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Theodore Albert Schroeder.

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

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measures our different degrees of human progress by the quan-
tity of intelligence which is used in regulating our bodily func-
tioning. No reason exists for making sex an exception.

THE PHYSICAL FOUNDATION FOR MORAL HEALTH.

To those who accept a scientific ethics, moral health is
measured by the relative degree to which their conduct achieves
physical and mental health for the race. To the religious mora-
list, who has other ends in view, pathologic sexuality is prob-
ably the greatest impediment to the practical realization of his

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ideal of sexual morality. Everywhere we see that disease is
the greatest obstacle to moral health. From either point of
view, it follows that one of the most important considerations
in all purity propaganda must be the diffusion of such knowl-
edge as will best conduce to the highest physical and mental
perfection. This seems so self evident that we necessarily ask,
Why is our conduct so contrary?

THE DESIRE TO PERSECUTE.

The desire to persecute, even for mere opinion's sake, seems
to be an eternal inheritance of humans. We naturally and as a
matter of course encourage others in doing and believing what-
ever for any reason, or without reason, we deem proper. Even
though we have a mind fairly well disciplined in the duty of
toleration, we quite naturally discourage others, and feel a
sense of outraged propriety, whenever they believe and act
in a manner radically different from ourselves. Our resent-
ment becomes vehement just in proportion as our reason is
impotent, and our nerves diseasedly sensitive. That is why it
is said that "Man is naturally, instinctively intolerant and a
persecutor."

From this necessity of our undisciplined nature comes the
stealthy but inevitable recurrence of legalized bigotry, and its
rehabilitation of successive inquisitions. From the days of
pagan antiquity to the present hour, there has never been a
time or country wherein mankind could claim immunity from
all persecution for intellectual differences. This cruel intoler-
ance has always appealed to a "sacred and patriotic duty," and
masked behind an ignorantly made and unwarranted pretense
of "morality."

"Persecution has not been the outgrowth of any one age,
nationality or creed; it has been the ill-favored progeny of
all." Thus, under the disguise of new names and new preten-
sions, again and again we punish unpopular, though wholly
self-regarding, non-moral conduct ; imprison men for express-
ing honest intellectual differences ; deny the duty of toleration ;
destroy a proper liberty of thought and conduct; and always
under the same old false pretenses of "morality," and "law
and order."

Whenever our natural tendency toward intolerance is re-
inforced by abnormally intense feelings, such as diseased
nerves produce, persecution follows quite unavoidably, because

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ERLYIXG CONSTITUTIONAL GUARANTEE OF FREE PRESS.



the intensity of associated emotions is transformed into a con-
viction of inerrancy. Such a victim of diseased emotions, even
more than others, "knows because he feels, and is firmly con-
vinced because strongly agitated." Unable to answer logic-
ally the contention of his friend, he ends by desiring to punish
him as his enemy. Because of the close interdependence of
the emotional and the generative mechanism, it is probable
that unreasoned moral sentimentalizing inducing superstitious
opinions about the relation of men and women will be the last
superstition to disappear.

The concurrence of many in like emotions, associated with
and centered upon the same focus of irritation, makes the
effective majority of the state view the toleration of intel-
lectual opponents as a crime, and their heresy, whether politi-
cal, religious, ethical or sexual, is denounced as a danger to
civil order, and the heretic must be judicially silenced. Thus
all bigots have reasoned in all past ages. Thus do those af-
flicted with our present sex-superstition again defend their
moral censorship of literature and art.

These are the processes by which we always become in-
capable of deriving profit from the lessons of history. That
all the greatest minds of every age believed in something now
known to be false, and in the utility of what is now deemed
injurious or immoral, never suggests to petty intellects that
the future generations will also pity us for having entertained
our most cherished opinions.

