MASTER NEGA TIVE NO. 91-80416 MICROFILMED 1992 COLUMBIA UNIVERSITY LIBRARIES/NEW YORK as part of the "Foundations of Western Civilization Preservation Project" Funded by the VVMENT FOR THE Reproductions may not be made without permission from Columbia University Library COPYRIGHT STATEMENT The copyright law of the United States - Title 17, United States Code -- concerns the making of photocopies or other reproductions of copyrighted material... Columbia University Library reserves the right to refuse to accept a copy order if, in its judgement, fulfillment of the order would mvolve violation of the copyright law. AUTHOR: SCHROEDER, THEODORE ALBERT TITLE: FREEDOM OF THE PRESS AND.... PLACE: NEW YORK CITY DA TE : 1906 Re FIl IM FII COLUMBIA UNIVERSITY LIBRARIES PRESERVATION DEPARTMENT BIBLIOGRAPHIC MICROFORM TARHFT Master Negative # Original Material as Filmed - Existing Bibliographic Record . Acquici tiori'S NYCG-YQ o\ b - SAVL rc'jord ST: :5 FRN: : MG: EL- : AD: 12-06- 91 CSC: : MOD: : CNR: A7C: UD: 12-06- 91 GI'C: : 1.^ 1 : : }-■ 1 C : CON' RLP: : CPl; :0 rsr.o ILC: : MEI:1 11:0 RR: COL: EML: : GEN: BSE: 8KS/SAVE Books hUL/BIB NYCG91-B100852 flH PN SCHROEDLR, THEODORl: AND IW fRLEDOH - Cluctcr ID:HYCG91-B100852 RTYP:a CC:9il^ BLT:ani DCF : CP:nyu L:enq INT: PC:r PD:199l/1906 MMD: OR: POL: Dh 040 NNCi:cNNC 050 HV6727J-b.S3b 100 10 Schroeder, fheodore Alber t , }:dia64- 245 10 Freedom of the f>ress and "obscene" aysrcby Theodore Schroeder ... 260 New York City,rbTiie Free speech leaqiie , J ccl906 . 300 71 p.tc23 cm. 500 "These essays are collected and f)ubHshed by tfie Free speech league. " li tcrature^hCmicr ofor m]. rb Tin ce e: BKS/SAVE Books Cluster^ 1 of 5 - FUL/BIB SAVE record NYCG91-B100852 Acquis! tions NYCG-VG SOS More liberty of press essential to moral fjroqress. An address for tfie National purity federation, held in Chicago, October 9- .--What is criminally obscene? A scientific study of the absurd "tests" of obscenity. This essay was a part of the proceedings ngr^es internatiofial de m_edicine, section XVI m„edicine i.egalc t Lisbon, Portugal, April, 1906, and also published in tfic Alban urnal of July, 1906. --Liberty of discussion defended with specia ation to sex-discussion. An essay revised and republished from t al review for August and September, 1906. Freedom of the press. Literature, Immoral. RLIN prepared 12, 1906 judicial of XV Co , held a y law jo 1 ar.^plic he Liber 650 650 LOG QD 12-06-91 TECHNICAL MICROFORM DATA FILM SIZE: "^6^^ IMAGE PLACEMENT: lA (^UAQ IB IIB DATE FILMED: ilLlljJr^ INITIALS HLMEDBY: RESEARCH PUBLICATIONS. INC WOODBRIDGE, cf REDUCTION RATIO: ^V ^ c Association for information and Image IManagement 1100 Wayne Avenue, Suite 1100 Silver Spring, Maryland 20910 301/587-8202 Centimeter 1 2 3 iiiiiiiiiiiiiiiiiiiiiiiiiiiiili I I T 4 liiiilii TTT 5 6 Jiiiiliiiilii 7 8 9 iliiiiliiiiliiiiliiiili 10 11 liiiiliiiili 12 1 TTT mjmjmm^^ 13 14 15 mm iiiliiiiliiiil Inches 1 1.0 Ui 1 2.8 2.5 2.2 2.0 1.8 1.6 I.I £ US. feiUU 1.4 1.25 MfiNUFfiCTURED TO flllM STRNDflRDS BY PPPLIED IMAGE. INC. 7U i FREEDOM OF THE PRESS — AND — "OBSCENE" LITERATURE. THREE ESSAYS BY '0^ THEODORE SCHROEDER, ^ 63 East Fifty-ninth Street, New York City. OF THE NEW YORK BAR. <( There is tonic in the things that men do not 7vish to hear.^'- Henry Ward Beecher. THESE ESSAYS ARK COLLECTED AND PUBLISHED BY THE FREE SPEECH LEAGUE, 120 Lexington Avenue, New York City. Copyrighted by the Author, Nov. igo6. READ THIS PAMPHLET, THAT YOU MAY KNOW WHAT Outrages on Liberty YOU ARE TOLERATING. THEN READ "Practical Suggestions" ON THE BACK COVER, (. AND DO SOMETHING! FREEDOM OF TH E PRESS — AND — "OBSCENE" LITERATURE THREE ESSAYS BY THEODORE SCHROEDER, 63 East Fifty-ninth Street, New York City. OF THE NEW YORK BAR. \ " There is tonic in the things that men do not tvish to hear. Henry Ward Beecher. »» THESE ESSAYS ARK COLLECTED AND PUBLISHED BY THE FREE SPEECH LEAGUE, 120 Lexington Avenue, New York City. Copyrighted t>y the Author, Nov. 1906. I' i I • ANNOUNCEMENT. The late Dr. Edward Bliss Foote deposited, with his last will and testament, a letter vvnich contained the following paragraph : " To my sons, or, in case of their demise, to their suc- cessors, I would say that my wishes would be that they give generously from the proceeds of my estate to all good move- ments for the maintenance of free press, free speech and free mails, the cause of heredity (i. e., stirpiculture, eugenics), liberalism, etc., which movements have as yet no sufficient legal organization to permit them to receive legacies. All projects that have for their object the improvement of the human family have ever enlisted my sympathies and my support, and my successors cannot better carry out my wishes than to give liberally to them." Because of that request, and of his own devotion to the cause of freedom of speech, Dr. E. B. Foote, Jr., has furnished the money to print this pamphlet and gratuitously to circulate a large number of them in official circles. It is intended also to incorporate the Free Speech League, so that hereafter bequests may be made to further the ends of all friends of free inquiry. Mr. Schroeder is preparing other arguments attacking the validity of various laws which now abridge the freedom of speech and press, which other essays we also desire to pub- lish, A Free Press Anthology is also in preparation, and should be given a wide circulation. To that end, as well as the wider dissemination of these essays we invite contributions from all lovers of intellectual hospitality. Remittances should be sent to Dr. E. B. Foote, Jr., Treasurer, 120 Lexington Avenue, New York City, Ever for Truth, Justice and Liberty, THE FREE SPEECH LEAGUE, E. W. Chamberlain, Pres. 10 W. 6 1 St Street, N. Y. City. THE FOLLOWING REPORT OF COMMITTEE ON LAWS OF OBSCENITY, WAS UNANIMOUSLY ADOPTED BY THE NATIONAL PURITY FEDERATION, October ii, 1906. Your committee appointed to secure for Purity workers ftjat liberty of pr^sand^ speech essential to the Purity Propaganda would report as '° We^d^^ire to express our hearty and unqualified endorsement of the purpose for which the laws for the suppression "f ^"^f. f f , '^^PS^ltes merit of those who send obscene literature through the "^"'tea ^tat^ maUs were originally framed ; we wish also to express our earnest de^ r4 Tor evenl"arger exercise of these laws in the accompl.shme.U of ?he orig?naTpurpose, which must have been m the mmds of those who ^'^Tnn?etr^efer!'rf%hTV 'Hat Puji'V workers are -sUntJy fctiiy" inXelLSr latstavri^^^^^^^^^ S?r^rolXlr:faers"1I^P^^^^^^ ^ ^h- ^^v^^^'^^:^^^^j^^ workers whose efficient help is most seriously needed your Committee ""-F^iref Th^ttVpSrt bl rpowTredtTppojnt a permanent comm Utee of Jeven of whom he shall be one who shall^^eek to secure mirh changes in the iudicia tests of obscenity as will make the law so ce^ain'Thirby rLd^ it anyone may know what con^f| "^^^^^^^^^^ tion and to secure such an interpretation of the law as >?,'" "^^^.f *^^^^ S^i^S^eirtoVe^rSferSl^^ s[tsr;'t^°tThrdur^^^^^^^^^^ deflnse'and pr^ecdon L -uch needed by earnest and s.nce^^Pumy workers who are now constantly exposed to the <|f"fe;* "^ PJ°^^""n3 by the uncertainty of the very laws which they desire to cherisn ana We would therefore recommend that this Committee be authorizwi to afford to anv real Purity worker who is unjustly arrested such sympa- thy and assLtLce. legal'financial and moral, as may be within their ''° We would also recommend that this Committee should seek to enlist the co-^oeration of Ither organizations in furthering these same ends^ Thi^CommUtee shall alio be empowered to make any propaganda necls^rv through the public press or otherwise in securing.such puij^h- S of the gu"fty and such protection for the innocent as m their judg- ment may be most wise and discreet. p.,„„_,, MrSA^RAHRBOND^ • Dr HA„,«A.SC„WE.0ENBR. Dr. Delos F. Vvilcox. Republished from THE LIGHT. CONTENTS. I.— MORE LIBERTY OF PRESS ESSENTIAL TO MORAL PROGRESS. An address prepared for the National Purity Federation, held in Chicago, October 9-12, 1906. Herein are pointed out some of numerous wrongs that are perpetrated by our present abridgment of the freedom of the press. II.— WHAT IS CRIMINALLY OBSCENE? A scien- tific study of the absurd judicial " tests" of obscen- ity. This essay was a part of the proceedings of the XV Con J res fnternational de Medicine^ section XVI Medicine Legale, held at Lisbon, Portugal, April, 1906, and also published in the Albany Law Journal of July, 1906. .... III.— LIBERTY OF DISCUSSION DEFENDED WITH SPECIAL APPLICATION TO SEX- DISCUSSION. An essay revised and republished from The Liberal Review for August and Septem- ber, 1906. . . PAGE If 33 49 il> i 'I (| MORE LIBERTY OF PRESS ESSENTIAL ((■TO MORAL PROGRESS.)