Preventive Censorship

...Yet it is a forced analogy which would assimilate an injunction to, say, an antitoxin...

...In New York, hundreds of obscene performances occurred...

...Others, with Spinoza, identifying the rights of the sovereign with his actual ability to impose his will on his subjects, urge that the state cannot suppress iniquity of this sort, and will only succeed in making a mockery of itself if it attempt to do so...

...In New York, the guilty were punished by due process of law...

...The inevitable discussion of sovereignty, its rights and its capacities is, of course, implicit in most of what has been written and said on the subject...

...in Boston, hundreds of obscene books were sold...

...Unlike other business men, they entered into a special arrangement by which their transactions could be carried on under an indirect guaranty of legality from a functionary who possessed no legal authority to give direct guaranties of that sort...

...Indictments are found, arrests made, and the case comes to trial, one supposes, before an ordinary jury...

...In the second case, he enjoys that right...

...There is nothing to prevent an actual publication or production...

...He knows at once whether he thinks it so, and what he and his brothers think is preeminently the fact as to its obscenity vel non...

...Within the past few weeks we have witnessed two examples of widely different kinds of action by which organs of government have attempted to deal with this problem...

...Advocates of censorship will, of course, urge that if books and plays were submitted in advance of publication to some functionary to receive his approval, all wrong-doing would be avoided...

...Public money would be expended in order that a special class of commercial activity might enjoy immunity from interference...

...Some of our states have in this wise established commissions to which would-be players at hide-and-seek with the blue-sky laws must repair to receive their sovereign's assurance that their latest scheme will not get them into trouble...

...One is more afraid of the immediate effect of outraged official dignity than of the remoter effect of the judgment of the community as expressed by the verdict of twelve fellow-citizens...

...And shall it be said of the law, which claims to be the perfection of reason and to express the highest thought of the day that it no longer aims to prevent the wrong, but limits its action to the matter of punishment...

...Justice Brewer defended the use of the injunction by drawing an analogy between law and medicine...

...Meanwhile, the-desire to impress citizens with the danger of imminent and arbitrary penalty in the name of preventive jurisprudence can too easily, as with both procedure by injunction and censorship, strip them of the rudimentary right of having the actuality of their offense determined, not by this functionary or that, but by the sense of the community...

...In the course of an address delivered in Brooklyn a number of years ago, Mr...

...So also of censorship, for if, through negligence or favor, actually obscene works receive the censor's approval, their publishers are immune...

...They will contend that all works to be put on the public market should have the fiat of chief of police, district attorney or board of censorship, and that under such conditions both the legal incongruity of the Boston case and the material damage of the New York case would be avoided...

...A fair sample of the community is taken in the jury, and through its juries the community exercises its prerogative...

...Armed with the commission's sanction, nay, using the commission's sanction as an argument, they proceed to float their problematical stocks at the gullible public's expense, the public, by reason of the commission's decree, being stripped of remedy even if the project is in fact fraudulent...

...Even if it be conceded that the fear of arbitrary authority is greater than that of the opinion of one's neighbors, that, therefore, less obscenity would actually be emitted under censorship, are we not allowing a dubiously tenable theory of preventive jurisprudence to upset the fundamental conceptions of law by which our commonwealth is held together...

...The shoe is now on the other foot...

...The performances of this play had mounted into the hundreds without interference...

...The law can never be preventive in the sense that medicine is preventive...

...For if we assume that the state has the right, the duty and the power of legislating against public obscenity of all sorts, there still remains the problem of the form which that legislation must take if it is to accord with those fundamental principles of justice whereby, as Saint Augustine would have it, a commonwealth is distinguished from a great robber band...

...To the community by immemorial tradition has been reserved the prerogative of determining the facts alleged to be criminal: did these things occur or did they not occur...

...Complaint having been ultimately lodged, the law took its course, and, above all, the facts as to the questionable obscenity were found, not by this functionary or that...

...Such issues belong rather to political philosophy than to juridical science...

...There was no "suppression" in advance...

...It seems impossible to doubt, as between these actual cases, that what happened in New York is in accordance with justice, and that what happened in Boston is not...

...The public authorities were not called upon by private business men for free legal advice...

...The injunction, therefore, is only more intimidating...

...The defendant need not even present the play to the jury...

...The show was produced at the risk of the producers...

...He said: The best thought of the day is along the lines of prevention rather than those of cure...

