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The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of Free Speech

Abstract

It was the policy of the American Civil Liberties Union (ACLU) during the 1920s to contest only those obscenity regulations that were “relied upon to punish persons for their political views.” So stated a 1928 ACLU bulletin, reiterating a position to which the organization had adhered since its formation in 1920. For the majority of the ACLU's executive board, “political views” encompassed the struggle for control of the government and the economy, but not of the body. The early ACLU was not interested in defending avant-garde culture, let alone sexual autonomy.

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weinrib@uchicago.edu
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1. American Civil Liberties Union (ACLU) Bulletin 63, “Civil Liberty and the Courts: Obscenity and Political Opinions,” November 1928, in American Civil Liberties Union Records and Publications, 1917–1975 (Glen Rock, N.J.: Microfilming Corporation of America, 1977) (hereafter ACLU Records and Publications), reel 2.

2. United States v. Dennett, 39 F.2d 564 (Second Circuit, 1930).

3. Newspaper accounts of the Dennett decision were virtually unanimous in their support for Dennett, and the few critics lamented that public opinion was squarely on Dennett's side. See below note 148. For a discussion of Dennett's opponents, see Wheeler Leigh Ann, “Rescuing Sex from Prudery and Prurience: American Women's Use of Sex Education as an Antidote to Obscenity, 1925–1932,” Journal of Women's History 12 (2000): 173–96 (describing opposition by Reverend William Sheafe Chase).

4. Proposed Reorganization of the Work for Civil Liberty, in American Civil Liberties Union Records, The Roger Baldwin Years, 1917–1950, Seeley G. Mudd Manuscript Library, Public Policy Papers, Princeton University, Princeton, N.J. (hereafter ACLU Papers), reel 5, vol. 43 (“The industrial struggle is clearly the essential challenge to the cause of civil liberty today.”); see, generally, Laura Weinrib, “The Liberal Compromise: Civil Liberties, Labor, and the Limits of State Power, 1917–1940” (PhD diss., Princeton University, 2011).

5. On the novelty of constitutional arguments based on family privacy and self-determination, see Minow Martha, “We, the Family: Constitutional Rights and American Families,” Journal of American History 74 (1987): 959–83. Regardless whether they were precedented, the ACLU was aware of significant conservative support for such claims in Pierce v. Society of Sisters, 268 U.S. 510 (1925). See Weinrib, “Liberal Compromise,” 204–8.

6. Appellant's Second Circuit Brief, 59, in Women's Studies Manuscript Collections from the Schlesinger Library, Radcliffe College, Series 3: Sexuality, Sex Education, and Reproductive Rights, Part B: Papers of Mary Ware Dennett and the Voluntary Parenthood League, ed. Betsy B. Covel (Bethesda: University Publications of America, 1994) (hereafter Dennett Papers), reel 23, file 490.

7. Rabban David M., Free Speech in Its Forgotten Years, 1870-1920 (New York: Cambridge University Press, 1997), 310; Walker Samuel, In Defense of American Liberties: A History of the ACLU, 2nd ed. (Carbondale: Southern Illinois University Press, 1999), 68. Cf. Graber Mark A., Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley: University of California Press, 1991), 144 (noting Zechariah Chafee's belief that obscenity did not warrant First Amendment protection because it implicated only individual, as opposed to social, interests).

8. Because contemporary academic discussion has continued to focus primarily on the political, public-interest implications of free speech (see, generally, Graber, Transforming Free Speech), it is unsurprising that many historical accounts have neglected the expansion of civil liberties advocacy to include issues like obscenity, which more directly implicate individual rights.

9. For example, Gertzman Jay, Bookleggers and Smuthounds: The Trade in Erotica, 1920–1940 (Philadelphia: University of Pennsylvania Press, 1999), examines the ACLU's National Committee for Freedom from Censorship and its effect on obscenity regulation, but it does not address concurrent developments in the regulation of political speech, nor does it discuss the architects of the free speech movement, such as Zechariah Chafee and Roger Baldwin. Leigh Ann Wheeler discusses the regulation of sex education literature as well as commercial sexually explicit materials, but she is principally concerned with the relationship between the antiobscenity movement and women's political power, identity, and sexuality in Against Obscenity: Reform and the Politics of Womanhood in America, 1873–1935 (Baltimore: Johns Hopkins University Press, 2004).

10. See, for example, Hudon Edward G., Freedom of Speech and Press in America (Washington: Public Affairs Press, 1963); Kutulas Judy, The American Civil Liberties Union and the Making of Modern Liberalism, 1930-1960 (Chapel Hill: University of North Carolina Press, 2006); and Murphy Paul L., The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (Westport, Connecticut: Greenwood Publishing Co., 1972) (none of which list Dennett in the index). In her history of censorship laws designed to protect the youth, Heins Marjorie, Not in Front of the Children: ‘Indecency,’ Censorship, and the Innocence of Youth (New York: Hill and Wang, 2001), 4244, briefly describes Dennett's importance as a doctrinal bridge. Walker's history of the ACLU devotes a page to the case; Markmann Charles Lam, The Noblest Cry: A History of the American Civil Liberties Union (New York: St. Martin's Press, 1965), affords it a paragraph.

11. Two published works deal with Dennett at length: a 1995 article by John Craig and a biography of Dennett by Constance Chen. Craig John M., “‘The Sex Side of Life’: The Obscenity Trials of Mary Ware Dennett,” Frontiers 15 (1995): 145–66; Chen Constance M., The Sex Side of Life: The Story of Mary Ware Dennett (New York: New Press, 1996). Chen focuses on Dennett's life and legacy, with particular attention to her birth control activities. Craig points to many of Dennett's important themes but is more interested in its effects on the birth control movement and obscenity law than its broader implications for civil liberties advocacy and the meaning of free speech. Leigh Ann Wheeler's illuminating account of the complicated relationships between Mary Ware Dennett, the social hygiene movement, and antiobscenity activity is sensitive to the concerns and rationales of Dennett's adversaries, but it discusses her court battle only in passing and does not explore the origins of the ACLU's emerging liberalism. Wheeler, “Rescuing Sex”; Wheeler, Against Obscenity.

12. Franklin D. Roosevelt, “Annual Message to Congress,” January 6, 1941, Records of the United States Senate, Record Group 46, National Archives and Records Administration (hereafter, NARA) I, Sen. 77A-H1. Morris Ernst considered Roosevelt's Four Freedoms to be an important civil libertarian project and, in conjunction with the White House, pursued a book project exploring the connections among them and the best means of achieving them. Morris Ernst to Franklin D. Roosevelt, September 21, 1943, in Morris Leopold Ernst Papers, 1888–1976, Harry Ransom Humanities Research Center, University of Texas at Austin (hereafter Ernst Papers), box 97, folder 3. At the time of publication, the Ernst papers were closed for processing. After the collection is recatalogued, citations may differ.

13. See, for example, Kersch Ken I., “How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech,” University of Pennsylvania Journal of Constitutional Law 8 (2006): 255–97; 266, summarizing dominant narrative (“[W]hereas free speech protections were largely focused on core political speech in the early twentieth century, they were expanded to protect other forms of speech, such as (anti) religious (blasphemy), sexual (indecency), artistic, commercial, and other forms of speech.”).

14. They were not, however, opposed to courts that administered socialized (as opposed to individualized) justice. Willrich Michael, City of Courts: Socializing Justice in Progressive Era Chicago (New York: Cambridge University Press, 2003).

15. Lochner v. New York, 198 U.S. 45 (1905). Notwithstanding revisionist claims about popular reaction to Lochner in the immediate aftermath of the case (see, for example, Bernstein David E., Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform [University of Chicago Press, 2011]), it is clear that by the 1910s progressive antipathy toward the case had crystallized.

16. Not all progressives were majoritarian. In fact, many advocated the expansion of the regulatory state precisely because the efficiency and autonomy of administrative agencies were shielded from popular influence. For them, the postwar turn to civil liberties meant shifting their confidence from agencies—which, they discovered, were more prone to political influence than they had believed—to the courts.

17. The Espionage Act, which was the basis for many of the wartime prosecutions of dissenters, made it criminal to “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States” or willfully to “obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States.” Espionage Act of 1917, ch. 30, 40 Stat. 217. Most historians assume that Congress anticipated or intended the prosecution of peaceful political speech. For a contrary view, assigning responsibility to the judiciary, see Stone Geoffrey R., “The Origins of the Bad Tendency Test: Free Speech in Wartime,” Supreme Court Review (2002): 411–53.

