Theodore Albert Schroeder.

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

. (page 16 of 43)
Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 16 of 43)
Font size
QR-code for this ebook

moral sentimentalism is involved?" We also find President
Roosevelt and his Secretary of State boldly encouraging con-
tempt for the constitution by publicly urging its judicial
amendment. President Roosevelt in his Harrisburg speech
said: "We need through executive action, through legisla-
tion, and through judicial interpretation and construction to
increase the power of the Federal Government. If we fail
thus to increase it we show our impotence." Again, read the
foregoing in the light of Mr. Root's utterance. "The distin-
guished Secretary of State declared that it was useless for
the advocates of State rights to inveigh against the extension
of national authority, * * * and that constructions of the
constitution would be found to vest the power in the national
government." Here, then, we have the distinct admission by
the highest officers of our nation that they desire to exercise a
power which according to their own view the constitution does
not confer, and that in spite of their official oath to uphold the
constitution as it is they proposed to amend it, not by the
method therein prescribed, but in contemptous disregard of
the constitution itself by "executive action, through legislation
and judicial interpretation and construction" to accomplish a
perjured usurpation of power and corresponding destruction of
constitutional liberty.

When lust for power becomes so lawless as openly and
deliberately to justify usurpation and official perjury, and when
such conduct does not in the least impair the aspiring auto-
crat's popularity, our love and understanding of liberty has
come to a very low ebb. Will our courts endorse such proc-
esses as applied to freedom of the press ?

The purpose of this essay is primarily to protest against the



judicial amendment of constitutional guarantee of liberty, and
specially that liberty which underlies all others, the liberty to
speak and to read. Only by way of contrast will we be con-
cerned with the meaning of freedom of the press as we find it
abridged in actual practice. Here it is intended only to exhibit
the conflicting view-points, which will be very important in
answering the question, What ought to be the practical effect
and judicial significance of our constitutional guarantees of
freedom of the press? With slight variations all our guaran-
tees upon this subject are typified by these words of our fed-
eral constitution. "Congress shall make no law * * * abridg-
ing the freedom of speech or of the press." How, if at all,
does this provision operate as a limitation upon the congres-
sional power to regulate the mails, commerce, etc., etc.?


As the discussion progresses, it is important to keep in
mind several conflicting view-points. It seems to me that, be-
cause of having neglected to consider these diversities of view-
point, courts have been led strangely and far astray in their
alleged "interpretations" of "freedom of the press." Is this lan-
guage of the constitution to be interpreted as having been in-
tended to protect or enlarge only the commercial opportunity of
printing-press owners, or is it from the view-point of a pro-
tected and enlarged intellectual liberty that we are to proceed
to the task of interpretation? Was it only to protect the per-
sonal privilege of the speaker or printer to utter his sentiments
to himself in solitude, or are we to view the constitutional
guarantee also from the view-point of protecting all the rest of
humanity in an opportunity to hear and to read, if they choose,
anything that anyone else would be willing to communicate
if permitted?

Was it achievement of the first, or an enlargement of in-
tellectual liberty, and the abolition of the mere psychologic
crime of an unfruitful "immoral" thinking which was to be ac-
complished ? Can it be that the only object of the f ramers of our
constitution was the mere abolition of a censorship before pub-
lication, in favor of a censorship after publication, without any
actual enlargement of intellectual liberty? Such censorship
prior to publication had been abolished in England prior to
the American revolution. Did the makers of our constitution
believe the people before that revolution enjoyed adequate
liberty of the press, or was it the intention by our constitutional



guaranty to insure an enlargement of the liberty of the press
above that which had been enjoyed?

Merely to ask these questions would seem to answer them
and yet, strange to say, when the question of the freedom of
the press has come up for judicial interpretation, courts have
usually evaded the obvious answer, and have amended the con-
stitution by "interpretations" which interpolate, and which leave
our freedom just where it was in England before the revo-

In order to interpret " freedom of the press" correctly, it
seems to me that we must approach our problem in the light
of the pre-revolutionary controversy over the question of
intellectual liberty, which controversy our constitution-makers
intended to settle for all time. Under the English system there
was no controlling limitation upon the parliamentary power to
abridge the liberty of the press, and such freedom was enjoyed
only, according to parliamentary discretion, as a privilege
exercised by permission, and not as a constitutionally protected
right which could be exercised with impunity in spite of par-
liamentary enactments to the contrary. Under such a system as
the English, liberty of the press could mean only such remnant
of liberty as remained after parliamentary abridgment. Some
American courts, erringly accepting the English judicial prec-
edents, have defined our constitutional freedom-as-a-right to
mean only what freedom had been declared by English courts
to be under their different system, wherein was defined only
the liberty which was a matter of permission by royal or parlia-
mentary munificence. This suggests an issue as to whether we
shall continue to misinterpret our unabridgable constitutional
"freedom of the press" to mean only the same thing as that
which, prior to the revolution, the English courts had described
as their abridgable remnant of an unguaranteed freedom by
permission? Or, on the other hand, must we assume that our
constitution makers intended to enlarge our intellectual liberty
in accord with views of "freedom of the press" entertained by
those who were opposing the English (judicial) conception?
If an unabridged intellectual liberty was not intended, then
there was no need of any mention of the subject in our consti-
tutions. According to the first view it has been held that, not-
withstanding our constitutions, freedom of the press may be
abridged by legislation just as much as it was, or can be, by
the English parliament, the only difference being as to method,
the constitution prohibiting only censorship prior to publica-



