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several other epithets, such as indecent, filthy, and disgusting,
which are even more outrageously indefinable than the original
"obscene." Under the vague statutory words "indecent, filthy,
disgusting," several attempts have been made to secure con-
viction for circulating merely anti-religious literature. Such
cases were the arrest of Bennett for circulating "An Open
Letter to Jesus Christ" ; the arrest of Moore, in Kentucky, for
circulating irreligious literature, and the arrest of Vanni, a
news dealer, for vending foreign anti-clerical papers. Up to
this time, the courts have not indulged in the necessary judicial
legislation to make the indefinable statutory epithets cover cases
of mere theologic heresy. However, judging by the progress
being made, and the increasing ease with which postal au-
thorities and courts, by usurped power, interpolate into such
uncertain statutes their own ex post facto criteria of unmail-
ability and guilt, the time is not far off when the just stated
hope of the N. Y. "Society for the Suppression of Vice" will
be a realized fact. Thus, without "blasphemy" in the Statute,
the persecutors of unpopular opinions will accomplish all the
inequity formerly achieved by the laws against blasphemy.

FROM "OBSCENE BLASPHEMY" TO "BLASPHEMOUS OBSCENITY."
I have shown that at Common Law "obscenity," merely as

2 Argument of the Attorney of the Commonwealth in the trials of Abner Knee-
land, p. 89.

8 See p. 7 of its Report for that year.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

such, was not an offense. However, there was a kind of blas-
phemy which was distinguished from other sorts of blasphemy
by the adjective "obscene." 4 "Obscene blasphemy," as known
at Common Law, seems, under the determining influence of
puritanism, to have evolved into the notion that all heresy as
to sex-morals and ideals was in itself a blasphemy. With the
growth of religious liberality, and the consequent odiousness
of prosecutions for "blasphemy", there came a change of name,
and a modification of sentiment, which resulted in the first
penalization of all "obscenity" merely as such, and, as in all
blasphemy laws, the creation of psychologic crimes, by making
the penalty attach without proof of actual injury, or the im-
minent danger thereof according to any known laws of our
physical universe. Unfortunately, these statutes never furnish
the criteria of guilt, but leave that to the whim, caprice and
"moral" idiosyncracy of judges and jurors, and this in spite of
our constitutional guarantee of "due process of law."

The earliest "obscenity" prosecutions to attract widespread
attention were for the sale of "Cupid's Yokes." This pamphlet,
although not written with an eye single to politeness of style,
yet manifestly is a serious and bona fide attempt to discuss the
difficult sociologic problem of sex, and evidences more thought
and study in its preparation than is usual in such productions.
The author was an Infidel, and the vendors of it were most
often persons who, having seen the utility of encouraging
heresy in matters of theology, were willing also to encourage
a dissent from religious sex-morals. So these culprits were
apt to be Infidels, as also were those who were willing to de-
fend the right of men to advocate even disapproved sex-heresy.
The doctrines advocated in this pamphlet were similar to those
quoted in the foregoing comment on the Kneeland blasphemy
case. The chief of our moralists for revenue called it "blas-
phemous obscenity."

To the unreflecting crowd the difference between "obscene
blasphemy" and "blasphemous obscenity" is not very great, and
to our sex-worshiping moral sentimentalists there is no dif-
ference at all. To the latter, all frank discussion of sex is
blasphemy because it unveils their sacred idol, and all other
blasphemy is immoral chiefly because it tends to discredit the
divine guarantee of their a priori sex-morality. Thoughtful
persons saw in all this a new departure. Formerly the criterion
of guilt was theologic heresy while now there was to be an

*Albany Law Journal, May, 1907.

4 6



ETIOLOGY AND DEVELOPMENT OF OUR CENSORSHIP.

extension of the censorship into purely sociologic realms which
once had been recognized as secular domains, beyond the
province of Religio-State control.

ON THE MANUFACTURE OF PRECEDENTS.

