The Story of Civil Liberty in the United States

recovered from the prostration of the Civil War, it began organizing for enquiry and propaganda along many lines.

The new ideas met two opposing forces: the conservatism of the authoritarian classes, and the inertia of the herd mind. The first opposed them because their privileges and profits were best maintained by the status quo. The masses opposed them from their instinctive fear of change, bulwarked by traditional religion and morality. This popular antagonism has sometimes been native and spontaneous; oftener it has been aroused and exploited by the ruling classes. They have even been clever enough to align the people against movements clearly in behalf of the people and against these exploiters. Popular opposition to birth-control, for example, has been fostered by the classes who profit by surplus labor, yet who themselves limit their own families.

The struggle resolved itself into one issue—to enjoy freedom of communication in spite of the police powers. Both the necessity for this freedom and also the nature of the police power must be better understood if the cases are to be clear.

You can change a democracy only by education. The rule of a tyrant is forbidden; and you can't use force,—for the people are the force, either by mobs or votes. You must change their minds. In a sense the entire modern struggle for liberty is for possession of the means of changing the people's minds, the means of education and the means of communication. They may be viewed as one, for communication in a large sense is but a public way of teaching. The social reformer, therefore, must enjoy the freest communication,—communication from a picket to a scab, from a nurse to a woman weary of child bearing, from a Socialist on a soap-box to a crowd in the public street, from the crowd to the President, from the press of an anarchist to his fellow-anarchists through the mails. Anti-liberty means to silence the picket by an injunction, the nurse by a birth-control ban, the Socialist by a nuisance ordinance, the crowd by breaking up meetings, the anarchist by a postal censorship. And all

power of suppression is precisely the same whether inspired by popular prejudices or the selfish intrigues of privileged classes.

This conflict between liberty and the police power is frankly admitted by the legalist:

Before the doctrine of evolution, natural rights were regarded as immutable, substantive, eternal, not to be changed by external conditions…. About the middle of the 19th century the courts of the country invented what is spoken of as the police power, which may be said for all practical purposes to be unaffected by the private rights theory. The government may exercise the police power unrestricted by the constitutional limitations to be found in the Bill of Rights.¹

The following reconciliation is attempted by an authority:

Civil liberty is the freedom of entering into legal relations with others and of appealing in any manner to public opinion or sentiment. This liberty must be subject to manifold restaints in behalf of the public welfare, and as a constitutional right has no specific content…. But certain spheres of liberty may be singled out as withdrawn from the police powers in this sense that the pursuit of certain objects, or certain forms of activity cannot in themselves be regarded as elements of public danger. Such special recognition is given by our courts to freedom of religion, of speech and press, and of assembly, and by foreign constitutions and laws to the freedom of migration, occupation and association.

Most Americans would be surprised to learn that their cherished “constitutional liberties” have no specific content; and are only withdrawn from the police power as harmless forms of activity. When they mean anything, the police power is alert to interfere. It is therefore of supreme importance that we understand this vast power.

All the definitions are vague, as when Goodnow calls it

justified on two grounds: first, sickness and death are both a current expense and a capital loss to society; second, the sick may communicate many of their diseases to the well. There were bitter struggles over the right to live and die your own way, even if you killed others en route. But generally in the field of health the police power has won out all along the fine.

But when the police power discovered that the causes of crime and diseases were not only physical but also social and moral, it forgot its common-sense basis in safety and health and undertook transcendental tasks. It was extended finally to protect us against states of mind or morals that were declared to be diseased and so to threaten the safety or health of the community. The psychological crimes of which the police gradually took cognizance were of four main kinds: (1) beliefs that were in some way inimical to bodily health (Christian Science); (2) beliefs that tended to undermine the moral basis of society (the Mormons' polygamy, or the advocacy of birth-control); (3) beliefs that threatened the form of the state (woman's suffrage or Socialism); (4) beliefs that denied the state itself, and so attacked the police power and its officers (anarchism).

Three interpretations of police power complete the machinery of suppression: first, its extension to cover words or acts which might have a tendency to produce mental states from which overt dangers might spring; second, the justification of preventative measures to keep persons from uttering words or performing acts with this dangerous tendency; third, the recognition by the courts of the right of executive officials to issue regulations which have far-reaching effects. The courts will not, for example, review an order of deportation by the Secretary of Labor or a revocation of second-class mail privileges by the Postmaster-General.

It begins by enforcing things that are good for the body and ends by enforcing things that are not good for the soul. It works by the quaint but dangerous analogy that quarantine

to “guide and check intellectual movements,” and that the pursuit of “ideal interests” is not removed from its operation.

FREEDOM OF CONSCIENCE

Freedom of conscience is the foundation of freedom of communication. We must be free to study anything and believe anything. These rights have been pretty well won, and science has the largest possible right of research.

In the religious field, liberty today means that you may believe and preach whatever you wish; but the police power will not accept your religious belief as justification for any act judged dangerous to the safety or morals of the community. You may hold any old faith or invent a new one. You may utter praise or contempt of the Christian religion, or of any other in comparison with the Christian religion. Religious belief is so assured that in New York it was held to be a violation of the Constitution to ask a witness if he were an agnostic.⁶ The old crime of blasphemy is almost dead. To call Christ a bastard and the Virgin Mary a whore, once fined by Chancellor Kent because it “undermined the government” is now held to be neither lewd or lascivious.⁷ There is an occasional effort to punish blasphemy:

Michael X. Mockus, a free-thought lecturer … came to Waterbury, Conn., to deliver a series of lectures in the Lithuanian tongue to an incorporated Lithuanian Free Thought Association. He uttered some phrases alleged to be blasphemous under a statute passed in 1642. He was arrested, tried in the City Court, and found guilty … and sentenced to ten days in jail. An appeal to the District Court was taken where the jury disagreed, and a retrial was ordered for December 6, 1916. The case was apparently never heard.⁸

The Catholic Church suffered an occasional attack, due not so much to religious antagonism as to the fear that Irish and Latin Catholics were invaders who might be by priests formed

… but the liberty of conscience here secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of this state.