/ By Theodore Schroeder, (This Addre** was prepared for a conference of the National Purity Pederatioa held in Chicago October 9-13, 1908, now somewhat enlarged and revised.) Only a few decades ago, the mighty governed the many, through cunning, strategy, and compulsory ignorance. A lay citizen was punished by law, if he presumed critically to dis- cuss politics, officials, slave emancipation, astronomy, geology, or religion. To teach our African slaves to read, or to circu- late abolitionist literature, was in some States a crime, because such intelligence conduced to an ''immoral tendency'* toward insurrection. To have the Bible in one's possession has also been prohibited by law, because of the "immoral tendency" toward private judgments, which general reading of it might induce. One by one the advocates of mystery and blind force have surrendered to the angels of enlightenment, and every enlarge- ment of opportunity for knowledge has been followed by the moral elevation of humanity. Only in one field of thought do we still habitually assume that ignorance is a virtue, and enlightenment a crime. Only upon the subject of sex do wc by statute declare that artificial fear is a safer guide than in- telligent self-reliance, that purity can thrive only in conceal- ment and ignorance, and that to know all of oneself is dangerous and immoral. Here only are we afraid to allow truth to be contrasted with error. The issue is, shall we con- tinue thus to fear full and free discussion of sex facts and sex problems? i I f WHY NOT IGNORE SEX? The first question to be answered is, why discuss the sub- ject of sex at all? There are those who advise us to ignore it entirely, upon the theory that the natural impulse is a suffi- cient guide. To this it may be answered that all our sex activities cannot be subjected to the constant and immediate control of the will. We cannot ignore sex by merely willing to do so. Our attention is unavoidably forced upon the sub- ject, both by conditions within and without ourselves. That we may deceive ourselves in this particular is possible ; that we all can and many do lie about it is certain. Without sexual education, we cannot know whether we are acting under a healthy or a diseased impulse. It is known to the psychologist that many are guilty of vicious and in- jurious sexual practices, without being in the least conscious of the significance of what they are doing. Everywhere we see human wrecks because of a failure to understand their impulses, or to impose intelligent restraints upon them. Many become sexually impotent, hyperaesthetic, or perverted by gradual processes the meaning of which they do not under- stand, and whose baneful consequences intelligence would enable them to foresee, and easily avoid. Since individuals will not go to a physician until the injury is accomplished and apparent, it follows that there is no possible preventive except general intelligence upon the subject. At present the spread of that knowledge is impeded by laws and by a prurient prudery, which together are responsible for the sentimental taboo which attaches to the whole subject. The educated man of to-day measures our different degrees of human progress by the quantity of intelligence which is used in regulating our bodily functioning. No reason exists for making sex an ex- ception. THE PHYSICAL FOUNDATION FOR MORAL HEALTH. To those who accept a scientific ethics, moral health is measured by the relative degree to which tlieir conduct achieves physical and mental health for the race. To the rc- Kgious moralist, who has other ends in view, pathologic sex- uality is probably the greatest imnediment to the practical realization of his ideal of sexual morality. Evervwhere 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 8 of such knowledge as will best conduce to the highest physical and mental perfection. I will ask your indulgence for a few general observations, after which 1 will proceed to a more detailed discussion of our legislative preventives to sexual intelligence and moral health. ON THE RIGHT TO KNOW. All life is an adjustment of constitution to environment The seed dies, or has a stunted or thrifty growth, according to the degree of harmonious relationship it effects with soil, moisture and sunlight. So it is with man: He lives a long, happy and useful life, just to the degree that his own organism functions in accord with natural law operating under the best conditions. It follows that a growing perfection in the knowl- edge of those laws is essential to a progressive harmony in the individual's conscious adjustment to his physical and social environment, and every one of us has the same right as every other to know all that is to be known upon the subject of sex, even though that other is a physician. Since a comparative fullness of life depends upon the rela- tive perfection of the individual's adjustment to the natural order, and since the greatest knowledge of nature's rule of life is essential to the most perfect conscious adjustment (which is the most perfect life), it follows that our equality of right to life, liberty, and the pursuit of happiness entitles every sane adult person to know for himself, to the limit of his desire and understanding, all that can be known of nature's pro- cesses, not excluding sex. Every sane adult person, if he or she desires it, is equally entitled to a judgment of his or her own as to what is the natural law of sex as applied to self, and to that end is person- ally entitled to all the evidence that any might be willing to submit if permitted. It is only when all shall have access to all the evidence and each shall have thus acquired intelligent reasoned opinions about the physiology, psychology, hygiene, and ethics of sex, that we can hope for a wise social judgment upon the problems which these present. The greatest freedom of discussion is therefore essential as a condition for the im- provement of our knowledge of what is nature's moral law of sex, and is indispensable to the preservation of our right to know. J5 I LEGAL ABRIDGEMENT OF THE RIGHT TO KNOW. • This brings us to inquire what are the legal abridgements of our right to know? Both our Federal and State laws es- tablish a so-called "moral"^ censorship of literature. All the statutes in question describe what is prohibited only by such epithets as, lewd, indecent, obscene, lascivious, disgusting, or shocking. At the time of the enactment of these laws, the scien- tific study of psychology had hardly been commenced, and the existence of a sexual psychology was not yet suspected. Conse- quently it was ignorantly and erroneously assumed that the prohibited qualities were those of the book or picture, and there- fore of definitely describable characteristics. One needs only to analyze the judicial tests of obscenity to discover how impos- sible and absurd it is to attempt to define the prohibited qual- ities in terms of a book or picture. Modern sexual psychology now seems to prove that the words in question only symbolize an emotional association in the viewing mind, and not at all a quality inherent in the printed page. Thus science and the Bible are in harmony in declaring that "Unto the pure all things are pure,'* notwithstanding the judicial slurs which judges, ignorant of psychology, have cast upon that text. ( See Albany Law Journal, July, 1906, for fuller discussion.) This judicial error brought strange consequences. The courts were unable to frame a definition of the obscene in terms of a book, and so were compelled to indulge in specu- lative vagaries. Judges now practically authorize juries to declare anything indecent and obscene, or not, as whim, caprice, prejudice, or personal malice might persuade them that the book or picture tended to induce immoral or libidi- nous thoughts in the minds of any sexually hyperaesthetic person open to such immoral influences and into whose hands it might come. No standard for measuring psychologic ten- dencies, nor mode of reconciling conflicting codes of ethics, was attempted, nor could be furnished. It was stupidly as- sumed, in contradiction to the fact, that everybody was in agreement as to what is the higher morality. THE CASE OF HICKLIN. The first reported English decision (Reg. vs. Hicklin, L. R. 3 Q. B. 360) , which attempted to state a test of obscenity, was decided in 1868, and furnished the precedent for practically all American decisions. The facts were as follows: Hicklin, the accused, had sold a pamphlet entitled "The Confessional Un- 10 masked: Showing the Depravity of the Romish Priesthood, the Iniquity of the Confessional, and the Questions put to Females in Confession.'