Theodore Albert Schroeder.

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

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as to this phase of constructive crimes because it seeems to me
to be very little understood and very often disregarded. In its
practical application, no doubt, the tests which I have pre-
scribed will occasionally run counter to certain moral senti-
mentalizing which, however, we can afford to dispense with,
and which our legislators and courts will refuse to regard seri-
ously when we get an enlightened view of liberty. For this
class of constructive crimes the responsibility rests primarily
with the legislative department. For the others, now to be
discussed, the courts are chiefly to blame.


The next class of constructive offenses is a little better un-
derstood. Here the act under investigation is one which, un-
der the former tests, may properly be penalized, but is not
within the plain letter of the prohibitive statute : First, because
the statutory tests of criminality, though certain in meaning
and covering acts of the same general character, do not include
the conduct under investigation; or, second, because the lan-
guage of the statute is ambiguous and the act under investiga-
tion is not clearly within every possible meaning of the words
descriptive of the crime ; or third, because the statute is uncer-
tain in that it prescribes no certain and decisive tests of crim-


inality, thus making it necessary, if the statute is to be enforced
at all, judicially to interpolate such tests. These are the three
classes of judicial legislation which are prohibited in criminal
cases by the guarantee of "Due Process of Law."


In the first of these instances a judicial enlargement of the
field plainly marked out by the statute is so universally recog-
nized as improper, because judicial legislation and therefore
within the domain of prohibited constructive offenses, as to
need no argumentative support. Indeed, all our judicial rules
for the strict construction of criminal statutes are founded
upon the necessity of prohibiting judges from creating law.


The second case, that of ambiguous penal statutes, oftener
seduces judges into an abuse of their power by a misapplication
of rules of construction. Where the words descriptive of a
crime are ambiguous (open to several interpretations, some or
all of which are very certain and definite as to the criteria of
guilt), it is erroneously assumed by many courts that it is an
exercise of the judicial function of statutory interpretation to
select that one among the possible meanings of the statute
which is to be enforced. I do not conceive it so. The judi-
cially selected meaning may not be the one which the legisla-
ture intended to enact. Certainly it has not received the spe-
cific sanction of the legislative branch of the government any
more than every other possible interpretation, and the only
conduct which can with certainty be known to be within the
legislative prohibition (that is within the law) are those acts
which are clearly within every possible meaning of the statute.
If this rule has not been always observed in the matter of am-
biguous statutes it is because judges have not seen clearly the
true relation between such ambiguity and the law.


In the third case, where definitive description of the crime
is wholly wanting (as distinguished from ambiguity in the
definition), because there is an absence of any certain, clear,
universal, and decisive tests of criminality, we have a case for
the application of the old maxim : "Where the law is uncertain
there is no law." In such case, if the court should supply the




tests of criminality so indispensable to the enforcement of
every such statute, those tests would not have the sanction of
the legislative branch of the government, and therefore could
not be the law, in any criminal case. Supplying these criteria
of guilt is therefore clearly a matter of judicial legislation,
by means of statutory interpolation, as distinguished from
interpretation, and punishment thereunder is punishment for
a constructive offense, and not "due process of law."

If, then, we do as we ought and look to the very nature
of our social organism to derive therefrom our conception of
law, as that word is used in our state constitutions, and
the fifth amendment of our federal constitution, then, because
the very essence of "law" is natural justice, and because the
establishment of that justice is expressly declared to be the
purpose of our constitutions, it follows that "law" must always
stand as the destroyer of every vestige of arbitrary power,
which is always open to be capriciously exercised or unequally
applied, and therefore opens the gates to the worst forms of
legalized injustice. In the scientific aspect, the "law" is a
general rule of civil conduct (not religious, nor merely self-
regarding, nor relating to matters of opinion or of speech
so long as the material effect of these terminate with the in-
dividual) which rule of civil conduct must exist in the nature
of things or be duly enacted, in the furtherance of natural
justice, by the duly constituted law-making power, and the
enactment and its publication must precede the conduct to
which it is to be applied; which rule of conduct to be "law"
must not do violence to natural justice, and therefore every
statute penal in character, or one creating artificial rights, if
it is to be "law," from the inherent necessity of its formal
statement (not by accidental uniformity in the judicial inter-
polation or construction) must be general and equal, fixed
and certain, as to all persons who in the very nature of things
bear the same relationship to one another and to the state;
and such statute cannot from its inherent necessity be gen-
eral and equal in its application to all similarly situated, unless
it be also so plain and exact in its description of the right cre-
ated or the conduct prohibited, and in its criteria of guilt, that
every man of average intelligence, from a mere reading of the
statute may know with mathematical certainty, in every con-
ceivable state of fact, why and how his legislatively created