And the courts have fortified this in such decisions as:

No man can be permitted to set up his religious belief as a defense to the commission of an act which is in plain violation of the law of the state.¹²

The statement of this doctrine for the nation touches the Mormons. In 1852 their Church proclaimed the dogma of plural marriages. They sincerely believed that women so “sealed” to an elder of the Church stood a better chance of salvation; polygamy was the will of God. Congress on July 1, 1862, passed an act declaring that every person who had a husband or wife living, yet married another person in the United States territories, was guilty of bigamy and punishable by a fine of not over $500.00 and by imprisonment for not more than five years.¹³ When the test cases under this law came before the United States Supreme Court, the following answer was made to the defense of polygamy under the First Amendment, guaranteeing religious liberty:

Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order … there never has been a time, in any State in the Union, when polygamy was not an offense against society, cognizable by the civil courts, and punishable…. It is impossible to believe that the constitutional guarantee of religious freedom was intended to prohibit legislation in respect to this most important element in social life…marriage: while, from its very nature the sacred obligation is, nevertheless, in most civilizations, a civil contract, and usually regulated by law….

Laws are made for the government of actions, and while they cannot interfere with mere religious belief

Elder W.S. Berry and Henry Thompson were laboring as missionaries…. A meeting was appointed on August 10, 1884, at the house of James Condor, on Cane Creek, Lewis County, Tenn. Elder Jones was reading a discourse at Mr. Garrett's house when suddenly a mob of men in fantastic garbs and masked faces … made him prisoner and proceeded to Mr. Condor's. They made the latter prisoner…. David Hinson entered the house where Elder Gibbs was engaged in selecting texts from the Scripture…. He took a gun from its hooks over the door and shot Elder Gibbs down. Elder Berry observed other of the mobocrats enter…. He simply bowed his head and received the bullets of the assassins and fell dead at their feet. Martin Condor engaged in a struggle with David Hinson, and while engaged some members of the mob shot him down and murdered him…. J.F. Hudson, step-son of James Condor was seized by two of the murderous ruffians, but tearing himself loose he shot and killed David Hinson, and then in turn was slain.¹⁶

Governor B.H. Bate offered a reward of $1,000 for the assailants. The violence was said to have been caused by the circulation in Lewis County by certain orthodox Christian ministers of the so-called “Red Hot Address,” purporting to have been made by a Mormon bishop. It was later proved fake.

The treatment of Christian Scientists very clearly shows the conflict between conduct prescribed by a religious faith and the police power. Criminal action has been taken against Science healers for the illegal practice of medicine, against parents and others for failure to provide orthodox medical attention for their dependents, and to enforce local quarantine and vaccination regulations on Scientists in spite of their denial of disease.¹⁷ Various attempts have been made by the States to forbid the practice of Christian Science, beginning in Rhode Island in 1887, but with little success. There is practically no interference with Christian Science as a religion though it is said that such a Church was once refused a charter

traffic, unlawful assembly, vagrancy, unlicensed parades, unregulated use of halls, misuse of the parks, and the distribution of printed matter. The enforcement of such laws is usually a matter of discretion with the police—some of them are interpreted technically, as in the rule that three persons may constitute “an unlawful assemblage.” Some, such as disturbing the peace, are so vague that they cover a multitude of cases. The burden of proof, too, is always on the defendant. He is not allowed free exercise of his civil rights as the constitution intended, but must prove them as against the police.

The police themselves are not particularly to blame. Their function necessarily creates a tendency to suppression. They feel they should break up what they do not understand. The economic and political powers behind the machinery of government provide through bosses and bribery or through control of public opinion an aggressive attitude by the police toward radical movements.²⁰ Judgment and sentence after arrest are usually a matter of summary action by police magistrates, who are a part of the machinery of suppression.

These ordinances are obviously necessary for other purposes and cannot be attacked on general grounds. It is difficult to prove that in a specific case intentional injustice has been done.

The use of streets and parks illustrates the situation. These are the natural meeting-places of the people, they hold a perpetual audience, they cost nothing, they are the forums of the poor.

The common use of the streets is, however, far more than a license…. It must be looked upon as one of the constitutional rights of the individual in so far as the individual is part of the general mass of the people which is designated as the public.²¹

Yet John Graham Brooks declared:

In more than one recent instance, the guardians of the law had to run to the books, after the emergency had

ADVOCACY OF BIRTH CONTROL

The advocates of birth control have had a difficult time as to freedom for agitation for their cause, and freedom to conduct a public clinic for information. Here are some of the facts:

In Portland, Ore., about 1915, Emma Goldman and Ben Reitman were arrested at one of Emma Goldman's public meetings for the distribution of a leaflet giving information as to the means of preventing conception. The meeting was broken up, and at the police station bail was fixed at $500, which the police sergeant declared must be in cash. With great difficulty owing to the late hour, the money was raised to release Emma Goldman. Reitman remained in jail. At the trial, Judge F.W. Stadter, sitting in place of the regular incumbent, imposed a fine of $250 each. On appeal to the Circuit Court of Multnomah County, Judge William Gatens discharged the defendants, remarking that the leaflet gave only in a dignified way information which every woman ought to know and which the wives of the rich did know through the family doctor.

1916—April. The police of Akron, Ohio, refused to allow Margaret Sanger to speak on birth control.

May. The police of St. Louis, Mo., prohibited Margaret Sanger from speaking in the Victoria theater after the contract was signed, and the deposit for the theater paid.

July. Margaret Sanger was arrested for speaking in Portland, Ore., and five others for distributing a pamphlet, “Family Limitation.” At the conclusion of her lecture, they were taken in the police wagon to the police station where they spent the night, having refused to give bail. At the trial, Police Judge Languth, held that the pamphlet was in violation of the city ordinance and the law, but probably having Judge Gaten's decision in mind, he discharged the defendants with a reprimand.

October. Margaret Sanger opened a birth control clinic in Brooklyn, New York. She and Ethel Byrne, a nurse, were arrested for imparting oral information on

cheap publication has become fundamental to all other liberties. The press has become the first instrument of social force. Word of mouth or in meetings is still powerful; but in these days of vast numbers and magnificent distances, when to insure the strength of a movement a whole nation must be organized behind it, the press is the chief tool. Hence the first thought of the social reformer nowadays is publicity. Naturally the police power seeks some means of controlling so extraordinary an agency for change. Once again the police face the difficult task of drawing the famous line (as imaginary as the Equator) between liberty and license.²⁶ We discover that the police power attempts to limit freedom of the press locally by various censorships and nationally by restricting the privilege of cheap mail service. And the entire matter is confused by the supreme difficulty of setting any standard by which the state can censor or suppress. National restrictions are treated first as the most important.