* The pamphlet consisted of extracts from Catholic theologians, one page giving the exact original Latin quotations and the adjoining page furnishing a correct translation thereof. Much of the pamphlet admittedly was not at all obscene. It was not sold for gain, nor with any in- tention to deprave morality, but, as the defendant believed, to improve morality. It was sold by him as a member of the "Protestant Electoral Union,'' formed "to protest against those teachings and practices which are un-English, immoral, and blasphemous, to maintain the Protestantism of the Bible and the liberty of England. * * * To promote the return to Parliament of men who will assist them in these objects and particularly will expose and defeat the deep-laid machinations of the Jesuits, and resist grants of money for Romish pur- poses." Notwithstanding all these admitted facts the court held the pamphlet to be obscene and laid down this test : "Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influ- ences, and into whose hands a publication of this sort may fall." It will be observed that it was criminal, if in the hands of any one imaginary person it might be speculatively be- lieved to be injurious, no matter how much it tended to improve the morals of all the rest of mankind, nor how lofty were the motives of those accused, nor how true was that which they wrote. This is still the test of obscenity under our laws, and it has worked some results which could hardly have been in contemplation by our legislators in passing our laws against indecent literature. THE BIBLE JUDICIALLY DECLARED OBSCENE. K, One of the early American prosecutions of note was that of the distinguished eccentric, George Francis Train, in 1872. He was arrested for circulating obscenity, which it turned out consisted of quotations from the Bible. Train and his at- torneys sought to have him released upon the ground that the matter was not obscene, and demanded a decision on that issue. The prosecutor, in his perplexity, and in spite of the protest of the defendant, insisted that Train was insane. If the matter was not obscene, his mental condition was immaterial, because there was no crime. The court refused to discharge the pris- II 'I i ' k Not long since I learned of the marriage of persons in a most conservative social set. The couple had been chums since childhood and engaged lovers for many years. After this long waiting, came the joyously anticipated wedding, and the bride was the ideal picture of radiant love. The day after her marriage, she acted strangely, and by evening, her husband and relatives concluded that her reason had been de- throned, and ever since, she has been confined in a sanitarium. Through her incoherent speech, only one thing is sure and con- stant, and that is that she never again wants to see her hus- band. More information is not given to the conservative cir- cle of her friends. All profess ignorance as to the immediate cause of this strange mania, which reverses the ambition, hope, and love of a lifetime. Strangely enough, within two days after hearing this pain- ful story, a friend handed me the Pacific Medical Journal, for January, 1906. (Article by R. W. Shufeldt, M. D., Major Medical Department of U. S. Army, and Trustee of the Medi- co-Legal Society of New York). Therein I read the follow- ing paragraphs and to me the mystery had been solved. Now I thought I knew why one bride had her love turned to hate, her mind ruined, and why her relatives were so shamefacedly silent, lest some should learn a useful lesson from their afflic- tion. The material portion of the article reads as follows : "While upon this point I would say that under the so-called sanctity of the Christian marriage, untold thousands of the most brutal rapes have been perpetrated, more brutal and fiendish indeed, than many a so-named criminal rape. So outrageous has been the defloration of many a young gid-wife by her husband, that she has been invalided and made unhappy for the balance of her natural life. There are cases on record where so vio- lently has the act of copulation been performed that the hymen being thick and but slightly perforated, death has followed its forcible rupture, and the nervous shock associated with the infamous proceeding. Here the criminally ignorant young husband and the ravisher are at par, and no censure that the world can mete out to them can be too great." And now I thought T had received new light on those strange and not infrequent accounts one reads in the news- papers, of young women who commit suicide during their "honeymoon." 29 '(* A , ^.af^-' — i , '^'^^ Here another strange chance led me upon Dr. Mary Walker's book **Unniasked, or the Science of Immorality," where I read the following paragraph: "There are instances of barrenness, where the only cause has been the harshness of husbands on wedding nights. The nerves of the vagina were so shocked and partially paralyzed that they never re- covered the magnetic power to foster the life of the spermatozoa until the conception was perfected.*' With this much I went to a physician friend, and he promptly confirmed all that had been said by the others and handed me ''Hygiene of the Sexual Functions, a lecture de- livered in the regular course at JeflFerson Medical College of Philadelphia, by Theophilus Parvin, A. D., M. D., Professor of Obstetrics and Diseases of Women and Children." On page two I read the following : "Occasionally you read in the newspapers that the bride of a night or of a few days, or of a few weeks, has gone home to her parents, and never to re- turn to her husband ; but there is a Chicago divorce conclud- ing the history. One of the most distinguished French physi- cians, Bertillon, has recently said that every year, in France, he knows of thirty to forty applications for divorce within the first year of marriage, and he has reason to believe that a majority of these are from the brutalities of the husband in the first sexual intercourse." After reading these statements from highly reputable phy- sicians, I could no longer doubt that these "most obscene" books ever published, were really most humanitarian efforts on the part of those who perhaps had a wider knowledge than I possessed. If this is the worst, I am prepared to take chances on lesser obscenity. WHAT SHOULD BE DONE ABOUT IT. This then brings us to the question as to what we can do or should do to improve the situation. The answer to the question necessarily depends upon what ends you have in view. It seems to me that first and foremost, it should be desired that whatever may be the law upon the subject, it shall be made so certain as to what is prohibited, that every \ person of average intelligence by the mere reading of the \statute may know whether he is violating the law or not. This of course implies the abolition of our present "tests'' of ob- scenity, which makes guilt depend upon the jury's speculative opinion about a doubtful psychologic tendency. V '^ -> 30 4- V t I / I know of no method by which such tendencies can, with certainly, be determined in advance of actual experience with the particular book or picture, and even then there can be no method by which we may with certainty balance the evil . effects upon some minds against the beneficial effects jupon other minds, both being the result of the same book^f Per- sonally, it seems to me, that every adult has the same right as every other to select for himself or herself whatever literature or art they may see fit to enjoy. This equality of right does not obtain in the favor of minors. What they shall be per- mitted to know or read is properly a matter of discretion with others. . Those who reason sanely it seems must conclude that when any person is old enough by law to enter matrimony, which involves actual sex experience, then they should be conclusively presumed competent to choose for themselves the quantity and quality of psychic sex stimuli they wish to have, and whether it shall come through the means of good or bad art, literature, drama, or music. It is not clear to me why we should seek by law to control the sexual imaginings of those persons to whom it accords a perfect right to sexual relations. | I can even see force in the methods of the ancient Greeks who believed that dancing and athletics in nudity conduced to honored marriage. Upon this subject the Rev. John Potter, late Archbishop of Canterbury, has this to say: "As for the virgins appearing naked, there was nothing disgraceful in it, because everything was conducted with modesty, and without one indecent word or action. Nay, it caused a simplicity of manners and an emulation of the best habit of body; their ideas, too, were naturally enlarged, while they were not ex- cluded from their share of bravery and honour. Hence they were furnished with sentiments and language, such as Gorgo, the wife of Leonidas, is said to have made use of. When a woman of another country said of her. 