VII

SUMMATION OF CONDITIONS

N

OT even the most graphic pen could fittingly describe the shockingly obscene prints and pictures which deluge New York City and state. In one way only can an adequate conception of their demoralizing depravity be obtained-that is through seeing and reading them. Extracts of the viler parts may not be presented here because of their shocking indecency. Before the writer now is a sample of this "free expression" from one of the latest books. It is simply horrifying. No newspaper dare print it. Money could not buy space in the advertising columns for it. Yet the book itself probably will be advertised by title in all the newspapers and commended to their readers by the literary reviewers, as have been similar books since the flood of obscene writings began to pour upon the country in the wake of the World War.

Should the Federal authorities bring before the Federal courts any one using the mails for these publications, or sending them across state lines, or importing them, he would promptly find himself behind prison bars. They could not be circulated in any other country in the world whose institu

tions are of Anglo-Saxon origin. England, Canada, Australia, New Zealand, all suppress them with iron hand. Even in India fine and imprisonment await the publisher who dares to put such prints in circulation. Only the other day the writer saw a court decision of that far-off country upholding a conviction of a distributor of an obscene book which from the description contained in the judicial reports was innocuous compared to some of the books, magazines and fugitive prints which freely circulate in this state, some of them with express judicial sanction. Before the writer lies the statute of Hawaii, our island territory of the mid-Pacific, which prohibits obscene prints and provides punishment for their publication. Porto Rico and the Philippines have similar laws as has of course every state in the Union, except, possibly New Mexico.

Now" free expression " of the putrid thought of the sensualist in print and picture enjoys impunity in the city and state of New York. The libidinous writer has become the teacher of youth who is undoing the work of parents, church and school, all striving to keep the rising generation in the pathway of clean living and moral rectitude. His employer and paymaster is the conscienceless publisher who exploits for unholy profit the libertine's miasmatic emanations.

Yet no state or country has tried harder than New York, through legislative enactment, to suppress published indecency. Its distribution was a

crime in this state during the colonial period under the common law of England. For centuries it had been punished as a crime in that country and about half a century ago the common law was strengthened by a drastic statute of the realm providing for the summary confiscation and destruction of obscene prints wherever found.

The common law was taken over as the law of this state upon our separation from England and was codified by an act of the legislature in 1868. From that date successive legislatures have amended the old act making it stronger and more effective from time to time until it was finally incorporated into the present Penal Law in 1909. The state in 1873 took special pains to provide for the full enforcement of this ancient law when it passed a special act of the legislature incorporating the New York Society for the Suppression of Vice and designating it a state agency for the enforcement of the laws against immoral prints.

The obscenity statute as it now stands is Section 1141 of the Penal Law. It is the most carefully worded and comprehensive of all the statutes designed to prohibit printed obscenity. In brief it declares the distribution or exhibition of any

obscene, lewd, lascivious, filthy, indecent or disgusting" publication, picture or object, or the advertising of them in any manner, a crime with the special penalty of not less than ten days nor more than one year's imprisonment, or a fine of not less

than fifty nor more than one thousand dollars, or both the fine and imprisonment. The anti-obscenity statutes of thirty-three other states have been modeled upon the New York law.

Yet that law is practically dead to-day, killed by judicial decrees of the lower courts before which it has come for interpretation, and that too in face of a unanimous decision of the Court of Appeals which, in 1884 in the case of People v. Muller, construed the law and gave to it and every part of it full force and effect. The death-blow was struck in a decision by the Appellate Division of the First Department. It is obviously impracticable here to go into the legal questions involved. But the plain fact is that the Court of Appeals case of People v. Eastman upon which the majority of the Appellate Division based their opinion reversing a conviction furnished no authority whatever for their destructive decision. Furthermore, that decision in effect squarely reversed the unanimous decision of the Court of Appeals in People v. Muller.

What is to be done about it has been exhaustively studied and considered with exceeding care by the Clean Books League, organized to devise some remedy for the intolerable conditions. It discovered that the accumulated experience and wisdom of the ages have been able to devise no way of successfully combating the evil except by criminal prosecution. That naturally led to the

conclusion that the only remedy for New York's lamentable state was to rebuild the anti-obscenity statute to its old time effectiveness.

It found Federal anti-obscenity statutes were in successful operation all over this country in cases where the Federal courts had jurisdiction. One statute excludes obscene, lewd, lascivious, indecent and filthy prints, pictures and objects from the mails, the others bar them from interstate commerce and from importation under penalties in all cases five times heavier than those imposed by the New York statute. A multitude of decisions have been made by the courts of the United States construing the very words of the New York statute which are found in the corresponding Federal statutes. Those decisions follow the lines of our old Court of Appeals decision in People v. Muller by giving force and effect to every word of the law and thus effectively enforcing it.

The League took the common sense course of undertaking the amendment of the statute in such manner as to overcome the destructive decisions of New York's lower courts and replacing them by the sound principles of construction recognized all over the United States by the Federal courts as well as by the Court of Appeals. That was all the Clean Books League Bill proposed to do and all that it contemplates doing. Give us the construction and procedure of the Federal courts and the foul stream of depravity now debauching the