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fluence of his opinions."

As proof of the assertion that a demand for certainty
in the criteria of guilt always was a part of the agitation for
more freedom of speech and press, we need but to point out
that vast literature which was brought into being against
constructive treason and seditious libel. Erskine's speeches
are replete with the glorification and demand for such certainty.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

Here it is only necessary to call attention to its existence as a
part of the agitation for enlarged liberty. The discussion of
the question is better treated as a subdivision of an argument
to support the contention that "Due Process of Law" does
not obtain unless every criminal statute prescribes the criteria
of guilt with mathematical certainty.

IN CONCLUSION.

This historical review of the contentions which resulted in
the adoption of our constitutional guarantees for an unabridged
freedom of speech and of the press, is already too long for
comfortable reading, and not long enough to be anything like
an exhaustive treatise. I believe, however, that it adequately
establishes the following propositions:

I. The contention for an UNABRIDGED freedom of
utterance was always founded upon a demand for unrestrained
intellectual opportunity, and never concerned itself primarily
with preferences between different methods of abridging that
freedom.

II. It opposed all past and existing restrictions upon in-
tellectual intercourse, such as licensing printers or books,
censoring the post or other means of transmission, putting
taxes upon knowledge, and inflicting ex post facto punish-
ments; and our Constitutions not only sought to prevent a
recurrance of any of these former methods of abridging in-
tellctual opportunity, but the antecedent discussion and the
language used clearly express the determination to preclude
the enforcement of any other, even theretofore untried,
methods of curtailing intellectual intercourse, although again
claimed to be advocated for the furtherance of the public
welfare.

III. The demand for unabridged freedom of utterance
always was a demand for the abolition of all mere psychologic
crimes and all that uncertainty which attended them from the
fact that the criteria of guilt were usually "the evils which
may be imaginatively and prospectively attributed to the in-
fluence of one's opinions"; and the co-related demand that
crime should always be predicated upon a certainty, such as
an actual and material injury, or perhaps also the imminent
danger of such, according to the known laws of the physical
universe.

238



INTERPRETATION OF FREEDOM OF SPEECH AND OF THE PRESS.

If we generalize all these contentions for a larger and an
unabridged intellectual opportunity, we shall have a compre-
hensive statement of the historical interpretation of unabridged
freedom of speech and of the press, and if the form of state-
ment is such as to furnish us with the criteria for determining
a breaching of the constitutional guarantee, we shall have
a statement in substance like that at the beginning of this
chapter.

If then we wish to determine whether or not any given
law is violative of the free-press clause of our constitutions
we must deductively apply to the law the several tests stated
at the beginning of this chaper. Doing this, with reference
to our laws prohibitive of sex-discussion I find them, in their
separate parts, to be unconstitutional, under the second, fourth,
and fifth, test of constitutionality.

One thing is certain as death: Nobody intended that our
constitutions should increase the governmental authority to
penalize the transmission of ideas. If it shall be held that
the constitutions were not designed to enlarge intellectual
opportunity, as has been hereinbefore contended, then the
only alterative is the proposition that the constitutional in-
hibition against abridging freedom of utterance prohibits only
such legislation as restricts it beyond then existing abridg-
ments. In Chapter III. it has been shown that under the
common-law, as it obtained in the American colonies, ''obscene"
literature was never penalized merely on account of its
"obscenity." So then even under this anti-historical and
most narrow interpretation, the statutes now under consider-
ation are unconstitutional because they abridge freedom of
utterance beyond the existing restrictions of colonial common-
law.



239



CHAPTER XII.

SCIENCE versus JUDICIAL DICTUM.

A STATEMENT OF NOVEL CONTENTIONS AND

A PLEA FOR OPEN-MINDEDNESS.*

The occasion for this discussion arises primarily from the
fact that when "obscene" literature and art were penalized,
none of the statutes prescribed any test by which to determine
the dividing line between that degree of obscenity which is
criminal and that which is only a matter of bad taste, and
non-criminal. In harmony with the pre-dominant opinion of
that time, legislatures assumed, and courts decreed, that all
humanity have an innate, and uniform, sense of modesty and
decency, by which we may acquire a direct sense-perception
of the "obscene" qualkies of a book or picture. If this as-
sumption is true, the judicial superstructure is impregnable.