tion, but, as to subject-matter, having an equal power with the
English parliament to suppress and punish after publication.
Under this "interpretation," quite generally accepted in Amer-
ica, the constitution only changed the manner of censorship,
somewhat for the worse, without protecting or guaranteeing
any enlarged intellectual opportunity. According to the other
view-point the constitution was designed to protect, beyond all
possibility of abridgment, an enlarged intellectual opportunity,
not by changing the manner of censoring, or the time of appli-
cation of censorial methods, but by the destruction of all cen-
sorship by prohibiting forever any punishment of any sort, for
any mere intellectual or psychological crime of any nature
whatever, until it had ceased to be merely a psychological crime,
by having become an actually realized material and proved in-
jury to some actual living being, or the imminent menace of
such injury, determined by the known laws of the physical uni-
verse, as applied to some overt act in consummation and exe-
cution of an expressed desire to inflict such injury. In such
event no speech, merely as such, is punishable, and no crime
can be predicated upon uncertain speculation about mere psy-
chologic tendencies. The crime attaches to an actual injury
actually attempted or inflicted. The speech is only the evidence
of intent, not the essence of the offence. This view still awaits
its first adequate presentation for judicial adoption in America.
There is another reason why the judicial statements of Eng-
lish courts, as to the meaning of freedom of the press, are of
no possible value as precedents in the interpretation of our
constitutional prohibition against the abridgment of freedom
of the press. The reason will be manifest upon a moment's
reflection. In England there are no restrictions upon the power
of parliament to prevent its abridgment of the freedom of the
press. It follows that declarations of English courts, therefore,
are not the judicial interpretation of any constitutional clause
or right, nor the declaration of any general principle which
could control the validity of such laws either in England or
America. On the contrary, there being no fundamental and
binding restriction on parliament, or the English courts, against
abridging freedom of the press, English judicial statements as
to the meaning of such freedom as exists in England could not
be a declaration of legal principle as to the constitutional limits
of such liberty in the United States, but on the contrary Eng-
lish authorities state only a fact of observation, namely that
under English conditions, freedom of the press means only such



limited freedom as remains after its abridgment, in the par-
liamentary exercise of an unrestricted power to abridge.
In other words, every judicial or polemical utterance coming
from English sources is the declaration of what they mean by
freedom of the press when such liberty is liberty by permission
of parliament, and in the nature of things this can furnish no
guide as to what is meant by American constitutions which
were specifically designed to abolish English conditions upon
the subject and which seek to establish liberty of the press as
a right in spite of all legislative abridgments. American
courts, by neglecting this distinction, have erringly followed
English statements of their mere facts of practice, and because
we mistook them for declarations of constitutional principles,
and used them as guides in constitutional construction, our
courts have almost reduced our liberty of press from liberty-
as-a-right to mere liberty as a matter of permission, which is
not liberty at all.

To accomplish the destruction of freedom of speech and of
the press in America our courts dogmatically assert that the
purpose of the constitution was, not to enlarge the intellectual
liberty of the citizen, but simply to replace a censorship before
printing to a criminal prosecution for having printed or pub-
lished. This has been seemingly justified by the erroneous
adoption of English precedents as a means of constitutional
interpretation. Of course the judicial way of stating this prop-
osition adroitly veils that direct avowal whose blunt absurdity
my form of statement exposes. Here is the judicial formula :
"The main purpose of such constitutional provisions is 'to pre-
vent all such previous restraints upon publications as had been
practiced by other governments' arid they do not prevent the
subsequent punishment of such as may be deemed contrary to
public welfare." 2 There you have it ! By judicial amendment
our constitutional freedom of speech and of the press has been
wholly explained away, and legislatures and courts now have
the right to punish after utterance any opinion which "may be
deemed against the public welfare," just as fully as such opin-
ions may be punished in Russia or Turkey. Is this really free-
dom of speech and of press? The Supreme Court of the Uni-
ted States, the final arbiter and alleged "guardian" of our con-
stitutional liberty, in the last above quoted sentence has said
that the words "Congress shall make no law abridging the
freedom of speech or of the press," means that within its

"Patterson v. People, 27 Sup. Ct. Rep. 656-558.



geographical jurisdiction the courts must enforce any law
which congress chooses to make to punish the verbal utter-
ance of any and every thought, by the congress "deemed
contrary to public welfare."