18. See Murphy Paul, World War I and the Origin of Civil Liberties in the United States (New York: Norton, 1979), 9899.

19. Hand emphasized that he was not deciding whether Congress was constitutionally empowered to prohibit “any matter which tends to discourage the successful prosecution of the war” if it chose to do so; rather, at issue was “solely the question of how far Congress after much discussion has up to the present time seen fit to exercise a power which may extend to measures not yet even considered.” Masses Publishing Co. v. Patten, 244 F. 535, 538 (Southern District of New York, 1917), rev'd, 246 F. 24 (Second Circuit, 1917). Nonetheless, Hand's reasoning was later incorporated into the Supreme Court's constitutional analysis. On the Masses case, see, generally, Gunther Gerald, “Learned Hand and the Origins of the Modern First Amendment Doctrine: Some Fragments of History,” Stanford Law Review 27 (1975): 719–73; and Gunther Gerald, Learned Hand: The Man and the Judge (New York: Knopf, 1994). Burleson's censorship practices were upheld by the Supreme Court in Milwaukee Publishing Co. v. Burleson, 255 U.S. 407 (1921).

20. See “Senators Oppose Sedition Bill as Gag on Free Speech,” New York Tribune, May 1. 1918. The National Civil Liberties Bureau cautioned against the increased censorship authority conferred upon the postmaster general by the Sedition Act, explaining that “[s]uch arbitrary power in the hands of a single appointed officer has never before existed in the history of this republic, nor of any other nation under a democratic constitution.” “Gives Power to Stop Mail Delivery,” New York Evening Post, April 30, 1918.

21. Murphy, Origin of Civil Liberties, 18–21, contains a useful review of the literature prior to 1980. More recent accounts include Capozzola Christopher, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (New York: Oxford University Press, 2008); Kutulas, American Civil Liberties Union; Graber, Transforming Free Speech; Rabban, Free Speech; Steele Richard W., Free Speech in the Good War (New York: St. Martin's Press, 1999); Stone Geoffrey R., Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (New York: W. W. Norton & Co., 2004); and Witt John, “Crystal Eastman and the Internationalist Beginnings of American Civil Liberties,” Duke Law Journal 54: 705–63 (2004). Historical scholarship has established that legal claims to free speech premised on the First Amendment rarely succeeded in the federal courts in the nineteenth and early twentieth centuries. During that period, some lawyers defended radical expression in a language that mobilized the Constitution and that resembled, anachronistically, the understanding of civil liberties that emerged after World War I, but these efforts made little headway in the courts. See, generally, Rabban, Free Speech; and John Wertheimer, “Free Speech Fights: The Roots of Modern Free-Expression Litigation in the United States” (PhD diss., Princeton University, 1992).

22. The Palmer Raids outraged Felix Frankfurter, who joined with eleven other prominent attorneys to author a “Report upon the Illegal Practices of the United States Department of Justice.” National Popular Government League, To the American People: Report upon the Illegal Practices of the United States Department of Justice (Washington, D.C.: National Popular Government League, 1920).

23. “The Red Assassins,” Washington Post, January 4, 1920, 26. President Wilson voiced a similar sentiment, claiming that those who were disloyal to the United States “had sacrificed their right to civil liberties.” Quoted in Murphy, Origin of Civil Liberties, 53.

24. The concept of the “marketplace of ideas” is generally attributed to Justice Holmes's dissent in Abrams v. United States, although he did not explicitly use the phrase. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market”). For a compelling review of problems with the market analogy, see Blasi Vincent, “Holmes and the Marketplace of Ideas,” Supreme Court Review (2004): 146, 6–13. The invocation of the market was easily adapted to a libertarian ideal of moral autonomy. Morris Ernst put this to rhetorical use in an argument against the regulation of fortune telling: “The state should not forever be our nursemaid. . . . Fortune telling should be allowed free trade in the market place of thought. It will then live or die on its own merits. Do not let us encourage palmeasies and bootleggers of astrology. Suppression never succeeds.” “Take Your Choice—Should We Drive Out the Fortune Tellers?” New York American, August 7, 1931, Ernst Papers, box 2, folder 3.

25. Not all civil libertarians endorsed the language of markets, but the analogy touched a deeper vein in postwar political theory. In the years after World War I, a new pluralism (verging at times on relativism) crept into legal and political theory. To borrow from Morton Horwitz's influential account of legal realism, the war disrupted the “self-assurance about values that Progressives were able regularly to muster.” Horwitz Morton J., The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 191. Some interwar libertarians lauded free speech for its potential to flush out the political vision most compatible with the “public good,” but others wondered whether any such ideal existed in the first place.

26. To Crystal Eastman and Roger Baldwin, Wilson's willingness to abandon his prewar principles revealed that the official interests of the United States were incompatible with the needs of the American people. See Witt John Fabian, Patriots and Cosmopolitans: Hidden Histories of American Law (Cambridge: Harvard University Press, 2008), 187–97.

27. Although the ACLU's early approach was partly modeled on the Industrial Workers of the World (IWW)'s prewar free speech fights, its theory of civil liberties was quite different. Most of the IWW leadership regarded the First Amendment as a tool for protecting organizers while illustrating official hypocrisy. Dubofsky Melvyn, We Shall Be All: A History of the Industrial Workers of the World (Chicago: Quadrangle Books, 1969), 174. Meanwhile, the Free Speech League, which defended the IWW speakers in court and was largely responsible for articulating the underlying constitutional commitments, emphasized personal autonomy and fulfillment. Rabban, Free Speech, 23; and Murphy Paul L., The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (Westport, Conn.: Greenwood Pub. Co., 1972), 20 (“Schroeder and his cohorts were remnants of nineteenth-century liberal thought. Optimistic individualists themselves, they believed that man's basic problem was unwarranted restraint.”).

28. See, for example, Testimony of Gilbert Roe, 10 May 1915, in Final Report of the Commission on Industrial Relations, vol. 11, 10473.

29. Cf. Gordon Robert, “The Legal Profession,” in Looking Back at Law's Century, ed. Sarat Austin, Garth Bryant, and Kagan Robert A. (Ithaca: Cornell University Press, 2002), 288336.

30. ACLU, The Fight for Free Speech (New York: American Civil Liberties Union, 1921), 6.

31. Ibid., 8–9.

32. Its 1921 decision in Duplex Printing Press Company v. Deering, 254 U.S. 443 (1921), declared secondary boycotts unlawful under the Clayton Act and authorized the use of injunctions to block them. In Truax v. Corrigan, 257 U.S. 312 (1921), it went further, striking down a state anti-injunction law as an unconstitutional violation of equal protection and due process. Other decisions effectively outlawed picketing and made unions subject to high damages for restraint of interstate commerce. American Steel Foundries v. Tri-Cities Central Trade Council, 257 U.S. 184 (1921); and United Mine Workers v. Coronado Coal, 259 U.S. 344 (1922).

33. American Civil Liberties Union, Free Speech 1925–1926: The Work of the American Civil Liberties Union (New York: American Civil Liberties Union, 1926), 3.

34. Gitlow v. New York, 268 U.S. 652, 673 (1925); and Whitney v. California, 274 U.S. 357 (1927). Quoted, for example, in Roger Baldwin, Draft Speech, ACLU Papers, reel 46, vol. 303.

35. For a discussion of the ACLU's early efforts in this arena, including its defense of the Rand School of Social Science and the radical ideals underlying its positions in Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Scopes v. Tennessee, 152 Tenn. 424 (Tenn. 1925), see Weinrib, “Liberal Compromise,” 181–204.

36. American Civil Liberties Union, Freedom of Speech in Schools and Colleges (New York: American Civil Liberties Union, June 1924), in ACLU Papers, reel 34, vol. 245.

37. See, for example, William S. U'Ren to Roger Baldwin, 27 December 1922, ACLU Papers, reel 34, vol. 245.

38. Forrest Bailey to Rev. Noah Cooper, June 15, 1925, ACLU Papers, reel 38, vol. 274.

39. Ibid. The organization's leaders ordinarily spoke in terms of pluralism and tolerance, but their true objectives were more ambitious, and occasionally they came out. In Roger Baldwin's understanding, “the Klan's attempt to compel all children to go to public schools” and the “Fundamentalist attack on scientific teaching” were instances of a more general phenomenon, namely, “the effort of all groups in power to hold on their privileges, and to write those privileges into law.” ACLU News Release, April 1926, reel 46, vol. 303 (abstract of remarks by Baldwin). The consolidation of power of which they were reflective had coincided with the War, but its true cause was the Russian Revolution: “Bolshevism is the issue which has aroused the propertied classes to the defense of things as they are all over the world.” Roger Baldwin, “What has become of the Pre-War Radicals,” January 4, 1926, ACLU Papers, reel 46, vol. 303.

40. Roger Baldwin to William H. Jefferys, December 22, 1926, ACLU Papers, reel 46, vol. 303 (“It is with government agencies that we have to deal all the time, opposing the repressive and often lawless tactics of the executive and of government by an appeal to the judiciary. And the judiciary now has pretty nearly emasculated civil liberties as they have been conceived by the forefathers and maintained for a hundred years.”).

