Copyright
Theodore Albert Schroeder.

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

. (page 18 of 43)
Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 18 of 43)
Font size
QR-code for this ebook


may speak, write and publish his sentiments on all subjects,
being responsible for the abuse of that right. No law shall
be passed to restrain or abridge the liberty of speech or of the
press."

The Court said: "The statute in question is a part of a
chapter regulating 'The Practice of Pharmacy and the Sale of
Medicine and Poisons,' and is designed to guard against evil
consequences liable to result therefrom. The prohibitive fea-
tures of the act do not go to the right intended to be secured
by the Constitutional provision as to speaking, writing or pub-
lishing one's sentiments, or as to abridging or restraining the
liberty of the press."

KANSAS.

The Kansas Constitution (Sec. 10 of Bill of Rights)
says: "The liberty of the press shall be inviolate; and all
persons may freely speak, write or publish their sentiments
on all subjects, being responsible for the abuse of such right."
In re Pryor, 18 Kan. 72. (76.) (1877.) Action for
contempt for writing insulting letter to a judge, during pend-
ency of an action.

The court found defendant guilty, but added: "It will
be borne in mind that the remarks we have made apply only
while the matter which gives rise to the words or acts of the
attorney are pending and undetermined. Other considera-
tions apply after the matters have finally been determined, the
orders signed, or the judgment entered. For no judge and no



177



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

court, high or low, is beyond the reach of public and indi-
vidual criticism. After a case is disposed of, a court or judge
has no power to compel the public, or any individual thereof,
attorney, or otherwise, to consider his rulings correct, his
conduct proper, or even his integrity free from stain, or to
punish for contempt any mere criticism or animadversion
thereon, no matter how severe or unjust."

In re Banks, 56 Kan. 242 (243, 244). (1895.) Habeas
Corpus proceeding. Petitioner arrested under an act pro-
hibiting the sale of any publication "devoted largely to the
publication of scandals, lechery, assignation, intrigues be-
tween men and women, and immoral conduct of persons."

The Court said: "Without doubt a newspaper, the most
prominent feature of which is items detailing the immoral
conduct of individuals, spreading out to public view an un-
savory mass of corruption and moral degradation, is calcu-
lated to taint the social atmosphere, and by describing in
detail the means resorted to by immoral persons to gratify
their propensities, tends especially to corrupt the morals of
the young, and lead them into vicious paths and immoral acts.
We entertain no doubt that the legislature has power to sup-
press this class of publications, without in any manner vio-
lating the constitutional liberties of the press."

KENTUCKY.

The constitution provides : "Printing presses shall be free
to every person who undertakes to examine the proceedings
of the General Assembly or any branch of government; and
no law shall ever be made to restrain the right thereof. Every
person may freely and fully speak, write and print on any sub-
ject, being responsible for the abuse of that liberty."

Rilcy v. Lee, 88 Ky. 603 (612, 613, 614). (1889.) Action
for libel.

The Court said : "By the provisions of the United States
and the state constitutions guaranteeing the 'freedom of the
press,' it was simply intended to secure to the conductors of
the press the same rights and immunities that are enjoyed by
the public at large. The citizen has a right to speak the truth
in reference to the acts of government, public officials or in-
dividuals. The press is guaranteed the same right, but no
greater right. * * * An individual may, in what he honestly
believes to be in the interest of morals and good order, and
the suppression of immorality and disorder, criticise the acts

178



JUDICIAL DOGMATISM ON "FREEDOM OF THE PRESS/'

of other individuals. So may the press. But in no case has
the citizen the right to injure the rights of others, among the
most sacred of which is the right to good name and fame.
* * * The press must not be the vehicle of attack upon the
character and reputation of a person unless the attack is
known to be true. If it is not known to be true, do not pub-
lish it. The publication can seldom, if ever, do good ; and the
indulgence in publications of the sort not strictly true, would
soon deprave the moral taste of society, and render it miser-
able."

LOUISIANA.

The Constitution of Louisiana provides: "No law shall
ever be passed to curtail or restrain the liberty of speech or of
the press ; any person may speak, write, and publish his senti-
ments on all subjects, being responsible for the abuse of that
liberty.

