LIBRARY

OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

A FORENSIC DEFENCE OF THE FREEDOM OF THE PRESS.

By Theodore Schroeder, of the N. Y. Bar.

(Reviewed by Editor of the Medico-Legal Journal.)

Our civilization in America and in the English-speaking nations has insisted that sex questions are by common consent tabooed. The intelligent father who retains the confidence of his children, if he is discreet and wise, speaks freely to his son on the matters, that are so important, to the lad's future as far as protecting him from the dangers to health by ignorance and want of warning indicating where the rocks lay in the channel, and in the eddies and in the currents, that are along the line he is to navigate in entering life.

But how few of the fathers are wise and fearless enough to speak what the father knows, and of that of which the son is ignorant and should discreetly be told. The intelligent mother must be more than an ordinary woman that speaks of the questions of sex, to her daughter, without reserve. She should, but she don't.

How many mothers frankly educate their daughters carefully, intelligently and completely in what every woman should know at her marriage? I know educated cultured people who debate and doubt, how far the parent can speak unreservedly upon the prohibited questions of sex. How many fathers ever speak to their daughters about it at all? Ordinarily why is this so? To what is this extraordinary reticence and reserve due? Why and under what influence has the mass of our people consented to taboo questions of sex, even in the family, and between children and parents? This being the general condition of the mind of the people, during the nineteenth century and before it, there has been reflected this false idea of modesty (so-called), in our laws, our customs, our usages even to our own offspring.

In animals, where clothing is unnatural no such condition exists, and their natural life, wholly under our control, in our sight, proceeds without the slightest reserve, or consciousness or thought of wrong or improper action, on either side. This however, fails to teach us, the natural law of the Creator and the trend of our thoughts, our customs, usages and conception, has moulded and circumscribed our lives by conventionalities that seem to dominate us more than a law of the land could.

I have observed that a recognized conventionality has a stronger and more dominating force upon our minds, as a race than has a statute law. Our mental attitude on questions of sex seems largely due to our education, environment, and to the particular race or country from which the conventionality comes.

The children of the savage go naked in childhood in tropical countries, as a matter of course, without any more thought of anything wrong, or even improper, than our own method, or than our sight of the conduct of the domesticated animals that are universal wherever races of man reside. We do not see anything wrong in it.

The laws of New York have been framed under the ideas we have been reared under, and in no case has it been more neglected by us than in respect to this subject of sex.

What must have been the carelessness that permitted the passage of a law that actually provided that a man like Comstock, should have a right to supersede the District Attorney, in the trial of cases under it, to take in his own hands, and out of the hands of the trained District Attorney, the Constitutional Officer that the State Constitution provided should be trusted with its charge and conduct, and who is sworn to discharge his official duty. Such a provision is still on our Statute Books,

to the disgrace of the State; still unrepealed. What is obscene in the light of legal decisions, and how far a law could be made that would override the provision of the Constitution as to the right of the citizens to write or print what he had asserted as a natural law became the very crux of the subject!

Mr. Schroeder's book is an accumulation of his writings on this violation of the constitution growing out of the examination of what is obscene? what is indecent? instead of the opinions of individual officials or men, whether officers or judicial opinions.

Mr. Schroeder's work is an exhaustive, carefully prepared statement of the constitutionality of a law that would deprive man of his constitutional right to write his views and publish them on questions that an ignorant judge might condemn to be obscene, and indecent, and one judge would look at in one way honestly, and another judge at it in another way, largely depending upon his education, temperament and training.

The free discussion by men of science of the problem of sex questions, for example by eminent medical men or Judges, no matter how plain the language used, where all things are called by their true names, This will no doubt be conceded by those who differ from Mr. Schroeder.

Those who differ from the majority of mankind as to the true relations of the sexes; as to marriage, divorce, polygamy, and even the social evil, and any or all propositions or problems arising in the conduct of trials enforcing the laws, in cases of sexual inversion, or the various crimes growing out of the sex question, must be conceded to have well defined constitutional rights under the constitution in their discussion, and as to all actions, covering these questions or concerning the details of the alleged violation of the laws.

