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

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that at first "printing was treated like the making of salamoniac
and apprentices were cautioned not to lay open the principles
to the unfaithful "*

Patterson's "Liberty of Press, p. 19.

'Patterson's "Liberty of Press," p. 43, citing, Bedcet v. Denison, 17 PrL
Hist., 958.

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INTERPRETATION OF "FREEDOM OF SPEECH AND OF THE PRESS."

The reasons underlying such conclusions are fully appreci-
ated only by keeping in mind the English conception of that
period as to the nature of the State. The features especially
to be remembered are the union of Church and State, and the
King's rule of divine right, as vice-gerent for the Almighty,
exercising the divinity's political omnipotence, and thus being
the giver of all good, including the grant of commercial oppor-
tunity and monopoly, and being incapable of doing any wrong.
It necessarily followed from such premises that the State-
religion be declared the fundamental and controlling part of
the laws of England, so that any statute made against "any
point of the Christian religion or what they thought was the
Christian religion, was void." 5

From such considerations there grew up naturally laws
against blasphemous and seditious utterances. That these
found the tap-root of their justification in the union of Church
and State is evident from such judicial unreason as the follow-
ing^ "To say that religion is a cheat, is to dissolve all those
obligations whereby civil societies are preserved, and Christian-
ity being part and parcel of the laws of England, therefore
lo reproach the Christian religion is to speak in subversion of
the law." 6 This doctrine no longer obtains in England. 7

Since man can impose no rightful limitations on the exer-
cise of power by those who rule by divine right, it follows
that under such a State all liberty is necessarily only liberty
by permission, never liberty as an admitted natural right, and
necessarily to decry religion is to inculcate treason against
those whose right to rule is founded in that religion, and to
attack a government conducted by divine right is in its turn
irreligious and blasphemous. So, then, admitting the premises
of their Church-State, the Star Chamber was quite logical
when in de famosis libellis the court assumed "that words
against the government amount to sedition; and that words
against an archbishop are words against the government." 8

Necessarily, under such a State, those who opposed the
existing restrictions upon speech and press were promoting
irreligion, and therefore treason against both earthly and
heavenly governments. In that controversy, the demand for
unabridged, or even larger freedom of heretical religious utter-
ance, necessarily included a demand for the right to advocate
even treason, and of course logically must include all the lesser

Patterson's "Liberty of Press and Speech," p. 67, citing 10 St. Tr. 375.
Reg. v. Taylor, Ventris, 293.

7 See "Blasphemy and Blasphemous Libel," by Sir Fitz Tames Stephens.
Fortnightly Re-view, Mar., 1884.
* Mence on Libel, p. 289.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

crimes. Although in America we boast of having outgrown at
least the avowed union of Church and State, we still retain
that union in fact, by virtue of many repressive laws which
have no other foundation than the precedents of a Church-
State, and the moral sentimentalizing associated with, or
anchored in, religion. In studying the English precedents we
must always bear in mind the before-mentioned essential differ-
ence in our theories of government and the resultant difference
between liberty merely by permission and liberty as a constitu-
tionally guaranteed natural right.

ON CONSTITUTIONAL DESIGN.

Our constitutional guarantees upon this subject are both
useless and meaningless except on the assumption that they
were designed to repudiate the old theory that freedom of
utterance is liberty by permission or grant, and were intended
to establish intellectual liberty as a matter of constitutionally
guaranteed unabridgable natural right.

If it was not the design to change the English system of
liberty by permission to one of liberty as a right, then there was
no reason for any constitutional provision upon the subject.
If the only purpose was to preclude the creation of an official
censor, the easiest way would have been to have had the Con-
stitution say, "No censor shall ever be appointed," or, "No
previous restraints shall be put upon speech or press." Thus
there would be no restriction upon other modes of abridging
freedom of utterance. If the intention had been that a power
should remain which, by subsequent punishment, would sup-
press those discussions and ideas which were deemed contrary
to the public welfare, then, again, there was no need for any
constitutional provision upon the subject, because no other
opinions than such as had been deemed contrary to the public
welfare ever had been suppressed anywhere. If it is possible
to assume that the purpose of amending our Federal Constitu-
tion was to preclude Congress from punishing men for publish-
ing ideas, believed by it to be conducive to welfare, then we
might still expect that the most appropriate language would
have been used. Then our Constitution might have read thus :
"Congress shall make no law abridging freedom of speech or
of the press, except in the interest of the public welfare." But
the insistence here is that such exception cannot properly be
interpolated into our Constitution by judicial action.