41. See, generally, Weinrib Laura, “From Public Interest to Private Rights: Free Speech, Liberal Individualism, and the Making of Modern Tort Law,” Law & Social Inquiry 34 (2009): 187223; Zackin Emily, “Popular Constitutionalism's Hard When You're Not Very Popular: Why the ACLU Turned to Courts,” Law and Society Review 42 (2008): 367–95. The ACLU reached out to government agencies and public officials in opposition to restrictive legislation and in pursuit of amnesty for political and industrial prisoners. When mobs and vigilantes shamelessly beat dissenters, it had called upon officials to intervene, notwithstanding its concerns about government abuses. More tellingly, when local officials aligned with courts to quash local labor struggles, even Roger Baldwin had been tempted to enlist state and federal assistance in leveling the playing field. See, for example, ACLU Executive Committee Minutes, September 26, 1921, in American Civil Liberties Union, Minutes of the Meeting of the Executive Committee (New York: American Civil Liberties Union, n.d.).

42. Nelles Walter, “Objections to Labor Injunctions,” in Civil Liberty, ed. Phelps Edith M. (New York: H. W. Wilson Co., 1927), 156.

43. As Baldwin freely admitted, he was “not troubled . . . about any issue of theory or principles.” Roger Baldwin to James P. Cannon (International Labor Defense), May 26, 1926, ACLU Papers, reel 46, vol. 303.

44. Executive Committee Minutes, October 26, 1925, ACLU, Minutes.

45. ACLU Press Release, May 16, 1927, in ACLU Records and Publications, reel 1.

46. See Stansell Christine, American Moderns: Bohemian New York and the Creation of a New Century (New York: Henry Holt, 2000).

47. A more libertarian vision of free speech was not without precedent. A vibrant, although unsuccessful, prewar free speech movement had championed individual autonomy in the realms of free love and artistic expression as well as politics. Theodore Schroeder, founder of the Free Speech League, had formulated a countermajoritarian theory of civil liberties as expansive as the one espoused by the ACLU at mid-century. See generally Rabban, Free Speech; Stansell, American Moderns; and Wertheimer, “Free Speech Fights.” Constitutional free speech claims also proliferated during the nineteenth century, see, for example, Curtis Michael Kent, Free Speech, “The People's Darling Privilege”: Struggles for Freedom of Expression in American History (Durham, NC: Duke University Press, 2000), but defenders of sexually explicit speech generally relied on property rights during that period. Dennis Donna, Licentious Gotham: Erotic Publishing and Its Prosecution in Nineteenth-Century New York (Cambridge: Harvard University Press, 2009). Most of the prewar libertarians had, however, abandoned the cause by the beginning of World War I, and the early agenda of the free speech movement did not reflect their broader concerns.

48. Whipple Leon, Our Ancient Liberties: The Story of the Origin and Meaning of Civil and Religious Liberty in the United States (1927; reprint, New York: De Capo Press, 1972), 146.

49. “Mrs. Dennett, 75, Suffrage Leader: A Founder of National Birth Control League Dies—Fought to Legalize Sex Education,” New York Times, July 26, 1947.

50. William Hartley Dennett unabashedly professed his love for Chase, as well as his free love ideology in general, in the court proceedings. “Lover of Wife Honored by Complaisant Husband,” Atlanta Constitution, September 24, 1909. The husband of his lover, H. Lincoln Chase, joined the couple at their small town farmhouse in 1913. Two years later, the press reported that the arrangement was a success. See, for example, “Chase to Join Wife and Her Soul Mate,” New York Times, January 25, 1915.

51. Those found guilty of violating the Act were subject to 6 months' to 5 years' imprisonment at hard labor or a fine of between $100 and $2000 dollars. An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, 17 Stat. 598 (1873).

52. Mary Ware Dennett to Senator Woodbridge Ferris, April 21, 1925, Dennett Papers, reel 22, file 470.

53. The bill would have deleted the phrase “for the prevention of contraception” from the Comstock Act.

54. Dennett Mary Ware, Birth Control Laws: Shall We Keep Them, Change Them, or Abolish Them (New York: F. H. Hitchcock, 1926).

55. Among the pamphlet's thousands of supporters and subscribers were the Bridgeport, Connecticut public library; the First Methodist Episcopal Church in Pueblo, Colorado; the Juvenile Court of Cook County, Illinois; the Boy Scouts of Louisville, Kentucky; the Massachusetts Department of Public Health; the Bethel Evangelical Church in Detroit, Michigan (whose pastor, from 1915 to 1928, was Reinhold Niebuhr); the Minnesota Department of Education; and numerous YMCA chapters. List of Larger Contributors, Dennett Papers, reel 21, file 445.

56. At just that time, the Metropolitan Life Insurance Company was sponsoring a competition for the best pamphlet on sex education for adolescents between the ages of 12 and 16. Chen, Story of Mary Ware Dennett, 176.

57. Quoted in ibid., 172 (emphasis in original).

58. Dennett Mary Ware, The Sex Side of Life (New York: n.p., 1919), 2, in ACLU Papers, reel 68, vol. 374. The pamphlet was reprinted in Dennett Mary Ware, Who's Obscene? (New York: Vanguard Press, 1930).

59. Dennett, Sex Side of Life, 3.

60. Ibid., 22.

61. Ibid., 4.

62. See Cott Nancy F., The Grounding of Modern Feminism (New Haven: Yale University Press, 1987), 149. Cott, citing Alfred Kinsey's 1950s studies, notes that women's sexual practices changed drastically during the 1920s.

63. For prewar feminists, equality in the bedroom was merely one facet of a larger struggle for women's equality. Stansell, American Moderns, 227. These broader implications of The Sex Side of Life fell away in the intervening years. Cott, Grounding of Modern Feminism, 157 (“What was thrown overboard in the transformation of Feminist critiques into social scientists' proposition of companionate marriage was the ballast anchoring harmony between the sexes to sexual parity in the public world as well as the bedroom.”). One acquaintance from Dennett's suffrage days advised her in 1930 that she had sought to reframe birth control and sex education as “necessary for the performance of marital and parental obligations” in order to accommodate the conservative tendencies of the League of Women Voters. S. P. Breckenridge to Mary Ware Dennett, January 15, 1930, Dennett Papers, reel 23, file 483.

64. See, generally, Luker Kristin, “Sex, Social Hygiene and the Double-Edged Sword of Social Reform,” Theory and Society 27 (1998): 601–34. Although The Sex Side of Life was more celebratory of sex and more tolerant of “deviant” sexual practices than its social hygiene counterparts, the difference between them was relatively modest, as Dennett's defenders were eager to point out. See, for example, Remarks of Dr. Louis I. Harris, former New York City commissioner of health, Public Hearing on Sex Education—Freedom of Censorship, Town Hall, New York City, May 21, 1929, Dennett Papers, reel 23, file 484.

65. The male physicians allied with female social hygienists were more interested in medical prophylaxis than in gender equality, and the new policies disproportionately targeted prostitutes and promiscuous young women. Luker, “Sex, Social Hygiene …,” 619–20.

66. See below note 183 and corresponding text.

67. Lewis Gannett, “Books and Other Things,” New York Herald-Tribune, March 20, 1930.

68. At her sentencing hearing, Dennett told Judge Burrows that the “total number of adverse criticisms which [she had] received by letter [had] been less than a dozen in eleven years, and all of those criticisms were purely of an academic character.” Sentencing hearing, trial transcript 97, Second Circuit Case File 10712, United States Court of Appeals for the Second Circuit, in National Archives and Records Administration Northeast Region, New York, New York (hereafter NARA Northeast Region), Record Group 276.

69. In June 1925, Edgar Blessing, solicitor of the Post Office Department, confirmed that Dennett's pamphlet contained matter forbidden admission to the mails by Section 211 of the United States Penal Code but refused to indicate in writing which passages he considered objectionable. Edgar M. Blessing to Mary Ware Dennett, June 13, 1925, Dennett Papers, reel 22, file 463.

70. See, for example, Mary Ware Dennett to Senator William E. Borah, April 9, 1925, Dennett Papers, reel 20, file 415; and Mary Ware Dennett to Senator George Norris, April 7, 1925, Dennett Papers, reel 22, file 463.

71. Mary Ware Dennett to Florence Garvin, August 17, 1929, Dennett Papers, reel 21, file 436.

72. In the New York Times, Dennett urged the press to “mention the public work [she had] done during the last thirty years rather than to stress the individual facts of private life.” Mary Ware Dennett, “Mrs. Dennett Excepts” (letter to the editor), New York Times, May 3, 1929. Although Dennett preferred to emphasize her accomplishments and public work, the newspapers refused to budge, because the fact that Dennett was a grandmother “carried great weight with the newspaper reading public.” W. P. Beazell (editor for The World) to Mary Ware Dennett, May 1, 1929, Dennett Papers, reel 21, file 456.

73. Many organizations asked Dennett to speak at their functions, panels, and symposia during 1929 and 1930, but Dennett refused virtually all invitations. Mary Ware Dennett to Vine McCasland and Myra Gallert, March 1, 1929, Dennett Papers, reel 21, file 438.

