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

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Chamber decrees, and by which a censor authorized particular
books to be printed, and all publications not so authorized
were penalized. It was against this censorship that Milton
directed his immortal essay, "Areopagitica."

Here, again, we must seek an answer to the same old
question, Is it true, as our courts generally assert, that Milton
and others who opposed these licensing acts were concerned
only with the manner and not with the substance of this abridg-
ment of freedom of the press? Is it true, as our courts usually
imply, that the opponents of these licensing acts demanded
only the abolition of the censor and previous restraint, and
were quite willing to admit a power to punish subsequent to
publication all those opinions which formerly had been denied
the necessary license for getting into print? In Milton's time,
one might print unpopular opinions, which the licenser had
disapproved, and be punished if caught. This the Supreme
Court of the United States says is an abridgment of freedom
of the press. However, if there is no previous censorship,
and although you receive the same penalty, merely for publish-
ing the same book, because a legislature or jury deem it
contrary to the public welfare, then unabridged liberty of the
press is thereby preserved, for "the greatest judicial tribunal



on earth" has said that a constitutionally guaranteed natural
right to unabridged freedom of press calls for the cessation of
"all such previous restraints as had been practised by other
governments, and [but] does not prevent the subsequent pun-
ishment of such [publications] as may be deemed against the
public welfare."

In other words, our courts declare that our constitutional
right to unabridged freedom of utterance deals only with the
manner and time of the abridgment, or the tribunal which
inflicts it, and has nothing to do with unabridged intellectual
opportunity to utter, to hear, and to read. Be it remembered,
however, that no such distinction in favor of any ex post facto
censorship can be deduced from the very words of our Con-
stitutions, nor from the historical controversy culminating in
their adoption, and, therefore, these exceptions to unabridged
freedom are a matter of judicial creation that is, of judicial
constitutional amendment.


Then, as now, the advocates for the suppression of un-
popular opinions refused to see that to admit the existence of
the power to suppress any opinion, is, in the long run, more
destructive to human well-being than the ideas against which
they would have the power exercised. Then, as now, the
alleged immediate public welfare was the justification of every
form of censorship, and some dangerous "tendency," only
speculatively ascertained and usually so in a feverishly appre-
hensive imagination, was always the test of guilt. "The most
tyrannical and the most absolute governments speak a kind
parental language to the abject wretches who groan under
their crushing and humiliating weight."" To make this clear r
it is necessary only to quote a few passages from a publication
dated A. D., 1680, and written in defense of the abridgments
of freedom of speech and press. Sir Robert L'Estrange in, "A
Seasonable Memorial in some Historical Notes upon the Liber-
ties of the Press and Pulpit," quotes Calvin as saying: "There
are two sorts of seditious men, and against both these must
the sword be drawn ; for they oppose the King and God him-
self." He then exhibits the evolution of dangerous tendencies
by these words : "First they find out corruptions in the Gov-
ernment, as a matter of grievance, which they expose to the
people. Secondly, they petition for Redress of those Griev-

"Erskine in defense of Carnan.

2I 9


ances, still asking more and more, till something is denied
them. And then, Thirdly, they take the power into their own
hands of Relieving themselves, but with Oaths and protestations
that they act only for the Common Good of King and Kingdom.
From the pretense of defending the Government they proceed
to the Reforming of it; which reformation proves in the end
to be a Final Dissolution of the order both of Church and
State. * * * * Their consciences widened with their interest.
* * * * First, they fell upon the King's Reputation; they in-
vaded his authority in the next place ; after that they assaulted
his Person, seized his Revenue; and in the conclusion most
impiously took away his Sacred Life. * * * * The Transition
is so natural from Popular Petition to a Tumult, that the one
is but a Hot Fit of the other; and little more than a more earnest
way of petitioning. * * * * They Preach the People into
murther, sacrilege, and Rebellion ; they pursue a most gracious
Prince to the scaffold ; they animate the Regicides, calling that
Execrable villainy an act of Public Justice, and entitling the
Holy Ghost to Treason." 16

