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mines whether the judge will be impelled to exercise his great-
est ingenuity toward a discovery of reasons which will tend
to uphold or to annul the statutes under investigation. Those
who disbelieve in freedom of the press naturally and unavoid-
ably will see at once all or many of those considerations which
conduce to such a "construction" of the Constitution as will
make an accomplished fact of that curtailment of liberty which
they desire. If this mental predisposition is accompanied by
intense emotional approval, as in this class of cases it is almost
certain to be, a restoration of such open mindedness as leaves
the individual amenable to accurate weighing of argument is
all but impossible except to the most highly developed intellect.

As to the legislation against "obscene" literature, the
public conscience feels the same passionate "moral" necessity
which once impelled judges to exercise their wits and their
might in a crusade against witchcraft and verbal treason. In
Harper's Magazine, for Sept., 1907, we have a graphic portrayal
of the prejudiced zealous federal judge who upheld the con-
stitutionality of the sedition laws. Some more recent decisions
upon a kindred question, if they evince less display of passion,
yet show an equally deficient intellectual vision in the uphold-
ing of similar laws. All this comes from the fact that we
erroneously ascribe to a "moral" cause that emotional aver-
sion whose remote source is usually unknown to us, but whose
immediate reason for being is laid deeply hidden in our subjec-
tive (emotional) states.

And here again I am compelled to express regret at my
inability in a masterful single terse sentence to present an in-
stantaneous and complete picture of all the related co-ordina-

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

tions, as I see them. Yet such is the limitation of human
thought and its expression that it cannot be done. My regret
in the matter lies in this: To state some of my conclusions
about emotional predispositions, before having argued out the
psychology of modesty and obscenity, may intensify the very
emotional aversion which I seek to obviate. And to elaborate
the psychology first and at this stage of the discussion, is likely
to secure me unmerited condemnation for its immateriality and
impertinence. So, then, if I am to be condemned by emotional
processes, my case is hopeless. If I cannot secure a patient
attention to the very end of my presentation, then my very
effort to attack the adverse emotional predisposition may inten-
sify it, and it is sure to do so if I have overestimated the
reader's healthy-mindedness and his capacity for subjecting
his so-called "moral" emotions to a severe critical introspec-
tion.

That there is an adverse predisposition concerning my con-
tentions seems unavoidably and unmistakably certain. The re-
lation of the subject-matter to our emotional life makes it
quite probable that there exists in most minds an intense "will
to believe" a passionate hope that I am wrong. If our hu-
man natures have that uniformity which is usually ascribed
to them, it is highly probable that in such a case as this a ju-
dicial conservatism, otherwise commendable, may evolve into a
one-sided zealous quest for means to uphold the laws in ques-
tion, rather than a scientist's dispassionate search for truth, and
in proportion as this zeal is great the capacity to weigh the rela-
tive merit of arguments will be impaired.

Of course this argument is prepared with the thought that
sometime, somewhere, before some judicial tribunal, it will be
a subject for examination. To the end, therefore, that there
will be a minimum of unconscious emotional bias to cloud the
vision, I must devote myself to efforts at weakening that ad-
verse mental predisposition, which is sure to exist in most
minds. In so far as the approval of "obscenity" laws is a mat-
ter of emotions, the situation is very difficult to meet adequately.
Feelings are seldom successfully displaced by calm logical proc-
esses. However, the most efficient means must still be an an-
alysis of our "moral" emotions, to show the impropriety of mak-
ing them the basis of ethical judgment, and to make a rational
attack upon the expediency of maintaining the laws in ques-
tion, and this will now be proceeded with. When I have done

26



ON THE ADVERSE EMOTIONAL PREDISPOSITION.

what I am able to do to weaken the potency of that "moral"
sentimentalizing which creates the mental attitude that will
more diligently and energetically concern itself with verbalisms
which lend only a seeming support to the feeling-conviction,
than with discovering the logical necessities of constitutional
right, then I will proceed with the more direct argument of
the constitutional merits of the case.