State v. Goodwin, 37 La. Ann. 713 (717). (1885.)
Appeal from conviction for mailing threatening letter. Judg-
ment affirmed.

The Court said : "It is a libel upon the noble privilege of
free speech, guaranteed by our Constitution, to say that it
embraces or protects such despicable practise."

Fitzpatrick v. Pub. Co., 48 La. Ann. 1116 (1130, 1135).
(1896.) Action for libel. The Court said: "There is a
marked and clear distinction to be taken between the liberty
and the license of the press. * * * The freedom of speech
and liberty of the press were designed to secure constitutional
immunity for the expression of opinions, but that does not
mean unrestrained license, nor does it confer the right upon
the editor of a newspaper to print whatever he may choose,
no matter how false, malicious or injurious it may be, with-
out full responsibility for the damage he may cause."

MARYLAND.

The Constitution provides : "That the liberty of the press
ought to be inviolably preserved ; that every citizen of the State
ought to be allowed to speak, write and publish his sentiments
on all subjects, being responsible for the abuse of that privi-
lege."

Negley v. Farrow, 60 Md. 158 (176, 177). (1882.)
Action for libel.

The Court said : "It [liberty of the press] is a right which,



179



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

from the introduction of the printing press down to the year
1694, did not in England belong to the subject. On the con-
trary, no one was allowed to publish any printed matter with-
out the license and supervision of government, and it was
against such interference on the part of the government, and in
favor of the right of the citizen, that this provision, found its
way into our Bill of Rights. * * * The liberty of the press
guaranteed by the Constitution is a right belonging to every
one, whether proprietor of a newspaper or not, to publish what-
ever he pleases, without the license, interference or control of
the government, being responsible alone for the abuse of
the privilege. * * *

"No one denies the right of the defendants to discuss and
criticise boldly and fearlessly the official conduct of the plain-
tiff. It is a right which in every free country belongs to the
citizen ; and the exercise of it, within lawful and proper limits,
affords some protection at least against official abuse and cor-
ruption. But there is a broad distinction between fair and
legitimate discussion in regard to the conduct of a public man,
and the imputation of a corrupt motive, by which that conduct
may be supposed to be governed. And if any one goes out of
his way to asperse the personal character of a public man, and
to ascribe to him base and corrupt motives, he must do so at
his peril, and must either prove the truth of what he says, or
answer in damages to the party injured."

MASSACHUSETTS.

The Massachusetts Bill of Rights provides that "the liber-
ty of the press is essential to the security of freedom in a state ;
it ought not therefore to be restrained in this Commonwealth."

Com. v. Blanding, 20 Mass. (3 Pick}, 304 (314-314).
(1825.) Action for criminal libel. The Court said: "The
liberty of the press, not its licentiousness, this is the con-
struction which a just regard to the other parts of that instru-
ment [the Constitution] and to the wisdom of those who
formed it, requires. * * * Besides, it is well understood,
and received as a commentary on this provision for the liberty
of the press, that it was intended to prevent all such previous
restraints upon publications as had been practised by other
governments, and in early times here, to still the efforts of
patriots towards enlightening their fellow-subjects upon their
rights and the duties of rulers. The liberty of the press was
to be unrestrained, but he who used it was to be responsible

1 80



JUDICIAL DOGMATISM ON "FREEDOM OF THE PRESS/'

for its abuse ; like the right to keep fire arms, which does not
protect him who uses them for annoyance or destruction."

Com. v. Kne eland, 37 Mass. (20 Pick.) 206 (219). (1838.)
Prosecution for blasphemy.

The Court said: "The obvious intent of this provision
was to prevent the enactment of license laws, or other direct
restraints upon publication, leaving individuals at liberty to
print, without the previous permission of any officer of govern-
ment, subject to responsibility for the matter printed. * * *
The intention of the article in question was, to ensure the gen-
eral right of publication, at the same time leaving every citi-
zen responsible for any offense capable of being committed by
the use of language, as well when printed as when oral, or in
manuscript. Any other construction of the article would be
absurd and impracticable, and inconsistent with the peace
and safety of the State, and with the existence of free govern-
ment."

MINNESOTA.

The Constitution (Art. i, p. 3), provides: "The liberty
of the press shall forever remain inviolate, and all persons may
freely speak, write and publish their sentiments on all sub-
jects, being responsible for the abuse of such rights."