right attaches or lapses, and whether or not his proposed con-
duct is permitted or penalized; furthermore, a penal statute
can predicate an offense and its punishment only upon an
actually ascertained material injury, or the imminent danger of
such, ascertained according to the known laws of our physical
universe, which material injury must be imminent to, or actu-
ally realized by, some sentient being, not giving a voluntary,
undeceived consent, or one who from immaturity or infirmity
is incapacitated for giving that consent. If a statute does
not conform to all these requirements, then I believe it can-
not be the law, and all penalties inflicted under such other
statutes are the deprivation of life or property for mere con-
structive offenses, and cannot constitute "due process of law."
We pass now from these general considerations to the more
specific consideration of uncertainty in criminal statutes.







General Considerations Concerning Uncertainty and Due
Process of Law.

That a deprivation of liberty or property may be due proc-
ess of law, two things must occur. First, there must be a
valid "law," within the meaning of that word in the consti-
tutional phrase "due process of law," and secondly the process
prescribed by that law must be accurately pursued. Here I
am directly concerned only with one phase of the question:
What is essential as to the content of a legislative enactment
to make it a criminal "law" within the meaning of the Con-
stitution? Judicial opinions have often commented upon uni-
formity and universality of application, to all who in the nature
of things are similarly situated, as an essential to the very
existence of a law. Here it is proposed to discuss only the
effect of uncertainty in a criminal statute, as related to the non-
existence of "law", because under such uncertain statutes
-courts must indulge in constitutionally prohibited judicial legis-
lation ; and because statutory uncertainty excludes the require-
ment of unavoidable uniformity of application to all who are
naturally similarly situated. In other words, it is proposed to
resurrect the ancient maxim, "Ubi jus incertum ibi jus nullum"
(where the law is uncertain there is no law) and to make it a
rule for the interpretation of the "due process of law" clause
of our constitutions.

In order that my conclusions may not be discredited by
the use of felse analogies, I deem it wise to begin with a short
analytical statement which will differentiate the problem which
I propose to discuss from kindred problems arising from un-
certainties of other than criminal statutes, and the probable

"Revised from Tht Central Law Journal, Jan. 3, 1908.



different effect which uncertainty may produce in different
classes of legislation. Even though the preliminary discussion
may be superficial, it seems needful since I have nowhere found
any general discussion of the subject.


It is conceivable that some civil enactment of a legislature
would merely be an effort verbally to declare, and legally to
establish and maintain, some rule of natural justice, which is
inherent in the nature of things and of the social organism.
Uncertainty in such a statute, resulting from an unfortunate
choice of words, could do no serious injustice even though
the court, either by legitimate construction or judicial legisla-
tion, should make it certain, if in doing so nature's rule of
justice was not violated, nor artificial penalties inflicted. It is
probable that uncertainty in such a statute would not neces-
sarily effectuate its annulment. At any rate, I exclude that
class of cases from my discussion. A second class of statutes
which might be objected to because of uncertainty, are those
which create artificial civil remedies for the maintenance of
natural justice. Here again ambiguity and uncertainty can
be judicially eliminated in accordance with the legislative in-
tent, if that is reasonably ascertainable from the act itself,
and no injury result to innocent parties, because the postulate
was that the maintenance of natural justice was the only end
to be achieved by the use of this new artificial remedy. For
the same reason such laws may also be retroactive. 11

The third class of uncertain statutes consist of such as de-
clare a rule of justice not derived from nature as such, but find-
ing its foundation in some artificial condition of legislative crea-
tion. The limitation of the liability or rights of corporate
stockholders might be an illustration. When in such legisla-
tion the effect is to curtail the responsibility which naturally
should flow from one's act, great exactness in expressing the
legislative intent to that effect would be required, since every
intendment must be indulged in favor of the natural conse-
quences of one's act operating under natural conditions. But
I'm not going to discuss this either. I have mentioned these
classes only to point out superficially their probable difference
from the next class, so that, in the mind of the reader, my

"Chamberlain v. City of Evansville, 77 Ind. 551; Davis v. Ballard, 1 Mar-
shall (Ky.), 579.



argument may not be subjected to unmerited discredit, because
of the thoughtless use of false analogies.

The fourth class of legislation, of which uncertainty may
be an attribute, includes all those laws which are intended to
create and enforce artificial rights or which are punitive in
their character. The creation of artificial rights such as arise
from the establishment of a public postal system, patent rights,
and copyrights, are all laws of this character wherein the
statute must describe with the accuracy required for a penal
statute upon what conditions the right may vest or be de-
stroyed, else again we are governed by the arbitrary will of
men, and not according to the law.

