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

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pending before it. The issue involved is not one of the liberty
of an individual or of the press, but the right of every litigant
to have his case heard free from baneful external influences
sought to be exerted from selfish or other improper motives.
It is injecting into the case a harmful and disturbing element
to the prejudice of the rights of the litigants, and inconsistent
with the due and orderly administration of justice."

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

NEW HAMPSHIRE.

The Constitution declares: "The liberty of the press is
essential to the security of freedom in a State ; it ought, there-
fore, to be inviolably preserved."

Tenney's Case, 23 N. H. 162 (166). (1851.) Action for

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

contempt, for circulating copies of a bill in equity, containing
charges against parties to the action.

The Court, rinding defendant guilty, said: "Abusing
parties concerned in causes before the court of chancery, and
prejudicing mankind before the cause is heard, is a contempt.
* * * Anything done either for the purpose of obstructing
justice, or which may have that effect, may be punished as a
contempt of the court before whom the proceedings are had."

Sturoc's Case, 48 N. H. 428 (432). (1869.) Action for
contempt for reflecting on conduct of Court in a pending mat-
ter.

The Court, in adjudging the respondent guilty, said : "It
must not be inferred that we question the right to criticize
and censure the conduct of courts and parties when causes
have been finally decided. The question in this case is whether
publications can be permitted which have a tendency to preju-
dice the decisions of pending causes. The publishers of news-
papers have the right, but no higher than others, to bring
to public notice the conduct of courts and parties, after the
decision has been made ; and, provided the publications are
true, and fair in spirit, there is no law, and I am sure there is
no disposition, to restrain or punish the freest expression of
the disapprobation that any person may entertain of what is
done in or by the courts."

NEW JERSEY.

The Constitution provides: "Every person may freely
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."

In re Cheeseman, 49 N. J. Law 115 (141, 142). (1886.)
Appeal from contempt order for publication of articles re-
flecting on Court for conviction of defendant. Appeal dis-
missed.

The Court said: "The importance of the 'liberty of the
press' is urged upon us. We do not underestimate it, but, after
all, the liberty of the press is only the liberty which every man
has to utter his sentiments, and can be enjoyed only in sub-
jection to that precept both of law and of morals: sic utere
tuo, ut alienum non laedas. In a government where order is
secured, not so much by force as by the respect which citizens

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JUDICIAL DOGMATISM ON FREEDOM OF THE PRESS.

entertain for the law and those charged with its administra-
tion, nothing which tends to preserve that respect from for-
feiture on the one hand and detraction on the other can be
hostile to the commonwealth.

NEW YORK.

The New York Constitution (Art. I, Sec. 8) declares that
"every citizen may freely speak, write and publish his senti-
ments on all subjects, being responsible for the abuse of that
right ; and no law shall be passed to restrain or abridge the
liberty of the press."

People v. Freer, i Caines 518. (1804.) Action for con-
tempt for comment on pending action.

The Court said: "Publications scandalizing the Court or
intending unduly to influence, or overawe their deliberations,
are contempts which they are authorized to punish by attach-
ment ; and, indeed, it is essential to their dignity of character,
their utility and independence, that they should possess and
exercise this authority."

People v. Crosswell, 3 Johns. Cos. (N. F.)> 337 (393)-
(1804.) Action for criminal libel, in publishing an article
which accused Thomas Jefferson of hiring a pamphleteer to
caluminate Washington and others.

The Court, after reviewing the constitutional provisions
for free speech and a free press, said : "I am far from intend-
ing that these authorities mean, by the freedom of the press, a
press wholly beyond the reach of the law; for this would be
emphatically Pandora's Box, the source of every evil. * * *
The founders of our governments were too wise and too just,
ever to have intended, by the freedom of the press, a right to
circulate falsehood as well as truth, or that the press should be
a lawful vehicle of malicious defamation, or an engine for evil
and designing men to cherish, for mischievous purposes, se-
dition, ir religion and impurity. Such an abuse of the press
would be incompatible with the existence and good order of
civil society. The true rule of law is that the intent and tend-
ency of the publication is, in every instance, to be the substan-
tial inquiry on the trial, and that the truth is admissible in evi-
dence to explain that intent, and not in every instance to
justify it. I adopt in this case, as perfectly correct, the com-
prehensive and accurate definition of one of the counsel at the
bar, that the liberty of the press consists in the right to pub-

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

lish, with impunity, truth, with good motives and for justifi-
able ends, whether it respects government, magistracy or in-
dividuals."

