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^History of Circumcision, p. 89.
^Psychology of Sex, (Modesty) p. 47.
"Woman, Past and Present, p. 212.
""Psychopothia Sexualis, 75.

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I



ETHNOGRAPHIC STUDY OF MODESTY AND OBSCENITY.

statutory "obscenity" be determined and a verdict of guilt
found by such persons, and if not why not?

"I have several times observed in hysterical females
scruples relative to the satisfaction of natural needs, to the
action of chewing, eating, micturation, defecation, which
have all come to be regarded as revolting acts, which must be
dissembled like crimes." 71

The present law does not in the slightest degree protect
one accused of obscenity from the whim and caprice of judges
or jurors who may be thus afflicted with extraordinary sexual
sensitiveness. Even the "tests of obscenity" created by judi-
cial legislation leave the criteria of guilt just as much in
doubt.

By evidences gathered from similar sources it can be
demonstrated that there is not one single fact of obscenity
concerning which all humanity is agreed. Even what is to
us the most revolting "obscenity" is not so to all persons.
Every known form of sexual perversion, from sadism, lust,
murder, up and down, has been credited with the endorsement
of some god and practised and sanctified by some religious
society. Those who want proof of the fact need only to make
themselves fairly expert in sexual psychopathy, and then
study all the facts of sex-worship among the ancient Greeks
and Egyptians, also the old initiations into the priesthoods of
the native Mexican religions, and the sacred snake dance
among the Moquis. If proof is wanted as to its expression
in art, we have it in the secret Cabinet of the Museum of Her-
culaneum and Pompeii and other places. If doubt still re-
mains it only becomes necessary to get the confidence of one
whose sexual impulse has become completely perverted, and
ask such a one about his shame when indulging only in the
presence of those who are perverted like himself.

Within the available limits one can only hint at the
source and character of the evidence which contradicts the
judicial dictum upon the questions of science here involved.
To exhaust the evidence would require a republication of
volumes of ethnographical research, and most of the litera-

T1 Moral Hypochondria. Fere. Pathology of the Emotions, n. 389.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

ture upon sexual psychology. The principal books upon the
latter subject are listed for further study. 72

Additional arguments will be offered in the succeeding
chapters to demonstrate anew the subjective character of all
that is generalized in the word "obscene" and the consequent
unescapable uncertainty of the criteria of guilt under these
obscenity statutes.

n Psychopathia Sexualis by Krafft-Ebing. Suggestive Therapeutics in Rela-
tion to Psychopathia Sexualis, Schenk Notzing.. Morbid Manifestations, by Tar-
nowsky. Studies in the Psychology of Sex, by Dr. Havelock Ellis, and especially
that volume devoted to "Modesty." This literature, by exhibiting the infinite
variety of foci about which center the sentiments of modesty, prove to a demon-
stration that we have no innate sense of modesty, nor any common standards by
which to determine its opposite, nor any uniformity in the ideas which excite in us
those emotions of aversion which constitute our conviction that a book or picture
is obscene.



2 7



CHAPTER XIV.

'SYCHOLOGIC STUDY OF MODESTY AND
OBSCENITY.

Syllabus of the Argument: Through a study of the
mental processes by which we acquire the general idea sym-
bolized by the word "obscene", (or its opposite) and of those
by which we usually form a judgment as to the modesty or
obscenity in a particular case, it will be redemonstrated that the
word "obscene" does not stand for any sense-perceived quality
of literature or art but is distinguished only by the likeness
or unlikeness of particular emotions associated with an in-
finite variety of mental images. Therefore, obscenity is only
a quality or contribution of the viewing mind a subjective
state which, by synchronous suggestion or prior experience,
is linked, in the contemplating mind, with the particular mat-
ter presented by the contemplated book or picture or with the
special conditions under which these are being viewed. When
this association, thus formed, asserts itself in consciousness
the subjective "obscene" attachment is erroneously ascribed
to and read into the objective factor of its conceptual associate.
All this is only a technical way of telling how the "obscenity"
of the viewing mind is referred to the book or picture before it.

