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

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in some states the laws would authorize its seizure and de-
struction. We also have the decision of a federal court seeming-
ly of the opinion that the Bible is "obscene," but that, not-
withstanding this fact, a successful prosecution thereon is
ridiculously impossible. The decision reads thus:

"As a result [according to the contention of the defend-
ant's counsel] not only medical works, but the writings of such
authors as Swift, Pope, Fielding, Shakespeare, and many
others, even the Bible itself, would be denied the privileges
of the United States mails. Undoubtedly there are parts of
the writings of said authors, and others equally noted, which
are open to the charge of obscenity and lewdness, but any
one objecting to such works being carried through the mails
would be laughed at for his prudery." 93 Italics are mine. T. S.

But if "undoubtedly there are parts" of the Bible "which
are open to the charge of obscenity and lewdness," as the
judge seems to admit, and as John Wise and another found
out to their sorrow, what consolation is it to the convicted
man that his persecutors are laughed at for their prudery,

"(Here, I think, Train must be referring to the conviction of John A. Lant
publisher of the Toledo Sun.)

"U. S. vs. Bennett, Blatchford, 388, Fed. Case, 14571.
88 U. S. vs. Harmon, 38 Fed. Rep. 828.

3 IO


while he pays a fine, or goes to prison for conduct which he
could not know to be a crime until after conviction?

On the contrary side we have the opinion of an assistant
attorney-general that the Bible is not "obscene" in any of its
parts, but he carefully points out that the law is so uncertain
that courts might take a different view. Under date of Dec.
4, 1891, James N. Tyner in his official capacity as assistant
attorney-general of the United States, wrote to E. Q. Morton,
Esq., of Daphne, Ala., as follows :

"The law is made up of two clauses: One concerns the
mailability of obscene, lewd, lascivious, or indecent publica-
tions, and this is determinable by the postmaster-general.
The other branch of the law provides punishment for violating
its provisions, and this is enforceable by the courts. I cannot
therefore properly pass upon the "liability" in any case, even
if it were submitted in proper form and detail, for that would
be an attempted usurpation of the power of the judicial branch
of the government ; I can, however, state to you as I now do,
that I do not regard the Holy Bible as a whole, or any part of
it published separately, as being unmailable within the meaning
;>f the laws." Italics are mine. T. S.

Voltaire informs us, on the authority of St. Jerome, that
the synagogue did not permit the reading of Ezekiel till after
the thirteenth year of age; but that was for fear their youth
should make a bad use of the too lively description in the
sixteenth and twenty-third chapters, of the whoredoms of
Aholah and Aholibah." 95a

Now we demand to know whether the Bible is "obscene"
in any of its parts, and where is the statutory test which deter-
mines the quesion?


In Minnesota, Miss Rebecca Taylor, having a zeal for
reform, encountered the interests of C. B. Gilbert, superinten-
dent of the St. Paul Schools. As a part of her work of
purifying the schools she thought it necessary to publish in
a paper edited by her (Truth, May 8th, 1897) parts of certain
affidavits which were part of a judicial record, reflecting upon
Mr. Gilbert. This was at a time when he was negotiating for
a position as superintendent of the Newark, N. J. public
schools, the intention being to circulate these papers in Newark.
Gilbert's friends, hearing of the enterprise, persuaded the

"^Treatise on Toleration, p. 170, Edition of London, 1764.


postal authorities of St. Paul to refuse to transmit the paper
because of the "obscenity" of these affidavits. Miss Taylor
had the matter presented to the authorities at Washington.
The Assistant Attorney General for the Post-Office Depart-
ment rendered a lengthy written opinion to the effect that the
matter was not "obscene" and the paper therefore mailable.
The Assistant Post Master General accordingly instructed the
St. Paul post-master to transmit the paper. Thereafter A. W.
Lawton, editor of The White Bear Breeze, republished from
Truth the larger part of the same affidavits.

Notwithstanding the opinion of the Washington postal
authorities, the United States Attorney at St. Paul secured the
indictment of both editors for sending these "obscene" affi-
davits through the mail. They had a separate trial. In neither
case was there any question about the publication or mailing,
and the only question for the jury was, "Is this matter
obscene?" The Taylor jury answered "no" and Miss Taylor
was acquitted. The Lawton jury answered "yes" and Lawton
was found guilty and punished.