The presence of these designated natural defects, which
so very few have outgrown, makes it quite probable that the
battle for intellectual freedom will never reach an end. The
few, trained in the duty of toleration, owe it to humanity to
re-state, with great frequency, the arguments for mental hos-
pitality. Only by this process can we contribute directly to-
ward the mental discipline of the relatively unevolved masses,
and prepare the way for those new and therefore unpopular
truths by which the race will progress. The absolute liberty of
thought, with opportunity, unlimited as between adults, for
its oral or printed expression is a condition precedent to the
highest development of our progressive morality.

Men of strong passions and weak intellects seldom see the
expediency of encouraging others to disagree. Thence came
all of those terrible persecutions for heresy, witchcraft, sedi-
tion, etc., which have prolonged the midnight of superstition

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

into "dark ages." The passionate zeal of a masterful few has
always made them assume that they only could be trusted to
have a personal judgment upon moral questions, while all
others must be coerced, unquestioningly, to accept them upon
authority, "with pious awe and trembling solicitude."

THE DANGERS OF PRIVATE JUDGMENT.

Such egomania always resulted in the persecution of those
who furnished the common people with the materials upon
which they might base a different opinion, or outgrow their
slave- virtues.

One of Queen Mary's first acts was an inhibition against
reading or teaching the Bible in churches, and against printing
books. In 1530, the king, pursuant to a memorial of the House
of Commons, issued a proclamation requiring every person
"which hath a New Testament or the Old, translated into
English or any other boke of Holy Scripture, so translated,
being in printe, to surrender them within fifteen days, as
he will avoyde the Kynge's high indignation and displeas-
ure," which meant death.

Another and similar proclamation was issued, covering the
New Testament and writings of many theologians. The act
passed in the 3rd and 4th Edward VI., repeated this folly. So
thousands of Bibles were burned under the personal super-
vision and benediction of priests and bishops, because of the
immoral tendency toward private judgment involved in read-
ing the "Divine Record." 2

Poor William Tyndale, who took the infinite trouble of
translating the scriptures into English, found that "his New
Testament was forthwith burnt in London ;" and he himself,
after some years, was strangled and burnt at Antwerp.

(1536).'

So now we have many who likewise esteem it to be of
immoral tendency, for others than themselves, to secure such
information as may lead to a personal and different opinion
about the physiology, psychology^ hygiene, or ethics of sex,
and by law we make it a crime to distribute any specific and
detailed information upon these subjects, especially if it be un-
prudish in its verbiage or advocate unorthodox opinions about
marriage or sexual ethics. This is repeating the old folly that

2 Vickers' Martyrdom of Literature, pp. 190, 225 to 227. See also Paterson's
Liberty of the Press, p. 50.

Books Condemned to be Burnt, page 9.

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

the adult masses cannot be trusted to form an opinion of their
own.

The "free" people of the United States cannot be al-
lowed to have the information which might lead to a change
of their own statute laws upon sex.

SUPPRESSING TRUTH FOR EXPEDIENCY.

There will always be those thoughtless enough to be-
lieve that truth may be properly suppressed for considerations
of expediency. I prefer to believe with Professor Max Miiller,
that "The truth is always safe, and nothing else is safe" ;
and with Drummond that "He that will not reason, is a bigot ;
he that cannot reason, is a fool, and he that dares not reason,
is a slave" ; and with Thomas Jefferson when in his inaugu-
ral address he wrote, "Error of opinion may be tolerated, when
reason is left free to combat it" ; and I believe these are still
truisms even though the subject is sex.

We have only to go back a few centuries to find an in-
fluential clique of pious men trying to maintain a monopoly
of "truth." Those who disputed their affirmations, whether
about geology or theology, were promptly beheaded or burnt.
The clerical monopolists denied common people the right, not
only of having an independent judgment as to the significance,
or value, or truth of "holy writ," but even denied them the
right to read the book itself, because it would tempt them to
independent judgment, which .might be erroneous, and thus
make them "immoral."

The contents and the interpretation of the Bible, together
with the political tyranny founded on these, must, "with
humble prostration of intellect," be unquestioningly accepted.
Those who disputed the self -constituted mouthpieces of God
were promptly killed. And now, those who, without "humble
prostration of intellect," dispute any of the ready-made igno-
rance on the physiology, hygiene and psychology or ethics of
sex, are promptly sent to jail. Yet we call this a "free" coun-
try, and our age a "civilized" one.

