- Literature and the American Courts
- The Johns Hopkins University Press and Faber & Faber Ltd
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[ 675 Literature and the American Courts The Egoist, 5 (Mar 1918) 39 The Egoist wishes to call the attention of its readers to a case which was recently tried in the New York Courts, and which should be of interest in England as well as America to the small public which cares for literature. MissMargaretC.Anderson,editressandownerofTheLittleReview,received complaints from numerous subscribers, who reported that they had not receivedtheOctoberissue.1 Onfirstinquiryatthepostoffice,MissAnderson was told that “all deliveries are likely to be slow in these days”;2 but inquiring again a week later she learned that the issue was held pending a decision from the Solicitor of the Post Office in Washington as to whether a certain story published in that issue was lewd and indecent. On November 8 she received a letter stating that the issue had been decided unmailable. Mr. John Quinn, the distinguished New York barrister, took up the case for Miss Anderson.3 We pass over a point which was clearly brought out by the prosecution– the financial loss from the suppression of an issue of three thousand copies to a review which without subsidy is struggling quite alone in America to obtain and publish only contemporary work of the finest literary quality. We merely offer for the perusal of our readers the text of the curious law under which judgment was given against the Little Review, and the words of the judge in delivering the decision: Section 211 [of the U.S. Criminal Code]: Every obscene, lewd, or lascivious , and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and every article or thing designed, adapted, or intended for preventing conception or inducing abortion, or for any indecent or immoral use; and every article, instrument, substance, drug, or medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion, or for any indecent or immoral purpose; and every written or printed card, letter, circular, book, or pamphlet, advertisement, or notice of any kind giving information directly or indirectly, where or how or from whom or by what means any 1918: Journalism 676 ] ofthehereinbefore-mentionedmatters,articles,orthingsmaybeobtained or made, or where or by whom any act or operation will be done or performed , or how or by what means conception may be prevented or abortion produced, whether sealed or unsealed; and every letter packet or package, or any other mail matter containing any filthy, vile or indecent thing, device or substance; and every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may or can be used or applied for preventing conception or producing abortion, or for any indecent or immoral purpose; and every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing, is hereby declared to be unmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever shall knowingly deposit, or cause to be deposited for mailing or delivery, anything declared by this section to be unmailable, or shall knowingly take, or cause the same to be taken, from the mails for the purpose of circulating or disposing thereof, shall be fined not more than five thousand dollars , or imprisoned not more than five years, or both. Asiswellknown,allpublicprosecutioninAmericawithregardtoprinted matter, whether on the ground of sedition or obscenity, is undertaken on the basis that the crime is one of abuse of the post-office facilities. In this case the prosecution was able to cite precedent to show that according to the legal interpretation much writing of the vilest tone and content fell without the scope of the law, since it had been decided that to be “non-mailable” for the reason of obscenity, literature must have a “tendency to excite lust.”4 Even on this ruling, the prosecution (Mr. Quinn on behalf of The Little Review) contended quite rightly that the short story in question had no such tendency. Judge Augustus N. Hand,5 in summing up, let the cat out of the bag with really injudicious candour: I have little doubt [said he] that numerous really great writings would come under the ban if tests that are frequently current were applied, and these approved publications doubtless escape only because they come within the term “classics,” which means for the purpose of the application...