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REVIEWS
AND CONTENTS OF
“Obscene” Literature
AND
Constitutional Law
A FORENSIC DEFENSE
OF FEEEDOM OF THE PRESS
BY
THEODORE SCHROEDER
LEGAL COUNSELLOR TO THE MEDICO-LEGAL SOCIETY
OF NEW YORK
COM.PLLER OF FEREE PRESS ANTHOLOGY
“Let us be free from all fear of the world or conse-
quences, in a manly purpose to find and follow the
the truth as we see it.”—HUGEI O. PENTECOST.
PRIVATELY PRINTED
FOR FORENSIC USES
NEW YORK

1911
THE FREE SPEECH LEAGUE
At Albany, New York, on April 7, 1911, the
Free Speech League was incorporated. The incor-
porators are; President, Leonard D. Abbott, associate
editor of Current Literature, Vice-president, Brand
Whitlock, mayor of Toledo, Ohio; Lincoln Steffens,
leading progressive economist; Bolton Hall, author and
lawyer; Gilbert E. Roe, law-writer; Treasurer, Dr.
E. B. Foote, author of medical books; Secretary,
Theodore Schroeder, author and lawyer. In the
articles of incorporation the purposes of the Free
Speech League are declared to be :
“The principal objects for which said corporation
is formed are as follows, viz: By all lawful means to
promote such judicial construction of the Constitution
of the United States, and of the several states, and of
the statutes passed in conformity therewith, as will
secure to every person the greatest liberty consistent
with the equal liberty of all others, and especially to
preclude the punishment of any mere psychological
offense; and, to that end, by all lawful means to op-
pose every form of governmental censorship over any
method for the expression, communication or trans-
mission of ideas, whether by use of previous inhibition
or subsequent punishment; and to promote such legis-
lative enactments and constitutional amendments, state
and national, as will secure these ends.” The officers
are all unsalaried. If you are interested send a con-
tribution to
THE FREE SPEECH LEAGUE,
56 East 59th St., New York City
2

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CONTENTS
PROLEGOMENA
Chapter 1
A STATEMENT OF THE CONTENTIONS
Chapter 2
ON THE ADVERSE EMOTIONAL PREDIS-
POSITION
Chapter 3
NO “OBSCENE” LITERATURE AT
COMMON LAW
Chapter 4
THE ETIOLOGY AND DEVELOPMENT OF
OUR CENSORSHIP OF SEX-LITERATURE
Chapter 5
THE REASONS UNDERLYING OUR CON-
STITUTIONAL GUARANTEE OF A
FREE PRESS, APPLIED TO
SEX-DISCUSSION
Chapter 6
OBSCENITY, PRUDERY, AND MORALS
Chapter 7
ON THE IMPLIED POWER TO EXCLUDE
“OBSCENE” IDEAS FROM THE MAILS
Chapter 8
CONCERNING THE MEANING OF
“FREEDOM OF THE PRESS”
Chapter 9
THE JUDICIAL DESTRUCTION OF
FREEDOM OF THE PRESS
Chapter 10
JUDICIAL DOGMATISM ON “FREEDOM
OF THE PRESS”
Chapter 11
THE HISTORICAL INTERPRETATION OF
“FREEDOM OF SPEECH AND
OF THE PRESS”
3
le
Chapter 12
SCIENCE VERSUS JUDICIAL DICTUM
A Statement of Novel Contentions and a Plea
for Open-Mindedncss
Chapter 13
ETHNOGRAPHIC STUDY OF MODESTY
AND OBSCENITY
Chapter 14
PSYCHOLOGIC STUDY OF MODESTY
AND OBSCENITY
Chapter 15
UNCERTAINTY OF THE “MORAL.” TEST
OF OBSCENITY
Chapter 16
VARIETIES OF OFFICIAL MODESTY
Chapter 17
VARIETIES OF CRITERIA OF GUILT
Chapter 18
“DUE PROCESS OF LAW" IN RELATION
TO STATUTORY UNCERTAINTY AND
CONSTRUCTIVE OFFENSES
Part I. The Scientific Aspect of “Law”
Chapter 19
“DUE PROCESS OF LAW" IN RELATION
TO STATUTORY UNCERTAINTY AND
CONSTRUCTIVE OFFENSES
Part II. General Considerations
Chapter 20
“DUE PROCESS OF LAW" IN RELATION
TO STATUTORY UNCERTAINTY AND
CONSTRUCTIVE OFFENSES
Part III. Historical Interpretation of “Law.”
in relation to Statutory Certainty
Chapter 21
“DUE PROCESS OF LAW '' IN RELATION
TO STATUTORY UNCERTAINTY AND
CONSTRUCTIVE OFFENSES
Part IV. Certainty Required by Modern
Authorities
4.