By the same appeal to a misguided expediency, we find
that only a few years ago it was a crime to teach a negro
slave how to read or write. Education would make him doubt
his slave-virtues, and with a consciousness of the injustice
being inflicted upon him, he might disturb the public order
to secure redress. So, imparting education became immoral,

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

and was made a crime. An effort was made to make it a crime
to send anti-slavery literature through the mails because of its
immoral tendency, and southern postmasters often destroyed
it without warrant of law, thus refusing delivery to those to
whom it was addressed.

Within the past century, married women had no rights
which their husbands need respect, and education of women
was made impossible, though the imparting of it was not
penalized. Now they may acquire an education about every-
thing, except what ought to be the most important to them,
namely: A scientific knowledge of the ethics, physiology,
hygiene, and psychology of sex. To furnish them with
literature of the highest scientific order, even though true
and distributed from good motives, or in print to argue for
their "natural right and necessity for sexual self-government,"
is now a crime, and we call it "obscenity" and "indecency."

Formerly, when bigots were rampant and openly domi-
nant, the old superstition punished the psychological crime of
"immoral thinking," because it was irreligious, and it was
called "sedition," "blasphemy," etc. Under the present verbal
disguise, the same old superstition punishes the psychological
crime of immoral thinking, because it may discredit the ethical
claims of religious asceticism, and now we call it "obscenity"
and "indecency." What is the difference between the old and
the new superstition and persecution ?

Strange to say, there are hundreds of thousands of the un-
churched, who, for want of clear mental vision or adequate
moral courage, are fostering the suppression of unconventional
thinking, and justify it, upon considerations of expediency.

The argument against the expediency of truth is ever the
last refuge of retreating error, a weak subterfuge to conceal
a dawning consciousness of ignorance. In all history, one
cannot find a single instance in which an enlargement of op-
portunity for the propagation of unpopular allegations of truth
has not resulted in increased good.

"If I were asked, 'What opinion, from the commencement
of history to the present hour, had been productive of the
most injury to mankind?' I should answer, without hesita-
tion: 'The inexpediency of publishing sentiments of supposed
bad tendency.' ' It is this infamous opinion which has made
the world a vale of tears, and drenched it with the blood of
martyrs.

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

THE ABUSE OF FREEDOM.

I am fully mindful of the fact that an unrestricted press
means that some abuse of the freedom of the press will result.
However, I also remember that no man can tell a priori what
opinion is of immoral tendency. I am furthermore mindful
that we cannot argue against the use of a thing, from the
possibility of its abuse, since this objection can be urged
against every good thing, and I am not willing to destroy all
that makes life pleasant. Lord Littleton aptly said: "To
argue against any breach of liberty, from the i 11 use that may
be made of it, is to argue against liberty itself, since all is
capable of being abused."

Everyone who believes in the relative and progressive mo-
rality of scientific ethics, must logically believe in the im-
morality of a code which preaches absolutism in morals upon
the authority of inspired texts, instead of deriving moral pre-
cepts from natural, physical law. But that is no warrant for
the scientific moralist suppressing the teaching of religious
morality, as inexpedient, even if he believed it to be so and
had the power. Neither can the religious moralist justify
himself in the suppression of the opinions of his scientific
opponents. It is alone by comparison and contrast that each
perfects his own system, and in the end all are better off for
having permitted the disputation.

No argument for the suppression of "obscene" literature
has ever been offered which, by unavoidable implication, will
not justify, and which has not already justified, every other
limitation that has ever been put upon mental freedom. No
argument was ever made to justify intolerance, whether po-
litical, theological, or scientific, which has not been restated
in support of our present sex superstitions and made to do
duty toward the suppressing of information as to the physi-
ology, psychology, or ethics of sex. All this class of argu-
ments that have ever been made, have always started with the
false assumption that such qualities as morality or immorality
could belong to opinions, or to a static fact.