...Are we justified, furthermore, in supposing that the anomalous situation in Boston would be henceforth avoided under formal statutes establishing a censor...

...To take away the equitable power of restraining wrong is a step backward toward barbarism rather than a step forward toward a higher civilization...

...but in accord with American legal tradition by the sense of the community in the fair sample called a jury...

...The offense can actually be committed in defiance of court order as readily as it can be committed in defiance of the general statute...

...Only incidentally, in that the very provision of penalties deters those who might otherwise act wrongfully, can the law possibly be considered preventive...

...Curiously enough, although the chief of police is supposed to arrest misdemeanants, and the district attorney to prosecute them, and althoijgh many hundreds of copies of books which both these functionaries publicly acknowledged to be illegal must have been sold, no arrests have been made and no prosecutions instituted in respect of the guilty sales which preceded their decrees...

...Such are some of the needless legal complications, the dangerous abrogations of the principles fundamental to our commonwealth, into which the consequences of any theory of preventive jurisprudence tend to lead us...

...A private citizen is outraged by an indecent play and complains...

...In Boston, booksellers seem to enjoy the singular privilege of using a public officer as their private attorney...

...The juryman is presented with the text or the dramatic action alleged to be obscene...

...They will put their argument upon all fours with that of the school of preventive jurisprudence which holds that the first purpose of law is to prevent wrong rather than to punish it, or remedy it...

...THE widely debated question of how by law to cleanse popular literature and the theatre of their present obscene tendencies has been considered principally from points of view other than wholly juristic...

...It seems, then, that Webster's reputed view of the danger to liberty implicit in the use of the injunction is correct, that, in fact, the theory of preventive jurisprudence upon which its use rests might easily become a mainstay of tyranny...

...Further, it is hard to conceive of a case involving a finding of fact in which a jury, as fair sample of the community, is better qualified to find both objective and legal fact, than precisely that of an obscene publication or performance...

...The offense having been committed, the law takes its course...

...Some tell us, for example, that control of these matters is beyond the right of political authority, since the safety of the state is not involved in the degree of purity of its members' thoughts...

...In Boston, a chief of police and a district attorney found that certain works of fiction could not legally be sold under: the Massachusetts statute...

...Let us suppose a given book or a given play to have been condemned by the person or persons entrusted by statute with the duties of censor...

...We aim to stay the spread of epidemics rather than to permit them to run their course and attend solely to the work of curing the sick...

...Like other business men, they are concerned to make as much money as the law will let them...

...In neither case was mischief prevented...

...In the first case, however, the accused is adjudged guilty and sentenced (in ordinary procedure) without the right of trial by jury as to the real illegality of what he has done...

...An injunction is simply a court order prohibiting a specific act under penalty of contempt of court...

...In Boston, the guilty were, in effect, protected from further danger at the public expense, and their past offenses were winked at by public authorities because they promised to be good in the future...

...In sharp contrast to this somewhat extra-legal procedure, the producers of and participants in an obscene drama in New York were arrested, prosecuted, found guilty by a jury, and given jail sentences...

...Here again, the publisher is stopped by the fear of an authority essentially arbitrary rather than by the fear of the sense of the community expressed by a jury in consonance with the basic principles of our institutions...

...We have committed ourselves to the doctrine that the community knows best whether or not it has been wronged...

...This condition would, in all probability, be worse under an official censor...

...He has, under censorship, merely to point out that the proper authorities had given his production their approval, and the jury must find him not guilty...

...Here is no problem of stumbling through a maze of evidence, as in the ordinary criminal case...

...These decisions were announced to a group of booksellers under some sort of arrangement with the authorities, and the condemned books were withdrawn from sale— in popular parlance, "suppressed...

...Yet, mutatis mutandis, procedure by injunction and procedure by censorship have much in common...

...Its first concern is with overt wrongful acts, to determine whether they occurred, and to provide remedies and penalties...

...Strictly, it no more prevents the doing of the prohibited act than does a general statute which provides penalties for its infraction...

...But the accused cannot appeal to the sense of the community any longer, for the prosecution merely proves that the work in question was prohibited by the censor, and the jury, without having the opportunity to consider whether or not that work is in fact obscene, must find the defendant guilty of publishing a prohibited work...

...It would be folly to contend that juries are infallible finders of objective fact, yet it cannot be disputed that they are infallible finders of legal fact...