THE POST OFFICE CENSORSHIP

The post-office department exercises a life and death veto on periodical publications by its control of cheap circulation through the mails. This censorship was first suggested in 1836 by the effort to exclude Abolitionist publications from the mails. Before that the government had concerned itself solely with the physical contents of the mails, not the psychological content. By 1860, though no law justified it, it had become customary not to deliver this so-called “incendiary” matter in the Southern States.²⁷ The next step was the exclusion from the mails during the Civil War of certain pro-Southern newspapers published in the North. Postmaster-General Blair justified this exclusion as a war power of the government to protect itself from overthrow by the use of one of its own agencies. But his defense admits the beginning of a peace-time censorship. For he declared that he had, on his own executive discretion, excluded what he judged to be obscene matter. We have shifted from the

transportation in other ways, as merchandise, of the matter which it excludes from the mails…. Nor can any regulation be enforced … so as to interfere in any manner with the freedom of the press. Liberty of circulating is as essential to that freedom as liberty of publishing; indeed without circulation the publication would be of little value.²⁹

Ex parte Jackson, 106 United States Reports 727.

This decision recognizes two points that serve the cause of liberty: first, that denial of liberty of circulation is in effect a denial of freedom of the press; second, that if the government mail monopoly be closed as a vehicle of circulation there shall be no denial of the right to circulate in other ways. The essence of the matter for civil liberty, however, was stated in a separate opinion by Justice Field:

The difficulty attending the subject arises not from want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of imposing them consistently with rights reserved to the people of far greater importance than the transportation of the mail.

It may be more important that the people communicate freely among themselves than that certain uncommon offenses against public morals be punished.

There are three other factors in the working of the postal censorship: (1) the mail monopoly declared by the United States forbids private mailing organizations (Revised Statutes 3982, c. 9–40); (2) the refusal of the courts to review a postmaster-general's exclusion order on the general ground that an executive must enjoy discretionary power; (3) the refusal of the post-office department to pass upon the contents of periodicals in advance of actual mailing.³⁰ The purpose of this refusal to interpret the statutes on obscenity, et cetera, is to prevent the charge of a pre-publication censorship; and the result is that a publisher can never tell in advance what he will be allowed to mail.

prevents publishers from guarding against the penalties….

Publishers … are accorded no protection in the courts against unjust exclusions, not even if the exclusion be made in manifest bad faith…. The postmaster-general's dictum, right or wrong, and with good or evil intent, is absolute.

In practice the Post Office Department excludes periodicals … for publishing articles denounced as obscene which in fact are not obscene.

The law … affords officials of the Department a degree of opportunity for corrupt discrimination … unsafe to repose in any official and which ought to be carefully safeguarded by Congress.³¹

Further evidence of the distrust of the postal censorship was the petition of the American Newspaper Publishers Association to Congress that the publishers be given the right to judicial review of the exercise of the authority of the Post Office Department in the granting, withholding or withdrawal of the second-class privilege, the exclusion of improper matter or the interpretation and construction of the postal laws.³²

First-class mail, that is, private sealed letters, are held exempt from scrutiny by the postal authorities except upon a specific warrant as sacredly as if they rested in the desk of the addressee in his home. The Supreme Court declared:

The Constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers thus closed against inspection (sealed) wherever they may be.³³

There were charges, however, during the Civil War and the late World War that the postal authorities were permitting the scrutiny of first-class mail either by their own officials of by agents of the Department of Justice. It has been held that the obscenity laws applied to sealed letters.³⁴ And in

Every obscene, lewd, or lascivious, and every filthy book, painting, picture, paper, letter, writing or print, or other publication of an indecent character … and every article or thing designed for … preventing conception or producing abortion … or the giving of information directly or indirectly, where or how or from whom or by what means any of these articles can be obtained is a crime….

Anthony Comstock who fathered the act, had himself appointed a special agent of the post-office department without salary, and shortly afterward perfected an organization for the enforcement of the statute, which still exists as the “New York Society for the Suppression of Vice.” Later the New York Code of Criminal Procedure was amended to permit proceedings in that State against persons who could not be reached under the postal law.³⁹ Only a few specimen cases are given here for Comstock himself gave the number of his prosecutions as 3,648, with 2,682 convictions. Most of these do not of course involve principles of liberty. He is credited with having destroyed fifty tons of books, 28,425 pounds of stereotype plates, 16,900 photographic negatives, and 3,984,063 photographs.

The first important prosecution was against S. D. “Woodhull. A famous violator of the statute was Ezra H. Heywood, who was arrested November 2, 1877, for the alleged mailing of two books, Cupid's Yokes, a treatise on marital morality by Heywood, and Trail's Sexual Physiology. He was convicted in the United States Court at Boston and sentenced to two years hard labor in Dedham jail, June 25, 1878. He was unconditionally released by President Hayes, December 19. On October 26, 1882, he was lodged in Charles Street jail, Boston, for violating the amended act, but was acquitted by the United States Court, April 12, 1883.⁴⁰ There was a famous trial of D. M. Bennett, March 18, 1879, in the Circuit Court at New York.⁴¹

Moses Harman was prosecuted for twenty years beginning in April, 1888, when the U. S. District Court in Kansas

In 1895 a man named Wise of Clay Center, Kansas, sent a quotation from the Bible through the mails, and was found guilty of obscenity. In October, 1897, Henry Addis, Abner Pope and other members of the Ruskin Colony in Tennessee, were arrested for mailing obscene literature, and No. 34 of The Firebrand was confiscated by the postal authorities at Portland, Ore. In September, 1911, the Report of the Chicago Vice Commission was forbidden the mails, though this was the production of a very respectable and presumably scientific body.

