Issue #1 Winter 2002
Sex and H.L. Mencken: a case of snail mail censorship
by Eric Longley
To
understand the famous “Hatrack” case and H. L. Mencken’s battle with the
United States Postal Service from 1926 to 1927, we need to forget for a while
our modern conceptions about the mail and about obscenity. In the 1920’s, the
U.S. Postal Service was how Americans received their Sears catalogs, their
packages, and their magazines and newspapers. The Postal Service was the channel
through which literature, news, and cultural or political analysis made its way
to the homes of American citizens, and the Postal Service was governed by strict
laws as to what could be sent through the mail. An anti-pornography crusader
named Anthony Comstock had, in the nineteenth century, persuaded Congress to
make it a crime to send obscene material through the mail, or to send
advertisements for obscene material, or to send contraceptives or abortifacient
devices or advertisements for such. Persons who sent such things through the
mail could be tried and punished, and the Postal Service could block such
material from being delivered.
And
obscenity wasn’t defined by the standards of today. Contemporary debates over
obscenity involve such questions as whether it should be legal to publish child
pornography if the “children” portrayed in the porn are adult actresses or
computer-generated images. In the 1920’s -- perhaps a more literate age, and
certainly a less technologically advanced one -- obscenity disputes often
centered on the written word. The burning questions of the day (and for some
time afterwards) included such issues as whether James Joyce’s Ulysses
should be banned, or whether Lady
Chatterly’s Lover was a suitable novel to leave around the house. A more
innocent age, one might say. Or was it?
Look at
Carlo Tresca’s case. This newspaper publisher put out an Italian-language
periodical called Il Martello. H. L.
Mencken, the Baltimore journalist-editor, informed his readers of Tresca’s
case in an article published in the Baltimore Sun
on January 12, 1925. As Mencken told the story, Tresca had published critical
remarks about Benito Mussolini’s fascist regime in Italy. The Italian
Ambassador had apparently made complaints about Tresca’s paper. Mencken
alleged that the federal authorities, to please the Italians, had harassed
Tresca, detaining several issues of his paper on various pretexts. Finally,
Tresca was charged and convicted of including an advertisement for
contraceptives in his paper.
Mencken
wrote that Tresca’s alleged persecution at the hands of postal authorities
should refute “the common superstition that... Burlesonism [has been squeezed]
out of the Postoffice.” Readers in 1925 would have recognized the reference to
Albert Burleson, the Postmaster General during World War I. Burleson had barred
issues of several antiwar magazines from the mail, and when postal censorship
interfered with a magazine’s publishing schedule, Burleson would declare that
the magazine had not been published frequently enough to entitle it to the low
postage rates most periodicals enjoyed. By thus increasing the rates, Burleson
had driven several magazines out of business. Mencken thought the spirit of
Burleson still haunted Calvin Coolidge’s Postal Service.
By September of 1927, Mencken was referring to the Postal Service as “one of the most sinister agents of oppression in the United States.” Between the time of his Tresca article and this pronouncement, Mencken had personally felt the effects of postal censorship. This happened as part of the famous “Hatrack” case.
Henry Louis Mencken (1880-1956)
Mencken edited a magazine entitled the American Mercury, which was quite critical of the cultural and political establishment in the United States. For instance, Mencken and many authors whose articles Mencken published in the Mercury were critical of the politically influential Methodist church, which Mencken blamed for Prohibition and other alleged atrocities. Mencken, an agnostic, believed that what we would call fundamentalist Christianity was a dark force in the world. Many articles published in the Mercury reflected this perspective. Also, the Mercury published an attack on the cultural and political elite of the city of Boston, Massachusetts. This latter attack may have had an influence on later events.
The April,
1926, issue of the Mercury contained three items that would embroil the magazine and
its editor in a conflict with government authorities. The first item was an
article by Herbert Asbury. Asbury was the descendant of a famous Methodist
Bishop (whose biography Herbert Asbury would write), but Herbert was alienated
from his childhood faith and was about to publish a book called Up
From Methodism. The title was apparently a play on the title of Booker T.
Washington’s famous work, Up From
Slavery. Asbury’s Mercury
article, entitled “Hatrack,” was a chapter from his upcoming book. (Although
the “Hatrack” article would be called obscene, I am not aware that Up
From Methodism was ever adjudged obscene on account of its inclusion of the
“Hatrack” chapter).
