Theodore Albert Schroeder.

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

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ot them conceal themselves in order to offer sacrifice to
voluptuousness; numerous females sought by the male begin
by fleeing, resisting, by hiding that which they desire to con-
cede. And this is probably an irreflective automatic act; it is,
perhaps, a form of fear, which rises before the aggressive
requirements of the male ; these flights, these resistances, these
phantoms of modesty have the scope to excite the female as
much as the male, and to prepare the soil more suitable for

fecundation Sherihat ordered the Turkish

women to cover the back of the hand, but permitted them to
expose the palm. The Armenian women of Southern India
cover the mouth even at home, and when they go out they
wrap themselves in white linen. The married live in great
seclusion and for many years they cannot see their male
relatives and conceal their faces even from the father-in-law
and mother-in-law. These two examples, selected from a thou-
sand that might be cited, suffice to persuade us that acces-
sory and conventional elements are often joined to true mod-

"Prof. Thomas' Sex and Society, pp. 207 to 218.



esty which, physiologically considered, do not belong to it
We, ourselves, without leaving Europe, find that the confines
of modesty are marked in many countries by the various
fashions, not according to morality or the requirements of sex,
but according to national mode of dress. He who exchanged
these conventional elements for modesty could write the great
psychological heresy, that this sentiment had its origin in the
custom of covering one's self.

"The sentiment of modesty is one of the most changeable
in form and degree, and we will write its ethical history in the
volume which we will dedicate to the ethnology of love. Thus
without going further than our race and time, we have women
who would let themselves die rather than subject themselves
to an examination with the speculum, and we have men of
great intelligence and lofty passions who confess that they
feel scarcely a shadow of modesty. * * *

"Modesty is one of the choicest forms of seduction and
of the reticence of love ; it is an extra current of the great
fundamental phenomena of generation ; it is a physical respect
of one's self; it is one of those psychical phenomena of the
highest order. ***** if the sentiment of modesty were
not a great virtue, it would be the most faithful companion
of voluptuousness, the greatest generator of exquisite joys.
An ardent thirst and an inebriating bowl ; what joy, but what
danger of satiety." 15

To discuss the issue thus joined will be the purpose of the
immediately succeeding chapters, and these will deal unavoid-
ably with unusual factors, mainly in the realm of sexual
psychology, which are essential to a determination of the
psychic essence of "obscenity." To the lawyer whose learning
is limited to a memory-knowledge of judicial precedent, the
new psychologic propositions to be contended for may seem
a bit startling. Knowing that the disturbance of long fixed
mental habits and the disruption of their association with
intense moral-sentimentalism, usually produces an inhibition
against the assimilation of the -disturbing and disrupting
argument, I feel it necessary now to devote some space to a
plea for open-mindedness for the considerations supporting
the following proposition :

"The Physiology of Love, pp. 91 to 97.



indecent'' are never qualities of literature or art, and therefore
are never a matter of sensory cognition, discoverable b\
unerring and uniform standards inductively derived from the
nature of things, but, on the contrary, these qualities reside
always and exclusively in the contemplating mind, and arc
merely read into, or ascribed erroneously to, the book or
picture. In various ways this will be proven to a demonstra-
tion. By a critical psychological analysis, it will be shown that
the only unifying element generalised in the word "obscene'
(that is the only thing common to every conception of obscenity
and indecency} is subjective, is an affiliated emotion of dis-
approval, which, under varying circumstances of temperament
and education, is different in different persons, and in each
person at different stages of development, and is arousal
peculiarly and distinctively in each individual, differently from
other persons, to varying degrees of intensity by each of
various stimuli, and so has become associated differently in
different persons with an infinite variety of ever-changing
objectives, having not even one common element in objective
nature (in literature or art}.