State v. Pioneer Press Co., no N. W. (Minn.) 867,
(868, 869), (1907). Indictment for publishing details of an
official execution contrary to statute.

The Court said : "Appellant . . . argues that there are no
constitutional limitations upon the liberty of the press, unless
the subject matter be blasphemous, obscene, seditious or
scandalous in its character. This is altogether too restricted
a view. The principle is the same, whether the subject matter
of the publication is distinctly blasphemous, seditious or scan-
dalous, or of such character as naturally tends to excite the
public mind and thus indirectly affect the public good. If the
constitutional provision has reference to restricting the pub-
lication by newspapers of unwholesome matter, or the use of
the United States mails for the distribution of obscene litera-
ture * * * or the publishing of Anarchistic doctrines * * *
upon the ground that it is in the interest of public morals, then
for the same reason the right of restriction applies to pub-
lishing details of criminal executions. The article in question
is moderate, and does not resort to any unusual language, or

181



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

exhibit cartoons for the purpose of emphasizing the horrors
of executing the death penalty, but if, in the opinion of the
Legislature, it is detrimental to pubic morals to publish any-
thing more than the mere fact that the execution has taken
place, then, under the authorities and upon principle, the ap-
pellant was not deprived of any constitutional right in being
so limited."

MISSISSIPPI.

The Constitution (Art. I, p. 6) provides that "every
citizen may freely speak, write and publish his sentiments on
all subjests, being responsible for the abuse of that liberty."

Ex Parte Hickzy, 12 Miss. (4 Sm, & M.) 781 (782).
(1844.) Action for contempt in denouncing the act of a
judge.

The Court said : "The shield which our constitution throws
around the press has been held up to interpose before the
power of the courts to punish for contempts. The most dearly
prized offspring of our national liberty is the freedom of the
press. It is so, because it can be made its most effectual pro-
tection at home, and because it can be employed as the apostle
of those liberties to millions abroad. The worst enemy to
freedom is ignorance. Instruct men in the knowledge of their
rights, and a vindication of those rights follows as surely as
light follows the rising sun. Yet the freedom of the press is
abused to base and unworthy purposes. Such indeed, as sad
experience teaches, is often the melancholy fate of the great-
est blessings that a wise providence has bestowed upon us,
or that human skill has invented. The free air we breathe is
essential to our existence, but when infected with pestilential
matter it becomes the most terrible weapon of death. But
who would argue, because disease may float in the atmos-
phere, that that atmosphere should be destroyed."

MISSOURI.

The Constitution (Art II, Sec. 14) provides : "That no law
shall be passed impairing the freedom of speech ; that every per-
son shall be free to say, write or publish whatever he will on
any subject, being responsible for all abuse of that liberty."

Life Assn. of America v. Boogher, 3 Mo. App. 173 (180).
(1876.) Action for injunction against publication of libel.
The Court, holding that such injunction could not lie, said:
"If it be said that the right to speak, write or print, thus se-

182



JUDICIAL DOGMATISM ON FREEDOM OF THE PRESS.

cured to every one, cannot be construed to mean a license to
wantonly injure another, and that by the jurisdiction claimed
it is only suspended until it can be determined judicially
whether the exercise of it in the particular case be allowable,
our answer is that we have no power to suspend that right for
a moment, or for any purpose? The sovereign power has for-
bidden any instrumentality of the government it has instituted
to limit or restrain this right except by the fear of the penalty,
civil or criminal, which may wait on abuse. The General As-
sembly can pass no law abridging the freedom of speech or of
the press ; it can only punish the licentious abuse of that free-
dom. Courts of justice can only administer the laws of the
State, and, of course, can do nothing by way of judicial sen-
tence which the General Assembly has no power to sanction.
The matter is too plain for detailed illustration."

Flint v. Hutchinson Smoke Burner Co., no Mo. 492 (500,
501). (1892.) Action for injunction to restrain libel of
title.