In Science, writers take up and discuss these subjects. Take Kraft Ebing and others; Dr. Irving Rosse, late of Washington, discussing them freely. Havelock Ellis has given these subjects large attention; and he has written at great length concerning them and published as well in England and in America. Major R. W. Shufeldt, of the army, and some others, contend that the constitutional right to Freedom of the Press is not legally or properly, or safely, to be left subject to the views of individuals, as to what is not obscene, or as to what is, and what is not, Indecent. That the rights of the citizen under the constitution, is higher than the caprice or opinions, or the prejudices and whims of individuals. If we have allowed ourselves to accept false notions or ideas of obscenity or indecency, it is due to our faulty education, our environment, our ignorance, our prejudices and our mental bondage to conventionality.

The literature of the writers of the Elizabethan era shows, that the public opinion of that day, when English writers like Smollett, Fielding, Hudibras, and others, called things by their correct names, called a spade a spade, and no one was harmed.

The sacred scriptures could not be published or quoted to-day, without an apparent violation, of the statute, which shows how the past centuries and ages have not been disturbed, because of the freedom of the language used by the writers from the most remote antiquity.

The propriety of the present statutes are fair subjects of discussion in the public press. The repeal of many provisions of the existing law, would be no loss, to our civilization, and it is a fair source of inquiry whether they should not rest on a good sound and logical foundation.

Mr. Schroeder may be regarded by many as too intense and perhaps as fanatical in his criticisms of what he regards as cant, hypocrisy and ignorance, bigotry and prejudice. He may have felt deeply on the subject; he has the public good as the goal of his efforts, even if he should be found wrong in some of his conclusions.

He raises questions that must be met in the Legal Tribunals and decided by the Courts. They should be discussed calmly, dispassionately, and the laws he insists must be made more explicit and exact in defining "Obscenity and Indecency."

The rights of the citizens are not protected when an executive ag

gressive officer, should be clothed with the power of deciding, by his opinion, what is and what is not "Obscene," and what is or what is not "Indecent."

The issues are very ably and carefully argued, and presented by Mr. Schroeder in his work, and the tribunals must pass upon them if the present legislation remains upon our Statute Books, until the Constitutionality of the laws are decided by the courts of last resort.

Science can look on without fear, and without prejudice and should not be restrained from a perfect freedom of discussion and of expression in reaching a final decision.

The book itself merits careful and thoughtful consideration. We have not the space to recapitulate the argument, the logic or the course of the debate he opens on legal, and fundamental questions that are raised and discussed with great ability.

Science must set its seal firmly and inflexibly against all conventionalities, that prevents full and free discussion on every phase of the question.

Mr. Schroeder is a clean writer and a dispassionate thinker. Few men conceal as well as he his religious views. This is well and praiseworthy. Indeed it is necessary.

Whether a man is a Christian, a Jew, a Mohammedan, or a Pagan, is quite indifferent to the issue.

One question which is of great importance, and which is used as a sort of excuse for the drastic features of the law, is the influence upon the child, and the youth of both sexes.

The State must insist on the right to protect the child, and the young at the age, where childhood is merging into adolescense.

The public press educates our children, no matter what laws we enact in the very things that the law does not reach, and in spite of the laws.

The statute that vests in a censor, as in England, as on plays, was never thought of as a protector of the child. It was rather intended to protect the Throne, the State, and the masses of the people.

In this respect as to the drama the Censor in England may not be an unrestrained evil.

We seek to interdict by laws, what in England the Censor obviates the necessity for.

We have no sympathy for the destruction of vile works that undermine virtue, and uphold vice, but it is the prohibition and introduction of a work that makes it sell. Mankind will often do what is forbidden who would not dream of it if it had not been prohibited.

When a boy at school my Professor made an assault on Lord Bryon's works before the school. Every boy got a copy for himself, of course. Mr. Schroeder's book compels attention. We will do well to carefully study its logic, and its arguments.