To The Friends 7 se ce THE AMERICAN MERCURY cA Statement by the EDITOR To the Friends of THE AMERICAN MERCURY In the September, 1925, issue of THz American Mercury there appeared an article entitled ‘‘Keeping the Puritans Pure,’’ by Mr. A. L. S. Wood, of the Springfield Union, a well-known New England journalist. It was, in substance, an exposure and denunciation of the method employed by the Watch and Ward Society, of Boston, and its agent, the Rev. J. Frank Chase, in censoring books and magazines in Massachusetts, and, indirectly, throughout New England—a cry- ing abuse, long known to every American publisher. It was pointed out that Mr. Chase proceeded, not by bringing the publisher into court, confronting him with a detailed accusation and giving him a chance to defend himself, but by circulating threats among news- dealers and. book-sellers. The effect of this system, it was argued, was to destroy the publisher’s property and assail his good name without giving him his day in court, or any chance to recover dam- ages for false accusations. When a news-dealer resisted Chase’s threats, he was arrested, and as a rule the possibility of incurring a prison sentence for an act in which he had no personal interest and from which his private profit was small, induced him to plead guilty and accept a small fine. In case he refused to do so, it was easy, by raising a public outcry against him, to convict him. Thus the pub- lisher, having had no chance to appear in court and defend himself, found himself confronted by a judgment that his book or magazine violated the law. Mr. Wood exposed this vicious and extra-legal system and Tur American Mercury followed by denouncing it. At once reports reached us that there would be reprisals. They followed on the ap- pearance of the April, 1926, issue. On March 30 the newspapers re- ported that Chase had warned the magazine distributors of Boston to withdraw that number. The next day they reported that a dealer at Harvard Square, Cambridge, Felix Caragianes by name, had been arrested at Chase's orders for disregarding the warning. No notice of these proceedings was served on THe American Mercury. We first heard of them through the New York newspapers. A few days later we were notified by the Boston distributors that, in response to Chase’s threat, they had withdrawn the magazine, and held a large number of unsold copies at our order. On April 5, still lacking any notice of the proceedings from Chase and being quite unaware what part of the contents of the April num- ber he objected to, I went to Boston, demanded that Chase meet me on the Common, and there forced him to buy from me a copy of the “W502 t issue in question. He sought to evade this meeting, but my counsel, Arthur Garfield Hays and Herbert B. Ehrmann, insisted that he come. At his order I was arrested, charged with violating the Massa- chusetts statute forbidding the sale of obscene literature. The police, at his suggestion, tried to delay the trial for a week, but I insisted upon being heard at once, and was tried the next day, April 6, before Judge James P. Parmenter, in the Municipal Court. On April 7, Judge Parmenter dismissed the charge, holding that the April number in no wise violated the law. His opinion is printed hereunto as Ap- pendix I. Meanwhile, Mr. Hays had filed a bill in the Federal District Court at Boston, praying for an injunction forbidding Chase to molest the magazine further. This bill raised the whole question of the right of an irresponsible society, through its agents, to attack the property and good name of the publishers by means of threats and intimida- tions, without giving them their constitutional right to meet their accusers in open court. On April 14 Judge James M. Morton, Jr., granted the injunction as prayed. It is printed hereunto as Appendix Il. The case against Caragianes had been continued from March 31 at Cambridge. Before and after my acquittal certain Boston news- papers, friendly to the Watch and Ward Society and its methods, printed inflammatory stuff against us, obviously designed to arouse prejudice. On April 12 the judge at Cambridge held Caragianes to be guilty, and imposed the minimum fine. This case has been appealed. Its issue obviously conflicts with the anterior decision of Judge Parmenter. On or about April 6, the day before my acquittal, news reached us that efforts were being made to induce the Postoflice Department to bar the April issue from the mails. A copy of this issue had been sub- mitted to the Postmaster at Camden, N. J., where we print, on or about March 15, and the number had been passed. The whole edition had been mailed and delivered before April 5—-all save a few copies held for stock. The question of the mailability of the number was thus purely academic. Notwithstanding this fact, and my acquittal at Boston, the Postmaster at New York was induced to submit it to the Solicitor to the Postoffice, and on April 8 we were informed by the Associated Press that the issue had been barred from the mails ex post facto. We received no notice of this action, and were not offered a chance to defend the magazine. We at once demanded a hearing before the Solicitor, and he set it for April 15 in Washington. Mr. Hays, Mr. Knopf and I appeared before him and his two assistants on that day, and made a vigorous