Ginsberg v. New York

MR. Justice Douglas,

with whom Mr. Justice Black concurs,

dissenting.

While I would be willing to reverse the judgment on the basis of Redrup v. New York, 386 U. S. 767 , for the reasons stated by my Brother Fortas, my objections strike deeper.

If we were in .the field of substantive due process and seeking to measure the propriety of state law by the standards of the Fourteenth Amendment, I suppose there would be no difficulty under our decisions in sustaining this act. For there is a view held by many that the so-called “obscene” book or tract or magazine has a deleterious effect upon the young, although I seriously doubt the wisdom of trying by law to put the fresh, evanescent, natural blossoming of sex in the category of “sin.”

That, however, was the view of our preceptor in this field, Anthony Comstock, who waged his war against “obscenity” from the year 1872 until his death in 1915. Some of his views are set forth in his book Traps for the Young, first published in 1883, excerpts from which I set out in Appendix I to this opinion.

*651 The title of the book refers to “traps” created by Satan “for boys and girls especially.” Comstock, of course, operated on the theory that every human has an “inborn tendency toward wrongdoing which is restrained mainly by fear of the final judgment.” In his view any book which tended to remove that fear is a part of the “trap” which Satan created. Hence, Comstock would have condemned a much wider range of literature than the present Court is apparently inclined to do. 1

It was Comstock who was responsible for the Federal Anti-Obscenity Act of March 3, 1873. 17 Stat. 598 . It was he who was also responsible for the New York Act which soon followed. He was responsible for the organization of the New York Society for the Suppression of Vice, which by its act of incorporation was granted one-half of the fines levied on people successfully prosecuted by the Society or its agents.

1 would conclude from Comstock and his Traps for the Young and from other authorities that a legislature could not be said to be wholly irrational 2 (Ferguson *652 v. Skrupa, 372 U. S. 726 ; and see Williamson v. Lee Optical Co., 348 U. S. 483 ; Daniel v. Family Ins. Co., 336 U. S. 220 ; Olsen v. Nebraska, 313 U. S. 236 ) if it decided that sale of “obscene” material to the young should be banned. 3

The problem under the First Amendment, however, has always seemed to me to be quite different. For its mandate (originally applicable only to the Federal Government but now applicable to the States as well by reason of the Fourteenth Amendment) is directed to any law “abridging the freedom of speech, or of the press.” I appreciate that there are those who think that *653 “obscenity” is impliedly excluded; but I have indicated on prior occasions why I have been unable to reach that conclusion. 4 See Ginzburg v. United States, 383 U. S. *654 463, 482 (dissenting opinion); Jacobellis v. Ohio, 378 U. S. 184, 196 (concurring opinion of Mr. Justice Black); Roth v. United States, 354 U. S. 476, 508 (dissenting opinion). And the corollary of that view, as I expressed it in Public Utilities Comm’n v. Pollak, 343 U. S. 451, 467, 468 (dissenting opinion), is that Big Brother can no more say what a person shall listen to or read than he can say what shall be published.

This is not to say that the Court and Anthony Com-stock are wrong in concluding that the kind of literature New York condemns does harm. As a matter of fact, the notion of censorship is founded on the belief that speech and press sometimes do harm and therefore can be regulated. I once visited a foreign nation where the regime of censorship was so strict that all I could find in the bookstalls were tracts on religion and tracts on mathematics. Today the Court determines the constitutionality of New York’s law regulating the sale of literature to children on the basis of the reasonableness of the law in light of the welfare of the child. If the problem of state and federal regulation of “obscenity” is in the field of substantive due process, I see no reason to limit the legislatures to protecting children alone. The “juvenile delinquents” I have known are mostly over *655 50 years of age. If rationality is the measure of the validity of this law, then I can see how modern Anthony Comstocks could make out a case for “protecting” many groups in our society, not merely children.

While I find the literature and movies which come to us for clearance exceedingly dull and boring, I understand how some can and do become very excited and alarmed and think that something should be done to stop the flow. It is one thing for parents 5 and the religious organizations to be active and involved. It is quite a different matter for the state to become implicated as a censor. As I read the First Amendment, it was designed to keep the state and the hands of all state officials off the printing presses of America and off the distribution systems for- all printed literature. Anthony Comstock wanted it the other way; he indeed put the police and prosecutor in the middle of this publishing business.

