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Bible to be criminally obscene.

Upon a hearing on a writ of habeas corpus, Train was ad-
judged sane, and discharged. Thus an expressed decision on
the obscenity of the Bible was evaded, though the unavoidable
inference was for its criminality.

In his autobiography, Train informs us that a Cleveland
paper was seized and destroyed for republishing the same Bible
quotations which had caused his arrest in New York. Here
then was a direct adjudication that parts of the Bible are in-
decent, and therefore unmailable. 16

In 1895, John B. Wise of Clay Center, Kansas, was arrested
for sending obscene matter through the mails which again con-
sisted wholly of a quotation from the Bible. In the United
States Court, after a contest, he was found guilty and fined.

Just keep in mind a moment these court precedents where
portions of the Bible have been judicially condemned as crim-
inally obscene, while I connect it with another rule of law.
The courts have often decided that a book to be obscene need
not be obscene throughout, the whole of it, but if the book is
obscene in any part it is an obscene book, within the meaning
of the statutes. 17

You will see at once that under the present laws and rely-
ing wholly on precedents already established, juries of irre-
ligious men could wholly suppress the circulation of the Bible,
and in some states the laws would authorize its seizure and de-
struction and all thfs because the words "Indecent and ob-

16 Here I think Train must be referring to the conviction of John A. Lant,
publisher of the Toledo Sun, and later other papers.

17 U. S. v. Bennett, 6 Blatchford 838, F. C. No. 14571.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

scene" are not definable in qualities of a book or picture. In
other words, all this iniquity is possible under present laws be-
cause courts did not heed the maxim, now scientifically de-
monstrable, viz. : "Unto the pure all things are pure."

Of course, the Old Testament in common with all books that
are valuable for moral instruction, contains many unpleasant
recitals, but that is no reason for suppressing any of them.
I prefer to put myself on the side of that English judge who
said : "To say in general that the conduct of a dead person can
at no time be canvassed; to hold that even after ages are
passed the conduct of bad men cannot be contrasted with the
good, would be to exclude the most useful part of history." 18

I therefore denounce this law because under it may be de-
stroyed books containing records of human folly and error
from which we may learn valuable lessons, for avoiding the
blight from violating nature's moral laws. Under our present
statutes some of the writings of the greatest historians and
literary masterpieces have been suppressed and practically all
would be suppressed if the courts should apply to them im-
partially the present judicial test of obscenity.

SUPPRESSED BECAUSE NOT "OBSCENE."

Every evil, real or imaginary, which we endeavor to avoid
by wrong methods seem necessarily to involve other evils as
a consequence. By suppressing all sex discussion we make it
impossible for people to satisfy their natural and healthy
inquisitiveness. Thus we unintentionally promote morbid
curiosity, in view of which those who are its victims become
an easy prey to the wiles of the designing. I will illustrate
by one concrete example. One of the suppressed books of
fiction which has been much discussed is called "Fanny Hill."
Because it is believed to be extremely racy and because of
the great risk in selling it the real "Fanny Hill" commands
from collectors a very fancy price ; copies have been reported
sold for as high as forty ($40.00) dollars. Knowing this,
some unscrupulous book dealers will take any ordinary con-
ventional novel, clothe it in a new cover and title page which
will give it the name of "Fanny Hill," and thus sell it to the
gullible seekers after pornography for from ten to twenty
dollars. Of course the purchasers only fool themselves. It
is not of such a case, however, that I am going to write, tho',
manifestly, the postal authorities could not see the difference

18 Rex vs. Topham, 4 T. R. 129.

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ETIOLOGY AND DEVELOPMENT OF OUR CENSORSHIP.

between such a case as the one described and the following
one.