“Hatrack,”
which Asbury would defend as being a true story, was the tale of a small-town
prostitute in Farmington, Missouri, when Asbury was a child. This prostitute had
the nickname “Hatrack” on account of her gangly physique. However, her
charms were sufficient to enable her to attract paying clients. Protestant
customers would be serviced in the Catholic cemetery and Catholic customers
would be serviced in the Masonic cemetery. Despite her sinful life, Hatrack came
to the town’s Methodist church every Sunday, seeking forgiveness, but the good
people of the town shunned her. The article also described exhortations against
sin, which were delivered by various clergymen. Asbury indicated that these
lectures had the effect of enticing the hearers to sample the sins described,
not to avoid them.
Also in the
soon-to-be famous April issue of the Mercury
was an editorial essay by George Jean Nathan, a founding editor of the magazine.
The essay, entitled “The New View of Sex,” was included in the “Clinical
Notes” section of the magazine. Nathan’s essay claimed that men no longer
held the old opinion that sex was “a grim, serious and ominous business.”
Instead, sex now wore “the mask of comedy...Sex is, purely and simply, the
diversion of man, a pastime for his leisure hours and, as such on the same plane
with his other pleasures. The civilized man knows little difference between his
bottle of vintage champagne, his Corona Corona [a type of cigar], his seat at
the ‘Follies,’ and the gratification of his sex impulse...It is a mental
idiosyncrasy, indeed, that the association of the [sex] act with a specific
woman vanishes within an unbelievably short space of time, that so evanescent is
the recollection that the woman actually seems a physical stranger to the
man.”
The third item of interest in the April Mercury was an ad for a bookstore, an ad that we will return to later.
The April Mercury
attracted the interest of a Boston organization known as the Watch and Ward
Society. The Society, under the leadership of J. Frank Chase, had assigned
itself the task of monitoring literature sold in and around Boston in order to
determine if such literature was obscene. If the Society considered a book, or
an issue of a periodical, to be obscene, then the Society would so notify
booksellers or news dealers. If a book dealer or newsstand proprietor sold a
copy of a work branded obscene by the Society, then the Society (which was
politically influential) would arrange to have the seller arrested and
prosecuted for violating the obscenity laws of Massachusetts. In practice,
businesses complied with the decisions of the Society and did not try to sell
anything that the Society said was obscene. The Society’s policing of Boston
literature was sufficiently well known that, in other parts of the country,
works were sold under the slogan “banned in Boston,” in the hopes of
exciting the curiosity or prurient interest of potential readers.
The Watch
and Ward Society turned its attention to the April Mercury. The fact that the Boston establishment, including the
Society, had been criticized in a previous issue of the Mercury probably did not sit well with the Society’s leadership.
In any case, the Society concluded that the April issue went too far, and news
dealers were duly notified that the April issue of the American Mercury was considered obscene.
Mencken
decided that the banning of his magazine presented an excellent opportunity to
challenge the authority of the Watch and Ward Society. Mencken does not appear
to have been motivated by mere commercial considerations. After the censorship
controversy began, Mencken could have made a good amount of money by selling the
April Mercury through a “banned-in-
Boston” publicity campaign. However, in a memoir of the “Hatrack” case
written in 1937 (but not published until 1988), Mencken insisted that he
attempted to suppress any censorship-inspired sales of the April Mercury.
Mencken did not particularly like obscenity, but he believed that intolerant zealots operating under the anti-obscenity banner were suppressing works of genuine, non-pornographic literature in America. Nor was this the first time that Mencken had challenged the censors. In 1915, Mencken and George Jean Nathan (author of “The New View of Sex” editorial described above) -- who were not earning enough income through their literary magazine, the Smart Set -- decided to go for a more lowbrow readership by founding a magazine called the Parisienne Monthly Magazine. Mencken would later describe the magazine as “innocuous to the point of banality.” The Parisienne focused on romantic stories set in France. The New York Society for the Prevention of Vice, a New York City organization similar to the Watch and Ward Society, arranged the arrest of three people associated with the Parisienne on charges that the magazine was obscene. Mencken, who, like Nathan, was a silent partner in the magazine and was consequently not arrested, believed that a rival magazine was behind the prosecution. After Mencken helped arrange a payoff to one of the three judges hearing the case, the defendants were acquitted by a 2-1 vote.