As supporting these claims we see the fact that "ob-
scenity" never has been, nor can be, described in terms of any
universally applicable test, consisting of the sense-perceived
qualities of a book or picture, but ever and always it must be
described as subjective, that is, in terms of the author's sus-
pected motive, or in terms of dreaded emotions imagined to
exist in the mind of some superstitious reader.

With some knowledge of the psychologic processes in-
volved in acquiring a general conception, it is easy to see how
courts, as well as the more ignorant populace, quite naturally
fell into the error of supposing that the "obscene" was a
quality of literature, and not as in fact it is only a contribu-
tion of the reading mind. By critical analysis, we can exhibit
separately the constituent elements of other conceptions, as

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

well as of our general idea of the "obscene." By a comparison,,
we shall discover that their common element of unification may
be either subjective or objective. Furthermore, it will appear
that in the general idea, symbolized by the word "obscene,"
there is only a subjective element of unification, which is com-
mon to all obscenity, and that herein it differs from most gen-
eral terms. In the failure to recognize this fundamental un-
likeness between different kinds of general ideas, we shall dis-
cover the source of the popular error, that "obscenity" is a
definite and definable, objective quality of literature and art.

THE PSYCHOLOGIC ARGUMENT.

A general idea (conception) is technically defined as "the
cognition of a universal, as distinguished from the particulars
which it unifies." Let us fix the meaning of this more clearly
and firmly in our minds by an illustration.

A particular triangle may be right-angled, equilateral or
irregular, and in the varieties of these kinds of triangles, there
are an infinite number of shapes, varying according to the
infinite differences in the length of their boundary lines, meet-
ing in an infinite number of different angles.

What is the operation when we classify all this infinite va-
riety of figures under the single generalization "triangle"?
Simply this : In antithesis to those qualities in which triangles
may be unlike, we contrast the qualities which are common to
all triangles, and as to which all must be alike.

These elements of identity, common to an infinite variety
of triangles, constitute the very essence and conclusive tests
by which we determine whether or not a given figure is to be
classified as a triangle. Some of these essential, constituent,
unifying elements of every triangle are now matters of com-
mon knowledge, while others become known only as we de-
velop in the science of mathematics. A few of these essentials
may be re-stated. A plain triangle must enclose a space with
three straight lines ; the sum of the interior angles formed by
the meeting of these lines always equals two right angles ; as
one side of a plain triangle is to another, so is the sine of the
angle opposite to the former to the sine of the angle opposite
to the latter.

These, and half a dozen other mathematical properties be-
long to every particular triangle ; and these characteristics, al-
ways alike in all triangles, are abstracted from all the infinite



272






PSYCHOLOGIC STUDY OF MODESTY AND OBSCENITY.

different shapes in which particular triangles appear ; and these
essential and constant qualities, thus abstracted, are general-
ized as one universal conception, which we symbolize by the
word "triangle."

Here it is important to bear in mind that these universal,
constituent, unifying elements, common to all triangles, are
neither contributions nor creations of the human mind. They
are the relations of the separate parts of every triangle to its
other parts, and to the whole, and these uniform relations in-
here in the very nature of things, and are of the very essence
of the thing we call a "triangle."

As the force of gravity existed before humans had any
knowledge of the law or its operation, so the unifying ele-
ments of all triangles exist in the nature of things, prior to and
independent of our knowledge of them. It is because these
unifying elements, which we thus generalize under the word
"triangle," are facts of objective nature, existing wholly out-
side of ourselves, and independent of us, or of our knowledge
of their existence, that the word "triangle" is accurately
definable.

We will now analyze that other general term, "obscene,"
reducing it to its constituent, unchanging elements, and we
shall see that, in the nature of things, it must remain incapable
of accurate, uniform definition, because, unlike the case of a
triangle, the universal element in all that is "obscene" has no
existence in the nature of things objective. It will then appear
that, for the want of observing this difference between these
two classes of general terms, judges and the mob alike errone-
ously assumed that the "obscene," like the "triangle," must
have an existence outside their own emotions, and, conse-
quently, they were compelled to indulge in that mystifying ver-
biage which the courts miscall "tests of obscenity."