Chapter 23
“DUE PROCESS OF LAW'' IN RELATION
TO STATUTORY UNCERTAINTY AND
CONSTRUCTIVE OFFENSES
Part V. The Synthesis and the Application
Chapter 23
ABOUT EX POST FACTO CRITERIA OF
GUILT
PRESS NOTICES
CHIC. EVENING POST, Sept. 22,
1911. – “The volume is really, as its author
asserts it to be, ‘a more elaborate and thorough
defence of real and unabridged liberty of utter-
ance than has ever before been published’. It
is an important book, written in entire good
faith and with admirable logic and command
of the subject. * * * It may be unhesitat-
ingly affirmed that no one has the intellectual
right to support the present postal censorship
who is not familiar with these weighty argu-
ments on the other side.”
AM. JOUR. OF DERMATOLOGY,
Aug., 1911. –“It is not only unique of its
kind, but it is far ahead of any work on the
subject extant. Masterful in argument; skil-
fully handled; comprehensive and directly to
the point, with an army of facts that no
lawyer in this country, who may have law
cases to deal with of the classes here discussed,
can possibly afford to omit from his library.
* * * This book is a magnificent shot in
the right direction.”
5
UNIV. OF PENN. LAW REVIEW,
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 undeniable, and that the
author's attitude is, beyond per-adventure,
sincere. It must be useful to the profession for
which it was written, and its views are worthy
of very careful consideration. It may be
commended to all who have the courage to
face the truth.”
GREEN BAG, Aug., 1911. —“OBscEN-
ITY A CONSTITUTIONAL RIGHT P " * We find
ourselves unable to accept Mr. Schroeder's
premises, or to follow his logic, and we find his
conclusions vague. By these remarks we
imagine that we will qualify in the author's
classification as ‘intellectual bankrupts’.”
TORONTO, (Can.) INVESTIGATOR,
Oct. 14, 1911. – “We can only wonder
whether there are any intelligent lawyers or
judges in existence while such gross abuses
[as this book exposes] are allowed to persist
without protest.”
LANCET-CLINIC, (Dr. R. Ralph
Reed,) Jan. 27, 1912. –“Schroeder very
clearly and logically analyzes the whole sub-
ject from a psychological, moral and legal
point of view * * This is an important
work and Mr. Schroeder is to be congratulat-
ed upon the vast amount of research he has
undertaken in order to write it, but more is
he deserving of commendation because of the
courage he has displayed in handling so frank-
ly a subject that, nowadays, so few care to
touch.”
6
COLUMBIA LAW REVIEW, (Dean,
G. W. Kirchweg,) April, 1912.-“As an
arsenal of arguments, illustration, satire,
and eloquence to be drawn upon by
public advocates of ‘unlicensed printing,” the
work leaves little to be desired. * * But it
is not as a lawyer but rather as an agitator
and propagandist that he presents himself in
the work before us. * * His exposure of the
absurdities and inconsistencies of the present
system and of its fatal suppression of light and
truth will hasten the coming of a better order.”
YALE LAW JOURNAL, June, 1911.
—“An interesting and almost persuasive plea
for unlimited liberty of utterance.”
LAW MAGAZINE AND REVIEW,
Atig., 1911. (London) —“A series of rath-
er hysterical arguments in favor of an unre-
stricted right to discuss sexual questions in the
press. * * * Nothing that the author says
inclines us to consider that real outrages should
not be prohibited.”
THE LIGHT, (Official organ of the
Nationall”urity Federation) July, 1911
—“This work is mainly a compilation of the
essays contributed by Mr. Schroeder to various
magazines during the past few years. A great
amount of research work has been performed
by the author, and the book as a whole makes
an exhaustive treatise on the subject of obscen-
ity from the standpoint of the law. While all
may not agree with Mr. Schroeder in his ad-
vocacy of the utmost liberty of speech and of
the press in treating of sex, still we must
recognize his sincerity, and admire his serious,
scholarly efforts to make known his convictions.
