Theodore Albert Schroeder.

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

. (page 14 of 43)
Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 14 of 43)
Font size
QR-code for this ebook

exclude printed matter. The incidental effect might be that
the dry goods business would receive an appreciable impetus
and the publishing business a relative set-back. Such an
effect would not void the congressional enactment, so long
as it is merely incidental to a discrimination based upon factors
bearing such relation to the control of mail transportation as
to be a direct mode of exercising the power to create post
offices and post roads. However, the result is different when
the avowed purpose is to make the establishment of the postal
system a mere instrumentality for promoting approved trade,
and to make the particular postal regulations therefor avowedly
subservient to such other purpose, which congress cannot
directly promote. If such other purpose of regulating trade,
not authorized by any other expressed power, was by congress
made the avowed object of postal regulations, the act would
be a nullity, under the rule above quoted from M'Culloch v.
Maryland. It follows that the law in question cannot be sus-
tained by the process of judicially imputing to congress such
an unconstitutional motive of trade regulation. That trade
regulation was not the purpose is still further apparent from
the fact that the act of congress does not make criminality
depend upon a commercial transaction in "obscenity." Such
matter sent as a gift, or in a private, sealed and personal letter,
is as criminal under the act as if it were part of a commercial

To sustain this law, on the contention that congress may use
the postal system as a means of regulating trade, would vest
in congress the most dangerous power ever possessed by any
tyrant. Congress might then say : "We wish to encourage the
business of Jones. Jones may, and Smith may not, use the
mails." Under the guise of regulating the mails congress might
encourage the publication of literature favorable to a protective
tariff and prohibit the transmission of that favoring tariff
reform ; it might transmit the books favoring Protestantism and
exclude those favoring Catholicism; might deliver gratuitous-
ly literature commending its administration of the postal sys-
tem and the political party in power, and penalize the posting
of mail criticising the postal management and the political
party in power. To establish such a power, is to make the post
office a prize to be contended for by political machines and
large industrial enterprises, for the destruction or curtailment
of criticism and competition. The obvious answer to all such



claims of power is that the sentiments expressed through the
mails, or the speculations about the psychologic (moral)
tendency of them, bears no possible relation to any possible
factor in the establishment or maintenance of post offices and
post roads, and therefore cannot be "a direct mode of exe-
cuting" the power to create them, and is not an implied power
of congress, and the law under consideration is therefore

Furthermore, if it were contended that in excluding from
the mails all "obscene" publications, congress had in view any
other object than the single one of regulating the psycho-sex-
ual states of postal patrons, the contention would be palpably
false, as is readily seen by all the judicial decisions and the
tests of "obscenity" prescribed by the courts as guides to
jurors in the trial of these cases. It follows that here, by
universal confession, we have just such a case as Chief Justice
Marshall described, wherein "congress under the pretext of
executing its power [did] pass laws for the accomplishment
of objects not entrusted to the government," namely: the
regulation of the intellectual food and mental states of its
adult citizens.


One more question remains to be considered. May not
congress, in the exercise of its implied power to regulate post
offices, classify the recipients of mail matter, so as to exclude
some from postal privileges which are granted to others?
The answer of course is that it may do so, sometimes, but this,
like all implied powers, is limited by the necessities which call
the implication into existence. For example: Congress can
have no power to exclude from postal privileges, on the same
terms that it is granted to others, an adult citizen with red hair,
simply because of his red hair, who in every respect bears the
same relationship to the postal system and the government that
do the citizens having different colored hair and who are per-
mitted to use the postal facilities. The obvious reason is that
a differential test, based solely on the postal patron's color of
hair, bears no possible or conceivable relation to the establish-
ment or maintenance of post offices and post roads. Neither
does his psycho-sexual condition, either before or after using
the mail, bear any such relation. But a classification of mail
patrons according to their differing relations to the postal



service, or to the government, would be a different matter.
Thus, deprivation of mail service, might be imposed as a
penalty upon conviction for any crime in the power of congress
to create ; or might be imposed to prevent the use of the mails
as a material factor in the actual commission of crime over
which congress has jurisdiction, and which crime is predicated
upon an actual injury to some actual person. (Fraud and
Gambling.) It is also quite certain that owing to the different
relation of the government to lunatics and minors, congress
would have the power to classify them separately from other
citizens and make special regulations for them as a class. But
all differentiation in the enjoyment of postal privileges, made
between different classes of citizens must be based upon tests
founded in their essentially different relations to the govern-
ment itself, and not according to any arbitrary distinction based
upon the color of their hair, or their psycho-sexual possibilities.


