Theodore Albert Schroeder.

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

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Here, there is a total absence of criteria of guilt, and these
become wholly a matter of judicial creation (as distinguished
from selection when the statute is only ambiguous). Because
of the uncertainty that is, of a total absence of definite statu-
tory criteria of guilt under all of the "obscenity" laws, noth-
ing is ever unavoidably certain within the letter of the statute.
It is necessary in order to secure conviction that judicial, so-
called, construction, or, more accurately speaking, judicial legis-
lation, be enacted which creates fhe criteria of guilt not fur-
nished by the statute, from which it follows that all guilt here-
under is but constructive guilt, and the crime only a construc-
tive, that is, a judicially created crime, and not due process of

The fourth class of constructive crimes are those which do
come within the actual and literal definition of the criminal
statute, but where that predicates crime upon conduct which is
only a constructive, and not a real and actually achieved
material injury, to any living being, nor conditioned upon any
imminent danger thereof, the existence of which is determin-
able by any known law of the physical universe. In such a
case, the reality and materiality of the injury, which is an in-
dispensable foundation of all criminal statutes, is entirely ab-
sent, except as a matter of legal fiction, and not as a material



actuality described in the letter of the law. The same proposi-
tion may be thus stated: One is being punished for a con-
structive crime whenever the alleged crime consists only in
the dissemination of ideas, if under the statute the penalty
attaches upon conditions other than that the ideas have actually
resulted in material injury to some one. Every psychologic
crime, so long as it remains a mere psychological offense whose
injury is constructive only, can never become anything except
a constructive crime. Such purely constructive wrong and con-
structive crime cannot be penalized in any country whose con-
stitution was ordained to promote liberty, and therefore such a
statute cannot constitute "due process of law." 5

4. The statute in practical operation violates the constitu-
ional guarantee against ex post facto laws.

Syllabus of the argument : The second result of this uncer-
tainty of the statute is that every indictment and conviction
under said statute is always according to an ex post facto law or
standard of judgment, specially created by the court or jury for
each particular case. The Congress of the United States has no
power to authorize a jury to determine guilt or crime according-
to varying personal standards, such as must control the opinion
of a jury on the psychological tendency of a book upon an unde-
scribed hypothetical reader, and which standard, because it is
personal to the juror, in the nature of things cannot be known at
the time the alleged act was committed, nor before the rendition
of a verdict thereon.

A conviction and punishment under such circumstances is
always by virtue of ex post facto legislation on the part of the
court or jury, and is none the less unconstitutional because the
attempted delegation of power to enact it was made before the
conduct to be punished. All criteria of guilt must be found
in a prior statute. 6

American Law Review, for June, 1908.

Central Law Journal, for Jan. 3, 1908.

Journal, for April, 1908.


Dec. 18, 1908.

American Law Review, for June, 1908.

The Central Law Journal, for Jan. 3, 1908.

Journal, for April, 1908.




5. The statute in its practical operation violates the seventh
amendment to the Constitution in this : By reason of the want
of definition of the crime, by a statutory statement of the
criteria of guilt, the courts submit to the jury a determination
of the question of law as to what shall constitute "obscenity."
Congress has no power to make juries the judge of the law,
especially not in cases wherein they were not authorized to be
such judges under the common law of England. No such acts
as are now punished under "obscene" literature were ever
included under the common law crime of "obscene libel." 7

Furthermore, Fox's libel act, which made English juries
in libel cases the judges of the law, as well as of the facts, did
not pass the English Parliament until 1792.


Is the constitutionality of our moral censorship of literature
by the post office department still an open question? An an-
swer to this problem can be satisfactorily reached only by an-
alyzing all the judicial mention of the subject, in the light of
the foregoing assignable reasons for asserting the unconsti-
tutionally of these laws, and in the light of the following words
from Chief Justice MARSHALL :

"It is a maxim not to be disregarded that general expres-
sions in every opinion are to be taken in connection with the
case in which these expressions are used. If they go beyond
the case they may be respected, but ought not to control the
judgment in a subsequent suit when the very point is presented
for decision. The question actually before the court is investi-
gated with care and considered in its full extent. Other prin-
ciples which may serve to illustrate it are considered in their
relation to the case decided, but their possible bearing in all
other cases is seldom investigated." 8

The first case to make reference to the postal censorship
of the mails is Ex Parte Jackson, 96 U. S. 727.

This was an application for a writ of habeas corpus and
certiorari, after conviction, for mailing lottery matter. The
only question raised in the argument for the petitioner is
summed up in these words:

"So long as the duty of carrying the mails is imposed upon
Congress, a letter or packet which was confessedly mailable
matter at the time of the adoption of the Constitution cannot

Journal, May, 1907.