If, on the other hand, that assumption is untrue, and our
sense of decency, obscenity, etc., is a matter of education and
experience, or is determined by each according to his personal
sex-sensitiveness, or his emotional and ideational associations ;
determined by personal habits and moral idiosyncrasies, and
is variable as these factors are variable ; or if it shall develop
that the only elements of unification generalized in the word
"obscene" are wholly subjective to the Judge or Juror, or
other person passing judgment, and not inherent in the book
itself, then it might follow that all these laws are a nullity for
want of a statutory definition of the crime, for while ignorance
of the existence of a law can excuse no one, yet ignorance
of the meaning of an undefinable criminal law must excuse
everybody.

First we will exhibit the judicial dictum that the limits
and test of "obscenity" are a matter of common knowledge
and therefore need no statutory definition. This will be fol-
lowed by the judicial statement of reasons for believing in an
innate sense of the obscene and of the modest. These may be

* Revised from The Alienist and Neurologist.

240



SCIENCE VERSUS JUDICIAL DICTUM.

contrasted with the contrary conclusions of the scientist. The
issues thus formed will be followed by a statement of some
of the evidences which support the contrary view of the
scientists.

ARE TESTS OF "OBSCENITY^ COMMON KNOWLEDGE?

Our courts have answered this question in the affirmative,
but they promptly contradict that statement by framing mu-
tually destructive tests of "obscenity" such as no dictionary-
maker or other person of ordinary intelligence ever thought
of. This is to be expected so long as judges, without hearing
argument or considering a single factor of the scientific aspect
of the problem, assume to determine the facts of natural
science by mere dogmatic, judicial dictum. That is precisely
what has been done.

Thus it is said: "The statute does not undertake to de-
fine 'obscene' or 'indecent/ * * * * The words are them-
selves descriptive. * * * * These are matters which fall
within the range of ordinary intelligence." 1

If the quoted words mean only that each person within
his fund of common knowledge includes a knowledge as to
what he personally deems to be "obscene," then the statement
may be true, but is certainly unimportant. If, on the other
hand, it is asserted that common knowledge will enable us to
know under all circumstances what everyone else must deem
"obscene" in all conceivable cases, and that all our judgments
in such matter are alike, then the statement is untrue, and
because untrue the statute is a nullity on account of the uncer-
tainty as to what it penalizes.

Likewise the Supreme Court of the United States has
implied much the same thought as the N. Y. Court when the
former used these words "Everyone who uses the mails * *
* * must take notice of what in this enlightened age is meant
by decency, purity and chastity in social life and what must
be deemed obscene, lewd and lascivious." 2

This is true if all humans have an innate or intuitional
and uniform conception of what the words in question sym-
bolize. But such empty judicial rhetoric does not help us
to a solution of the real question, which is : Have we such a
uniform, innate or intuitional, immediate sensuous cognition

1 People vs. Mnller, 96 N. Y. 410.
3 U. S. vs. Rosen, 161 U. S. 42.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

of the "obscene," as to preclude the necessity for a statutory
definition of that element of the crime?

Another court used these words: "There are in the lan-
guage, words known as words obscene in themselves. It is
not necessary in order to make a book obscene that such words
should be found in it. * * * A book is said to be obscene
which is offensive to decency or chastity, which is immodest,
which is indelicate, impure," etc., etc. 8

To those seeking accuracy of description for statutory
crimes, the use of such mystifying epithetic tautology is not
very reassuring as to the clarity of the judicial vision which
could mistake it for a definition. Likewise the appeal to the
consensus of opinion in "this enlightened age" has been made
in support of every superstition that has ever paralyzed the
human intellect. It would be more reassuring if judges had
given, or would give, us a test of obscenity, in terms of the
objective, sense-perceived qualities of literature, by which
test alone we could unerringly and with unavoidable uniform-
ity, draw the same, exact, unshifting line of partition between
what is obscene and what is pure in literature, no matter who
applies the test. Until they furnish such a test to us, their
dogmatic assurance that "this enlightened age" possesses such
undisclosed knowledge of standards, is not very satisfactory.
Without such a test, there is no uniform law to control our
conduct, nor that of our courts or juries.

