CHAPTER II.

ON THE ADVERSE EMOTIONAL PREDISPOSITION

The worst insult I ever heard charged against any court was an assertion that its judge was without prejudice upon any question of law. Our laws against obscenity in literature have been upon the Federal statute books about thirty-five years and elsewhere have existed even longer. After this lapse of time, one who presumes to raise new objections for the annullment of those laws, without assuming the existence of an adverse judicial, as well as popular, predisposition might have his conduct construed as an insult to judicial intelligence, or at least as a serious reflection upon his own.

Long public acquiescence, the force of inumerable precedents, and an “eminently respectable" indorsement of these laws, combined with the natural and proper conservatism of the judiciary, all conduce necessarily to create a popular and judicial predisposition against my contentions. The special emotional intensity, which is almost certain to accompany a discussion of such laws as are here under consideration, impairs the human capacity for a dispassionate rational weighing of argument. The practical importance of that mental attitude, in creating a general, strong and perhaps a passionate hope that my contention will fail, would be very much and very foolishly underestimated by me if I omitted all direct effort to re-establish an open-minded hospitality toward the arguments to be advanced later on.

Furthermore, I have read all the officially reported decisions in "obscenity" cases, and I have read many unofficial reports of instructions to juries and other accounts of the conduct of courts in such trials. According to many of these reports, even the seemings of judicial calm have been abandoned, and that which is false as a matter of science has been dogmatically asserted in language which suggests a substitution of passionate vituperation for logical processes. From the information thus

acquired, from my acquaintance with the psychology of modesty and my knowledge of human nature, I know how easy it is to transform a proper and necessary conservatism into a passionate "will to believe," when, as in this class of cases, conservatism is associated with the sensitive emotions having their origin in our sex-natures. I believe it is precisely this intellectbefogging combination which has precluded the prior presentation of the contentions now to be urged.

I am well aware that, in theory, our courts have nothing to do with the expediency of the laws, when passing upon their constitutionality. But I also know that the interests of the litigant have very much to do with the judicial opinion about their expediency, because too often that unconsciously determines whether the judge will be impelled to exercise his greatest ingenuity toward a discovery of reasons which will tend to uphold or to annul the statutes under investigation. Those who disbelieve in freedom of the press naturally and unavoidably will see at once all or many of those considerations which conduce to such a "construction" of the Constitution as will make an accomplished fact of that curtailment of liberty which they desire. If this mental predisposition is accompanied by intense emotional approval, as in this class of cases it is almost certain to be, a restoration of such open mindedness as leaves the individual amenable to accurate weighing of argument is all but impossible except to the most highly developed intellect.

As to the legislation against "obscene" literature, the public conscience feels the same passionate "moral" necessity which once impelled judges to exercise their wits and their might in a crusade against witchcraft and verbal treason. In Harper's Magazine, for Sept., 1907, we have a graphic portrayal of the prejudiced zealous federal judge who upheld the constitutionality of the sedition laws. Some more recent decisions upon a kindred question, if they evince less display of passion, yet show an equally deficient intellectual vision in the upholding of similar laws. All this comes from the fact that we erroneously ascribe to a "moral" cause that emotional aversion whose remote source is usually unknown to us, but whose immediate reason for being is laid deeply hidden in our subjective (emotional) states.

And here again I am compelled to express regret at my inability in a masterful single terse sentence to present an instantaneous and complete picture of all the related co-ordina

tions, as I see them. Yet such is the limitation of human thought and its expression that it cannot be done. My regret in the matter lies in this: To state some of my conclusions about emotional predispositions, before having argued out the psychology of modesty and obscenity, may intensify the very emotional aversion which I seek to obviate. And to elaborate the psychology first and at this stage of the discussion, is likely to secure me unmerited condemnation for its immateriality and impertinence. So, then, if I am to be condemned by emotional processes, my case is hopeless. If I cannot secure a patient attention to the very end of my presentation, then my very effort to attack the adverse emotional predisposition may intensify it, and it is sure to do so if I have overestimated the reader's healthy-mindedness and his capacity for subjecting his so-called "moral" emotions to a severe critical introspection.

That there is an adverse predisposition concerning my contentions seems unavoidably and unmistakably certain. The relation of the subject-matter to our emotional life makes it quite probable that there exists in most minds an intense "will to believe"-a passionate hope-that I am wrong. If our human natures have that uniformity which is usually ascribed to them, it is highly probable that in such a case as this a judicial conservatism, otherwise commendable, may evolve into a one-sided zealous quest for means to uphold the laws in question, rather than a scientist's dispassionate search for truth, and in proportion as this zeal is great the capacity to weigh the relative merit of arguments will be impaired.