The
following year, 1916, a book by one of Mencken’s favorite authors, Theodore
Dreiser, was alleged to be obscene. Mencken persuaded the Author’s League of
America to protest the prosecution. So Mencken was familiar with the
literary-censorship battle, and he had fought against the censors prior to the Hatrack
case.
As part of his challenge to the Watch and Ward Society, Mencken stormed into Boston and arranged to sell a copy of the April Mercury to J. Frank Chase himself, the leader of the Watch and Ward Society, on April 5. Enjoying the publicity (the sale was conducted in view of numerous onlookers in a public place in Boston), Mencken bit a coin Chase presented for the purchase, indicating that Mencken was testing the coin to see if it was counterfeit. Once the sale was completed, Boston cops arrested Mencken on a charge of selling obscene literature.
Mencken was
promptly tried before a judge. The prosecutor cited the “Hatrack” article
and Nathan’s sex editorial as making the magazine obscene. The judge, however,
acquitted Mencken on April 7. (An immigrant news dealer who sold the April Mercury
was not so fortunate: He pleaded guilty to obscenity charges).
The very
next day, April 8, Horace J. Donnelly, the Solicitor of the U. S. Postal Service
Department, ruled that the April Mercury
was obscene, whatever the judge in Massachusetts may have said. The magazine was
obscene, according to the Postal Service, because of the “Hatrack” article
and Nathan’s essay on sex. Therefore, according to Donnelly’s
interpretation, sending the April issue of the Mercury
through the mail was a federal offense, and no Postal Service employee could
deliver the magazine. If Donnelly was right, a federal court could have tried
Mencken on criminal
obscenity charges, but such charges were never brought.
Perhaps the federal government didn’t think it could persuade a jury of
Mencken’s guilt.
The order
banning the April Mercury from the mails did not need to be backed by a jury verdict.
The Postal Service imposed the ban based on Donnelly’s administrative
decision. In Mencken’s view, the Postal Service ban of April 8 was inspired by
Watch and Ward Society leader J. Frank Chase, as well as by the image-conscious
Chamber of Commerce in Farmington, Missouri, the setting for the “Hatrack”
story.
In fact,
the press run of the April Mercury had already been mailed out to subscribers by the time the
Postal Service declared it unmailable. Mencken would later say in a sworn
statement that the magazine had been mailed by April 5. In his memoir of the Hatrack
case, Mencken characterized the Postal Service’s decision as “purely
gratuitous and malicious.” The decision was also potentially damaging,
according to Mencken, despite the fact that the Mercury
had already been mailed: “The American
Mercury, at that time, was but little more than two years old, and if it
came to be thought of as a sensational and pornographic magazine, it might well
be ruined.”
Mencken now
mounted a legal counteroffensive against those who wanted to censor his
magazine. He sued the Watch and Ward Society in Boston as well as the
Society’s leader, J. Frank Chase. A federal judge ruled that Chase’s
organization was guilty of an illegal restraint of trade. A private
organization, said the judge, could not intimidate booksellers and magazine
dealers by making threats of obscenity charges. It was the duty of public
officials, not private activist groups, to enforce the obscenity laws. As a
result of this court decision, the Watch and Ward society lost its de
facto power to censor reading matter in the Boston area. (The Boston police,
however, with the assistance of local prosecutors, took up where the Watch and
Ward Society left off and continued to enforce strict literary censorship in
Boston.)
In other
legal action, Mencken tried to overturn the Postal Service’s ban on the April Mercury.
First, Postal Service Solicitor Horace Donnelly was asked to revoke the
ban. Donnelly, who had instituted the ban in the first place, refused to lift
it. In the words of Arthur Garfield Hays, the Mercury’s
lawyer: “...Mr. Donnelly informed us that he, Mr. Donnelly, had carefully
considered whether he, Mr. Donnelly, was right the first time and had come to
the conclusion that he, Mr. Donnelly, was.”
