Senator Cutting has insisted that each state should be permitted to determine for itself the books its people may read. This, it seems to me, is recommended not only by the Constitution but by common sense, but obviously it means that we shall have to take great care in the wording of our particular laws 'relating to obscene literature.' An eminent jurist has said that legislation is 'a compromise between articulate minorities,' and though he was not speaking of censorship, the truth of his words is clearly brought out by the history of this troublesome project.
If I read them aright, the early state laws in regard to obscene prints and publications were, as in England, framed with the express purpose of suppressing deliberate pornography. The word 'obscene' runs like a refrain in every one of them and I wish to point out that it is an imponderable word. Lawyers, when they have tried to convey its meaning, have generally followed the decision of Lord Chief Justice Cockburn, that 'the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.'
But, though we may not easily pin it down, there is no doubt -that many of us employ the word as if we were sure of what it means. In 1878 a group of prominent New York citizens, among whom were William E. Dodge, Jr., Morris K. Jesup, and J. Pierpont Morgan, organized, the New York Society for the Suppression of Vice. It was organized under a special act of the State Legislature and its guiding light was, of course, Anthony Comstock: The agents of the Society were given the rights of search, seizure, and arrest. The idea was contagious, and in a few years the Western Society for the Suppression of Vice, the New England Watch and Ward Society, and, in England, the National Vigilance Association were in existence. Vigilance committees may be necessary to a frontier society, but I contend that their interference is hardly called for in a cultured community which once was supposed to cradle liberty. Paternalism is out of favor to-day, and I believe there are many of us who object to the purpose of such organizations and who cannot approve of their actions. Granting that they perform a service in quietly ridding city life of some of its apparent contamination, yet the fact remains that their ferreting policy is out of keeping with the best American law and custom. The Watch and Ward Society is the only one to come under my observation; I have it on their authority that ninety per cent of their activity is devoted to matters other than censorship and I understand that of the sixty-eight books now suppressed in my state only eleven were subject to their complaint. But by the very threat of their action they constitute themselves the unofficial censors of the Commonwealth. This is strong criticism; I do not mean it to be harsh. For as a citizen I feel under definite obligation to the Society for its devoted and highly disagreeable work in suppressing pornography and for its war upon the contamination of the red-light districts.
Unfortunately, in their, zeal to run down and destroy Paris post cards, filthy pictures, and smutty pamphlets — which still seem to circulate among adolescents, — the Society has also felt it incumbent upon them to act as the unofficial censors of what our adults shall read; and, unfortunately, as I see it, the present Massachusetts statute is a ready weapon for such a crusade. Section 28 of Chapter 272 of the Massachusetts General Laws has been frequently modified. Its present wording — for which, I believe, the Watch and Ward Society is in part responsible — is briefly as follows: 'Anyone who imports, prints, publishes, sells or distributes a book, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language manifestly tending to corrupt the morals of youth, or an obscene, indecent or impure print, picture, figure, image or description manifestly tending to corrupt the morals of youth,' etc., will be liable to criminal punishment.
Let us examine this wording closely, for it is certainly far from just. It must be apparent to anyone that the phrase 'containing obscene, indecent or impure language' is an exceedingly strict qualification. Under these terms the Bible, the plays of Shakespeare, and all of the great novels could be suppressed; for, since a book to be suppressed need only contain 'obscene language,' — that is to say, an 'obscene or indecent' reference, paragraph, or page, — and since, to paraphrase English and American judicial opinions, that is obscene which tends to create obscene thoughts in the minds of those who are susceptible, it takes very little arguing to show that most contemporary novels, many contemporary biographies, and most of our great classics, when found in the hands of a moron, could be banned in Massachusetts on the strength — or weakness — of a single isolated passage. By their own statement the Watch and Ward Society take the whole book into consideration before making a complaint. Why should not the Massachusetts judge and jury be entitled to the same practice?
The actual procedure of complaint is something like this: Discovering in the hands of my little daughter a copy of Fielding's Tom Jones, I am made curious to see what it is that is amusing her. I read a few pages and am properly shocked. Hastily reaching for my hat, I march indignantly down to the bookseller who sold my child this trash and figuratively throw the book in his face. The bookseller defends himself by saying that he did not publish the book and has not read it. That does not give me the satisfaction I want, so I seek a policeman. With my pencil I mark the outrageous passages and ask him to read them. He is as shocked as I am and says he will take the matter up with the chief. He takes the book with him to headquarters and I go home to cool off.
Now the superintendent of police attorney — should my marked copy of Tom Jones be relayed to him — has it in his power, if he believes the book is actionable, to descend without warning on my bookseller end arrest him for selling a book 'containing obscene, indecent or impure language.' The victim will be brought to trial and compelled to defend the book under the terms of the Massachusetts statute. The jury, naturally, will be picked from those who have never read Tom Jones. But the lawyer for the defense may not read the whole book to them or defend the whole book before them. His defense must be centered on those passages which were complained of and those alone. Such was the procedure in the recent trials of Oil, by Upton Sinclair, and Dreiser's American Tragedy. Both books were examined and finally condemned on the strength — or again the weakness — of certain isolated passages. That is why no other publishers have felt it worth while to attempt to defend their books under the present Massachusetts law.
My sympathies go to the bookseller. In the last twenty years there have been well over half a dozen court cases, and in every instance — with the exception of the American Mercury case — the verdict has gone against the bookseller. Yet he does not publish the books, and in buying, often from dummy copies, the ten or twelve thousand new titles that are shown to him by salesmen each year it must be apparent that he can have at the outset, and often for a long time thereafter, only the vaguest notion of the contents of the books on his counters. Realizing that the Watch and Ward Society will be on the lookout for what they consider obnoxious books, he anticipates their complaints by asking them to notify him in advance of their taking any action. Upon their notification he is left with the choice of withdrawing the suspected book from his circulation or of running the risk of arrest and trial. He is human if he does the former and a martyr if he does not — and martyrs are rare in any community. Yet the former action on his part helps to establish the Watch and Ward Society as the virtual censors of our Commonwealth.