I utterly repudiate the dogmatic paradox of our courts,

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INTERPRETATION OF

which, while claiming- to construe our Constitutions, declare
that the words, the legislature "shall make no law abridging","
etc., mean that, in the alleged interest of the public welfare, it
may enact any abridging laws it sees fit, if thereby no restraint
is imposed prior to publication.

It does seem to me that these few suggestions, together
with a bit of critical thought on the words themselves, as used
in our Constitutions, should be all that is necessary in justifica-
tion of my contention. However, the abundance of judicial
dogmatism to the contrary, and the general acquiescence there-
in, persuade me that a more elaborate study of the historical
factors is quite indispensable for most minds, even of the sort
that have capacity for logical thinking upon this subject.

THE METHOD OUTLINED.

In the scientific aspect, our social and political institutions,
like all other natural phenomena, are but special manifestations
of the all-pervading law of evolution. With enlarged experi-
ences, we change our conceptions of what is required by the
natural law of our social relations, and accordingly we change
our verbal statements of law. It follows that the laws of a
State always seem to be approaching, but never attain, perfec-
tion. This seeming corresponds to the reality so long as the
dominant conception of the law is nearing the truly scientific. By
a scientific conception of the law, I mean one wherein the em-
pirical generalizations have all been included in one rational
generalization, which is the law upon the subject, because it is
derived wholly from the nature of things; and, in every state
of facts to which it can be applied, it conclusively determines
the how and the why certain judgments must be so, and thus,
the result always being derived exclusively by deductions from
the ultimate rational generalization, which thus furnishes the
only standard of judgment determining the decision in every
particular case, that law must always be conformed to, irre-
spective of the direct estimate of the beneficence of its results
in any particular instance ? 9

I venture the assertion that no one who has understandingly
read the foregoing statement of the meaning of "Law" and
who has also read the judicial opinions as to the meaning of
unabridged freedom of speech and of the press, will claim that
any American court has ever attempted to declare the law of
our Constitutions as to the freedom of utterance, because no

See, v. 42, Am. Law Review, p. 360.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

court has ever attempted, even in a crude way, to furnish us
with any comprehensive statement of the criteria for judging
the constitutionality of enactments relating to speech or press.

In England, where there is no constitutional limitation
upon the power of Parliament to abridge freedom of utterance,
it was said, after the passage of the Fox libel act, that
^'Freedom of discussion is little else than the right to write
or say anything which a jury, consisting of twelve shopkeepers,
think it expedient should be said or written." 10 That is freedom
as a matter of expediency and by permission, the only kind
of freedom of speech and press that has ever obtained in Eng-
land or Russia. How useless then is our Constitution if, as
the Courts quite uniformly assert, unabridged and unabridg-
able freedom of discussion is the right to say whatever a legis-
lature of mediocre attainments may think it expedient to permit
to be said? If our constitutional guarantees declare and de-
termine rights, then these cannot be destroyed by the arbitrary
decree of the legislature, even though done in the alleged
interest of the public welfare. If the Constitution is a law
of right, then its declarations are always to be obeyed, even
though the legislature and court concur in the belief that in a
particular case the exercise of a constitutional right is against
the public welfare. Neither can such belief invest them with
the authority to amend the Constitution so as to make it read,
"Congress shall make no law abridging freedom of speech or
of the press except as to those ideas which it deems contrary
to the public welfare." If we are to preclude such dogmatic
judicial amendments of our Constitutions, we must develop
in the judicial mind, by the scientific method, a conception of
constitutional law in accord with the conception of the legal
scientist.

