104 F. 78 | D. Ky. | 1900
The demurrer to the indictment in this case demands a construction of section 3893 of the Eevised Statutes, which declares to be unmailable, and which imposes a penalty for knowingly mailing, “every obscene, lewd, or lascivious book or paper.” There might be some doubt as to the meaning and intent of congress in this legislation if the supreme court had not defined it in very clear, though possibly in very narrow, terms in the case of Swearingen v. U. S., 161 U. S. 448, 16 Sup. Ct. 562, 40 L. Ed. 765. After holding that the word “or,” first occurring in the sentence above quoted, should be construed to mean “and,” the court, at page 450, 161 U. S., page 563, 16 Sup. Ct., and page 766, 40 L. Ed., said:
“The offense aimed at in that portion of the statute we are now considering was the use of the mails to circulate or deliver matter to corrupt the morals of the people. The words ‘obscene,’ ‘lewd,’ and ‘lascivious,’ as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prospeutions for obscene libel. As the statute is highly penal, it should not be held to embrace language unless it is fairly within its letter and spirit.”
It may be that this is a most strict construction of the language of the statute. Still it is certainly binding upon this court, although four judges appear to have dissented from it. But for this construction, I would not have found it difficult, and, indeed, it might have been pleasant, to hold that the paper mailed in this case was, at least, “obscene.” According to that decision, however, mere obscenity in a publication is not sufficient to make the mailing of it an offense. Under that ruling, in addition to being obscene, the paper mailed must also be both lewd and lascivious; the court holding that all these words were used in the statute to describe one and the same offeüse. An article entitled “The Virgin Mary,” published by the accused in his paper, and knowingly mailed by him, is the basis of this indictment. Those parts of the article most relied upon to sustain the charge, though ostensibly a discussion of a religious subject, are couched in language not quite suitable for inser-
The case of Dunlop v. U. S., 165 U. S. 497, 17 Sup. Ct. 375, 41 L. Ed. 799, is one which appears to well illustrate the purpose of the statute. The paper there mailed contained an advertisement of an obscene, lewd, and lascivious occupation called “massage,” which was but a respectable name for a licentious pursuit, and the persons mailing the paper well knowing these facts, and the immoral purpose of the advertiser, were held punishable under the statute for knowingly mailing such a publication. But to mail a paper which merely states or contends that even such a woman as Mary had actually been unchaste in the remote past is not, and cannot be, an offense under the statute, unless such statement is not only obscene, but one which, fairly construed, has a tendency to lead to lewdness and lasciviousness, within the meaning of those words as construed by the supreme court. To state such a proposition is to show that it cannot be maintained. To allege or contend, however falsely, that a woman, the'most honored among men, was in fact unchaste thousands of years ago, cannot naturally or justly be said to have a tendency to allure men now to such immorality as relates to sexual impurity. A publication of the sort would rather arouse disgust. Without intending to compare the women, it may illustrate- our meaning to say that Plutarch asserts that both Aspasia and Cleopatra, two of thé most celebrated women of ancient times, had been unchaste. This assertion is made in language of characteristic refinement and taste, though none the less clearly on that account. Whether the assertion is true or false, the Lives is not unmailable under the statute, because he states these things to be the facts of past history. The reason is, under the decision of the supreme court, that the mere assertion in a book or paper that a woman has been unchaste, and has given birth to a bastard, even if the language used to do so is vulgar and unrefined, does not make that publication, even though obscene, also lewd and lascivious, within the intent of the statute, however gross and inexcusable the libel upon the person may be. So every day the newspapers make substantially similar statements about women, and sometimes in language quite unacceptable, but congress has passed no law to exclude them from the mails on that account. It seems to the court, therefore, under the stress of the decision of the supreme court re- . ferred to, that, in order to bring a book or paper within the meaning of the statute, the object and purpose of it, or of mailing it, must be, not to convert others to what may be absurd views of religion, or to ridiculous notions upon religion or upon the Bible, but
In this case it seems to the court that the paper complained of was not obscene, lewd, and lascivious in the sense of the statute as construed by the supreme court, because, while it may tend to change, corrupt, or destroy the religious views of those who read it, it does not invite to any obscene, lewd, or lascivious conduct upon their part. And this seems to suggest the test by which the matter is to be determined, for otherwise the process of the court might be perverted into protecting the advocacy of one set of religious notions as against another. The statute, as already indicated, was not meant to protect religious views, or religion itself, in any general or special sense, but was intended to prevent the mailing of publications which are calculated to corrupt or debauch, with relation to sexual impurities, the morals — that is to say, the mariners and conduct — of those into whose hands the papers might fall, by lewd, obscene, and lascivious suggestions, invitations, or tendencies. In the opinion of the court, wdiatever else may be said of the publication in this case, these elements are wanting. And not only has every man the right to advocate such religious or irreligious views as please him, but, subject, of course, to responsibility for their abuse, there must be for all freedom of speech and freedom of the press. The first article of amendments to the constitution of the United States is very clear and explicit. It is short enough, and certainly it is important enough, to be copied in full. It reads as follows:
“Article 1. Congress shall make no law respecting an establishment of religion, or prohibiting Hie free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Many publications which might shock the average taste and the average notion of religion would still be entirely permissible under the guaranties of that amendment. Of course, congress could not constitutionally pass any law prohibiting the free exercise of religion, nor one which would restrict the free discussion, from every