I think it would require a constitutional amendment to achieve that result. If there were a constitutional amendment, perhaps the people of the country would come up with some national board of censorship. Censors are, of course, propelled by their own neuroses. 6 *656 That is why a universally accepted definition of obscenity is impossible. Any definition is indeed highly subjective, turning on the neurosis of the censor. Those who have a deep-seated, subconscious conflict may well become either great crusaders against a particular kind of literature or avid customers of it. 7 That, of course, is the danger of letting any group of citizens be the judges of what other people, young or old, should read. Those would be issues to be canvassed and debated in case of a constitutional amendment creating a regime of censorship in the country. And if the people, in their wisdom, launched us on that course, it would be a considered choice.

Today this Court sits as the Nation’s board of censors. With all respect, I do not know of any group in the country less qualified first, to know what obscenity is when they see it, and second, to have any considered judgment as to what the deleterious or beneficial impact of a particular publication may be on minds either, young or old.

I would await a constitutional amendment that authorized the modern Anthony Comstocks to censor literature before publishers, authors, or distributors can be fined or jailed for what they print or sell.

APPENDIX I TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING.

A. Comstock, Traps for the Young 20-22 (1883).

And it came to pass that as Satan went to and fro upon the earth, watching his traps and rejoicing over *657 his numerous victims, he found room for improvement in some of his schemes. The daily press did not meet all his requirements. The weekly illustrated papers of crime would do for young men and sports, for brothels, gin-mills, and thieves’ resorts, but were found to be so gross, so libidinous, so monstrous, that every decent person spurned them. They were excluded from the home on sight. They were too high-priced for children, and too cumbersome to be conveniently hid from the parent’s eye or carried in the boy’s pocket. So he resolved to make another trap for boys and girls especially.

He also resolved to make the most of these vile illustrated weekly papers, by lining the news-stands and shop-windows along the pathway of the children from home to school and church, so that they could not go to and from these, places of instruction without giving him opportunity to defile their pure minds by flaunting these atrocities before their eyes.

And Satan rejoiced greatly that professing Christians were silent and apparently acquiesced in his plans. He found that our most refined men and women went freely to trade with persons who displayed these traps for sale; that few, if any, had moral courage to enter a protest against this public display of indecencies, and scarcely one in all the land had the boldness to say to the dealer in filth, “I will not give you one cent of my patronage so long as you sell these devil-traps to ruin the young.” And he was proud of professing Christians and respectable citizens on this account, and caused honorable mention to be made of them in general order to his imps, because of the quiet and orderly assistance thus rendered him.

Satan stirred up certain of his willing tools on earth by the promise of a few paltry dollars to improve greatly on the death-dealing quality of the weekly death-traps, and forthwith came a series of new snares of fascinating *658 construction, small and tempting in price, and baited with high-sounding names. These sure-ruin traps comprise a large variety of half-dime novels, five and ten cent story papers, and low-priced pamphlets for boys and girls.

This class includes the silly, insipid tale, the coarse, slangy story in the dialect of the barroom, the blood- and-thunder romance of border life, and the exaggerated details of crimes, real and imaginary. Some have highly colored sensational reports of real crimes, while others, and by far the larger number, deal with most improbable creations of fiction. The unreal far outstrips the real. Crimes are gilded, and lawlessness is painted to resemble valor, making a bid for bandits, brigands, murderers, thieves, and criminals in general. Who would go to the State prison, the gambling saloon, or the brothel to find a suitable companion for the child? Yet a more insidious foe is selected when these stories are allowed to become associates for the child’s mind and to shape and direct the thoughts.

The finest fruits of civilization are consumed by these vermin. Nay, these products of corrupt minds are the eggs from which all kinds of villainies are hatched. Put the entire batch of these stories together, and I challenge the publishers and vendors to show a single instance where any boy or girl has been elevated in morals, or where any noble or refined instinct has been developed by them.

