Theodore Albert Schroeder.

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

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even the fruitless advocacy of crime. Again, I know some
radical and ardent sex-reformers who think it an outrage
that plain spoken and searching sex-discussion is punishable,
but see no objection to the suppression of an equally plain
spoken and searching discussion by some of the more radical
socialists and anarchists. So likewise we can find Protes-
tants who desire unlimited liberty for themselves to criticise
the religious tenets of their Catholic neighbors, and Catholics
who desire to use a similar liberty against the theology of
their Protestant neighbor, but both hasten to unite for the
punishment of the atheist who would deride the tenets of
both. Yet each and all of these will seriously tell you how
ardently they love "freedom of speech/' but they will always
so define that freedom as to leave in full force the power
to suppress those opinions of which they disapprove.

Let me illustrate still further. One reading a discus-
sion of the licensing acts might easily conclude that freedom
of the press meant only the absence of a licensor, all other
forms of abridging free utterance being compatible with
freedom. Another reading a definition of freedom of the
press as these are sometimes formulated in relation to per-
sonal libel, would find himself in a rather hopeless situation
if he should seek to apply that definition to a case where the
abstract discussion of sex-ethics was involved, and the claim
was made that it was obscene because it tended to deprave
the morals. Likewise there might be difficulty in using a
definition of freedom framed in relation to treason and seek
to apply it to the case of a non-resistant anarchist. Errors
of this sort have been frequently made in the misdirected effort
to follow precedent, and have usually resulted in the definition
of unabridgable freedom of speech so as to permit abridg-

Evidently the difficulty with most of these advocates of



freedom is that they have no conception of freedom in gen-
eral, and erroneously conclude that everybody is enjoying the
greatest possible freedom when they feel themselves unre-
stricted, though this seeming liberty for themselves may be
wholly due to the fact that they are utterly devoid of anything
like a serious, carefully reasoned opinion upon any subject
whatever. If they had ever done any of the intellectual work
which that presupposes, they would probably know something
of the ease with which differences of opinion may arise upon
every possible question and of the importance of maintaining
the other fellow's right to disagree.


We are now to undertake a general discussion as to the
interpretation of the constitutional phrase "Congress shall make
no law abridging freedom of speech or of the press," and we
must first endeavor to get a clear idea of what we mean by
"interpretation." Manifestly "interpretation" does not mean
that we may inject words, phrases, or exceptions, into the con-
stitutional phraseology. On the contrary, by "interpretation" we
can only mean that we are to arrive at the meaning of the
constitution by deductions made exclusively from the words ac-
tually used therein, unless these are ambiguous. If there is any
ambiguity, in the significance of the words which guarantee our
freedom of utterance and the right to hear, then these words
may be interpreted in the light of the historical controversy
which supposedly was settled by the constitutional clause in
question. On the other hand, if the words themselves do not of
necessity involve any ambiguity, then the historical conditions
at the time of their adoption can be of no consequence to us in
the matter of determining their meaning, because if the meaning
is plain the historical facts become immaterial and useless. If
it can be done the significance of the constitutional phraseology
must be determined wholly and exclusively by deductions made
from the words themselves.

The words "speech" and "press" certainly are not ambig-
uous. They cover every idea expressed vocally or presented on
a printed page. Although it is manifestly absurd, yet some
courts in effect have said that speech is not speech, whether ex-
pressed orally or on the printed page, unless it can be fairly
classed as serious and ladylike discussion. Others advise us
that speech is not speech unless it was uttered "not intending to



mislead but seeking to enlighten," and even then it is not speech
at all if the other fellow happens to consider it to be "blas-
phemous, immoral or seditious" ; some add "obscene, indecent,
filthy, or disgusting." So in a variety of ways courts, under the
false pretense of "construing" them, have amended our consti-
tutional guarantees, of freedom of speech and of the press, so as
to inject into them exception which the judges think ought to
be there but which the framers of our constitutions neglected to

When we say that speech isn't speech except when used in
serious and lady-like discussion, such as does not irritate us,
then we are indulging in sentimental nonsense, and I shall not
be in the least inclined to change the epithet because in effect
this has been often done by "learned" judges, and "distin-
guished" courts. I should be equally certain that the word
"freedom," when used in connection with "speech and press,"
was entirely free of ambiguity, were it not for the extraordinary
meanings assigned to it by the courts, under the pretense of
construing "freedom." It appears to me that here the judges
instead of interpreting the word "freedom" have interpolated
into the constitution significations which are not at all implied
in any of the words therein used. It seems to me that had our
courts used common sense, instead of blindly following prece-
dents established by those who never believed in free speech,
and instead of adopting definitions of freedom framed by
tyrants whose conception of it was repudiated by the American
revolution, no embarrassing questions would ever have been