'You of Lacedaemon, are the only women in the world that rule the men,' she answered, 'We are the only women that bring forth men.' " (Archaeologia Graeca, p. 645, Glasgow, 1837.) Those who esteem mere psychic lasciviousness a more serious offense than the corresponding physical actuality, lay themselves open to be justly accused of erotomania. How can we expect even married people to live wholesome 31 V M 1? i I •^'•'T '• "III T'w nuiiliilMiIMM rr supremacy. '° ^'^PP'" ^'^^ each other' for By giving the widest possible scone for ft,„ ^- • ' • a-nong adults, of the scienSfic ntl^Tjrs.Tj:ZlT'7 ».g appropriate instn.ction in our pubh^J^^l ^S pTs': t" dreaHpH o«^ ♦u ^ ^'^ ^"^ "^'^ ^hich are now so nil nt ov^STtlrur '""'"^^"" ^°"'^ ''^ "- Pubh-c morals' Thus thro:, e^rUtSfhrrt"^''^^^^^^^^ '" press for the instruction of all over 8 ve.rs "^f "'"""'' '"'' reasonably hope to secure for th. f ^ °^ ^^'' ^" ""^-^ «.n<.H <.^„c„- "^ "^''^ generation an enlieht- ened consc.ence as to all questions of sexual health and mofals. 32 i WHAT IS CRIMINALLY "OBSCENE"? By Theodore Schroeder. This essay was a part of the proceedings of the XV Congres International de Medicine, section XVI Medicine Legale, held ac Lisbon, Poriugal, April, 1906, and also publislied iu the Albany Law Journal for July, l90d. The English Parliament, the Congress of the United States, and all the States of the American Union, have pen- alized "lewd, indecent and obscene" literature and art. All this legislation, and the judicial interpretation of it, proceeds upon the assumption (false assumption, as I believe) that such words as "obscene" stand for real qualities of literature, such as are sense perceived, and, therefore, permit of exact general definition or tests, such as are capable of universal ap- pUcation, producing absolute uniformity of result, no matter by whom the definition or test is applied, to every book of question^le "purity." Under these laws, as administered in England and Amer- ica, every medical book which treats of sex— and many which do 'not— are declared criminal, and their circulation even among professionals is a matter of tolerance, in spite of the law, and not a matter of right under the law. The infamy of such a statute has induced some American coflrts, under the guise of "interpretation,** to amend the statute judicially, so as to exempt some medical book, otherwise "obscene," from being criminal if circulated only among some professional men. What the judicial legislation will be, must always de- pend in each case upon the couft. If an accurately definable character of the word "obscene" is not implied in all our laws penalizing the "indecent," then they do not prescribe a uniform rule of conduct, and are there- 33 { i -s^rr. diced bv^; f . " "'^ assumption, is further evi- denced by the fact that no legislative dehnition or test is fur- nished, and courts assert that none is necessary, sin e these are n.atters ot common knowledge. ^96 i\. Y ioT lliat assertion. 1 believe, is based upon lack of psychologic •uelhgence. and it is here intended to ouUine an argumem^o deinonstrate us falsity. Be it remembered, that thisl"- tio^i n the science of psychology. It is not a question of eSii" mat, r'f "" '^"'"""^ expediency, but ever and alway a' patter of science, which must underiie all these. If my con ention is correct, then present obscenity laws are a ifuZ for want of a definition of the crime and tnr .L ^' of that wh.vk »i, . crime, and tor the non-existence rl , ' *'**"'^ ^^''^ '° P""'sh. I will prove that obscenity IS ever and always the exclusive property L con tribution of the reading mind. ^ Nothing will be herein contended for. which will preclude laws aeamst ^mn "''.f?/'""^ P^^'P'^ ^hink justify our present laws against impure literature. To illustrate : Exceot when done by parents, guardians, et al, it could be made a crime o sell, or transmit, etc.. to any person under the age of co" sent any book containing such word as "sex." or Sy p c^e S^etimrwoTir^^r k'" ^"'^'^ ^ •^^' ^" ^^ -"^•^■- o tne crime would easily be prescribed with that exactness which leaves no r<^m for such objections as I a^ now S to make against the existing statutes. ^ ^ Such a law would not. and should not. assume to decide nor authorize a iurv to deciHe «,h,» • j .^^ . ^^^'^^^^y It would «m.i ! ' * '* ^°°^ °'' ''^d literature. It would simply assume the incompetence of children to judge for themselves what information they desired, and at the sarfe time accord that rightful liberty to adults In 1661, the learned Sir Matthew Hale, "a person than whom no one was more backward to condemn a wkch wu" angels [as witches], it is without question." Then he made With the same assurance, and no less ignorance of scence-as we hope to show-our courts now Zn. thit the 34 the range 01 ^^^^^^ ^j ^^jt, in who uses the mails . • • ""!' ^ and chas- lascivious." (U. S. vs. Rosen 161 U S. 4a.) This appeal, to the coiisensus °^ J^ ^./^^Son ened age," has been -f '« suppor^^^o -er^ P ^^^^ that has ever paralyzed the human intellect, t w reassuring if judges had S^^-V^rsle p'^^cdved qSties obscenity, in terms of the f ^<=^7' ^^ne S Y 'nd with of literature, 6v v,Uch test alone je ^^"''i """"^fting line unavoidable uniformity, draw the ^»'"^' ^'^^ J ""^e fn liter- of partition between -'^^Ves tl^sV Unlil ^^ yCniTh such ature, no matter who applies the t^st. Until t y ^^ ta to OTttol o«, .o.d.ct, no, ttat of or court, o, ,"r». tions. or questions any other sex ^"P™ ' ;^„ ^^ch as cowed into silence by -^-j^t/..^^ ^T^^^^^^^ ' "impure '••immoral ;•""* ™ „„developed minds. Such epithets may be very satisiymg .ssue. Again we say: This is a matter quires fact and argument, and cannot be disposed oy q tion-beeeinc: villification. The Lrts are more refined, though not more argumenta- The courts are mo denouncing dissenters. ^h^MirSa s*^^^^^^ -h matters are said to Tonly dure to the over-prudish, it ^^^^^^^^^^^^ ■ miliarity with obscenity blunts the ;'^f^''^:f'^^^r^g^n taste and perverts the judgment." (45 Fed. J^P' ^^^O J^f —or i?i: ;SL for any one to prescribe a gener. r^^^^^ of judgment, by which to ^^^^^.^^^^^J^; of "good of the criminal •'blunted sensibihties. or the umit 01 g 35 ( r "obscene," and acqS slh ' hT'". T'^ '" ''^"^^^ '" *e could discuss n^atJersof sex as ^ ""?"''"" ^'^^^ ^''^^ «ver or digestion -w,>», ,k , "^ """^"^^ matters of ious feelinif wWT t " ! ^°'"J ''''''''" ^^^ «" 'asciv- eased sex-LsitK^e„e TT .T'' ^'"'^^^^'^ *« ^^^ dis- "obscene" literature willTeb to " P''^^^^'"^' -"^ so-called sensibilities," would it not t K . "^ ^^°"* '"^"^ """"t^^ tions ? It eqSe ar "1 ' Z *° "^~"'^^^ ^"^^^ P"Wica- Platitudes, to S er^rXh" i'''' '"'"'" *''^" "^■^"°«^" titude toward thesTrbilct '/ f' T/' ''^^'^''y-'^'nded at- not the brute force of blLf^ ^ '"^ ^°' '"'^"^'fi'^ '^^^^^^h, Assumin! T «- 36 many ways, and among these, by the resultant fact that ob- scenity" never has been, nor can be, described in terms of any universally applicable test consisting of the sense-perceived qualities of a book or picture, but ever and always it must be I described as subjective, that is, in terms of the author's sus- ^ pected motive, or in terms of dreaded emotions of speculative existence in the mind of some supposititious reader. With some knowledge of the psychologic processes in- volved in acquiring a general conception, it is easy to see how courts, as well as the more ignorant populace, quite naturally fell into the error of supposing that the "obscene*' was a quality of literature, and not-as in fact it is-only a contnbii^ tion of the reading mind. By critical analysis, we can exhibit separatelv the constituent elements of other conceptions, as well as of our general idea of the "obscene." By a companson. we will discover that their common element of unification mav be either subjective or objective. Futhermore, it will appear that in the general idea, symbolized by the word "obscene^, there is onlv a subiective element of unification, which is com- mon to all obscenity, and that herein it differs from most gen- eral terms. Tn the failure to recognize this fundamental un- likeness between different kinds of general ideas, we wdl dis- cover the source of the popular error, that "obscenitv is a definite and definable, objective quality of literature and art. A general idea (conception) is technically defined as the cognition of a universal, as distinguished from the particulars which it unifies." Let us fix the meaning of this more clearly and firmly in our minds by an illustration. A particular triangle may be right-angled, equilateral or irregular, and in the varieties of these kinds of triangles, there are an infinite number of shapes, varying according to the infinite differences in the length of their boundary lines, meet- ing in an infinite number of different angles. What is the operation when we classify all this infinite va- riety of figures under the single generalization "triangle"? Simply this : In antithesis to those qualities in which triangles may be unlike, we contrast the qualities which are common to all triangles, and as to which all must be alike. These elements of identity, common to an infinite variety of triangles, constitute the very essence and conclusive tests by which we determine whether or not a given figure is to be classified as a triangle. Some of these essential, constituent, unifying elements of every triangle are now matters of com- 37 f r \ mon knowledge, while others become known only as we de- velop in the science of mathematics. A few of these essentials may be re-stated. A plain triangle must enclose a space with three straight lines ; the sum of the interior angles formed by the meeting of these lines always equals two right angles ; as one side of a plain triangle is to another, so is the sine of the angle opposite to the former to the sine of the angle opposite to the latter. These, and half a dozen other mathematical properties be- long to every particular triangle ; and these characteristics, al- ways alike in all triangles, are abstracted from all the infinite different shapes in which particular triangles appear ; and these essential and constant qualities, thus abstracted, are general- ized as one universal conception, which we symbolize by the word "triangle.'