We may note that in most of these cases the alleged offenders were radical or free-thinkers, or more generally social and religious idealists, some of whom instead of painting the beauties of sex, believed it a very sinful and morbid thing. They were often opposed to licentiousness inside of marriage, and they sometimes achieved a sane conception of evolutionary eugenics. They were not scientific and were frequently foolish, but they were not intentional corrupters of public morals, nor indeed did their publications contain anything that could rightly be called unintentionally corrupting. They were pioneers and suffered the penalties. They won a freedom later used by others.

We cannot go into the procession of cases in which the courts have wrestled with the whole matter of obscenity and the interpretation of the statute. The central doctrine is derived from an English case; “that is obscene which has a tendency to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort might fall.” (Regina v. Hicklin, 2 L. R. Q. B. 569. Ex Crum Case, 19/1868. Trials of Charles Bradlaugh and Annie Besant.) A critic of the law gives the following summary:

A glance at the decisions handed down during the forty years of Comstock's chief activity shows a truly amazing willingness to accommodate him in his pious enterprises. On the one hand there was gradually built up a court-made definition of obscenity which eventually embraced almost every conceivable violation of Puritan prudery, and on the other hand the victim's means of defence were steadily restricted and conditioned, until in the end he had scarcely any at all. This is the state of the law to-day. It is held in the leading cases that anything is obscene which may excite “impure thoughts” in the minds … of persons that are susceptible to impure thoughts,”⁴⁴ or which “tends to deprave the minds ” of any who, because they are “young and inexperienced,” are “open to such influences”⁴⁵ … in brief that anything is obscene that is not fit to be handed to a child just learning to read, or that may imaginably stimulate the lubricity of the most foul-minded … Words that “abstractly considered may be free from vulgarism” may yet be assumed by a friendly jury to be likely to “arouse a libidinous passion … in the mind of a modest woman” … The court failed to define “modest woman.”⁴⁶ Yet further it is held that any book is obscene “which is unbecoming, immodest.⁴⁷ Almost any printed allusion to sex may be argued against as unbecoming in a moral republic, and once unbecoming it is also obscene…. The defendant cannot allege in his defence that the offending work was put forth for a legitimate, necessary, and decent purpose.

FEDERAL ACTION AGAINST BIRTH CONTROL PROPAGANDA

The propaganda for the dissemination of information on the control of conception, known in the United States as the “birth control movement,” led by Mrs. Margaret Sanger, a nurse, has resulted in the suppression of publications and prosecution under the Federal obscenity statute. The following gives the facts:

In February, 1913, the Sunday Magazine of the Socialist daily, “The New York Call,” was held up on account of a series of articles, entitled, “What Every Girl Should Know.” The specific matter complained of was a discussion of the effects of venereal diseases. After much protest and discussion the Post Office Department reversed the exclusion order. In March, 1914, the first

of discussion on sex. Socialists, anti-Catholics and physical culturists have been charged with obscenity in order to suppress their propaganda.

In 1912 Hobart Coomer who published a Socialist paper in Oklahoma was sentenced to six months imprisonment for publishing an advertisement of a proposed edition of his periodical. The advertisement which was attacked as “obscene, lewd, lascivious, and filthy” read in part as follows:

FREE LOVE EDITION OF SOCIAL DEMOCRAT, JULY 10, … The master class has always taught and paid their hireling teachers, preachers, authors (editors) and other able idiots to teach that woman is merely a multiplication table for the human species; that her only business on God's green footstool is to fry steak and onions and bearing soldiers and politicians…. They never, until recently, allowed her to exercise anything but her sexual apparatus. The Socialists have made a great discovery. They have discovered that women are human beings. They are getting paid for this great discovery by having “free love” and many other stupid hee-haws brayed in their ears. We are going to tell you in the Free Love edition why the Socialists believe women are human beings.

There was nothing about free love in the paper. The above words formed the basis for the indictment. The case was taken to the United States Circuit Court which refused to change the decision.⁵⁰

In a previous case, Fred Warren, of Girard, Kansas, had published in a widely circulated Socialist weekly, The Appeal to Reason, charges based on affidavits against a deputy warden of the Federal penitentiary at Leavenworth, accusing him of sexual irregularities including homo-sexual practices with prisoners in his charge. He was brought into the United States District Court in Kansas for violating the

activities of some unknown person with a motive, the attention of a Post Office Inspector was attracted to the three numbers; he purchased the same through the mail, and the arrest, indictment, and conviction of the defendant followed. He was sentenced to two years hard labor in the penitentiary and fined $2000…

The suit against me was of local origin in the little village in New Jersey where the “Physical Culture Magazine” was then published. No intimation of impropriety in the story was received from any reader, and while in Washington the day following my arrest I was informed that the officials of the Post Office Department had received no complaints against my magazine…. In addition to personal obloquy resulting from this prosecution, and many false and slanderous statements concerning it, I have been made to suffer large financial loss … it will probably reach $200,000.

Bernarr Macfadden, Statement on His Trial, p. 17.

The United States Circuit Court upheld the conviction for obscenity: “It caters to a prurient taste…. The test is the tendency to deprave and corrupt the mind of those open to such influence.”⁵⁴

IS ANARCHISM INDECENCY?

The federal executive authorities found the postal laws inadequate to suppress publications that discuss social questions in ways they opposed. They could not reach the anarchists, for example, and were forced to resort to technical rulings, thus:

We moved in 1905 to St. Louis to publish our paper Regeneracion (an organ of the radical Revolutionaries of Mexico)…. Diaz used diplomatic channels…. We had complied with all the provisions of the postal laws in order to avoid this … and yet Mr. Cortelyou, the Postmaster General, with neither justification nor shame, declared that Regeneracion could not enjoy second class privileges because over fifty per cent of the copies were destined for circulation in Mexico.⁵⁵

And the term “indecent” within the intendment of this section shall include matter of a character tending to incite arson, murder, or assassination.⁵⁸

WHEN IS ART OBSCENE?

The obscenity club has been used against the artist, graphic, plastic, literary, and dramatic. In 1882, Osgood and Company, Walt Whitman's publishers, submitted to the poet twenty-four passages in Leaves of Grass tor censorship.⁵⁹ Backed by a threat of the United States attorney, they ordered these passages expunged before the book was allowed on sale in Boston. Foreign authors whose works have been proscribed in one way or another, are Rabelais, Boccaccio, Zola, Daudet, Balzac, Hardy (Jude the Obscure, and Tess of the d'Urbervilles) and Harold Frederic, (Damnation of Theron Ware). Frank Harris was deprived of a publisher for his Life of Oscar Wilde. George Moore's Memoirs of My Dead Life was expurgated. D. H. Lawrence's works were forbidden for a time; and attacks were made on Theodore Dreiser's Genius, David Graham Phillips' The Career of Susan Lennox, and Alfred Kreymborg's Edna.