This argument, backed by the historical fact, is unanswer-
able to the point that to permit freedom of criticism of Govern-
ment and its officials, and to allow the presentation of petitions
for the redress of grievances, is to permit that which tends
to promote actual treason and rebellion. It follows that those
who were demanding the opportunity to express their senti-
ments in criticism of official conduct were in effect demanding
the right verbally to promote treason with impunity, because
that was the demonstrated tendency of such utterances. That
is what unabridged freedom of speech and of the press meant
to its advocates, and our constitutional guarantee for an un-
abridged freedom of utterance was a final decision in favor of
that view and against all mere psychologic crimes, including
even verbal "treason."


In further justification of the contention that unabridged
freedom of utterance as a matter of right precludes the sup-
pression of opinions having a "dangerous" tendency, either
by direct prior restraint or subsequent punishment the fear
of which always operates as a prior restraint we should
contrast the foregoing argument for restricting speech with
the historic argument for freedom made in Milton's "Areo-

1B In addition to "A Seasonable Memorial," see, for similar argument, M A
Discourse of Ecclesiastical Politic, wherein the Mischiefs and Inconveniences of
Toleration are Represented," London, 1670.



pagitica." Here we can quote only a few paragraphs tending
to show what freedom of speech meant to its friends. Not
a word can be found to suggest ex post facto punishment as
a substitute for previous restraint.

Milton writes: "Till then, books were ever as freely ad-
mitted into the world as any other birth ; the issue of the brain
was no more stifled than the issue of the womb. * * * * 'To the
pure all things are pure,' not only meats and drinks, but all
kinds of knowledge, whether of good or evil ; the knowledge
cannot defile, nor consequently the books, if the will and
conscience be not defiled. For books are as meats and viands
are, some of good and some of evil substance; and yet God
in that unapocryphal vision said, without exception, "Rise,
Peter, kill and eat," leaving the choice to man's discretion.
Wholesome meats to a vitiated stomach differ little or nothing
from unwholesome, and best books to a naughty mind are not
unapplicable to occasions of evil. Bad meats will scarce breed
good nourishment in the healthiest concoction; but herein the
difference is of bad books, that they to a discreet and judicious
reader serve in many respects to discover, to confute, to
forewarn, and to illustrate. * * * * All opinions, yea, errors,
known, read and collated, are of main service and assistance
toward the speedy ascertainment of what is truest. * * * * For
those actions, which enter into a man rather than issue out of
him and therefore defile not, God uses not to captivate under
a perpetual childhood of prescription, but trusts him with the
gift of reason to be his own chooser. * * * *

"I cannot praise a fugitive and cloistered virtue, unexer-
cised and unbreathed, that never sallies out and sees her
adversary, but slinks out of the race, where that immortal
garland is to be run for, not without dust and heat. Assuredly
we bring not innocence into the world, we bring impurity much
rather; that which purifies us is trial, and trial is by what is
contrary. That virtue which is but a youngling in the con-
templation of evil, and knows not the utmost that vice promises
to her followers, and rejects it, is but a blank virtue, not a
pure ; her whiteness is but an excremental whiteness. * * * *

"Since, therefore, the knowledge and survey of vice is in this
world so necessary to the constituting of human virtue, and the
scanning of error to the confirmation of truth, how can we
more safely, and with less danger, scout into the regions of
sin and falsity, than by reading all manner of tractates, and



hearing all manner of reason? * * * * Truth and understanding
are not such wares as to be monopolized and traded in by
tickets and statutes and standards. * * * * Give me the liberty
to know, to utter, and to argue freely according to conscience,
above all [other] liberties.

"Though ye take from a covetous man all his treasure, he
has yet one jewel left; ye cannot bereave him of his covetous-
ness. Banish all objects of lust, shut up all youth into the
severest discipline that can be exercised in any hermitage, ye
cannot make them chaste that came not hither so."