The universally implied judicial assumption, that all have
a uniform, innate sense of obscenity and decency, by which
we all draw the same line of demarkation between the two
had its origin farther back in our juridical history when such
problems had a different aspect, even among scientists. By
the unavoidable, yet often unfortunate, judicial habit of fol-
lowing precedent, courts have continued the error long after
scientists have abandoned the old foundation for it.

We shall presently see that our judicial notions about
the innateness of our knowledge as to standards of "obscen-
ity" had their origin deep in the religious sentiments of the
time when these laws were passed and received their first
judicial interpretation. Later we will be reminded of the
great change which has remoulded our religious as well as our
scientific beliefs, so as to necessitate an abandonment of the
premises upon which the courts built their idea of the in-
tuitive character of our knowledge of the "obscene."

U. S. vs. Bennett, Fed. Case No. 14571.

242



SCIENCE VERSUS JUDICIAL DICTUM.
THE COURTS ON THE ORIGIN OF MODESTY.

First then we will study the foundation of the judicial
dictum upon the psychologic question which is here involved.
The most complete judicial vindication of the idea that our
conception of modesty is innate and therefore uniform in all
humanity, is found in Ardery vs. the State, 56 Ind. 329, de-
cided in 1877. Then the court said: "Immediately after the
fall of Adam, there seems to have sprung up in the mind an
idea that there was such a thing as decency, and such a thing
as indecency, * * * and since that time, the idea of decency
and indecency have been instinctive in and, indeed, a part of,
humanity. And it historically appears that the first most
palpable piece of indecency in the human being was the first
public exposure of his or her, as now commonly called, pri-
vates; and the first exercise of mechanical ingenuity was the
manufacture of fig-leaf aprons by Adam and Eve, in which
to conceal from the public gaze of each other their now but
not then called privates. This example of covering their pri-
vates has been imitated by all mankind since that time, except
perhaps by some of the lowest grades of savages. Modesty
has ever existed as one of the most estimable and admirable of
human virtues." 4

A similar conclusion is expressed by a Federal Judge.
"There is in the popular conception and heart such a thing
as modesty. It was born in the Garden of Eden. After Adam
and Eve ate from the fruit of the Tree of Knowledge they
passed from that condition of perfectibility which some people
nowadays aspire to, and, their eyes being opened, they dis-
cerned that there was both good and evil, 'and they knew that
they were naked, and they sewed fig-leaves together, and made
themselves aprons.' From that day to this, civilized man has
carried with him a sense of shame the feeling that there
were some things on which the eye the mind should not
look, and where men and women become so depraved by the
use, or so insensate from perverted education, that they will
not veil their eyes, nor hold their tongues, the government
should perform the office for them in protection of the social
compact and the body politic." 5

This question-begging, by implications made from such
phrases as "protection of the social compact and the body

4 Ardery vs. State, 56 Ind. 829, A. D. 1877.

* U. S. vs. Harman, 45 Fed. Rep. 423, A. D. 1891.

243



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

politic," we must pass by, as the phrase itself belongs to an age
of outgrown political speculation. So also the outrageously
absurd assumption that persons may properly be denounced
as moral degenerates if they have become so insensate to sen-
sual suggestions that they can view nude humans without
being ashamed, because not sexually excited nor afraid of the
judgment of those who are. To many it will seem as though
the sexually insensate ones are more clean-minded and decent
than the judge who denounces them. However, in passing we
may mention that the same opinion admits that some have
"blunted sensibilities" and others acute sensitiveness, from
which it follows that our sense of modesty, etc., is not always
uniform, nor affords any certainty or uniformity in the en-
forcement of these laws.

THE CHANGES WROUGHT BY SCIENTIFIC PROGRESS.

Since 1877, when the Ardery case was decided, a great
change has come to the entire intellectual world. In 1908
the public press proclaimed that a commission of scholarly
Catholics, appointed by the Pope, had made a report to the
effect that the books of Moses are not infallible and cannot be
accepted as being in all respects literally true. Such state-
ments are particularly weighty when we remember that the
Roman Catholic Church, in such matters, is so extremely con-
servative as to be often stigmatized as reactionary.