If the constitution had said that "Congress shall make no
law abridging man's freedom to breathe," no one would have
any doubt as to what was meant and every one would instantly
say that of course it precluded Congress from passing any law
which should prohibit breathing contrary to the mandate of a
licensor, before trial and conviction, and that it would equally
preclude the passage or enforcement of any law which would
punish breathing merely as such upon conviction after the fact.
No sane man could be found who would say that such a
guarantee, to breathe without any statutory abridgment, only
precluded the appointment of Commissioners who should
determine arbitrarily what persons might be licensed to breathe
and who should not be so licensed, and that it would still permit
Congress to penalize all those who do not breathe in the speci-



ally prescribed manner, even though such criminal breathing
had not injured anyone, nor could possibly do so according to
any of the known laws of our physical universe, by which I
include the actual knowledge of our bacteriologists as to the
transmission of infectious diseases.

There is not the slightest reason to be given why "freedom"
in relation to speech and press should be differently interpreted.
The only explanation for having interpreted it differently is that
the people generally, and judges and others in authority in
particular, believe in freedom to breathe but, emotionally at
least, disbelieve in freedom of speech and of the press, and
therefore they read into the constitution meanings and excep-
tions which are not represented there by a single syllable or
word, and which are therefore interpolated to accomplish a
Judicial amendment of the constitution, under the false pretense
of "construing" it, only because the judges think, or rather
feel, that the constitution ought not to guarantee freedom of
speech and of the press in those matters which stimulate their
emotional aversion, and so they dogmatically assert that "free-
dom" of utterance is not guaranteed, in the same sense in which
we have spoken of freedom to breathe.

The ordinary and plain meaning of the word "freedom"
should readily have solved all problems, if there ever really
were any such, which were discoverable by reason uninfluenced
by hysterical emotions. In common parlance, we all understand
that a man is legally free to do an act whenever he may perform
that act with impunity so far as the law is concerned. Thus no
one would claim that another was legally free to commit lar-
ceny, so long as larceny involved liability of subsequent criminal
punishment. No one would say that the law leaves a man free
to commit murder, so long as there is a law punishing murder.
Likewise no man who is depending purely upon the phraseology
of the constitution will ever say that the laws leave speech and
press free, so long as there is any law which prescribes a
penalty for the mere utterance of any one's sentiments, merely
as such utterance and independent of any actually accomplished
injury to another.


On the other hand, it would seem equally certain, to the
ordinary understanding, that there exists no legal abridgment
of a man's freedom to speak or write if he is punishable
for the abuse of that freedom, provided we mean only by



"abuse" an actual and not a mere constructive abuse: that is,
provided he is punished only for an actual and not a construc-
tive injury, resulting from his utterance. Manifestly in such
a case he is not punished for the speech as such, but he is
punished for an actual ascertained resultant injury to some one
not a voluntary adult participant in the act.

His utterance in that case may be evidence of his complicity
in, or contribution to that actual injury, and punishment for an
actual resultant injury is not in the least an abridgment of the
right to speak with impunity, since manifestly it is not a
punishment for mere speaking as such, the essence of crimin-
ality the criteria of guilt being something other than the
utterance of his sentiments. Manifestly, in this view, which is
but the natural import of the words "freedom of speech and of
press," the expression can only mean that a man shall have the
right to utter any sentiment that he may please to utter and do
so with impunity, so long as the mere utterance of his senti-
ments is the only factor in the case. It does not exempt him
from punishment for murder, arson or other actual and resul-
tant injury, but leaves it where he may be punished for his
contribution toward and participation in bringing about these
injuries. His utterances may be evidence tending to show his
responsibility for the actual injury which is penalized, but the
penalty attaches on account of that injury, and can never be
predicated merely upon the sentiments uttered without, to that
extent, abridging our freedom to utter. When the statute does
this the constitutional right is violated.


Both the words "speech" and "press," as used in our
constitutions, are limitations upon the word "freedom" as
therein used. The purpose of this clause is to preclude the
legislative abridgment, not of all liberty, but of liberty only
in relation to two subjects, to wit: "speech" and "press."
It is manifest therefore that the same word "freedom" can-
not change its meaning according to whether the utterance is
oral or printed. In other words, "freedom" must mean the
same thing whether it relates to "speech" or "press." In the
very nature of things "freedom of speech" cannot mean mere
absence of a censor to whom an idea must be submitted be-
fore utterance, because the very act of submitting the idea to
a censor implies its utterance. Furthermore, there never