The materials for a scientific interpretation of the Consti-
tution are antecedent historical controversies, whose issues the
Constitution was intended to decide. The method must be to
trace the evolution of the idea of unabridged freedom of dis-
cussion, from its inception as a mere personal protest and
mere wish of the individual to be personally free from a partic-
ular interference, through unnumbered empirical inductions to
the impersonal recognition of a general principle underlying
all such protests and demands, and determining the rightfulness
of them. To achieve this we must study the historical contro-
versies and the primitive crude demands for a lesser abridg-

10 Dicey, "The Law of the Constitution," p. 234.



212



INTERPRETATION OF "FREEDOM OF SPEECH AND OF THE PRESS/'

ment of intellectual liberty, that we may discover the common
elements in all these varying demands, and when we have thus
discovered the elements of unification common to all these
struggles for a lesser abridgment of intellectual liberty, have
studied the various historical means of abridgment from which
arose the controversies which were settled by our Constitutions,
and have generalized the inhibition against all similar recur-
rences, we may achieve a scientific conception of what is meant
by an abridgment of freedom of speech. This will be a rational
generalization giving us the criteria by which to judge whether
or not a particular enactment is, or is not, a breach of the
constitutional right of an unabridged freedom of utterance.

THE DISPUTANTS CLASSIFIED.

I cannot resist the feeling that it is an awful reflection
upon the general and the judicial "intelligence" that any argu-
ment should be deemed necessary to show the absurdity of the
official "construction" of our Constitutions. Manifestly, it is
urgently necessary, and it is to this end that we are to make a
more precise analysis of the historical controversy which, in
America, culminated in the adoption of our constitutional
guarantees for unabridged freedom of speech and of the press.
In making our analysis of the historical contentions, we must
keep in mind at least three main classes of disputants.

The first and most popular class consisted of those emi-
nently respectable and official persons who asserted, not only
the existence of a proper governmental authority to abridge
in every manner the intellectual liberty of the citizen, but who
also defended every existing method by which the power was
being exercised. This class was the only one fortified by official
justifications and judicial definitions of the pre-r evolutionary
period.

To the second class belonged those conservative reformers
who did not question the existence of a power to control
legally the intellectual food-supply of the populace, but who
did question some particular manner of its exercise. These
usually believed in a larger liberty of speech and press, but did
not demand that it be wholly unabridged, and usually their
arguments were directed only to the inexpediency of some
particular abridgment and not tc*yard the defense of liberty
as an unabridgable natural right. Among these could be found
persons who demanded larger liberty for the promotion of

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

their own heresies, but justified the punishment of other her-
etics ; there were those who demanded liberty for the discussion
of religion, but hastened to out-Herod Herod in their justifica-
tion of the punishment of the psychologic crime of verbal
treason. Others, like Erskine, demanded a larger liberty for
the criticism of government, but hastened to give assurance of
their entire orthodoxy by joining in the clamor for the punish-
ment of religious heretics. Should we mistake any of these
disputants as the defenders of unabridged freedom of speech
and press, and adopt their definitions of liberty, as a means
of constitutional construction, we should of course be led
far astray and reduce our constitutional right to unabridged
freedom to a limited liberty by permission.

The third class of controversialists was composed of those
few who denied the existence of any rightful authority for the
punishment of any mere psychologic crimes, and who therefore
demanded the establishment and maintenance of unabridged
liberty of utterance. It was the contention of these persons
which was adopted into our Constitutions, and it is their state-
ment of the meaning of "freedom of speech" which should
be made the basis for constitutional construction, and not the
judicial precedents of the Star Chamber, expressing the Eng-
lish practise from the viewpoint of the Church-State, which
viewpoint was repudiated by our American States and which
precedents were overruled by our American Constitutions.
Unfortunately, these precedents are still often followed by our
American Courts, whose judges are supposed to be the con-
servators, but often act as the destroyers, of our liberty,
especially when unpopular and disapproved utterances are in-
volved.