A publisher has been getting out a little series of pamphlets
that contain well written and pleasing short stories, with not
a single improper suggestion, word or thought, even tho' judged
by the most conservative of conventional standards. There-
fore, to attract attention and promote sales, catchy titles were
given to these pamphlets ; some of the titles seem to have been
chosen with the view to induce young people to read what
would give them some very wholesome, conventional and, I
fear, necessary though commonplace, advice. The following
are the titles of such pamphlets : Advice To Young Husbands,
Only A Boy, A Siege In The Dark, Only A Girl, A Young
Girl's Book Of Experience, Eaten Alive and Sham Religion,
Revelations Of A Model, A Country Boy's First Night's Ex-
perience, History of Kissing, and The Confessions of Two
Old Maids. Unto the lewd all things are lewd. There are
some people in official life, as well as out of it, to whom such
titles as the foregoing could suggest nothing but lasciviousness,

Such minds are incapable of imagining non-sexual "Advice
to Young Husbands," or non-sexual "Confessions of Two
Old Maids," and solely because of their own degenerate condi-
tion these titles would create anticipations of psycho-salacious
joys. But the fact remains that the titles were as accurately
descriptive of the contents of the books as book-titles usually
are. Under these circumstances, no man learned in the law
would dream that these titles were a misrepresentation of es-
sential fact such as would entitle the purchaser of a lot of
these books to recover back the purchase price on the ground
of fraud because the books were not in fact obscene. Al-
though the book-titles in question do not amount to a repre-
sentation that the contents are obscene, and altho' the contents
were not in fact obscene, nor claimed by any one to be so, yet
the Postal Department concluded that the excessively lewd,
whose unreasonable sensual anticipations might be disap-
pointed, must be protected against the misleading effects of
these titles upon their own psycho-sexual abnormity. Ac-
cordingly, the authorities threatened to stop the vendor's mail
by a fraud order if he did not cease selling these booklets. Of
course he suppressed the books. If this is fraud then all the
"purity" sex-books which are being sold by many professional
moralists also are frauds. These books are all advertised to



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

help one solve his personal sex-problems, but very, very seldom
give the least bit of enlightenment or assistance. But we must
not complain. Like the King, the Postal Department can do
no wrong.



Dr. Sanger's "History of Prostitution" is one of the best,
if not the most learned disquisition in the English language,
which deals with that important problem. It was first pub-
lished in 1858, and in numerous editions has been on the mar-
ket ever since. I am advised that it has been publicly en-
dorsed even by an extremely puritanical postal inspector and
has been widely advertised and sold through the "Purity"
journals. No one ever dreamed that it was an obscene book
until November I5th, 1907, when the post office authorities
for sentimental reasons desired to suppress The American
Journal of Eugenics and were looking for an excuse to give to
the editor and the public. R. M. Webster, Acting Assistant
Attorney General for the Post Office Department, on the date
last above given, wrote an opinion excluding said magazine
from the mails, in part for advertising the book under dis-
cussion. He wrote: "On page 50 is advertised a book en-
titled 'The History of Prostitution,' which from its very name
is clearly indecent and unfit for circulation through the mail."
Evidently he had not read the book, but simply decided that
the subject was one, no matter how it was treated, which could
not be discussed through the mail, and his arbitrary will and
not statutory criteria determined the issue. Yet, some con-
tinue to assert that ours is a government by law. The people
may make must make laws upon the subject of prostitution,
but cannot get enlightenment upon it, because their servant,
a Government employee, says they cannot be entrusted with
knowledge.

DR. MALCHOW AND "THE SEXUAL LIFE/'

Connected with the Methodist Episcopal Church schools is
Hamline University College of Physicians and Surgeons. C.
W. Malchow was there the Professor of Proctology and As-
sociate in Clinical Medicine. He was also the President of
the Physicians' and Surgeons' Club of Minneapolis, and a
member of the Hennepin County Medical Society, the Minne-
sota State Medical Society, and the American Medical Asso-
ciation.

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ETIOLOGY AND DEVELOPMENT OF OUR CENSORSHIP.

He wrote a book on "The Sexual Life" which received
strong praise from educational and medical journals and from
professional persons. I have seen commendatory reviews from
ten professional magazines. While in press, he read a most
Duplexing chapter from the book to a meeting of Methodist
Ministers and its delicate treatment of a difficult subject was
strongly commended.