was a time when a censor assumed to pass upon oral speech,
prior to its utterance. Unpopular oral speeches were punished
only after utterance. The whole controversy over "free-
dom of speech" was a demand that speakers might be free
from such subsequent punishment for those of their utterances
which in fact had not actually injured anyone, and it was
that controversy which the framers of our constitutions in-
tended to decide for all time, by guaranteeing the right to
speak one's sentiments upon any subject whatever, and with
absolute impunity so long as no one was actually injured ex-
cept by his voluntary and undeceived consent, as when the
person is convinced to the changing of his opinion about
some abstract doctrine of morals or theology the acceptance
of which his neighbors might deem a deterioration, and the
new convert esteem as a moral and intellectual advance.
If, as I believe, this is the inevitable interpretation of "free-
dom" in relation to "speech," and the meaning of "freedom"
in relation to "press" must be the same, then we are irresist-
ibly forced to the conclusion that our courts have been wrong
in asserting that "freedom" in relation to the press means only
the absence of a censorship prior to publication, without en-
larging those intellectual liberties which are beyond the reach
of legislative abridgment.

The personal and psychologic cause of this judicial destruc-
tion of constitutional right is to be discovered in our defective
human nature which almost unavoidably develops in judges,
by reason of the very character of the function which they
habitually perform, a growing lust for power, so strong that
very, very few ever acquire sufficiently critical intellects to
check it, so that they can officially acknowledge the right of an
ordinary citizen at the bar of justice to damage the judge's
vanity, or stimulate his emotions of aversion. Thus our judges,
(especially through contempt proceedings and vague penal
statutes, made certain by judicial legislation) have unconscious-
ly demanded and secured for themselves the adulation usually
given only to an inerrant pope or king, and have almost reduced
the judicial bench to a sacrificial altar, the members of the bar
to a kind of lesser priesthood, whose duty it is at least by silent
acquiescence to keep the laity in ignorance of judicial incom-
petence and iniquity, and in an attitude of suppliant humility.

Shall this condition be accentuated and become definitely
fixed by a continuing affirmance of the judicial destruction of



our freedom of speech and of the press? Will the process of
judically amending our constitutions by the interpolation of
limitations upon freedom of press step, or shall we have an ever
increasing abridgment of such liberty? These are the serious
questions which confront us.

When we come to make a historical study of the meaning
of "freedom of the press" we will at once discover that the
personal elements disappear, to be replaced by humanistic
considerations. Now it is not merely a question of imprison-
ment or fines, but a question of intellectual opportunity, not
only a question of the opportunity to speak, but of the more
important opportunity of the whole public to hear and to
read whatever they may choose when all are free to offer.
Now it ceases to be a matter of the personal liberty of the
speaker or writer, and must be viewed as a matter of racial
intellectual development, by keeping open all the avenues for
the greatest possible interchange of ideas. In this aspect the
most important feature of the whole controversy simmers
down to this proposition, namely: that every idea, no matter
how unpopular shall, so far as the law is concerned, have
the same opportunity as every other idea, no matter how
popular, to secure the public favor. Of course only those
ideas which were unpopular with the ruling classes were ever
suppressed. The essence of the demand for free speech was
that this discrimination should cease. In other words every
inequality of intellectual opportunity, due to legislative en-
actment, was and is unwarranted abridgment of our
natural liberty, when not required by the necessity for the
preservation of another's right to be protected against actual
material injury.

The contention stated at the head of this chapter will be
amplified in statement, and will receive conclusive historical
justification, when we come to the chapter on the scientific
interpretation of freedom of speech. Before proceeding there-
with we must, however, expose the mind-befogging judicial
dogmatism upon this subject.





It seems to me that before proceeding to the direct task of
interpreting "freedom of the press," it is desirable that we
have some general discussion as to the judicial destruction of
liberty of the press, and to indicate how this has been accom-
plished. By such a discussion we can best get a clear under-
standing as to the issue between the two conflicting view-
points from which our task can be approached.

Some words and phrases become so associated with emo-
tions of approval that we instantly avow them as a part of our
creedal declaration of faith, though very often we have no
very real belief in nor very definite conception of that which
the words symbolize. This is often illustrated in religion,
where men give avowed support to creeds, almost every detail
of which they will repudiate under a searching cross-examina-
tion. So likewise is it with our constitutionally guaranteed
"freedom of the press." As a general proposition every one
professes belief in it and yet in the concrete apparently nobody
upholds it, except for self, and almost everybody can be relied
upon to indorse some abridgment of freedom of the press
whenever others wish to use that freedom to express anything
radically different from their own thoughts, especially if
"moral" sentimentalism is involved. Thus it comes that men,
trying to frame definitions of freedom, practically always leave
a loop hole for at least their own pet tyranny and censorship
over opinion.