When later on we come to study the psychology of modesty,
we will find explanations for this very general acquiescence by
the members of the bar and the laity. It will, then, be found
that the strong emotional approval of these laws by the general
public, ignorant of all scientific knowledge of psychology, and
especially of sexual psychology, has been due to the funda-
mental and all but universal error by which we objectivize our
emotional appraisment of moral values. Thus the masses think
they know because they feel and are firmly convinced in pro-
portion as they are strongly agitated.

The judgment of the righteousness of these laws, thus
founded upon an error of ignorance, and re-inforced by emo-
tions which often owe their intensity to diseased nerves, as-
sociated in the same person with a nasty-mindedness, char-
acteristics of prurient prudes, has, by a process of suggestive
contagion, become obsessive, even with more intelligent and
healthy-minded persons. This process is easily understood by
those who know the psychology of modesty. The few intelli-
gent ones know that the emotional state underlying modesty
and shame arises simply from a fear-induced application to our-
selves of judgments primarily passed upon others. Upon this
practically all psychologists are agreed, and it is this emotional
aversion and fear, with the blurred vision coming from psy-
chologic ignorance, which has produced such tremendous suc-
cess for the vehemence of our moralists-from-diseased-nerves.

The same emotional and psychologic factors which make it
all but impossible for a jury to doubt the obscenity of a book
alleged to be so, will make it nearly as difficult to secure an
open-minded judge upon the same question or that of the un-
constitutionally of these laws. We have an abundance of emo-
tional associations with unpopular words and ideas and we have
ethical sentimentalizing without limit, but these cannot furnish
us with any objective facts, or standards for a rational judg-
ment. What is the result of a prosecution for obscenity be-
fore a jury thus totally lacking in every element for deter-

27



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

mining the issue of obscenity with even moderate precision?
The pretentious agents of vice-societies, the prosecuting attor-
ney and the judge, in impassioned tones vent their emotional
disapproval in vigorous epithetic argument against the offend-
ing book. In the nature of things, they cannot furnish the jury
with anything else. If they could, the question of obscenity
would be a question of law determinable by the court according
to mathematically accurate standards and not a question of
fact for the jury, to be determined according to whim, caprice,
and moral sentimentalizing. Even when courts have treated it
as a matter of law, their decisions have still been only decisions
reached by the same uncertain and personal standards. In these
matters it is true of all of us that we know only because we feel,
and are firmly convinced because strongly agitated.

The jury, of course, wish to be thought respectable, and a
similar feeling will more or less unconsciously influence judges
who have not been warned against this dangerous tendency. It
may be that the book offends their own emotional sense of pro-
priety. The changes are rung on the necessity for protecting
the home, the women, the family and the children, until the ava-
lanche of righteous vituperation creates such a mist of emo-
tional disapproval that the juror forgets or loses what little
capacity he may have had for looking behind the question-beg-
ging epithets. In the face of this condition the defense is help-
less. It also is unable to furnish a scientifically exact yard-
stick, such as enables the juror in other cases to check his emo-
tional predispositions. In the absence of a clear and over-mas-
tering vision to the contrary, every juror's vanity of respecta-
bility, unavoidably and unconsciously compels him unthinkingly
to condemn everything which is vigorously denounced as "im-
pure," by anyone connected with the prosecution or by popular
ignorance, prejudice, superstitition, or passion. In the face of
a question-begging epithetic argument, made in such a case and
under such circumstances of ignorance and want of experience,
no juror is able to reason upon the question at issue, which, ac-
cording to the usual judicial legislation is : Does this particular
book really tend to deprave and how, why, and by what code of
morality is depravity to be determined? If compelled to answer
these questions without promptings from the court or prosecu-
tion, the juror must confess his inability to state how and why.
The result is that just as in the witchcraft prosecutions, so here,
in practically every case, to be accused is equivalent to a con-

28



ON THE ADVERSE EMOTIONAL PREDISPOSITION.

