Obscenity Rules: Roth v. United States and the Long Struggle over Sexual Expression

Chapter 2. Modernizing Free Speech: Politics, Sex, and the First Amendment in the Early Twentieth Century

In retrospect, one defense against obscenity charges remained conspicuously absent from the courtroom as the new century began. The conspicuousness was only retrospective, however; in the legal atmosphere of 1900, few in the mainstream would have assigned the First Amendment any position of centrality in the debates over obscenity. Free-speech activism began in the last quarter of the nineteenth century , but several decades passed before it attained social or political prominence. When the egregious civil liberties violations of the Wilson administration during World War I helped awaken broader awareness of the need to protect freedom of speech and the press, a more robust First Amendment than ever before emerged out of the contentious court battles. Yet even as freedom of speech slowly moved into the pantheon of fundamental democratic values, obscenity remained excluded from its provinces. Most theorists of free speech still thought primarily in terms of political speech and relied on traditional notions of what that meant; rarely was sexuality conceptualized as inherently political. No powerful or influential participant in the debates over free expression ever suggested allowing pornography into the public sphere. While obscenity’s suppressed status remained constant, however, its parameters shifted. As the American people embraced ideas of modernism in technology, culture, and identity, they also tenuously endorsed modern sexuality. Though perpetually ambivalent about lust, prurience, and various forms of “deviant” sexuality, a broad national consensus coalesced around increasing frankness in education and entertainment, as well as an expanding zone of personal privacy that butted against invasive Comstockian regulations. No definitive legal doctrine would develop until the Supreme Court finally returned to the fray in the 1950s, but well before that it was evident that the broad { 27 } c h a p t e r 2 Modernizing Free Speech Politics, Sex, and the First Amendment in the Early Twentieth Century trajectory in obscenity law was one of liberalization—which followed the currents of what historians have labeled “sexual liberalism,” the modern form of sexuality that began to contest Comstock’s values. Forming the Free-Speech Lobby The Comstock Act had never gone unchallenged. Victoria Woodhull, D. M. Bennett, Ezra Heywood, Ida Craddock, and many others had both sharp critiques of the law’s censorial impact and pointed words to describe Comstock’s own behavior in enforcing it. But with the strongest critiques coming from freethinkers and free lovers, the arguments were easily marginalized on the basis of their speakers’ positions on the fringes of society. Mainstream political organization against Comstock began with the National Liberal League, mobilized around Dr. E. B. Foote after his run-in with Comstock in 1875. By 1878, the League had obtained a remarkable 70,000 signatures on a petition sent to the House Committee on the Revision of Laws. Though Foote and his son E. B. Foote Jr. led the petition effort, it quickly became associated with its most famous signatory, prominent freethinker Robert Ingersoll. Horrified by Comstock’s public comments about using obscenity law to eradicate publications with “infidel” messages, the famously agnostic Ingersoll knew that standard implicated his own speeches and writings. Ingersoll hardly proved a free-speech extremist, though. The petition called for the “repeal or modification” of the Comstock Act, and he went to some lengths to clarify his preference as the latter . “No one wishes the repeal of any law for the suppression of obscene literature,” he wrote, adding, “for my part, I wish all such laws rigidly enforced.” The debate over repeal or modification of the Comstock Act ruptured the barely formed organization. Ingersoll and his affiliates wanted the Comstock Act clarified to expressly prohibit Comstock’s use of it to enforce his religious beliefs, but they took little interest in further reform. Pitted against them, the other major faction, unwilling to leave sex radicals vulnerable, demanded more categorical resistance . With tension devolving into impasse, the more expansively minded faction regrouped as the National Defense Association 28 { Chapter 2 } (NDA) in 1878, dedicated specifically to providing legal aid to Comstock defendants. With the Footes continuing in key roles, the NDA built off the National Liberal League’s infrastructure, spearheading the massive petition effort that led President Hayes to pardon Ezra Heywood. It failed to secure similar exoneration for D. M. Bennett, however, or to achieve its goal of overturning the Comstock Act. The NDA consistently assisted sex radicals and freethinkers, famous and otherwise, from Ida Craddock to the Kansas freethinker John B...