Theodore Albert Schroeder.

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

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tion. In such a case the judicial enlargement of the field
plainly marked out by the statute is so universally recognized
as improper, because judicial legislation, and therefore within
the domain of the prohibited constructive offenses, as to need
no argumentative support. Indeed, all judicial rules for the
strict construction of criminal statutes are founded upon the
necessity of precluding judges from creating law.

If the act penalized by the statute under consideration
is assumed to be one which may be penalized, and the conten-
tion herein made, namely, that none of the judicial tests of
"obscenity" has that certainty required by the Constitution,
is held good, then the last declared principle has no application.
On the other hand, if the judicial tests of "obscenity" do have
the certainty required, then this principle still does annul the
law, becauses these "tests" of guilt are clearly of judicial cre-
ation, extending the statute beyond what the words of the
legislative enactment necessarily imply.


The second class of constructive offenses is less perfectly
understood. Here the act under investigation is again one
which, under any of the tests prescribed hereafter, may prop-
erly be penalized, but the statutory language is ambiguous in
its specification of the criteria of guilt. Such statutes often
seduce judges into an abuse of their power by a misapplication
of rules of construction. Where the words descriptive of the
crime are ambiguous (open to several interpretations, some
or all of which meanings, taken separately, are very certain in
their application to all specific facts), it is erroneously as-
sumed by many courts that it is an exercise of the judicial
function of statutory interpretation to select that one among



all the possible meanings of the statute which is to be en-
forced. I do not conceive it so. The judicially selected in-
terpretation may not be the one which the legislature intended
to enact. Certainly it has not received the specific 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 pro-
hibition (that is, within the law) consists of those acts which
are clearly within every possible meaning of the statute. If this
rule has not been always observed in the matter of ambiguous
statutes it is because judges have not seen clearly the true
relation between such ambiguity and the law, as a scientist
must view it, nor the distinction between judicial legislation
and judicial interpretation. Very many of the prosecutions
under the laws in question have resulted merely from a dif-
ference of opinion between the prosecutor and some sex-re-
former as to which of the speculative meanings of "obscene"
was to be enforced. It is an outrage that these defendants
were never given the benefit of the doubt.


The third class of these prohibited constructive offenses
consists of those where definite description of the crime is
wholly wanting (uncertainty as distinguished from mere am-
biguity), because there is total absence of any certain, clear,
universal and decisive tests of criminality. Then we have a
case for the application of the old maxim : "Where the law is
uncertain there is no law." In such a case, if the Court should
supply the tests of criminality so indispensable to the enforce-
ment of every 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
tests, or criteria of guilt, is therefore clearly a matter of
judicial legislation, by means of statutory interpolation, as dis-
tinguished from interpretation, and punishment thereunder is
punishment for a constructive offense, and not due process
of law.

If in a criminal case a Court should undertake to enforce
upon any person a judgment which did not conform to gen-
eral, uniform and certain rules of conduct having an exact,
verbally formulated existence, which were wholly created by the
legislative department, and therefore existing outside the mere



will of the Court, and well known or easily accessible to all
prior to the inception of the cause of action then before the
Court I say, if a Court should undertake to enforce any-
thing different from such a law, it would not be enforcing the
law at all, and to submit to such penalties would be submis-
sion to a government by the arbitrary and despotic will of the
judiciary, and not in any sense would this be a government
according to law, and this must always be the case where the
statutory criteria of guilt are uncertain. Criminal punishment
under such circumstances would be punishment for construct-
ive crimes, and not due process of law.

This is perhaps the most appropriate place to quote a few
opinions in which this principle has been applied to statutes,
similar at least in the nature of the uncertainty of their criteria
of guilt, sometimes resulting merely in the discharge of the de-
fendant, and at others in the more specific annulment of the


The highest court of the State of Indiana has left us two
instructive opinions. The court is construing a statute against
"notorious lewdness or public indecency." No question of the
constitutionality of the statute was before the court, yet. after
reviewing English authorities, the court continues its reflections
thus: "It would therefore appear that the term 'public in-
decency' has no fixed legal meaning is vague and indefinite,
and cannot in itself imply a definite offense. And hence, the
courts, by a kind of judicial legislation, in England and the
United States, have usually limited the operation of the term to
public displays of the naked person, the publication, sale or
exhibition of obscene books and prints, or the exhibition of a
monster acts which have a direct bearing on public morals,
and affect the body of society. Thus it will be perceived that
so far as there is a legal meaning attached to the term, it is
different from and more limited than the commonly accepted
meaning given by Webster to the word indecency. A statute
relative to a misdemeanor of the grade and character of this,
and prescribing so severe a penalty as the deprivation of lib-
erty by imprisonment, ought to be clearly worded, so as to
leave no doubt or ambiguity about its meaning, before it should
be construed to include a large and undefined class of offenses
against morality. * * * This statute, under such circum-



stances, should be in itself explicit, and should not depend for
vitality upon another act defining the meaning of words. * *
If the statute is given the broad construction contended for
by the prosecution, who is to determine what phrases amount
to an offense under it ? Is the public sentiment of each locality
to be reflected through the jury?" 87 Conviction reversed be-
cause act not within the statute, that being all that was before
the court.