We must not estimate lightly the dangers which are sure
to be realized should a decision of the Supreme Court of the
United States once affirm the unlimited power of congress to
provide a censorship over the opinions, or over the psychologic
tendency of opinions which are transmitted through the mails.
It is fresh in our memory that when the agitation against the
beef packers began, which agitation resulted in recent pure
food laws, some packers demanded that the postmasters ex-
clude from the mails all "muckrake" magazines which were
criticising their business. Already a demand has been made to
exclude from the mails everything tending to encourage the
use of alcoholic liquors and tobacco, and in due time, no doubt,
in the name of morality we will exclude everything which tends
to encourage meat eating. This will come not alone from the
scientific and sentimental vegetarians, but will have the endorse-
ment of our sexual tinkers. In England the cry has already
gone up from high church dignitaries that meat eating pro-
motes lasciviousness. This warns us of the evil to come from
unnecessarily enlarging by implication the congressional power
to regulate the mental food of postal patrons.

If, prior to 1837, there had existed an authoritative judicial
decision affirming the power over the mails, it would have
been made a crime to send abolition literature through the post
office. This again warns us that such a power is an insufferable



menace to human progress. Its exercise at that time failed
only because the great lawyers in the senate were united in the
belief that no such power existed. About 1836, it was pro-
posed by the postmaster-general and President Jackson to pass
a bill penalizing the use of the mails for the transmission of
abolition literature. I believe it was during that debate that
Senator John P. King, a member from a slave-holding state,
said this: "I prefer the enjoyment of rational liberty at the
price of vigilance, and at the risk of occasional trouble by the
error of misguided or bad citizens, to that repose which is
enjoyed in the sleep of despotism. * * * No man was ever
convinced of his error by refusing to hear him." Mr. Calhoun
was made chairman of a special committee in the senate, and
the subject received careful consideration. He evidently wished
for the power to supervise the mails in the interest of slavery ;
but to his great honor, be it said, he plainly saw and declared
that the constitution did not give congress the power, and he
would not claim it. The most he could ask was that by the
"comity of nations" the United States would restrain postmas-
ters from delivering such matter in the states which had made
its circulation illegal. The question was discussed fully in a
senate of unequaled ability, and even this limited restraint,
proposed by Mr. Calhoun, by a vote of twenty-five to nine-
teen was held to be impossible under the constitution. 6 In the
debate Henry Clay said : "When I saw that the exercise of a
most extraordinary and dangerous power had been announced
by the head of the postoffice, and that it had been sustained
by the President's message, I turned my attention to the sub-
ject and inquired whether it was necessary that the general
government should under any circumstances exercise such a
power, and whether they possessed it. After much reflection,
I have come to the conclusion that they could not pass any law
interfering with the subject in any shape or form whatever.
The evil complained of was the circulation of papers having
a certain tendency. The papers, unless circulated, and while
in the postoffice, could do no harm. It is the circulation
solely the taking out of the mail and the use to be made of
them that constitutes the evil. Then it is perfectly compe-
tent for the state authorities to apply the remedy. The instant
that a prohibited paper is handed out, whether to a citizen or
sojourner, he is subject to the laws which compel him either
to surrender or burn it." Mr. Clay then proceeded to demolish

Con. Globe, 1836, pp. 36, 150, 288, 237, etc.



the claim that congress could legislate to carry into effect the
laws of twenty-four different states or sovereignties, and said
ironically: "I thought that the only authority of congress to
pass laws was in pursuance of the constitution." To the ques-
tion of Senator Buchanan, of Pennsylvania, to the effect that
the postoffice power did give congress the right to regulate
what shall be carried in the mails, he replied in the negative,
saying: "If such a doctrine prevailed, the government may
designate the persons, or parties, or classes who shall have the
benefit of the mails, excluding all others." During the debate,
one of the safest of senators, "Honest John" Davis, said : "It
would be claiming on the part of government a monopoly, an
exclusive right either to send such papers as it pleased, or to
deny the privilege of sending them through the mail. Once
establish the precedent, and where will it lead to ? The govern-
ment may take it into its head to prohibit the transmission
of political, religious, or even moral or philosophical publica-
tions in which it might fancy there was something offensive,
and under this reserved right, contended for in this report, it
would be the duty of the government to carry it into effect."
Mr. Davis also said he "denied the right of the government to
exercise a power indirectly which it could not exercise directly ;
and if there was no direct power in the constitution, he would
like to know how they would get the power of the states
legislative power at most." Mr. Webster expressed himself
as "shocked" at the unconstitutional character of the whole
proceeding. He said: "Any law distinguishing what shall or
shall not go into the mails, founded on the sentiments of the
paper, and making the deputy postmaster a judge, I should
say is expressly unconstitutional." 7