COMMONPLACE FACTORS OF THE PSYCHOLOGIC ARGUMENT.

First of all, we must discover what is the universal con-
stituent, unifying element common to all obscenity. Let us
begin with a little introspection, and the phenomena of our
everyday life. We readily discover that what we deemed "in-
decent" at the age of sixteen, was not so considered at the age
of five, and probably is viewed in still another aspect at trie*
age of forty.

We look about us, and learn that an adolescent maid has
her modesty shocked by that which will make no unpleasant

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

impression upon her after maternity, and by that which would
never shock a healthy physician. We know, also, that many
scenes are shocking to us if viewed in company, and not in the
least offensive when privately viewed ; and that, among dif-
ferent persons, there is no uniformity in the added conditions
which change such scenes to shocking ones.

We see the plain countyman shocked by the decollete
gown of our well-bred society woman ; and she, in turn, would
be shocked into insensibility if, especially in the presence of
strange men, she were to view some pastoral scenes which
make no shocking impressions upon her rustic critic. The
peasant woman is most shocked by the "indecency" of the so-
ciety woman's bare neck and shoulders, and the society woman
is shocked most by the peasant woman's exhibition of bare
feet and ankles, at least if they are brought into the city
woman's parlor. We see that women, when ailment suggests
its propriety, quite readily undergo an unlimited examination
by a male physician, while with the sexes reversed much
greater difficulty would be experienced in securing submission.
This not because men are more modest than women, but be-
cause other social conditions and education have made them
differently modest.

It would seem to follow that the universal qualities
which we collect under the general term "obscene," as its con-
stituent elements are not inherent in the nature and relations
of things viewed, as is the case with the triangle. Taking
this as our cue, we may follow the lead into the realm of
history, ethnology, sexual psychology and jurisprudence.
By illustrative facts, drawn from each of these sources, it
will be shown to a demonstration that the word 'obscene"
has not one single universal, constituent element in objective
nature.

Not even the sexual element is common to all modesty,
shame or indecency. A study of ethnology and psychology
shows that emotions of disgust, and the concept of indecency
or obscenity, are often associated with phenomena having no
natural connection with sex, and often in many people are
not at all aroused by any phase of healthy sexual manifesta-
tion; and in still others are aroused by some sensual associa-
tions and not by others; and these, again, vary with the indi-
vidual according to his age, education and the degree of his
sexual hyperaestheticism.

274



PSYCHOLOGIC STUDY OF MODESTY AND OBSCENITY.
HYPER ^ESTHETICISM AND EDUCATION.

Everywhere we find those who are abnormally sex-
sensitive and who, on that account, have sensual thoughts and
feelings aroused by innumerable images, which would not thus
affect the more healthy. These diseased ones soon develop
very many unusual associations with, and stimulants for, their
sex^thought. If they do not consider this a lamentable condi-
tion, they are apt to become boastful of their sensualism. If,
on the other hand, they esteem lascivious thoughts and images
as a mark of depravity, they seek to conceal their own shame
by denouncing all those things which stimulate sensuality in
themselves, and they naturally and erroneously believe that
it must have the same effect upon all others. It is essential to
their purpose of self -protection that they make others believe
that the foulness is in the offending book or picture, and not
in their own thought. As a consequence, comes that persist-
ence of reiteration, from which has developed the "obscene"
superstition, and a rejection even by Christians of those
scientific truths in the Bible, to the effect that "unto the pure
all things are pure," etc. We need to get back to these, and
reassert the old truth, that in literal fact all genuine prudery
is prurient.

The influence of education in shaping our notions of mod-
esty is quite as apparent as is that of sexual hyperaesthesia.
We see it, not only in the different effects produced upon differ-
ent minds by the same stimulants, but also by the different
effects produced upon the same person by different objects
bearing precisely the same relation to the individual. When
an object, even unrelated to sex, has acquired a sexual associa-
tion in our minds, its sight will suggest the affiliated idea,
and will fail to produce a like sensual thought in the minds of
those not obsessed by the same association.