The leading character in many, if not in the vast majority of these stories, is some boy or girl who possesses usually extraordinary beauty of countenance, the most superb clothing, abundant wealth, the strength of a giant, the agility of a squirrel, the cunning of a fox, the brazen effrontery of the most daring villain, and who is utterly destitute of any regard for the laws of God or man. Such a one is foremost among desperadoes, the companion and *659 beau-ideal of maidens, and the high favorite of some rich person, who by his patronage and indorsement lifts the young villain into lofty positions in society, and provides liberally of his wealth to secure him immunity for his crimes. These stories link the pure maiden with the most foul and loathsome criminals. Many of them favor violation of marriage laws and cheapen female virtue.

APPENDIX II TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING.

A Special to The Washington Post [March 3, 1968] by

Austin C. Wehrwein

White Bear Lake, Minn., March 8. — Faced with the threat of a law suit, the school board in this community of 12,000 north of St. Paul is reviewing its mandatory sex education courses, but officials expressed fear that they couldn’t please everybody.

Mothers threatened to picket and keep their children home when sex education films are scheduled. Mrs. Robert Murphy, the mother of five who led the protests, charged that the elementary school “took the privacy out of marriage.”

“Now,” she said, “our kids know what a shut bedroom door means. The program is taking their childhood away. The third graders went in to see a movie on birth and came out adults.”

She said second-grade girls have taken to walking around with “apples and oranges under their blouses.” Her seventh-grade son was given a study sheet on menstruation, she said, demanding “why should a seventh-grade boy have to know about menstruation?”

Mrs. Murphy, who fears the program will lead to ex *660 perimentation, said that it was “pagan” and argued that even animals don’t teach their young those things “before they’re ready.”

“One boy in our block told his mother, ‘Guess what, next week our teacher’s gonna tell us how daddy fertilized you,’ ” reported Mrs. Martin Capeder. “They don’t need to know all that.”

But Norman Jensen, principal of Lincoln School, said that the program, which runs from kindergarten through the 12th grade, was approved by the school district’s PTA council, the White Bear Lake Ministerial Association and the district school board. It was based, he said, on polls that showed 80 per cent of the children got no home sex education, and the curriculum was designed to be “matter-of-fact.”

The protesting parents insisted they had no objection to sex education as such, but some said girls should not get it until age 12, and boys only at age 15 — “or when they start shaving.”

(In nearby St. Paul Park, 71 parents have formed a group called “Concerned Parents Against Sex Education” and are planning legal action to prevent sex education from kindergarten through seventh grade. They have also asked equal time with the PTAs of eight schools in the district “to discuss topics such as masturbation, contraceptives, unqualified instructors, religious belief, morality and attitudes.”)

The White Bear protesters have presented the school board with a list of terms and definitions deemed objectionable. Designed for the seventh grade, it included vagina, clitoris, erection, intercourse and copulation. A film, called “Fertilization and Birth” depicts a woman giving birth. It has been made optional after being shown to all classes.

Mrs. Ginny McKay, a president of one of the local PTAs defended the program, saying “Sex is a natural and *661 beautiful thing. We (the PTA) realized that the parents had to get around to where the kids have been for a long time.”

But Mrs. Murphy predicted this result: “Instead of 15 [sic] and 15-year-old pregnant girls, they’ll have 12 and 13-year-old pregnant girls.”

APPENDIX III TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING.

(A). T. SCHROEDER, OBSCENE LITERATURE AND CONSTITUTIONAL Law 277-278 (1911).

It thus appears that the only unifying element generalized in the word “obscene,” (that is, the only thing common to every conception of obscenity and indecency), is subjective, is an affiliated emotion of disapproval. This emotion under varying circumstances of temperament and education in different persons, and in the same person in different stages of development, is aroused by entirely different stimuli, and by fear of the judgment of others, and so has become associated with an infinite variety of ever-changing objectives, with not even one common characteristic in objective nature; that is, in literature or art.

Since few men have identical experiences, and fewer still evolve to an agreement in their conceptional and emotional associations, it must follow that practically none have the same standards for judging the “obscene,” even when their conclusions agree. The word “obscene,” like such words as delicate, ugly, lovable, hateful, etc., is an abstraction not based upon a 'reasoned, nor sense-perceived, likeness between objectives, but the selection or classification under it is made, on the basis of similarity in the emotions aroused, by an infinite variety of images; and every classification thus made, in turn, depends in each person upon his fejars, his hopes, his *662 prior experience, suggestions, education, and the degree of neuro-sexual or psycho-sexual health. Because it is a matter wholly of emotions, it has come to be that “men think they know because they feel, and are firmly convinced because strongly agitated.”