The expression of opinions approved by those in power had
never been abridged. Those who were waging the battle for
intellectual liberty and suffered for having exercised freedom
of speech and of press, thought by our constitution they had
finally secured protection for the expression of those unpopu-
lar opinions the promulgation of which had theretofore been
punished because "deemed against the public welfare" that is,
because unpopular. And now comes our Supreme Court and
restores the pre-revolutionary tyranny over ideas, by saying in
substance that "freedom of speech and of the press" means the
right to be punished for speaking and publishing ideas which
are deemed against the public welfare, because unpopular.
Those who have thought a constitutionally guaranteed free-
dom to speak means freedom to speak with impunity, so long
as no one is actually injured thereby, will hereafter understand
that, as in Russia, our liberty is but a liberty by permission,
to be punished whenever exercised without that permission of
our masters, who have limitless power to punish the publica-
tion of unpopular opinions, "deemed against public welfare."
When the question is fairly presented, will the court adhere to
this pernicious dictum? The judicial opinion hereinabove
quoted is not constitutional interpretation, but judicial consti-
tutional amendment, by interpolation. The judicial language
was never derived by deductions made from any words actually
used in the constitution, but on the contrary they were judicially
read into the constitutional phraseology, thus accomplishing the
judicial amendment of our constitution by unconstitutional
methods, and utterly destroying "freedom of the press" as a
right, and creating instead a liberty by permission. Shall this
be the permanent interpretation of our constitutional guarantee ?
This is the question to be decided, and is by far the most
important question ever presented to the Supreme Court of the
United States.





If we may determine the intellectual bankruptcy of our
American judges by their utter incapacity for using logical
processes in the presence of slight emotional irritation, then
I fear that our courts must be adjudged to have assumed ob-
ligations largely in excess of their intellectual resources. This
is a sweeping and a terrible indictment ; but, is it true ? To me
it seems to be true, and largely upon the record made by the
courts in their dogmatizing concerning "freedom of the press."

Where the constitutional guarantee of "freedom of speech
and of the press" is involved before a court, unless the judge's
emotions and unreasoned sentimentalism determined his "con-
struction" of the constitution, he would find the constitu-
tional meaning in the actual words of that instrument, from
which the court would deduce a criterion of "freedom" for
application to and decision of the case before it and all others
as well. Not in a single case has this rational method ever
been attempted. Instead the courts have drawn on their
"inner consciousness," and by consulting only their temporary
emotions have determined what, according to their feeling-con-
victions, the Constitution ought to be, and then dogmatically
decreed this, their own personal will, to be the true intent and
meaning of the Constitution that is, they made their own
personal wish to be the Constitution itself.

But my critics will say that maybe "freedom of speech"
is so vague a phrase as not to permit of the above method of
interpretation and therefore the courts should not be criticised
for having failed to use it. In the first place, I do not believe
the phrase in question to be so vague as to justify any other
method of constitutional construction. Neither do the courts
believe it ; at any rate not one court has ever attempted to de-
duce a meaning a criterion of freedom of the press from



the words of the constitution, and thereupon decided that' it
couldn't be done; and, what is more important, no court has
ever pursued the only rational alternative, which presents
itself when the constitutional language leaves the matter in

What is that alternative? If the constitutional phrase
"freedom of the press," does not in and of itself furnish the
criteria of permissibility in intellectual output, the court should
have said so, and accordingly pursued the historical method of
interpretation. By the historical or scientific method, as ap-
plied to this problem, I understand a mode of research into
our juridical history which will discover to us those controver-
sies over "freedom of speech and of the press" which had oc-
curred before our constitution, and which issues it was intended
that our constitutions should settle forever. Furthermore, a
moderately well trained mind would not stop at a mere super-
ficial view of these past contests. It is not enough to learn that
at one time the abridgment of free utterance was concerned
with religion ; at a second with the divine right of kings ; at
a third with the abolition of a censor, at a fourth with the pen-
alizing of speech without reference to or the existence of a
censor; and at a fifth that it involved the right to denounce
usury, etc., etc. I say; a lawyer whose intellectual attain-
ments are such as to make him a scientist of the law, would
not content himself with the superficial view or tabulation of
these controversies, which thus present so varied an aspect,
and then conclude that such and only such particular abridg-
ment was involved in the past issues, and only its recur-
rence precluded by our constitutionally guaranteed unabridg-
able freedom of utterance. That is the method of those afflicted
with arrested intellectual development. In contrast to this,
the scientifically cultivated mind will examine all these particu-
lar incidents and issues of the past abridgment of utterance,
to discover the fundamental elements common to them all,
though imperfectly seen and crudely expressed by the contro-
versialists of those times. These elements, common to all these
controversies, the legal scientist will generalize into principles
which furnish the criteria of freedom and therein find the true
meaning of our constitutional guarantee of an unabridged free-
dom of utterance. Although the opportunity and the duty to
do this has often presented itself to our courts, seemingly no