Yet under the absurd tests prescribed by the courts and in
spite of the protests of the Minneapolis Times and Tribune,
Dr. Malchow and his publisher are (1907) both serving a jail
sentence, for selling through the mail a high class scientific
discussion of sex to the laity. 19

During the trial the court refused the defendants the right
to prove that all in the book was true, holding, with all the
judicial decisions, that their being true was immaterial in fixing
guilt. An unsuccessful effort was make to prove the need for
such a book because of the great ignorance of the public upon
sex matters, and the "learned" judge remarked that he hoped
it was true that the public was ignorant of such matters, and
excluded the evidence. President Roosevelt being asked by
members of Congress to pardon the convict because of the
propriety of his book, is reported to have expressed an amaz-
ing regret that he could not prolong the sentence.

This case received a little attention in the medical journals,
but, let it be said to their everlasting disgrace, the great medical
organizations of this country were either too indifferent or too
prudish or too cowardly to come as an organized body to the
rescue of Dr. Malchow or to demand a repeal or amendment
of the law which made this outrage possible.

DR. KIME AND THE IOWA MEDICAL JOURNAL.

A very few years ago, Dr. Kime, the editor of the Iowa
Medical Journal, was convicted of obscenity. He was a phy-
sician of high standing and a trustee of a medical college, in
which a few young rowdy students were apparently endeavor-
ing to drive out the women students. A protest to the college
authorities resulted only in a two weeks' suspension. On
further complaint, instead of protecting the women in their
equal right to study medicine under decent conditions, the
authorities excluded women altogether from the medical school.
Filled with indignation, Dr. Kime reiterated his protest, and
gave publicity to some of the methods of persecution, includ-

19 U. S. v. Burton, 142 F. R. 57, C. C. A.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

ing an insulting prescription which appeared on the blackboard
where all the class could see it. In his Medical Journal he
wrote: "We had thought to withhold this prescription, owing
to its extreme vulgarity, but we believe it our duty to show
the condition exactly as it exists, and let each physician judge
for himself as to the justness of the protest filed." Then fol-
lowed the " obscene " prescription, the obscenity of which con-
sisted wholly in the use of one word of double meaning.

For this he was arrested, and although supported by all
four daily papers of his home city, by the clergy of all denom-
inations, the presidents of the Y. M. C. A., the W. C. T. U.,
and the Western Society for the Suppression of Vice, and the
Society for the Promotion of Social Purity, he was convicted,
branded as a criminal and fined. Judged by the absurd judi-
cial tests of obscenity which are always applied, the conviction
was unquestionably correct.

"STUDIES IN THE PSYCHOLOGY OF SEX."
In England, under a law just like our own in its descrip-
tion of what is prohibited, Dr. Havelock Ellis' "Studies in the
Psychology of Sex," I believe have been wholly suppressed as
obscene. These studies are so exhaustive and collect so much
original and unusual information that they mark an entirely
new epoch in the study of sexual science. The German edi-
tion of this very superior treatise is denied admission into the
United States, to protect the morals and perpetuate the ig-
norance of the German-American physicians. Futhermore, no
one can doubt that their exclusion is in strict accord with the
letter of the law, as the word "obscene" is now interpreted,
or interpolated, through the judical "tests" of obscenity.

That scientifically absurd test is decisive even though ap-
plied to a scholarly treatise upon sex, circulated only within
the medical profession, for the statute makes no exception
in favor of medical men. An impartial enforcement of the
letter of the law, as the word "obscene" is now interpreted,
would entirely extirpate the scientific literature of sex. So
deeply have the judges been impressed with this possible in-
iquity, that by dictum, quite in excess of their proper power,
they have made a judicial amendment of the statute, excepting
from its operation books circulated only among physicians.
Such judicial legislation of course is made under the pretense
of "statutory interpretation" and involves the ridiculous prop-
osition that a book which is criminally obscene if handed to a

70



ETIOLOGY AND DEVELOPMENT OF OUR CENSORSHIP.

layman, changes its character if handed to a physician. It as-
sumes that a scientific knowledge of sex is dangerous to the
morals of all those who do not use the knowledge as a means
of making money in the practice of medicine, and that it be
comes a moral force, when, and only when, thus employed for
pecuniary gain. To send to "purity workers" the standard
scientific literature of sex is a crime. Even such persons can-
not be trusted to have accurate information. Public morals
demand their ignorance. The suppression of the American
edition of "Studies of the Psychology of Sex" only awaits
the concurrence of caprice between some fool reformer and
a stupid jury and judge. The same statutory words which
furnished a conviction in England, and here are adequate to
exclude the German edition, will sooner or later determine
the suppression of the American edition.