This, then, is a demonstration that obscenity exists only in the minds and emotions of those who believe in it, and is not a quality of a book or picture. Since, then, the general conception “obscene” is devoid of every objective element of unification; and since the subjective element, the associated emotion, is indefinable from its very nature, and inconstant as to the character of the stimulus capable of arousing it, and variable and immeasurable as to its relative degrees of intensity, it follows that the “obscene” is incapable of accurate definition or a general test adequate to secure uniformity of result, in its application by every person, to each book of doubtful “purity.”

Being so essentially and inextricably involved with human emotions that no man can frame such a definition of the word “obscene,” either in terms of the qualities of a book, or such that, by it alone, any judgment whatever is possible, much less is it possible that by any such alleged “test” every other man must reach the same conclusion about the obscenity of every conceivable book. Therefore, the so-called judicial “tests” of obscenity are not standards of judgment, but, on the contrary, by every such “test” the rule of decision is itself uncertain, and in terms invokes the varying experiences of the test[e]rs within the foggy realm of problematical speculation about psychic tendencies, without the help of which the “test” itself is meaningless and useless. It follows that to each person the “test,” of criminality, which should be a general standard of judgment, unavoidably becomes a personal and particular standard, differing in all per *663 sons according to those varying experiences which they read into the judicial “test.” It is this which makes uncertain, and, therefore, all the more objectionable, all the present laws against obscenity. Later it will be shown that this uncertainty in the criteria of guilt renders these laws unconstitutional.

(B). Kallen, The Ethical Aspects oe Censorship, in 5 Social Meaning of Legal Concepts 34, 50-51 (N. Y. U. 1953).

To this authoritarian’s will, difference is the same thing as inferiority, wickedness and corruption; he can apprehend it only as a devotion to error and a commitment to sin. He can acknowledge it only if he attributes to it moral turpitude and intellectual vice. Above all, difference must be for him, by its simple existence, an aggression against the good, the true, the beautiful and the right. His imperative is to destroy it; if he cannot destroy it, to contain it; if he cannot contain it, to hunt it down, cut it off and shut it out.

Certain schools of psychology suggest that this aggression is neither simple nor wholly aggression. They suggest that it expresses a compulsive need to bring to open contemplation the secret parts of the censor’s psychosomatic personality, and a not less potent need to keep the secret and not suffer the shamefaced dishonor of their naked exposures. The censor’s activities, in that they call for a constant public preoccupation with such secret parts, free his psyche from the penalties of such concern while transvaluing at the same time his pursuit and inspection of the obscene, the indecent, the pornographic, the blasphemous and the otherwise shameful into an honorable defense of the public morals. The censor, by purporting, quite unconscious of his actual dynamic, to protect the young from corruption, frees his conscious *664 ness to dwell upon corruption without shame or dishonor. Thus, Anthony Comstock could say with overt sincerity: “When the genius of the arts produces obscene, lewd and lascivious ideas, the deadly effect upon the young is just as perceptible as when the same ideas are represented by gross experience in prose and poetry. ... If through the eye and ear the sensuous book, picture or story is allowed to enter, the thoughts will be corrupted, the conscience seared, so such things reproduced by fancy in the thoughts awaken forces for evil which will explode with irresistible force carrying to destruction every human safeguard to virtue and honor.” Did not evil Bernard Shaw, who gave the English language the word com-stockery, declare himself, in his preface to The Shewing-Up of Blanco Posnet, “a specialist in immoral, heretical plays ... to force the public to reconsider its morals”? So the brave Comstock passionately explored and fought the outer expressions of the inner forces of evil and thus saved virtue and honor from destruction.

But could this observation of his be made, save on the basis of introspection and not the scientific study of others? For such a study would reveal, for each single instance of which it was true, hundreds of thousands of others of which it was false. Like the correlation of misfortune with the sixth day of the week or the number 13, this basic comstockery signalizes a fear-projected superstition. It is an externalization of anxiety and fear, not a fact objectively studied and appraised. And the anxiety and fear are reaction-formations of the censor’s inner self.