The before stated contention will be re-info reed by an
array of facts of ethnography and sexual psychology, exhibit-
ing the great diversity in the foci of indecency and modesty ;
by a psychologic study of modesty showing that in actual
practise judgments of modesty are usually the fear-imposed
verdict of others and not rational convictions, nor deductions
made from a uniform standard derived from nature, or
established by statute; by a study of the uncertainty of the
moral-test of "obscenity" to show it to be equally void of
definite standards ; by an exhibition of the varieties of official
modesty and of some mutually destructive factors of the
judicial legislation creating tests of "obscenity"; by authori-
tive confessions of their uncertainty ; and by some illustrative
applications of these tests to exhibit their utter absurdity.

All this is to the point that neither nature, common
knowledge, science, nor the statute does or can furnish u?
with such a definition of the crime such criteria of guilt
that it must unerringly fix the same unshifting line of partition
between the criminally obscene and that which is innocent,
when applied, no matter by whom, to every book or picture in



the broad borderland of the literature of doubtful "purity."'
This fact will be co-ordinated with established legal maxims,
as indispensable and controlling elements of constitutional
construction. Although it is not absolutely essential to the
correctness of my conclusions, I believe all this to be true
because the only element of unification generalized in the
word "obscene" is not in the quality of a book or a picture but
exists solely in the contemplating mind.


The conflict between the before quoted judicial dictum
and the later scientific conclusions, forms the issues now to be
investigated. Before marshalling any of the evidence it is
desirable to restate that issue of science and again to indicate
the legal consequences toward which the conclusion should
lead us.

We are to determine whether modesty is an innate at-
tribute of all humans, a part of human nature itself and
therefore a matter within the range of ordinary intelligence
resulting in uniform judgments by a uniform intuitive stand-
ard; or whether, if those judgments are not instinctively alike,
they are so variable and uncertain as to make a statutory
definition essential to uniformity in the execution of the
criminal statutes in question, and therefore essential to the
constitutionality of the statute.

In other words, is "obscenity" a matter of sense-
cognition, discoverable by unerring and uniform standards,
existing in the nature of things, or does it exist wholly within
the contemplating mind, so that every verdict or judgment is
therefore dependent, not upon the letter of any general law,
but in each person according to his personal whim, caprice,
prejudice, "moral" idiosyncracies, varying personal ex*- :
ences and different degrees of sexual hyper-astheticism or of
intelligence about sexual psychology? If the latter, then the
statute is clearly void for uncertainty. These issues of science
we will now investigate.

I am aware how offensive some of the above claims must
seem to those who may have given little or no critical thought
to sexual psychology, and who therefore have not even dreamed
that such a question could be raised. After this propo-
sition was first advanced by me, in a paper before the XV
Congres International de Medicine, held at Lisbon, April, 1906,



some quasi-scientists have dogmatically expressed their emo-
tional aversion to such a conclusion, but not one has had the
courage to try to answer the argument. Expert psychologists,
however, have expressed their agreement with my conclusions.
However, the little teapot storms which my proposition raised
in the minds of a very few people, credited with intelligence,
again warns me that I am disrupting old convictions, resting
upon established emotional associations, and that, therefore, I
cannot hope for an open-mind even in the reader of more than
average intelligence and that again I must take valuable space
to plead for intellectual hospitality for my argument.


To this end let me recall the well known anecdote of the
Royal Society, to whom King Charles II proposed that they
explain how it came that a vessel of water weighs no more
after having a live fish put into it, though it does if the fish be
dead? Various solutions of great ingenuity were proposed,
discussed, objected to, and defended. After long bewilder-
ment, it occurred to some one to try the experiment, and it was
found that the fact to be explained existed only in the mind of
the monarch. 16

So now, I beg you to be patient with an argument which
may prove to you that almost daily we are sending persons
to a felon's cell, and are gravely discussing certain alleged
"evils" which the criminal law is designed to suppress, with-
out ever seriously inquiring if the facts which determine guilt
exist anywhere except in the imagination of the judge and
jury who try the accused.