Before proceeding to the exposition of the evolutionary
process and achievements of our censorship, I think it well to
indicate how designing men can manufacture judicial prece-
dents gradually enlarging a dangerous undefined power. Those
who practise a lucrative morality, by regulating the intellectual
food-supply of others, are much more far-seeing than the
friends of freedom, and in their manufacture of precedents
our moralists for revenue exercise a considerable ingenuity.
If a book they wish to suppress is published by an influential
firm, they may think it unwise to attack the publisher, but go
after some obscure or unpopular and impecunious retailer of
the book. If he shows fight and the book is one which might
find many friends to champion it, the culprit is invited to plead
guilty and pay a nominal fine. Usually he is quite willing to
assist in establishing a pernicious precedent if only it saves his
purse. By citing precedents thus manufactured, others are
cowed into submission, and courts are finally lead to adopt
them in extension of the censorship. In a recent case an em-
ployee was arrested for distributing an alleged "obscene" pam-
phlet. A nominal fine was suggested if he would plead guilty.
Upon refusing to accept the offer, his employer was threatened
with arrest. Still refusing, the court held the pamphlet no
violation of the law. At other times, when, in all probability,
indictment and conviction cannot be had, appeal is made to the
Postal Department to exercise its power, made arbitrary by un-
certainty of the statute, to refuse the transmission of the
offending book, and all advertisements of it. If the courts are
resorted to, they deny relief because the same statutory un-
certainty makes it impossible to say that the postal authorities
have abused their discretion, which discretion, however, is con-
ferred only by implications arising from the same uncertainty
of the same statute. Thus are our liberties frittered away by
piece-meal construction. Then, too, our professional purists
often are very wise in the choice of jurisdiction in which they
seek to make a precedent. They soon learn that some judges
will construe books to be criminal which other judges, perhaps



47



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

more clean-minded, would probably hold to be no violation of
this uncertain statute. We all know where they would seek
to create their precedent. Because these statutes do not furnish
the criteria of guilt, all this is possible and easy. The public
must be content with dogmatism and question-begging epi-
thets. No one dares republish the "obscene" matter, even for
the purpose of convincing the voting public that the law which
condemned it should be repealed.



The chief force behind these "obscenity" laws is the waning
influence of the ascetic ideal. Very generally, Christians had
accepted the views of Origen and St. Hieronymos that
"Marriage is always a vice ; all we can do is to excuse and to
cleanse it." Quite logically it followed from such premises that
to produce the most virgins and Christian soldiers should
come to be estimated as the least offensive life for those who
claimed a "sacramental authority to live unchaste." Of course,
to such minds the artificial sterilization of marriage was the
greatest possible offense and akin to blasphemy, in that it was
the frustration of the "divine plan."

As the ascetic ideal was losing its influence over sane minds
its apostles most naturally resorted to the usual legalized
violence to enforce it upon the increasing number inclined to
repudiate it. Sometimes an effort was made to stretch the
Common-law crime of "obscene blasphemy" so as to provide
punishment for those who disseminated information as to the
prevention of conception. Later, when the "obscenity" statutes
had been passed, it was contended that such information
was "obscene." Courts and juries did not always lend them-
selves to the enforcement of this view. Then our moralists
for revenue secured statutes which specifically penalized such
information.

A most practical book for physicians and intelligent lay-
men is entitled, "Sexual Hygiene, Compiled from Books,
Articles, and Documents, Many not Heretofore Published, by
the Editorial Staff of .'* Both sides of many contro-
verted questions are presented. Among other things, there
is a short chapter discussing methods for the prevention of

*I heard of this suppression quite accidentally. The publishers declined
furnish any information and requested that I do not mention it. This attitude,
which is very general among publishers, makes it almost impossible to find out
what our censors are suppressing.

48




ETIOLOGY AND DEVELOPMENT OF OUR CENSORSHIP.



conception. This book was recently suppressed by threat of
prosecution, and doubtless because it was "obscene," if al-
lowed to get into the hands of laymen, as well as because of
its discussion of preventives. So it has come to this that it
is a crime to assist in preventing the prolific propagation of
the unfit, and, so far as the law can promote such ends, we
have compulsory breeding, breeding enforced by statute. This,
too, in a land where it is declared that the maintainance of
liberty is the end of government.

FROM BAWDRY PICTURES TO NUDITY IN ART AND SEXUAL
ANATOMY.