Of course, this is an incomplete description of the motivation and logic of censorship. In the great censorial establishments of the tradition, these more or less unconscious drives are usually items of a syndrome whose dominants are either greed for pelf, power, and prestige, reinforced by anxiety that they might be lost, *665 or anxiety that they might be lost reinforced by insatiable demands for more.

Authoritarian societies usually insure these goods by means of a prescriptive creed and code for which their rulers claim supernatural origins and supernatural sanctions. The enforcement of the prescriptions is not entrusted to a censor alone. The ultimate police-power is held by the central hierarchy, and the censorship of the arts is only one department of the thought-policing.

(C). Crawford, Literature and the Psychopathic, 10 Psychoanalytic Review 440, 445-446 (1923).

Objection, then, to modern works on the ground that they are, in the words of the objectors, “immoral,” is made principally on the basis of an actual desire to keep sexual psychopathies intact, or to keep the general scheme of repression, which inevitably involves psychopathic conditions, intact. The activities of persons professionally or otherwise definitely concerned with censorship furnish proof evident enough to the student of such matters that they themselves are highly abnormal. It is safe to say that every censorship has a psychopath back of it.

Carried to a logical end, censorship would inevitably destroy all literary art. Every sexual act is an instinctive feeling out for an understanding of life. Literary art, like every other type of creative effort, is a form of sublimation. It is a more conscious seeking for the same understanding that the common man instinctively seeks. The literary artist, having attained understanding, communicates that understanding to his readers. That understanding, whether of sexual or other matters, is certain to come into conflict with popular beliefs, fears, and taboos because these are, for the most part, based on error. ... [T]he presence of an opinion concerning which one thinks it would be unprofitable, immoral, or *666 unwise to inquire is, of itself, strong evidence that that opinion is nonrational. Most of the more deep-seated convictions of the human race belong to this category. Anyone who is seeking for understanding is certain to encounter this nonrational attitude.

The act of sublimation on the part of the writer necessarily involves an act of sublimation on the part of the reader. The typical psychopathic patient and the typical public have alike a deep-rooted unconscious aversion to sublimation. Inferiority and other complexes enter in to make the individual feel that acts of sublimation would destroy his comfortable, though illusory, sense of superiority. Again, there is the realization on the part of the mass of people that they are unable to sublimate as the artist does, and to admit his power and right to do so involves destruction of the specious sense of superiority to him. It is these two forms of aversion to sublimation which account for a considerable part of public objection to the arts. The common man and his leader, the psychopathic reformer, are aiming unconsciously at leveling humanity to a plane of pathological mediocrity.

To the student of abnormal psychology the legend, popular literature, and literature revelatory of actual life, are all significant. In the legend he finds race taboos, in the popular literature of the day he discovers this reinforced by the mass of contemporary and local taboos, in literature that aims to be realistically revelatory of life he finds material for study such as he can hardly obtain from any group of patients. The frankness which he seeks in vain from the persons with whom he comes into personal contact, he can find in literature. It is a field in which advances may be made comparable to the advances of actual scientific research.

Moreover, the student of abnormal psychology will commend realistic, revelatory literature not only to his *667 patients, who are suffering from specific psychopathic difficulties, but to the public generally. He will realize that it is one of the most important factors in the development of human freedom. No one is less free than primitive man. The farther we can get from the attitude of the legend and its slightly more civilized successor, popular literature, the nearer we shall be to a significant way of life.

(D). J. Rinaldo, Psychoanalysis of the “Reformer” 56-60 (1921).

The other aspect of the humanist movement is a very sour and disgruntled puritanism, which seems at first glance to protest and contradict every step in the libidinous development. As a matter of fact it is just as much an hysterical outburst as the most sensuous flesh masses of Rubens, or the sinuous squirming lines of Louis XV decoration. Both are reactions to the same morbid past experience.

The Puritan like the sensualist rebels at the very beginning against the restraint of celibacy. Unfortunately, however, he finds himself unable'to satisfy the libido in either normal gratification or healthy converted activities. His condition is as much one of super-excitement as that of the libertine. Unable to find satisfaction in other ways, from which for one reason or another he is inhibited, he develops a morbid irritation, contradicting, breaking, prohibiting and thwarting the manifestations of the very exciting causes.

