Obscenity and the Law
Obscenity and the Law
Lucifer, the Light-Bearer . In the later half of the
nineteenth century, conservative moral crusaders such as Anthony Comstock, who had lobbied for the 1873 “Comstock Law” barring obscene material from the U.S. mail, struggled against purveyors of obscenity and a growing cadre of men and women who advocated frank discussion of sex, birth control, woman’s rights in marriage, and other controversial issues. The 1873 law was very strict and defined any mention of sexual relations as obscenity. It was, therefore, simply impossible to address sexual issues without breaking the law. The struggle between moral reformers such as Comstock and more-libertarian individuals can be seen in a case involving a citizen of Valley Falls, Kansas, who published a weekly newspaper called Lucifer, the Light-Bearer. The newspaper had for a motto “Perfect freedom of thought and action for every individual within the limits of his own personality. Self-government is the only true government. Liberty and responsibility the only basis of morality.”
The Case. In 1891 the publisher oí Lucifer, a quiet, sixty-year-old man named Moses Harmon, was indicted for violating the 1873 law by placing an obscene publication in the mail. Harmon maintained that he published his paper in order to educate people. For example, he attacked the prevailing sexual ethics that subjected women to the brutal lusts of their husbands. Though Lucifer contained some general news and political commentary, much of it discussed sexual relations. Harmon’s lawyer tried to have the court consider all of Lucifer, not just the passages the prosecutor selected out as obscene. By seeing these passages in their proper context, Harmon’s lawyer reasoned, the court would I understand that his client’s purpose was to improve and not corrupt morals. Judge John F. Phillips of the federal district court of western Missouri rejected this strategy and dismissed Harmon’s argument that he printed his paper as a public service, not to gratify men’s baser lusts. In fact, Harmon’s argument reminded the judge of Charles Guiteau’s reasons for killing President James Garfield. “Guiteau stoutly maintained to the end his sanity, and that he felt he had a patriotic mission to fulfill in taking off President Garfield, to the salvation of a political party. The Hindu mother cast her babe to the adoring Ganges to appease the gods. But civilized society says both are murders.”
Obscenity in the Mail. Having equated Harmon with presidential assassin Guiteau, Phillips discussed the role of courts in upholding public morality. “Where vituperation or licentiousness begins, liberty of the press ends.” In determining obscenity, the court had to decide how the language in question would be received by a man or woman of average intelligence and sensibility. “The subjects discussed and the language employed are too coarse and indecent for the man of average education and refinement to recapitulate.” The court warned that “the appetite for such literature increases with the feeding. The more it is pandered to, the more insatiable its craving for something yet more vicious in taste. And while it may be conceded . . . that the federal government, under its constitutional limitation, ought not to take upon itself the office of censor morum, nor undertake to legislate . . . the private morals of the people, yet Congress may, as the basis of legislation of this character, have regard to the common consensus of the people that a thing is malum in se — is hurtful to the public morals, — endangering the public welfare, and therefore deny to it as a vehicle of dissemination the use of its post-offices and post-roads, devised and maintained by the government at the public expense for the purpose of promoting the public welfare and common good.”
Intention and Knowledge. The decision in the Harmon case gave sanction to the idea that prevailing community standards should define obscenity while Congress could prevent the public circulation of all offensive material. In some cases, however, this approach actually aided the distribution of such literature. For example, when Elmina Slenker of Snowville, Virginia, was convicted in 1887 for mailing some writings, including the essay “The Girl and the Dog,” her conviction was overturned. While Slenker had placed the pamphlets in the mail, the prosecution had not shown that she knew their content, or knew they would be considered obscene. In an 1894 case a New York court rejected Corns rock’s contention that certain books were obscene after it compared them with standard works of literature. However, these cases were exceptions; men or women who knowingly distributed material that the community regarded as obscene were usually punished in the late nineteenth century.