Mencken saw
to it that a lawsuit was filed against the Postal Service in New York federal
court, urging federal Judge Julian Mack to decide that the April Mercury
was not obscene and could legally be sent through the mail. Mack heard the case
on May 11, 1926. Around this time, lawyers for the Postal Service said that they
had found still more obscenity in the April Mercury
besides the “Hatrack” and sex articles. A bookstore had taken out an ad in
the Mercury, advertising the
literature that could be ordered from that bookstore. One of the books
advertised, claimed the Postal Service lawyers, was an obscene book (the
Comstock law said that magazines containing ads for obscene material could not
be carried in the mail).
The book in
question was an English translation of a work by an eighteenth-century French
author, the Seigneur de Brantome. The title of the book (in English translation)
was Lives of Fair and Gallant Ladies.
Here, the Postal Service seemed to have hit paydirt. The fair and gallant
ladies in the advertised book were gallantly having (in the words of one
contemporary practitioner) relationships that were inappropriate. This was,
frankly, much juicier stuff than the two allegedly obscene articles that were
the Postal Service’s real target.
Nonetheless,
Judge Mack did not think that any of the material in the April Mercury
violated the obscenity law. The two articles were not obscene, the judge held.
The Brantome book listed in the advertisement was considered by the judge to be
a classic, and hence subject to an unwritten exception to the obscenity laws.
Judge Mack issued a temporary injunction requiring the Postal Service to carry
the April Mercury through the mail.
The government appealed Judge Mack’s order to the Second Circuit Court of
Appeals.
Meanwhile,
Mencken had drawn up an accusation against Solicitor Donnelly of the Postal
Service, the official who had ruled the April Mercury
unmailable. This accusation, Mencken thought, would give him a forum in
which to air his complaints against the Postal Service, although Mencken did not
expect to succeed in getting Donnelly fired. The complaint against Donnelly
declared that the Solicitor had singled out the American
Mercury for unfair treatment. Although alleged quack doctors were entitled
to a hearing before their patent remedies were barred from the mail, Donnelly
had banned the Mercury before holding
a hearing. Also, Donnelly had banned the Mercury
while allowing material that was at least equally salacious, and of lesser
literary quality, to pass through the mails unchallenged. Mencken originally
planned to file his complaint at the time that the Postal Service appealed Judge
Mack’s ruling, but ultimately the complaint was not filed.
In the
state of North Carolina, some people were suggesting that Mencken come and get
himself arrested for selling the April Mercury,
in a repeat of his performance in Boston. Although Mencken claims he was never
invited to come to North Carolina, at least one person was making the suggestion
that Mencken should come to the Tar Heel State and challenge a fairly unique
censorship statute. As reported in the North Carolina press, the state’s
Commissioner of Printing and Labor, Frank D. Grist, suggested that Mencken come
to North Carolina and provoke a Boston-style test case. Grist, as a state
legislator in 1924, had put through a law declaring it a crime to sell or
circulate in North Carolina any publication that had been barred from the U. S.
mail. Thanks to the Postal Service ban on April 8, the April Mercury,
in the words of the Winston-Salem (N.C.) Sentinel,
“falls within the category set forth by the [1924] State law and is a
fugitive in the state.”
Mencken
later said that, even if he’d been invited to stage a North Carolina test case
a la Boston, he would have refused the invitation. “[W]e had enough action on
other fronts to keep me busy, and I was not much interested in what went on in
North Carolina.” Still, Mencken did go to North Carolina in 1926 as part of a
Southern tour on behalf of the Baltimore Sunpapers.
He kept up with events in North Carolina through friends like sociologist
Howard Odum, and he would later make frequent visits to friends of his in
Roaring Gap, N.C.
But he had
no interest in staging a test case in North Carolina. In Boston, Mencken had
been able to defend himself against obscenity charges by successfully arguing
that the April Mercury was not obscene. How could he have made such a defense under
the 1924 North Carolina law? If he had sold the April Mercury,
prosecutors would not have needed to prove that that issue was obscene, just
that it had been banned by the Postal Service. Mencken could have argued that
the 1924 law was unconstitutional, since it took away from the jury the power to
decide on the obscenity of a given work and delegated that function to the
Postal Service. Whether such a challenge would have been successful, I do not
know. The North Carolina General Assembly repealed North Carolina’s curious
post-office law in 1971. The repeal bill contained several items, and the title
of the bill only referred to one of those items: a ban on indecent exposure.
