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the equal right to question and deride the conceptions of all
the rest as to the existence, nature or knowableness of their
respective God, then they have an equal right to question the

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

divine origin or interpretation of that which others believe to
be divine revelation.

If men have a right to cast doubt upon the source and
fact of divine revelation, then, of course, they must have an
equal right to discredit that which others believe to have
been taught by such divine revelation, even though the sub-
ject be the relation of the sexes.

More specifically, that means this: The Catholic priest
may advocate, as others deny, the superior morality of his
celibacy ; the one may argue for, and the other against, the
compatibility of the best health and life-long continence, and
to this end either may adduce all the evidence, historical, ex-
perimental or scientific, which is deemed material ; the mar-
riage purists may argue for, and others against, the superior
morality of having sexual relation only for the purpose of
procreation ; the Bible Communist of Oneida may advocate, as
others deny, the superior morality of "free love" ; the Episco-
palians and Ethical Culturists, may advocate, as others deny,
the superior morality of indissoluble monogamy ; the Agnostic
or Liberal Religionist may advocate, and others may deny, the
superior morality of easy divorce ; the Utilitarian may advo-
cate, as others deny, the superior morality of stirpiculture with
or without monogamic marriage; the Mormon may advocate,
as others deny, the superior morality of polygamy, etc., etc.

I assume for the present, and for the sake of the present
argument only, that they do not advocate the violation of ex-
isting marriage laws, but limit their demand and argument to
a repeal or amendment of those laws, so as to make them con-
formable to their respective ideals. Under present laws nu-
merous persons have been arrested for making arguments in
favor of some of the foregoing propositions, while advocates
of the contrary view have gone on unmolested.

Those who hold to any one of these ideals necessarily
believe all others to be of immoral tendency; and it seems
to me that ridicule, fact and argument, unrestricted as to
adults, are the only means by which the race can secure that
progressive clarification of moral vision which is essential to
higher moral development.

The vaunted morality of one age is the despised super-
stition and barbarism of succeeding ages. Thus we have
proceeded, as far as our sexual morality is concerned, through
irresponsible, indiscriminate promiscuity, group marriage,
female slavery, the sacred debauchery of sex-worship, poly-
andry, polygamy, the abhorrent ideals of ascetics and sex-

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

perverts, to our present standards, and the course of moral
evolution is not yet ended.

Since, then, the very superiority of our present morality
is due to the liberty of thinking and of exchanging thoughts,
how absurd and outrageous it is now to impair or destroy the
very basis upon which it rests, and upon which must depend
the further development of our progressive morality!

Since advancement in the refining of our ethical concep-
tions is conditioned upon experimentation and the dissemina-
tion of its observed results, it follows that the most immoral
of present tendencies is that which arrests moral progress
by limiting the freedom of speech and press. When viewed
in long perspective, it also follows that we must conclude that
the most immoral persons of our time are those who are
now successfully stifling discussion, and restricting the spread
of sexual intelligence, because they are most responsible for
impeding moral progress, as to the relations of men and
women.

Those who in these particulars deny a freedom of speech
and press and the correlative right to hear, unlimited as to
all sane adults, by their very act of denial exercise a right
which they would suppress in others. The true believer in
equality of liberty allows others the right to speak against
free speech, though he may not be so hospitable as to its
actual suppression. No man truly believes in liberty who is
unwilling to defend the right of others to disagree with him,
even about free-love, polygamy or stirpiculture.

If our conceptions of sexual morality have a rational foun-
dation, then they are capable of adequate rational defense,
and there is no need for legislative suppression of discussion.
If our sex ethics will not bear critical scrutiny and discussion,
then to suppress such discussion , is infamous, because it is
a legalized support of error. In either case the freest pos-
sible discussion is a necessary condition of the progressive elim-
ination of error.

OUR OPINIONS ARE INVOLUNTARY.