The varying conceptions of the limits of freedom of utter-
ance, as advocated by these classes of controversialists, will
now be exemplified by illustrative quotations, that we may
show what was meant by an unabridged liberty of utterance, by
those whose views were incorporated in our Constitutions.

LICENSING THE PRINTER.

The press was introduced into England by Henry VII.
From this fact, together with the prevailing opinion that the
whole matter of freedom of speech was one of permission, or
gift from the Sovereign, nothing was more natural than that
Edward the VI. should by patent appoint a printer, who was

214



INTERPRETATION OF

to print and sell all Latin, Greek, and Hebrew books, as well
as all others that might be commanded, and penalties were
denounced for infringing his monopoly. Subsequently, the
number of licensed printers was enlarged, but for a consider-
able time it was limited. 11 In this form of license, the letter
of the law made no discrimination against a book according to
the sentiments expressed. The license seems rather to have
been a business monopoly given to some court favorite, and a
matter of confidence in the printer, as one having the discretion
to publish nothing inimical to the grantors of his special
privilege. Of course, this public printer did not publish for
future reference any of the arguments against his monopoly.
Could we now look back to analyze the opposition to this first
form of licensing, we would seek for two possible explana-
tions of it. According to one, freedom of the press might
mean only the commercial freedom to use the press as a tool
of trade, in commercial competition with the Crown-mon-
opolists, and a modern judge, adopting that conception as a
basis for constitutional construction, might uphold a law cre-
ating a censorship over only the character of the printed
matter, and not directly and immediately affecting the equality
of commercial opportunity in the use of the printing press as
an instrument of commerce. According to this first point of
view, the abolition of this monopoly was the chief, or. only,
end in view, and this object would not be in the least interfered
with by a new form of censorship directed against particular
psychologic tendencies of opinions, which would leave in-
tellectual liberty just as much abridged as before.

The other view would be that the opposition to licensing
of the printer was based principally upon the demand for a
larger intellectual liberty, by equalizing the opportunity of all
for using the press as an extended form of speech. In this
second view, the mere abolition of the license for printers'
monopoly is not an end in itself, but a mere means to the end
of increasing intellectual liberty and opportunity, a viewpoint
quite constantly ignored in our judicial utterances upon this
subject. It is unthinkably paradoxical that the few friends
of freedom of speech and of the press who existed at that
time should have had no interest in the enlargement of in-
tellectual liberty, and were interested only in the enlarged
opportunity for the use of the press as a tool of trade.

Of course this view, that enlargement of intellectual op-

"Paterson's "Liberty of Press," p. 44.

215



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

portunity was the chief end sought, is confirmed by the related
controversial literature of approximately that time. As I
write this, I have open before me a volume in which are
reprinted the tracts on "Liberty of Conscience" which had been
published prior to 1661. These express "the first articulations
of infant liberty." The arguments are in the main very crude,
as arguments for liberty. They may be clearly divided into a
few general classes : First, "we dissenters are right, therefore
ought to be tolerated." Second, "the Bible teaches toleration,
therefore we should be tolerated." Third, "it is not in the
power of man to believe as he wills, but he believes as he must,
and he therefore should not be punished for expressing con-
victions he cannot escape." This last is a good argument
against the injustice of punishing "dangerous" opinions, even
yet. Amid much crude thinking, there are some few very
clear perceptions, excluding all mere psychological ci imes from
the legitimate province of government. To this end, Luther
was quoted and his thought is several times restated by dif-
ferent authors. Luther's words are these : "The laws of civil
government extend no further than over the body and goods,
and that which is external: For over the Soul, [mind] God
will not suffer man to rule." Such were the contentions made
in behalf of liberty of speech, or, "the liberty of prophesying," .
as it was then often called. One would look in vain through
this volume of early tracts for any suggestion that the larger
liberty contended for, or an unabridged freedom of discussion,
consisted only in the absence of a prior censorship. I do not
recall even a single mention of a previous censorship as the
essence of the evil, nor mere commercial opportunity to use
the press as a tool of trade, as an end to be achieved. Always
the demand was for, and, indeed, the arguments were all in
furtherance of, a larger intellectual liberty, and sometimes
demanded an unabridged liberty of utterance, by excluding all
psychological offenses from the jurisdiction of the criminal
law.