7
The volume will be found of special value by
lawyers and by all students.”
CLINICAL, MEDICINE, (by a Mern-
ber of the Chicago Bar,) Aug., 1911.
—“Carefully and with painstaking energy and
sincerity of purpose has this volume of some
four hundred pages been prepared.
* * * The book is cleanly written,
interesting and worth the time of every inter-
ested person to read and learn.”
MADISON (WISC. DAILY) DEMO-
CRAT, July 25, 1911. – “Mr. Schroeder is
profoundedly in earnest. * * * He ranges
freely and deeply and boldly over a wide terri-
tory of discussion. * * * The book possess-
es an especially valuable feature because of the
intelligent massing of information, data and
cases.”
EDITORIAL REVIEW, July, 1911. –
“A law-book unlike any hitherto published.”
LAW NOTES, July, 1911.—“It all
shows research and presents an interesting
study of the psychology of sex. * * If it
does not fall into the hands of Mr. Anthony
Comstock it may do some good.”
WISCONSIN ALUMNAE MAGA-
ZINE, July, 1911. – “Interesting volume.”
THE INDIVIDUALIST, (London)
May–June, 1911. – “This book must have
considerable interest for members of the Per-
sonal Rights Association.”
MEDICAL COUNCIL, Aug., 1911. –
“A collection of very thorough and thoughtful
articles.”
MOTHER EARTH, Sept., 1911.—
“Unique both in point of contents and because
8
it is not for sale. * * * Now the censor-
ship has become an institution. * * *
Mr. Schroeder's book is a most courageous
attack upon the monster.”
THE BRIEF, May, 1911.—“We like to
see a man with a grouch and the candor to
confess it. Hence we have enjoyed this book.
* * * Withal, he seems to have a plaus-
ible cause to urge.”
THE MENACE, April 20, 1912. –
“Mr. Schroeder is frankly iconoclastic and
only a little less pointed in suggesting the
‘intellectual bankruptcy” of our judiciary.
No matter how convincing the argument is,
nor how deplorable the fact, yet in such mat-
ters people are governed by their feelings and
not by their reason, and our courts may be as
long in adopting Mr. Schroeder's views as they
were in abolishing witchery. The book is cer-
tainly a very great intellectual stimulant. *
* As a matter of feeling we surely are in favor
of suppressing so called “obscenity” but Mr.
Schroeder's painstaking and patient thorough-
ness has made us doubt the reliability of our
feelings in this matter.”
PACIFIC MEDICAL JOURNAL,
June, 1911. –“Mr. Theodore Schroeder's
work will be found of great interest to every
reading and every thinking citizen of the
United States.”
OKLAHOMA LAW JOURNAL, Oct.,
1911. – “The book is written in a scholarly
manner, a storehouse of information upon the
cases that have been adjudicated by the courts
—in fact it is a digest of all such cases and in-
valuable to bench and bar. It contains much
9
valuable information for every one and should
do much towards exposing the silly false
modesty of the absurd pretender.”
MEDICO-LEGAL JOURNAL, N. Y.
—“The issues are very ably and carefully
argued and presented. * * * Mr. Schroeder
is a clean writer and a dispassionate thinker.
* * * Mr. Schoeder's book compels atten-
tion. We do well to carefully study its logic
and its arguments.”
AMER. JOURNAL OF SOCIOLOGY,
March, 1912.-“The tenor of the present
treatise, however, displays a want of judicial
temperment, and sometimes a want of dignity.”
AMERICAN REVIEW OF REVIEWS,
May, 1912.—“A frank, but dignified and
scholarly discussion. Freely and simply, yet
with admirable integrity of purpose, Mr.
Schroeder sets forth the result of his researches
on the subject of so called obscenity. * * It
is not necessary to agree with Mr. Schroeder,
* * in order to recognize his sincerity, the
essential restraint and cleanliness of his style
and the serious efforts to make known his con-
victions.”
JOURNAL OF THE AMERICAN IN-
STITUTE OF CRIMINAL LAW AND
CRIMINOLOGY, March, 1912.