74. Dennett wrote in a letter that despite her “very real dread of the publicity” she was ready—indeed, “heartily glad”—to have the case proceed. Mary Ware Dennett to Morris Ernst, October 20, 1928, Dennett Papers, reel 23, file 485.

75. For example, John Haynes Holmes served as a vice president of the Voluntary Parenthood League.

76. Press Release, May 16, 1927, ACLU Records and Publications, reel 1.

77. See, for example, Report on the Civil Liberty Situation for Month of April 1926, ACLU Records and Publications, reel 1 (listing under the heading “freedom of the press” the acquittal in Boston of H. L. Mencken, the editor of the American Mercury, for “obscene and indecent” content).

78. See, for example, John S. Codman to Roger Baldwin, November 4, 1924, ACLU Papers, reel 37, vol. 260; and ACLU Press Release, April 28, 1927, ACLU Records and Publications, reel 1. Less commonly during this period, the ACLU participated in religion cases. See, for example, ACLU Bulletin No. 185, February 9, 1926, ACLU Records and Publications, reel 1.

79. Chafee, The Censorship in Boston, argued that prior restraint was untenable because it afforded too much discretion to individual government agents. The pamphlet was written by Baldwin but attributed to Chafee. Walker, In Defense of American Liberties, 83.

80. Theodore Schroeder to Roger Baldwin, November 27, 1917, ACLU Papers, reel 1, vol. 3. Schroeder mentioned such issues as Sunday regulations, the appropriation of public funds to religious institutions, the suppression of secularists and free thought lecturers, biblical instruction in public schools, the exemption of church property from taxation, compulsory medical licensing, optometry regulation, antiliquor and antitobacco laws, and laws regulating women's propriety and behavior. Theodore Schroeder to Roger Baldwin, December 4, 1917, ACLU Papers, reel 1, vol. 3.

81. Roger Baldwin to Theodore Schroeder, December 7, 1917, ACLU Papers, reel 1, vol. 3.

82. ACLU Bulletin 325, October 18, 1928, ACLU Records and Publications, reel 1; and ACLU Bulletin 391, February 14, 1930, ACLU Records and Publications, reel 2. In 1926, Baldwin invited Ernst to act as the organization's chief counsel, but Ernst preferred to serve in an informal capacity until his appointment as associate general counsel in 1930. Roger Baldwin to Morris Ernst, March 13, 1926, Ernst Papers, box 399, folder 3.

83. John Haynes Holmes was born in 1879; Hays in 1881; Frankfurter in 1882; Scott Nearing in 1883; Baldwin, John Nevin Sayre, and Norman Thomas in 1884; Albert DeSilver and Ernst in 1888; Elizabeth Gurley Flynn in 1890. A few members of the early leadership, including L. Hollingsworth Wood (born 1873) and Henry R. Linville (born 1866) were born earlier.

84. Only three of twenty executive committee members were lawyers in 1920. Walker, In Defense of American Liberties, 69.

85. As was customary during this period, see, for example, Gordon, “Legal Profession,” 319–20, both Hays and Ernst maintained lucrative private law practices in addition to their civil liberties work. Over the next decade, as the ACLU professionalized and increasingly focused on legal work, the national office (but not the local affiliates) began to employ full-time attorneys. See, generally, Kutulas, American Civil Liberties Union.

86. In October 1928, Arthur Garfield Hays debated the question “Is Liberalism a Menace” at the Ford Hall Forum. He argued that liberalism was the way forward and that radicalism was an ill-advised theory. Circular, Dennett Papers, reel 22, file 477.

87. Walker explains Ernst and Hays's aggressive libertarian stand on censorship of the arts on this basis. Walker, In Defense of American Liberties, 83 (“Thoroughly secularized Jews, they shared none of the puritanism of the ACLU Protestants.”). The New England Protestants within the ACLU apparently shared this view. See, for example, John Haynes Holmes to Morris Ernst, January 16, 1940, Ernst Papers, box 5, folder 1 (attributing Holmes's “squeamishness in the field of censorship” to his “rigorous New England” upbringing and his “puritanical instinct”). As Jews, Ernst and Hays may also have been more invested in displacing religious moralism and promoting a secular worldview. See, generally, Hollinger David A., Science, Jews, and Secular Culture: Studies in Mid-Twentieth Century American Intellectual History (Princeton: Princeton University Press, 1996).

88. Hays advised Mencken to provoke his own arrest by selling an issue of the journal containing an allegedly true story by Herbert Asbury, entitled “Hatrack,” about a small-town prostitute. He then succeeded in getting the charges dismissed. When the postal service nonetheless refused to mail the April issue of American Mercury, Hays sought and won an injunction.

89. It was Hays's representation of Mencken in the postal matter that prompted Dennett to seek his assistance in 1926. Arthur Garfield Hays to Mary Ware Dennett, May 25, 1926, Dennett Papers, reel 21, file 441.

90. ACLU News Release, February 26, 1926, ACLU Records and Publications, reel 1.

91. His proposed amendments to the bill involved political and economic provisions.

92. Lewis Gannett attributed Ernst's commitment to the anti-censorship cause to his loss in that case. Lewis Gannett, “Books and Things,” New York Herald-Tribune, December 9, 1933.

93. Ernst Morris L. and Seagle William, To the Pure: A Study of Obscenity and the Censor (New York: The Viking Press, 1928). To the Pure stressed the deleterious effect of censorship on public knowledge (as well as the arbitrariness of the criminal censorship laws), an argument that was convincing to D. H. Lawrence, among others. Letter from D. H. Lawrence, November 10, 1928, Ernst Papers, box 5, folder 3.

94. National Committee Minutes, November 12, 1928, ACLU Records and Publications, reel 1.

95. In fact, Baldwin insisted that “the best way to control . . . downright obscenity is by criminal prosecution” after the fact. Roger Baldwin to Mary E. McDowell, February 25, 1929, ACLU Papers, reel 63, vol. 360.

96. Roger Baldwin to the National Committee, February 14, 1929, ACLU Papers, reel 63, vol. 360.

97. Roger Baldwin to the National Committee, April 5, 1929, ACLU Papers, reel 63, vol. 360. Ironically, the NCLB had been founded precisely to oppose the draft as a violation of individual conscience. See Weinrib, “Liberal Compromise,” 68–80.

98. In response to McDowell's letter, Baldwin sought to frame the censorship proposal as a clarification rather than expansion of the ACLU's position on censorship. Roger Baldwin to Mary E. McDowell, February 25, 1929, ACLU Papers, reel 63, vol. 360.

99. Felix Frankfurter to Roger Baldwin, February 16, 1929, ACLU Papers, reel 63, vol. 360.

100. Ibid. (emphasis in original).

101. Felix Frankfurter to Roger Baldwin, March 1, 1929, ACLU Papers, reel 63, vol. 360.

102. Arthur Garfield Hays to Mary Ware Dennett, May 21, 1926, Dennett Papers, reel 21, file 441.

103. Dennett continued to write to Hays periodically for over a year. In October 1927, Hays finally, frankly advised her that “there would be very little chance of obtaining an injunction,” and she let the matter drop. Arthur Garfield Hays to Mary Ware Dennett, October 4, 1927, Dennett Papers, reel 21, file 441.

104. Morris Ernst to Mary Ware Dennett, August 30, 1928, Dennett Papers, reel 23, file 485.

105. Mary Ware Dennett to Morris Ernst, September 1, 1928, Dennett Papers, reel 23, file 485.

106. The postal service was legally prohibited from opening sealed envelopes. Even during the litigation, Dennett never stopped circulating the pamphlet, though she did so by express. “Author of Sex Guide Wins Plea,” Los Angeles Times, March 4, 1930.

107. American Civil Liberties Union, The Prosecution of Mary Ware Dennett for “Obscenity” (New York: American Civil Liberties Union, 1929), 3–4, in Dennett Papers, reel 23, file 481.

108. The fact that Dennett was litigated as a criminal matter helped her case immensely. Ernst, however, was disappointed that he would not be able to seek an injunction as he had hoped. Mary Ware Dennett to Vine McCasland and Myra Gallert, March 1, 1929, Dennett Papers, reel 21, file 438.

109. ACLU Bulletin 352, April 26, 1929, ACLU Records and Publications, reel 2.

110. Executive Committee Minutes, April 29, 1929, ACLU Records and Publications, reel 2. Ernst insisted on representing Dennett without compensation, despite her reluctance to accept charity. In January 1929, Dennett accepted ACLU sponsorship of the appeal “[o]n the basis that this sort of a fight does involve more than the victim's welfare.” Mary Ware Dennett to Vine McCasland, March 1, 1929, Dennett Papers, reel 21, file 438. Meanwhile, an “unknown Cambridge woman,” Frances W. Emerson, sent Dennett $1000, essentially bankrolling her for the duration of the defense. Mary Ware Dennett to family, May 8, 1929, Dennett Papers, reel 21, file 433. Emerson—who was married to William Emerson, the Dean of Architecture at M.I.T. (where Dennett's ex-husband, also an architect, had once studied)—was an active philanthropist and was eager to assist in Dennett's case. When she became aware of Dennett's financial difficulties, she asked her to “keep [her] check for [her] own personal expenses.” Frances W. Emerson to Mary Ware Dennett, May 20, 1929, Dennett Papers, reel 20, file 431.