These early tracts, so far as they go, are a vindication of
the contention, stated at the head of this essay, as that relates
to the period prior to 1661. It is utterly absurd for our courts
to intimate, as they do, that the real friends of unabridged
intellectual opportunity were ever concerned only with the
mere time or manner (rather than the substance) of the
abridgment of liberty. The friends of freedom never sought

216



the abolition of previous restraint in favor of subsequent
punishment, as an end in itself, but were seeking to enlarge
intellectual opportunity as against abridgment either by prior
restraint or subsequent punishment.

No doubt it was in this early protest against a licensed
printer that the phrase "Freedom of the Press" came into use,
for here only does it have a literal signification. When the
press was made free, as an instrument of trade, the shifty
tyrant saw to it that no enlargement of intellectual opportunity
resulted.

USURPATION BY THE "STAR CHAMBER/'

Prior to 1637 there seems to have been no criminal penalties
inflicted by the English secular courts, for mere psychological
offenses, such as the expression of unpopular opinions. "The
Common Law took cognizance of no injuries but such as
affected persons or property."" In 1637 the Star Chamber,
which never hesitated to assume the most preposterous powers,
usurped the legislative function of penalizing libel, by its
decree regulating the press. 1 ' This Judicial lawlessness, in
usurping the power to punish mere psychologic crimes under
ex post facto criteria of guilt, of course provoked criticism
from those who loved liberty and knew something of its
^nature, and no doubt it also secured for "the watchtower of the
King" the hearty approval of all tyrants, for the protection
of whose reputation and prerogatives this abridgment of free-
dom of utterance was inaugurated. This usurped censorship
and the accompanying ex post facto penalization of mere
psvchologic crimes, were among the last and most hideous of
the acts of this infamous "Judicial" body, for the Star Cham-
ber was abolished in 1640. No doubt the hostility excited by
its outrageous creation and enforcement of laws against mere
verbal crimes contributed much towards the downfall, but
tyranny did not die with the institution that invented this
special means to its end. The co-tyrants of the Star Chamber
Court and their successors, prompted by the same inordinate
lust for power and preferring to be relieved of the occasion for
defending their official conduct, have continued, with slight
modifications and very brief cessations, to this very day to act
upon the precedents of the abhorred Star Chamber. Parlia-
mentary enactment along similar lines soon took the place of
Star Chamber decrees, and vagueness in the legislative defini-

"Mence on Libel, p. 333.

"Patterson on "Liberty of Press and Speech," 45; Mence, "Law of Libel,"
Chapt. 9, (1824); "The Freedom of Speech and Writing," pp. 47, 49. 99, (Lend.,
1766).

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

tion of criminal libel left quite unimpaired the power for an
ex post facto creation of the criteria of guilt. So it comes
to pass that, while maintaining some of the outward seemings
of law, the fundamental evils of judicial despotism still exist,
even in those countries whose inhabitants are most vociferous
in their stupid boast over a purely imaginary liberty. How-
ever, let it be said, that the savagery of the penalties has been
a little abated, even though on the whole intellectual liberty
has received no substantial enlargement. What has been
gained as to some subjects has been lost as to others. Some
comparison as to this would be interesting but is not within the
scope of this essay.

LICENSING THE BOOK.

The licensing of one printer was succeeded by the licensing
of many and later by the abolition of this system in its entirety,
allowing all alike to use the printing press as an instrument of
commerce, but maintaining inequalities as to its use in the
distribution of ideas. Here I have reference to those various
licensing acts, expiring in 1694, which succeeded to the Star



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 21 of 43)