It was objected to the system of Copernicus, that if the
earth turned upon its axis, as he represented, a stone dropped
from the summit of a tower would not fall at the foot of it
but a great distance to the west, in the same manner as a stone
dropped from the mast-head of a ship moving at full speed
does not fall at the foot of the mast but toward the stern.
To this it was answered that a stone being part of the earth
obeys its laws and moves with it ; whereas it is no part of a
ship, of which its motion is therefore independent. The solu-
tion was admitted by some and opposed by others with great
earnestness. It was not until one hundred years after the
death of Copernicus that an experiment demonstrated that

16 Famous Pamphlets, p. 255.



a stone thus dropped from the mast-head does fall at the foot
of it. 17

Could there be any harm if we made a scientific inquiry
to ascertain if all the "obscenity" which we criminally punish
has any existence outside of the mind and emotions of those
whose unreasoned predispositions or emotional associations
are offended ? The laws against imaginary crimes are annulled
when we destroy the superstition, if such it is, which is an
indispensable assumption of the statutes.


As I contemplate the difficulty of my present unpopular
task, I am again and again impressed that it is not unlike
that of a lawyer who should have presumed to appear before
an English Judge of three centuries ago and seriously endeav-
ored to persuade him that there were no such beings as
witches. There are many things in common between the be-
lief in the objective verity of witches and of obscenity. Both
beliefs had their origin in religion, and now we are to con-
sider if obscenity, like witchcraft, won't disappear when we
cease to believe in it. I beg the reader to remember that the
immediate problem is one of science and not of religion,
morals or law. Let us think it over in the calm dispassion of
the true scientist's quest for truth.

Fanatical as well as hospitable men and pious judges,
otherwise intelligent, have affirmed the reality of both witches
and obscenity and, on the assumption of their inerrancy in
this, have assumed to punish their fellow-men. It is com-
puted from historical records that 9,000,000 persons were put
to death for witchcraft after 1484. 18 The opponents of witch-
craft were denounced just as the disbelievers in the "obscene"
are now denounced. Yet witches ceased to be when men no
longer believed in them. Think it over and see if the "ob-
scene" will not also disappear when men cease to believe in it.

In 1661 the learned Sir Matthew Hale, "a person than
whom no one was more backward to condemn a witch with-
out full evidence," used this language: "That there are such
angels [as witches] it is without question." Then he made a
convincing argument from Holy Writ and added: "It is also
confirmed to us by daily experience of the power and energy
of these evil spirits in witches and by them." 19

A century later the learned Sir William Blackstone, since

17 Ibid., p. 256.

18 Gage, "Woman, Church and State," pp. 217 to 247.
18 See Annals of Witchcraft, by Drake, preface, page xi.



then the mentor of every English and American lawyer, joined
with the witch-burners in bearing testimony to the existence
of these spook-humans, just as our own courts to-day join
with the obscenity-hunters to affirm that obscenity is in a
book and not in the reading mind, and that therefore the
publisher, and not the reader, shall go to jail for being "ob-

Blackstone said: "To deny the possibility, nay, actual
existence of witchcraft and sorcery is at once flatly to con-
tradict the revealed word of God in various passages of both
the Old and New Testament, and the thing itself is a truth
to which every nation in the world hath in its turn borne
testimony, either by example seemingly well tested, or by
prohibitory laws which at least suppose the possibility of
comrrerce with evil spirits." 20

And yet when men ceased to believe in witches, they
ceased to be, and so when men shall cease to believe in the
"obscene" they will also cease to find that. Obscenity and
witches exist only in the minds and emotions of those who
believe in them, and neither dogmatic judicial dictum nor
righteous vituperation can ever give to either of them any
objective existence.

In the "good old days," when a few, wiser than the
rest, doubted the reality of witches, the doubter, if not himself
killed as being bewitched, was cowed into silence by an ava-
lanche of vituperation such as "infidel," "atheist," or "emis-
sary of Satan," "the enemy of God," "the anti-Christ," and
some witch-finder would get on his trail to discover evidence
of this heretic's compact with the devil ; as is the case with
obscenity, those seeking to destroy belief in witchcraft were
accused of seeking to abolish morality, and as a successful
scarecrow to prove this it was argued by John Wesley and
others, that to give up witchcraft was in effect to give up
the Bible. Let us not be frightened by such conjectural
morality, but rather inquire boldly and frankly as to the
objective import and reality of all that we punish as danger-
ous to society under the name of "obscenity."