111. See Larson Edward J., Summer for the Gods: The Scopes Trial and America's Continuing Debate over Science and Religion (Cambridge: Harvard University Press, 1997), 7383. The principal exception was Darrow's law partner, Arthur Garfield Hays, who vehemently defended his approach. Unsigned letter to Felix Frankfurter, 10 November 1926, ACLU Papers, reel 44, vol. 299 (describing the positions of various members of the ACLU leadership). Ernst repeatedly compared Dennett's case to the Scopes trial. Mary Ware Dennett to Rae Morris, May 9, 1929, Dennett Papers, reel 21, file 449.

112. Memorandum in support of motion to quash indictments, 8, Dennett Papers, reel 23, file 490.

113. Ibid.

114. Ibid., 4.

115. Ibid., 5.

116. In reality, Dennett always had her precarious financial situation in mind. When the Medical Review of Reviews, a professional journal, offered to publish the essay, she expressed reluctance to publish without compensation.

117. Ibid., 8.

118. Ibid., 9–11.

119. ACLU, Prosecution of Mary Ware Dennett, 4.

120. Ibid., 6.

121. Ibid. An article in The Nation wrote of Wilkinson, “He learned his fundamentalism in Georgia where he was born.” Dudley Nichols, “Sex and the Law,” Nation, May 8, 1929, 552–54, at 553.

122. Moscowitz told Ernst that had he retained the case, he would have sent it to the jury, but “if he had been on the jury he would have voted for acquittal.” Mary Ware Dennett to Vine McCasland and Myra Gallert, March 13, 1929, Dennett Papers, reel 21, file 438.

123. Moscowitz canceled the hearing at the last minute on the grounds that they were contributing to unseemly publicity. ACLU, Prosecution of Mary Ware Dennett, 4. After Dennett's conviction, Wilkinson claimed in argument before Judge Burrows that all three of the clergy members consulted by Judge Moscowitz had privately considered the pamphlet inappropriate. Motion to Set Aside the Verdict, Trial Transcript 93, NARA Northeast Region, Record Group 276.

124. Dennett confided to her close friends that Moscowitz feared a favorable decision in her case would be used against him by his “enemies” and “practically beg[ged]” Ernst to have the case transferred to another judge. Mary Ware Dennett to Vine McCasland and Myra Gallert, March 7, 1929, Dennett Papers, Reel 21, file 438. Eventually, Moscowitz convinced Ernst to accept a transfer on the condition that the letters submitted in support of the pamphlet would become a part of the court record—a provision that Judge Campbell later declared invalid. Mary Ware Dennett to Vine McCasland and Myra Gallert, March 13, 1929, Dennett Papers, reel 21, file 438.

125. ACLU, Prosecution of Mary Ware Dennett, 4.

126. Several explanations were offered for the jury's behavior, which seemed so inconsistent with public opinion. First, and most important, outside assessments of the pamphlet were kept from the jury. Secondly, potential jurors were excluded if they were familiar with sex education literature. Dudley Nichols, in his article for The Nation, offered a third possible explanation: “mankind's universal sex fears.” Nichols, 554. The sex composition of the jury was also notable. As women were ineligible to serve on juries in New York until 1937, Kerber Linda K., No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998), 142, all twelve members of the jury in Dennett's case were men. Influenced perhaps by their verdict, Ernst became a strong advocate of gender inclusion in the jury system. In a 1931 article, he explained: “In the final analysis law is nothing more [or] less than the expression of the wishes, the customs and the modes of the people. With the jury composed only of men the jury system must fail because it represents only one-half of the population.” “Take Your Choice—Should Women Serve on Juries?” New York American, 15 June 1931.

127. Dennett was willing to serve time in prison to help the anti-censorship cause. Mary Ware Dennett to family, May 8, 1929, Dennett Papers, reel 21, file 433. Because the appeal was successful, however, she was never imprisoned.

128. Ernst also presented a technical deficiency (insufficiency of indictment), but he urged the court to decide the case on the merits rather than relying on “legalistic grounds.” The fact that the judges complied suggests that they wanted to reach the merits of the case. Appellant's Second Circuit Brief 40–42.

129. Ibid., 12, 13, 15, 16 (emphasis in original).

130. Ibid., 52–53.

131. Ibid., 9, 52.

132. Ex parte Jackson, 96 U.S. 727, 735 (1877).

133. Memorandum in support of motion to quash indictments, 53.

134. Ibid., 57; United States v. Schwimmer, 279 U.S. 644, 654–55 (1929).

135. Morris Ernst conveyed this idea in a letter: “Before any person is appointed to the bench in the future, there should be a very stringent cross examination by the proper committees of Congress as to the man's economic faith. It is about time that we got away from the idea that there is such a thing as a good lawyer or a bad lawyer. He is either a man of our prejudices or of other prejudices.” Morris Ernst to Heywood Broun, May 21, 1935, Ernst Papers, box 8, folder 2.

136. The other judges were Judges Thomas W. Swan and Harrie B. Chase.

137. United States v. Bennett, 16 Blatchf. 338 (Circuit Court, Southern District of New York, 1879). In Bennett, the defendant had been convicted of mailing a pamphlet advocating the legalization of prostitution. Judge Samuel Blatchford affirmed the District Court's application of the “Hicklin test,” named for the 1868 British case, Regina v. Hicklin, from which it was derived. In that case, Lord Chief Justice Cockburn had inquired “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” Regina v. Hicklin, L.R. 3 Q.B. 360, 371 (1868).

138. The Hicklin decision was motivated by concerns about the corruption of youth, and it defined as obscene any material that would elicit in “the young of either sex . . . thoughts of a most impure and libidinous character.” Ibid. It is ironic that the Second Circuit chose to abandon this emphasis in the Dennett case, which involved a pamphlet explicitly addressed to “young people.”

139. United States v. Dennett, 39 F.2d 564, 569 (Second Circuit, 1930). The ACLU announced the reversal of Dennett's conviction in ACLU Bulletin 394, March 6, 1930, ACLU Records and Publications, reel 2.

140. In Roth v. United States, 354 U.S. 476, 487 (1957), Justice Brennan wrote on behalf of a six-justice majority of the Supreme Court that “[t]he portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.” Sex, he explained, “is one of the vital problems of human interest and public concern.” He then went on to reject the Hicklin test as an abridgement of First Amendment freedoms and to adopt the modified common law test—“whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest”—as the new constitutional standard. Ibid., 489. Gerald Gunther described a similarly delayed constitutionalization of statutory interpretation in the context of Learned Hand's “direct incitement” test in the Masses case.

141. Howard W. Ameli, the United States Attorney for the Eastern District of New York, initially announced that he would seek appeal. “Plan New Appeal in Dennett Case,” World, March 5, 1930.

142. Department of Justice Press Release, June 5, 1930, quoted in Frankfurter Felix, “The Business of the Supreme Court at October Term, 1929,” Harvard Law Review 44 (1930): 140, 19, n. 22.

143. Draft of Interview between Thomas Stix and Morris Ernst, January 23, 1935, Ernst Papers, box 11, folder 3. In the Married Love case, which was patterned on Dennett and litigated the following year, Ernst's office circulated requests for letters of support on the theory that obscenity “is measured not by the application of a statute, but by public opinion,” and that “public opinion could best be crystallized in getting the opinions of representative persons in the community.” Alexander Lindey to Messrs. G. P. Putnam's Sons, September 24, 1930, Ernst Papers, box 359, folder 1. Ernst adopted the same practice in the Ulysses case, discussed below at note 228 and corresponding text. In his brief to the Second Circuit, he argued that the law “is a living organism subject to growth and change in precisely the same manner as society itself” and that “[p]ublic approval should mean … legal vindication.” Brief for Claimant-Appellee, Second Circuit Case File 13326, United States Court of Appeals for the Second Circuit, NARA Northeast Region, Record Group 276.

144. “Mrs. Dennett Freed in Sex Booklet Case,” New York Times, March 4, 1930. Private congratulations poured in. See, for example, B. W. Huebsch to Mary Ware Dennett, March 3, 1930, Dennett Papers, reel 20, file 423; telegram from Rupert Hughes (historian and screenwriter) to Mary Ware Dennett, March 3, 1930, Dennett Papers, reel 20, file 423. John Dewey, who chaired the Defense Committee for some time, wrote: “I don't know when I have had such a spontaneous outburst of elation. I feel as if I had been let out of jail myself.” John Dewey to Mary Ware Dennett, March 3, 1930, Dennett Papers, reel 20, file 423.

145. “Some enemies” came out of the woodwork as well. Mary Ware Dennett to family, May 8, 1929, Dennett Papers, reel 21, file 433.