The next case was an appeal from a conviction under a
statute against heavy hauling on turnpike roads. The statute
was held void for uncertainty, and the court said : "The lan-
guage of a criminal statute cannot be extended beyond its
reasonable meaning, and, whenever the court entertains a
reasonable doubt as to the meaning, the doubt must be re-
solved in favor of the accused. The court must expound what
it finds written, and cannot import additional meaning with-
out sufficient indication thereof in the words of the statute,
with such aids thereto as the established rules of law author-
ize. * * * Where the terms of the statute are so uncer-
tain as to their meaning that the court cannot discern with
reasonable certainty what is intended, it will pronounce the
enactment void. * * * There must be some certain stand-
ard by which to determine whether an act is a crime or not/' 88

In another place I find a quotation to the point, but the
original source of which I do not know with certainty. From
the connection in which it is published, I infer that it is quoted
from an unofficial report of the remarks of the late Judge
Lowell, of Boston, while imposing a nominal fine upon one
Jones, who had pleaded guilty to distributing Clark's Mar-
riage Guide through the mails. This is of course unofficial,
but its logic is incontrovertible.

"Crime should be so clearly defined that there can be no
mistaking it; murder, homicide, arson, larceny, burglary, for-
gery, are so defined that they cannot be misunderstood. If
obscenity is a crime punishable by fine and imprisonment, it
ought to be so clearly described that we may know in what it
consists, and that accused persons may not be at the mercy
of a man or a number of men who construe what is obscene,
indecent or immoral by their own special opinion or notion of

morality or immorality. What is obscene to one man may be
K *

Cook vs. State, 59 N. E. (Ind.) 489-490 (1901)
TRequoted from Heywood's Defense, p. 29.



pure as mountain snow to another. One man should not and
cannot decide for other men." 8 *

In another case a similarly vague statute made it a mis-
demeanor to "commit any act injurious to the public health, or
public morals, or the perversion or obstruction of public justice
or the due administration of the law." The court said : "We
cannot conceive how a crime can, on any sound principle, be
defined in so vague a fashion. Criminality depends, under it,
upon the moral idiosyncrasies of the individuals who compose
the court or jury. The standard of crime would be ever vary-
ing, and the courts would constantly be appealed to as the
instruments of moral reform, changing with all fluctuations of
moral sentiment. The law is simply null. The Constitution,
which forbids ex post facto laws, could not tolerate a law which
would make an act a crime, or not, according to the moral
sentiment which might happen to prevail with the judge or
jury after the act had been committed." 9 *

One United States Court, although not asked to do so, has
all but declared the postal laws against "obscene" literature to
be unconstitutional as the necessary result of their uncer-

"We have been taught to believe that it was the greatest
injustice toward the common people of old Rome when the
laws they were commanded to obey, under Caligula, were
written in small characters, and hung upon high pillars, thus
more effectually to insnare the people. How much advantage
may we justly claim over the old Romans, if our criminal
laws are so obscurely written that one cannot tell when he
is violating them? If the rule contended for here is to be
applied to the defendant, he will be put upon trial for an act
which he could not by perusing the law have ascertained was
an offense. My own sense of justice revolts at the idea. I
cannot give it my sanction. * * * The indictment is quashed,
and the defendant is discharged."^


Fourth: It follows from the fact that human justice and
a secular state can deal only with material factors, that an of-
fense to be real and not merely constructive must be condi-

Ex parte Andrew Jackson, 45 Ark. 164. ( I ^ ;

<f| -U. S. v. Commerford, 25 Fed. Rep. 904. West Dist. of Tex.
Pub. Weekly, p. 1218, dated April 81, 190.



tioned upon a demonstrable and ascertained material injury,
or upon the imminent danger of such, the existence of which
danger is determined by the known laws of the physical uni-
verse. Our Constitution, both in its guarantee of freedom of
speech and press, and in its guarantee of due process of law
(as we must understand the law, according to the scientific
viewpoint), precludes the construction of mere psychologic
crimes. The offenses which are based only upon ideas ex-
pressed or otherwise, such as constructive treason, witchcraft,
and heresy, either religious or ethical, and all kindred psycho-
logic or other constructive crimes, are prohibited, because the
very nature of the law whose supremacy and processes our
Constitution guarantees is such that American legislators can-
not be permitted to predicate crime upon mere psychologic
factors. Manifestly this does not preclude punishment when
these psychologic factors have ceased to be merely such, by
having resulted in actual material injury as distinguished from
constructive and speculative injury. For example, it does not
preclude punishment in cases of personal libel, which has re-
sulted in material injury, or where the uttered opinion has re-
sulted in actual crime, under such circumstances as to make
one an accessory before the fact, or as to prove a conspiracy to
secure its commission.