And yet Milton, though he made an unanswerable argument
for a totally unabridged freedom of utterance, could not get
wholly beyond all his religious prejudices, and so, although the
argument made no provision for it, he found it necessary dog-
matically to provide for one exception. "I mean not tolerated
Popery and open superstition, which, as it extirpates all re-
ligious and civil supremacies, so itself should be extirpated/'
While Milton thus fell short of an unlimited intellectual toler-
ation he yet furnished an immortal statement of reasons to
guide us to an unabridged freedom of utterance, and to the
invalidating of his own exception thereto.


To this same period belong the writings of Spinoza. As
is to be expected, his viewpoint is different from the others
of his time.

He concludes : "We have shown already that no man's mind
can possibly lie wholly at the disposition of another, for no
one can willingly transfer his natural right of free reason and
free judgment, or be compelled to do so. For this reason the
government which attempts to control minds is accounted
tyrannical, and it is considered an abuse of sovereignty, and
a usurption of the rights of subjects, to seek to prescribe what
shall be accepted as true, or rejected as false, or what opinions
shall actuate men in their worship of God. All these questions
fall within a man's natural right, which he cannot abdicate
even with his own consent. * * * * The individual justly cedes
the right of free action, though not of free reason and judg-
ment. No one can act against the authorities without danger
to the State, though his feelings and judgment be at variance
therewith. He may even speak against them, provided that
he does so from rational conviction, not from fraud, anger,



or hatred, and provided that he does not attempt to introduce
any change on his private authority. * * * * Thus we see how
an individual may declare and teach what he believes, without
injury to the authority of his rulers, or to the public peace;
namely, by leaving in their hands the entire power of legis-
lation as it affects action; and by doing nothing against their
laws though he be compelled often to act in contradiction to
what he believes, and openly feels to be best. From the funda-
mental notions of a State, we have discovered how a man
may exercise free judgment without detriment to the supreme
power ; from the same premises we can no less easily determine
what opinions would be seditious. Evidently those which by
their very nature nullify the compact by which the right of free
action is ceded. * * * *

"If we hold to the principle that a man's loyalty to the
State should be judged, like his loyalty to God, from his actions
only namely from his charity towards his neighbors we
cannot doubt that the best government will allow freedom of
philosophical speculation, no less than of religious belief. I
confess that from such freedom inconveniences may sometimes
arise, but was any question ever settled so wisely that no
abuses could possibly spring therefrom? He who seeks to
regulate everything by law is more likely to arouse vices than
to reform them."

From these quotations it appears that Spinoza did not
believe in an unabridged freedom of utterance. His belief
in the psychologic crime of a mere verbal treason, though
limited within unusually narrow range, followed logically from
his erroneous conception of the sphere of government. Of this
he said : "The rights of the sovereign are limited by his power."
Since in his theory of government sovereign rights arise out
of a cession of freedom of action by the citizen, the opinion
which nullified that hypothetical compact could be called
treason so long as the sovereign had the power to suppress it
as such. It is quite probable, and at least consistent with his
theory, that this exception may have been made by Spinoza
as a condition of securing tolerance for the rest of the argu-
ment in favor of free speech.

However that may be, as Spinoza repudiated the exception
to unabridged freedom of utterance reserved by Milton, so
the latter annihilated the one exception made by Spinoza. The
premises of each exception were specifically repudiated by the


American Declaration of Independence and American Consti-
tutions, and hence these exceptions to unabridged liberty of
utterance also must fall. However, the matter that I now wish
specially to emphasize is this : The very nature of these argu-
ments for larger freedom is such as utterly to destroy our
judical assumption that the friends of unabridged freedom
of utterance, who framed our Constitutional Guarantees,
meant only to provide for ex post facto punishment as a
substitute for previous restraint.


