March 3, 1930.
Appeal from the District Court of the United States for the Eastern District of New York.
Mary W. Dennett was convicted of mailing obscene matter in contravention of section 211 of the United States Criminal Code (18 USCA § 334), and she appeals.
The statute under which the defendant was convicted reads as follows: "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 producing abortion, or for any indecent or immoral use; * * * is hereby declared to be nonmailable 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 nonmailable, or shall knowingly take, or cause the same to be taken, from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000, or imprisoned not more than five years, or both."
The defendant is the mother of two boys. When they had reached the respective ages of eleven and fourteen, she concluded that she ought to teach them about the sex side of life. After examining about sixty publications on the subject and forming the opinion that they were inadequate and unsatisfactory, she wrote the pamphlet entitled "Sex Side of Life," for the mailing of which she was afterwards indicted.
The defendant allowed some of her friends, both parents and young people, to read the manuscript which she had written for her own children, and it finally came to the notice of the owner of the Medical Review of Reviews, who asked if he might read it and afterwards published it. About a year afterwards she published the article herself at twenty-five cents a copy when sold singly, and at lower prices when ordered in quantities. Twenty-five thousand of the pamphlets seem to have been distributed in this way.
At the trial, the defendant sought to prove the cost of publication in order to show that there could have been no motive of gain on her part. She also offered to prove that she had received orders from the Union Theological Seminary, Young Men's Christian Association, the Young Women's Christian Association, the Public Health Departments of the various states and from no less than four hundred welfare and religious organizations, as well as from clergymen, college professors, and doctors, and that the pamphlet was in use in the public schools at Bronxville, N Y The foregoing offers were rejected on the ground that the defendant's motive in distributing the pamphlet was irrelevant, and that the only issues were whether she caused the pamphlet to be mailed and whether it was obscene.
The pamphlet begins with a so-called "Introduction for Elders" which sets forth the general views of the writer and is as follows:
"In reading several dozen books on sex matters for the young with a view to selecting the best for my own children, I found none that I was willing to put into their hands, without first guarding them against what I considered very misleading and harmful impressions, which they would otherwise be sure to acquire in reading them. That is the excuse for this article.
"It is far more specific than most sex information written for young people. I believe we owe it to children to be specific if we talk about the subject at all.
"From a careful observation of youthful curiosity and a very vivid recollection of my own childhood, I have tried to explain frankly the points about which there is the greatest inquiry. These points are not frankly or clearly explained in most sex literature. They are avoided, partly from embarrassment, but more, apparently, because those who have undertaken to instruct the children are not really clear in their own minds as to the proper status of the sex relation.
"I found that from the physiological point of view, the question was handled with limitations and reservations. From the point of natural science it was often handled with sentimentality, the child being led from a semi-esthetic study of the reproduction of flowers and animals to the acceptance of a similar idea for human beings. From the moral point of view it was handled least satisfactorily of all, the child being given a jumble of conflicting ideas, with no means of correlating them — fear of venereal disease, one's duty to suppress `animal passion,' the sacredness of marriage, and so forth. And from the emotional point of view, the subject was not handled at all.
"This one omission seems to me to be the key to the whole situation, and it is the basis of the radical departure I have made from the precedents in most sex literature for children.
"Concerning all four points of view just mentioned, there are certain departures from the traditional method that have seemed to me worth making.
"On the physiological side I have given, as far as possible, the proper terminology for the sex organs and functions. Children have had to read the expurgated literature which has been specially prepared for them in poetic or colloquial terms, and then are needlessly mystified when they hear things called by their real names.
"On the side of natural science, I have emphasized our unlikeness to the plants and animals rather than our likeness, for while the points we have in common with the lower orders make an interesting section in our general education, it is knowing about the vital points in which we differ that helps us to solve the sexual problems of maturity; and the child needs that knowledge precisely as he needs knowledge of everything which will fortify him for wise decisions when he is grown.