No man can help believing that which he believes. Belief
is not a matter of volition. No man, by an act of will, can make
himself believe that twice two are six. He may say it, but
he cannot believe it, that is, he cannot acquire a correspond-
ing concept. No man, solely by an act of will, can stop
thinking. No man can tell what he will think tomorrow, nor
arbitrarily determine what he will think next year.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

If there still remain any believers in the free-will super-
stition, as applied to matters of belief, each of them can, by
a simple test, demonstrate to himself the impossibility of ar-
bitrarily controlling his conviction. Let him, solely by an
uncaused exercise of his "free-will," abolish his belief in its
existence, and substitute the conviction that a man in his men-
tal life is a mere irresponsible automaton. Then, having firmly
held this latter conviction for just ten days, let him, by another
uncaused act of the "free-will" (which then he does not be-
lieve in), restore his belief in its existence. Not until I find a
sane man who honestly believes that he has performed this, to
me impossible feat, can I admit that the existence of a "free-
will" as applied to our thought-products, is even a debatable
question.

"Free will" in the determination of one's opinion is but
a special phase of the general "free-will" doctrine. Those
who, in spite of the foregoing suggestions, continue to be-
lieve in the lawlessness of the intellect and their own ability
to believe doctrines without evidence or against what to them-
selves seems a preponderance of the evidence, must be re-
ferred to the scientific literature upon the subject. 4

Professor Fiske, in his Cosmic Philosophy, fully considers
and answers all the arguments for a "lawlessness of volition"
and concludes his discussion with these paragraphs:

"From whatever scientific standpoint we contemplate the
doctrine of lawlessness of volition, we find that its plausible-
ness depends solely on tricks of language. The first trick is
the personification of will as an entity distinct from all acts
of volition ; the second trick is the ascription to this entity
of 'freedom,' a word which is meaningless as applied to the
process whereby feeling initiates action; the third trick is
the assumption that desires or motives are entities outside of
a person, so that if his acts of volition were influenced by
them he would be robbed of his freedom.

"Whatever may be our official theories, we all practically
ignore and discredit the doctrine that volition is lawless.'
Whatever voice of tradition we may be in the habit of echo-
ing, we do equally, from the earliest to the latest day of our
self-conscious existence, act and calculate upon the supposi-
tion that volition, alike in ourselves and in others, follows
invariably the strongest motive.

*Maudsley, "Body and Mind," Part I ; Herbert Spencer, "Principles of Psy-
chology," Vol. I, pp. 495 to 613; Ribot, "Diseases of the Will"; John Fiske,
"Cosmic Philosophy/' Vol. II, chap. 17; "Universal Illusion of Free Will," by
A. Hamon.

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

"Finally, in turning our attention to history, we have found
that the aggregate of thoughts, desires and volitions in any
epoch is so manifestly dependent upon the aggregate of
thoughts, desires and volitions in the preceding epoch, that
even the assertors of the lawlessness of volition are forced to
commit logical suicide by recognizing the sequence. Thus,
whether we contemplate volitions themselves, or compare their
effects, whether we resort to the testimony of psychology or
to the testimony of history, we are equally compelled to admit
that law is co-extensive with all orders of phenomena and with
every species of change.

"It is hardly creditable to the character of the present
age of scientific enlightenment that such a statement should
need to be made, or that twenty-six pages of critical argument
should be required to illustrate it.

"To many, this chapter will no doubt seem an elaborate
attempt to prove the multiplication table. Nevertheless, where
such blinding metaphysical dust has been raised, a few drops
of the cold water of common sense may be not only harmless
but useful."

OPINIONS ARE NON-MORAL.

Since our beliefs are not a matter of uncaused choice,
but an unavoidable consequence, man cannot properly be held
morally responsible for what he believes. Moral responsibility
or guilt cannot attach itself to our thoughts, and no man
should be punished for holding or expressing unpopular or
unconventional or miscalled "immoral" opinions, at least until
it is shown that actual material and direct injury has resulted
to some one, not an adult who invited the damage or was him-
self an immediate participating cause.