As a result of this, all but universal, emotional disapproval
of unlimited intellectual liberty, it has come to pass that our
courts, in their efforts to make effective the judges' disbelief in
freedom of the press though construing our constitutional
guarantee of it, have by their authoritative dogmas amended
our constitutions with the judicial interpolation of exceptions

*Republished from The Albany Law Journal and Government.



never even vaguely hinted at in our fundamental laws. The
unintelligent mob, engrossed with its necessary sordid self-
seeking, without even a whispered protest has acquiesced in
these successive encroachments upon the liberty of the press,
until to-day there is not a state in the union whose laws do not
punish the mere psychologic crime of expressing unpopular
ideas, even though no one is shown to have been hurt as the
result. The remarkable thing is that the constitutionality of
those laws is seldom questioned, and when the paper guarantee
of liberty of the press is invoked, the courts have promptly
and almost uniformly amended the constitutional guarantees
of freedom of speech and press by dogmatically writing into
them new exceptions and limitations, which are not represented
by a single word in the constitution itself, but which find
abundant justification in ancient precedents coming from courts
whose judges were tyrants, or the minions of tyrants, or who,
through woefully limited intellectual vision, sought to define
liberty by generalizing a single fact, and thus made freedom
mean only the absence of the one particular abridgment of
it, which alone was then within contemplation, and occupied
a place so near as to obscure the more remote but larger possi-
bilities for the tyrannous invasion of liberty.

When moral sentimentalizing becomes focused about one
or a few subjects, by being widely advertised by a fanatical
and well organized band of zealots which lends its aid, the
courts, with the concurrence of legislatures and in spite of
constitutions, exercise a power to amend our charter of
liberties and to enforce the abridgment of the freedom of
the press. To this end it is only necessary to neglect one simple
rule of constitutional construction. This done and under the
guise of interpretation, meanings and exceptions, which are
not expressed therein by a single word or syllable, will be,
as they have been, dogmatically read into the constitutional
phraseology, instead of developing the actual and literal signi-
fication of the words really used. English precedents, where
only discretion tempers tyranny, can be easily misapplied to
furnish a seeming justification for a judicial "interpretation"
such as effectively accomplishes the judicial amendment of our
constitutional guarantee for a free press. Many circumstances
have combined to induce State courts, unconsciously, to inter-
polate exceptions into the free-press clause of State consti-
tutions, and so precedents have already been made, which if



followed to their logical conclusion would vest all American
legislative bodies with power to suppress every opinion upon
every subject, should it choose to do so.

Too often legislators and judges have been afflicted with
political myopia and so have seen only what seemed to them
the beneficent immediate effect of their official destruction of
the constitutionally guaranteed natural liberty of the citizen,
and because of this shortsightedness have failed to see how
every such additional liberty-invading precedent is related to
the ultimate destruction of liberty and the unavoidable reaction
through revolution by violence. Every invasive act, acquiring
even a seeming acquiescence, contributes to the momentum by
which we are increasingly inspiring thoughtful men with a
contempt for the impotency of constitutional protection, and
for governments, and simultaneously every such submission,
even to a popular tyranny, inspires ambitious zealots with new
hope for the realization of their lust for power. Thus by
gradual stages we all thoughtlessly contribute to the develop-
ment of that tyranny which in the end can be and is overthrown
only by a violent revolution.


It is by such processes, for which the courts are largely
responsible, that all constitutions have in the end come to be
held in contempt, by thoughtful liberty-loving men as well as
by the narrow-minded with autocratic ambitions. A few illus-
trations will suffice. " Ce n'est qu'en Angleterre, ou Ton
pourroit faire ni avoir des livres sur des constitutions," said
one of the most enlightened English ambassadors in Europe;
and it is but a very few years since a French gentleman an-
swered a foreigner who inquired for the best book upon the
constitution of France, "Monsieur, c'est 1'Almanach Royal." 1

Likewise, in England, the wise and calm Herbert Spencer
said: "Paper constitutions raise smiles on the faces of those
who have observed their results," and in America General
Trumbull is reported as having opined that, "The constitution
has hardly any existence in this country except as rhetoric."

This sort of contempt for constitutional guarantees is based
upon a real love of constitutional liberty and despair at rinding
its guarantee explained away by those whose contempt for the
constitution is based upon a contempt for liberty itself a lust
for the power of an autocrat. Of that we also have an abund-

J John Adams in A Defence of the Constitutions of Government of the U. S.




ance in the United States. Years ago when the constitutionality
of some anti-Morman legislation was under consideration,
United States Senator Cullom is reported to have said that "in
the United States there is no constitution but public opinion."
Later, Congressman Timothy Sullivan inspired a nation with
mirth, but not with resentment, under the following circum-
stances: He was urging President Cleveland to sign a bill
which had passed the Congress, and the President objected be-
cause he believed it unconstitutional. Our earnest statesman
broke in with this plea, "What's the constitution as between
friends ?" And so it is with our professional reformers. We
can almost hear them say : "What's the constitution when our

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 15 of 43)