* Here it is important to bear in mind that these universal, con- stituent, unifying elements, common to all triangles, are neither contributions, nor creations, of the human mind. They are the relations of the separate parts of every triangle to its other parts, and to the whole, and these uniform relations inhere in the very nature of things, and are of the very essence of the thing we call a "triangle." As the force of gravity existed before humans had any knowledge of the law of its operation, so the unifying elements of all triangles exist in the nature of thiniefs, prior to and in- dependent of our knowledge of them. It is because these uni- fying elements, which we thus generalize under the word "tri- angle," are facts of objective nature, existing wholly outside of ourselves, and independent of us, or of our knowledge of their existence, that the word "triangle*' is accurately definable. We will now analyze that other general term, "obscene," reducing it to its constituent, unchanging elements, and we will see that, in the nature of things, it must remain incapable of accurate, uniform definition, because, unlike the case of a triangle, the universal element in all that is "obscene" has no existence TrTth e nature of things objectjv e. It will then appear TEaTlor ■ the want of observhig this difference between these t two classes of general terms, judges and the mob alike, errpne- /ously assumed that the "obscene," like the "triangle," must ^ have^tr~e5fistence outside their own emotions, and, conse- \ quently, they were" compelled to indulge in that mystifying ver- biage, which the courts miscall "tests" of "obscenity." 38 \ I First of all, we must discover what is the universal constit- S a"; r^ ! ' "'"'"°" '° ^" °*'^^^"'^y- Let us begin with a ht tie introspection, and the phenomena of our every- day hte. We readily discover that what we deemed "indecenr Lr Tm '"'*^'"' ^^ °°' '° considered at the age of five, ^^d^probably is viewed m still another aspect at L age o; We look about us. and learn that an adolescent maid has her modesty shocked by that which will make no unpkasaS ZrTo^k"'' ■ '" '"" ""^^™"^' ^^^ 'y '»>-' Which wouTd shikmt^u??'"""; '"' '"'^"' ^^'*°' '^^^ "^y — *- shocking to us u viewed in company, and not in tlie least oiien- rve when privately viewed; and that, among different pers's there is no uniformity in the added conditions which change such scenes to shocking ones. tnange We see the plain countyman shocked by the decollete gowns shocked mto msensib.hty if, especially in the presence of make no shocking impressions upon her rustic critic. The peasant woman is most shocked by the "indecency" of tiie so- ciety woman's bare neck and shoulders, and the society „ .s shocked most by the peasant woman's exhibition oTTaS feet and ankles, at least if ti.ey were brought into ^e d y worn^s parlor. We see that women, when ailment sugge 2 bv IZT'T'""- '■'"''"^ ""'^'■^° ^" ""«'"'ted examiStion LL dLu^'"'"";/'"^ "•^'^ ''^^ --« -versed, much Snot f "^ '^ ^ experienced in securing submission. This not because men are more modest than women but be- TZ:tmr:l -"^^^- -^ ^^--on have made^t^ we lzi7r.,f':!!z ttm " r"'^^"^' •^-^"'^^^ ^'•^^•^ xiucr me general term obscene/' as its constituent unifying elements are not inherent in the nature and rdatTons of things viewed, as is the case with the triangle. Taking tWs as our cue, we may follow the lead into the fealm of hiftori ethnology, sexual psychology and jurisprudence. By iES tive facts, drawn from each of these sources, it can be shown ^ to a demonstration th,at_theword::obscene" has nTone sS ( universal. constituentlk^iiiiirhr^edW-e'nature ^ ^ Not even the sexual element is common to all modesty shame or indecency. A study of ethnology and psXS shows that emotions of disgust, and the concept of'InttS 39 n or obscenity, are often associated with phenomena having no natural connection with sex, and often in many people are not at all aroused by any phase of healthy sexual manifesta- tion ; and in still others it is aroused by some sensual associa- tions and not by others; and these, again, vary with the indi- vidual according to his age, education and the degree of his sexual hyperaestheticism. Everywhere we hnd those who are abnormally sex-sensitive and who, on that account, have sensual thoughts and feelings aroused by innumerable images, which would not thus affect the more healthy. These diseased ones soon develop very many unusual associations with, and stimulants for, their sex- thought. If they do not consider this a lamentable condition, they are apt to become boastful of their sensualism. If, on the other hand, they esteem lascivious thoughts and images as a mark of depravity, they seek to conceal their own shame by denouncing all those things which stimulate sensuality in themselves, and they naturally and erroneously believe that it must have the same effect upon all others. It is essential to their purpose of self-protection, that they make others believe that the foulness is in the offending book or picture, and not in their own thought. As a consequence, comes that persist- ence of reiteration, from which has developed the "obscene" superstition, and a rejection — even by Christians — of those scientific truths in the Bible, to the effect that "unto the pure all things are pure," etc. We need to get back to these, and reassert the old truth, that all genuine prudery is prurient. The influence of education in shaping our notions of mod- esty is quite as apparent as is that of sexual hyperaesthesia. We see it, not only in the different effect produced upon differ- ent minds by the same stimulants, but also by the different effect produced upon the same person by different objects bearing precisely the same relation to the individual. When an object, even unrelated to sex, has acquired a sexual associ- ation in our minds, its sight will suggest the affiliated idea, and will fail to produce a like sensual thought in the minds of those not obsessed by the same association. Thus, books on sexual psychology tell us of men who are so "pure** that they have their modesty shocked by seeing a woman's shoe displayed in a shop window ; others have their modesty offended by hearing married people speak of retiring for the night; some have their modesty shocked by seeing in the store windows a dummy wearing a corset; some are 40 f shocked by seeing underwear, or hearing it spoken of other- wise than as -unmentionables;" still others cannot tear I ment.on of -legs " and even speak of the "limbs- of a p a^o ra^tLi^s t:r r."" -- ^^-^^ - - ^^^ S.nce the statutes do not define "obscene," no one accused tmder the.n has the least protection agamst a judge "Tr! attl.cted w,th such diseased sex-sensitiveness, or agfLst mZ healthy ones who, for want of information ;bout leLual psy chology, blmdly accept the vehement dictates of the LxuZ or'a"." o r, " '*'"'"'^ °' P""*^- But whether T juf e eient he s If '?"' '" I.'*''"'"'^' '" ^^^ ^"^ every such enSni and \ ''^ '^' '^"^^ °^ ^ ^^"^^^' '^w, but e'ac d\v him .Tr/ T'"''''' ''- ^"'^ ^-'^ '<'«' then Wftat. hat law shall be in any case depends on the experiences education and the degree of sex-sensitiveness of the c^u and not upon any statutory specification of what is criminal ' ence r;j 1'^"' T"'' P'"*^"^' "^ ''' '"^^ '^"^^ differ- ence as to what .s offensive to their modesty, depending al- together upon whether or not they are accustomed to Tept ticular thmg. That which, through frequent repetition Zs become common-place no longer shocks us, but that whidf hough ,t has precisely the same relation to us or to thr.et Some who are passive if you speak of a cow are vet shocked ,f you call a bull by name. In the human sLies Z may properly use the terms "men" and "women." as drff;rr t.at.ng between the sexes, but if you call a f ma e ^ t name, you g,ve offense to many. So, likewise, you may sLak ht^eTname wt°,r'' ""'' ''''''' '' ^^ ^''^^ ^^e mat 7^,L2T^ ? ^"^'"^^y- ''^ ^ ?