Thus, books on sexual psychology tell us of men who are
so "pure" that they have their modesty shocked by seeing a
woman's shoe displayed in a shop window; others have their
modesty offended by hearing married people speak of retiring
for the night ; some have their modesty shocked by seeing in
the store windows a dummy wearing a corset; some are
shocked by seeing underwear, or hearing it spoken of other-
wise than as "unmentionables;" still others cannot bear the
mention of "legs," and even speak of the "limbs" of a piano.
A book published in England informs me of some who speak

275



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

of the "bosom" of a chicken because of the immodesty of
saying "breast." Surely, we have all met those who are
afflicted in some of these ways.

Since the statutes do not define "obscene," no one accused
under them has the least protection against a judge or jury
afflicted with such diseased sex-sensitiveness, or against more
healthy ones who, for want of information about sexual psy-
chology, blindly accept the vehement dictates of the sexually
hyperaesthetic as standards of purity. But whether a judge
or a juror belongs to either of these classes, or rejects their
dictum as to what is pure in literature, in any and every
event, he is not enforcing the letter of a general law, but
enacting and enforcing a particular ex post facto law then
enacted by him solely for the particular defendant on trial.
What that law shall be in any case depends on the experiences,
education and the degree of sex-sensitiveness of the court, and
not upon any statutory specification of what is criminal.

Among more normal persons, we see the same differ-
ence as to what is offensive to their modesty, depending al-
together upon whether or not they are accustomed to the par-
ticular thing. That which, through frequent repetition, has
become commonplace no longer shocks us, but that which,
though it has precisely the same relation to us or to the sen-
sual, is still unusual, or is seen in an unusual setting, does
shock us.

Some who are passive if you speak of a cow, are yet
shocked if you call a bull by name. In the human species, you
may properly use the terms "men" and "women," as differen-
tiating between the sexes, but if you call a female dog by
name, you give offense to many. So, likewise, you may speak
of a mare to those who would take flight if you called the male
horse by name. With like unreason, you may speak of an ox
or a capon to everybody, of a gelding to very many, but of a
eunuch only to comparatively few, without giving offense. No
one thinks that nudity is immodest, either in nature or in art,
except the nudity of the human animal ; and a few are not
opposed to human nudity in art, but find it immodest in nature.

The Agricultural Department of the United States dis-
tributes information on the best methods for breeding domes-
tic animals, and sends those to jail who advocate the higher
stirpiculture, for the sake of a better humanity, if they are
equally specific in the manner of treating the subject or advo-
cate the adoption of the same method for improving humanity.

276



PSYCHOLOGIC STUDY OF MODESTY AND OBSCENITY,
THE ONLY UNIFYING ELEMENT IS SUBJECTIVE.

It thus appears that the only unifying element generalized
in the word "obscene," (that is, the only thing common to
every conception of obscenity and indecency), is subjective, is
an affiliated emotion of disapproval. This emotion under vary-
ing circumstances of temperament and education in different
persons, and in the same person in different stages of develop-
ment, is aroused by entirely different stimuli, and by fear of
the judgment of others, and so has become associated with
an infinite variety of ever-changing objectives, with not even
one common characteristic in objective nature; that is, in liter-
ature or art.

Since few men have identical experiences, and fewer still
evolve to an agreement in their conceptional and emotional
associations, it must follow that practically none have the same
standards for judging the "obscene," even when their conclu-
sions agree. The word "obscene," like such words as delicate,
ugly, lovable, hateful, etc., is an abstraction not based upon a
reasoned, nor sense-perceived, likeness between objectives, but
the selection or classification under it is made, on the basis of
similarity in the emotions aroused, by an infinite variety of
images ; and every classification thus made, in turn, depends in
each person upon his fears, his hopes, his prior experience,
suggestions, education, and the degree of neuro-sexual or
psycho-sexual health. Because it is a matter wholly of emo-
tions, it has come to be that "men think they know because
they feel, and are firmly convinced because strongly agitated."

