HY
“OBSCENE” LITERATURE
A N D
CONSTITUT |0 NAL LAW
A FORENSIC DEFENSE
OF. FREEDOM OF THE PRESS
E Y
THEODORE SCHROEDER
LEGAL GOU NSELLOR TO THE MEDIGO-LEGAL SOC! ETY OF
NEW YORK
COMPILER OF FREE PRESS ANTHOLOGY
is not soup 10 you
PR IV A. T E L Y PR IN T E D
FOR FORENSIC USES
NEW YORK
I9 II
LEAFLE T C
5ince TBViews ºf Iny bººk have begun td
appear in the prºfessiLIlal HETiddisals, I am
TECeiving IIlang TEquE5ts füT It, I have
WTitten an answer tº DITE (If these, Selecting
that where the greatest Iluſſiber ºf Iſlatives ex-
isted far mat sending the hadk. This answer
is HBing printed tº 5End td [ith ET applicants, as
EIIIb Gdying the Teasd115 which alsº pI Eclude
the III frºTII buying the HDD k,
T, E,
56 East 59th Street
New York City
My dear Sir :-
I have your letter applying for “Obscene Litera-
ture and Constitutional Law" and notice that you
have the kindness to say: “I have read some able
articles by you and as you are a leader in your field,
I am anxious to acquaint myself with your views upon
the subject.” I would really like you and every in-
telligent person, to have my book and I believe this
to be an occasion for frankly stating my reasons for
denying you and them the opportunity. I hope this
frankness is no crime.
You appear as the Secretary of one of numer-
ous spy-societies, some of whose agents sometimes use
flattery to secure the confidence of the weak and
igno ant, in order to induce them to commit crimes,
for detecting which the spy-provocateur expects the
rewards of heaven, the coin of the realm, and the ap-
plause of the pharisees. You are a stranger to me,
so the letter I received may be a decoy. How can
I know, if my book offended, that the recipient
would not consider it his christian duty to try to per-
secute me 2
The contemptible spy-provocateur, encouraged by
our censorship, would be less outrageous and danger-
ous, if we were permitted liberty under law, at least
to the extent that intelligent lawyers could know by
what uniform, accurate, criteria, our conduct would
be judged criminal. Since, upon such subjects as I
treat of, we have a government by spies and lawless
juridical caprice of ex post facto creation, I find,
after five years of pains-taking study, that I am still
unable to say that the statutes with certainty pre-
clude my being punished for sending YOU my book.
In it a discussion of sexual psychology was unavoida-
ble. Personally I do not see how any sane man
could call it “obscene," but I have learned that unto
the lewd all is lewd, and that lewd ones sometimes
sit in judgment on others. Because our puritanical
despotism has established a lawless censorship, under
which I cannot ascertain my rights, and since I am
an unpaid volunteer in the dangerous occupation of
attacking the trade of many moralists for revenue,
some of whom I have come to regard—not very
highly—therefore, I cannot take even those little
chances which, for another, would be entirely safe.
If ours were a government BY the people all the
voters would have an unquestioned right to know all
that could be said for the repeal or annullment of any
of our laws. Because that right is not yet assured to
all American voters, so far as a thorough and search-
ing study of our legalized prudery is concerned, I am
not sure that you have the legal right to know, what
I am very anxious to impart to all.
If, in the United States, we had unabridged free-
dom of speech and press, as guaranteed by our paper
constitutions, there would be no use for my book. If
the constitutional guarantee was not held in contempt,
especially by many judges, my right to act upon my
desire to forward you my book, would not be haz-
ardous. As it is, I am unwilling to incur the risk of
going to jail, as others have done, merely because I
repudiate the moral sentimentalism of a judicial prude,
bigot, or demagogue. No LA W condemns my
book, though some—professional prudes and even
official prudes—might.
Some of our Judges have shown their sense of
decency so far as to manifest shame for the puritan-
ical laws now under consideration, and these courts,
by unconstitutional judicial legislation, have so far
amended these outrageous unconstitutional statutes as
to say substantially that a book which is criminally
“obscene" if sent to a layman may become legally
virtuous if sent only to lawyers, legislators, judges, etc
I dare not be too confident that our courts will ad.
here uniformly to these amendatory dićta. Conse-
quently I have resolved to send this book of mine,
only to persons with whom I have enough acquaint-
ance to assure me by personal knowledge that,
under the rule of courts, they are authorized “ob-
scenists." Besides, this book may be offered to law
libraries and to such lawyers as will defend these
cases. I do not know that you come under either of
these exceptions, and therefore, I will not send you
the book.
