"Obscene" Literature and Constitutional Law

P. 401: Foot-note 86, quoted from memory, is State vs. Holland, 37 Mont., 393." Also, a decision from Oregon or Washington holding invalid an anti-cigarette ordinance for want of a definition of what constitutes a cigarette.

P. 401 The foot-note here, McJunkins vs. State, 10 Ind., 145 (A. D. 1858,) should go to page 406 as foot-note 87.

P. 406 Foot-note now numbered 87 should be numbered 88, Cook vs. State, 59 N. E. Ind. 489-90 (1901).

P. 407:

Foot-note 89 should be, "Requoted from Heywood's

Defense, p. 29."

P. 407 Foot-note 90 should be, Ex parte Andrew Jackson, 45 Ark. 164 (1885).

P. 407 Foot-note 91 should be, U. S, vs. Commerford, 25 Fed. Rep. 904, West. Dist. of Texas.

P. 407 Foot-note now numbered 91 is astray, there being no corresponding reference in text.

There are quite a number of breaks in the continuity of several series of the foot-notes and the corresponding reference figures in the text, due to the transference of parts of the text to other places in the book after the citations and the foot-notes were linotyped.

PROLEGOMENA

I understand a preface to be the place used by authors for explaining the reason of the existence and the character of their performance, and sometimes to aid the reader to some advance appreciation of the author's purpose and viewpoint. To these ends I will devote this introduction.

My numerous smug friends, who pride themselves on their "eminent respectability," often reproach me gently for my extensive advocacy of freedom of speech and press, and of uncensored mails and express. To defend the right of all humans to an opportunity to know all there is to know, even about the subject of sex, to the polluted minds of my "pure" friends, is to defend an "uncleanness "-not at all unclean so far as it relates to their own bodies, but "unclean" to talk and read about —not "unclean" as to any acts or facts in their own lives, but "unclean" only to admit a consciousness of those facts. I reluctantly confess that all such hypocritical moral cant, or diseased sex-sensitiveness, arouses in me the most profound contempt of which my phlegmatic nature is capable. Perhaps that is ONE reason why I was impelled to do this uncompensated and unpopular work and sometimes to do it in a manner that is devoid of tact, according to the judgment of those who dare not countenance robust frankness.

They say to me, "What do you care? You know all you wish to upon the tabooed subject; what do you care, even though the general public is kept in ignorance, and a few [thousand] go insane as the result? That doesn't harm you any, and may be the public is benefited, in that, together with serious and searching sex-discussion, much real smut is also suppressed." Such has always been the specious plea of the shortsighted and the cowardly, during the whole period of the agitation for a secular state and freedom of speech.

The answers to such specious "arguments" have been often made in the contests of past centuries, and I can do no better than to quote the answer of Dr. Priestly: "A tax of a penny is a trifle, but a power imposing that tax is never considered as a

trifle, because it may imply absolute servitude in all who submit to it. In like manner the enjoining of the posture of kneeling at the Lord's supper is not a thing worth disputing about in itself, but the authority of enjoining it is; because it is in fact a power of making the Christian religion as burdensome as the Jewish, and a power that hath actually been carried to that length in the church of Rome. * * Our ancestors,

* * *

the old Puritans, had the same merit in opposing the imposition of the surplice that Hampden had in opposing the levying of ship money. In neither case was it the thing itself they objected to, so much as the authority that enjoined it and the danger of the precedent. And it appears to us that the man who is as tenacious of his religious as he is of his civil liberty will oppose them both with equal firmness. The man of a strong and enlarged mind will always oppose these things when only in the beginning, when only the resistance can have any effect; but the weak and the timid, and shortsighted, will attempt nothing till the chains are riveted and resistance is too late. In civil matters the former will take his stand at the levying of the first penny by improper authority, and in matters of religion, at the first, though the most trifling, ceremony that is without reason made necessary, whereas the latter will wait till the load, in both cases, is become too heavy to be either supported or thrown off."

In itself it may not be of great importance that by unconstitutional statutes, much disagreeable literary and inartistic matter about sex is suppressed, nor even that the best scientific literature about sex is withheld from the laity, and to some extent even from physicians; it may not even be of importance that, as a result of this general compulsory ignorance about sex, thousands of people are in asylums who would not be there but for our legalized prudery, and compulsory ignorance, but it is of infinite importance to destroy a precedent which implies the admission of a power to wipe out any literature upon any subject, which, through popular hysteria or party passion, may be declared "against the public welfare.”

So long as the present laws against "obscene" literature stand unchallenged as to their constitutionality, we admit that here, as in Russia, liberty of the press is liberty only by permission, not liberty as a matter of right. With the "obscenity" laws as a precedent, our censorship has grown until now (and I say this deliberately and later may furnish the proof of it),

Βιβλία

"Obscene" Literature and Constitutional Law: A Forensic Defense of Freedom ...