«WinR to very many, but of a ZTfU- T""!" '^''"'P^^^tively few. without giving offense No one thmks that nudity is immodest, either in nafure or In art except the nudity of the human animal ; and a few a« ^ot' opposed to human nudity in art. but find it immode T„ nL" bute?LoS ""' "J'f"^"* "' '"^^ U"'*^'^ States Si butes information on the best methods for breeding domestic culr^frr thr,t ^'r t ^■'" ^''^ ^''^'"^*^ ^^^ higher S! culture, for the sake of a better humanity. 41 -^ — )> Likewise, Prof. Andrew D. White tells us that: "At a time when eminent prelates of the Older Church were eulo- gizing debauched princes like Louis XV., and using the un- speakably obscene casuistry of the Jesuit Sanchez, in the edu- cation of the priesthood as to the relations of men and women, the modesty of the church authorities was so shocked by Lin- naeus' proofs of a sexual system in plants, that for many years his writings were prohibited in the Papal States, and in various parts of Europe where clerical authority was strong enough to resist the new scientific current." Now, education has so reversed public sentiment, that one may write with impunity about the sexuality of plants, which was formerly denounced as a "Satanic abyss :" but men have been, and would be, sent to jail for circulating in the English language the books of Sanchez and others like him. (Reg. vs. Hicklin, Law Rep. 3 Queen's Bench, 360.) (^t thus appears that the only unifying element generalized in the word "obscene," (that is, the only thing common to every conception of obscenity and indecency), is subjective, is an affiliated emotion of disapproval. This emotion under vary- t\ ing circumstances of temperament and education in different / persons, and in the same person in different stages of develop- ' ment is aroused by entirely different stimuli, and so has become associated with an infinite variety of ever-changing objectives, with not even one common characteristic in ob- V jective nature ; that is, in literature or art.")^ ? This, then, is a demonstration that obscenity exists only m )the minds and emotions of those who believe in it. and is not /a quality of a book or picture. We must next outline the legal V consequences of this fact of science. Since, then, the general conception "obscene" is devoid of every objective element of unification; and since the subjective element, the associated emotion, is indefinable from its very nature, and inconstant as to the character of the stimulus capable of arousing it, and variable and immeasurable as to its relative degrees of inten- sity, it follows that the "obscene" is incapable of accurate defi- nition or general test, adequate to securing uniformity of re- sult, in its application by every person, to each book of doubt- ful "purity." ^ ^ ^,, Since few men have identical experiences, and fewer still evolve to an agreement in their ideational and emotional asso- ciations, it must follow that practically none have the same standards for judging the "obscene," even when their conclu- 42 V. { L. 4- I sions agree. The word "obscene," like such words as delicate, ugly, lovable, hateful, etc., is an abstraction not based upon a reasoned, nor sense-perceived, likeness between objectives, but the selection or classification under it is made, on the basis of similarity in the emotions aroused, by an infinite variety of images ; and every classification thus made, in turn, depends in each person upon his prior experience, education and the de- gree of neuro-sexual or psycho-sexual health. Because it is a matter wholly of emotions, it has come to be that "men think they know because they feel, and are firmly convinced because strongly agitated." /teeing so essentially and inextricably involved with human emotions, no man can frame such a definition of the word "obscene" either in terms of the qualities of a book, nor such that, by it alone, any judgment whatever is possible, much less is it possible that by any such alleged "test" e^ery. other man must reach the same conclusion about the obscenity of every conceivable book.^^Therefore, the so-called judicial "tests" of obscenity are not standards of judgment, but, on the contrary, by every such "test" the rule of decision is itself uncertain, and in terms invokes the varying experiences of the testors within the foggy realm of problematical speculation about psychic tendencies, without the help of which the "test" itself is meaningless and useless. It follows that to each person the "test," which supposedly is a general standard of judgment, unavoidably becomes a personal and particular standard, dif- fering in all persons according to those vanning experiences which they read into the judicial "test." It is this which makes uncertain, and, therefore, all the more objectionable, all the present laws against obscenity. This general argument can be given particular verification by a study of history, ethnology, general and sexual psychol- ogy, and judicial decisions, until we have produced demonstra- tion amounting to a mathematical certainty that neither nature, common knowledge, science, nor the statute, has furnished, or can furnish, any tests by which to measure relative degrees of obscenity, or to fix the freezing point of modesty, as with a thermometer we measure relative heat and cold, or by chemical tests we determine the presence of arsenic. If, then, neither nature, common knowledge, nor the stat- ute, furnish so exact a definition of the "obscene" that, no matter by whom applied, it must uniformly and unerringly fix the same line of partition from that which is not "obscene," 43 and if scientific research has furnished no tests by which, with- out speculative uncertainty, we may with mathematical accur- acy classify every book or picture which, to the less enlight- ened, would seem to be on the borderland of doubtful "purity," then, it must follow that no general rule exists, applicable to all cases, and by which we can or do judge what is a violation of the statutory prohibition. The so-called "tests," by which the courts direct juries to determine whether books belong to the "indecent and obscene/* are a terrible indictment of the legislative and judicial intelli- gence, which could create and punish a mental crime, and de- termine guilt under it by such absurd **tests." Bereft of the magical, mystifying phrasing of moral sentimentalizing, the guilt of this psychological crime is always literally determined by a constructive (never actual), psychological (never mate- rial or demonstrable), potential and speculative (never a real- ized) injury, predicated upon the jury's g:uess, as to the prob- lematical "immoral tendency" (not mdicating the rules of which school of religious or scientific morality are to be ap- plied) of an unpopular idea, upon a mere hypothetical (never a real) person. Ko! This is not a witticism, but a literal verity, a saddening:, lamentable, appalling indictment of our criminal code as judicially interpreted. Under a law of such vagueness and mvstical uncertainty, be it said to our everlasting disjEfrace. several thousand per- sons in America have alreadv been deprived of libertv and propertv: unnumbered others have been cowed into silence, who should have been encouraeed to speak: and almost a score have been driven to suicide. ^ Tf. then, it is true that a book or a picture can only be clas- sified as to its obscenitv. not nrimarilv accordine to the sub- stance of that which it reveals, but according to the emotions therebv aroused, then, three conclusions irresistiblv follow:' First, there is no general test of obscenitv capable of produc- ing accuracv and uniformitv of result in classifvine books: second, for the want of such t'^^t. there never can be a convic- tion accordine to the letter of a uniform law. but everv verdict expresses onlv a legislative discretion, wron^fullv exercised after the act to he ntmished. and according to the peculiar and personal experiences of each iudee or iuror: and it is. therefore, but the enactment of a particular law. for the par- ticular defendant then beine tried, and applvine to no one else. From these two follows the third, namely: That 44 ■^ 4 - % hygiene, or ethics of sex :X law we make it a crime to distribute any specific ^d deUiled information upon these subjects, especially if it l^ un prudish in its verbiage or advocates unorthodox opm-s abou marriage or sexual ethics. This is re^atmg the old folly tha •he adult masses cannot be trusted to form an opm.on of the r The "free" people of the United States camiot be al- lowed to have the information which might lead to a change of their own statute laws upon sex. There will always be those thoughtless enough to be lievl thi truth may be properly suppressed for con-deraticms orexpediency. I prefer to believe with P-^^ssor Max Mu W. that --The truth is always safe, and nothing else is safe and with Drtimmond 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- rl addrTsshe 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. T^^T:^^^^:^^^^ affirmations whether lut glology or theology, were promptly beheaded or buni^. ThTck ical^onopoUsts denied common people the right, not Lly of having an independent judgment as to the s^ficance or value or truth of "holy writ." but even denied them the Xht to read the book itself, because it would tempt then, to ;;5ependent judgment, which might be erroneous, and thv.» make them "immoral." toirether The contents and the interpretation of the Bible, together with the political tyranny founded on these ";"«*, v.