North Carolina solons, therefore, may not have known that they were repealing a
censorship law. Whether the 1924 law was ever enforced before its repeal, I do
not know.
Meanwhile, unbeknownst to Mencken (and unbeknownst to the general public until the 1990’s), Mencken’s squabble with the Postal Service was developing into a possible landmark free-speech case. In the Second Circuit Court of Appeals, a panel of three judges was considering Mencken’s case against the Postal Service. Notes regarding the court’s internal deliberations, made public in recent years, indicate that the judges in the American Mercury case were potentially on the verge of issuing a precedent-setting decision about obscenity and freedom of expression.
Judge Learned Hand (1872-1961)
Of the
three judges hearing Mencken’s case against the Postal Service, Learned Hand
is probably the most famous. Judge Hand had previously served as a federal trial
judge in New York. Later, he was promoted to the Second Circuit Court. Hand
would stay on the Second Circuit Court until his death in 1961. Although
frequently considered by various Presidents for appointment to the U. S. Supreme
Court, Hand was always passed over in favor of other candidates. However, his
opinions in several areas of the law have been very influential.
Judges
in the Second Circuit had the habit of sending memoranda to each other about the
cases they were considering. All three judges in the American Mercury/Postal
Service case wrote such memos to each other. Judge Hand’s memo, dated April
12, 1927, began by accusing the Postal Service of dirty pool. The bookstore
advertisement -- the advertisement that offered Brantome’s naughty French book
for sale -- had never been mentioned during the Postal Service’s
administrative proceedings against the Mercury.
The Postal Service had not mentioned the advertisement until Mencken
challenged the Postal Service in court. If the Postal Service wanted to rely on
the advertisement in making its case against the Mercury,
then it should have brought up the subject earlier, according to Hand. In his
view, the Postal Service should not be allowed to raise the issue of the
advertisement at such a late stage of the proceedings. Therefore, the
advertisement was irrelevant to the case.
From
Judge Hand’s point of view, the Postal Service’s allegations of obscenity
were based on the “Hatrack” article and Nathan’s sex essay. If these
articles were not obscene, then the April Mercury
wasn’t obscene. Hand himself did not think either article was obscene, so he
would decide the case in favor of the Mercury.
Hand
urged his colleagues to adopt a different definition of obscenity than the
courts had been accustomed to follow. At that time, courts in the United States
defined obscenity based on an English court decision. That decision, handed down
in 1868, was known as the Hicklin
decision. According to the English court, obscenity meant material that tended
“to deprave and corrupt those whose minds are open to immoral influences and
into whose hands a publication of this sort may fall.” In other words,
obscenity was defined according to the possible effect of the allegedly obscene
material on susceptible people. Back in 1913, when he was a trial court judge,
Hand had enforced the Hicklin
definition of obscenity but had, at the same time, expressed a wish that the Hicklin
rule be abolished. In his 1913 opinion, Hand had said that the Hicklin
rule “fetter[s] [literature] by the necessities of the lowest and
least capable.” The Hicklin definition, Hand opined, reflected
“mid-Victorian morals.” Instead of the Hicklin rule, Hand’s opinion
of 1913 had proposed to define obscenity based on “the present critical point
in the compromise between candor and shame at which the community may have
arrived here and now.”
Thus,
Hand had unwillingly enforced the Hicklin
definition of obscenity as a trial court judge in 1913, and as an appeals court
judge in 1927, he urged his colleagues to repudiate the Hicklin rule and to use Mencken’s case against the Postal Service
as an opportunity to do so. Hand’s memorandum attacked the Hicklin definition of obscenity, saying that the Hicklin
rule made “unlawful all literature, however inoffensive to normal
persons, because the inordinately lewd can find in it a gratification of their
propensities.” In other words, the Hicklin
rule would ban material about sex that would not titillate any normal person,
but which some pervert might find arousing. Hand continued: “[The Hicklin
standard] seems to me an impossible test which would include medical works and
nearly all fiction which described love in any other than denatured
language...It is an impossible standard to apply and would effectively destroy
letters.”
Hand
would judge an allegedly obscene work based on its effect upon normal readers,
not its effect on perverts. In other words, the best test of an allegedly
obscene work was whether it “would arouse lewd feelings” in a normal person.