Brandreth v. Lance, 8 Paige (N. F.), 24 (26) ; 34 Am.
Dec. 368. (1839.) Action for an injunction against the pub-
lication of a satirical biography of plaintiff, alleged to be
libelous in its nature.

The Court, in sustaining a demurrer, said: "It is very
evident that this Court cannot assume jurisdiction of the case
presented by the complainant's bill, or any other case of the
like nature, without infringing upon the liberty of the press,
and attempting to exercise a power of prevention which, as
the legislature has decided, cannot safely be entrusted to any
tribunal, consistently with the principles of a free govern-
ment."

N. Y. Juvenile Guardian Society v. Rosevelt, 7 Daly
(N. Y.) 188 (191). (1877.) Motion to vacate an injunction
against the publication of alleged libelous matter.

The Court, in granting the motion, on the authority of
Brandreth v. Lance, 8 Paige 24, further said: "Conceding
* * * that the matter thus published is defamatory and
libelous, as averred, the publication cannot be restrained by a
court of equity; and those injured by such publications, if
they are libelous, must seek their remedy by a civil action, or
by an indictment in the criminal courts; there being no au-
thority in this court, as a court of equity, to restrain any such
publication ; the exercise of any such jurisdiction being re-
pugnant to the provision of the Constitution, which declares
(Art i, p. 8) that every citizen may freely speak, write and
publish his sentiments on all subjects, being responsible for
the abuse of that right; and that no law shall be passed to
restrain or abridge the liberty of speech or of the press."

Hart v. People, 26 Hun (N. Y.) 396 (400). (1882.)
The defendants were indicted for publishing an advertisement
of the Louisiana lottery. Lotteries are forbidden by the Con-
stitution of N. Y.

The Court, in overruling a demurrer to the indictment,
said : "An act of the legislature to prevent the press from dis-
cussing the legality or propriety of lotteries, or from exposing
their existence as violations of law, and calling the attention of
the public authorities to them, or criticising the acts or neglect
of public officials in regard to enforcing the laws against them,

TOO



JUDICIAL DOGMATISM ON FREEDOM OF THE PRESS/

would be violations of constitutional rights and liberties of the
press. But it is a very different thing to prohibit the publica-
tion of accounts, or notices or advertisements which are de-
signed to aid and assist in the promotion of lotteries, by in-
forming persons desirous of engaging in such lotteries where
they are to be drawn, what are the prizes therein, what are the
prices of tickets or shares, and where tickets may be obtained,
or otherwise aiding and assisting the unlawful act of maintain-
ing and carrying on such violations of the statute.

"Since lotteries are regarded as public evils, in their na-
ture, so injurious as to require express constitutional prohibi-
tion, there can hardly seem to be a doubt that laws in aid and
execution of the provisions of the Constitution cannot prop-
erly be pronounced by the courts repugnant thereto and there-
fore void."

People v. Most, 75 N. Y. Supp. 591 (592, 593) ; 71 App.
Div, 160. (1902.) Appeal from conviction of a misdemeanor
in "seriously endangering the public peace/' by the publication
of an article justifying violence against rulers.

The Court, in affirming the conviction, referring to the
constitutional guarantee of free speech, said : "But the pro-
vision of the constitution referred to (Art. I, Sec. 8) mani-
festly does not give to a citizen the right to murder, nor does
it give him the right to advise the commission of that crime
by others. What it does permit is liberty of action only to the
extent that such liberty does not interfere with or deprive
others of an equal right. In the eye of the law, each citizen
has an equal right to live, to act, and to enjoy the benefits of
the laws of the state under which he lives. But no one has
the right to use the privileges thus conferred in such a way as
to injure his fellow-citizens ; and one who imagines that he has
labors under a serious misconception not only of the true mean-
ing of the constitutional provision referred to, but of his duty
and obligations to his fellow-citizens and to the state itself."