Cohens v. Virginia, 6 Wheat. 398. See, also, Corn Exchange Bank r. Pe-
body, 111 App. Div. 553, 98 N. Y. Sup. 78.



be excluded from them, provided the postage be paid and other
regulations be observed. Whatever else has been declared to be
mailable matter * * * all of which were unknown to the
postal system when the convention concluded its labor in
1787, may in the discretion of Congress be abolished."

No other question was raised and no argument based upon
the construction of the expressed or implied power of Congress
was presented. To enforce the above argument and reduce
the contrary position to an absurdity, as it was believed, coun-
sel for the convict said: "If Congress can exclude from the
mail a letter concerning lotteries which have been authorized by
State legislation, and refuse to carry it by reason of their as-
serted injurious tendency, it may refuse to carry any other
business letter." No arguments of any nature as to the
correctness of such suggestion of power, or the limitations,
if any, by which the Constitution does or does not hedge
about this alleged arbitrary power, were even mentioned, much
less discussed. The Attorney-General rested the contrary view
solely upon the dogmatic and very doubtful assertion that "if
there is a right to exclude any matter from the mails, the
extent of its exercise is one of legislative discretion."

The court did not have before it any question except as to
lotteries, and then only in so far as it related to the power
of Congress to declare non-mailable what custom had sanc-
tioned to be mailable at the time of the adoption of the Consti-
tution. The court indulged in some dictum based upon the
loose talk of counsel concerning side issues. In that dictum,
however, the court distinctly negatives the idea suggested by
the United States attorney, that there are no limits to the
power of regulating the mails, and some such limitations are
pointed out by the decision without negativing the existence
of other limitations.

The court among other things said : "The validity of legis-
lation prescribing what should be carried and its weight and
form and the charges to which it should be subjected has
never been questioned. What shall be mailable has varied
at different times, changing with the facility of transportation
over the post roads. At one time only letters, newspapers,
magazines, pamphlets and other printed matter, not exceeding
eight ounces in weight were carried; afterwards books were
added to the list, and now small packages of merchandise, not



exceeding a prescribed weight, as well as books and printed
matter of all kinds, are transported in the mail.

"The power possessed by Congress embraces the regulation
of the entire postal system of the country. The right to desig-
nate what shall be carried necessarily involves the right to
determine what shall be excluded. The difficulty attending the
subject arises not from the want of regulations as to what
shall constitute mail matter, but from the necessity of enforc-
ing them consistently with rights reserved to the people, of
far greater importance than the transportation of mail." Then
some limitations of the regulative power are pointed out. With-
out claiming to enumerate them all, the court continues in part :

"The constitutional guaranty of the right of the people
to be secure in their papers against unreasonable searches and
seizures extends to their papers thus closed against inspection,
wherever they may be. Whilst in the mail they can be opened
and examined under like warrant issued upon similar oath or
affirmation as is required when papers are subjected to search
in one's own household. All regulations adopted as to mail
matter of this kind must be in subordination to the great prin-
ciple embodied in the fourth amendment to the Constitution.

"Nor can any regulation be enforced against the transpor-
tation of printed matter in the mail, which is open to examina-
tion, so as to interfere in any manner with the freedom of the
press. [What might constitute such interference is not indi-
cated.} Liberty of circulating is as essential to that freedom
as liberty of publishing; indeed, without the circulation the
publishing would be of little value. If, therefore, printed
matter be excluded from the mails, its transportation in any
other way cannot be forbidden by Congress." [Since then,
and in spite of this dictum, Congress has attempted to forbid
other means of transmission, in addition to post office suppres-

"In excluding various articles from the mail, the object
of Congress has not been to interfere with the freedom af the
press, or with any other rights of the people, but to refuse its
facilities for the distribution of matters deemed injurious to
the public morals.

"All that Congress meant by that act was that the mail
would not be used to transport such corrupting publications
and articles, and that any one who attempted to use it for that
purpose should be punished."*

Ex parte Jackson, 96 U. S. 727 to 7S.



Several propositions are made clear from the reading of this
dictum. The first is, there are some limitations upon the congres-
sional power to regulate the mails. Second, that the court
was not called upon, nor attempted, to enumerate all of
those limitations. Third, that what was said about freedom of
press and postal regulations excluding obscene literature was
not at all necessary to a decision of the question before the
court, nor was this dictum based upon any argument attempting
to construe the meaning of "freedom of the press." Fourth,
the court admitted that Congress could not make a regulation
such as would abridge the freedom of the press, but the decision
does not attempt to point out the kind of postal regulation which
would constitute such an abridgment, nor the test by which
such regulation may be judged an abridgment of the freedom
of the press.