Because violence is deemed necessary to prevent a change,
or the acquisition of an opinion concerning the hygiene,
physiology or ethics of sex, we must infer that those who
defend the press censorship are unconsciously claiming om-
niscient infallibility for the present sexual intelligence. If
their sex opinions were a product of mere fallible reason,

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

they would not feel the desirability, the need or duty to sup-
press rational criticism. By denying others the right of pub-
lishing either confirmation or criticism, they admit that their
present opinions are a matter of superstition and indefensible
a s a matter of reason. To support a sex superstition by law
is just as reprehensible as, in the past, it was to support the,
now partially exploded, governmental, scientific and theological
superstitions, by the same process. This, be it remembered,
was always done in the name of "morality," "law and order,"
etc.

WILL TRUTH, CRUSHED, RISE AGAIN ?

There may still be those who argue that the persecutors
of Christians were right, because the persecution of an advo-
cate is a necessary ordeal through which his truth always
passes successfully ; legal penalties, in the end, being power-
less against the truth, though sometimes beneficially effective
against mischievous error.

It may be a historical fact that all known truths, for a
time, have been crushed by the bigot's heel, but this should
not make us applaud his iniquity. It is an aphorism of un-
balanced optimists, that truth crushed to earth will always
rise. Even if this were true, it must always remain an un-
provable proposition, because it postulates that at every par-
ticular moment we are ignorant of all those suppressed truths,
not then resurrected, and since we do not know them, we
cannot prove that they ever will be resurrected. It would
be interesting to know how one could prove that an unknown
truth of past suppression is going to be rediscovered, or that
the conditions which alone once made it a cognizable fact
will ever again come into being. And yet a knowledge of
it might have a very important bearing on some present con-
troversy of moment.

Surely, many dogmas have been wholly suppressed which
were once just as earnestly believed to be as infallibly true
as some that are now accepted as inspired writ. Just a little
more strenuosity in persecution would have wiped out all
Christians, if not Christianity itself. How can we prove that
all the suppressed, and now unknown, dogmas were false? If
mere survival after persecution is deemed evidence of the in-
errancy of an opinion, then which of the many conflicting opin-
ions, each a survivor of persecution, are unquestionably true,

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

and how is the choice to be made from the mass? Is it not
clear that neither a rediscovery, nor a survival after persecu-
tion, can have any special relation to truth as such? If it is,
then let us unite to denounce as an unprovable hallucination
the statement that truth crushed to earth will rise again.

The abettors of persecution are more damaged than those
whom they deter from expressing and defending unpopular
opinions, since, as between these, only the former are de-
priving themselves of the chief means of correcting their own
errors. But the great mass of people belong neither to the
intellectual innovators, nor to their persecutors. The great
multitude might be quite willing to listen to or read uncon-
ventional thoughts if ever permitted, amid opportunity, to
exercise an uncoerced choice

FALSE ANALOGY.

Much of the justification for intolerance derives its au-
thority from false analogies, wrongfully carried over from
physical relations into the realm of the psychic.

Thus some argue that because, by laws, we protect the
incompetent against being (unconsciously) infected with con-
tagious disease, therefore the state should also protect them
(even though mature and able to protect themselves by. mere
inattention) against the literature of infectious moral poison.
Here a figure of speech is mistaken for an analogy. "Moral
poison" exists only figuratively and not literally in any such
sense as strychnine is a poison.

Ethics is not one of the exact sciences. Probably it never
will be. Until we are at least approximately as certain of the
existence and tests of "moral poison," as we are of the physical
characteristics and consequences of carbolic acid, it is folly
to talk of "moral poison" except as a matter of poetic license.