People v. Most, 171 N. Y. 423 (431, 432) ; 64 N. E. 175
(178) ; 58 L. R. A. 309. (1902.) Appeal from affirmance of
conviction for publication of alleged seditious publications.
(See 75 N. Y. Supp. 591.)

The Court affirmed the conviction, and in discussing the
constitutional guarantee said: "While the right to publish is
thus sanctioned and secured, the abuse of that right is ex-

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

cepted from the protection of the Constitution; and authority
to provide for and punish such abuse is left to the legislature.
The punishment of those who publish articles which tend to
corrupt morals, induce crime or destroy society, is essential
to the security of freedom and the stability of the state. While
all the agencies of government, executive, legislative and ju-
dicial, cannot abridge the freedom of the press, the legislature
may control and the courts may punish the licentiousness of
the press. "The liberty of the press," as Chancellor Kent de-
clared in a celebrated case, "consists in the right to publish,
with impunity, truth, with good motives, and for justifiable
ends ; whether it respects governments, magistracy or indi-
viduals" (People v. Crosswell, 3 Johns. Cas. 336, 393). Mr.
Justice Story defined the phrase to mean "that every man shall
have a right to speak, write and print his opinions upon any
subject whatsoever, without any prior restraint, so always,
that he does not injure any other person in his rights, person,
property or reputation ; and so always, that he does not
thereby disturb the public peace, or attempt to subvert the
government" (Story's Commentaries on the Constitution, p.
1874).

"The Constitution does not protect a publisher from the
consequence of a crime committed by the act of publication.
It does not shield a printed attack on private character; for
the same section from which the above quotation is taken ex-
pressly sanctions criminal prosecution for libel. It does not
permit the advertisement of lotteries, for the next section pro-
hibits lotteries and the sale of lottery tickets. It does not per-
mit the publication of blasphemous or obscene articles, as the
authorities uniformly hold. It places no restraint upon the
power of the legislature to punish the publication of matter
which is injurious to society according to the standard of the
common law. It does not deprive the state of the primary
right of self preservation. It does not sanction unbridled
license nor authorize the publication of articles prompting the
commission of murder or overthrow of government by force.
All courts and commentators contrast the liberty of the press
with its licentiousness, and condemn, as not sanctioned by the
constitution of any state, appeals designed to destroy the
reputation of the citizen, the peace of society or the existence
of the government."



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JUDICIAL DOGMATISM ON "FREEDOM OF THE PRESS/'

Stuart v. Press Pub. Co., 82 N. Y. Supp. 401 (408) ; 83
App. Div. 467 (1903.) Action for libel.

The Court said: "Liberty of speech and of the press is
guaranteed by the supreme law of the land, and will be zeal-
ously guarded, preserved and enforced by the courts. The
provisions of the Federal and State Constitutions were de-
signed to secure rights of the people and of the press for the
public good; and they do not license the utterance of false,
slanderous or libelous matter. Individuals are free to talk,
and the press is at liberty to publish, and neither may be re-
strained by injunction ; but they are answerable for the abuse
of this privilege, in an action for slander or libel under the
common law, except where by that law, or by statute enacted
in the interest of the public policy, the publication is privi-
leged and deemed for the general good, even though it works
a private injury."

OHIO.

The Constitution (Art. I, Sec. n) provides: "Every citizen
may freely speak, write and publish his sentiments on all sub-
jects, being responsible for the abuse of the right ; and no law
shall be passed to restrain or abridge the liberty of speech, or
of the press."

Dopp v. Doll r 13 Weekly Law Bull. (Ohio), 335. (1885.)
Action for injunction against anticipated libel.

Injunction refused as incompatible with constitutional
liberty of the press. Nothing specially quotable.

Myers v. State, 21 Weekly Law Bull. (Ohio), 404.
(1889.) Contempt proceeding for publishing reflections on
court. Defendant found guilty. Nothing specially quotable.