Scientific sex studies suffered equally with fine arts: Forel's The Sexual Question was brought into court as pornography; Havelock Ellis' works on sex barred from the mails at one time; and the publishers of Przybyszewki's Homo Sapiens were forced to withdraw the volume. Not all of these interferences were based on the Federal mail statute. James Lane Allen's A Summer in Arcady, for example, was barred from libraries, as were many other suspected books.⁶⁰

Plays have of course been barred under local ordinances. The list includes Du Maurier's Trilby, Bernard Shaw's Mrs. Warren's Profession, (later revived quite innocuously), Oscar Wilde's Salome, and the plays of Eugene Brieux. In Cleveland, Ohio, in 1906, Olga Nethersole had to omit the staircase scene in the play from Daudet's

not appear to have been widely applied.⁶² Second, films of prize-fights have been barred from importation and from interstate transportation, by the mails or common carriers. It is a crime either to deposit the film for shipment or to receive it from shipment. This is based on the brutalizing effect of such contests, though pictures of bayonet practice go through the mails freely. Third, it has been decided that the First Amendment does not cover the transportation of picture films in the mails. “The United States could refuse transportation to any film not subjected to its censorship. Pictures are far worse on public morals than mere words.”⁶³ The court is here evidently extending the principle of the obscenity and lottery statutes that a government utility cannot be forced to carry what is regarded as immoral.

The censorships and police regulations of moving-pictures by states and municipalities are too complex and as yet unsettled to be more than mentioned here. Boards have been quite generally granted the power to ban or excise parts of films or order their change. The police acting as ex-tempore censors, sometimes with the help of the clergy and other experts in art and morality, have forbidden exhibitions and revoked the licenses of halls. Pictures liable to cause race feeling or stimulate immorality have come under the ban.⁶⁴

THE COURTS AS CENSORS OF THE PRESS

The courts also have acted as censors of the press by the use of their power to punish for contempt.

Recently (1900–1914) in Colorado, Ohio, and New York, editors have been punished for contempt of court, which consisted in criticism published in their newspapers, and not in the presence of the court; and, therefore, having no direct tendency to disturb its orderly proceedings. In Colorado, perhaps in other States also, proof of the truth was excluded.⁶⁵

In Colorado, one Patterson was punished by a State court for contempt in publishing certain opinions on the conduct of

was driven from Memphis, Tennessee, and formed an anti-lynching league in England, securing as members, the Duke of Argyll, the Archbishop of Canterbury, and others.⁷⁰

1906—Emil Ruedebusch, of Maysville, Wis., was fined for publishing Old and New Ideals, a pamphlet of radical social and sex philosophy.

1910—The New Castle Free Press, in a free speech fight in New Castle, Pennsylvania, was charged with seditious libel under the revival of the obsolete doctrine of the common law. Four men, McKeever, Hartman, McCarty, and White, were tried. The jury disagreed. In the celebration after this vindication the Socialists were forced to rent an orchard for a meeting, and, it being Sunday, narrowly escaped a new prosecution under a local blue law.⁷¹

1912—On September 5, the Socialist paper of Butte, Montana, went out with three columns of white censored spaces, far more eloquent than the expurgated text, creating a curiosity that could hardly be met when the censorship was removed.⁷²

1913—The Weekly Issue of Passaic, N. J., suffered from police action during the strike of the silk weavers in the latter town. The police entered Socialist headquarters and seized 500 copies of the “Weekly Issue,” the organ of the Socialist Party. Charges of theft were made against the police later, and four of them were brought before a Socialist judge and held in bail of $200 each. Next a warrant was issued for the arrest of the editor, Alexander Scott, charged with “aiding and abetting hostility to the government,” a crime punishable by 15 years at hard labor. He was arrested at a meeting held to protest against this persecution, locked up over night, and released next day on $2000 bail. He had compared the conditions in Paterson with the rule of the Cossacks. Four men who sold the paper on the street were also arrested. Scott was tried and convicted in the lower court, but the verdict was set aside by the Supreme Court of New Jersey, while the four men, after being held several days in default of bail, were released without trial.⁷³

the editorial matter which he had already written for the next morning's paper. The leading editorial was produced and the officer told the editor he must not publish it. He forbade the editor to print the official statements of the Miner's Union.⁷⁵

Articles criticizing the militia or State administration were forbidden. The office was attacked by a mob and wrecked.⁷⁶

In West Virginia, in the strike of 1912–1913, the military power arrested C. H. Boswell, editor of the Labor Argus, and held him incommunicado. Fred Merrick, a second Socialist editor who came from the Pittsburgh Justice to fill Boswell's place, was thrown into prison by the Governor's orders, and the paper confiscated. The house of the editor of the Socialist and Labor Star, one Thompson, was searched for the mailing-list of his paper, his stock damaged, and the office department locked up.

“In Idaho … many striking miners were herded in outrageously unsanitary bull-pens by the militia of the State. An editor who foolishly believed the Constitution of Idaho to be of some importance propounded some questions in his paper, calculated to show that this conduct of the militia was in violation of the law. For asking these questions … he was also arrested and placed in the bull-pen with the others.

FREEDOM IN THE ISLAND COLONIES

The Federal military power has had little opportunity to interfere with freedom of the press save in our colonial possessions…. It seems to have taken advantage of this opportunity on occasion.

In our military control of the Philippine Islands we find executive authorities arresting an American editor for republishing our own Declaration of Independence … with the excuse that it would tend to incite the Filipinos to insurrection.

In Porto Rico, we find an American editor is subjected to some seventy or more arrests, and finally in practical effect banished from the island as the one condition on which he could escape what might prove life imprisonment … for publishing what he believed to be true concerning some carpet-bag officials appointed by the President.

In the years since 1917, not covered by this study, the violations of civil liberty in the colonies have been more frequent.