Again it is self-evident that these contradictory verdicts
were not derived from applying any statutory criteria of guilt,
but from the total absence of such criteria, and a mere differ-
ence of whim on the part of the two juries. The opinion of
the Attorney General's office was offered in evidence, and
excluded as immaterial. As between these juries and the U. S.
Attorney General, who was right? Where and how does the
statute decide? How can any man know even now if it is a
crime to send this matter through the mail? If the Federal
Statutes, as interpreted and applied by the Attorney General
oi the United States, do not safeguard against prosecution, even
in the Federal Courts, then how can we have such a thing as
"law" or "due process of law"? How can this law be "the
sanctuary of the innocent"?


Another book, the history of which strikingly illustrates
the outrageous uncertainty of the laws against "obscene
literature," is one entitled Cupid's Yokes; or, The Binding
Forces of Conjugal Love. An Essay to Consider Some Moral
and Physiological Phases of Love and Marriage, Wherein
is Asserted the Natural Right and Necessity of Sexual Self-
Covernment, by E. H. Hey wood. The author was a rather



conspicuous co-laborer of such abolitionists as Parker and
Garrison. He was also the author of considerable controver-
sial literature upon other subjects. He was convicted June
25, 1878, for sending his pamphlet, Cupid's Yokes, through
the mails, and sentenced to two years at hard labor. At-
torney-General Devens did not consider it "obscene." He
wrote, under date of Jan. 13, 1879:

"I do not confound it with those obscene publications,
the effect and object of which is to excite the imagination and
inflame the passions/' 98

President Hayes in December, 1878, pardoned Mr. Heywood,
no doubt because to him the pamphlet did not seem obscene.

Before this, D. M. Bennett had been arrested, under the
New York state statute, for selling Cupid's Yokes, and the
prosecution had been dropped. Just before the pardon of
Heywood, Bennett was again arrested, this time for sending
Cupid's Yokes through the mails. He was convicted, 97 and
President Hayes again signed a pardon which, however,
was not issued, because of some representations that Bennett
Tiad also been guilty of adultery. 98

In April, 1878, Mrs. Abbie Dyke Lee was tried under the
Massachusetts state statute against selling "obscene" litera-
ture, which consisted of Cupid's Yokes. The Jury disagreed,
the case was thereupon dismissed, and the book continued,
without molestation, to circulate in Massachusetts. In 1882,
Heywood was again arrested for sending Cupid's Yokes
through the mails. Judge Nelson, after hearing the pamphlet
read, said: "The court is robust enough to stand anything
in that book," and refused to admit the government's plea that
it was too "obscene" to spread upon the records, later instruct-
ing the jury to acquit on the first two counts of the indictment,
those relating to Cupid's Yokes and the Word Extra.

Here, then, we have two convinctions, one jury disagree-
ment and consequent dismissal, one instruction to acquit be-
cause the book was not "obscene," and one pardon upon the
same ground, and one abandonment of prosecution. There was
never any dispute about the contents or meaning of the book.
The uncertainty is therefore wholly in the law. After five
.arrests resulting in one abandonment of prosecution, two

See Liberty and Purity, p. 62.

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

M See Liberty and Purity, p. 63.



discharges as not guilty, two convictions the opinions of the
attorney general of the United States and of the
United States circuit court, and the judicial "constructions"
of the statutes against "obscene" literature as applied to this
particular book, no man on earth can tell, even now, whether
it is a crime to send Cupid's Yokes through the mail. If any
one claims to know whether the law condemns this book, I
ask him to point to a statutory test which is decisive.