>th Cmble prostration of intellect." be unquest.omngly accepted Those who disputed the self-constituted --;»! J-^"; .^^^^.^ were promptly killed. And now, those who, without humble Vost'ration li intellect," dispute any of the -ady-made ^^o- rance on the physiology, hygiene and psycho^^ ^^Z^n- sex. are promptly sent to jail. Yet we call this a free trv and our age a "civilized ' one. ^ ^'bT the same appeal to a misguided expediency, we find that only a few vears ago it was a crime to teach a negro Ive how to read or write. Education would make him doubt ^2 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, 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, before delivery to those to whom it was addressed. Within the past century, married women had no rights which their husbands need respect, and education to 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 pubh'shing sentiments of supposed 53 4i *t « <( (( "bad tendency.* " It is this infamous opinion which has made the world a vale of tears, and drenched it with the blood of martyrs. I am fully mindful of the fact that an unrestricted press means that some abuse of the freecTom 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 ill use that may be made of it, is to argue against liberty itself, since all is "capable of being z^bused." 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- 54 niscient infallibility for the present sexual intelligence. If their sex opinions were a product of mere fallible reason, they would not feel the desirability, the need or duty to sup- press rational criticism. By denying others the right of pub- hshmg either confirmation or criticism, they admit that their present opinions are a matter of superstition and indefensible as 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, govermental, scientific and theological superstitions, by the same process. This, be it remembered, was always done in the name of "morality,'^ "law and order " etc. ' 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, 55 and how is the choice to be made from the mass? Is it not dear that neither a rediscovery, nor a surv.val after persecu- tion can have any special relation to truth as such? If it is. hTri S us unite to denounce as an unprovable hallucmat.on the statement that truth crushed to earth will nse agam^ The abettors of persecution are more damaged than those whom they deter from expressing and defending unpopukr opinions, since as between these, only the former a e de^ priving themselves of the chief means of correctmg the.r own errors' But the great mass of people belong "e-ther to th intellectual innovators, nor to their persecutors. The great lllde might be quite wiUing to listen to or read uncon- ventional thoughts if ever permitted, am.d opportunity, to exercise an uncoerced choice. , „ Much of the justification for intolerance derives its au- thority from false analogies, wrongfully earned over from physical relations into the realm of the psych.c. "^ 'Thus some argue that because, by laws, we Protect the incompetent against being (unconsciously) ^^^^'^^J^^^^ tagious disease, therefore the state should also protect them (even though mature and able to protect themselves by mere nattentionf 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. Probab y it never will be. Until we are at least approximately as certain of the Txistence and tests of "moral poison," as we are of the phys. 1 characteristics and consequences of carbolic ^<=>d. ^^''^ to talk of "moral poison" except as a matter of Po^tc license.^ In the realm of morals no age has ever shown an agree „ent, even amongst its wisest and best men, either as to wha is morally poisonous, or by what test it is to be judged as morally deadly. Moral concepts are a matter of geography Z evolution.' The morality of one country or age is v.ewed 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 SS are those of another man's devil. Furthermore, our S^'scLific thinkers concur in the bdief that all morality is relative and progressive, whereas numerous other men deem a part or all of our conduct to be per se moral or immoral. S6 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 m 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. _^ Philosophers tell us that life is "the continuous adjustment of internal relations to external relations." The use of con- scious efl^ort 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 eflFort 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. We all believe in intellectual and moral progress. There- fore, whatever may be tiie 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 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 57 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 Imminence," the Theosophist with his godless *'Nir- "vana," and the Atheist, all have an equal right to vie with each other 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 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 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 58 Sen ta"fht bv 'Tf • '''' "'"' ^^'^" ^^^^^^ '^ have been taught by such divme revelation, even though the sub- ject be the relation of the sexes. More specifically, that means this : the Catholic prie.t cehbacy the one may argue for, and the other against the io7T T"l ''' '"^ '^^^^' ^"^ ^^^^-^-^ continence,' and cienific h . 7' ^''"^^ ^" ^'^ ^^^^--' h-^--l or sc^ntific, which IS deemed material; the marriage purists may argue for and others against, the superior morality of having sexual relation only for the purpose of procreation ; the Biblf Communist of Oneida may advocate, as others deny, the sup! cZrTsts ' 'h"'"' ^^^^'*" ^'^ Episcopalians and EthTcal Cultunsts may advocate, as others deny, the superior morality o indissoluble monogamy; the Agnostic or Liberal Religion^ -t may advocate, and others may deny, the superior morally the superior morality of stirpiculture with or without mono gamic marriage; the Mormon may advocate, as othe s deny, the superior morality of polygamy, etc., etc. ^ violation^ ^''r''' ''""' '^'' '^'y ^^ "°^ ^d-ocate the violation of existing marriage laws, but limit their demand TrnTT' '^ ^ '''''' ^^ ™^"^^"^ ^' ^^-^ ^-s, Toas TrernMatr ^^"'^™^^^^ '^ ^^^^ -P-tive ideals. Under present laws numerous persons have been arrested for mak- ing arguments in favor of some of the foregoing propo sitToTs whi^e advocates of the contrary view have gL l\nllZ[ t^ mT th t r 1' ^' '' ^""""^ ^^"'^"^^^ -^ i^ -ems to me that ridicule, fact and argument, unrestricted as to adults, are the only means by which the race can secure that riir^"' f r^'r'^" ^' -^^^^^ ^^^^^^^ -^^^^ - --"^^^^^^^^ higher moral development. ,Hfi?' Tfl. '"'*'^"'^' °^ °"^ ^Se i^ the despised super- TZZ f "''" "' ^"^"^^'"^ ^^- Thus we h'ave tr7^ Li^ !^ °"'' '"''"*' '"°''^"*y '' concerned, through emir . ' "'^^"™-*« promiscuity, group marriage, femaje slavery, the sacred debauchery of sex-worship, pofy- ^^nrl'^"""'' *' '''''^''■'"' '"^^^' -^f ^«<^^«« and sex- perverts, o our present standards, and the course of moral evolution IS not yet ended. 59 i 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 is truly liberal 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 defence, 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. 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 the 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. If there still remain any believers in the free-will super- stition, as applied to matters of belief, each of them can, by 60 ' r 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 act of the "free-will" (which then, he does not believe in), restore his belief in its existence. Not until I find a sane man who honestly believes that he has performed this, to me im- possible feat, can I admit that the existence of a '* free-will*' as applied to our thought-products, is even a debatable ques- tion. **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.