—“Weirdly fantastic. * * * This [hasty
preparation] does not account for, nor does it
pardon the intemperate language, the highly
colored illustrations, the sophomoric declama-
tions, and last but not least, the unjust, un-
seemly, indiscriminate attacks of the author,
himself a practicing lawyer, upon courts and
judges. * * Says our author, he did not
10
shape his argument “with a view to seducing
intellectual bankrupts into an emotional ap-
proval of his formula of freedom.” The review-
er fails to see how any person not an
‘intellectual bankrupt' could be ‘seduced.”
* * Devote your legal learning and your
very considerable erudition to a better
and worthier cause ! Your present book is
dangerous in tendency and its very ingenuity
makes it the more objectionable.”
TWENTIETEI CENTURY MAGA-
ZINE, June, 1911. –“Mr. Schroeder is a
man of exceptional ability, and what is more,
a man whose superb moral courage is match-
ed by sincerity and loyalty to principles that
he believes make for progress and the moral
and mental advance of mankind. * * *
“In its preparation and publication we have
a striking illustration of that lofty conscience-
spirit that forces men of conviction to make
great personal sacrifice for principles or causes
when there is nothing to be gained save a
service to civilization and the approval of their
own conscience. * * * A masterly and ex-
haustive discussion of the whole question of
obscene literature and constitutional law.”
MATURE MEDICINE, July 15, 1911
—“A NoTABLE BOOK. An invaluable contri-
bution to the chronicles of the times. It should
be in the hands of every liberty-loving, honest
seeker for a solution of the most aggravating
of all social problems; the sex question.
* * * The author of this distinguished
book has long been working for a higher social
status, for a greater and purer education—and
he is one for whose altruism we can vouch
personally. He does not permit the sordid
11
matter of money to influence him a particle.
* * * The book is a judicial discussion of
emotions and statutes, dogmatism and sense,
dictum and constitutional law, obscenity and
modesty. * * * Decent people should felic-
itate themselves on the fact that there are
such fearless, outspoken, capable men as Theo-
dore Schroeder.”
THE LAWYER AND BANKER, Aug.,
1911.—“It is a congenial task for any man
who harbors any emotions of the iconoclast,
toward certain of our modern tendencies of
democracy, to read, discuss and criticise the
book tunder review. * * *
“Mr. Schroeder is very earnest in his con-
viction that the suppression arbitrarily of
matter as obscene and the embargo on its
transmission through the mails, is not only
responsible for ignorance in sexual matters
that helps to fill our asylums, but is a direct
violation of the constitutional guarantee of
the freedom of the press.”
ANTHROPOPHYTEIA, (VIENNA)
Vol. 8, p. 500.- “Es ist eine Leistung, auf
die amerikanische Rechtforschung stolz sein
darf.”
MOTHER EARTH, (by James F.
Morton, of the N. Y. Bar,) Dec. 1911.—
“Lovers of compromise will not find much
to please them in Mr. Schroeder's writings |
* * He is unsparing in lashing the ignorance
and illogicality with which the majority of
judges have thus far met the issue. * *
Theodore Schroeder has won for himself a
place in the history of the struggle for liberty
which will not be inferior in honor to that of
12
more than one whose name is now honored
wherever the hearts of men and women beat true
to the sacred cause.”
PASSAIC DAILYNEWS, (N.J.,) June
8, 1912. – “The book does not lend itself to
review as easily as most do for the reason that
it is packed so full of information, opinions,
and decisions. It is a veritable arsenal of
ammunition for advocates of fullest and freest
liberty of expression. * * Mr. Schroeder
strikes the powerful, clean note that is needed
in rebuttal of all this hideous ignorance. It
will do much to change the views of many
thought-moulders who have heretofore given
but superficial consideration to the criminal
conspiracy of silence upon the psychology of
sex.”
THE FORUM, July, 1912 – “The tem-
per of Mr. Schroeder is the temper of the
reformer who will devote a life to a cause and
who will let nothing divert him from the object
he has set out to achieve. * * A remarkable
achievement, involving enormous labor. * *
Many of the laws cited by Mr. Schroeder, are
stupid to the point of being ridiculous, and the
sooner they are erased from the statutes
the better will it be for our self-respect
as a civilized community.”
THE MEDICAL, HERALD, March,
1912. —“The study of the sex question has
been tabooed by nearly all so-called civilized
people, therefore, judicial interpretations are
based on sentiment, the result of ignorance and
prejudice. We are indeed glad that a man of
Mr. Schroeder's exceptional ability is suffieci-
ently self-sacrificing to render a service in
13 e
enlightening the legal profession and render a
great service to humanity and civilization.