In re Press-Post, 3 Ohio N. P. 180. (1896.) Contempt
proceedings for publishing articles about case on trial. Dis-
missed with admonition.

The Court said : "The abuses of the freedom of the press
are not as dangerous as its suppression would be. The press is
a necessary, important and valuable institution in imparting
information with respect to the conduct of every department
of government the judiciary as well as the legislative and
executive authorities information to which the people are
entitled ; but the preservation of the rights of persons who are
accused of crime to a fair and impartial trial is just as essential
and important in our democratic system of government."



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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.
OKLAHOMA TERRITORY.

Burke v. Ter. of Oklahoma, 2 Okla. 499 (522). (1894.)
Action for contempt for article offensive to judge.

The Court said: "We decline in this case to give char-
acter to a manufactured sentiment by joining the too often
repeated discussion of a perverted application of our benefi-
cent heritage of freedom of speech and liberty of the press.
During these occasions, when crime stalks abroad cloaked in
the garb of liberty, and when the assassin of our highest and
noblest institutions of civil government would audaciously bid
the hand of justice bestow reward for punishment too long de-
served, we are reminded of the historic words of Madame
Roland, 'Ah, Liberty, how many crimes are committed in thy
name !' and resolve that the shield of the innocent shall not be
the weapon of the guilty."

OREGON.

The Constitution provides that "no law shall be passed
restraining the free expression of opinion, or restricting the
right to speak, write or print freely on any subject whatever;
but every person shall be responsible for the abuse of the
right/'

Upton v. Hume, 24 Ore. 420 (432). (1893.) Action for
libel.

The Court said : "The term 'freedom of the press/ which
is guaranteed under the Constitution, has led some to suppose
that the proprietors of newspapers have a right to publish with
impunity charges for which others would be held responsible.
This is a mistake; the publisher of a newspaper possesses no
immunity from liability on account of a libelous publication,
not belonging to any other citizen. In either case the publisher
is subject to the law of the land ; and, when the publication is
a false and defamatory one, he must answer in damages to the
injured party/'

PENNSYLVANIA.

The Constitution provides: "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." There
is much additional matter seeking specially to protect freedom
for the discussion of public officials. The Pennsylvania de-
cisions nearly all relate only to the effect of these other pro-



194



JUDICIAL DOGMATISM ON

visions upon actions for personal libel, and not to the general
clause above quoted.

Republica v. Passmore, 3 Yeates (Pa.), 441 (442).
(1802.) Action for contempt for publishing an article re-
flecting on a party to a pending action.

The Court said: "However libelous the publication com-
plained of may be, we have no cognizance of it in this sum-
mary mode, unless it be a contempt of the court. But we are
unanimously of opinion that in point of law it is such a con-
tempt. * * * If the minds of the public can be prejudiced
by such improper publications, before a cause is heard, justice
cannot be administered."

TEXAS.

The Texas Bill of Rights provides (Sec. 8) that "every
person shall be at liberty to speak, write or publish his opinions
on any subject, being responsible for the abuse of that privilege ;
and no law shall ever be passed curtailing the liberty of speech
or of the press."

Ex Parte Neill, 32 Tex. Crim. 275 (276, 277). (1889.)
Appeal from denial of a writ of habeas corpus. The appellant
had been arrested for selling a certain paper, contrary to the
provisions of a municipal ordinance, which adjudged said
paper a public nuisance, and prohibited its sale.

The Court, in pronouncing the ordinance unconstitutional
and void, and discharging the relator, said: "The power to
prohibit the publication of newspapers is not within the com-
pass of legislative action in this State ; and any law enacted
for that purpose would clearly be in derogation of the Bill of
Rights. * * *

"To prevent the abuse of this privilege as affecting the
public, the legislature has prescribed penalties to be enforced
at the suit of the State, leaving the matter of private injuries
to be determined between the parties in civil proceedings.

"We are not informed of any authority which sustains
the doctrine that a municipal corporation is invested with the
power to declare the sale of newspapers a nuisance. The
power to suppress one concedes the power to suppress all,
whether such publications are political, secular, religious, de-
cent or indecent, obscene or otherwise. The doctrine of the
Constitution must prevail in this State, which clothes the citi-
zen with the liberty to speak, write or publish his opinion on



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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

any and all subjects, subject alone to responsibility for the
abuse of such privilege."