THE LAWS AGAINST ANARCHISTS

The development of the laws against anarchists is an important chapter in the history of liberty. These extreme libertarians have had rather less liberty than anybody else. They present a paradox, for although they do not believe in government, they appeal to the constitutional guarantees of government for protection in the agitation of their views. Their opposition to all government, together with the fact that some few of them have both preached and practiced violence, has caused them to be regarded especially as people outside the pale. Ignorance of their philosophy has led to the confusion of anarchists with other radical groups, such as the Socialists and communists, so that they have suffered from the views of others, and others have suffered from being identified with them.

For clearness we must distinguish the native-born anarchist from the alien, and the philosophical or Christian anarchist from the advocate of the violent overthrow of governments. The native anarchist has existed since the Utopians of the early 19th century, but his doctrines had not been regarded as dangerous, nor had he suffered suppression until after the influx of foreign-born anarchists from Germany and Russia, who fled to this country from 1848 on. They were at first received as exiled republicans from despotic monarchies in Europe coming to a land of political asylum

executives, and to regulate the admission to the country of undesirable agitators. A further attempt was made to define anarchism. The Hill bill, drawn by Secretary John G. Carlisle, under Cleveland and approved by Richard Olney, Secretary of State, passed the Senate and was side-tracked in the House only by the single objection of a New York Representative.⁸¹ The old idea still persisted, however, for in 1898 the United States declined to send a representative to an international conference of secret service agents to European governments held to solve the problem presented by anarchists. (Mr. Roosevelt did suggest later making “criminal anarchy an international crime,” whatever that may be.) But the assassination of President McKinley in 1901 by an avowed anarchist renewed the agitation. On December 16, Senator Vest enquired as to a possible amendment to the Constitution to suppress anarchy. In 1903 Congress passed an immigration law with this provision⁸²:

Section 38: … That no person who disbelieves in or who is opposed to all organized government, or who is a member of or affiliated with any organization entertaining and teaching such disbelief in or opposition to all organized government, or who advocates or teaches the duty, necessity or propriety of the unlawful assault or killing of any officer or officers, either of specific individuals or of officers generally, of the government of the United States, or of any other organized government, because of his or their official character, shall be permitted to enter the United States … also provided that polygamists, anarchists, or persons who believe in or advocate the overthrow by force or violence of the government of the United States or of all government or of all forms of law, or the assassination of public officials, shall be excluded from the United States…. Persons who have been convicted of offenses purely political, not involving moral turpitude are excepted….

An Act to Regulate the Admission of Aliens,
United States Compiled Statutes, 1903, 170.

If the word “anarchist” should be interpreted as including aliens whose anarchistic views are professed as those of political philosophers, innocent of evil intent, it would follow that Congress was of the opinion that the tendency of the general exploitation of such views is so dangerous to the public weal that aliens who hold and advocate them would be undesirable additions to our population whether permanently or temporarily, whether many or few….

United States ex rel Turner versus Williams
194 United States Reports 279.

In the last paragraph the Supreme Court establishes the doctrine of “constructive anarchy” by basing its decision on the “dangerous tendency” of the exploitation of these views, “however innocent of evil intent.” The rule is first made and with general approval against the advocates of violence; next it is invoked against those philosophers who do not believe in governments lest they incite others to violence; last it is stretched to include any one who seeks to change the form of government by whatsoever means, economic or political.⁸⁵ The application of these doctrines to exclude anarchist publications from the mails is discussed above under “Freedom of the Press.”

Deportations of anarchists were unusual until after 1919, a period which is not here covered. That of Maxim Gorki, Russian novelist, political radical and social philosopher, was achieved under another provision of the immigration laws, covering exclusions for moral reasons. Gorki entered the country, but was forced to withdraw on account of a public clamor against his relations to a woman who by American interpretations was not his legal wife.

An interesting example of the official attitude toward anarchists was the sentence in 1908 of William Buwalda of San Francisco, a private in the United States Engineers, to five years imprisonment in a military prison for attending a public meeting under anarchist auspices and shaking hands with the speaker after the lecture.

THE NEW YORK CRIMINAL ANARCHY LAW

As a result of the excitement after President McKinley's assassination, New York in 1902 put on the statute books a criminal anarchy law. An abstract follows, given so fully because this law was the progenitor of many similar laws enacted by more than thirty states during and after the World War.

Section 468. a. Criminal anarchy is the doctrine that organized government should be overthrown by force or violence or the assassination of the executive head or any of the executive officers of the government, or by any unlawful means.

b…. whoever by word of mouth or writing advocates, advises, or teaches the duty of criminal anarchy … prints, publishes, edits, or issues or knowingly circulates, sells, destributes or publicly displays any book, paper, document or written or printed matter in any form containing or advocating, etc…. organizes or becomes a member or voluntarily assembles with any society, group, or assembly of persons to teach or advocate such doctrines … is guilty of a felony and punishable by imprisonment for not more than ten years, or by a fine of not more than $5,000.00 or both.

d. Whenever two or more persons assemble for the purpose of advocating or teaching the doctrines of criminal anarchy … such assembly is unlawful and every person voluntarily participating therein by his presence, aid, or instigation, is guilty of a felony, and punishable (as in section b).

e. The owner, agent, superintendent, janitor, caretaker, or occupant of any place, building or room who wilfully and knowingly permits therein any assemblage of persons prohibited by section 468 … is guilty of a misdemeanor and punishable by not more than two years imprisonment, or by a fine of not more than $2,000, or both.⁸⁸

Chapter of the Sons of the Revolution asked for Freeman's resignation.

January 14. San Francisco. Emma Goldman was arrested to prevent her speaking. This same year she was arrested in Philadelphia and tried to secure a decision on her rights in the courts.⁸⁹

1913—April 4 and 11. New York. Disturbances in Union Square.

—April 13. Los Angeles. Lucy Parsons, widow of Albert Parsons, one of the Chicago anarchists hung in Chicago in 1887, and George Markstall were arrested for selling literature without a license (an account of the famous Anarchists' trial). At the police station the matron made Mrs. Parsons strip for searching and tried to pull off her husband's ring.