How this attitude toward witchcraft is duplicated in the
attitude of a large portion of the public toward those who dis-

*Blackstone's Commentaries, page 59. Edition of 1850.



believe in the objectivity of "obscenity"! Whether obscenity
is a sense-perceived quality of a book, or resides exclusively in
the reading mind, is a question of science, and as such, a le-
gitimate matter of debate. Try to prove its non-existence by
the scientific method, and the literary scavengers, instead of
answering your argument by showing the fallacy of its logic
or error of fact, show their want of culture, just as did the
witch-burners. They tell you that you are (quoting from Mr.
Comstock) "either an ignoramus or so ethereal that there is
no suitable place on earth for you," except in jail. They fur-
ther hurl at you such unilluminating epithetic arguments as
"immoral," "smut-dealer," "moral-cancer planter," etc., etc.
Such epithets may be very satisfying to undeveloped minds,
but they will not commend themselves very highly to any
person wishing to enlighten his intellect upon the real ques-
tion at issue. Again we say: This is a matter of science,
which requires fact and argument and cannot be disposed of
by question-begging villification. It is a regrettable fact
that the "moral" majority is still too ignorant to know that
such question-begging epithets when unsupported are not
argument, and its members are too obsessed with sensual
images to be open to any proof against their resultant "ob-
scene" superstition.

Think it over and see if when you cease to believe in the
existence of "obscenity," you must not also cease to find it.
If that be true, then it exists only in the minds and emotions
of those who believe in the superstition. Empty your mind
of all ideational and emotional associations which the mis-
called "pure" people have forced into your thoughts. Hav-
ing done this, you may be prepared to believe that "unto the
pure all things are pure; but unto them that are defiled and
unbelieving is nothing pure ; but even their mind and con-
science is defiled." 21 Not till thus cleansed can you join in
these words : "I know, and am persuaded by the Lord Jesus,
that there is nothing unclean of itself, but to him that esteem-
th anything to be unclean, to him it is unclean." 22


The courts are more refined, though not more argumen-
tative or convincing, in their manner of denouncing dissen-

ai Titus, 1-15.
"Romans 14, 14.



ters. The judicial formula is this: "When such matters are
said to be only impure to the over-prudish, it but illustrates
how familiarity with obscenity blunts the sensibilities, de-
praves good taste, and perverts the judgment." 23 Again we
ask for fact and argument, not question-begging dogmatism.
The statute furnishes no standard of sex sensitiveness, nor is
it possible for any one to prescribe a general rule of judg-
ment by which to determine where is the beginning of the
criminal "blunted sensibilities," or the limit of "good taste,"
and the law-making power could not confer this legislative
authority upon a judge, though in these cases all courts are
unconsciously presuming to exercise it.

Furthermore, it is not clear that "blunted sensibilities"
are not a good kind to be encouraged in the matter of
sex. Who would be harmed if all men ceased to believe in
the "obscene," and acquired such "blunted sensibilities"
that they could discuss matters of sex as we now discuss
matters of liver or digestion with an absolute freedom from
all lascivious feelings? Why is not that condition preferable
to the diseased sex-sensitiveness, so often publicly lauded
when parading in the verbiage of "purity?" If preferable,
and so-called "obscene" literature will help to bring about
such "blunted sensibilities," would it not be better to encour-
age such publications? It requires argument and fact, rather
than "virtuous" platitudes, to determine which is the more
healthy-minded attitude toward these subjects. I plead for
scientific research, not the brute force of blind dogmatism and
cruel authority. Let us remember that "in scientific inquiry
the ability to weigh evidence goes for much, but facility in
declamation [and vituperation] goes for little." 24

If, in spite of the argument by vituperation, a person
refuses to submit "with humble prostration of intellect" to
the demands of moral snobbery, he is cast from the temple of
"good society" into jail. Then the benighted act as though
by their question-begging epithets, or jail commitment, they
had solved the scientific problem which is involved. Let us
examine if it is not as true of obscenity, as of every witch, that
it exists only in the minds of those who believe in it.