Thus far we have exhibited a few of the matters which can
be and have been suppressed under our present mysterious
criminal law against "obscene" literature. More will be said
upon this matter when we come to study the relation of our
compulsory sex-ignorance to insanity and when we come to
study the varieties of official modesty.

"HUMAN SEXUALITY."

An attempt was made to suppress another most useful
book, which bears this title page: "Human Sexuality A
Medico-Literary Treatise, on the Laws, Anomalies, and Rela-
tions of Sex, with Especial Referance to Contrary Sexual
Desire. By J. Richardson Parke, Sc. B., Ph. G., M. D., late
Acting Assistant Surgeon, U. S. Army." In Aug., 1909, in
Philadelphia the author of this valuable book was arrested
for having sent it through the mails. The book is a large
volume of nearly 500 pages of useful scientific matter. It
received very high praise from medical journals and prominent
physicians.

An author, writing upon the pathology of the lungs, may
properly and advantageously lighten up his text by a few
humorous anecdotes about the "one lungers." Dr. Parke thought
he had a similar privilege, although writing about sex, and
because he related a few stories, such as he believed any
physician might properly tell another, he furnished the official
prudes a pretext for trying to put him in jail. He was arrest-
ed and bound over to await the action of the Grand Jury.
Fortunately, the matter seems to have come before reasonably

80 Albany Law Journal, Aug., 1908; Freedom of the Press and "Obscene"
Literature.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

sane jurors, who refused to find an indictment. The dis-
tinguished author received much unpleasant notoriety, was
put to much personal inconvienience and expense, only to get
a "vindication" which is not necessarily binding upon either
the Post Office Department or any other Grand Jury, or
Court, and all because ours has ceased to be a Government
according to "Law," when it comes to determining what are
the criteria of guilt if the question of "obscenity" is involved.

SUGGESTIONS OF THE DEPEW BOARD OF HEALTH

Dr. George N. Jack is the Health Physician of the Board
of Health for Depew. '^ike many another more foolish person,
Dr. Jack and the Board of Health thought this a free country
in which a man not intending to deceive but meaning to help
mankind might proclaim that which he believed to be the
truth. Accordingly, Dr. Jack prepared a paper which was
read and adopted at a meeting of the Depew Board of Health,
Feb. 3rd, 1909. This paper was published for free distribution
under the title: '"Suggestions adopted by the Depew Board
of Health for the Prevention of Sickness, Corruption, or
Crime, and as an Evolutionary aid to Humanity." Of course,
this paper dealt largely with sexual vices. Since unto the
lewd all is lewd, Dr. Jack was promptly arrested for circu-
lating "obscene" literature, through the mails. At the time
of writing this his case has not been disposed of.

FIELD-MUSEUM IMPORTATIONS

About April n, 1909, the newspapers announced that
pictures and manuscripts collected in China by Professor Ber-
thold Laufer of Columbia University, and for the Field Mu-
seum of Chicago, had been seized by Collector of Customs
Ames, because of their obscenity. It seems the seizure was made
in Oct. 1908, and the fact kept from the public. The news
item continues thus: "At that time, United States District
Judge Landis listened to arguments in chambers. It was
admitted that the importation of the collection constituted
a technical violation of the law, but it was likewise admitted
that the collection formed an essential basis for scientific
investigation. Judge Landis stated that he had no doubt the
photographs, paintings, manuscripts, etc., were brought into
this country for a perfectly proper purpose, but he saw no
way, without a technical violation of the law, of releasing
them."

Subsequently the judge decided to permit the entry of

72



ETIOLOGY AND DEVELOPMENT OF OUR CENSORSHIP.

this valuable material. Thus we have arrived at the stage
where the dissemination of any of the material of sexual
science is a crime, and it is the function of a Federal Judge,
not to enforce the law impartially, but to say arbitrarily who
shall go unscathed.