Furthermore, if the State should be permitted to penalize
an act which is not an essential element in doing violence to
that natural justice which can deal only with material and
physical factors, such a statute could not be one enacted in
the furtherance of the governmental purpose to establish jus-
tice (material justice), and therefore such a law could not be
within the legitimate province of such a government as we
profess to maintain. Furthermore, such a statute, penalizing
an act which is not an essential element in violating natural
justice, must in itself be the creation of an injustice that is,
it must in itself, and from its very nature, authorize an in-
vasion of liberty, unwarranted by any necessity for defending
natural justice, or maintaing the greatest liberty consistent
with equality of liberty, and therefore the enforcement of such
a statute would be the deprivation of liberty without due pro-
cess of law, as we must understand "law" if we view it in the
scientific sense. I conclude that every such statute as I have
last hereinabove described is also an attempt to punish for a



^constructive offense is a violation of our constitutional guar-
antee of due process of law.


It hardly seems possible that there can be much conflict
of opinion about the foregoing generalities. The differences
of opinion I apprehend will arise chiefly when we come to
make deductions therefrom for application to some particular
statute, and the result comes in conflict with our moral senti-
mentalism. Under such circumstances we are all predisposed
to error, because our emotions will necessarily blur our intel-
lectual insight as to the difference between certainty in the
very words of the statute, and a strong feeling-certitude within
us that the legislature must have meant to prohibit exactly
what we feel that it ought to have prohibited. Thus moved
by our feelings, just to the extent that they are intense, we
shall be certain to read our feeling-convictions into the statutes,
which, often by reason of their very uncertainty, readily lend
themselves to this dangerous and almost inevitable evil of ju-
dicial penal-legislation. If this evil can be avoided it will be
only because our intellectual development is of that superior
order which dominates the feelings, without ever being over-
come by them, and which at the same time enables us to pos-
sess an illuminated view of the point of contact and division
between judicial (so called) statutory construction and a ju-
dicial usurpation of the legislative function, under the guise
of statutory interpretation. These considerations seem to
make it desirable that the foregoing principles be more elab-
orately restated with some special attention to the factors
which necessarily imply unconstitutional uncertainty and form
the tests by which statutes will be adjudged to be uncertain,
and consequently a nullity. Thus we shall still further clarify
our intellect and fortify ourselves against the dangerous, lib-
erty-destroying tendency to punish for constructive offenses.


If the legislative verbiage in a criminal enactment is so
involved as to make its significance doubtful, or if the offense
is bunglingly described by words which symbolize and general-
ize only a subjective (emotional) state, associated in the minds
of different persons with a variety of mere, peculiarly personal,
abstractions incapable of an accurate, concrete definition that



is uniformly applicable to every conceivable case, and decisive
beyond all speculative doubt, then, in either event, that enact-
ment must be declared a nullity, because "where the law is
uncertain there is no law." If courts were allowed to decide
which of possible or conflicting descriptions is to be made
effective and which annulled, or were allowed to create the
criteria of guilt, when the legislature has failed to do so, this
would be judicial legislation. The legislature having furnished
no exact material for definition, the courts can declare only
that to be the law which its judges, in the exercise of legislative
discretion, believe ought to be the law. Instead of deriving
that legislative intent exclusively by deductions made from
the legislative language, the judges of necessity read their own
personal desires into the statutes and dogmatically declare
these to have been the legislative intent.

The judicial power over criminal statutes must be limited
to a mere re-declaration, or restatement of that which, to
every intelligent person, is already definitely and clearly mani-
fest from the actual words of the enactment, and from these
alone. If it requires more than this to make the statute en-
forcible, or applicable to a particular case, then the statute is
a nullity under the maxim, "Where the law is uncertain, there
is no law." To do less than this, for every word used in the
enactment, or to do more by importing and engrafting into a
criminal statute facts and phrases not actually placed there by
the legislative body, is again a judicial usurpation of the power
to enact criminal legislation.