Not being able to produce beautiful things he mars them, smashing stained glass windows, destroying sculptures, cutting down May-poles, forbidding dances, clipping the hair, covering the body with hideous misshapen garments and silencing laughter and song. He cannot build so he must destroy. He cannot create so he hinders creation. He is a sort of social abortionist and like an *668 abortionist only comes into his own when there is an illegitimate brat to be torn from the womb. He cries against sin, but it is the pleasure of sin rather than the sin he fights. It is the enjoyment he is denied that he hates.

From no age or clime or condition is he absent; but never is he a dominant and deciding factor in society till that society has passed the bounds of sanity. Those who wait the midwife never call in the abortionist, nor does he ever cure the real sickness of his age. That he does survive abnormal periods to put his impress on the repressions of later days is due to the peculiar economy of his behavior. The libertine destroys himself, devouring his substance in self-satisfaction. The reformer devours others, being somewhat in the nature of a tax on vice, living by the very hysteria that destroys his homologous opposite.

In our own day we have reached another of those critical periods strikingly similar in its psychological symptoms and reactions, at least, to decadent Rome. We have the same development of extravagant religious cults, Spiritism, Dowieism, “The Purple Mother,” all eagerly seized upon, filling the world with clamor and frenzy; the same mad seeking for pleasure, the same breaking and scattering of forms, the same orgy of gluttony and extravagance, the same crude emotionalism in art, letter and the. theater, the same deformed and inverted sexual life.

Homo-sexualism may not be openly admitted, but the “sissy” and his red necktie are a familiar and easily understood property of popular jest and pantomime. It is all a mad jazz jumble of hysterical incongruities, dog dinners, monkey marriages, cubism, birth control, feminism, free-love, verse libre, and moving pictures. Through it all runs the strident note of puritanism. As one grows so does the other. Neither seems to precede or follow.

*669 It would be a rash man indeed who would attempt to give later beginnings to the reform movements than to the license they seem so strongly to contradict. Significant indeed is the fact that their very license is the strongest appeal of the reformer. Every movie must preach a sermon and have a proper ending, but the attempted rape is as seldom missing as the telephone; and it is this that thrills and is expected to thrill.

The same sexual paradox we saw in the eunuch priests and harlot priestesses of Isis we see in the vice-crusading, vice-pandering reformers. Back of it all lies a morbid sexual condition, which is as much behind the anti-alcoholism of the prohibitionist, as behind the cropped head of his puritan father, and as much behind the birth-control, vice-crusading virgins as behind their more amiable sisters of Aphrodite.

Interpreted then in the light of their history, liber-tinism and reformism cannot be differentiated as cause and effect, action and reaction, but must be associated as a two-fold manifestation of the same thing, an hysterical condition. They differ in externals, only insofar as one operates in license and the other in repression, but both have the same genesis and their development is simultaneous.

(E). H. Lasswell,- Psychopathology and Politics 94-96 (1930).

Another significant private motive, whose organization dates from early family days, but whose influence was prominent in adult behavior, was A’s struggle to maintain his sexual repressions. [“A” is an unidentified, nonfictional person whose life history was studied by the author.] He erected his very elaborate personal prohibitions into generalized prohibitions for all society, and just as‘he laid down the law against brother-hatred, he condemned “irregular” sexuality and gambling and drink *670 ing, its associated indulgences. He was driven to protect himself from himself by so modifying the environment that his sexual impulses were least often aroused, but it is significant that he granted partial indulgence to his repressed sexuality by engaging in various activities closely associated with sexual operations. Thus his sermons against vice enabled him to let his mind dwell upon rich fantasies of seduction. His crusading ventures brought him to houses of ill fame, where partly clad women were discoverable in the back rooms. These activities were rationalized by arguing that it was up to him as a leader of the moral forces of the community to remove temptation from the path of youth. At no time did he make an objective inquiry into the many factors in society which increase or diminish prostitution. His motives were of such an order that he was prevented from self-discipline by prolonged inspection of social experience.