In the beginning it seems as though people thought that
only bawdry portrayals were to be suppressed. "Filthy" was
the characterization of Congressman Merriam when in 1873
he made a statement in favor of the suppression of the "ob-
scene." Such question-begging epithets of course preclude a
thoughtless public from the weighing of human liberty against
moral sentimentalism, or of considering the evolution of prec-
edents, or even asking for statutory critera of guilt. A dull
and unconcerned populace did not see that the precedents
which they applauded would lead to the suppression of all
nudity in art, and ultimately to the suppression of all contra-
diction of the theology of sex. The transition was swift .from
suppressing what disgusted most people to the suppression of
that which could offend only the extreme ascetic, or prude.
Boston banished its bronze Bacchante. A copy of "The
Triumph of Charles V," by Hans Makart, was ordered out
of the window of a New York candy-store. A Fifth Avenue
art dealer had to conceal a landscape portraying some children
discreetly walking away from the beholders. That these
pictures had the saving grace of high art did not protect their
owners, and these owners, not caring to indulge in the ex-
pense of defending human liberty, succumbed to the threat.

Emboldened by similar successes, the Art Students League
catalogue was attacked because of its drawings of nude men.
Washington postal authorities had declared it mailable, so an
arrest was made under State laws. The defendant was in-
duced to plead guilty on assurance that no appreciable penalty
would be inflicted. This also was cheaper than to defend
human rights, and thus the seemings of another judicial prec-
edent were established. However, this doubtful victory and
the great publicity given it did not yet give courage for at-

49



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

tacking a popular magazine which soon after adorned its title
page with the posterior view of nude children. The result
might have been different had it been a periodical more gen-
erally disapproved, or which had previously and for other
reasons excited official condemnation.

From art to literature was not a far reach. First of course
the censors suppressed the purely bawdry literature, as for
example, "Fanny Hill" and "Memoirs of a Woman of Pleas-
ure." Thence the extension to "The Yoke" and "Three
Weeks" ; Zola, Boccaccio and Rabelais also have been attacked
with varying success, and even lately a woman was arrested in
New Jersey for sending to her husband, by mail, a copy of
Burn's "Merry Muses." In New York a woman, having
qarreled with her husband, had him arrested for having mailed
her a lascivious letter. Tolstoi's "Kreutzer Sonata" was sup-
pressed by Postmaster General Wanamaker. Bills have al-
ready been introduced to penalize advertisements of liquors
and cigarettes, and descriptions of drinking and smoking
scenes. Soon we will have a literature that is not only sexless
but also drinkless and smokeless. But what good will have
come to humanity when all this is achieved? Will sexual and
other irregularities really cease in fact because they cannot
openly exist in type? Will justice be more certain and liberty
more secure?

Dr. R. W. Shufeldt, Major U. S. Army (retired), is
internationally one of the best known among American Scien-
tists. He has published a number of books and over 1,100
essays making many valuable contributions of original re :
search and of great scientific value. One of his latest is a
handsome volume, which in the cheapest edition sells for
$15.00, and is entitled "Studies of the Human Form."

The author says : "The aim in writing it has been to make
a contribution to the subject which may prove to be of use
to students of art ; to professional artists and sculptors ; to
craftsman requiring a knowledge of the human figure ; to
medical men of all classes * * * ; and finally to quicken the
cause for the good of the national and individual morals and
ethics of the race, to the death of all prudery, superstition,
and vice."

This last was the unpardonable sin, to those of whom it
may be said: Unto the lewd all is lewd. Although the book
had received the highest praise from many scientists and



ETIOLOGY AND DEVELOPMENT OF OUR CENSORSHIP.

artists, one of our moralists for revenue, armed with the
authority of a postal inspector, threatened the publishers with
immediate arrest unless they would suppress the entire edi-
tion. They promised, but at the same time began preparing
for an appeal to those higher up in the Postal Department.
As a result, the inspector's decision was reversed, with a
string on the reversal. The postal authorities prescribed
limitations as to the manner of sale and persons to whom
alone the sales are to be made. None of these limitations
is found in, nor .derived from, the Statutes, but the officials
decided that, so long as the departmental legislation is com-
plied with, the book is not "obscene" and its transmission
through the mail would not be prosecuted as a crime. Always
remember that this did not occur in Russia but in the United
States, where it is thought that the Constitution vests all
Federal legislative power in the Congress of the United States,
where alone the criteria of guilt and legal rights should be
defined. However, the postal authorities at Washington, in
the light of what they might have done, are to be praised for
allowing us at least this much liberty.