viction, yet not according to the letter of any statute, but ac-
cording to the whim, caprice, prejudice or superstition of
those who shape the emotions of a jury, wholly reasonless, as to
this particular subject. The professional vice-hunters can and
do boast that practically they never fail to convict. They
ascribe this to the inerrancy of their judgments, and point to-
the uniformity of convictions as an evidence that they exercise
a wise discretion in the enforcement of a law which they admit
is uncertain und therefore permits of abuses. In fact, this result
is a product of ignorance and prejudice and is to be explained
by the uncertainty of the statute and the fact that modesty is
but fear of the judgment of others (the respectable prose-
cutors). When the verdict of the jury reaches an appellate
tribunal, the uncertainty of the law makes impossible a reversal
on the question of obscenity. There being no exact standard,
no thermometer of obscenity, by which its relative degrees can
be measured, and the precise freezing point of modesty deter-
mined, the appellate court in its helplessness practically never
can reverse the judgment, because, their own emotional proprie-
ties being in the least offended, the conviction of obscenity
never seems to be without some "evidence" to support it.

This uniform affirmance of every verdict, like the original
uniformity of conviction, is made unavoidable by the psycholo-
gic nature of modesty and the uncertainty of the statute and
not in either case by the letter of the law. And so it may be
even when we come to a discussion of the constitutional ques-
tions involved. If the emotional predisposition of the judge is
but properly enlisted on the side of the "moralists," of hysteria,
we may expect to find that mere figures of speech will be mis-
taken for analogies, question-begging epithets will take the
place of fact and argument, and mere empty verbalisms, born of
self-righteous emotions, will have the probative force of a
mathematical demonstration to the mind of an average judge,
who has not been warned against this dangerous source of
error. Even some who have been warned, as I am now trying
to warn them, will still lack that high intellectual development
which alone makes possible a subordination of the emotions to
the cold-logic processes.

Because men are ignorant of sexual psychology, they lack
insight to discover the valuelessness of the "moral" emotions
of others, and being without that clarity of vision which could
frame a satisfactory defense against the personal application

29



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

to self of such unreasoned "moral judgments" by others, it
usually follows that they have not the intelligent disposition or
courage to attack these laws. Even the attorneys employed to
defend such cases have quite uniformily found their intellectual
acumen paralyzed in the conflict with their own emotional
approval of these laws. In the half-conscious fear of the
like unreasoned and more intense emotions of their prudish
neighbors, who perhaps are the unconscious victims of sexual
hyperaestheticism, these attorneys quite unavoidably apologize
for defending such a client. By his very demeanor the de-
fendant's attorney insinuates a verdict of guilty into the mind
of the judge and juror. The same intellect-benumbing influence
has thus far made it impossible for any attorney employed in
over 5000 of such cases to even discover that there are con-
stitutional questions which it was his duty to present in de-
fense of his client. Where such conditions prevail, no lawyer
is doing his duty if he does not open a discussion of the con-
stitutional problems by an attack upon this adverse mental pre-
disposition by a plea for open-mindedness.

In the past ten years, sexual psychology has made long
initial strides. A few besides the specialist are beginning to see
that, like witches, obscenity exists only in the minds of those
who believe in it. Of this more will be said hereafter. Know-
ing this, these few are ceasing to fear the emotional judgment
of salacious ascetics, because they are now accounted for by a
diseased sex-sensitiveness and are seen not to be entitled to any
moral valuation. When lawyers are so clean-minded as to be-
lieve, and be firmly and scientifically convinced, as later on we
expect to convince them, that "unto the pure all things are
pure," then, and not till then, can there be any open-minded and
fearless inquiry into the constitutionality of these laws.

Only in such confident clean-mindedness can we hope for
the moral courage to resist the suggestive intimidation of pru-
rient prudes, and replace the befogging intensity of emotional
aversion to my contention with the lucidity of scientific evi-
dence and logical argument. When the completed presenta-
tion of the case is made to such a court, our present laws against
obscenity must disappear, perhaps to be replaced by others
which will be more intelligible and consonant with a decent and
enlightened conception of constitutional liberty.

Prof. Wm. James, of Harvard University, 1 wrote this:

'Varieties of Religious Experiences, p. 74.

30



ON THE ADVERSE EMOTIONAL PREDISPOSITION.