It follows that if those words which alone are actually
employed in the statute do not unavoidably import such an
exact definition that every man of average intelligence, by the
use of the statutory definition alone, can determine with math-
ematical certainty whether a particular act is a crime (or a
particular book is obscene), then the legislative body has failed
to create a criminal "law" and the court, being without legis-
lative power, has nothing to execute, but must declare the
pretended statute a nullity, because, "Where the law is un-
certain, there is no law."



Not quite identical with the foregoing proposition is this
truism: The power of courts is limited to deductions made



from the legislative words; that is, the general concept sym-
bolized by the statutory words may be made concrete to de-
termine if the specific act is necessarily included in the legisla-
tive general conception, as that is exclusively revealed in the
legislative language. In other words, the court cannot create
such a concept where the legislative word-symbols do not stand
for definite concepts. That again would be judicial legislation,
not interpretation, because, "where the law is uncertain there
is no law," and a law which requires this to make it effective
is void.

If courts can be credited with any power to construe penal
statutes, the occasion and subject-matter of construction must
be found solely in the ambiguity of the word-symbols used in
the criminal statutes and not in the translation of the interpo-
lated ideas of the judge. The latter is an act of judicial legis-
lation, under the guise of interpreting the indefinable nature
of that which the legislative words in fact do symbolize.
Any other rule would authorize arbitrary ex post facto judicial
legislation and punishment, and where the legislative word-
symbols do not stand for definite concepts the enactment is a
nullity because "where the law is uncertain there is no law."

To clarify our minds let this be restated in another way.
When the word-symbols descriptive of the crime do not stand
for definite or concrete concepts, nor any sense-perceived, ob-
jective quality or activity of matter, of present or past exist-
ence, but represents to each individual only a subjective rela-
tion between his own purely personal experiences, or the
abstractions made from them, and his purely personal emotions
of approval or disapproval, then the words used to describe
this subjective condition must, because of its abstractions and
emotional element, ever making it personal and individual,
always elude accuracy of definition, and the law is void "be-
cause where the law is uncertain there is no law."

Whenever we neglect the requirement that every crime
must be predicated upon some actual sense-perceivable and
proven material injury, or the imminent danger of such, deter-
mined to be imminent by the known laws of the physical uni-
verse, and therefore accurately definable and so defined in the
statute I say, whenever we abandon these requirements,
we are condemning men on mere metaphysical speculations
about unrealized psychologic tendencies, or according to the



personal ethical sentimentalizing, whim, caprice, malice, etc.,
etc., on the part of those charged with the execution of the
law, and thus the judge arrogates to himself the role of legis-
lator; and under such enactments convictions are never se-
cured according to the uniform express authority of any
statute, and all such convictions inflict punishment for mere
constructive injuries and are an unconstitutional deprivation
of liberty and property because not "due process of law/'
This error, I repeat, is one easily made if we are but careless
about the proper different attitudes of mind which should
characterize our outlook upon penal statutes and those of a
civil nature which declare and enforce only natural justice; or
if our vision is clouded as to the difference between deduc-
tions made from the statutory phrases and our feeling-convic-
tions read into statutes, made hospitable thereto because un-
certain, and therefore containing little or no limitation upon
the reading-in process.

Under our system (especially that of the Federal Criminal
law), where legislative power is definitely placed, accurately
limited, and incapable of transference to a jury, star-chamber,
or any other department of government, and where in addition
ex post facto laws are prohibited, it is manifest that the maxim
against uncertainty in statutes must be treated as an insep-
arable, inalienable and inherent part of that liberty of the citi-
zens which is guaranteed by every American constitution.
Without certainty before the fact, as to what is the law in re-
lation to it, there can be no such thing as "due process of law"
in any conviction. If the criminal statute is uncertain, then
courts and juries become legislators after the fact, if any en-
forcement of the statute is had.

It follows that if any American legislative body should
create a crime without defining it, such enactment would be a
nullity. Should an attempt be made to penalize the commis-
sion of "screw-loos-ibus," without defining the word, such a
law would be unen forcible and void. It is intolerable that
courts should resort to current history and therefrom deduce
meanings to be read into a penal statute whose words are de-
void of all definiteness of meaning. By such a process the
court might conclude that a legislature by "screw-loos-ibus" in-
tended to penalize certain unpopular practices of "Christian"
Scientists or Spiritualists. If courts may thus speculate in-



ductively from current history, personal emotions and preju-
dices, and read the result into penal statutes by dogmatically as-
serting that this or that was the legislative intent, then we have
re-established judicial despotism. In the absence of a generally
known and accurately definable meaning for the word, an en-
forcement of the law against "screw-loos-ibus" would neces-
sarily involve the exercise of legislative power, by the court
or jury charged with its execution, and this enactment, by an

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 40 of 43)