An abstract opinion, or its verbal expression, cannot be
either moral or immoral, though conduct based thereon may
be. Those who advocate a moral censorship of literature are
confounding the consequences of opinion with those of con-
duct. The evil consequences of the latter flow from the acts
alone, while opinions in themselves can have no evil con-
sequences. To produce such the published opinion must first
be assimilated by the receiving mind, and then transformed
into injurious non-self regarding action. Therefore it is the
conduct and never directly the opinion which is immoral.

Some who justify intolerance admit this, and think they
evade its consequences by saying that they believe in punish-
ing difference of opinion only in its expression, which is

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

acting, not thinking. ''Thinking is free," they say, "but
speech is so only by tolerance, not as a matter of right. No
man may injure us by his speech, any more than with his
club. The spoken or printed word may be an act as guilty,
as inexcusable and as painful as a knife-thrust." This is all
true, but, rightly interpreted, is no answer to the doctrine of
the freedom of speech, rightly understood.

Save in palliating exceptions, well recognized in the law
of libel and slander, you may not talk about one person to
another, so as wantonly to injure the former in his good
name, credit, property, etc. This, however, cannot be made
to justify the proposition that you may not, with the con-
sent of the listeners or readers, express to them any speculative
conviction, upon any subject, even sex, which is not directly
invasive of anyone's rights or equality of liberty. That speech
is free only by tolerance is also an acceptable maxim, if we
understand the tolerance of the sane adult listener, or reader,
and not the tolerance of others. No one should, or can, be
compelled to read anything or to assimilate what he reads.
Consequently nobody needs the help of the state to protect him
against compulsory intellectual exercise.

THE RIGHT TO HEAR AND READ.

The right of expression of opinion is inseparable from the
right to hear and weigh arguments. The state can have no
property right in the unchangeableness of anyone's opinions,
even about sexual ethics, such as to warrant it in prohibiting
him to alter such opinions. If the state has no warrant to
prohibit a change of view, it has no moral right to compel
attendance at church or elsewhere, for the purpose of unify-
ing thought, nor to prohibit any person to supply the facts
and arguments which may be the means of producing a
changed view. This conclusion is not to be altered according
to whether the ideas are woven into poetry, fiction, painting,
music or science. No one can compel another to read; no
one can rightfully deny him the privilege of reading, or
another the opportunity of preparing or furnishing him the
reading matter upon request ; none but an insufferable tyrant
would attempt such a thing, even upon the subject of sex. To
deny one the right to come into possession of part of the evi-
dence is just as objectionable as to compel attendance where
only the rest of the evidence will be related.

A change of opinion, through added knowledge and its
rational assimilation, only means intellectual development

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

which can seldom injure anyone. But if injury shall ever
come to us by our acquisition of new facts, or the achieve-
ment of new opinions, then, unlike the injury of another's
knife-thrust, it comes only by our active co-operation toward
the accomplishment of that injury.

Usually the "injury," resulting directly from an acceptance
of unpopular beliefs, exists only in the imagination of those
holding contrary opinions, and they should never be entrusted
with the always dangerous power of forcing upon sane adults,
against their protest, any unappreciated and undesired, ready-
made, intellectual blessing. Of necessity, minorities must
have the same right and opportunity to express their opinions
and to try to secure the majority endorsement, as the majority
have to express contrary ones. To deny this is to destroy all
possibility for intellectual advancement, since new truths are
at first revealed only to the few, and these innovators, and
their advanced ideas, are invariably denounced by the stupidity
of an unreasoning conservatism. This is just as true about
the hygiene, physiology, psychology and ethics of sex, as about
anything else. In support of this contention for a liberty of
speech and press regardless of dreaded hypothetical conse-
quences, we may well quote the unanswerable logic of Profes-
sor Cooper. He wrote:

THIS is DEMONSTRATION.

"Indeed, no opinion or doctrine, of whatever nature it be r
or whatever be its tendency, ought to be suppressed. For it
is either manifestly true or it is manifestly false, or its truth
or falsehood is dubious. Its tendency is manifestly good, or
manifestly bad, or it is dubious and concealed. There are no
other assignable conditions, no other factors of the problem.