Some years after the death of Milton came the birth of
Montesquieu, who "commanded the future from his study
more than Napoleon from his throne," and whose book on
"The Spirit of the Laws" "probably has done as much to
remodel the world as any product of the eighteenth century,
which burned so many forests and sowed so many fields."

In the opinion of Justice O. W. Holmes, "Montesquieu had
a possibly exaggerated belief in the power of legislation,"
which alone would not predispose him against censorship.
The frequent reference to him in The Federalist and other
discussions of the revolutionary period, as well as our Constitu-
tions themselves, all show how the thought provoked by his
book helped to shape our Institutions. This makes it all the
more important to ascertain his views upon the province of
the State in relation to the liberty of speech and press, because
of their quite direct bearing upon the historical interpretation
of our Constitution.

On the subject of religion, he emphasizes the essential
difference between human and divine laws, and argues reserv-
edly for general toleration of all religion, and concludes:
"When the legislator has believed it a duty to permit the
exercise of many religions it is necessary that he should enforce
also a toleration among these religions themselves. * * * *
Penal laws ought to be avoided in respect to religion."

In the matter of verbal treason, Montesquieu seems very
exact in his statements and comprehensive in his thought.
Only a few lines will need quoting. He says : "Nothing
renders the crime of high treason more arbitrary than declaring
people guilty of it of indiscreet speeches. * * * * Words do
not constitute an overt act ; they remain only an idea. When
considered by themselves, they have generally no determinate



signification, for this depends on the tone in which they are
uttered. * * * * Since there can be nothing so equivocal and
ambiguous as all this, how is it possible to convert it into a
crime of high treason? Wherever this law is established, there
is an end not only of liberty, but even of its very shadow. * * * *
"Overt acts do not happen every day ; they are exposed to
the naked eye of the public, and a false charge with regard
to matters of fact may be easily detected. Words carried
into action assume the nature of that action. Thus a man who
goes into a public market-place to incite the subject to revolt
incurs the guilt of high treason, because the words are joined
to the action, and partake of its nature. It is not the words
that are punished but an action in which words are employed.
They do not become criminal but when they are annexed to
a criminal action; everything is confounded if words are con-
strued into capital crime, instead of considering them only as
a mark of that crime.""

In this evolution to a clearer conception of the issues and
the more exact statement of the claims of contending parties,
we have now reached the place where unabridged intellectual
liberty is defined by excluding from the category of crime
every offense founded upon speech, merely as such.


Blackstone was the victim of most of the popular super-
stitions of his time, from witchcraft down. Of course he
indorsed the current theory of government and consequently
the current abridgments of freedom of speech and press. He
had no desire or intention to vindicate man's natural right
to such liberties unabridged, but approved and made declara-
tions of the laws in operation, as he found them. Thus he
wrote : "Everything is now as it should be with respect to the
spiritual cognizance, and spirtual punishment of heresy; unless
perhaps that the crime ought to be more strictly defined, and
no persecution permitted, even in the ecclesiastical courts, till
the tenets in question are by proper authority previous declared
to be heretical. Under these restrictions, it seems necessary
for the support of the national religion that the officers of
the church should have power to censure heretics, yet not to
harrass with temporal penalties, much less to exterminate or
destroy them.""

These spiritual censures and excommunication involved

"Vol. I., p. 233, Aldine Edition.
"Vol. 4 Commentaries, p. 49.



indirect penalties, such as incapacity for "suing an action,
being witnesses, making a will, receiving a legacy," etc., and
these indirect consequences it would seem that Blackstone

Again he writes: "The [some not unabridged] liberty of
the press is indeed essential to the nature of a free state; but
this consists in laying no previous restraints upon publications,
and not in freedom from censure for criminal matter when
published. * * * * To subject the press to the restrictive power
of a licenser, as was formerly done, * * * * is to subject all
freedom of sentiment to the prejudices of one man, and make
him the arbitrary and infallible judge of all controverted points
in learning, religion, and government. But to punish, as the
law does at present, any dangerous or offensive writings which,
when published, shall on a fair and unpartial trial be adjudged
of a pernicious tendency, is necessary for the preservation of
peace and good order, of government and religion, the only
solid foundations of civil liberty." 18