"On the moral side, I have tried to avoid confusion and dogmatism in the following ways: by eliminating fear of venereal disease as an appeal for strictly limited sex relations, stating candidly that venereal disease is becoming curable; by barring out all mention of `brute' or `animal' passion, terms frequently used in pleas for chastity and self control, as such talk is an aspersion on the brute and has done children much harm in giving them the impression that there is an essential baseness in the sex relation; by inviting the inference that marriage is `sacred' by virtue of its being a reflection of human ideality rather than because it is a legalized institution.
"Unquestionably the stress which most writers have laid upon the beauty of nature's plans for perpetuating the plant and animal species, and the effort to have the child carry over into human life some sense of that beauty has come from a most commendable instinct to protect the child from the natural shock of the revelation of so much that is unesthetic and revolting in human sex life. The nearness of the sex organs to the excretory organs, the pain and messiness of childbirth are elements which certainly need some compensating antidote to prevent their making too disagreeable and disproportionate an impress on the child's mind.
"The results are doubtless good as far as they go, but they do not go nearly far enough. What else is there to call upon to help out? Why, the one thing which has been persistently neglected by practically all the sex writers, — the emotional side of sex experience. Parents and teachers have been afraid of it and distrustful of it. In not a single one of all the books for young people that I have thus far read has there been the frank unashamed declaration that the climax of sex emotion is an unsurpassed joy, something which rightly belongs to every normal human being, a joy to be proudly and serenely experienced. Instead there has been all too evident an inference that sex emotion is a thing to be ashamed of, that yielding to it is indulgence which must be curbed as much as possible, that all thought and understanding of it must be rigorously postponed, at any rate till after marriage.
"We give to young folks, in their general education, as much as they can grasp of science and ethics and art, and yet in their sex education, which rightly has to do with all of these, we have said, `Give them only the bare physiological facts, lest they be prematurely stimulated.' Others of us, realizing that the bare physiological facts are shocking to many a sensitive child, and must somehow be softened with something pleasant, have said, `Give them the facts, yes, but see to it that they are so related to the wonders of evolution and the beauties of the natural world that the shock is minimized.' But none of us has yet dared to say, `Yes, give them the facts, give them the nature study, too, but also give them some conception of sex life as a vivifying joy, as a vital art, as a thing to be studied and developed with reverence for its big meaning, with understanding of its far-reaching reactions, psychologically and spiritually, with temperant restraint, good taste and the highest idealism.' We have contented ourselves by assuming that marriage makes sex relations respectable. We have not yet said that it is only beautiful sex relations that can make marriage lovely.
"Young people are just as capable of being guided and inspired in their thought about sex emotion as in their taste and ideals in literature and ethics, and just as they imperatively need to have their general taste and ideals cultivated as a preparation for mature life, so do they need to have some understanding of the marvelous place which sex emotion has in life.
"Only such an understanding can be counted on to give them the self control that is born of knowledge, not fear, the reverence that will prevent premature or trivial connections, the good taste and finesse that will make their sex life when they reach maturity a vitalizing success."
After the foregoing introduction comes the part devoted to sex instruction entitled, "An Explanation for Young People." It proceeds to explain sex life in detail both physiologically and emotionally. It describes the sex organs and their operation and the way children are begotten and born. It negatives the idea that the sex impulse is in itself a base passion, and treats it as normal and its satisfaction as a great and justifiable joy when accompanied by love between two human beings. It warns against perversion, venereal disease, and prostitution, and argues for continence and healthy mindedness and against promiscuous sex relations.
The pamphlet in discussing the emotional side of the human sex relation, says:
"It means that a man and a woman feel that they belong to each other in a way that they belong to no one else; it makes them wonderfully happy to be together; they find they want to live together, work together, play together, and to have children together, that is, to marry each other; and their dream is to be happy together all their lives. * * * The idea of sex relations between people who do not love each other, who do not feel any sense of belonging to each other, will always be revolting to highly developed sensitive people."