It is so long ago that we have both forgotten and neglected
the truth expressed by the Federal Supreme Court in these
words: "It would certainly be dangerous if the legislature
could set a net large enough to catch all possible offenders
and leave it to the courts to step inside and say who could be
rightly detained, and who should be set at large. This would
to some extent substitute the judicial for the legislative branch
the government." J

This then, is a partial record of useful things coming under
the ban of our censorship of literature. Some other books as
valuable as the best of those which have been herein men-
tioned, I can not speak of, because the authors and publishers
prefer that no mention should be made of the fact. The
most injurious part of this censorship, however, lies not in
the things that have been suppressed, as against the ven-
turesome few who dare to take a chance on the censorship,
but rather on the innumerable books that have remained un-
written because modest and wise scientists do not care to
spend their time in taking even a little chance of coming
into conflict with an uncertain statute, arbitrarily administered
by laymen to the medical profession, in which profession are
many not over-wise and sometimes fanatical zealots in the
interest of that ascetism which is the crowning evil of the
theology of sex.

21 U. S. v. Reese, 92 U. S. 291-221.



73



CHAPTER V.

THE REASONS UNDERLYING OUR CONSTITUTION-
AL GUARANTEE OF A FREE PRESS, APPLIED
TO SEX-DISCUSSION. 1

Arguments which deal with the inexpediency of abridging
freedom of speech and of the press necessarily restate the
considerations which moved the framers of our constitutions
to prohibit such abridgment and therefore exhibit to us that
conception of freedom which they intended to perpetuate.
It follows from this that all argument which concerns
itself with a consideration of the inexpediency of abridging
intellectual freedom, unavoidably illuminates the whole
problem of a judicial interpretation of our constitutional guar-
antee of an unabridged freedom of speech and of the press.

Only a few decades ago, the mighty governed the many,
through cunning, strategy, and compulsory ignorance. A lay
citizen was punished by law, if he presumed critically to dis-
cuss politics, officials, slave emancipation, astronomy, geology,
or religion. To teach our African slaves to read, or to circu-
late abolitionist literature, was in some States a crime, because
such intelligence conduced to an "immoral tendency" toward
insurrection. To have the Bible in one's possession has also
been prohibited by law, because of the "immoral tendency"
toward private judgments, which general reading of it might
induce.

One by one the advocates of mystery and blind force have
surrendered to the angels of enlightenment, and every enlarge-
ment of opportunity for knowledge has been followed by the
moral elevation of humanity. Only in one field of thought
do we still habitually assume that ignorance is a virtue, and
enlightenment a crime. Only upon the subject of sex do we
by statute declare that artificial fear is a safer guide than in-
telligent self-reliance, that purity can thrive only in conceal-

1 Revised from Liberal Review, Aug. and Sept., 1906.

74



UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

ment and ignorance, and that to know all of one's self is
dangerous and immoral. Here only are we afraid to allow
truth to be contrasted with error. The issue is, shall we con-
tinue thus to fear full and free discussion of sex facts and sex
problems? Does the constitution permit the suppression of
such discussion? Later this will be thoroughly discussed.

The first question to be answered is, why discuss the sub-
ject of sex at all? There are those who advise us to ignore it
entirely, upon the theory that the natural impulse is a suffi-
cient guide. To this it may be answered that all our sex activi-
ties cannot be subjected to the constant and immediate con-
trol of the will. We cannot ignore sex by merely willing to
do so. Our attention is unavoidably forced upon the sub-
ject, by conditions both within and without ourselves. That
we may deceive ourselves in this particular is possible ; that we
all can and many do lie about it is certain.

Without sexual education, we cannot know whether we are
acting under a healthy or a diseased impulse. It is known to
the psychologist that many are guilty of vicious and injurious
sexual practices, without being in the least conscious of the
significance of what they are doing. Everywhere we see hu-
man wrecks because of a failure to understand their impulses,
or to impose intelligent restraints upon them. Many become
sexually impotent, hyperaesthetic, or perverted by gradual proc-
esses the meaning of which they do not understand, and whose
baneful consequences intelligence would enable them to fore-
see and easily avoid. Since individuals will not go to a phy-
sician until the injury is accomplished and apparent, it fol-
lows that there is no possible preventive except general in-
telligence upon the subject. At present the spread of that
knowledge is impeded by laws and by a prurient prudery, which
together are responsible for the sentimental taboo which at-
taches to the whole subject. The educated man of to-day



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 7 of 43)