It should be apparent from the mere reading that Black-
stone was defending and describing only such limited liberty
by permission as was then enjoyed in England, and never in-
tended either to define or defend unabridged freedom of dis-
cussion, as that was contended for by his opponents, whose
views, and not Blackstone's, were adopted into our Constitu-
tions. For this reason, one may well be surprised to find the
foregoing statement from Blackstone quoted by American
courts as an authority on the meaning of unabridged freedom
of utterance, which he never mentions.

One of Blackstone's critics, whose book went through more
than one edition and of whom it is said, 19 "he induced the
learned commentator [Blackstone] to alter some positions in
the subsequent edition of his valuable work," had this to say
as to the meaning of unabridged freedom of speech :

"For, though calumny and slander, when affecting our
fellow men, are punishable by law ; for this plain reason,
because an injury is done, and a damage sustained, and a repara-
tion therefore due to the injured party; yet, this reason cannot
hold where God and the Redeemer are concerned; who can
sustain no injury from low malice and scurrilous invective;
nor can any reparation be made to them by temporal penalties ;
for these can work no conviction or repentance in the mind of
the offender; and if he continue impenitent and incorrigible,

18 Vol. 4 Blackstone's Commentaries, p. 151.
19 Allibone's "Dictionary of Authors."



he will receive his condign punishment in the day of final
retribution. Affronting Christianity, therefore, does not come
under the magistrate's cognizance, in this particular view, as
it implies an offense against God and Christ." 20 Here is again
a clear recognition and plain statement which, like Montes-
quieu's, demands that actual and material injury shall be the
basis of prosecution and not mere speculation about psychologic


Some of our courts, in addition to Blackstone, cite Lords
Mansfield and Kenyon, as authorities on the meaning of un-
abridged freedom of utterance as though their views had been
adopted into our Constitutions. Concerning these opinions,
Sir James Fitz James Stephens (after quoting the differing
definitions of Lords Mansfield and Kenyon as showing what
was the official conception of freedom of the press) says:
"Each definition was in a legal point of view complete and
accurate, but what the public at large understood by the ex-
pression was something altogether different namely the right
of unrestricted discussion of public affairs." 33

In other words, the judicial conception of free speech was
an abridged free speech, and the popular demand was for an
unabridged free speech. It should need no argument to prove
that the latter, and not the former, was intended to be adopted
into American Constitutions, and to me it is difficult to account
for the contrary opinion, often expressed by our courts, which
quite uniformly ignore even the existence of the pre-revolu-
tionary contention against the English official conception as
expressed by the Star Chamber, the English Parliament, Black-
stone, Mansfield, or Kenyon.


The issue between "freedom of the press" in the official
English sense, on the one side, and unabridged freedom of
utterance on the other, was made clear in another English
controversy following so closely upon the heels of our adoption
of the first amendment as to be fairly considered an English
aftermath of that agitation and of the American Revolution.

Bishop Horsley, on January 30, 1793, delivered a sermon
before the House of Lords, wherein he indulged in a severe
censure of that "Freedom of dispute" on matters of "such

"Furneaux's "Letters on Toleration," pp. 70-71, Second Edition.
"Vol. 2 "Grim. Law of Eng.," p. 349.



high importance as the origin of government and the authority
of sovereigns," in which he laments that it has been the "folly
of this country for several years past" to indulge. Of the
divine right of Kings he declared: "It is a right which in no
country can be denied, without the highest of all treason. The
denial of it were treason against the paramount authority of

These premises had recently been repudiated by our
Declaration of Independence, by the American Constitutions,
and by the friends of unabridged freedom of utterance every-
where. One of the conspicuous critics of Bishop Horsley
was the Rev. Robert Hall. In arguing against the rightfulness

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