos-
sible relation either to their establishment or maintenance.
Therefore the act of congress now under consideration is not
the law of the land, because the object to be accomplished is
not one entrusted to congress. If regulating man's psycho-
sexual conditions and the resultant sexual conduct, is an im-
plied power, incident to a regulation of the mails, then it is
within the discretion of congress to accomplish that same end
by any other adequate means. Among such means would be
the limitation of the use of the mails to the unsexed, or pro-
viding that all who willingly receive "obscene" mail, or any
mail, shall submit to castration or ovariotomy. This would be
as legitimate a power, implied from authority to regulate the
postal system, as the other method of controlling the psycho-
sexual condition of the mail addressee.

MAY CONGRESS USE POSTAL POWER AS A MEANS OF REGULATING

TRADE?

Next we inquire if the foregoing conclusion can be avoided
by the suggestion that the purpose to be achieved by this postal
regulation was not to control the psycho-sexual states of
postal patrons, but to withhold the aid of the postal system
from a class of business which congress disapproves and de-
sires to discourage, but which, within the states, it has not the
expressed power to destroy by direct criminal legislation to
that end. This again involves the same question as the last,
namely: Can congress, under the pretext of regulating th
mails, make that regulation avowedly subservient to objects
with which it is not authorized to deal directly? In the exer-
cise of an unavoidable duty to regulate the physical character-
istics of mail matter, congress may transmit dry goods and

Hepburn v. Griswold, 8 Wall. 603 (Legal Tender Act); Cummings v. Mis-
souri, 71 U. S. 320 (Disloyal Clergyman); Ex parte Garland, 71 U. S. 333 (Dis-
barring Rebels); U. S. v. Reese, 92 U. S. 215 (Negro Suffrage); U. S. v. Steffens,
100 U. S. 82 (Trade Mark Cases); U. S. v. Stanley, 109 U. S. 3 (Civil Rights
Cases); Pollock v. Farmers' L. & T. Co., 157 U. S. 429 (Income Tax); James v.
Bowman, 190 U. S. 127 (Negro Suffrage) ; U. S. v. Matthews, 146 Fed. Rep. 308
(Com. Agric.); U. S. v. Scott, 148 Fed. Rep. 421 (Labor Union & Interstate
Com.); Brooks v. So. Pac. Ry., 148 Fed. Rep. 996 (Emp. Liab. & Interstate Com.).

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 13 of 43)