Even if in every case Cupid's Yokes had been declared
not to be "obscene," still this would be no protection to the
next vendor of the book, because the next jury might
reach a different conclusion as to what the law prohibited.
Indeed, the courts might, as courts have done, instruct the
jury to disregard a precedent of acquittal by another court
deciding that the same matter was not "obscene." This I
understand to be the effect of all tests of obscenity, and also
of the following charge from Judge Butler, Eastern District
of Pennsylvania, as unofficially published by Mr. Comstock
from the official stenographer's report. The judge charged:
"It is wholly unimportant what may have occurred elsewhere
in the consideration of this question, if it ever has been con-
sidered ; you have nothing to do with it at this time." 100

Prof. Andrew D. White tells us that: "At a time when
eminent prelates of the Older Church were eulogizing de-
bauched princes like Louis XV and using the unspeakably
obscene casuistry of the Jesuit Sanchez in the education of the
priesthood as to relations of men and women, the modesty of
the church authorities was so shocked by Linnaeus' proof
of a sexual system in plants, that for many years his writings
were prohibited in the Papal States and in various parts of
Europe where clerical authority was strong enough to resist
the new scientific current." 101

Now, one may with impunity discuss the sexuality of
plants, but a publication of the writing of Sanchez and others
like him has landed good men in jail, though it was done for
the best of motives. 102

The foregoing record illustrates and demonstrates the
baneful uncertainty and conflicting results coming from an
exercise of arbitrary judicial power in determining innocence
under a penal statute which fails to furnish criteria of guilt.

100 C7. S. vs. Sherman: See Morals, Not Art or Literature, p. 33.
im Hist. of the Warfare of Science and Theology, v. 1, p. 60.
102 Queen vs. Hicklin L. R. 3 Q. B. 369, U. S. vs. Price, 165 U. S. 811.


Tests of obscenity were never deduced from the statutes, but
read into them. The decisions express only ex post facto
legislative judgments as to what was believed ought to be the
result as applied to the facts of each given case. The un-
certain statutes furnish the pretext, and the judicial legislation
creating equally uncertain "tests" of obscenity furnishes the
unconstitutional means by which the emotionally demanded
result is attained and "justified." These miscalled "tests" are
the mere empty verbalisms by which judges attempt to
objectivize their emotional pre-disposition, and they are con-
sidered cogent only because responding to the prior feeling-
conviction which called them into being. The "tests of
obscenity" are seldom the real reason for the decision, but
are a misleading consequence of it. Our emotions, and the
public demand that something be done, produce that uncon-
scious shamming, to consumate which meretricious and
factious "tests of obscenity" are judicially and unconstitution-
ally created and interpolated into the statute.


What then is the nature of modesty which is now seen
to manifest itself in such illimitable and ever changing
variety? What is the relation of that essential nature of
modesty to the practical problem of determining the existence
of "obscenity" in literature and art by the test of shocking
modesty? What is the moral value of a shock to modesty, as
a means of determining the existence of "obscenity"? These
matters will now be discussed. After this will come a demon-
stration of the uncertainty of the "moral" test of obscenity,
and this in turn will be followed by a discussion of the legal
consequences wliich must flow from this wholly indeterminable
nature of the "obscene" and the consequent total absence,
either in the statute or the unconstitutional judicial legislation
under it, of anything like uniform! criteria of guilt.

The Rev. Dr. Stoddard has told us that "All visible signs
are common to converted and unconverted men, and a relation
of experience among the rest." To this the Rev. Jonathan
Edwards adds : "No external manifestations and outward ap-
pearances whatsoever that are visible to the world are infal-
lible evidence of grace."

los Republished from The Medical Council, Jan., 1909.


What is thus true of religion is equally true of modesty.
No external manifestation or outward behavior, nor the habit-
ual presence of clothing or its absence, nor the verbal relation
of experience, nor crimson blushes are unmistakable criteria
of a commendable (that is, healthy minded) modesty, and all
are consistent with the highest degree of nasty mindedness.
The true modesty of healthy mindedness is but a mental atti-
tude, which in the presence of healthy nature always maintains
an imperturbable poise, akin to the inward grace of the religion-
ist, and which can not be infallibly inferred from appearances
or conduct. Like health in any other particular, it eludes
exact definition, because it fades so gradually into its opposite
of disease that none can tell precisely where one ends and the
other begins.

We can not assume that all have the desirable healthy
modesty who claim it or who can blush. We may, however,
analyze the symptoms and trace them to their source, and so
we can, at least in an abstract way, determine the criteria of
the modesty of a healthy-minded, physically perfect man.