The Court said: "We live under a written constitution
which declares that the right of trial by jury shall remain in-
violate ; and the question of libel or no libel, slander or no,
slander, is one for a jury to determine. Such was certainly
the settled law when the various constitutions of this state
were adopted ; and it is all-important that the right thus
guarded should not be disturbed. It goes hand in hand with
the liberty of the press and free speech. For unbridled use of
the tongue or pen the law furnishes a remedy. In view of
these considerations, a court of equity has no power to re-
strain a slander or libel ; and it can make no difference
whether the words are spoken of a person or his title to prop-
erty."

State v. Van Wye, 136 Mo. 277 (234, 235). (1896.)
Indictment for disseminating a "scandalous newspaper."

The Court said : "The liberty of the press, says Lord
Mansfield, in King vs. Dean of St. Asaph, cited in 3 T. R. 431,
'consists in printing without any previous license, subject,
to the consequences of the law.' Lord Ellenborough defines it
in Rex v. Cobbett 29 Howells State Trials, 49, in this way:
The law of England is a law of liberty, and, consistently with
this liberty, we have not what is called an imprimatur; but if
a man publish a paper, he is exposed to the penal consequences,
as he is in every other act, if it is illegal.' * * * The constitu-

183



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

tional liberty of speech and the press, as we understand it, sim-
ply guarantees the right to freely utter and publish whatever
the citizen may desire and to be protected in so doing, provided
always that such publications are not blasphemous, obscene and
scandalous in their character, so that they become an offense
against the public, and by their malice and falsehood injurious-
ly affect the character, reputation or pecuniary interests of in-
dividuals. The constitutional protection shields no one from
responsibility for abuse of this right. To hold that it did would
be a cruel libel upon the bill of rights itself. The laws punish-
ing criminal libel have never been deemed an infringement of
this constitutional guaranty. Equally numerous and strong are
the decisions that obscene publications are without the pro-
tection of this provision of our constitution."

Marx & Haas Jeans Clothing Co. v. Watson et al., 168
Mo. 133 (144, 150). (1901.) Appeal from refusal of lower
court to enjoin boycotting circular. Appeal dismissed.

The Court said : "Wherever within our borders speech is
uttered, writing done or publication made, there stands the
constitutional guaranty giving staunch assurance that each and
every one of them shall be -free. The Legislature cannot pass
a law which even impairs the freedom of speech ; and as there
are no exceptions contained in the rest of the quoted section,
the language there used stands as an affirmative prescripiton
against any exception being thereto made, as effectually as if
words of negation or prohibition had expressly and in terms
been employed. * * * If these defendants are not per-
mitted to tell the story of their wrongs, or, if you please, their
supposed wrongs, by words of mouth or with pen or print, and
to endeavor to persuade others to aid them by all peaceable
means, in securing redress of such wrongs, what becomes of
free speech, and what of personal liberty? The fact that in
exercising that freedom they thereby do plaintiff an actionable
injury, such fact does not go a hair towards a diminution of
their right of free speech, etc., for the exercise of which, if re-
sulting in such injury, the Constitution makes them expressly
responsible. But such responsibility is utterly incompatible
with authority in a court of equity to prevent such responsi-
bility from occurring.

State ex. inf. Crow v. Shepherd, 177 Mo. 205 (253, 257)
(1903.) Action for contempt in censuring a judgment of the
Supreme Court.

184.



JUDICIAL DOGMATISM ON FREEDOM OF THE PRESS.

The Court, adjudging defendant guilty, said: "The
liberty of the press means that any one can publish anything
he pleases, but he is liable for the abuse of that liberty. If he
does this by scandalizing the courts of his country, he is liable
to be punished for contempt. If he slanders his fellow-men,
he is liable to a criminal prosecution for libel, and to respond
civilly, in damages for the injury he does to the individual.
In other words, the abuse of the privilege consists, principally,
in not telling the truth. * * * It is the liberty of the press
that is guaranteed not the licentiousness. It is the right to
speak the truth not the right to bear false witness against
your neighbor. Every citizen has a constitutional right to the
enjoyment of his character as well as to the ownership of his
property; and this right is as sacred as the liberty of the
press."

MONTANA.

The Constitution provides: "No law shall be passed im-
pairing the freedom of speech ; every person shall be free to
speak, write or publish whatever he will upon any subject,
being responsible for all abuse of that liberty."