* * We are sorry to admit that the
charge of ignorance against our professional
brethren is largely true. We do not believe in
sex ignorance, and we heartily endorse Mr.
Schroeder's attempt at civilizing man along
this line. * * Go on with the good
work | *
AMERICAN POLITICAL SCIENCE
REVIEW, May, 1912. —Our selfishly com-
mercial era rarely witnesses the production of
a law-book “not published to sell, but for
missionary work among leaders of thought.”
This is such a book. It is, accordingly
a cause for lament that Mr. Schroeder
should have seen fit in it to defend such an
indefensible thesis as “uncersored mails and
express.” He insists that the Federal and
State obscenity statutes are not only inexpedi-
ent and undesirable, but unconstitutional as
well. Few sane, sensible citizens would agree
with the first contention, and a still smaller
proportion of lawyers or jurists with the
latter. * * The work exhibits consider-
able erudition. * * The discussion of
the varius standards of modesty,+pyschologi-
cal, anthropological, legal, etc., is excellent.
* Even the divers illustrations of
official stupidity in administration, despite the
obvious bias of the author's manner of ex-
position, serve a quite useful purpose and are
well collected. It is, therefore the more regret-
table that Mr. Schroeder should have wasted
his time, his energies, and not inconsiderable
talent, on a not merely hopeless, but hopelessly
mistaken, cause.”
14
EUGENICS, (Official organ Inter-
national Purity Association) “This
work is an invaluable contribution upon the
subject of “obscenity’ and its relations to the
freedom of the press * * Mr. Schroeder
is, we think, the ablest authority upon the
question of freedom and its relation to needed
instruction upon lines that are justly consider-
ed delicate, but which are imperatively needed
for racial enlightenment and advancement. His
contention, that justice demands that the
definition of what constitues obscenity should
be clear cut and obvious, and not left to the
ignorant biased, perverted, abnormal or pre-
judiced to juggle with, depriving the innocent
of liberty or allowing the guilty to escape just
penalties, is impregnable. * * * That
the reader will agree with all his logic or accept
all his conclusions, is not to be expected, but
he has, nevertheless, presented an able argu-
ment. * * *
THE ONLOOKER, Dec. 6, 1911.
—“Mr. Schroeder is an able lawyer, he handles
his subject like a master, and he puts many
blow-holes in the supposed decency of the
Comstock law.”
SEXUAL LIFE, Dec. 1910, Dec. 1911,
(Mexico.) —“There is no man of equal
prominence in American public affairs who is
Mr. Schroeder's equal in the discussion of sex-
ual topics. * * I see in Mr. Schroeder's book
a mortal blow to the present feminist régime
in the United States.”
MAINE LAW REVIEW, Dec., 1911.
“An interesting and remarkable innovation in
the line of legal treastises. * * * The
author has taken a long stride on the road to
15
liberty and justice and such a clean and sincere
work should be allowed distribution.”
ALIENIST AND NEUROLOGIST,
Atig., 1912. “The most valuable contri-
bution to the present literature on the subject.
* * Every lawyer, physician and
philanthropist should read this forceful and
instructive book, and the clergy might well
take notice of it.”
MEDICAL RECORD, (Kansas City)
March, 1912. – “We are indeed glad that
a man of Mr. Schroeder's ability is sufficiently
self-sacrificing to render a service in enlighten-
ing the legal profession and rendering a great
service to humanity and civilization.”
INTERNATIONAL, Sept., 1911.—“No
man in this country has fought so long and so
well in behalf of this unpopular cause as the
author of this volume. No man is possessed of
so wide a knowledge of all the data connected
with this subject, and of so resourceful an in-
tellect in dealing with this subject.”
THE LITERARY GUIDE, Oct. 1,
1912. (London) “Mr. Schroeder's book is
thus only a sign of the times; but he leads the
way in boldly demanding the removal of all
penalties against so-called obscene literature
* * * Here [in those parts of the book
which are of universal application] Mr.
Schroeder has undoubtedly some very weighty
considerations to urge. * * * Pub-
lic opinion requires to be educated to such a
tolerence at least in the frank discussion of
sexual problems as we have now arrived at on
subject of “blasphemy’. * * * Mr.
Schroeder's book " " * will furnish
useful materials to the educators of opinion.”
16