"People's lives grow finer and their characters better, if they have sex relations only with those they love. And those who make the wretched mistake of yielding to the sex impulse alone when there is no love to go with it, usually live to despise themselves for their weakness and their bad taste. They are always ashamed of doing it, and they try to keep it secret from their families and those they respect. You can be sure that whatever people are ashamed to do is something that can never bring them real happiness. It is true that one's sex relations are the most personal and private matters in the world, and they belong just to us and to no one else, but while we may be shy and reserved about them, we are not ashamed.
"When two people really love each other, they don't care who knows it. They are proud of their happiness. But no man is ever proud of his connection with a prostitute and no prostitute is ever proud of her business.
"Sex relations belong to love, and love is never a business. Love is the nicest thing in the world, but it can't be bought. And the sex side of it is the biggest and most important side of it, so it is the one side of us that we must be absolutely sure to keep in good order and perfect health, if we are going to be happy ourselves or make any one else happy."
The government proved that the pamphlet was mailed to Mrs. C.A. Miles, Grottoes, Va.
Upon the foregoing record, of which we have given a summary, the trial judge charged the jury that the motive of the defendant in mailing the pamphlet was immaterial, that it was for them to determine whether it was obscene, lewd, or lascivious within the meaning of the statute, and that the test was "whether its language has a tendency to deprave and corrupt the morals of those whose minds are open to such things and into whose hands it may fall; arousing and implanting in such minds lewd and obscene thought or desires."
The court also charged that, "even if the matter sought to be shown in the pamphlet complained of were true, that fact would be immaterial, if the statements of such facts were calculated to deprave the morals of the readers by inciting sexual desires and libidinous thoughts."
The jury returned a verdict of guilty upon which the defendant was sentenced to pay a fine of $300, and from the judgment of conviction she has taken this appeal.
Greenbaum, Wolff Ernst, of New York City (Morris L. Ernst, Newman Levy, and Alexander Lindey, all of New York City, of counsel), for appellant.
Howard W. Ameli, U.S. Atty., of Brooklyn, N.Y. (Herbert H. Kellogg, James E. Wilkinson, and Emanuel Bublick, Asst. U.S. Attys., all of Brooklyn, N.Y., of counsel), for the United States.
Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
It is doubtless true that the personal motive of the defendant in distributing her pamphlet could have no bearing on the question whether she violated the law. Her own belief that a really obscene pamphlet would pay the price for its obscenity by means of intrinsic merits would leave her as much as ever under the ban of the statute. Regina v. Hicklin, L.R. 3 Q.B. 360; United States v. Bennett, Fed. Case No. 14,571; Rosen v. United States, 161 U.S. at page 41, 16 S. Ct. 434, 480, 40 L. Ed. 606.
It was perhaps proper to exclude the evidence offered by the defendant as to the persons to whom the pamphlet was sold, for the reason that such evidence, if relevant at all, was part of the government's proof. In other words, a publication might be distributed among doctors or nurses or adults in cases where the distribution among small children could not be justified. The fact that the latter might obtain it accidently or surreptitiously, as they might see some medical books which would not be desirable for them to read, would hardly be sufficient to bar a publication otherwise proper. Here the pamphlet appears to have been mailed to a married woman. The tract may fairly be said to be calculated to aid parents in the instruction of their children in sex matters. As the record stands, it is a reasonable inference that the pamphlet was to be given to children at the discretion of adults and to be distributed through agencies that had the real welfare of the adolescent in view. There is no reason to suppose that it was to be broadcast among children who would have no capacity to understand its general significance. Even the court in Regina v. Hicklin, L.R. 3 Q.B. at p. 367, which laid down a more strict rule than the New York Court of Appeals was inclined to adopt in People v. Eastman, 188 N.Y. 478, 81 N.E. 459, 11 Ann. Cas. 302, said that "the circumstances of the publication" may determine whether the statute has been violated.