There is another particular in which the controversy
over witchcraft resembles the controversy concerning the

M 45 Fed. Rep. 423.

M Fiske's Cosmic Philosophy, v. 2, p. 173.

2 5 6


suppression of the so-called "obscene." The earlier op-
ponents of witchcraft always deemed it most important to
anticipate and defend themselves against the influence of
question-begging epithets, such as "infidel" and "atheist," etc.
So we find them always explaining that this is unjust because
they do not really deny the being and existence of witches,
but controvert only their alleged mode of operation. Thus
John Webster, in 1677, defends the whole class of anti-witch-
mongers by arguments of which the following is a sample:
"If I deny that a witch cannot fly in the air, nor be trans-
formed or transubstantiated into a cat, a dog, or a hare, or
that a witch maketh any visible covenant with the devil or that
he sucketh on the bodies, or that the devil hath carnal copu-
lation with them, I do not thereby deny either the being of
witches, nor other properties that they may have, for which
they may be so-called: No more than if I deny that a dog
hath rugibility (which is only proper to a lion) doth it follow
that I deny the being of a dog." 28

Similar to this is it with the opponents of the censorship
of obscenity. Every little while we have an explosive pro-
test against the suppression of some book or work of art, but
these moral heretics always hasten to explain their firm be-
lief in "obscenity" as a quality of other books or pictures, but
they protest that it does not exist where the censor or court
thought. They firmly believe that "truly obscene literature"
ought to be suppressed, but they assert that a great blunder
has been made in suppressing the particular book in which they
are unable to discover any obscenity. They hasten to ap-
prove the arbitrary power conferred by a criminal statute
which fails to furnish the criteria of guilt, but complain that
the arbitrary power has been abused. They like a govern-
ment by the lawless will of men rather than a government
by officials who are equally subjected to the law, but they
prefer it should be their own lawless will and not that of an-
other with different ideals that should govern.

As for me, I am not content to protest merely against the
abuse of arbitrary power ; I want that power itself destroyed.
I am not content to deny the mode in which witches and ob-
scenity are alleged to impair the morals of humanity. I de-
mand that a searching and fearless inquiry be made as to the
objective reality and essential characteristics of obscenity as
well as witches. All this is said not by way of apology, but
as a plea for open-mindedness for what follows.

u The Displaying of Supposed Witchcraft, p. 10.




SYLLABUS of CONTENTIONS: The ethnographic
facts, a few of which are herewith presented, show that there
is not a single element of objective nature which is a constituent
factor of every conception of either modesty or obscenity.
Thus it will be proven that the only unifying element common
to all conceptions of modesty or of obscenity must be subjective
must be in the mind of the contemplating person, not in the
thing contemplated. Expressed in popular English, the
proposition is this: All obscenity is in the viewing mind, not
in the book or picture. Since "obscene" does not generalize
any fact of objective nature, it becomes impossible to define
it in terms of the qualities of a book or picture, or in any
terms whatever that furnish a certain or uniform standard,
the application of which compels such uniformity of judgment
that every one can, with unquestionable certitude, determine
in advance just what must be the judgment of every court or
jury as to the obscenity of any given book or picture. Later,
it will be argued that because of this uncertainty the statute
is unconstitutional.


Perhaps it is best to begin our study of modesty and
nudity with a statement of conditions in ancient Greece
when its civilization had reached that high place which, in
some respects, we have not yet excelled. In all that follows
we are always to bear in mind that we are inquiring into the
innateness and uniformity of the human sense of modesty

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 25 of 43)