""The truth is that in the metaphysical and religious sphere,
articulate reasons are cogent for us only when our inarticulate
feelings of reality have already been impressed in favor of the
same conclusion." In the very nature of our being, in its
present state of evolution, the whole matter of sex is so in-
separably involved with mystical religious and other emotions,
that in all discussion of sex subjects, even more so than in
the field of metaphysics and religion, we assume to "know be-
cause we feel and are firmly convinced because strongly agita-
ted." Out of this very exceptional condition comes the fact that,
no matter how highly the critical faculty of his mind may be
developed in its application to other subjects, when it comes to
matters of sexual topics scarcely one man in a million can
reason calmly; for his "moral" emotions will dethrone his
reason, and mere verbalisms, and righteous vituperation will
take the place of logical facts of experience, and thus articulate
seemings of reason will be cogent enough to confirm any con-
clusion which the inarticulate "moral" feelings have already
predisposed us to believe. This will usually be so not-
withstanding these feelings are based upon mere unreasoned
sympathetic imitation and emotional association, imposed by the
mere thoughtless reiteration of customs, which often have their
source and derive their special character from the vehemence
of those who are afflicted with psycho-sexual abnormity, (eroto-
phobia) often claiming religious indorsement, and which the
rest of us, without rationally well defined ethical convictions,
will adopt, though ourselves healthy-minded. Upon this sub-
ject we shall yet have much to say, especially when later in its
relation to "Due Process of Law" we come to discuss the psy-
chology of modesty more in detail.

The practical problem is to discover how we are to insure
in ourselves that open-mindedness to the realities of reasoning
which the importance of the situation imposes, and the peculiar
psychologic factors of the problem make so difficult? Simply
by remembering and submitting ourselves to the control of
a very few maxims of ethical science as contra-distinguished
from "ethical" sentimentalism. Wordsworth Donisthorpe,
M.P., puts it thus: "No man has ever yet succeeded in defin-
ing virtue a priori." 2 To bear that in mind and always act
upon it would all but destroy moral sentimentalism. Dr.
Edward Westermarck, a very distinguished Swedish scholar,
implies a similar truth when he is writing of "the error we

*A Plea for Liberty, p. 73-74.

31



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

commit by attributing objectivity to our moral estimates," the
folly of which he points out in the following words: "The
quantity of moral estimate is determined by the intensity of the
emotions which their object tends to evoke under exactly simi-
lar circumstances." 3 Prof. Munsterburg, of Harvard, ex-
presses it thus: "No subjective feeling of certainty can be an
objective criterion for the desired truth." 4 More will be said
upon this subject when we come to study the uncertainty of
the "moral" test of "obscenity."

If, then, the reader desires to avoid moral sentimentalizing
in favor of the rational ethics, and further desires to approach
the constitutional questions herein involved with that open-
mindedness which can come only as an accompaniment to sub-
jugated emotions, we must first of all resolve to be guided only
by objective criteria for the desired truth. Having resolved to
be thus guided, let us make a little preliminary inquiry as to
what may be and has been suppressed under these laws, and de-
termine, by such tests as we have now agreed to use, whether
any real question of morality is involved. This discussion,
and more of a kindred nature which is to follow, has for its
objects: First, to increase the intellectual hospitality for the
constitutional argument to follow; second, to exhibit some of
the general considerations upon which our constitutional
guarantee of freedom of the press was adopted, and thus fur-
nish us helpful clues to the interpretation of that clause of the
Constitution. To this end will be exhibited some of the evils
which come from such laws, and this will be followed by a
general vindication of the right of every adult citizen to
know all that can be known even about the subject of sex,

Origin and Development of Moral Ideas, T. 1, p. 18.
*Times Magazine, March, 1907, p. 428.



CHAPTER III.

NO "OBSCENE" LITERATURE AT COMMON LAW
Revised from The Albany Law Journal, May, 1907

For nearly a century unintelligent reformers have asserted,
and unindustrious attorneys have repeated the statement, and
courts, made credulous by a passionate hope that it might be
true, have, by way of dictum, affirmed that obscenity, as we
now understand the term, in the light of our modern puritan-
ism, was an offense at common law.