This, then, is a demonstration that obscenity exists only in
the minds and emotions of those who believe in it, and is not
a quality of a book or picture. Since, then, the general con-
ception "obscene" is devoid of every objective element of
unification; and since the subjective element, the associated
emotion, is indefinable from its very nature, and inconstant as
to the character of the stimulus capable of arousing it, and
variable and immeasurable as to its relative degrees of inten-
sity, it follows that the "obscene" is incapable of accurate
definition or a general test adequate to secure uniformity of
result, in its application by every person, to each book of
doubtful "purity."

Being so essentially and inextricably involved with human
emotions that no man can frame such a definition of the word



277



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

"obscene," either in terms of the qualities of a book, or such
that, by it alone, any judgment whatever is possible, much less
is it possible that by any such alleged "test" every other man
must reach the same conclusion about the obscenity of every
conceivable book. Therefore, the so-called judicial "tests" of
obscenity are not standards of judgment, but, on the contrary,
by every such "test" the rule of decision is itself uncertain,
and in terms invokes the varying experiences of the testers
within the foggy realm of problematical speculation about
psychic tendencies, without the help of which the "test" itself
is meaningless and useless. It follows that to each person the
"test," of criminality, which should be a general standard of
judgment, unavoidably becomes a personal and particular
standard, differing in all persons according to those varying
experiences which they read into the judicial "test." It is
this which makes uncertain, and, therefore, all the more ob-
jectionable, all the present laws against obscenity. Later it
will be shown that this uncertainty in the criteria of guilt
renders these laws unconstitutional.

As the final proofs are being read there comes from the
press the sixth volume of Dr. Havelock Ellis' elaborate
"Studies in the Psychology of Sex," the earlier volumes of
which I have often quoted herein. At page 54 I find this
gratifying indorsement of the main contention of this chapter.
He says: "Anything which sexually excites a prurient mind
is, it is true, 'obscene' to that mind, for, as Mr. Theodore
Schroeder remarks, obscenity is 'the contribution of the read-
ing mind'."



P. S The rest of the Psychologic Study of Modesty .

which should be a part of this chapter, will be found at
pages 315 to 325. This misplacement is one of the defects
arising from the literary mechanics, by which 1 tried
hastily to make a book by the use of a paste pot and some
magazine articles, where I should have rewritten the
whole. T. S.



278



CHAPTER XV.

UNCERTAINTY OF THE "MORAL" TEST OF OB-
SCENITY.*

Our Courts, in their blind non-logical gropings for some
practical criteria of guilt under these vague statutes against
"obscenity," have often amended the statutes so as to make
the criminality of admitted facts depend, not upon the literal
application of the letter of the statute, but upon the jury's
opinion, according to its personal standards, as to whether
or not the matter is such as might tend to deprave the morals
of some hypothetical person who might be open to such im-
moral influences. Assuming now for the sake of argument
that this judicial legislation is entirely proper as a matter of
legitimate statutory construction, then the question arises
whether this makes the statutory criteria of guilt so certain
in meaning as is necessary to constitute this statute "due
process of law." If courts can be said to have answered a
question which they have not even considered, because the
answer is a necessary inference from their acts, then the
courts have answered this question in the affirmative. Is this
answer by implication correct?

The inquiry now to be pursued is as to whether or not
there exists an agreement as to the criteria of the ethical
right in general, and of sex ethics in particular, such as en-
ables the "moral" test of obscenity to satisfy the constitu-
tional requirement as to the necessary certainty of the cri-
teria of guilt in a penal statute. The method will be to
study the various schools of ethics, and to exhibit what the
various leaders of thought have to say upon the subject.

RELIGION AND SCIENCE DISTINGUISHED.

The most conspicuous line of cleavage between differing
schools of morals, is that which separates religious morality
from ethical science. The matter of differentiating the ethics
of science from religious morality, is but a sub-division of the
larger problem of the distinctions between religion and science

*Revised from the Truth Seeker.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

in general. In The Arena' (Jan. 1, 1908), I discussed this latter
question, rather too briefly, but summarized my conclusions



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 27 of 43)