Under this standard, Hand believed, neither the “Hatrack” article nor the
Nathan sex essay was obscene. Hand acknowledged that the “Hatrack” article
and the Nathan essay “attack[ed] the accepted canons of morals,” but this
did not make the two articles obscene. “Morals, like religion or politics,
must be open to criticism, whether or not it be conducted in good taste or
without offense to the feelings of others.” Here, Hand was implicitly
acknowledging that the articles in question might be deemed lacking in “good
taste,” and might be deemed “offens[ive] to the feelings of others.” Hand
was suggesting that people like Mencken and the writers in his magazine must be
permitted the leeway to express their opinions on moral issues without being
held to standards of good taste or inoffensiveness (standards which Mencken
never showed much inclination to abide by).
The
articles in question, Hand thought, might attack “the canons of continence
which generally prevail,” and thus might “indirectly” encourage
immorality. Nonetheless, “the possible evil must be tolerated in the interest
of freedom of discussion.” If the Comstock postal censorship law had the
“petrifying purpose” of cutting off discussion on moral topics, then the law
“would be subject to the gravest possible constitutional doubts” under the
First Amendment, which provided that Congress could not abridge freedom of
speech or of the press. Hand was indicating that the Comstock law should be
interpreted in such a way as to avoid potential First Amendment problems.
Considering
the details of the “Hatrack” article, Hand did not think that “normal
persons” would derive titillation from reading it. Hatrack’s sexual behavior
was, in Hand’s words, “squalid, ridiculous and pathetic.” For
“Hatrack” to be obscene, the sex scenes would have to “openly or
covertly...attract, not...disgust, the reader.” Hatrack’s tragic and unhappy
life as a prostitute would not be arousing to the average reader.
As
to Nathan’s sex essay, Hand felt “[a]t worst...[the essay] goes no further
than to belittle the going morality in respect of sex. It contains nothing which
stimulates lewd emotions, however it may indirectly give rein to them by
condemning the prevailing restraints upon them.”
The
memorandum on the American Mercury
case by Judge Martin Manton was at an opposite pole from Judge Hand’s. Judge
Manton had been associated with the Tammany Hall political organization in New
York City, a fact that probably helped him get his judicial post. Manton was not
on close terms with Judge Hand or with Judge Thomas Swan (the third judge
hearing the American Mercury case).
Often, as in this case, Manton was in conflict with Judges Hand and Swan.
Manton’s
memo to his fellow-judges argued that the federal courts should not interfere
with the judgment of the Postal Service. The Postal Service had declared the
April, 1926 Mercury to be obscene, and
the courts should respect that decision. As precedent, Manton cited a case
decided a few years previously in the Second Circuit. In that case, Judge Hand,
at the time a trial judge, had tangled with the Postal Service and lost. Perhaps
Manton was trying to hint that the Second Circuit Court had already rejected
Hand’s approach to the law.
The
precedent Manton cited involved a magazine that, in an issue published during
World War I, had included articles and cartoons denouncing the war and
conscription. The Postal Service was then run by Postmaster-General Albert
Burleson, the man Mencken had criticized in a 1925 article. Burleson’s Postal
Service Department decided that the magazine had published seditious material,
contrary to wartime statutes. The offending issue of the magazine was barred
from the mail. The magazine sued, and then-trial-judge Hand ruled in the
magazine’s favor. The Postal Service was wrong, Hand decided. The magazine had
not published seditious material; it had merely printed lawful criticism of the
government’s war policy. Judge Hand said the magazine had a right to circulate
through the mail.
The Second
Circuit Court of Appeals overruled Hand’s decision and ruled in favor of the
Postal Service. The decision said that it was mostly in the discretion of the
Postal Service to decide what kind of material was suitable to be sent through
the mail. It was not the job of federal courts to second-guess the Postal
Service. The Postal Service had declared the magazine to be seditious, and the
courts should defer to that judgment. That precedent should apply in the American Mercury case, suggested Judge Manton.