The first form of spurious modesty I shall designate as
the modesty of unconscious and uncoerced sympathetic imita-
tion. This, perhaps, is oftenest found in the (simulated)
modesty of children, and not infrequently in adults. If you
should ask them why they denounce certain acts as immodest
they could give no reply except that "they say'* it is so. In
this form there is no emotional aversion nor any fear of the
judgment of others. It is the simplest form of imitation,
unconsciously enacted and because not so fixedly habitual
as to be involved with the emotional life, therefore it does
not yet induce objective moral valuations and is not really
esteemed a virtue. Here there may be a most perfect healthi-
ness of mind, which, however, for the want of a definite ap-
preciation of the factors and evidence of its health, and a
consequent ignorance and absence of all consciousness of
definite standards of healthy mindedness in relation to sex or
modesty, is non-assertive and may be led to imitate the verb-
ally expressed sex-overvaluation of the most unhealthy sen-
sualists, of either repression or indulgence.

When this modesty of an unconscious, ignorant, sympa-
thetic imitation becomes habitual and evolves to self-conscious-
ness, and acquires associated emotions, with all the other fac-


tors unchanged, it becomes the conscious modesty of imitation
through cowardice. This, perhaps, is the most general and
popular kind of modesty among adults, and is about the only
kind of modesty that has received scientific study, and has
often been generalized as being all that there is of modesty.

An idea related to sex, the harboring of which would in-
voke adverse criticism, may and usually does produce an emo-
tional fear, which is readily transfused into an emotional ap-
proval of an opposing idea, and this emotional approval is
quite apt to have its intensity determined by the degree of
fear-emotion, which it really is, and the degree of the indivi-
dual's sexual hyperaestheticism.

Let us now quote the statements of intelligent observers
as to this form of modesty, which is a mere imitation through
fear. In the seventeenth century I find the scholarly Peter
Bayle making this observation as to modesty: "An honest
woman will justly be offended if any one tells her an obscene
story ; but she will not blame an historian for relating it, pro-
vided he abstain from filthy words. An historian speaks to
the public, and not to such and such a woman in particular,
and therefore what he says is not offensive, as it would be
if it was said in a conversation or in a letter. In these two
last cases he would have no very favorable notion of the
modesty of those to whom he speaks or writes, and that it is
that gives offense." 104 .

In this analysis it is clear that such modesty consists only
in a fear of the judgment of those who know that she suffers
in her presence the telling of that which those others esteem
"obscene." The "obscenity" disappears that is, the offense
is non-existent when the fear of that judgment is non-exis-
tent, either ideally or actually.

When some dominant character, through fear of him or
her, has forced generally upon any community some particular
standard of "modesty," we have the condition described by
Dr. Havelock Ellis in these words : "Modesty thus comes to
have the force of tradition, a vague but massive force, bearing
with special power on those who can not reason." 105

It seems to me that the following quotation is pregnant
with the same suggestion that a healthy natural woman is not
ashamed to discuss sex or see sex in the presence of men, un-

*Historical and Critical Diet., Vol. V, page 133, Edition of Lond., A. D.

wt Studies in the Psychology of Sex, page 43.


less first reminded that she is a woman and that therefore
she must fear adverse judgment unless she acts differently
than she would do if unafraid or if she were a man.

"I have conversed, as man with man, with medical men
on anatomical subjects and compared the proportions of the
human body with artists, yet such modesty did I meet with
that I was never reminded by word or look of my sex, of the
absurd rules which make modesty a pharisaical cloak of weak-
ness. And I am persuaded that in the pursuit of knowledge
women would never be insulted by sensible men and rarely
by men of any description if they did not by mock modesty
remind them that they were women; actuated by the same
spirit as the Portuguese ladies, who would think their charms
insulted if, when left alone with a man, he did not at least
attempt to be grossly familiar with their persons. Men are
not always men in the company of women; nor would women
always remember that they are women if they were allowed
to acquire more understanding/' 106