The purists' battle against all nude in art is not wholly
won. However, our postal laws have just been amended by
adding the indefinable epithet "filthy" to the description of
what is non-mailable. No doubt this additional statutory
vagueness will accomplish much in the progress of tyranny
over literature and art. It can mean anything or nothing ac-
cording to the tastes of the postal censor.

Having desired to suppress bawdry pictures, and the nude
in legitimate art, it became necessary that courts and moralists
for revenue should legislate into existance criteria of "ob-
scenity" adequate to accomplish the ends. Again, the judicial
legislation thus brought into existence was capable of applica-
tion to books with illustrations of sexual anatomy, thus lead-
ing up to a censorship over scientific sex-literature. When
the portrayal of all human nudity has been penalized, consist-
ancy requires the suppression of all portrayals of sexual
anatomy. Soon we may have the complete suppression of
both.

PRUDERY IN THE MEDICAL PROFESSION.

In order properly to understand the growth of this new
legalized prudery and its intrusion into other realms of medical
science, we must appreciate to the full the influence of past
centuries of dominant ascetic ideals as evidenced by the



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

manifestations of prudery even in the medical profession.
When we realize how much of it is to be found even there,
we will better appreciate the greater quantity to be found
in the less educated and more sentimental masses.

Of course, the mere study of medicine, in and of itself,
does not necessarily relieve the physician of his superstitions,,
either professional, moral, or religious. Because of this, we
find within the medical profession quite as much sentimental
opposition to unpopular allegations of truth and approval of
persecution for professional or other heresy as are found else-
where.

At the meeting of the American Medical Association, held
at Columbus in 1899, a paper was read on the "The Gyneco-
logic Consideration of the Sexual Act," by Denslow Lewis,
M. D., Professor of Gynecology in the Chicago Polyclinic :
President of the Attending Staff of the Cook County Hospital,
Chicago ; President of the Chicago Medical Examiners' As-
sociation ; Vice President of the Illinois State Medical Society ;
Ex-President of the Physicians' Club, of Chicago ; Late Special
Commissioner from the Illinois State Board of Health and the
Health Department of Chicago for the investigation of
Municipal Sanitation in European Cities. Later Dr. Denslow
Lewis was the Chairman of the section on Hygiene and
Sanitary Science of the American Medical Association. I
mention these things to show that Dr. Lewis was a man of
prominence in his profession. The before-named paper was
discussed some. Dr. Howard Kelly of Baltimore, who as-
sumed the role of chief advocate for mystery and ignorance,
among other things, said: "I do not believe in the current
teaching of the day, that is, talking freely about these things
to children. ****** its discussion [before this association]
is attended with more or less filth, and we besmirch ourselves
by discussing it in public."

Later the article was denied publication in the Journal
of the American Medical Association, where papers read at
the national meeting usually appear. The editor of that
Journal, in a letter to Dr. Lewis refusing to publish the paper,
said : "There is nothing in it [the paper] that is not true and
possibly it ought to appear in the Journal, but with my person-
al views in reference to this class of literature, I hardly think
so." A member of the publication committee of the American
Medical Association, justifying his conduct in voting against



ETIOLOGY AND DEVELOPMENT OF OUR CENSORSHIP.

the publication of Dr. Lewis' essay, said: "The publication
of the article will lay the Board of Trustees open to the
charge of sending 'obscene' matter through the mails."

At the next meeting of the Association, held at Atlantic
City, Dr. Lewis decided, if possible, to have the Association
over-rule the publication committee. In order that members
might have an enlightened judgment as to the character of the
paper whose publication they were to pass upon, Dr. Lewis
had his address printed in pamphlet form and distributed
among the members. After all sorts of interference with the
distribution of the pamphlet, the matter finally came before
a general session of the Association. Dr. Howard Kelly stated
that he hud remained over a day longer than he intended so
he might take part in the controversy to make sure that the
pages of the Journal were not "polluted" by the publication
of the essay in question. After a vociferous meeting the com-
mittee was sustained in its refusal to publish. Later on Dr.
Lewis was forced to resign his position as professor of
Gynecology in the Chicago Polyclinic, and Dr. Fernand
Henrotin, who forced this result, asserted as a reason that
Dr. Lewis action at the Atlantic City meeting had excited
unfavorable comment.