146. F. Mazsella to Mary Ware Dennett, April 26, 1929, Dennett Papers, reel 21, file 433.

147. Mary Ware Dennett to family, May 2, 1929, Dennett Papers, reel 21, file 433; and James Layne to Mary Ware Dennett, April 26, 1929, Dennett Papers, reel 21, file 444.

148. Dolores Flamiano has examined the press coverage of the Dennett case in depth, and it bears out Dennett's claim in Who's Obscene that the vast majority of newspaper stories were celebratory. Flamiano Dolores, “The Sex Side of Life in the News: Mary Ware Dennett's Obscenity Case, 1929–1930,” Journalism History 25 (1999): 6474.

149. Newspaper support, in turn, likely helped to sway public opinion in Dennett's favor. This phenomenon may help explain the public relations disaster that was the prosecution. Although many organizations and individuals had endorsed “The Sex Side of Life” before the Dennett trial was in the news, public support was far more forthcoming in the wake of the pro-Dennett coverage. But regardless whether Americans were predisposed to Dennett's side or rather were convinced by friendly journalistic portrayals, the crucial point is that they eventually came to support her and her cause.

150. “Common Sense on a Sex Pamphlet,” Kansas City Star, March 5, 1930.

151. “Mrs. Dennett Vindicated,” World, March 6, 1930.

152. Lewis Gannett, “Books and Other Things,” Tribune, March 20, 1930.

153. ACLU Bulletin 395, March 13, 1930, ACLU Records and Publications, reel 2.

154. “Mrs. Dennett Freed in Sex Booklet Case,” New York Times, March 4, 1930.

155. Ernst seems to have better appreciated the magnitude of the victory in retrospect, particularly when vice crusaders held it up as their principal obstacle to enforcement of censorship laws. Morris Ernst to Mary Ware Dennett, December 31, 1934, Dennett Papers, reel 20, file 414.

156. Appellant's Second Circuit Brief, 14.

157. Ibid., 61 (emphasis in original). Ernst's distinction anticipates but does not precisely track the distinction between high- and low-value speech in contemporary First Amendment law, articulated by the Supreme Court in Chaplinksy v. New Hampshire, 315 U.S. 568 (1942).

158. He would later caution that an exception for “clearly” obscene language would result in “the censor winning all cases.” Morris Ernst to Roger Baldwin, February 4, 1938, ACLU Papers, reel 157, vol. 1081.

159. Books that Ernst successfully defended in the New York state courts include Radclyffe Hall's Well of Loneliness, Arthur Schnitzler's Casanova's Homecoming, Hsi Men Ching, Clement Wood's Flesh, Octave Mirbeau's Celestine, Louis Charles Royer's Let's Go Naked, and Erskine Caldwell's God's Little Acre, among others.

160. Ernst and his associates continuously pushed the boundary of acceptability by portraying whatever book they were presently defending as the paragon of purity while referring to earlier works—which they themselves had defended—as comparatively smutty. They would often cite the condemnatory passages from dissents to cases that they had won as evidence of the relative promiscuity of the prior book. See, for example, Memorandum of Law Submitted on Behalf of the Defendants, People v. Brewer & Warren Inc. (N.Y. City Mag. Ct. 1930), 18, Ernst Papers, box 90.

161. On the Ulysses case, see Vanderham Paul, James Joyce and Censorship: The Trials of Ulysses (Hampshire: Macmillan Press, 1998); and Casado Carmelo Medina, “Legal Prudery: The Case of Ulysses,” Journal of Modern Literature 26 (2002): 9098.

162. See below note 222 and accompanying text.

163. Executive Committee Minutes, January 21, 1929, ACLU Records and Publications, reel 2. The ACLU formally announced its offer of assistance to Dennett on January 24, 1929. ACLU Press Bulletin 339, January 24, 1929, ACLU Records and Publications, reel 2. Within a month, it authorized the formation of a special committee to raise funds for printing costs associated with a possible appeal and to appoint a subcommittee for that purpose. Executive Committee Minutes, February 18, 1929, ACLU Records and Publications, reel 2.

164. The formation of the committee was unanimously approved by the Executive Committee of the ACLU.

165. ACLU Bulletin 353, “National Committee Forms for Mrs. Dennett's Defense,” May 3, 1929, ACLU Records and Publications, reel 2.

166. Prior to the Armistice of November 1918, Dewey had been skeptical of free speech claims. The failure of the Versailles Peace Conference to “make the world safe for democracy” prompted him to reevaluate his position. Rabban, Free Speech, 301.

167. ACLU Press Release, November 14, 1929, ACLU Records and Publications, reel 2.

168. Minutes of the Executive Committee Meeting, April 29, 1929, ACLU Records and Publications, reel 2.

169. ACLU Press Release, January 17, 1929, ACLU Records and Publications, reel 2.

170. ACLU Bulletin 385, January 10, 1930, ACLU Records and Publications, reel 2.

171. ACLU Bulletin 387, January 16, 1930, ACLU Records and Publications, reel 2.

172. Shortly after her conviction, Dennett contracted to write a book for Vanguard press on “the stupidities and arbitrary rulings of the Post Office Department.” ACLU Bulletin 354, May 9, 1929, ACLU Records and Publications, reel 2. Dennett, Who's Obscene, was released by Vanguard Press in 1930.

173. Morris Ernst, “Sex Wins in America,” Nation, August 10, 1932, 123.

174. ACLU, Prosecution of Mary Ware Dennett, 8.

175. “Social Morality Work of the W.C.T.U.,” Woman's Journal, May 15, 1920, 1267.

176. Male social hygienists also tentatively supported The Sex Side of Life. Although the American Social Hygiene Association did not officially endorse the pamphlet, several of its members used it as a reference in preparing the organization's own materials. Bascom Johnson, director of the Division of Legal and Protective Measures, American Social Hygiene Association, to Morris Ernst, April 20, 1929, Ernst Papers, box 46, folder 1. The president of the American Social Hygiene Association disapproved of Dennett's lenient attitude toward masturbation but nonetheless asked Judge Moscowitz not to condemn the pamphlet, lest an adverse decision “occasion the suppression of similar documents published by the American Social Hygiene Association.” E. L. Keyes, M.D., to Hon. Grover Moscowitz, February 4, 1929, Ernst Papers, box 46, folder 1.

177. Gilman observed that men were far more likely than women to oppose sex education. Wheeler, Against Obscenity, 115, 126. Men—both critics and supporters of Dennett—generally agreed with this assessment. William Sheafe Chase, Gilman's longtime antiobscenity ally, submitted an amicus brief on behalf of the government in the Dennett case. He told Gilman that Dennett “was thinking as a woman and of women, rather than of her boys as their father would think of them.” Ibid., 127.

178. See above note 64 and corresponding text.

179. John Sumner, head of the New York Society for the Suppression of Vice, vigorously supported the Dennett prosecution and submitted one of the few letters to the District Court that was critical of the pamphlet.

180. Critics often attributed the vice crusaders' excessive zeal to their hypersensitivity to sexual materials, which they believed stemmed from Victorian repression as well as an underlying perversity on the part of the censors. See, for example, Samuel Marcus to Morris Ernst, January 16, 1940, Ernst Papers, box 5, folder 1 (asserting that various prominent vice crusaders “derived a vicarious sex satisfaction out of pornography”).

181. Wheeler, Against Obscenity, 124.

182. Ibid., 5.

183. Gilman had vocally supported Dennett's distribution of “The Sex Side of Life,” but when she discovered that Dennett was on the letterhead of the ACLU's National Committee for Freedom from Censorship, she wrote Dennett to express her disapproval. Ibid., 131.

184. Forrest Bailey, letter to the editor, May 23, 1929, ACLU Records and Publications, reel 2.

185. After the stock market crash, ACLU funds steeply declined, and extension into new terrain was economically difficult. By the time the Dennett defense fund was exhausted, however, censorship work had become such an integral part of the ACLU's agenda that the board found ways to support it through other means. Board Minutes, October 5, 1931, ACLU Records and Publications, reel 3.

186. ACLU Bulletin 397, March 27, 1930, ACLU Records and Publications, reel 2.

187. Board Minutes, April 20, 1931, ACLU Records and Publications, reel 3.

188. NCFC Press Release, July 2, 1931, ACLU Records and Publications, reel 3.

189. Ibid.

190. “Censorship Analyzed by Noted Publicists; Merits and Faults of System Are Placed in Limelight,” Paterson (N.J.) Call, May 22, 1930.

191. Mary Ware Dennett to F. L. Rowe, December 29, 1934, Dennett Papers, reel 20, file 414.

192. Mary Ware Dennett, “‘Married Love’ and Censorship,” Nation, May 27, 1931, 579–80.

193. Ibid.

194. Ibid.

195. Mary Ware Dennett to F. L. Rowe, December 29, 1934, Dennett Papers, reel 20, file 414.

196. For example, Arthur Garfield Hays adopted an absolutist line on the right of the American Nazi party to march, but a Special Committee of the ACLU assigned to consider legislation to curb fascist activities in the United States concluded that some regulation was warranted. Memorandum of the Special Committee to consider Legislation To Curb Fascist Activities in the United States, January 21, 1938, ACLU Papers, reel 156, vol. 1080.