Applying the test of Cohens v. Virginia, 10 it follows that
nothing in this case is conclusive upon any feature of the con-
stitutionality of postal laws against "obscene" literature.

The next two cases in which this subject is mentioned are
in re Dupre, 11 and in re Rapier. 12 These two cases were ar-
gued together and decided together, and in both the precise
matter under discussion, as in the former case, was lotteries
and the mail.

Counsel for Dupre says: "We are not at this moment ob-
jecting to the statute as invalid because aimed to accomplish an
object beyond the power of the Congress, or because forbidden
by some express prohibition of the Constitution," but because
the means employed were not legitimate to the end of main-
taining the mail service. However, counsel for the accused
did not meet the real issue, which may be thus stated : Congress
has power to prohibit gambling on premises over which it has
jurisdiction, as in post offices owned by the government, and
in the Territories and District of Columbia, and, as an incident
to that power, might prohibit gambling through the mails. It
was argued that absence of right to exclude lottery advertise-
ments did not involve absence of right to exclude obscenity,
because the latter was "undoubtedly" mala in se and the
former only mala prohibita. Again the attorney says: "Our
argument in no manner involves the consequence that existing
legislation of Congress, excluding obscene books and pictures

8 Wheat. 398.
"148 U. S. 110.
"141 U. S. 110.



from the mails, is invalid, as abridging the freedom of speech."

Furthermore, it was not claimed that the matter constituting
the content of lottery advertisements and tickets alone involved
an exercise of the freedom of the press, but only that they
incidentally affected the press by denying pulishers the rev-
enue to be derived from advertising, etc.

The court in Dupre case (same opinion as Rapier case),
after denying a distinction between mala in se and mala pro-
hibita as urged, continues thus:

"Nor are we able to see that Congress can be held in an
enactment to have abridged the freedom of the press. The cir-
culation of newspapers is not prohibited, but the government
declines itself to become an agent in the circulation of printed
matter [to wit, lottery advertisements and tickets] which it
regards as injurious to the people. The freedom of communi-
cation is not abridged within the intent and meaning of the
constitutional provision, unless Congress is absolutely destitute
of any discretion as to what shall or shall not be carried in the
mails and compelled arbitrarily to assist in the dissemination
of matters condemned by its judgment, through the govern-
mental agencies which it controls." Then the court reaffirms
the Jackson case.

I may admit the right of Congress to exclude dynamite from
the mails, or any other actual instrument whose transmission is
a material element in the commission of an actual crime, over
which Congress has jurisdiction, but it does not yet follow that
Congress has the power to exclude "incendiary" opinions from
the mails, nor unpopular opinions about the ethics of lotteries
or of sex.

So Congress, within its geographical jurisdiction, which
includes, among other places, the post office buildings owned
by the government, may make gambling a crime, and, as an
incident to that power, Congress may punish or prohibit the
actual commission of gambling through the use of the postal
system. It does not follow that it can also punish the con-
structive crime of sending through the mail matter which
merely expresses or suggests the idea of gambling, entirely
separate from any particular scheme for accomplishing gam-
bling. There is all the difference in the world between punish-
ing the use of the mails for disseminating opinions advocating
the morality of gambling and punishing the use of mails to
accomplish the crime of gambling. To decide that Congress



has the power to do the latter, does not in the remotest de-
gree imply that it has the power to do the former. Admitting
that Congress has power in some places to punish certain sex-
ual misconduct, it does not follow that it may punish purely
intellectual crimes predicated merely upon sex discussions
through the mails. It follows that nothing which has been
directly or necessarily decided in any of the lottery cases
has any bearing whatever upon the present controversy, as
set forth in the foregoing statement of contentions.

Admitting for the sake of the argument that courts have
rightfully decided that Congress has the power to prohibit
the use of the mails for the accomplishment of the actual
crimes of fraud and gambling, it does not follow, and has not
been decided, that the Congress has also power to make a
constructive crime of such an act as using the mails for the
dissemination of a truthful scientific book on the physiology,
psychology or hygiene of sex, or of spreading through the
mails legislatively unapproved ideas about sex-ethics. It may
still be true, notwithstanding all that courts have thus far said,
and even including the most rash dictum, that Congress has not
the power, implied from its authority to established post offices,
of creating a constructive crime out of the dissemination of
unpopular ideas, under the pretense of regulating the mails.

In School of Magnetic Healing v. McAnnulty 13 the court
says this: "Conceding, for the purpose of this case, that
Congress has full and absolute jurisdiction over the mails,
and that it may provide who may and who may not use the
mails, and that its action is not subject to review by the courts,
and also conceding the conclusive character of the determina-
tion of the Postmaster-General," etc. (p. 107). Then the
court goes on to hold that even conceding all that, "for the
purposes of this case," the postmaster had transcended his
power. Here again it is clear that nothing was either directly
involved or decided which bears upon the extent or limitations
of the implied power of Congress to regulate the mails, or the
constitutional questions hereinbefore suggested.