judge has ever been able to see it. Even in the few cases
where the courts have sustained the contention in favor of
freedom of utterance, the same defective intellectual methods
were used. The courts drew on their "inner consciousness,"
dogmatized, and made arguments showing what the Constitu-
tion ought to be, rather than analyzing what it is. In the face
of this fact, may we not assert the intellectual bankruptcy of
our judiciary?

I said that no court had ever pursued the historical or
scientific method of inquiry as to what was meant by an un-
abridged freedom of utterance. They have done something
much worse than merely to neglect it. In their blind unintelli-
gent gropings for something tangible upon which to rest their
emotional aversion to freedom of utterance, they adopted the
pre-revolutionary declarations of English authorities, who (like
many American Judges) were all passionately opposed to free-
dom of criticism of established opinions, and whose utter-
ances only declared the existing practise under a system which
permitted abridgment, and thus made freedom to speak only a
freedom by permission, with admitted power to withhold that

Under the influence of their emotional aversion to free-
speech, our judges were usually unable to see the difference
between the English practise of an abridgable freedom by
permission, where only expediency tempers tyranny, and the
American principle of an unabridgable freedom of utterance
guaranteed as a matter of right and to be maintained in spite
of all considerations of expediency to the contrary. I say, our
courts have uniformly lacked the intellectual capacity to see
this difference, and so were blindly led into following the Eng-
lish authorities which were uniformly opposed to freedom of
utterance. By adopting their statement of what the English
practise was and erroneously mistaking that mere fact of
practise for a declaration of human right and of constitutional
principles, our American courts have dogmatically amended
our constitutional guarantees, so as to reduce liberty in this
respect to just what it was in England before the time of the
American Revolution. Under our constitutions, as thus judici-
ally amended, any legislature in spite of the constitution as it
originally was written, may abridge freedom of speech and
press in any respect in which it and the judges who determine
what is constitutional shall concur in approving, and declare
to be in the interest of the public welfare.



These are serious charges to bring against our courts, and
are not to be accepted on my mere assurance that I believe
them to be true. I fear it would be no more satisfactory if I
contented myself with merely citing the cases which have
brought me to this conclusion, because no one would take the
time and trouble to examine them. It follows that if I would
convince anyone, I must reproduce the essential portion of all
these judicial opinions. To do this will require much space,
but that cannot be avoided. I also regret very much that like
space-limits will not allow me to comment separately on each
specific utterance which I shall quote, and thus aid the sluggish
mind in applying the foregoing standards of judgment to
the decisions actually rendered.

However, since this cannot be done, I can only request the
reader to keep definitely in mind what I have said above as
to the proper method of judicial interpretation, and in the light
of the standards thus erected to read the following liberty-de-
stroying judicial dogmatism, of the most pernicious and most
inexcusable sort. What follows includes all the quotable and
material portions of the reported judicial utterances as to the
meaning of "freedom of speech and the press" which my re-
searches have disclosed to me.


State vs. Morrill, 16 Ark. 384 (40 2-3), 1855. The Arkan-
sas Bill of Rights provides: (Sec. 7) "That printing presses
shall be free to every person ; and no law shall ever be made
to restrain the rights thereof. The free communication of
thoughts and opinions is one of the invaluable rights of man ;
and every citizen may freely speak, write and print on any
subject, being responsible for the abuse of that liberty." The
defendant was charged with criminal contempt, for the publi-
cation of an article supposed to intimate that the court had
been corruptly influenced in the determination of a certain
cause. The defendant invoked a statute limiting the power to
punish for contempt to which the Court said : "The prohibitory
clause is entitled to respect as an opinion of the legislature,
but is not binding on the Courts," they possessing an "in-
herent" power to do their own legislating, even ex post facto,
on the subject of contempt.

Upon the subject of the Constitutional right of freedom
of utterance the Court said: "The last clause of the section,




'being responsible for the abuse of that liberty,' is an answer
to the argument of the learned counsel. * * *

"Any citizen has the right to publish the proceedings and
decisions of this court, and, if he deem it necessary for the
public good, to comment upon them freely, discuss their cor-
rectness, the fitness or unfitness of the judges for their sta-
tions, and the fidelity with which they perform the important
public trusts reposed in them ; but he has no right to attempt,

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 16 of 43)