Sexual Speech

AuthorRuthann Robson
Robson The First Amendment
This chapter begins by exploring the categorical exclusion of obscenity
from protected speech and the struggle for a definition of obscenity. It
then considers the problem of privacy and the doctrine of secondary
effects. The issue of child protection regarding obscenity, regulated
media, and the internet is the subject of the third section. The final
section considers attempts to extend obscenity doctrine to other types of
Chapter Outline
I. Defining Obscenity
II. Privacy and Pornography
III. Secondary Effects
IV. Children, Regulated Media, and the Internet Age
V. The Limits of Obscenity and the Categorical Approach?
Robson The First Amendment
161 U.S. 29 (1896)
The plaintiff in error was indicted under section 3893 of the Revised Statutes,
providing that 'every obscene, lewd, or lascivious book, pamphlet, picture,
paper, writing, print, or other publication of an indecent character, . . . and
every article or thing intended or adapted for any indecent or immoral use, and
every written or printed card, circular, book, pamphlet, advertisement, or notice
of any kind giving information, directly or indirectly, where or how, or of whom,
or by what means, any of the hereinbefore mentioned matters, articies, or
things may be obtained or made, . . . are hereby declared to be nonmailable
matter, and shall not be conveyed in the mails, nor delivered from any post
office nor by any letter carrier; and any person who shall knowingly deposit, or
cause to be deposited, for mailing or delivery, anything declared by this section
to be non-mailable matter, and any person who shall knowingly take the same,
or cause the same to be taken, from the mails, for the purpose of circulating, or
disposing of, or of aiding in the circulation or disposition of the same, shall be
deemed guilty of a misdemeanor, and shall for each and every offense be fined
not less than one hundred dollars nor more than five thousand dollars, or
imprisoned at hard labor not less than one year nor more than ten years, or
both, at the discretion of the court. . . . [ellipses in original]
The defendant pleaded not guilty, and the trial was entered upon without
objection in any form to the indictment as not sufficiently informing the
defendant of the nature of the charge against him.
A verdict of guilty having been returned, the accused moved for a new trial,
upon the ground, among others, that the indictment was fatally defective in
matters of substance. That motion was denied.
The defendant thereupon moved in arrest of judgment, upon the ground that
the indictment did not charge that he knew at the time what were the contents
of the paper deposited in the mail, and alleged to be lewd, obscene, and
lascivious. This motion was also denied, and the accused was sentenced to
imprisonment at hard labor during a period of 13 months, and to pay a fine of
one dollar.
The paper 'Broadway,' referred to in the indictment, was produced in evidence,
first, by the United States, and afterwards by the accused. The copy read in
evidence by the government was the one which, it was admitted at the trial, the
defendant had caused to be deposited in the mail. The pictures of females
appearing in that copy were, by direction of the defendant, partially covered
with lamp black, that could be easily erased with a piece of bread. The object of
sending them out in that condition was, of course, to excite a curiosity to know
what was thus concealed. The accused read in evidence a copy that he
Robson The First Amendment
characterized as a 'clean' one, and in which the pictures of females, in different
attitudes of indecency, were not obscured by lamp black.
*** The indictment charged that the accused, on the 24th day of April, 1893,
within the Southern district of New York, 'did unlawfully, willfully, and
knowingly deposit and cause to be deposited in the post office of the city of New
York, for mailing and delivery by the post-office establishment of the United
States, a certain obscene, lewd, and lascivious paper, which said paper then
and there, on the first page thereof, was entitled 'Tenderloin Number,
Broadway,' and on the same page were printed the words and figures following,
that is to say: 'Volume II, number 27; trade-mark, 1892; by Lew Rosen; New
York, Saturday, April 15, 1893; ten cents a copy, $4.00 a year in advance;' and
thereupon, on the same page, is the picture of a cab, horse, driver, and the
figure of a female, together (underneath the said picture) with the word
'Tenderloineuse'; and the said paper consists of twelve pages, minute
description of which, with the pictures therein and thereon, would be offensive
to the court, and improper to spread upon the records of the court, because of
their obscene, lewd, and indecent matters; and the said paper, on the said
twenty-fourth day of April, in the year one thousand eight hundred and ninety-
three, was inclosed in a wrapper, and addressed as follows, that is to say: 'Mr.
Geo. Edwards, P. O. box 510, Summit, N. J.,'against the peace of the United
States and their dignity, and contrary to the statute of the United States in
such case made and provided.'
*** It is also assigned for error that the court left it to the jury to say whether
the paper in question was obscene, when it was for the court, as a matter of law,
to determine that question. If the court had instructed the jury as matter of law
that the paper described in the indictment was obscene, lewd, and lascivious,
no error would have been committed; for the paper itself was in evidence, it was
of the class excluded from the mails, and there was no dispute as to its
contents. It has long been the settled doctrine of this court that the evidence
before the jury, if clear and uncontradicted upon any issue made by the parties,
presented a question of law in respect of which the court could, without
usurping the functions of the jury, instruct them as to the principles applicable
to the case made by such evidence. Even if we should hold that the court ought
to have instructed the jury, as matter of law, that the paper was, within the
meaning of the statute, obscene, lewd, and lascivious, it would not follow that
the judgment should, for that reason, be reversed, because it is clear that no
injury came to the defendant by submitting the question of the character of the
paper to the jury. But it is proper to add that it was competent for the court
below, in its discretion, and even if it had been inclined to regard the paper as
obscene, lewd, and lascivious, to submit to the jury the general question of the
nature of the paper, accompanied by instructions indicating the principles or
rules by which they should be guided in determining what was an obscene,
lewd, or lascivious paper within the contemplation of the statute under which
the indictment was framed. That was what the court did when it charged the
jury that 'the test of obscenity is whether the tendency of the matter is to
deprave and corrupt the morals of those whose minds are open to such
influence, and into whose hands a publication of this sort may fall.' 'Would it,'
the court said, 'suggest or convey lewd thoughts and lascivious thoughts to the
young and inexperienced?' In view of the character of the paper, as an

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