The next case is Public Clearing House v. Coyne 14 .

This was an application for an injunction against the post-
master of Chicago for relief against a fraud order. After
restating and reaffirming, by way of dictum, the case of Ex
Parte Jackson, the court continues its dictum thus : "While it

"187 U. S. 107.
"194 U. S. 607.



may be assumed for the purpose of this case that Congress
would have no right to extend to one the benefits of its postal
service and deny it to another person in the same class and
standing in the same relation to the government, it does not
follow that under its power to classify mailable matter, apply-
ing different rates of postage to different articles, and pro-
hibiting some altogether, it may not also classify the recipients
of such matter, and forbid the delivery of letters to such
persons or corporations as in its judgment are making use of
the mails for the purpose of fraud or deception or the dis-
semination among its citizens of information of a character
calculated to debauch the public morality." 15

Again nothing was before the court which elicited argument
or involved a decision upon the power of Congress to differen-
tiate between mail matter according to its approval or disap-
proval of the opinion transmitted, or the psycho-sexual states of
the postal patrons. The only direct bearing of this decision
upon the question as to the extent of the implied power to regu-
late mails is that the judicial dictum suggests a limitation upon
that power not heretofore suggested. It also leaves the whole
matter of other limitations on the implication of absolute power
over mails an open question.

No case directly involving the constitutionality of the postal
law against obscene literature has ever gone to the Supreme
Court for decision, nor does it appear from the reported cases
in the lower courts that any serious contention has ever been
there made against their constitutionality. The foregoing
analysis already shows that, in so far as the logic of the dictum
in the Jackson case has been taken to mean that there were no
limitations upon congressional control over the mails, even
that dictum has been clearly misconstrued, as is shown by the
numerous judicial suggestions to the effect that there are some

We conclude, therefore, that every objection to be herein-
after urged against the constitutionality of these laws, as here-
in-above suggested, is not only undecided, but free from the
embarrassment of even an adverse dictum. If there is any
doubt as to this conclusion it must be dissipated by the declara-
tion of the Supreme Court itself, where it says: "The con-
stitutionality of this law [against obscene literature] we believe
has never been attacked." 16

"Public Clearing House v. Coyne, 194 U. S. 507.
'Public Clearing House v. Coyne, 194 U. S. 507.



The worst insult I ever heard charged against any court
was an assertion that its judge was without prejudice upon
any question of law. Our laws against obscenity in literature
have been upon the Federal statute books about thirty-five
years and elsewhere have existed even longer. After this lapse
of time, one who presumes to raise new objections for the an-
nullment of those laws, without assuming the existence of an
adverse judicial, as well as popular, predisposition might have
his conduct construed as an insult to judicial intelligence, or
at least as a serious reflection upon his own.

Long public acquiescence, the force of inumerable prece-
dents, and an "eminently respectable" indorsement of these
laws, combined with the natural and proper conservatism of the
judiciary, all conduce necessarily to create a popular and judicial
predisposition against my contentions. The special emotional
intensity, which is almost certain to accompany a discussion
of such laws as are here under consideration, impairs the human
capacity for a dispassionate rational weighing of argument.
The practical importance of that mental attitude, in creating
a general, strong and perhaps a passionate hope that my con-
tention will fail, would be very much and very foolishly under-
estimated by me if I omitted all direct effort to re-establish an
open-minded hospitality toward the arguments to be advanced
later on.

Furthermore, I have read all the officially reported decisions
in "obscenity" cases, and I have read many unofficial reports of
instructions to juries and other accounts of the conduct of
courts in such trials. According to many of these reports, even
the seemings of judicial calm have been abandoned, and that
which is false as a matter of science has been dogmatically
asserted in language which suggests a substitution of passionate
vituperation for logical processes. From the information thus



acquired, from my acquaintance with the psychology of modesty
and my knowledge of human nature, I know how easy it is to
transform a proper and necessary conservatism into a passion-
ate "will to believe," when, as in this class of cases, conserva-
tism is associated with the sensitive emotions having their
origin in our sex-natures. I believe it is precisely this intellect-
befogging combination which has precluded the prior presenta-
tion of the contentions now to be urged.

I am well aware that, in theory, our courts have nothing
to do with the expediency of the laws, when passing upon their
constitutionality. But I also know that the interests of the
litigant have very much to do with the judicial opinion about
their expediency, because too often that unconsciously deter-

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 2 of 43)