* 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 hv "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- ♦Maudsley, "Body and Mind," Part I ; Herbert Spencer, "Principles of Psychology," Vol. I, pp. 495 to 613 ; Ribot, "Diseases of the Will"; John Fiske, "Cosmic Philosophy," Vol. II, chap. 17. 61 << (t tt (( tt << "tion that volition, alike in ourselves and in others, follows •invariably the strongest motive. "Finally in turning our attention to history, we have lou ...poch is so .n^iMy ,*f'"*"' "•::„^i„f SS *« •fV^oiKThts desires and volitions in the preceaing epuc , .S"'. «n " of ,he tal..sn.ss of volition a,. a. n. ft. evade its consequences by saying thac they beheve in punish- ing difference of opinion, only in its expression, which is acting, not thinking. ^Thinking is free^ they say, ^^ut "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 hbel 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 mvasive 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 rekds Consequently nobody needs the help of the state to protect him against compulsory intellectual exercise. 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 from altering such opinions. If the state has no right 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 anyone from supplying 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. 63 t c ^™ninn through added knowledge and its A change o °P-°;;j;^^°"/,„3 intellectual development rational assimilation, ^^^"^^ ^f j^j^ry shall ever which can seldom injure anyone But ^ y ^^^.^^^_ come to us by our acqmsition « "^^ ;7„^; „f another's „,ent of new opinions, then, unhke he W ^^^^^^ knife-thrust it comes only by our active co p the accomplishment of that injury acceptance Usually thejmlury-^^^^^^^ ,, ..ose of unpopular beliefs, «'«t^ ° ^ j^ „^^er be entrusted holding contrary opm.ons, «"d th^y/^^ ; sane adults, with the always dangerous ^^J^^^J^''^^^ ^^desired, ready- against their protest any «"*PP7;*;/j;J^ minorities must made, intellectual ^»^^,^'"^-^ i^J. ""'.Hxp ess their opinions have the same right ^^^^^^^^^^^^ as the majority and to try to secure the majority e ^^ ^^^^^^^ ^„ have to express contrary ones. To deny t ^^^ possibility for |n-lf-\jXa"d\hese innovators, and at first revealed only to the tew ^ stupidity their advanced ideas, are '"vanably d^ounced by ^^^^ p^^^^ of an unreasoning conservatism, ^s is ^^ ^^^^ the hygiene, physiology, P^^^jj^^f ^^^^^^^ for a liberty of anything else. In support of th.s conte ^^.^^^ ^^„3,. "or whatever be its ^^-^^^^^'.^f^Z^Jy^^^ or its truth .,s either manifestly true ^ ;\X";t ma-^-^'^ g^^' °' "or falsehood is dubious. Its t^^^^^^ , ^ ^here are no "manifestly bad, or it is dubious ^VCts of the problem, "other assignable conditions, no ^therfunc^"';^ ° JP^ ^^^^ "In the case of its ^-^/J-SCrLe of its being "ency there can be no f P"*^. ^^^^ ., <^,„ mislead nobody, "manifestly otherwise ; for by the t«ms ^^^^^^^ "" ''' '-^"^ r ''':STZ^T^^^^^^ evil, but full and "can bring the good to I'^t' °; ^ ^ a plausible fallacy may "free discussion. Until thts take p^^ , a P ^^^ ^^ ^^^^.^ "do harm ; but discussion is ^"'^ ^^^^^^ '" ,3^ .^^ do it." "opinion on a P^P^J ^^^ ^6 r^^^^^^^^^^ Review: Again, quotmg from Vol. & ot , ^j^ f^r de- ..It is obvious there .s - ertain^^^^^^ ^ ^^^^^^ ^^ ^^.. "termining, o /"•»<>". whether an v 64 t(j <( «> « ■ * ^cious, and that if any person be authorized to decide, unfet- *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- I'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. 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 6S excluding the opinion from the minds of others because it 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 reahzat.on 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 m engag- ing in inquisitions for the discovery of every man s opmions. wfth the purpose of incarcerating him for hfe or until a change of conviction, as a means of preventing the danger which his opinions are supposed to threaten. Thus the demal 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 justify any suppres- sion whatever, of the expression of any opinion whatever we by necessary inference admit the existence 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 entertained, and the liberty of conscience, speech and press unrestricted even in the very sligh- test degree. The initial act of tyranny by which we now justify our present abridgements 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 ^'-1^ °" ^^^'^t of those who would never punish any opinion, until it had resul ted in an overt act of invasion, and then punish the holder o the "dangerous" opinion only for his real participation m that act. as a proven accessory, and not otherwise. This then brings us back to that firm fo'^^Jation of liberty which was expressed by Holt in his "Law of Libel (p. 72. 1816) in these words: "Private immorality or vice without 66 XtaMs^erS' ^"' '""f""^' ^"' *^™'"^^'"S - the indi- viauai, IS left to a more solemn reckoning " tion^o'TirT "'*'"^''* '' ^"""'^ •" ^^'^"^ Spencer's defini- tion of hberty, expressed by him in these words: "Every man has freedom to do all that he wills, provided he infringes n" the equal freedom of any other man." No opinion even though It advc^ates such infringement of another's equa free- don, can by the mere verbal expression of it constitute sul infringement. It follows that, no matter how slight even^ abridgement of the liberty of conscience, speech or prelsTS self an unpardonable tyranny and necessarily implies a justifi- cation for every form of inquisition, and for every form of Sw- less absolutism, in the constituted tyrannical pSler vitv o/a!rf °''' T^ '"' •='^"^^^"'^-- «f the intellectual acti- st ad of It r' "^ ^'^°*'^ P''"^°"^ ^'' the same. In- stead of leading others to an acceptance of their conclusions by encouraging an examination of all possible pertinent eW- and a cultivation of associated emotions of approval Thus th^ instill in the minds of the weak and immature a forkful habit of unfairness, of imbecility, and of mental corrupt^ which tinfits 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 ^k right or the means of examining their boasted "morality " twel indTff" '"'"^'' r'P"''' "' '"^""S the distinction be- fTrence at to ".". f ' T"" "' °"^'^ °P'"'«"^ -"^ indif- tt The 1 "i """""'"^ °P'"'''"^ ^hall prove to be o^erwL hi V ' '"'*"'' °' '''' ^'^°t and persecutor, aid the ! '' "f ^"'*'^^ '^' '■'"'t*ti°" °f discussion sents 1 r''''"T f '"''"•^^- '^' '^"er proposition pre- set 111 t^eTt °.^*''^r"t■^ts, who therefore desire to con- sider all the material evidence adducible love^Jf tn^th °K r*''°"'' r'"^ '"'''"'''' ^" ^^''^^"<^«' for the before it ™f;-. T""' '°'" '"^ '''''"''"' ''^ ^"^^^^ truth accents t,! 1^ demonstrated to be true, and even then, he whTch .1 ■. ' '""^'^""'^ *'"*''' ^'^ the correction of which all new evidence will ever be welcomed. 67 PuHsts of literature -found the attnbutes of ^^^^^^^ those of the behavior toward ev.dence. They^scnl^ beUef the praise or blame -^-h can on^y 1^ due to n.ode of dealing with evidence. Thus they ^^^e ^ J ^„ unfairness, by forcibly suppressmg ^ P^"^' ° J^^ ^„., L,- honest ^^^^:^^XZ,J^^s. or reward lect to the suicide of logic oy w 8 into others, without evidence engenders an of evidence, the dogmatist of -^^^^^ /^f/jf;, ^.^^^es can be guilty of intellectual immorality because he the essence of all depravity. j^^^^, ..The habit of ^--jf^^rrst— rhibitrofmind. "without -v.dence, IS one of the m ^^^.^^^ ^^ ^ .^.j^. "As our opinions are the fathers « indifferent "ferent about the evidence of °"^ ^P^^'^^^J^^^, .^^sequences "about the consequences of our actions^ But th^ co q "of our actions are the g-'i.-^ J' .^^V "The habit of "The habit of neglect of evidence, *ejefore, .s "disregarding the good ^l^^^J.:Z^^:ZTLr.^ cen- '^ ^Tert re being wii.o:t this virtue, it must be a rare sors of literature Dem„ . , j^^ and in long per- accident if, from a more enlightened view, spective they be not judged deep m vice T^ • »u= ,i;=rp"° the mischievous opinions which support them and hateful durability. . „ , , ,,:„ip it must consist Tf .i,»r^ ran be any intellectual crime, it musi of the ;« nVof evidence wUhin -s^^^^^^^^^^^^^^^^ and the highest degree of this -— y "^^^^^^^^^^^ ^.^Ht who deliberately suppress this evdence wmc .^ ^ accessible to others prep^ to ma.e^ a right^ ^^^^^^^^^ No man can be held responsible, no understanding for the effect which may be produced on his unde g ,, the partial evidence to h.ch -^ ^ ^ -t be cor- this It follows that errors oi ^^.-^ pines and im- . A u o« anneal to the Understanding, rines ;;*l''i.rS