The police point of view toward anarchists is curtly put by a famous policeman, Robert A. Pinkerton:

In New York the police have carried on relentless warfare against the “Reds.” They have gone even to the length of “illegally suppressing” their meetings. On one occasion I remember when a lot of anarchistic sentiments were being shouted from a speaker's stand in Union Square, the police without warrant descended upon the meeting and broke it up. This was reprehensible from the standpoint of the stickler for social and political rights; but there are certain conditions that cannot be dealt with from the ordinary point-of-view, and anarchy is one of them.⁹⁰ These people should all be marked and kept under constant surveillance, and on the slightest excuse be made harmless.

WOMEN AND CIVIL RIGHTS

We have seen but little reason to consider the civil rights of women as women. Women were protected as men were by the Bills of Rights and could assemble, speak, print, and secure as freely the protections of law. Indeed they did things

leaders like Elizabeth Gurley Flynn went to jail for agitation; Emma Goldman, the anarchist, was made a greater propagandist because of what she suffered from the police.⁹¹

There was no sex distinction in these cases. The women suffered what the men suffered.

In preaching certain moral reforms, women have also suffered, especially for abolition and temperance. This summary indicates how women advocates were treated between 1830 and 1880.

The mobbing of Garrison in Boston took place at a women's meeting. Women were mobbed in Philadelphia, and Pennsylvania Hall burned while they were holding both abolition and temperance meetings. One of the speakers declared the slaves they defended were freer than they themselves.⁹² At the New York Convention, women were mobbed. The force of their faith was proven by Lucretia Mott, who being a Quaker, refused to call the police to use force to suppress the mob.⁹³ On a speaking trip of women from Buffalo to Albany a succession of mobs broke up the meetings, or the women were prevented even from securing halls. Finally, the Mayor of Albany boldly preserved order, and gave the crusading women a testimonial. The Mayor of Boston broke up a meeting.⁹⁴ In one city where they had secured a concert-hall for a public fair, their flag was torn down, and the high constable ejected them and their property into the street.⁹⁵ They were practically denied the right of petition when Congress refused to consider petitions for the abolition of slavery.⁹⁶ How women were interfered with in education has been told in the case of Prudence Crandall, and that of the “smelling committee.⁹⁷

We note also the refusal of certain civil rights to women. The restrictions are as old as 1684, when females were excluded from the New Haven grammar school.⁹⁸ The right to follow an occupation that requires a special license was long denied in many states. Mrs. Myra Bradwell, editor of the Chicago Legal News, fully qualified as a lawyer, was refused admission to the Illinois Bar by the Supreme Court on the

ridicule. Such incidents as this necessarily accompany any new movement:

Susan B. Anthony went to Southern Oregon in 1879 and while sojourning in Jacksonville, she was assailed with a shower of eggs, since known as “Jackson arguments” in that section, and she was also burned in effigy on a principal street after the sun went down.¹⁰¹

By 1913 the increasing political power of the women of the country through their votes in many States, and the widespread endorsement of their demand for federal action, had brought them into conflict with the police power. The struggle centered in Washington, D.C. The first failure to police protection was when the Capital police and military allowed hoodlums to mob and almost break up a parade of suffragists on March 3, 1913, the day preceding Mr. Wilson's first inauguration. The Inauguration Parade was perfectly policed.

Thereafter the “militants”—members of the Congressional Union for Equal Suffrage, later the Woman's Party—pressed for the passage of a constitutional amendment granting equal suffrage, and sought to secure the President's endorsement and political aid by direct petition and interview. When these failed, they stationed a picket of some half dozen women at the White House gates with suffrage banners, (January 10, 1917). June 20 and 21 some rioting and flag-snatching occurred over a banner on which was blazoned the statement of Elihu Root, one of the American mission to Russia, that the United States enjoyed equal suffrage. Meanwhile the United States had entered the World War, and the popular psychology had been worked into the belief that this challenging of our democracy was disloyal and unpatriotic, and should be abandoned until the return of peace.

The authorities, unintelligent and overwrought by the prevalent war hysteria, undertook the police suppression of this dangerous movement and arrested six women on June 24, and tried them in the police Court of the District of Columbia on the technical charge of “obstructing traffic,”—an ancient

15, four women were given the maximum sentence of six months as an alternative of a $25 fine. On October 20, Alice Paul, the leader of this movement, and Dr. Caroline Spencer, were recalled under suspended sentences and given six months with one additional month. Miss Paul went on a hunger strike, was removed to the District jail, at one time was confined in the psychopathic ward as a test of her sanity, and was forcibly fed for 21 days and then released in very weak physical condition. The next group were sent to Occoquan (except one). They struck at their treatment and the refusal to consider them political prisoners. No one could see them, not even their lawyer. Sixteen refused food, some for ten days. Lucy Burns, a leader, was handcuffed to the bars of her cell. Their attorney had to secure a writ of habeas corpus from the United States Judge Waddill, Eastern District of Virginia, on the ground that they were illegally incarcerated in Occoquan workhouse when they had been sentenced to the District jail. The writ originally returnable November 28, was dated ahead to the twenty-third for fear the hunger strike might produce serious consequences. At the hearing it was admitted that the only basis for the transfer of the women was “a verbal order made five or six years ago.” Judge Waddill in summing up said:

The locking up of thirty human beings is an unusual sort of thing and judicial officers ought to be required to stop long enough to see whether some prisoners ought to go and some not; whether some might not be killed by going; or whether they should go, dead or alive. This class of prisoners and this number of prisoners should have been given special consideration. You ought to lawfully lock them up instead of unlawfully lock them up—if they are to be locked up…. The petitioners are, therefore, one and all, in the workhouse without semblance of authority or legal process of any kind… they will accordingly be remanded to the Washington jail.

All thirty were returned to the district jail from which they were liberated four days later on the order of the sentencing judge, A.R. Mullowny, who refused to give a reason for his summary order.¹⁰³

In the summer of 1918 the arrests were resumed. August 6, forty-eight women were arrested for trying to speak from the base of a statue in a park opposite the White House. Some were arrested before they had spoken. They were charged with assembling in a public park without a permit. After a postponement by the government this was changed to a charge of violating a section of the Peace and Order Act which provides against loud and boisterous talking, comment on passers-by and indecent or profane language. Others were charged with climbing on a monument. Twenty-six women were sent to a man's workhouse, abandoned as unfit for habitation, where all but two hunger-struck. They were released after five days. The suffrage amendment was considered in the Senate on September 26, when President Wilson urged the measure because he “wanted a spiritual instrument.” In the debate Senator Cummins of Iowa said:

I do not believe these women committed any crime, and while I have not particle of sympathy with the manner in which they conducted their campaign, I think their arrest and imprisonment, and the treatment they received while in confinement are a disgrace to the civilized world and much more a disgrace to the United States which assumes to lead the civilized world in humane endeavor.