197. See, for example, Forrest Bailey to Members of the Executive Committee, Dennett Papers, reel 20, file 414. Dennett referred several cases to the ACLU. See, for example, Memorandum, July 3, 1930, Dennett Papers, reel 23, file 483.

198. During this period, civil libertarians were developing an incipient constitutional rights claim for free artistic expression. Cf. Post Robert and Siegel Reva, “Roe Rage: Democratic Constitutionalism and Backlash,” Harvard Civil Rights-Civil Liberties Law Review 42 (Summer 2007): 373433.

199. In January 1929 the ACLU announced that it regarded “the censorship of the talking movies as a new angle of the fight for free speech.” ACLU Bulletin 339, January 24, 1929, ACLU Records and Publications, reel 2. A few months later, an ACLU bulletin counseled that “hope of relief from censorship seems to lie rather with the legislature than with the court.” ACLU Bulletin 67, “Civil Liberty and the Courts: Censorship of the Films,” March 1929, ACLU Records and Publications, reel 2.

200. ACLU News Release, February 7, 1929, ACLU Records and Publications, reel 2.

201. The Mastic Bill would have made all plays subject to the approval of a bureau within the State Board of Education. ACLU News Release, March 24, 1931, ACLU Records and Publications, reel 3.

202. ACLU News Release, March 29, 1931, ACLU Records and Publications, reel 3.

203. Ibid. Cutting's bill would have removed all reference to the customs censorship of obscene books from the statutes, thereby leaving the battle against obscene books entirely to the state courts. The following March, the bill was amended to give that power to the federal courts (with their right of trial by jury in civil cases). ACLU Bulletin 396, March 19, 1930, ACLU Records and Publications, reel 2. On the ACLU's role in the tariff bill debate, see Finan Christopher M., From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America (Boston: Beacon Press, 2007), 104.

204. Tariff Act of 1930, 46 Stat. 688 (1930), codified at 19 U.S.C. 1305.

205. Ernst made particular use of this strategy in the state courts. See, for example, Memorandum Submitted on Behalf of Defendants, People v. Samuel Roth (N.Y. City Mag. Ct. 1931), Ernst Papers, box 90 (“We have developed sturdier tastes. And we have grown wiser in the process. We have found that it is better to encourage freedom of expression than to risk the evils of suppression.”).

206. United States v. One Obscene Book, entitled “Married Love,” 48 F.2d 821 (Southern District of New York 1931).

207. Mary Ware Dennett to Alexander Lindey, October 16, 1930, Dennett Papers, reel 23, file 487. Coincidentally, during the 1920 hearings over the Lusk Committee bill—the episode largely responsible for the ACLU's embrace of academic freedom—a proponent of the law sought to impugn the morality of the Rand School by reading passages of Married Love (which was available in the Rand School bookstore). “Defends Rand School and Criticized Book,” New York Times, May 17, 1920. Algernon Lee called the book “a frank discussion of certain facts of sex from the viewpoint of personal hygiene” and told reporters that he “would welcome a thorough comparison of the private life and personal character of our staff and our student body” with that of the bill's advocates.

208. Married Love case materials, Ernst Papers, box 90. Dennett expressed to Lindey that she was “really surprised at the extent to which [her] case serve[d] as a precedent.” Mary Ware Dennett to Alexander Lindey, March 18, 1931, Ernst Papers, box 359, folder 3.

209. District Court Opinion (Judge Woolsey), Section III, Admiralty Case File 106-165, NARA Northeast Region, Record Group 21.

210. In Married Love, Stopes urged husbands to be more attentive to their wives' sexual and emotional needs.

211. Dennett, “‘Married Love’ and Censorship,” 580.

212. Ibid.

213. United States v. One Book Entitled “Contraception,” 51 F.2d 525 (Southern District of New York 1931).

214. Gordon W. Moss to the editor, July 29, 1931, ACLU Records and Publications, reel 3. Stopes herself played no role in the legal battle to admit the book into the United States. ACLU Press Release, July 7, 1931, ACLU Records and Publications, reel 3. Despite the ACLU's celebration of juries in the customs context, the parties to the Contraception case waived their right to a jury trial.

215. District Court Opinion (Judge Woolsey), Section VI, Admiralty Case File 107-197, United States District Court for the Southern District of New York, NARA Northeast Region, Record Group 21.

216. Gordon W. Moss to the Editor, July 29, 1931, ACLU Records and Publications, reel 3. Stopes cabled from London to congratulate the ACLU on its “surprising” victory. ACLU Bulletin 466, July 24, 1931, ACLU Records and Publications, reel 3.

217. District Court Opinion (Judge Woolsey), Section I, Admiralty Case File 106-165, United States District Court for the Southern District of New York, NARA Northeast Region, Record Group 21.

218. Woolsey thus rejected the seemingly plausible argument that prohibiting the importation of a book to the United States constitutes a prior restraint because it wholly prevents its circulation within American borders.

219. Gordon W. Moss, letter to the editor, July 29, 1931, ACLU Records and Publications, reel 3.

220. Gordon W. Moss to W. W. Norton, November 7, 1932, ACLU Papers, reel 86, vol. 503.

221. By 1937, a Harvard Law Review article reported confidently, citing Dennett, that “[u]nder any ‘test,’ it seems clear that serious medico-scientific works are not within the obscenity ban.” Recent Cases: Obscenity, Test of Obscene Literature,” Harvard Law Review 48 (1935): 519–20.

222. Gordon W. Moss to Arthur Garfield Hays, August 18, 1931, ACLU Papers, reel 86, vol. 503.

223. For example, in June 1931, Forrest Bailey recommended a test case of Massachusetts's revised obscenity law based on Marshall McClintock's We Take to Bed, which had been censored in Boston because it contained “an adjective ending in ing—the present participle of the most dreadful of the four-letter words that make pure people tremble.” Forrest Bailey to Morris Ernst, June 20, 1931, ACLU Papers, reel 806, vol. 503. He admitted to Ernst that Roger Baldwin was “a little squeamish about taking up this particular book-defense because he fears we may in some way involve ourselves in defending the use of that word.” Forrest Bailey to Morris Ernst, June 30, 1931, ACLU Papers, reel 806, vol. 503. Ernst ultimately counseled Bailey to “pick a better volume.” Morris Ernst to Forrest Bailey, July 2, 1931, ACLU Papers, reel 806, vol. 503.

224. Gordon Moss to Sidney J. Abelson, April 7, 1931, ACLU Papers, reel 86, vol. 503. Ernst was less discriminating when it came to private clients, like publishers and booksellers, whom he defended in the New York state context. The New York state courts relaxed their obscenity standards slightly earlier than the federal courts, though eventually the two forums began to leapfrog one another, and Ernst routinely cited the most lenient examples from one court to the other.

225. Ernst and Lindey wrote a series of letters to Customs officials and to the United States attorney's office seeking to persuade them that Ulysses ought to be admitted as an artistic masterpiece. Ernst Papers, box 93. Lindey apparently hoped for a test case, but given the firm's fee arrangement with Random House, which gave it royalties in the book but provided limited reimbursement for legal fees, Ernst sought to avoid protracted litigation if possible.

226. Morris Ernst to Alexander Lindey, Office Memorandum, August 12, 1932, Ernst Papers, box 270, folder 3. United States Attorney George Medalie was sympathetic to the book but felt obligated to prosecute.

227. United States v. One Book Entitled Ulysses, 5 F. Supp. 182 (Southern District of New York, 1933). As in the Contraception case, the parties waived the right to a jury trial.

228. Ibid., 184; United States v. One Book Entitled Ulysses, 72 F.2d 705 (Second Circuit, 1934).

229. Roger Baldwin and Morris Ernst, “The New Deal and Civil Liberties” (radio debate over the Blue Network of NBC), January 27, 1934, ACLU Papers, reel 109, vol. 717. Ernst foresaw a shift from sexual to political censorship.

230. Walker, In Defense of American Liberties, 86.

231. Alpert Leo M., “Judicial Censorship of Obscene Literature,” Harvard Law Review 52 (1938): 4076.

232. Statement by Morris L. Ernst upon the Handing Down of Judge Woolsey's Opinion in the Ulysses Case, Ernst Papers, box 93. On the relationship between the rise of the administrative state and the construction of individual rights in the Prohibition cases, see Post Robert, “Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era,” William & Mary Law Review 48 (2006): 1182.

233. Dennett did so. In 1929, she complained that “sexual knowledge [was] being conducted on a bootleg basis.” “Mrs. Dennett Goes on Trial Today,” New York Times, March 6, 1929.