The relationship of "due process of law" to an uncertainty
in the statutory specification of that which is made punishable
by it, is the special matter here to be discussed.

Every State in the union has from one to several score
of penal statutes in which no words of exact meaning serve
to define with any certainty what it is that is prohibited. In
the last thirty years, under only one class of these uncertain
statutes, about 5,000 convictions have been secured, and it is
fair to assume that under all others, including an infinite
variety of vague municipal police regulations, there have been
some 20,000 more citizens deprived of liberty and property,
and yet seemingly no one has ever doubted that a conviction
under such statutes constitutes "due process of law/' This
makes me wonder if I am dreaming or if the whole rank and
file of the bar and judiciary have forgotten the original mean-
ing and purpose of "the law of the land." I do not even except
the Supreme Court of the United States, because it, like all
the appellate courts of all the states, has repeatedly enforced
such laws without a doubt ever crossing its mental horizon,
originating either with the court or the attorneys appearing
there to argue in such cases.

The most conspicuous and most generally approved ex-
amples of these many and outrageously uncertain laws, are
those which in various ways penalize "indecent, obscene, filthy
or disgusting" literature and art. Those who need to have a
concrete example in mind, while the discussion proceeds, may
be thinking of those laws as a sample of many others which
must be annulled if my contention is correct.



First of all we must bear in mind the distinction between
an ambiguous statute and an uncertain one. An ambiguous
statute I conceive to be one which is expressed in words some
of which have several different meanings, all, or some of
which meanings, would leave the statutory signification so cer-
tain as not to require any additional words to make its meaning
plain and uniform beyond doubt, to every man of average in-
telligence. When that is the case the problem is one of con-
struction, in the method of which due regard is to be had, first
for the liberty of citizens and second for the legislative in-
tention, which, however, must be gathered exclusively from
the words of the act itself. The rules for statutory construction
will always protect the accused, so he shall not be punished
if there be any reasonable doubt as to whether his act neces-
sarily comes within the very letter of all of the possible mean-
ings of the statutory prohibition. If it does not come within
every possible interpretation of the legislative language, the
accused must have the benefit of the doubt under the rule
of strict construction. In a statute which is only ambiguous,
we can thus avoid all possibility of raising the constitutional
question which I am proposing to discuss. If in criminal cases
such rules for a strict construction do not safeguard the
liberties of citizens, they are convicted under judicial legis-
lation, and not by "due process of law."

By an uncertain statute, as contradistinguished from an
ambiguous one, I mean a statute which is uncertain because
incomplete in its description of the artificial rights created by
it, or the act which it proposes to punish. Thus an uncertain
statute is one which, when applied to undisputed facts of past
or present existence, is incapable of any literal enforcement, or
incapable of enforcement with absolute certainty and uniform-
ity of result, except by the judicial addition of words, or tests,
which may or may not have been intended by the legislature,,
but which are not unavoidable implications from the statutory
language alone. It will be contended that such an uncertainty
in a statute, creating an artificial right or punishment, makes
the enactment unconstitutional because in its practical operation
and enforcement it unavoidably involves ex post facto judicial
legislation in defining the crime, and therefore is not "due




process of law/' and is an arbitrary government of men and
not of law. 12


These generalizations can hardly provoke much antago-
nism. It therefore seems to me that the difficulty lies chiefly in
a clouded vision concerning their application to concrete facts.
We shall presently see how in some instances it is not at first
clear whether the uncertainty is inherent in the statute or arises
from doubt as to the probative value of the evidence adduced
under it. We must first take notice of that kind of uncertainty
which arises because the statute attempts to make guilt de-
pend, not solely upon facts of present or past existence,
but also requires a decision upon an essential element of the
crime concerning speculative and problematical tendencies
towards future results, of such a character as are undetermin-
able with accuracy and uniformity by the known laws of the
physical universe. Again we must observe the difference be-
tween a doubtful sufficiency of evidence to establish a fact
of past or present existence, and which beyond all question
is of a demonstrable character, and that other case of doubtful
sufficiency of evidence to establish a fact, not of past or present
material actuality, and one which from its very nature is
incapable of certain demonstration, under the known laws of
the physical universe, but is by the statute required to be
proven as an element of the crime. In the former case the
uncertainty of guilt or innocence is not chargeable to uncer-
tainty of the statute. In the latter case it is wholly due to
such uncertainty, because a conclusion as to the present ex-
istence of an unrealized, non-physical or psychologic tendency,
is but an unsupported belief as to the doubtful possibility of a
future doubtful event. Where such an uncertainty inheres in
the statute itself, and is of the essence of the crime it attempts
to define (as is the case with our obscenity statutes and the
judicial legislation creating tests of obscenity), then in the
very nature of things guilt must always be determined by
surmise, speculation, caprice, emotional association, ethical
sentimentalizing, moral idiosyncrasies or mere whim on the
part of judges or jurors. Punishment for such a "crime," or
under such a statute is the arbitrary deprivation of property,