"In the case of its being manifestly true and of good tend-
ency, there can be no dispute. Nor in the case of its being
manifestly otherwise ; for by the terms it can mislead nobody.
If its truth or its tendency be dubious, it is clear that nothing
can bring the good to light, or expose the evil, but full and
free discussion. Until this takes place, a plausible fallacy may
do harm ; but discussion is sure to elicit the truth and fix public
opinion on a proper basis ; and nothing else can do it."

Again, let me also quote from Vol. 6 of Westminster
Review :

"It is obvious there is no certain and universal rule for de-
termining, a priori, whether an opinion be useful or perni-
cious, and that if any person be authorized to decide, unfet-

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

tered by such a rule, that person is a despot. To decide what
opinions shall be permitted and what prohibited, is to choose
opinions for the people ; since they cannot adopt opinions
which are not suffered to be presented to their minds. Who-
ever chooses opinions for the people possesses absolute control
over their actions, and may wield them for his own purposes
with perfect security, and for evil as well as for good unless
infallible."

If there exists an opinion, the truth or falsity of which is
unanimously conceded to be of no consequence to humanity,
either for good or evil, then no excuse can be given for sup-
pressing it, and indeed, no one would be interested to prohibit
its discussion or to discuss it. If the truth of an opinion is
by any deemed to be of consequence to humanity, then there
exist only reasons for encouraging the greatest freedom of
discussion and experimentation, since these are the only ave-
nues to the correction of any opinions, even upon the subject
of sexual physiology, psychology, hygiene, or ethics.

So long as there is, among sane adults, difference of opinion
about anything, our race has not as to that subject matter at-
tained to certain knowledge, and only freedom in the inter-
change of opinion and experimentation can help us onward.
When our knowledge of sex, religion, etc., has been established
to a mathematical certainty there will be no difference of opin-
ion, and to suppress or abridge discussion upon these subjects
before we have reached mathematical certainty for our con-
clusions, is an outrage because it is the most effective bar to
our attainment of such certitude.

"DANGEROUS" OPINIONS.

But, it is said, this justifies the spread of "dangerous'' opin-
ions. Yes, it does. It is time enough to punish dangerous
opinions when the "danger" has ceased to be merely specula-
tive and hypothetical; that is when it is shown to have ac-
tually resulted in the violent or fraudulent invasion of nature's
rule of justice.

If the advocate of a "dangerous" opinion has not himself
been induced by it to commit an unjust interference with the
largest equal liberty of others, it is improbable that it will
induce his hearers or readers to become invaders. If the opin-
ion is dangerous in those who might hear or read it, it is pre-
sumably equally dangerous in the mind of him who would
express it verbally, if permitted. If we are warranted in
excluding the opinion from the minds of others because it

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

tends towards "dangerous" acts, then we are also warranted
in making such dangerous acts impossible to those who already
entertain such "dangerous" opinions. Furthermore, we can-
not then be logically compelled to await the realization of
that danger from those already convinced, any more than from
those about to be convinced. Such premises bring us una-
voidably to the result that society would be justified in engag-
ing in inquisitions for the discovery of every man's opinions,
with the purpose of incarcerating him for life, or until a
change of conviction, as a means of preventing the "danger"
which his opinions are supposed to threaten. Thus the denial
of an unlimited liberty of speech and press leads us by una-
voidable logic back to a total denial of both liberty and secrecy
of conscience.

Since these speculative and hypothetically "dangerous"
opinions are to have their dangerousness determined wholly
by a priori methods, no limitation by way of general rule can
possibly be put upon the whim, caprice, or superstitious fears
of the mob. It follows that if we are to admit the power or
justify any suppression whatever, of the expression of any
opinion whatever, we by necessary inference admit the ex-
istence of a rightful authority for every inquisition, and the
punishment of every unpopular opinion, though silently and
harmlessly entertained. There is no line which can be drawn
between admitting the jurisdiction of the State to incarcerate
any man for any opinion whatever, even those secretly enter-
tained, and the liberty of conscience, speech and press unre-
stricted even in the very slightest degree. The initial act of
tyranny by which we now justify our present abridgments of
the liberty of speech and press, thus furnishes the precedent
and justification for a total denial of the liberty of conscience.