protest, not only against the formal barring of the magazine, but also against the fact that we had not been notified of it and had been given no chance to present a defense. In case the action is not rescinded, we shall apply for a review of the whole proceedings by a Federal Court. In brief, our case is this: we protested against the attack upon our property in Boston by an irresponsible and obviously vengeful man, demanded our day in court, got it, and were held to be guiltless by the trial judge. We then took our protest to the Federal Court, asked for an injunction forbidding such high-handed and unfair proceed- ings hereafter, and got what we asked for. We now proceed to chal- lenge the Postoffice’s trial and condemnation of us in camera, with- out notice to us or any chance to confront either the charges or our accusers. We shall, as the case unfolds, challenge and contest every other effort to dispose of us, and shall seek our lawful remedy and compensation in the courts for the damage inflicted upon us. We believe and contend that such efforts are inspired by persons who object to the general editorial policy of the magazine, and especially to its diligent and vigorous opposition to official and ecclesiastical — tyranny, and that the allegation that it is salacious is obviously dis- ingenuous and without merit. We have made absolutely no effort to capitalize the publicity that has flowed out of our contest. We might have printed and sold a great many extra copies of the April issue; we have not printed one. Our print order for May is not above the normal. We have suffered damage in good will by the reckless and unwarranted charges levelled at the magazine, and we have been put to heavy expense by our liti- gation on three fronts. We know our friends will have no doubt of our bona fides. This circular is issued in response to countless requests for a statement of the issues and our plans. H. L. Mencken, Editor. An injunetion against the Postmaster General, restoring the April issue to the mails, was issued by Judge Mack in the Federal District Court at New York May ll, —___ | ee ee UNIVERSITY OF ILLINOIS LIBRARY. Appendix I COMMONWEALTH OF MASSACHUSETTS SUFFOLK, Ss. ) | MUNICIPAL COURT OF THE CITY OF BOSTON COMMONWEALTH VS. MENCKEN OPINION OF JUSTICE JAMES P. PARMENTER In this case I believe we can eliminate a number of questions. The first inquiry is whether the language used in the article complained of is obscene, indecent or impure. This is plainly not the case and is not claimed to be so. The article is written in a literary style with somewhat of a light touch. There are no detailed descriptions or sug- gestions likely to excite the imagination of the reader, nor is a life of prostitution so described as to make it attractive to anyone. Quite the contrary is true. | cannot imagine anyone reading the article in question and finding himself or herself attracted toward vice. We then come to the question whether the subject presented as is here done, is indecent within the meaning of the statute. The ques- tion of the indecency of a writing often depends upon the circum- stances under which it is circulated. On this matter we are guided by the decision in Commonwealth vs. Buckley 200 Mass. 346, which is a leading case in this jurisdiction. There is much force in the illustra- tion used in the decision of any artist copying from the nude in his studio and his calling in the general public to observe his model. It by no means follows that the crowd would be moved by the same esthetic principles as the artist. | So again a paper on the customs of primitive races might properly be read before a learned society and printed in their transactions which would be quite unfit for general circulation. The article in question was printed in THz American Mercury which appears to be a Magazine appealing to persons interested in the discussion of serious subjects. There is nothing in its appearance or make-up which would suggest that it is anything but a serious magazine. It sells at a fairly high price and I can see no reason why a young person would be likely to purchase it. The article in question is only one of many features, none of which, except as I make mention, deals with mat- ters touching sex, and there is nothing in these articles which would appeal to an immature mind. On looking over the table of contents I find that there is nothing which would attract the attention of young people or which would indicate that the magazine is anything but a serious literary product. This magazine is quite different from the cheaper publications one sees on the news-stands. I cannot believe that this article would be at all likely to have an injurious effect upon its readers. My attention was also called to an article called ‘‘Clinical Notes’’ in the same issue of Ton American Mercury. It was not seriously urged that this article violated the statute. The gist of this article is s merely that sex is not nearly so important a matter in life as it is often assumed to be. Viewing the matter, then, from every phase including the language used, the nature of the article and its effect on the reader, and the general make-up of the magazine and its distribution, I find that no offense has been committed and therefore dismiss the complaint. Appendix II DISTRICT COURT OF THE UNITED