Congress admittedly has no authority to regulate the sex-
ual conduct of citizens within the states. Much less has it the
power, as a means to that end, to control the mere psycho-
sexual conditions of citizens of the states. It has never been
claimed nor even imagined or dreamed, that the postal regula-
tion against "obscene" literature is of the remotest consequence
AS A MEANS to the maintenance of post roads, or that such
regulation is of even the remotest conceivable use to the postal
system as such. On the contrary, both judicially and other-

T Purity and Liberty, by Wakeraan; Congressional Globe, 1836, pp. 36, 150, 288,
*83, etc.; Von Hoist's Life of Calhoun, p. 133.



wise, it nas been stated, again and again, that the only purpose
of that regulation was to control the psycho-sexual states of
postal patrons, as a means of restraining their sexual activities.
But this is an end the accomplishment of which is not entrusted
to the congress of the United States. Confessedly then, we
have here a case where congress, under the pretext of exe-
cuting its powers to establish post offices and post roads, has
passed a law for the accomplishment of objects not entrusted
to the United States government, and this is exactly what
Chief Justice Marshall said could not become the law of the
land. 8 It can make no possible difference to the postal system
as such whatever may be the psychologic effect of the opinions
transmitted. Some physical factor of the postal system must
be affected, making the postal system different from what it
otherwise would be, or else the regulation is not an exercise
of the power to establish and maintain it.

Neither can the exercise of the present power be justified as
an incident to the power to regulate interstate commerce, be-
cause the censorship is not limited thereto. It includes Intra-
state transmission as well as that of private letters, or gifts
which are not at all matters of commerce either Inter-state or
otherwise. 9

For these reasons the power here under discussion is not
vested in Congress at all, and the present laws creating a postal
censorship over mail matter are unconstitutional.

M'Culloch v. Maryland, 17 U. S. 483.

Howard vs. 111. Cent. R. R., 28 Supt. Ct. Rep. 141.




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

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

This contention involves the establishment of a new defi-
nition of "freedom of the press" based upon the viewpoint that
the framers of the constitution intended by that clause to en-
large the intellectual liberty of the citizen beyond what it had
theretofore been under the English system. Some State courts
have erroneously assumed that the only purpose was to ex-
change a censorship before publication for criminal punish-
ment after publication, without the least enlargement of the
right to publish with impunity so long as no one is injured.
The contention will be that the constitution changed liberty of
the press by permission, to Liberty as a right because thus only

* Republished from The Central Law Journal.



can all citizens be protected in their proper opportunity to hear
and read all that others have to offer, and without which free-
dom unrestricted there is no intellectual liberty at all as a
matter of right.

Before proceeding with the more critical study of the
meaning of "freedom of the press," it is well that we should
point out, and so far as possible bar, the principal avenues
of error, which have heretofore misled our courts.


Over a century ago Sargeant Hill cynically wrote this:
"When judges are about to do an unjust act they seek for a
precedent in order to justify their conduct by the faults of
others." In matters of government, at least during the last
few centuries, the evolution has been from despotism to liberty.
It follows from this that the danger and iniquity of blindly
following precedents is nowhere so great as in the attempts
to define the limits of constitutional liberty by reverting to
the ancient misconceptions of it, because the older precedents
were all made by tyrants, or those not far evolved from their
attitude of mind. As we evolve to a more refined sense of
justice, and rational conception of liberty, the old precedents
must be constantly overruled. It is this which marks the
progress of our race in its evolution to a truer and final social


The utility of a brief historical review of the struggle
for "freedom of the press" lies partly in this, that it shows how
reluctant have been those in power to admit such freedom
in practice, though seldom denying it in principle, and how
shifty the powers of despotism have been in yielding up one
form of repression as a concession to intellectual liberty, and
at the same time creating a new method for effectually ac-
complishing the same impairment of intellectual opportunity.
Such a study will also show how uniformly the moral senti-
mentalism of those in authority has prompted them to reinvent
the same phrases in defence of each renewed attack upon