If we would preserve any semblance of liberty of opinion,
it must be liberty for the entertainment and expression of any
opinion whatever. Let us then put ourselves firmly on the side
of those who would never punish any opinion, until it had re-
sulted in an overt act of invasion, and then punish the holder of
the "dangerous" opinion only for his real participation in that
act, as a proven accessory, and not otherwise.
FOUNDATION OF LIBERTY.

This then brings us back to that firm foundation of liberty
which was expressed by Holt, 6 in these words: "Private im-
morality or vice without public example [of invasion], and

5 Law of Libel," p. 72, 1816.

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OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

terminating in the individual, is left to a more solemn reck-
oning."

The same thought is found in Herbert Spencer's defini-
nition of liberty, expressed by him in these words : "Every man
has freedom to do all that he wills, provided he infringes not
the equal freedom of any other man." No opinion, even
though it advocates such infringement of another's equal free-
dom, can by the mere verbal expression of it constitute such
infringement. It follows that, no matter how slight, every
abridgment of the liberty of conscience, speech or press is it-
self an unpardonable tyranny and necessarily implies a justifi-
cation for every form of inquisition, and for every form of
lawless absolutism, in the constituted tyrannical power.
RIGHT AND WRONG METHODS.

The methods and evil consequences of the intellectual activ-
ity of all superstitious or bigoted persons are the same. In-
stead of leading others to an acceptance of their conclusions
by encouraging an examination of all possible pertinent evi-
dence, they inculcate their convictions by dogmatic reiteration
and a cultivation of associated emotions of approval. Thus
they instil into the minds of the weak and immature a forceful
habit of unfairness, of imbecility, and of mental corruption,
which unfits all affected ones for honest inquiry or the love of
truth, or a desire to weigh opposing evidence. The bigot
always attempts to frighten others from honestly or thor-
oughly investigating his convictions, by denouncing disagree-
ment as dangerous, wickedly heretical, and therefore "im-
moral." By such superstitious, ethical sentimentalizing, the be-
nighted, in the name of the social good, deny others the right
or the means of examining their boasted "morality."

The small mind is incapable of seeing the distinction be-
tween indifference to the truth of one's opinions and indif-
ference as to which of conflicting opinions shall prove to be
true. The former is the attitude of the bigot and persecutor,
otherwise he could not justify the limitation of discussion,
and the suppression of evidence. The latter proposition pre-
sents the temper of the scientists, who therefore desire to con-
sider all the material evidence adducible.

The man of rational mind considers all evidence, for the
love of truth, but never loves any statement of alleged truth
before it is fairly demonstrated to be true, and even then, he
accepts it as only a conditional truth, for the correction of
which all new evidence will ever be welcomed.

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UNDERLYING CONSTITUTIONAL GUARANTEE OF FREE PRESS.

Purists of literature confound the attributes of belief with
those of the behavior toward evidence. They ascribe to mere
belief the praise or blame which can only be due to one's
mode of dealing with evidence. Thus they make a virtue of
unfairness, by forcibly suppressing a part, or punishing an
honest weighing of all the evidence. They bribe men's intel-
lect to the suicide of logic, by withholding praise or reward
from the only mental activity which merits praise or blame,
viz., the presence or absence of a full and impartial inquiry
by every individual for himself. Since instilling opinions
into others, without evidence, engenders an habitual neglect
of evidence, the dogmatist of morals is the only man who
can be guilty of intellectual immorality, because he nurtures
the essence of all depravity.

"The habit of forming opinions and acting upon them
without evidence, is one of the most immoral habits of mind.
As our opinions are the fathers of our actions, to be indif-
ferent about the evidence of our opinions is to be indifferent
about the consequences of our actions. But the consequences
of our actions are the good and evil of our fellow creatures.
The habit of neglect of evidence, therefore, is the habit of
disregarding the good or evil of our fellow creatures." This
is the foundation of all evil, and it follows that the moral cen-



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 9 of 43)