Of course this argument is prepared with the thought that sometime, somewhere, before some judicial tribunal, it will be a subject for examination. To the end, therefore, that there will be a minimum of unconscious emotional bias to cloud the vision, I must devote myself to efforts at weakening that adverse mental predisposition, which is sure to exist in most minds. In so far as the approval of "obscenity" laws is a matter of emotions, the situation is very difficult to meet adequately. Feelings are seldom successfully displaced by calm logical processes. However, the most efficient means must still be an analysis of our "moral" emotions, to show the impropriety of making them the basis of ethical judgment, and to make a rational attack upon the expediency of maintaining the laws in question, and this will now be proceeded with. When I have done

what I am able to do to weaken the potency of that "moral" sentimentalizing which creates the mental attitude that will more diligently and energetically concern itself with verbalisms which lend only a seeming support to the feeling-conviction, than with discovering the logical necessities of constitutional right, then I will proceed with the more direct argument of the constitutional merits of the case.

When later on we come to study the psychology of modesty, we will find explanations for this very general acquiescence by the members of the bar and the laity. It will, then, be found that the strong emotional approval of these laws by the general public, ignorant of all scientific knowledge of psychology, and especially of sexual psychology, has been due to the fundamental and all but universal error by which we objectivize our emotional appraisment of moral values. Thus the masses think they know because they feel and are firmly convinced in proportion as they are strongly agitated.

The judgment of the righteousness of these laws, thus founded upon an error of ignorance, and re-inforced by emotions which often owe their intensity to diseased nerves, associated in the same person with a nasty-mindedness, characteristics of prurient prudes, has, by a process of suggestive contagion, become obsessive, even with more intelligent and healthy-minded persons. This process is easily understood by those who know the psychology of modesty. The few intelligent ones know that the emotional state underlying inodesty and shame arises simply from a fear-induced application to ourselves of judgments primarily passed upon others. Upon this practically all psychologists are agreed, and it is this emotional aversion and fear, with the blurred vision coming from psychologic ignorance, which has produced such tremendous success for the vehemence of our moralists-from-diseased-nerves.

The same emotional and psychologic factors which make it all but impossible for a jury to doubt the obscenity of a book alleged to be so, will make it nearly as difficult to secure an open-minded judge upon the same question or that of the unconstitutionality of these laws. We have an abundance of emotional associations with unpopular words and ideas and we have ethical sentimentalizing without limit, but these cannot furnish us with any objective facts, or standards for a rational judgment. What is the result of a prosecution for obscenity before a jury thus totally lacking in every element for deter

mining the issue of obscenity with even moderate precision? The pretentious agents of vice-societies, the prosecuting attorney and the judge, in impassioned tones vent their emotional disapproval in vigorous epithetic argument against the offending book. In the nature of things, they cannot furnish the jury with anything else. If they could, the question of obscenity would be a question of law determinable by the court according to mathematically accurate standards and not a question of fact for the jury, to be determined according to whim, caprice, and moral sentimentalizing. Even when courts have treated it as a matter of law, their decisions have still been only decisions reached by the same uncertain and personal standards. In these matters it is true of all of us that we know only because we feel, and are firmly convinced because strongly agitated.

The jury, of course, wish to be thought respectable, and a similar feeling will more or less unconsciously influence judges who have not been warned against this dangerous tendency. It may be that the book offends their own emotional sense of propriety. The changes are rung on the necessity for protecting the home, the women, the family and the children, until the avalanche of righteous vituperation creates such a mist of emotional disapproval that the juror forgets or loses what little capacity he may have had for looking behind the question-begging epithets. In the face of this condition the defense is helpless. It also is unable to furnish a scientifically exact yardstick, such as enables the juror in other cases to check his emotional predispositions. In the absence of a clear and over-mastering vision to the contrary, every juror's vanity of respectability, unavoidably and unconsciously compels him unthinkingly to condemn everything which is vigorously denounced as “impure," by anyone connected with the prosecution or by popular ignorance, prejudice, superstitition, or passion. In the face of a question-begging epithetic argument, made in such a case and under such circumstances of ignorance and want of experience, no juror is able to reason upon the question at issue, which, according to the usual judicial legislation is: Does this particular book really tend to deprave and how, why, and by what code of morality is depravity to be determined? If compelled to answer these questions without promptings from the court or prosecution, the juror must confess his inability to state how and why. The result is that just as in the witchcraft prosecutions, so here, in practically every case, to be accused is equivalent to a con