That A was never able to abolish his sexuality is sufficiently evident in his night dreams and day dreams. In spite of his efforts to “fight” these manifestations of his “antisocial impulses,” they continued to appear. Among the direct and important consequences which they produced was a sense of sin, not only a sense of sexual sin, but a growing conviction of hypocrisy. His “battle” against “evil” impulses was only partially successful, and this produced a profound feeling of insecurity.

This self-punishing strain of insecurity might be alleviated, he found, by publicly reaffirming the creed of repression, and by distracting attention to other matters. A’s rapid movements, dogmatic assertions, and diversified activities were means of escape from this gnawing sense of incapacity to cope with his own desires and to master himself. Uncertain of his power to control himself, he was very busy about controlling others, and engaged in endless committee sessions, personal conferences, and public meetings for the purpose. He always managed *671 to submerge himself in a buzzing life of ceaseless activity; he could never stand privacy and solitude, since it drove him to a sense of futility; - and he couldn’t undertake prolonged and laborious study, since his feeling of insecurity demanded daily evidence of his importance in the world.

A’s sexual drives continued to manifest themselves, and to challenge his resistances. He was continually alarmed by the luring fear that he might be impotent. Although he proposed marriage to two girls when he was a theology student, it is significant that he chose girls from his immediate entourage, and effected an almost instantaneous recovery from his disappointments. This warrants the inference that he was considerably relieved to postpone the test of his potency, and this inference is strengthened by the long years during which he cheerfully acquiesced in the postponement of his marriage to the woman who finally became his wife. He lived with people who valued sexual potency, particularly in its conventional and biological demonstration in marriage and children, and his unmarried state was the object of good-natured comment. His pastoral duties required him to “make calls” on the sisters of the church, and in spite of the cheer which he was sometimes able to bring to the bedridden, there was the faint whisper of a doubt that this was really a man’s job. And though preaching was a socially respectable occupation, there was something of the ridiculous in the fact that one who had experienced very little of life should pass for a privileged censor of all mankind.

Two writers have explained Comstock as follows:

“He must have known that he could not wall out from his own mind all erotic fancies, and so he turned all the more fiercely upon the ribaldry of others.” H. Broun & M. Leech, Anthony Comstock 27 (1927).

A notable forerunner of Comstock was an Englishman, Thomas Bowdler. Armed with a talent for discovering the “offensive,” Bowdler expurgated Shakespeare’s plays and Gibbon’s History of the Decline and Fall of the Roman Empire. The result was “The Family Shakespeare,” first published in 10 volumes in 1818, and a version of Gibbon’s famous history “omitting everything of an immoral or irreligious nature, and incidentally rearranging the order of chapters to be in the strict chronology so dear to the obsessional heart.” M. Wilson, The Obsessional Compromise, A Note on Thomas Bowdler (1965) (paper in Library of the American Psychiatric Association, Washington, D. C.).

“The effectiveness of more subtle forms of censorship as an instrument of social control can be very great. They are effective over *652 a wider field of behavior than is propaganda in that they affect convivial and 'purely personal’ behavior.

“The principle is that certain verbal formulae shall not be stated, in print or in conversation; from this the restriction extends to the discussion of certain topics. A perhaps quite rationally formulated taboo is imposed; it becomes a quasi-religious factor for the members of the group who subscribe to it. If they are a majority, and the taboo does not affect some master-symbol of an influential minority, it is apt to become quite universal in its effect. A great number of taboos — to expressive and to other acts — are embodied in the mores of any people. The sanction behind each taboo largely determines its durability — in the sense of resistance opposed to the development of contradictory counter-mores, or of simple disintegration from failure to give returns in personal security. If it is to succeed for a long time, there must be recurrent reaffirmations of the taboo in connection with the sanctioning power.

“The occasional circulation of stories about a breach of the taboo and the evil consequences that flowed from this to the offender and to the public cause (the sanctioning power) well serves this purpose. Censorship of this sort has the color of voluntary acceptance of a ritualistic avoidance, in behalf of oneself and the higher power. A violation, after the primitive patterns to which we have all been exposed, strikes at both the sinner and his god.” The William Aianson White Psychiatric Foundation Memorandum: Propaganda & Censorship, 3 Psychiatry 628, 631 (1940).