In December and January, 1919, the militants burned President Wilson's books and speeches with ceremonies and kept fires burning in Lafayette Park. Eleven were brought to trial and fined $5 or given five days for starting bonfires between sunset and sunrise. This was reported in the Paris press.

When President Wilson landed at Boston from Europe, in February, the local suffragists made a demonstration and several were arrested for “loitering”; three on Boston Common. They were sent to the House of Detention with sentences for

old and familiar struggle for academic freedom in American colleges and universities urges a brief list of cases. They will be found to be connected with the other issues of industrial and social freedom.

The struggle began early in this country, with the disciplining of the first president of the first College, Henry Dunster, of Harvard,¹⁰⁶ who displayed an independence rare in later university presidents.

There was an amusing paradox during the Revolution when the Tory President of King's College, now Columbia University, having been vanquished in a debate by young Alexander Hamilton, was disciplined by the patriot students and townspeople. The intolerance toward Quaker teachers at this time has been described. (See page 8.) It is probable that cases occurred before the Civil War involving religious orthodoxy though there is little record of such events. The failure to reappoint a professor (as this was the method of discipline) did not secure general notice. The cases arising out of anti-slavery agitation have been noted. (Page 120.)

Since the Civil War, the cases fall into three groups: the theological (1859–1890); the economic-political (1885–1900); and the social (1897–1917).¹⁰⁷ To these must be added the War cases (1917–1918). This extended list of dismissals of teachers for their dissent from the popular view of the World War is not here covered.

The theological cases simply continued the old dispute between science and religion, the casus belli at this time being the doctrine of evolution.¹⁰⁸ For example, in the seventies Professor Winchell was forced out of Vanderbilt University for a difference of view on theology. In 1884, Dr. James Woodrow, professor of Natural Science and Revealed Religion in the Presbyterian Seminary of South Carolina, was forced to resign for advocating in his classes the doctrine of evolution. The University of South Carolina gave this relative of the future President of the United States a chair in science.¹⁰⁹ At Princeton in the eighties arose a controvesry over the orthodoxy of the celebrated president, Dr. James McCosh; and a

granting of franchises to certain public utility corporations, and for criticizing the railroads during the Pullman strike of 1894. In 1896, President E. Benjamin Andrews of Brown University expressed views on the money question then agitating the nation, and was severely criticized. He withdrew as president in 1899. In 1900 Edward A. Ross, professor of sociology, was forced to resign from Leland Stanford University because he had expressed economic opinions not approved of by the widow of Senator Leland Stanford, founder of the University. President David Starr Jordan found himself in the embarrassing necessity of disciplining Professor Ross, though he denied that economic questions governed the action.¹¹⁰ In 1911 Professor E. M. Banks was dismissed from the University of Florida for writing an article in The Indecent on the Civil War. In the same year, Arthur W. Calhoun, of the department of history and economics, was dismissed from the Florida State College for his views on Socialism. (See The Independent, August, 1911.) In 1915 Professor Calhoun was dismissed from Maryville College, Kentucky, and in 1918, he was refused reappointment at Clark University because he had refused to sign an enforced loyalty pledge. In 1912–1913, Dr. John M. Mecklin resigned from the Department of Philosophy in Lafayette College under pressure for a failure in orthodoxy. This case was investigated by joint Committees of the American Philosophical and the American Psychological Societies of which Dr. Mecklin was a member. He was vindicated by the report.¹¹¹ This same year Willard C. Fisher was suspended from Wesleyan College, Connecticut, ostensibly for a humorous remark in an address suggesting that the churches be closed for a while so that people might find out their usefulness to religion. The deeper animus was probably against Professor Fisher's activities in public affairs. In 1914, Dr. Scott Nearing, instructor in economics in the Wharton School of Finance at the University of Pennsylvania, was denied promotion on account of his statistical enquiries into local and state corporate and public service enterprises. Dr. Clyde Kins was also disciplined by

and prestige. The worst danger here as elsewhere is intimidation. Fear keeps many teachers, none too bold at best, from voicing what they know to be true about the society that surrounds them, or the history they are supposed to interpret. Most of them are not fighters. They are experts on information, with a desire to be let alone in their work. So when their opinions are disapproved, their position and experience are not such as can resist intimidation. The young scholar learns early he can succeed best by silence. There is little academic freedom in the sense of the right to teach without institutional coercion or censorship of personal faiths.

In religion and in pure science freedom of belief has been won. Teachers can hold any faith or none, and adopt what physics and cosmology they wish though it is wise not to announce one's atheism from the roofs. The schools are at least neutral. But in other fields there is little freedom enough,—for teaching new economic or social philosophies, for discussion of sex, for disseminating what may be called internationalized history, or for radical ideas of anarchism or spiritism. The recent legislation against teaching the doctrine of evolution does not fall within our period.

In one department of science, medicine, there has been a constant struggle against both religious and social pressure. Even in 1727 in Boston, we were having a dispute about inoculation which still flourishes in the anti-vaccinationist. The issue as to who is to have control over a man's body, himself or society, is very confusing. But generally it is being decided in favor of society, which protects itself against the danger to public health arising from a failure to conform. The right to resist state vaccination is not held as a civil liberty. Even such a personal matter as the prevention of conception is held to be within the police power of the state. The opponents of dissection, of vivisection, or of cremation get no sympathy—these things serve the state. Yet there are methods of social amelioration against which instinct and prejudice draws a line, e. g., the sterilization of the human unfit. As to euthanasia

doctrines disapproved by the established government. The school that advocated a radical change in such a form and openly announced that it had taught children this creed would find itself sooner or later prosecuted for sedition, anarchy, or immorality. Moreover, the source of all teachers, private as well as public has come under control. The university does not produce the radical teacher.