12 As to the requirement of certainty in laws creative of artificial civil rights,
ee: Blanchard v. Sprague, Fed. Case No. 1517, and cases; also, Bittle v. Stuart.
34 Ark. 229-232; Ferrett v. Atwill, 1 Blatchford, 157.



or liberty, or both, according to the aibitrary dictates of men
not vested with legislative authority, and therefore is not ac-
cording to "due process of law."


In the obscenity statutes there is no question of construing
involved verbiage, but solely one of defining the word "ob-
scene." Let us first clearly understand what we mean by a
"definition." If the word "water" had been used in a statute,
every average man would at once translate that word into the
same general mental picture. Every such reader would prob-
ably define the word "water" as standing for a certain trans-
parent, odorless fluid, of the identical kind with which he, and
every one else, has had abundant experience. There never
would arise in any man's mind any doubt as to what concrete
concept the general word "water" symbolized, even though it
might become a matter of inquiry whether a particular sub-
stance was water or peroxide of hydrogen. That doubt is not
as to the meaning of the word, but one concerning the past or
present existence of the corresponding objective fact; one of
classifying the matter as water. When such an issue has
arisen we do not resort to a definition of the word, for the pur-
pose of making certain what concept the word "water" was
intended to convey; instead, we call in experts to apply the
chemical tests by which the objective material, "water," is
differentiated from peroxide of hydrogen.

To determine the classification of a particular substance
we apply mathematically exact and always uniform tests, not
created by statute and not a part of a judicial definition of
any word used in the statute. If such exact tests exist in the
nature of things there will be no occasion for legislatures
or courts to prescribe them. If they do not exist in the nature
of things perhaps the legislature has the right and power to
create its own artificial tests or definitions, but in a criminal
statute they must be of equal certainty with the ascertained
laws of the physical universe. If neither science nor the
statute furnishes us with a definite test by which to determine
the existence of those things expressed by statutory words
and which are essential to a definition of a crime, then the law
is void for uncertainty and the lack of statutory tests of
criminality cannot be supplied by the courts since that would
be judicial penal legislation, and ex post facto at that.



If such tests were not a matter of exact science, but merely
a matter of speculation, or necessary judicial creation in the
attempt to enforce such an uncertain law, then they would be
unconstitutional judicial legislation and not definition nor
statutory interpretation. Furthermore, if such tests were not
of mathematical certainty, then the law would be a nullity
because "where the law is uncertain, there is no law." Let
us now keep in mind the word "water" (in contrast with the
word "obscene"), and the character of those differentiating
tests, not of statutory origin, nor necessarily implied in the
statutory words, but by which we, as a matter of physical
science, distinguish the substances of that for which the words

With the foregoing distinction in mind, I affirm that no
human can define the word "obscene" so that every reader,
ven with the help of the test, or definition, must receive there-
from the same concrete mental picture. The reason obviously
is, that unlike the word "water," the word "obscene" stands
for no particular concrete objective quality, but always and
ever stands for an abstraction, in which is generalized only
subjective states, associated with an infinite variety of ob-
jectives, and therefore in the concrete it will always have a
different significance for every individual, according to what
he has personally abstracted, from his peculiar and personal
experience, and classified according to his own associated
emotions of disapproval, and included within his personal
generalization, "obscene." Each individual therefore reaches
a judgment about obscenity according to his own ever-vary-
ing experiences, and the peculiarly personal emotional associa-
tions (of approval or disapproval) which are evolved from
these, as well as the degrees of his sexual hyperaestheticism.

From this indisputable fact, it follows that the word
"obscene" is indefinable as a matter of science and the criminal
statute, of which that word is an indispensable element, is
void, because "where the law is uncertain there is no law," and
no "due process of law."

We must make still clearer, if possible, the difference be-
tween the uncertainty of the "obscene" and other remotely
similar uncertainties. Some will ask, Is not the uncertainty of
the existence of a special intent, which sometimes is made an
-essential element of a crime, just as uncertain as the unrealized



psychologic tendencies of a book, which are the judicial test
of its obscenity? I answer "No!" The existence of that
intent as to past acts is in its nature a demonstrable fact. The
accused, if he would tell the truth, could settle it beyond a
doubt. Here the uncertainty is one of evidence not of statutory
tests of crime. An unrealized psychologic potential tendency

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 35 of 43)