In order to understand the underlying impetus of all
this, it must be remembered that when this problem first arose
it was in every essence a religious one, and arose where there
was a union of church and State. Those who governed



claimed to do so by divine right, and in their official acts repre-
sented the Deity. The King could do no wrong, and to criti-
cize him or his acts was an insult to the Almighty for whom
he acted, just as much as though legalized religion had been
blasphemed. From the viewpoint of such a church-state it
was inevitable that those in authority should affirm that : "To
say that religion is a cheat is to dissolve all those obligations
whereby civil societies are preserved; and Christianity being
parcel of the laws of England, therefore to reproach the
Christian is to speak in subversion of the law." 1 "It was the
doctrine of Coke [1551-1632] and even so late as Holt, C. J.
[1689-1710] and Treby [1692-1701] that any law, that is, any
statute, made against any point of the Christian religion, or
what they thought was the Christian religion, was void." 2

Of course under the influence of such authority it neces-
sarily followed that no one had any right to think or speak,
upon matters of religion, rulers, or governments, who had not
been thereunto authorized by those who were recognized as
possessing some divine authority to give or withhold such per-
mission. But religion and government, according to the
views then prevailing, encompassed everything and so it fol-
lowed inevitably that "Free speech was a species of gift by
the Sovereign to the people."

Although we have all abandoned the original premises
from which was drawn the conclusion that freedom of speech
was a gift by the sovereign, yet most American judges seem
to read the precedent so blindly that they adhere to the dogma
that "freedom of the press" means a liberty by permission and
not a natural right guaranteed by the constitution. This is
self-evident from almost every judicial utterance upon the
subject and in spite of the self-evident fact that our consti-
tution-makers intended to perpetuate a different rule. This
error, like many of the others, comes from the uncritical
adoption of precedents and the consequent failure to realize
that our very different theory of government has overturned
the foundation which alone justified the older authorities, and
failing to realize this change of base, our courts also fail to
see the necessity for repudiating the precedents which had
no other foundation.


Another matter to be guarded against is the false pretense

*Reg. v. Taylor, Ventris 293. The later view in England seems different*
See 41 Fortnightly Review, 305.

2 Patterson's Liberty of the Press, p. 67, citing 10 st. Tr. 75.



of a love of liberty which tyrants have always expressed, even
in the very act of enforcing its destruction. Thus Lord Es-
kine tells us: "The public welfare was the burden of the
preambles to the licensing acts; the most tyrannical laws in
the most absolute governments speak a kind parental language
to the abject wretches, who groan under the crushing and
humiliating weights." 3 In France, October, 1803, an act was
passed by which all booksellers were prohibited from vending
any book without having submitted it to the censors, "and as
if to add insult to injury the measure was introduced as one
'to secure the liberty of the press/ " * * * Napoleon the
First did not consider liberty of the press as possible among
Frenchmen, "who have a lively imagination," as it is in Eng-
land where "the people being brutal are less likely to be in-
fluenced by writings, and are more easily kept in check by the
throne and the aristocracy."*

In America we find a similar practice. Solemn judicial
opinions sometimes reek with pharisaical eulogies of the
judicial love of liberty, as a prelude to the arbitrary punishment
of a man for contempt, without trial by jury or an opportunity
to prove truth and justifiable motive before an impartial tri-
bunal, and all because he had exercised his supposed right to
express freely his opinion of a public servant, the court. Here
is a sample:

"It is a well known fact, that the bench and the bar
have been, in this and all other countries where the law
has existed, as a distinct profession, the ablest and most
zealous advocates of the liberal institutions, the freedom of
conscience, and the liberty of the press ; and none have guarded
more watchfully the encroachments of power on the one
hand, or deprecated more earnestly tendencies to lawless
anarchy and licentiousness on the other. The freedom of the
press, therefore, has nothing to fear from the bench in this
State. No attempt has ever been made, and we may venture
to say never will be, to interfere with its legitimate province,
on the part of the judiciary, by the exercise of the power
to punish contempts.

"The object of the clause in the Bill of Rights above
quoted is known to every well informed man. Although the
press is now almost as free in England as it is in this country,
yet the time was in bygone ages when the ministers of the

3 Vol. 1, p. 48, Edition of 1810.

4 Vol. 15, Solicitors Journal & Reporter, 51 & 70.




a like freedom for anarchists to discredit the government in
the hope of ultimately securing its peaceable abolition. There
is no doubt, either but that practically all these same news-
papers can be relied upon to advocate the suppression of all
searching and enlightening sex-discussion. So also I know
an anarchist who, probably from fear of being wrongly sus-
pected of believing in the forcible abolition of government,
hastens to explain that though he esteems all government a
nuisance he still thinks it proper for government to suppress

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 14 of 43)