The Catholic Lawyer

Volume 7 Number 4 Volume 7, Autumn 1961, Number 4 Article 11

Federal : in the

Joseph B. Breen

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FEDERAL CENSORSHIP: OBSCENITY IN THE MAIL by James C. N. Paul and Murray L. Schwartz The Free Press of Glencoe, Inc., New York, 1961. Pp. 358. $7.50.

Reviewed by JOSEPH B. BREEN*

The authors of this latest book on ob- open to immoral influence and into whose scenity have done their homework well and hands the questionable matter might fall) no one can gainsay that they display a is explained as made by the circuit court thorough knowledge of the statutes and the in the celebrated Ulysses case, which cases. The genesis of the anti-obscenity laws formulates the test that if the dominant is found by them in Anglo-American tra- effect of a book of recognized literary merit, dition, is observed crossing the Atlantic, taken as a whole, was not the promotion of and is developed from Milton (hardly a lust in normal adults there would be no purist) through Summerfield (hardly a federal confiscation. poet). The crusades against smut and the Emerging as the villain of the book is crusades against the crusades are narrated the hapless postal official saddled with car- at length and are festooned with liberal rying out the prohibitions and sanctions of judges, perplexed lawyers, bigoted bureau- the Comstock Act. Confiscation of non- crats, narrow minded legislators, perse- mailable matter is highlighted in its abuses. cuted and misunderstood authors and a The unlettered letter carrier is scorned for sickening array of photographers, traf- his lack of sophistication and for his stodgy, fickers and assorted low lifes, many of dull and often vindictive pursuit of his role whom are bolstered by unseemly alle- as censor. His ignoble weapons, viz., revo- giances. cation of second class mailing privileges The authors, at the outset, delineate the (39 U.S.C. § 4354) and mail blocking (39 evolution of the current legal definition of U.S.C. §§ 259, 4007) are denounced as obscenity. Its vagueness is assayed, graphi- abuses of postal police power as case cally demonstrated and denounced, and the after case is "unveiled." General dangers of subjectiveness and relativity with Summerfield emerges as a strong rival for regard thereto are exposed. The necessary the pedestal of ignominy primarily reserved limitation of the Hicklin case (the test for Anthony Comstock (undefeated cham- there being whether the tendency is to cor- pion, enemy of the sentient man). Summer- rupt and deprave those whose minds are field's lieutenants, the postal lawyers and administrators, are not as heavy but are generally depicted as narrow and incom- * Member of the New York Bar. petent. BOOK REVIEWS

On a broader level, the very real and dif- ship represented enough of the people per- ficult problem of administrative tribunals haps it would effect its end. In the absence is cogently explained, but the dilemma, of this, let us assume that in this democracy posed by foresaking intradepartmental ad- the majority feel censorship is here to stay. judication with its relative effectiveness in It becomes necessary, therefore, to measure favor of the ponderous, time consuming censorship against the Constitution of the and less pragmatic recourse to the federal and to listen to what the courts, is not answered. Supreme Court has to say. Despite the Messrs. Paul and Schwartz combine, fact that recent decisions of this Court have however, to do a fine job of highlighting upheld censorship in specific instances, the the weaknesses of the Comstock Act and authors still are of the opinion that there of the instrumentalities of this somewhat is a bench aching to find postal censorship imperfect law. The panderer need only in- unconstitutional. crease his price so as to mail first class and The authors do endorse legal sanctions he has skirted the main problem of con- to prohibit assaulting people with obscenity fiscation. While the employees (granting that one should be free to take it might be rigorously confiscating packs of or leave it alone), knowingly circulating pornographic paperbacks, the druggist obscenity to adolescents or abnormal audi- across the street could be selling the same ences, and the reckless commercial ex- book to any high school girl who stops for ploitation of obscenity. They do not a soda on the way to her baby-sitting as- advocate complete abandonment of federal signment. Finally, the United States At- controls. "[T] he sovereignty of the United torneys sometimes refuse to take cases to States government should be concerned court under the Comstock Act because a only with cases involving substantial use conviction is so hard to come by. of the (to the exclusion of other On the other hand, the authors object means) and operations otherwise beyond to the right of the Post Office to make the convenient reach of local authorities." 1 determinations of obscenity and to confis- Commendations are in order on a cate what is so determined. The legislature thorough exposition of the problems in- nevertheless thinks this necessary. Although volved in framing, implementing and en- one will agree that neither is the optimum, forcing anti-obscenity laws. The book is still it does appear that the Congress of the result of extensive research, is well the United States has decided it would be documented and, this writer would say better to allow room for some abuses of rather scholarly, were it not for his aversion the individual's right to complete freedom to, and the authors' penchant for, editorial- of access rather than to open the floodgate izing the facts and taking sides. Certainly, of licentiousness upon certain classes of when it becomes apparent that arguments citizens deserving of protection. By and which favor the abolition of all censorship large the nation isn't up in arms crying for also result inevitably in the championing the repeal of the Comstock Act. If the of the clandestine panderer (who mails las- "pressure group" (a recurrent phrase used civious words and lewd nudes to greedy by the authors with reference to backers of 1 PAUL & SCHWARTZ, FEDERAL CENSORSHIP: OB- censorship) seeking relaxation of censor- SCENITY IN THE MAIL 222-23 (1961). 7 CATHOLIC LAWYER, AUTUMN 1961

perverts and aching adolescents) it then the standards, and to assure that freedom to becomes difficult to share the views of the publish cannot be impetuously limited from authors. It is evident from the writing of time to time by the power of government acting on the prejudices of articulate pres- Messrs. Paul and Schwartz that neither 3 sure groups. of them believes in original sin. They trust that natura vulnerata is capable of self- The authors also charge that obscenity protection. That a single act of the will regulation is "the product of intuitive im- without more was the cause of Calvary pulses and imprecise assumptions .... The would be regarded as immaterial by them. notion that distribution of this kind of A disregard of this position by the authors human expression results in tangible harm on the ground that law must serve a plural to those exposed is probably supported by less 'verifiable' information than are most society partially explains why the writer '4 finds it impossible to come to the same legislative assumptions." conclusion in the premises as that advo- While it must be conceded that the law's cated in this book. present machinery is imperfect and that The authors' end of the telescope can be abuses and inequities abound, this writer appraised in the chapter "Why Do We must still submit that the law does not Suppress Obscene Publications?" In ques- deserve to be chipped away or confined tioning that obscenity laws are necessary to and restricted as urged. Reformation is prevent sexual misbehavior of impression- needed. The definitions should be made able youths, the authors state: "The more definite. The administrative censor- danger, if any, to youth is too often cited ship should be regulated with more work- as the justification for new restrictions on ab.c standards. Censorship should be the freedom of adults."'2 The authors do not clarified and improved but not weakened. take seriously the danger of obscenity on The purpose of this review is not to suggest the minds, no less the souls, of youth, nor the necessary reforms. This writer cannot on the impulsive activities of perverts. presume to be capable of the necessary There is a deep popular intuition here, constructive analysis. It would, however, unrefined as it is, and popular intuitions of be most unfortunate if the book reviewed such strength are not to be ignored. remained the last word on the peculiarly Perhaps if the negative were ultimately current problem of obscenity censorship, proved.., repeal ... would be possible.... which is as timeless as sin itself. The direction of change must be to evalu- ate particular techniques of control, to refine 3 Id. at 204. 2 Id. at 197. 4 Id. at 240.