In the realm of morals no age has ever shown an agree-
ment, even among its wisest and best men, either as to what
is morally poisonous, or by what test it is to be judged as
morally deadly. Moral concepts are a matter of geography
and evolution. The morality of one country or age is viewed
as the moral poison of another country or age. The defended
morality of one social or business circle is deemed the im-
morality of another. The ideals which attach to one man's
God, are those of another man's devil. Furthermore, our
best scientific thinkers concur in the belief that all morality

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

is relative and progressive, whereas numerous other men deem
a part or all of our conduct to be per se moral or immoral.
Some deem the source of authority in matters of morals to
be God, as his will is manifested through the revelations or
prophets of his particular church, or that interpretation of
them which some particular branch of some particular church
promulgates. Others find morality only in the most health-
giving adjustment to natural law, and still others find their
authority in a conscience, unburdened either with supernatural
light or worldly wisdom. Only the generous exercise of the
most free discussion can help us out of this chaos.

PROGRESS BY KNOWLEDGE OF NATURAL LAW.
Philosophers tell us that life is "the continuous adjustment
of internal relations to external relations." The use of con-
scious effort toward the achievement of the fullest life, through
our most harmonious conformity to natural laws, is the es-
sential distinction between the human and other animals.

Observance of natural law is the unavoidable condition of
all life, and a knowledge of those laws is a condition precedent
to all effort for securing well-being, through conscious adjust-
ment to them. It follows that an opportunity for an acquain-
tance with nature's processes, unlimited by human coercion, is
the equal and inalienable right of every human being, because
essential to his life, liberty, and pursuit of happiness. No
exception can be made for the law of our sex nature.

It also follows that in formulating our conception of what
is the law of nature, and in its adjustment or application by
us to our infinitely varied personal constitutions, each sane
adult human is the sovereign of his own destiny and never
properly within the control of any other person, until some one,
not an undeceived voluntary participant, is directly affected
thereby to his injury.

The laws for the suppression of "obscene" literature, as
administered, deny to adults the access to part of the alleged
facts and arguments concerning our sex nature, and therefore
are a violation of the above rules of right and conduct.

MORAL ADVANCE THROUGH CRITICISM.
We all believe in intellectual and moral progress. There-
fore, whatever may be the character or subject of a man's
opinions, others have the right to express their judgments
upon them, to censure them, if deemed censurable or turn
them to ridicule, if deemed ridiculous. If such right is not

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

protected by law, we should have no security against the
exposition or perpetuity of error, and therefore we should
hamper progress.

It follows that the believer in a personal God or in the
Trinity, the Mormon with his "Adam-God," the Agnostic with
his "Unknowable," the Christian-scientist with his impersonal
"All mind and all love" God, the Unitarian with his "Purpose-
ful Divine Immanence/' the Theosophist with his godless "Nir-
vana," and the Atheist, all have an equal right to vie with
one another for public favor and, incidentally, to censure or
ridicule any crudities which they may believe they see in any
or all rival conceptions.

It is only by recognition and exercise of such a liberty
that humanity has evolved from the primal sex- worship
through the innumerable phases of nature worship to our
present relatively exalted religious opinion. Even though we
reject all, or all but one, of the numerous modern anthropo-
morphic and deistic conceptions of God, we must still admit
that each of these is based upon a more enlightened and en-
larged conception of the Universe and man's relation to it,
than can possibly be implied in the worship of the phallus.
Thus liberty of thought and of its expression has been and
will continue to be the one indispensable condition to the im-
provement of religions.

If we are not thus far agreed as to the equal moral rights
of each, then which one has less right than the rest? It is
beyond question that the solitary man has an unlimited right
of expressing his opinion, since there is no one to deny him
the right. With the advent of the second man surely he
still has the same right with the consent of that second man.
How many more persons must join the community before
they acquire the moral warrant for denying the second man
the right and the opportunity to listen to, or to read, anything
the other may speak or write, even though the subject be
theology or sex-morality? By what impersonal standard (not
one based merely upon individual preferences) shall we ad-
judge the forfeiture of such individual rights, if forfeiture
is to be enforced by a limitation ?

If such impersonal standard cannot be furnished then
the argument must proceed as follows: If all disputants have



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 8 of 43)