The same thought that fear of the judgments of others
is the essence of modesty comes from another woman. Mad-
ame Celine Renooz, in a recent "elaborate study of the psy-
chological differences between men and women," says : "Mod-
esty is masculine shame attributed to women for two reasons :
First, because man believes that woman is subject to the same
laws as himself; second, because the course of human evo-
lution has reversed the psychology of the sexes, attributing to
women the psychological results of masculine sexuality. This
is the origin of the conventional lies which by a sort of social
suggestion have intimidated women. They have in appearance
at least accepted the rule of shame imposed on them by men,
but only custom inspires modesty for which they are praised.
It is really an outrage to their sex/' 107

In support of her views the authoress points out that the
decolette constantly reappears in feminine clothing, never in
that of the male ; that missionaries experience great difficulty
in persuading uncivilized women to cover themselves ; that
while women accept with facility an examination by male
doctors, men cannot force themselves to accept examination
by a woman doctor, etc., etc. 108

Professor James of Harvard is more specific in his state-

106 W<4lstonecraft, "Vindication of the Rights of Women," page 132.
101 Psychologic Comparre de Homme et de la Femme, pages 85-87, requoted
from Ellis's Psychology of Sex (Modesty), page 4.

108 Ellis's Psychology of Sex (Modesty), page 5.


ment when he informs us that modesty is "The application
in the second instance to ourselves of judgments primarily
passed upon our mates." 109

Ribot concurs in these words: "I look upon it [modesty]
as a binary compound capable of being resolved into two pri-
mary emotions self -feeling and fear. The emotional state
which lies at the root of modesty, shame and other similar
manifestations arises from the application in the second in-
stance to ourselves of a judgment primarily passed upon
others. * * * Modesty can not be considered an instinct
in the strict sense of the word, i. e., as an excitomotor phenom-
enon. Under the influence of custom, public opinion, civili-
zation it passes through its evolution till it reaches the New
England pitch of sensitiveness and range, making us say stom-
ach instead of belly, limb instead of leg [even limbs of a
piano], retire instead of go to bed, and forbidding us to call
a female dog by name." 110

In practically every discussion of modesty the same con-
clusion is implied, even when not expressed. I will quote
a few illustrative statements : "But here we come round to the
altruistic and moral emotions, for shame is present only where
the individual has a desire to please and is pained at the dis-
approval of others."

Darwin expresses his belief "that self-attention directed
to personal appearance in relation to the opinion of others"
and <( not moral conduct," is the fundamental element in shy-
ness, modesty, shame and blushing. 112

Professor Thomas, of the Chicago University, expresses
himself thus : "Now, taking them as we find them, we know
that such emotions as modesty and shame are associated with
actions which injure and shock others and show us off in a bad
light. * * * When once a habit is fixed interference
with its smooth running causes an emotion. The nature of
the habit broken is of no importance. // it were habitual for
grandes dames to go barefoot on our boulevards, or to wear
sleeveless dresses at high noon, the contrary would be embar-
rassing. .

"Our understanding of the nature of modesty is here
further assisted by the consideration that the same stimulus

^Principles of Psychology, Vol. II, page 435.

"^Psychology of the Emotions, pages 273-275.

m Williams's Evolutional Ethics, 439.

^Expressions of Emotion in Man and Animals, pages 325-327.



does not produce the same reaction under all circumstances^
but, on the contrary, may result in totally contrary effects.
. . . Similarly, modesty has a two-fold meaning in sexual
life. In appearance it is an avoidance of sexual attention, and
in many moments it is avoidance in fact. But we have seen
in the case of the bird that the avoidance is at the pairing
season only a part of the process of working up the organism
to the nervous pitch necessary for pairing." [No doubt it is
this same thought as applied to man, which, in about 1751,
induced Helvetius to say: "Modesty is only the invention of
a refined voluptuousness."]

"Modesty with reference to personal habits has become
so ingrained and habitual, and to do anything freely is so
foreign to woman, that even freedom of thought is almost in
the nature of immodesty in her.""

Dr. Havelock Ellis, probably the world's most famous
specialist in sexual psychology, has this to say : "That modesty
like all the closely allied emotions is based on fear, one
of the most primitive of the emotions, seems to be fairly
evident." 114


Among uneducated people, the test of shock to modesty

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 31 of 43)