But the important consideration in this case is not the correctness of the rulings of the trial judge as to the admissibility of evidence, but the meaning and scope of those words of the statute which prohibit the mailing of an "obscene, lewd or lascivious * * * pamphlet." It was for the trial court to determine whether the pamphlet could reasonably be thought to be of such a character before submitting any question of the violation of the statute to the jury. Knowles v. United States (C.C.A.) 170 F. 409; Magon v. United States (C.C.A.) 248 F. 201. And the test most frequently laid down seems to have been whether it would tend to deprave the morals of those into whose hands the publication might fall by suggesting lewd thoughts and exciting sensual desires. Dunlop v. United States, 165 U.S. at page 501, 17 S. Ct. 375, 41 L. Ed. 799; Rosen v. United States, 161 U.S. 29, 16 S. Ct. 434, 480, 40 L. Ed. 606.
It may be assumed that any article dealing with the sex side of life and explaining the functions of the sex organs is capable in some circumstances of arousing lust. The sex impulses are present in every one, and without doubt cause much of the weal and woe of human kind. But it can hardly be said that, because of the risk of arousing sex impulses, there should be no instruction of the young in sex matters, and that the risk of imparting instruction outweighs the disadvantages of leaving them to grope about in mystery and morbid curiosity and of requiring them to secure such information, as they may be able to obtain, from ill-informed and often foul-minded companions, rather than from intelligent and high-minded sources. It may be argued that suggestion plays a large part in such matters, and that on the whole the less sex questions are dwelt upon the better. But it by no means follows that such a desideratum is attained by leaving adolescents in a state of inevitable curiosity, satisfied only by the casual gossip of ignorant playmates.
The old theory that information about sex matters should be left to chance has greatly changed, and, while there is still a difference of opinion as to just the kind of instruction which ought to be given, it is commonly thought in these days that much was lacking in the old mystery and reticence. This is evident from the current literature on the subject, particularly such pamphlets as "Sex Education," issued by the Treasury Department United States Public Health Service in 1927.
The statute we have to construe was never thought to bar from the mails everything which might stimulate sex impulses. If so, much chaste poetry and fiction, as well as many useful medical works would be under the ban. Like everything else, this law must be construed reasonably with a view to the general objects aimed at. While there can be no doubt about its constitutionality, it must not be assumed to have been designed to interfere with serious instruction regarding sex matters unless the terms in which the information is conveyed are clearly indecent.
We have been referred to no decision where a truthful exposition of the sex side of life, evidently calculated for instruction and for the explanation of relevant facts, has been held to be obscene. In Dysart v. United States, 272 U.S. 655, 47 S. Ct. 234, 71 L. Ed. 461, it was decided that the advertisement of a lying-in retreat to enable unmarried women to conceal their missteps, even though written in a coarse and vulgar style, did not fall within prohibition of the statute, and was not "obscene" within the meaning of the law.
The defendant's discussion of the phenomena of sex is written with sincerity of feeling and with an idealization of the marriage relation and sex emotions. We think it tends to rationalize and dignify such emotions rather than to arouse lust. While it may be thought by some that portions of the tract go into unnecessary details that would better have been omitted, it may be fairly answered that the curiosity of many adolescents would not be satisfied without full explanation, and that no more than that is really given. It also may reasonably be thought that accurate information, rather than mystery and curiosity, is better in the long run and is less likely to occasion lascivious thoughts than ignorance and anxiety. Perhaps instruction other than that which the defendant suggests would be better. That is a matter as to which there is bound to be a wide difference of opinion, but, irrespective of this, we hold that an accurate exposition of the relevant facts of the sex side of life in decent language and in manifestly serious and disinterested spirit cannot ordinarily be regarded as obscene. Any incidental tendency to arouse sex impulses which such a pamphlet may perhaps have is apart from and subordinate to its main effect. The tendency can only exist in so far as it is inherent in any sex instruction, and it would seem to be outweighed by the elimination of ignorance, curiosity, and morbid fear. The direct aim and the net result is to promote understanding and self-control.
No case was made for submission to the jury, and the judgment must therefore be reversed.