And see Gaylin, Book Review: The Prickly Problems of Pornography, 77 Yale L. J. 579, 594.

My Brother Harlan says that no other Justice of this Court, past or present, has ever “stated his acceptance” of the view that “obscenity” is within the protection of the First and Fourteenth Amendments. Post, at 705. That observation, however, should not be understood as demonstrating that no other members of this Court, since its first Term in 1790, have adhered to the view of my Brother Black and myself. For the issue “whether obscenity is utterance within the area of protected speech and press” was only “squarely presented” to this Court for the first time in 1957. Roth v. United States, 354 U. S. 476, 481 . This is indeed understandable, for the state legislatures have borne the main burden in enacting laws dealing with “obscenity”; and the strictures of the First Amendment were not applied to them through the Fourteenth until comparatively late in our history. In Gitlow v. New York, 268 U. S. 652 , decided in 1925, the Court assumed that the right of free speech was among the freedoms protected against state infringement by the Due Process Clause of the Fourteenth Amendment. See also Whitney v. California, 274 U. S. 357, 371, 373 ; Fiske v. Kansas, 274 U. S. 380 . In 1931, Stromberg v. California, 283 U. S. 359 , held that the right of free speech was guaranteed in full measure by the Fourteenth Amendment. But even after these events “obscenity” cases were not inundating this Court; and even as late as 1948, the Court could say that many state obscenity statutes had “lain dormant for decades.” Winters v. New York, 333 U. S. 507, 511 . In several cases prior to Roth , the Court reviewed convictions under federal statutes forbidding the sending of “obscene” materials through the mails. But in none of these cases was the question squarely presented or decided whether “obscenity” was protected speech under the First Amendment; rather, the issues were limited to matters of statutory construction, or questions of procedure, such as the sufficiency of the indictment. See United States v. Chase, 135 U. S. 255 ; Grimm v. United States, 156 U. S. 604 ; Rosen v. United States, 161 U. S. 29 ; Swearingen v. United States, 161 U. S. 446 ; Andrews v. United States, 162 U. S. 420 ; Price v. United States, 165 U. S. 311 ; Dunlop v. United States, 165 U. S. 486 ; Bartell v. United States, 227 U. S. 427 ; Dysart v. United States, 272 U. S. 655 ; United States v. Limehouse, 285 U. S. 424 . Thus, Roth v. United States, supra, which involved both a challenge to 18 U. S. C. §1461 (punishing the *654 mailing of “obscene” material) and, in a consolidated case (Alberts v. California), an attack upon Cal. Pen. Code § 311 (prohibiting, inter alia, the keeping for sale or advertising of “obscene” material), was the first case authoritatively to measure federal and state obscenity statutes against the prohibitions of the First and Fourteenth Amendments. I cannot speak for those who preceded us in time; but neither can I interpret occasional utterances suggesting that “obscenity” was not protected by the First Amendment as considered expressions of the views of any particular Justices of the Court. See, e. g., Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 ; Beauharnais v. Illinois, 343 U. S. 250, 266 . The most that can be said, then, is that no other members of this Court since 1957 have adhered to the view of my Brother Black and myself.

See Appendix II to this opinion.

Reverend Fr. Juan de Castaniza of the 16th century explained those who denounced obscenity as expressing only their own feelings. In his view they had too much reason to suspect themselves of being “obscene,” since “vicious men are always prone to think others like themselves.” T. Schroeder, A Challenge to Sex Censors 44-45 (1938).

“Obscenity, like witchcraft . . . consists, broadly speaking, of a [delusional] projection of certain emotions (which, as the very word implies, emanate from within) to external things and an endowment of such things (or in the case of witchcraft, of such persons) with the moral qualities corresponding to these inward states. . . .

“Thus persons responsible for the persistent attempts to suppress the dissemination of popular knowledge concerning sex matters betray themselves unwittingly as the bearers of the very impulses they would so ostentatiously help others to avoid. Such persons should *656 know through their own experience that ignorance of a subject does not insure immunity against the evils of which it treats, -nor does the propitiatory act of noisy public disapproval of certain evils signify innocence or personal purity.” Van Teslaar, Book Review, 8 J. Abnormal Psychology 282, 286 (1913).

See Appendix III to this opinion.