In re Shannon, n Mont. 67 (72). (1891.) Habeas
corpus in contempt proceeding for criticism of courts. Writ
granted.

The Court said: "None of these [i.e., the legal grounds
for commitment for contempt], would include power to punish
for the expression of sentiments through the medium of the
public press or otherwise regarding the practise of the Court,
or of results or abuses alleged to flow from the past adminis-
tration of said Court. A power to punish for such utterance,
or to silence the voice of comment upon such matters, would
be the discovery of an unknown quantity in jurisprudence;
and the exercise of it would be a menace to a free and spirited
people.

"The constitutional right of freedom of speech * * *
would be set at naught by the exercise of such a power, when-
ever that freedom of speech happened to be directed to the
action of public courts. There is no such exception. We
speak now of the discussion of matters pertaining to courts,
or the practise therein, which have no tendency to affect the
merits or result of particular cases pending, which class of de-
cision is entirely distinguished from publications which are

185



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

designed and put forth for the purpose and have a tendency to
influence the result of particular cases."

In re Macknight, n Mont. 126 (138) ; 27 Pac. R. & 336
(339). (1891.) Contempt proceeding. In deciding that the
case fell within the "constitutional sanction of the freedom
of speech and press," the Court said:

"What was the purpose of this constitutional guarantee?
Was it to grant freedom to ordinary speech and publication
which could excite the resentment of no one? If that was
the purpose, then it would be as needful to put into the Con-
stitution a provision that people may freely walk the streets
quietly and peaceably. The history of the struggle for su-
premacy of certain principles and ideas shows the purpose of
the law, when such principles or ideas are clothed with that
force and dignity, and inscribed upon our Constitution or
statute. And so the history of the struggle for the establish-
ment of the principle of freedom of speech and press shows
that it was not ordinary talk and publication, which was to be
disenthralled from censorship, suppression and punishment.
It was in a large degree a species of talk and publication
which had been found distasteful to governmental powers and
agencies."

State v. Faulds, 17 Mont. 140 (145). (1895.) Action
for contempt in publishing abuse of Court.

The Court said: "Section 10, Article 3, of the Constitu-
tion of the State provides that no law shall be passed impair-
ing the freedom of speech ; every person shall be free to speak,
write or publish whatever he will on any subject, being re-
sponsible for all abuse of that liberty. While this section of
the Constitution secures the largest liberty to the press, it also
imposes responsibilities. It is a statute of liberty, not of
'licentious scandal/ The liberty of the press is one thing;
the abuse of that liberty is quite another."

NEBRASKA.

The Constitution provides : "Every person may freely
speak, write and publish on all subjects, being responsible for
the abuse of the liberty."

State v. Bee Publishing Co., 60 Neb. 282 (296). (1900.)
Contempt proceeding for publication of articles designed to
affect the decision of a pending case. Defendant convicted.

The Court said: "We have, of course, no desire to re-

186



JUDICIAL DOGMATISM ON FREEDOM OF THE PRESS/

strain in the slightest degree, the freedom of the press, or to
maintain the dignity of the Court by inflicting penalties on
those who may assail us with defamatory publications. Our
decisions and all our official actions are public property, and
the press and the people have the undoubted right to comment
on them and criticise and censure them as they see fit. Ju-
dicial officers, like other public servants, must answer for their
official actions, before the chancery of public opinion; they
must make good their claims to popular esteem by excellence
and virtue, by faithful and efficient service and by righteous
conduct. But while we concede to the press the right to criti-
cise freely our decisions when made, we deny to any indi-
vidual or to any class of men the right to subject us to any
form of coercion with the view of affecting our judgment in
a pending case."

State v. Rosewater, 60 Neb. 438 (439). (1900.) Con-
tempt proceeding for publication of articles designed to affect
the decision of a pending case. Defendant convicted.

The Court said : "We are told that the liberty of the press
is involved, and that this proceeding is an arbitrary exercise
of power, curtailing that freedom which is necessary for the
conservation of public interests, and a free discussion of all
questions of public concern. With the same speciousness and
plausibility of reasoning, it might as well be argued that the
liberty of the individual is endangered who corruptly tampers
with a jury to secure an unrighteous verdict, or attempts to
improperly influence the decision of a court in a case then



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 18 of 43)