WASHINGTON.

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

State v. Tugwell, 19 Wash. 238 (253, 256). (1898.)
The Court said : The constitutional liberty of speech and
the press and the guarantees against its abridgment, * * *'
undoubtedly primarily grew out of the censorship of articles in-
tended for publication by public authority. Such censorship
was inconsistent with free institutions and with that free dis-
cussion of all public officers and agents required for the intelli-
gent exercise of the right of suffrage. * * * If the article is
calculated to embarrass or influence a court to prevent a fair
trial between suitors in court either by disturbing the inde-
pendent verdict of the jury or the independent and unbiased
conclusion of the court, it is contempt. * * * The right of
suitors in court and persons charged with offenses to a fair
trial is guaranteed by our fundamental law. * * * It is this
right of impartial trial which is violated by the publication and
submission of an article to the Court, while a cause is pending
and yet undetermined, tending to embarrass or influence the
court in its final conclusion; and the individual liberty of the
citizen is gone when his personal rights are endangered or lost
by such extraneous influences. It is this protection of the
rights of suitors in a judicial action, which compels the courts
to exercise their jurisdiction of contempt. * * * In such con-
clusion, it is not intended to intimate or suggest that any citi-
zen of the state has not a legal right to comment upon, criti-
cise and freely and without restriction from any lawful au-
thority discuss any case determined by any of the courts of this
State after the final disposition of such case; or that any re-
striction of fair and impartial reporting of cases pending in
courts, unless forbidden by rule, is now imposed by our
Laws."

WEST VIRGINIA.

The Constitution provides: "No law abridging the free-
dom of speech, or of the press, shall be passed ; but the legis-
lature may by suitable penalties restrain the publication or
sale of obscene books, papers or pictures, and provide for the

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JUDICIAL DOGMATISM ON "FREEDOM OF THE PRESS/'

punishment of libel, and defamation of character, and for the
recovery in civil actions, by the aggrieved party, of suitable
damages for such libel, or defamation."

Sweeny v. Baker, 13 W. Va. 158 (182). (1878.) Action
for libel.

The Court said: "The terms 'freedom of the press' and
'liberty of the press' have misled some to suppose that the pro-
prietors of a newspaper had a right to publish that with im-
punity, for the publication of which others would have been
held responsible. But the proper signification of these phrases
is, if so understood, misapprehended. The 'liberty of the
press' consists in a right, in the conductor of a newspaper, to
print whatever he chooses without any previous license, but
subject to be held responsible therefor to exactly the same
extent, that any one else should be responsible for the publi-
cation."

State v. Frew, 24 W. Va. 416 (466, 478) : (1884.) : Con-
tempt for proceeding for publication of an article charged
with being calculated to impugn the integrity of members of
the Court.

Constitutional guarantee not directly discussed.

The Court said: "In every respect of the case, the publi-
cation is clearly contempt of this Court. Can such a publi-
cation be palliated or excused? Far be it from us to lake
away the liberty of the press, or in the slightest degree to
interfere with its rights. The good of society and of govern-
ment demands that the largest liberty should be accorded
the press, which is a power and an engine of great good ; but
the press itself will not for a moment tolerate such licentious-
ness as is exhibited in said editorial. The press is interested
in the purity of the courts; and if it had no respect for the
judges on the bench, it should respect the Court; for when
the judges now on the bench shall be remembered only in the
decision they have rendered, the Court will still remain; it
never dies ; it is the people's Court ; and the press as the
champion of the people's rights is interested in preserving
the respect due to the Court."

Snyder, J., concurring, said: "It must be and is cheer-
fully conceded that public journals have the right to criticize
freely the acts of all public officers executive, legislative and
judicial. It is a constitutional privilege that even the Legis-



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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

lature cannot abridge. But such criticism should always be
just and with a view to promote the public good. Where the
conduct of a public officer is wilfully corrupt, no measure of



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 19 of 43)