STATES District of Massachusetts Equity No. 2541 THE AMERICAN MERCURY, INC. Ne J. FRANK CHASE ET AL: O Pal nN LON: On motion to dismiss and motion for preliminary injunction. (14 April, 1926) MORTON, J. The questions before me arise on the defendants’ motion to dismiss the plaintiff's bill, and the plaintiff's motion for an injunction pendente lite. As the facts alleged in the bill are ac- cepted by the motion to dismiss, and those shown by the evidence on the motion for injunction are substantially the same, both ques- tions can conveniently be considered together. The material facts are not seriously in controversy. The defendant Chase and the Society of which he is secretary scru- tinize publications of various kinds, including books and magazines. If they believe that a book or article violates the law, they inform the large distributors of their opinion, with the intimation, express or implied, that if the book or magazine be sold or distributed prose- cution will follow. Where this warning is ignored, it is their custom to institute prosecutions. Such notice or warning is generally sent to one Tracy who is connected with the New England Newspaper Pub- lishing Co., a distributor of periodicals, with the understanding that he will pass it along to other persons in the distributing trade, who ate thus apprised that the article Cor book) is considered unlawful by said defendants, with the statement or implication that prosecu- tion will follow if it is sold or circulated. That course was followed as to the April number of THe American Mercury, and said de- fendants avow their intention to follow the same course as to future issues which seem to them objectionable. The effect of such notice is to interfere very seriously with the sale of the book or magazine objected to. The important question is whether this is a legal course of conduct. May an unofficial organization actuated by a sincere desire to benefit the public and to strengthen the administration of the law, carry out its purpose by threatening with criminal prosecution those who deal in magazines which it regards as illegal,—the effect being, as a prac- tical matter, to exclude such magazines from sale through ordinary channels and thereby to inflict loss upon their proprietors? The injury to the persons affected does not flow from any judgment of a Court or public body; it is caused by the defendants’ notice which tests on the defendants’ judgment. The result on the other person is the same whether that judgment be right or wrong, i.e. the sale of his magazine or book is seriously interfered with. Few dealers in any trade will buy goods after notice that they will be prosecuted if they re-sell them. Reputable dealers do not care to take such a risk even when they believe that prosecution would prove unfounded. The defendants know this and trade upon it. They secure their influence, not by voluntary acquiescence in their opinions by the trade in ques- tion, but by the coercion and intimidation of that trade through the fear of prosecution if the defendants’ views are disregarded. (See McMichael v. Atlanta Env. Co., 151 Ga. 776; Gompers v. Buck Stove & Range Co., 221 U. S. 418). In my judgment this is clearly illegal. The defendants have the right of every citizen to come to the Courts with complaints of crime. But they have no right to impose their opinions on the book and magazine trade by threats of prosecution if their views are not accepted. Pratt Food Co. v. Bird, 148 Mich. 631, 632, 634; Beck v. Protective Union 118 Mich. 497 (42 L. R. A. 407). Wilson v. Hay, 232 Ill. 389. The facts that the defendants are actuated by no com- mercial motive and by no desire to injure the plaintiff do not enlarge their rights in this respect, though it may protect them under Mass. Gen. Laws, Chap. 265, sec. 25. Of course, the distributors have the right to take advice as to whether publications which they sell violate the law, and to act on such advice if they believe it to be sound. The defendants have the right to express their views as to the propriety or legality of a publi- cation. But the defendants have not the right to enforce their views by organized threats,—either open or covert,—to the distributing trade to prosecute persons who disagree with them. The principles of law involved,—which are interesting and might be much elabo- tated,—are analogous to those under which secondary boycotts are illegal, (see cases supra; also Burnham v. Dowd, 217 Mass. 351; Hotel & Railroad News Co. v. Clark, 243 Mass. 317), and perhaps rest ultimately on the reasons mentioned by Mr. Justice Holmes in Aikens v. Wisconsin, 195 U. S. 194 at 204, and the decisions there referred to. As to the April number of THz American Mercury, the injury, if any, to the plaintiff by the acts of the defendants Chase and the New England Watch & Ward Society had been completed before the present bill was filed. There is no threat by any of the defendants of further illegal acts as to that issue. This being so, no case for equit- able relief as to it is shown; and it is unnecessary at present to decide the question whether anything in it contravened Mass. Gen. Laws, Ghap..272;’sec.) 28: It follows that the motion to dismiss should be denied and that a temporaty injunction should issue in accordance with the second and third prayers of the bill.