You further say: “This Society is engaged in
prosecuting another kind of publication and pictures
which I feel sure you would not defend, and I am
not conceding any of my determination to continue
the prosecution of such literature as I believe we both
would agree should not be circulated, in asking of
you this favor.”
I am sure these laws (and probably your society)
suppress much literature that I would defend. It is
certain also that publications are suppressed which I
would not circulate. But I resent the implication
that because I would not circulate or defend such
publications, that therefore, I must excuse the neglect,
or suppression, of the best intellectual prophylactics
and endorse their repression by violence; and that
therefore, I must also repudiate our constitutional
guarantees for unabridged freedom of utterance;
and that therefore, I must admit authority for a cen-
sorship which can say to me what I may or may not
read; and above all do I resent the implication that
therefore I must also endorse the infamous spy-provo-
cateur. I am neither infallible nor a bigot, hence I
admit the equal right of all to differ from me as to
ideas, literary style, or aesthetics.
The last quotation from your letter suggests that
your mind will not be convinced, no matter what my
argument may be. Then why should I waste the
book on you when my only object in having written
and published it is missionary desire? No doubt the
“obscene" mob is with you, and although I am
lonesome in my opposition, I will continue in the
quest of Truth, Justice and Liberty,
THEODORE SCHROEDER.
PRESS REVIEWS.
“If it does not fall into the hands of Mr. Anthony
Comstock it may do some good.”—Law AVotes,
July, 1911.
“Mr. Theodore Schroeder's work will be found
of great interest to every reading and every thinking
citizen of the United States.”—Pacific Medical
Journal, June, 1911.
“The arguments from history and authority are
skilfully debated and are, as well, convincing. To
this add, that the literary merit of the work is undeni-
able, and that the author's attitude is, beyond per-
adventure, sincere. It must be useful to the profes-
sion for which it was written, and its views are
worthy of very careful consideration. It may be com-
mended to all who have the courage to face the
truth.”—Univ. of Aenn. Zazy Review, June, 1911.
“Mr. Schroeder is a man of exceptional ability,
and what is more, a man whose superb moral cour-
age is matched by sincerity and loyalty to principles
that he believes make for progress and the moral and
mental advance of mankind. >k >k
“In its preparation and publication we have a
striking illustration of that lofty conscience-spirit that
forces men of conviction to make great personal sac-
rifice for principles or causes when there is nothing to
be gained save a service to civilization and the ap-
proval of their own conscience. >k
“A masterly and exhaustive discussion of the whole
question of obscene literature and constitutional law."
—Twentieth Century Magazine, June, 1911.
INTELLECTUAL HOSPITALITY.
BY THEODORE SCHROEDER.
To have some intelligent appreciation of how
much of the knowable is yet unknown, conduces to
that humility which is the beginning of wisdom. To
know something of the past struggles for human prog-
ress conduces to an appreciation of how little is prob-
ably true of what we think we know. Thus to see
our attainments in their true relations to past beliefs
and their probable relation to future knowledge, con-
duces to a true measure of our great ignorance. To
have this, is to be without censure, because without a
stupid pride; to love truth more than our vain predis-
positions; to love harmlessness of life more than moral
sentimentalism; to be free from phariseeism, because
knowing the diversity and uncertainty of standards; to
be unafraid of new evidence, and unoppressive toward
new allegations of truth; to be controlled by a selfish-
ness of so high an order that your greatest happiness
comes from studying all problems from the impersonal
viewpoint, and making all judgments by impersonal
standards; to have the desire to be right always over-
powering the desire that others esteem us to be so;
never to impose one's opinion by invasive force; never
to be impatient, except, perhaps with dogmatism and
intolerance—this is the essence of intellectual hos-
pitality. In addition to this, if you have that rare
disposition to make a substantial sacrifice for defending
the right to be heard, of those whose opinions you
disapprove, that would be so rare a virtue as to be
almost heroic. If you have this virtue, contribute to
THE FREE SPEECH LEAGUE,
56 East 59th St., New York City
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