In 1901 , at the St. Paul meeting of the American Medical
Association, Dr. Lewis presented a paper before the section
on Hygiene on the subject, "The Limitation of Venereal
Diseases." Although such conspicuous prudes as Dr. Howard
Kelly consented to discuss the paper, it also was refused pub-
lication in the official organ of the Association. 6 It was about
this time that the American Public Health Association consid-
ered Gonorrhea too loathsome to be tolerated for discussion.

I have iit upon the authority of one of the most widely
known scientists of America, that many medical journals hold
substantially the same attitude toward the discussion of sexual
topics. No wonder, then, that such periodicals deplore the
physicians' ignorance of sexual science, and the consequent
unprevented, but preventable, social ills. 7 With such supersti-
tion and prudery even in the Medical profession, it is not
strange that the populace should protest but little because of
facts presently to be recited. Farther on I shall quote some-
thing showing the attitude of medical editors toward sex-
discussion.

THE EVOLUTION TOWARD MEDICAL BOOKS.

Besides its prudes, the medical profession has its regular

6 It was subsequently published in the Medico-Legal Journal for June and Sep-
tember, 1903. For recital of facts, see Pee. Med. Journ. about 1907.
T See Am. Jour, of Clinical Medicine, January, 1909, p. 134.



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

quota of "moral" snobs. As the result, many physicians, and
nearly all hospitals, refuse to treat venereal diseases. As a
necessary consequence of this silly sentimentalism, those who
are willing to treat such cases are quite generally ostracized
and called disagreeable names. Naturally, they adjust them-
selves by seeking greater financial returns for their efforts so
as to compensate them for the odium they invite. So through
the prudery of some, we develop out of others the "lost man-
hood" specialist. Judged by any code of rational ethics, much
of the advertising of venereal specialists is perfectly legitimate.
Of course, it is not to be expected that "profession! ethics" is
rational, and to emphasize the fact that it has nothing to do
with ethical science it assumes a distinctive qualifying name,
just as "Christian Science," by the qualification attached to
"science," announces that it bears no necessary relation to
any real science. So it comes that physicians indiscriminately
call all advertising doctors bad names, and are willing to
invoke any bad law to punish a "bad" man. From such
motives the obscenity laws have been frequently invoked
against the man who advertises his profession in an unconven-
tional way, and "regular" physicians have applauded the ef-
fort because they lacked the foresight to see that the very
precedents they were helping to establish would later be used
to plague them.

Quite a number of physicians have been arrested and
convicted for sending through the mails information as to
venereal diseases. One of these books, which serves as a type,
has been thus described by a former assistant attorney-general
of the post office department. He says the book "consisted
mainly of a description of the causes and effects of venereal
diseases, and secondly, two circulars, one of which described
in separate paragraphs the symptome of various venereal
diseases." That was held to be criminally "obscene." The
courts, however, occasionally take a different view of it. 8

Easy was the transition from this outlawing of the warfare
against the venereal peril to the suppression of popular medi-
cal books, which, though a little more "legitimate," also cut
down the "regular" practitioners' earnings. The judicial legis-
lation, creating criteria of guilt in one class of cases, was soon
found applicable to the other.

Having now exhibited the forces behind this legislation,
and something of the evolutionary processes by which this

8 Hansen v. U. S., 157 Fed. Rep. 749.

54



ETIOLOGY AND DEVELOPMENT OF OUR CENSORSHIP.

modern censorship has developed, we will examine a little into
its achievements.

THE CASE OF HICKLIN.

The first reported English decision 9 , which attempted to
state a test of obscenity, was decided in 1868, and furnished the
precedent for practically all American decisions. The facts
were as follows: Hicklin, the accused, had sold a pamphlet



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 5 of 43)