Judge
Manton could not resist commenting on the “Hatrack” article and the sex
essay. Manton believed that these articles were “harmful.” Both articles had
“a tendency to corrupt the young, and their publication should be
forbidden.” Manton hedged, however. He said that, given the deference that the
courts should give to the Postal Service, the April, 1926, Mercury
should not be allowed to circulate through the mail. However, Manton did not
state whether Mencken or others could be prosecuted under the Comstock Law. If
the Postal Service bars a magazine from the mail, the Postal Service’s
decision is presumed to be correct, and the federal courts should not interfere
unless a magazine can prove its innocence. In a criminal prosecution, in
contrast, the government would have to prove that Mencken and his associates
were guilty of obscenity beyond a reasonable doubt.
The
third judge hearing the case, Thomas W. Swan, was a former dean of Yale Law
School. Judge Swan had friendly relations with Judge Hand, and he had views on
the obscenity issue that were similar to Hand’s. Judge Swan, like Hand, did
not think the “Hatrack” article and the sex essay were obscene. Regarding
the advertisement mentioning Brantome (the randy French writer), Swan thought
Brantome’s book qualified as a classic, so it would be unfair to classify it
as obscene. Swan indicated that if his fellow-judges, Hand and Manton, wanted to
deal with the obscenity issue, then he (Swan) would rule in Mencken’s favor
and against the Postal Service. Swan indicated, however, that there was another
issue involved in the case, a legal technicality that did not involve obscenity
at all.
The
legal technicality which Judge Swan raised was basically this: The lower-court
judge (Mack) had ordered that the April, 1926 issue of the Mercury
should be delivered by the Postal Service. But Mencken acknowledged that the
April Mercury had already been sent
out to subscribers before the Postal Service issued its ban. The Postal Service
had merely locked the stable door after the magazines had gone through. The
mailability issue was “academic,” according to Swan, since the April Mercury
had already been mailed. Technically, the case was still awaiting trial even
after the injunction had been issued, and until the trial was held, injunctions
should only be used to protect the Mercury
against serious financial loss. Since the relevant copies of the Mercury had been sent out before the Postal Service’s ban, the Mercury
wouldn’t suffer financially.
Apparently,
although Judge Swan had suggested that he might go along with Judge Hand and
give Mencken a resounding free-press victory, in the end it was Judges Hand and
Manton who accepted Judge Swan’s suggestion to dismiss the case on a
technicality. This was done on May 2, 1927. Judge Manton delivered an opinion on
behalf of all three judges, saying that, even if the Postal Service was wrong on
the obscenity issue, an injunction at this stage was not the appropriate remedy.
Thus the court sidestepped the obscenity/First Amendment issue, and no
groundbreaking precedent-setting decision was issued. Mencken had lost the case.
Although he had the theoretical right to have another hearing, Mencken did not
seek such a hearing, and the legal conflict between him and the Postal Service
ended. Mencken never learned how close he had come to being the central figure
in a landmark legal ruling.
In
November of 1926, Boston Watch and Ward Society leader J. Frank Chase died.
Commenting on this in his 1937 memoir of the “Hatrack” case, Mencken said:
“Like all agnostics, I am somewhat superstitious, and one of my superstitions
is to the effect that men who set out to do me evil not infrequently die
suddenly. I could compile a long list of examples, but this is not the place for
it.” Martin Manton -- the judge who lobbied for an anti-Mencken decision in
the Mercury case and who wrote the
Second Circuit’s opinion dismissing the case on a technicality -- did not
“die suddenly,” but he suffered a humiliating fate. Some years after
speaking for the court in the American Mercury case, Manton decided that he would supplement his
income by taking bribes from rich litigants who had cases in the Second Circuit
Court. Manton was exposed in 1939, driven from the bench, and sentenced to a
term in prison. He died in 1946.
In
1937, the same year that he wrote his memoir of the “Hatrack” affair,
Mencken published a proposal for a new constitution for his home state of
Maryland. Never enacted, this proposed Constitution contained the following
protection of free expression: “No law shall be passed abridging the freedom
of speech, or of the press, or of teaching, but everyone exercising such freedom
shall be accountable at law and equity for any actual damage directly and beyond
a reasonable doubt flowing therefrom, whether to the common welfare or to
private persons.” Presumably, this proposal would have ruled out prosecuting
genuine literature under the obscenity laws.