In a recent Catholic cyclopedia, Benziger's Library of
Science, the Jesuit Fathers show their accord with the main
features of the doctrine of organic evolution. No Catholic,
with even moderate scientific intelligence, has within two dec-
ades expressed any disagreement with the Jesuit Father,
Erich Wasman of Luxemburg, when in his work, Modern Biol-
ogy and the Theory of Evolution, he says: "The theory of
evolution to which I subscribe as a scientist and a philosopher
rests on the foundations of the Christian doctrine which I
hold to be the only true one." Innumerable Catholic scientists
have similarly expressed acceptance of the scientific doctrine of
organic evolution. 6

While, of course, there is still much controversy as to
detail and incidental matter, it can be truthfully said that as
between the dogmas of special creation and fixity of type,
and the general features of the doctrine of organic evolution,

For some discussion of this see: HaeckePs "Last Words on Evolution."

244



SCIENCE VERSUS JUDICIAL DICTUM.

there is no longer any disagreement among educated persons.

As is to be expected, the Protestant scientists are even
more outspoken than the Catholic in accepting the results of
modern scientific research, and the doctrine of organic evolu-
tion is now being taught in all the theological seminaries of
Europe and America. The story of creation as related in
Genesis is accepted everywhere as being a myth or an allegory.

We may here content ourselves with a single quotation
showing the present attitude of the great mass of educated
present-day Christians toward a ready acceptance of new
statements of scientific truth. Prof. James B. Pratt, of
Williams College, says this: "It [religion] must forever be
sloughing off an old shell and growing a new one. The shell
indeed is important ; but woe to the religion which identifies
its life with its shell, or refuses to part with its shell when it
has ceased to be a protection and has become a clamping,
choking incumbrance to the growth of its inner life. * * * *
If Christianity today should identify itself with the infalli-
bility of the scriptures, or with the creation according to
Genesis, or with any of the dogmas of Christology, it would
condemn itself to swift decay." 7

Creation, the fall of man, and the fig-leaf apron, according
to Genesis, in their literal interpretation are no longer be-
lieved to be true by any Christian with scientific education,
and thus disappears the original foundation upon which rested
the judicial opinions that humans, in the Garden of Eden, ac-
quired an innate and therefore uniform sense of the obscene,
the modest, etc.

SCIENTISTS ON MODESTY AS AN INSTINCT.

The judicial dictum that modesty, as innate in man, in-
duced the concealment of the human form, is not very im-
portant in itself. However the discussion of the question is
very material to the problem under consideration, because the
evidence bearing upon that issue will illuminate the whole
subject of the psychology of modesty, and especially help us to
determine whether or not (within the limit of certainty essen-
tial to the validity of a criminal statute) "obscenity" is de-
finable in terms of a book or picture, or is at all a quality resid-
ing in the thing contemplated, or, on the contrary, whether it
is indefinable because resident exclusively within and depend-

7 The Psychology of Religious Belief, 287.

245



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

ent upon the peculiar intellectual and emotional associations
and predisposition of the contemplating mind.

The judicial assumption was that modesty is innate and
intuitive, and therefore antedated and induced the use of
clothing. Now will be quoted the contrary conclusion of
scientists, that modesty instead of being the cause is an ef-
fect, a mere artificial, varying and unstable psychologic con-
sequence, produced chiefly by the wearing of clothing.

Prof. Edward Westermarck, Ph.D., of Finland.
Westermarck (Hist, of Marriage, p. 211.,) after a careful
review of the evidence, says: "These facts appear to prove
that the feeling of shame, far from being the original cause of
man's covering his body, is, on the contrary, a result of this
custom; and that the covering, if not used as a protection from
the climate, owes its origin, at least in many cases, to the de-
sire of men to make themselves attractive." 8

Prof. Ch. Letourneau, of Paris.

"In a former work 9 I have attempted to trace the genesis
of a sentiment peculiar to humanity the sentiment of mod-
esty. It would be inexpedient here to treat the subject afresh
in detail, but I will recall the conclusions arrived at by that
investigation. Modesty is par excellence a human sentiment,
and is totally unknown to the animals, although the procrea-
tive need inspires them with desires and passions essentially
identical with what in man we call love; it is therefore cer-
tainly an artificial sentiment, and comparative ethnology
proves that it must have resulted from the enforced chastity
imposed on women under the most terrible penalties." 10

Geoffrey Mortimer, of England.