The truth or error of the statement has several important
bearings. When we come to a discussion of the meaning of
"freedom of the press" it may be of importance to know just
how much liberty of the press was enjoyed at the time of the
adoption of our Constitution.

In studying the present outrageous suppression of medical
and controversial literature under the pretense of suppressing
"obscenity," I am reminded of this cynical statement of Ser-
geant Hill: "When judges are about to do an unjust act, they
seek for a precedent in order to justify their conduct by the
faults of others." But there is another reason for destroying
the professional illusion about obscenity at the common law, be-
cause by destroying the veneration, often superstitious, which
lawyers and courts give to supposed precedent, we may also
increase their intellectual hospitality for the constitutional argu-
ment which follows :

Going back to the sixteenth century, we find no such gen-
eral prudish sentimentalizing as is now current over the "ob-
scene" of the nude human, nor over a robust frankness in the
discussion of sex-problems. Of course, even before this, we
find ascetics of unbalanced mind, who declaimed against all
that stimulated their unhealthy sex-sensibilities, but no law as
yet had made their diseased condition the standard of virtue.
Not being able to suppress the more healthy naturalness of
others, they usually fled to some mountain or desert retreat, to

33



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

escape the temptations which endangered their "spiritual" wel-
fare.

Among those who did not thus flee, we find Christian sects
who esteemed it a special virtue to parade the highways, and
more privately worshiped, in Adamic costume. From such
habits these sects have come to be known as "Adamites." No
law was invoked to suppress their "obscenity," though they
suffered persecution for their heresies. The obscene in nature
not having received legal recognition, of course an "obscene
libel" was then unknown.

In March's "Action for Slander and Arbitrement" 1 pub-
lished in 1648, and revised in 1674, it is said concerning libel-
ous letters : "Yet the star Chamber of the King did take knowl-
edge of such cases and punish them ; the reason is for that such
quarrellous letters tend to a breach of the peace." Numerous
refinements were indulged in to exclude from suppressive
measures what did not directly tend to violence. Thus it was
held that a general charge of criminality was not slanderous,
since only a very specific accusation would tend to a breach of
the peace. So long as such tendency to violence was the test
of the criminality of a publication, nothing could be punished
merely because it was generally "obscene," though a specific
charge of obscenity against a living person, who would be
tempted to resent it, might be indictable.

Since England had an established church, naturally any-
thing (including the so-called obscene publications) which dis-
credited the official religion would also be held libelous. We
shall presently see how, from the suppression of "obscene im-
piety," has erroneously grown the notion that all so-called "ob-
scene" literature was suppressed at common law.

The oldest case of conviction for obscenity, found in the
law reports, was decided in 1663. The printed record, handed
down, only informs us that on "confession of information
against him for showing himself naked in a balcony and throw-
ing down bottles (piss in) vi & armis among the people in Co-
vent Garden," he was fined 200 marks. 2 It seems that in addi-
tion to actual violence, in throwing the bottle, Sedley was guilty
of blasphemy. Stephens tells us that Sedley "Stripped him-
self naked and with eloquence preached blasphemy to the
people." 2 *

The next reported decision was rendered in 1708, by Lord

a p. 139.

*King v. Sedley, Kebble, 620, Siderfins R. 168, 10 State Trials Ass. 98.

2 aCriminal Law of England, V. 2, p. 70.

34



NO OBSCENE LITERATURE AT COMMON LAW.

Holt, who, more than other judges, stood out against the tyr-
annies of the crown. The decision uses these words: "A
crime that shakes religion, as profaneness on the stage, etc., is
indictable, but writing an obscene book, as that entitled 'The
fifteen plagues of a maidenhead,' is not indictable, but punish-
able only in the spiritual courts." 3

The next reported decision is of the date of 1727. This
case is of importance to us, because it is the one case which is
relied upon to show that the circulation of "obscene" literature
was a crime at common law, and, as we shall see later, it is
erroneously assumed that "obscenity" then meant what "ob-
scenity" now means, according to puritan standards.

Information against the defendant was "for that he exist ens



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 3 of 43)