The
federal Appeals Court decision of May 2, 1927, reinstated the Postal Service’s
banning order against the April, 1926, issue of the American
Mercury. Former Mencken associate Charles Angoff, in a 1956 memoir of
Mencken, said that “[t]echnically, I believe, there is still a ban on sending
the April, 1926, issue through the mails.” Developing legal standards,
however, soon made the ban obsolete.
Judge
Learned Hand, who had tried to use Mencken’s test to liberalize the law of
obscenity, soon had other opportunities to achieve this objective. In some key
decisions during the 1930’s, decisions that Hand either wrote or joined, the
Second Circuit Court essentially got rid of the Hicklin
rule and interpreted federal obscenity laws in such a way that alleged obscenity
must be evaluated from the standpoint of a normal person, not the standpoint of
a pervert. The United States Supreme Court mentioned these Second Circuit
decisions favorably when it started deciding key obscenity cases in 1957. In
1973, the Supreme Court gave a definition of obscenity that would be binding on
both the state and federal governments; hereafter, any government that adopted a
stricter definition would be in violation of the First Amendment.
The
Supreme Court has specified that, to be obscene, a work must be both explicit
and offensive. Under this standard, “Hatrack” and Nathan’s essay are too
tame to qualify as obscene. Brantome’s book probably would not qualify,
either, because a work is not obscene if it has “serious literary, artistic,
political, or scientific value.” The “Hatrack” article and the Nathan
essay probably also fit this description; they are serious articles in a serious
magazine. Also, in 1971, the Supreme Court handed down guidelines on how the
Postal Service must enforce the obscenity laws. Although the Postal Service in
1926 banned the April Mercury through an administrative edict, the Postal Service now
needs to go to court in order to get something barred from the mail.
Nowadays, the great fights over obscenity are not fought over articles like “Hatrack” in print magazines. They are fought over computer-generated images of kids having sex. What would Mencken himself have to say about this? Perhaps his remarks would be obscene.
For Further Reading
Angoff, Charles. H. L. Mencken: A Portrait From Memory. New York: Thomas Yoseloff, 1956.
Bode, Carl, ed. The editor, the Bluenose, and the Prostitute: H.L. Mencken's history of the "Hatrack" Censorship Case. Boulder: Roberts Rinehart, 1988.
Boyer, Paul S. Purity in Print: the Vice Society Movement and Book Censorship in America. New York: Scribner, 1968.
Cunningham,
Shawn. “Mencken and the Feds.” Menckienana
123 (Fall 1992).
De Grazia, Edward. Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius. New York: Random House, 1992.
“Debarred
Paper Cannot Be Sold in North Carolina.” Winston-Salem Sentinel,
April 10, 1926, p. 26.
Editorial in Durham Herald, reprinted in Raleigh Times, April 14, 1926.
Gunther, Gerald. Learned Hand: The Man and the Judge. New York: Alfred A. Knopf, 1994.
Harvard
University Library, Learned Hand Papers. “Hatrack” file, Box 181, File 3.
Hays, Arthur Garfield. Let Freedom Ring. New York: Boni and Liveright, 1928.
Hobson, Fred. Mencken: A Life. New York: Random House, 1994.
Longley,
Eric. “H. L. Mencken and North Carolina.” Spectator
(Raleigh, NC), June 1-8, 1995.
Longley,
Eric. “Mencken vs. The Postal Service.” Menckeniana,
Winter 1996.
Mencken, H. L. A Mencken Chrestomathy. New York: Vintage Books, 1982.
Mencken, H.
L. “A New Constitution for Maryland.” Reprinted in Menckeniana,
100 (Winter 1986).
Mencken, H. L. My Life as Author and Editor. New York: Alfred A. Knopf, 1993.
Mencken, H. L. Thirty-Five Years of Newspaper Work. Baltimore: Johns Hopkins University Press, 1994.
North Carolina General Assembly. Session Laws of 1924 (Special Session) and Session Laws of 1971.
Rodgers; Marion Elizabeth, ed. The Impossible H.L. Mencken: a Selection of his best newspaper stories. New York: Doubleday, 1991.
Teachout, Terry, ed. A Second Mencken Chrestomathy. New York: Vintage Books, 1994.
Eric Longley is a writer living in Durham, North
Carolina. His current writing project is an investigation of gullible young
heiresses,
so if you're a gullible young heiress he would like to hear from you. Mr.
Longley has posted many articles at authorsden.com.