234. Benjamin Hazel C., “Lobbying for Birth Control,” Public Opinion Quarterly 2 (1938): 4860.

235. Reagan Leslie J., When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (Berkeley: University of California Press, 1997), 132–36. By the late 1930s, the federal government assisted in the provision of contraceptives under limited circumstances, and in 1937, the American Medical Association repudiated its longstanding opposition to birth control. Ibid.

236. “Birth Control: Protestant View,” Current History (April 1931): 97.

237. See, for example, Reagan, When Abortion Was a Crime, 139–140.

238. Ernst, “Sex Wins,” 123. Ernst believed birth control legislation would never be directly repealed. Morris Ernst to Charles G. Norris, January 22, 1930, Ernst Papers, box 267, folder 28.

239. Youngs Rubber Corp. v. C. I. Lee & Co., 45 F.2d 103 (Second Circuit, 1930).

240. The Second Circuit decided the case on the basis that the plaintiff could maintain a suit for trademark infringement in equity even if it was violating the statute.

241. Davis v. United States, 62 F.2d 473 (Sixth Circuit, 1933).

242. The indictments in Davis were brought under Sections 334 and 396 of Title 18 United States Code Annotated, a statute regulating the carriage of contraceptive devices and of explanations for their use by express companies and other common carriers operating in interstate commerce.

243. Davis, 62 F.2d at 475.

244. United States v. One Package, 86 F.2d 737 (Second Circuit, 1936).

245. Although the House declined to impeach Moscowitz, it issued a Public Condemnation of his business dealings. “Judiciary: Condemnation,” Time, April 12, 1930, 1.

246. The solicitor general chose not to file a petition for a writ of certiorari. Lamar Hardy, United States attorney, to Greenbaum, Wolff & Ernst, January 25, 1937, Ernst Papers, box 69, folder 15.

247. United States v. One Package, 86 F.2d at 739.

248. Ernst argued that due process required that medical professionals be free to prescribe contraception. Trial transcript, United States v. One Package, Ernst Papers, box 69, folder 9, 71; Brief for Claimant-Appellee, Ernst Papers, box 69, folder 11, 36.

249. National Committee for Freedom from Censorship, “Summary of Birth Control Laws in the United States,” July 28, 1931, ACLU Records and Publications, reel 3.

250. Garrow David J., Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994), 42 (quoting Sanger). She also called it a “complete victory.” “Mrs. Sanger Sees Court Ruling as Victory for Birth Control,” New York World-Telegram, December 6, 1936. Morris Ernst and Harriet Pilpel proclaimed, “[the decision] marks the successful termination of a 60 year struggle to make clear that the federal obscenity laws do not apply to the legitimate activities of physicians.” Ernst Morris and Pilpel Harriet, “A Medical Bill of Rights,” Journal of Contraception (1937): 3537.

251. Mary Ware Dennett to Margaret Sanger, February 15, 1930, Dennett Papers, reel 86, file 502.

252. ACLU Press Release, February 5, 1931, ACLU Records and Publications, reel 3. Gordon Moss, secretary of the NCFC, evidently sided with Dennett. Gordon W. Moss to Mary Ware Dennett, April 17, 1932, ACLU Papers, reel 86, vol. 502.

253. Myron Weiss (Associate Editor, Time) to Mary Ware Dennett, March 12, 1931, Dennett Papers, reel 20, file 412.

254. Mary Ware Dennett to Heywood Broun, May 1, 1929, Dennett Papers, reel 20, file 416; and Mary Ware Dennett to family, May 8, 1929, Dennett Papers, reel 21, file 433.

255. Dennett, “‘Married Love’ and Censorship,” 580.

256. See, for example, Morris Ernst to Margaret Sanger, May 20, 1933, Ernst Papers, box 267, folder 28 (“[O]n all general principles, I am in favor of birth control. Incidentally, I am also very much in favor of you.”); Morris Ernst to Mary Ware Dennett, January 15, 1930, Dennett Papers, reel 23, file 487 (declaring that the time for formalities had long passed, and addressing Dennett by her first name).

257. Nichols, “Sex and the Law,” 552. Ernst regularly corresponded with and provided legal advice to Sanger, but she was not actually a named defendant in the clinic case, which involved a 1929 raid on the Birth Control Clinical Research Bureau, an office that “was not operated or controlled by the Birth Control League, but [in which] Mrs. Sanger was vitally interested.” Samuel J. Schur to Covington, Burling & Rublee, April 17, 1930, Ernst Papers, box 358, folder 1.

258. In 1916, when Sanger (along with her sister, Ethyl Byrne) was arrested for operating the country's first public birth control clinic, she had argued (as the judge summarized it) for “[a] right of copulation . . . that cannot be invaded by the Legislature forbidding the sale of articles necessary to the free enjoyment of such right.” In her attorney's words, the statute was “an infringement upon [a woman's] free exercise of conscience and pursuit of happiness” because it denied “her absolute right of enjoyment of intercourse. . . .” Law Journal, December 5, 1916, Supreme Court, Part I. Mr. Justice Kelby, Kings County, Ernst Papers, box 358, folder 3. This language reflected an earlier, radical moment in the free speech fight. After World War I, bold rights claims of this sort more or less disappeared. Even at the time, it was unavailing as a legal strategy. The judge dismissed Sanger's suggestion of a “personal right” to “copulat[e] without conception” as preposterous. Ibid., 13. Sanger herself later abandoned this approach for a more conservative and politically palatable strategy that played up physicians' professional duties rather than women's choices.

259. Most famously, during World War II, Ernst discouraged criticism of the administration because he felt it undermined ACLU credibility and influence. Walker, In Defense of American Liberties, 156.

260. Essay draft, Ernst Papers, box 198.

261. Ibid. (“Possibly those who are in favor of compromising on this issue feel sure that if birth control material and information can be made legal for the offices of doctors and prescription rooms of druggists, there will be no practical way of preventing such literature reaching the eyes of the general public.”).

262. Hamilton v. City of Montrose, 124 P.2d 757, 759 (Colo. 1942).

263. Meiklejohn Alexander, Free Speech and Its Relation to Self-Governance (New York: Harper Brother Publishers, 1948), 25. Meiklejohn believed “that the people do need novels and dramas and paintings and poems, ‘because they will be called upon to vote.’” Quoted in Owen Fiss, “A Freedom Both Personal and Political,” in Mill John Stuart, On Liberty, ed. Bromwich David and Kateb George (New Haven: Yale University Press, 2002), 192.

264. Statement by the National Council on Freedom from Censorship, July 16, 1934, ACLU Papers, reel 105, vol. 678.

265. Ernst's 1940 article for the Britannica Book of the Year listed as one of the year's crucial civil liberties developments the refusal of the United States Supreme Court to review a Massachusetts decision closing birth control clinics in that state. He noted that new cases would seek to persuade the courts “that medically regulated contraception should not be interfered with.” In the same paragraph, he lauded a new Post Office Department ruling that permitted the free circulation of birth control information and supplies to doctors and pharmacists. Ernst Morris, “Civil Liberties,” in Britannica Book of the Year, 1940 (Chicago: Encyclopaedia Britannica, 1940).

266. Analogous arguments with respect to pornography and hate speech during the 1980s and 1990s were rejected by the ACLU and by most First Amendment scholars. See, e.g., Strossen Nadine, “Regulating Racist Speech on Campus: A Modest Proposal?” Duke Law Journal (1990): 484573; Strossen Nadine, “In Defense of Freedom and Equality: The American Civil Liberties Union Past, Present, and Future,” Harvard Civil Rights-Civil Liberties Law Review 29 (1994): 143–58.

267. To borrow from Robert Gordon, Dennett has the potential to “[tell] us that the difficulties we have in imagining forms of social life different from and better than those we are accustomed to may be due to the limits on our conceptions of reality rather than to limits inherent in reality itself.” Gordon Robert W., “Critical Legal Histories,” Stanford Law Review 36 (1984): 57125, 100. That is true whether Dennett itself changed everything or, rather, was merely one “episode,” albeit an important one, “in an ongoing story of bargaining and conflict between contending normative orders.” Hartog Hendrik, “Pigs and Positivism,” Wisconsin Law Review (1985): 899935, 935.

268. For example, Harold Lord Varney alleged in the American Mercury that Alexander Woolcott, “a genuine Liberal,” joined the ACLU because of his mistaken belief that “the Union was primarily a defender of artistic freedom against the throttling hand of censorship”—and that an additional 300 members signed on as a result. Varney Harold Lord, “The Civil Liberties Union,” American Mercury 39 (1936): 385–99.

269. More obliquely, it paved the way for what mid-century aesthetes and intellectuals would celebrate as the fulfillment of individual identity, and cultural critic Phillip Rieff would denigrate as “post-communal culture.” Rieff Philip, The Triumph of the Therapeutic: Uses of Faith After Freud (New York: Harper and Row, 1966), 11. Rieff explained: “Much of modern literature constitutes a symbolic act of going over to the side of the latest, and most original individualist. This represents the complete democratization of our culture.” Ibid., 9.

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Law and History Review
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  • EISSN: 1939-9022
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