"There seems to be no doubt whatever that clothing was
adopted for warmth and decoration, and not from motives of
decency. Drapery has always served to inflame sexual pas-
sion, and some tribes have regarded all garments as indecent.
Mr. Wallace found the Brazilian Indian woman who put on a
petticoat almost as ashamed of herself as civilized people
would be if they took theirs off. Only prostitutes clothe
themselves among the Saliras, and they dress to excite through
hiding the body. * * * As Westermarck says: "It is not the

8 Requoted from 7th Ed. of Krafft-Ebing, Psycopathia Sexualis, p. 15. Ser
also: Ellis' Studies in the Psychology of Sex (Modesty) p. 38.

9 L' Evolution de la Morale.

10 Letourneau, Evolution of Marriage, 56.

246



SCIENCE VERSUS JUDICIAL DICTUM.

feeling of shame that has provoked the covering, but the
covering that has provoked the feeling of shame.' * * * Its
[modesty's] origin was not in morality and a native sense
of decency, though modesty is now estimated as moral and
decent/' 11

Prof. Th. Ribot, of France.

"The conditions of its [modesty's] origin is little under-
stood. H. Spencer and, after him, Sergi, maintain that it
results from the habit of wearing clothes, which began with
man (not with woman) from motives of ostentation and or-
nament. * * * Besides this special mode of expression [blush-
ing] modesty shows itself by concentric, defensive movements,
by a tendency to cover or disguise certain parts of the body.
The means employed to this end are of the most various
description according to race, country or period: Some hide
the whole body, some the sexual parts only, or the face or
bosom, some paint the body, or the face, etc. It is impossible
to determine the exact part played in this diversity by cir-
cumstances, climatic conditions, and the association of ideas,
compulsion, fashion, imitation, and even change." 12

Charles Darwin.

Darwin expresses his belief "that self -attention directed
to personal appearance, in relation to the opinion of others,"
and "not to moral conduct" is the fundamental element in
shyness, modesty, shame and blushing. 18

Prof. William I. Thomas, of University of Chicago.
"The native assumption that men were ashamed because
they were naked, and clothed themselves to hide their naked-
ness, is not tenable in the face of the large mass of evidence
that many of the natural races are naked and not ashamed of
their nakedness ; and a much stronger case can be made out for
the contrary view, that clothing was first worn as a mode of
attraction and modesty then attached to the act of removing
the clothing.

"But while we find cases of modesty without clothing and
of clothing without modesty, the two are usually found to-
gether, because clothing and ornament are the most effective
means of drawing the attention to the person. Sometimes by

11 Chapters on Human Love, by Geoffrey Mortimer, pp. 37, 38, 40, 41.

"Ribot, Psychology of the Emotions, 272.

13 Expression of Emotions in Man and Animals, pp. 325-327.

247



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

concealing it and sometimes by emphasizing it. * * * * We
recall the psychological standpoint that the emotions are an
organic disturbance of equilibrium occurring when factors
difficult of reconciliation are brought to the attention. * * *
When the habits are set up and are running smoothly, the
attention is withdrawn, and nakedness was a habit in the un-
clothed societies, just as it may become a habit now in the
artist's model. * * * When once a habit is fixed, interfer-
ence with its smooth running causes an emotion. The nature
of the habit broken is of no importance. If it were habitual
for grande dames to go barefoot on our boulevards or to wear
sleeveless dresses at high noon, the contrary would be em-
barrassing." 14

Dr. Paolo Mantegazza, of Italy.

"I acknowledge that I myself, as the years went by,
changed the idea I first had of modesty, and which I treated
in the Physiology of Pleasure. At first it seemed to me a
sentiment that rises within us in childhood and youth, spon-
taneous as egotism, self-respect, love ; and then, again, I be-
came persuaded that modesty is taught first and learned
afterward ; for which reason it is one of those sentiments
which I term acquired or secondary. ***** ^he animals
demonstrate to us some forms emanating from modesty. Many



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