In his Autobiography, the ironic, wise Lincoln Steffens recalled the day his friend Theodore Schroeder halted him on the street to tell him "with the glee of a collector that he had 'come upon the most beautiful tyranny you ever heard of'." Schroeder went on with his story, but Steffens "hardly listened. I was enjoying his esthetic joy in his discovery of a wrong to set right." The anecdote is perfect. In an age of professional reformers, zealous crusaders, and passionate protagonists of the good and the true, Theodore Schroeder stood in the front rank of those, to use Steffens' phrase, who spent their lives and livelihoods fighting for liberty.
Born in Wisconsin in 1864, raised in a family cut off from grandparents owing to religious bigotry—his father was Lutheran German and his mother, Catholic German—and early an independent, questioning youth, Schroeder studied at the University of Wisconsin, took an engineering and a law degree, and set off in 1889 to Utah. There he practiced law, began to defend the Mormons of Salt Lake City against the Gentiles, but soon switched his allegiance and devoted his free time to fighting the Latter-day Saints with all the gusto and verve of the born crusader. His decade in the Mormon Zion was capped by successful efforts to keep a polygamous Congressman-elect, one Brigham Roberts, later a major Church historian, from taking his seat in Washington. The death in the last years of the 1890's of his wife and daughter, and his tenuous position in a town controlled by the Saints, caused Schroeder to leave Utah and move to New York in 1901.
There, from that date until his death in 1953, Schroeder engaged in an exemplary campaign to defend the First Amendment of the United States Constitution. The great essayist, parodist, and journalist, H.L. Mencken, considered Schroeder the man who had "done more for free expression in America than any other"; Mr. Justice Frankfurter is alleged to have said that Schroeder became the foremost authority in the field of First Amendment study; a leading scholar of Constitutional law considers Schroeder unquestionably "America's most prolific advocate of a radically free speech and press"; and Dr. Murray N. Rothbard considers him one of the major pioneers of radical libertarianism.
Financial security, gained by his lucrative law practice and wise investments in Utah and the midwest, augmented in 1902 by an inheritance from his father's estate, provided Schroeder the wherewithal to support a life of reform crusading. Schroeder, whose early heroes were the freethinker Thomas Paine and the "Great Agnostic," Colonel Robert G. Ingersoll, at last found his true battleground in the slough of vice and illiberalism which New York City had become in the years following the Civil War. Widowed, childless, free of any personal attachments elsewhere, Theodore Schroeder arrived in New York ready to pour his energies into new labor, the first stages of which comprise the subject of this article.
Soon after arriving in New York City, Schroeder entered the bar, although he devoted little time to active practice of the law, preferring to work for his libertarian goals of a truly unfettered speech and press. He lived at first in Greenwich Village, made the acquaintance of "advanced" thinkers, and was soon known as something of a character in radical circles. Among his first new friends—and allies for years to come—were Hutchins Hapgood, patron of the arts and a founder of the Provincetown Playhouse on Cape Cod, where Eugene O'Neill and others first flexed their dramatic muscles; Lincoln Steffens, the muckraker and Progressive; Gilbert Roe, a champion of workman's compensation; Emma Goldman, the anarchist; Dalton Abbott, a socialist, then an editor of Current Literature; Bolton Hall, a single-taxer like his hero, Henry George; and Brand Whitlock, the Ohio reformer, later mayor of Toledo and Wilson's ambassador to Belgium.
Late in 1902, Schroeder and a few of these friends formed the Free Speech League, an organization concerned with clarifying the privileges and immunities of citizens in respect to their constitutional rights. The League was incorporated in 1911, with Leonard Abbott as president, Whitlock, Steffens, and Hall as vice-presidents, and Dr. E.B. Foote as treasurer. Schroeder was listed as secretary, but as is common in such organizations, the secretary was himself the mainstay of the League, in fact its only full-time activist. Roger Baldwin, long-time director of the American Civil Liberties Union, an organization founded on the demise of the Free Speech League, remarked that "Schroeder was the Free Speech League." Schroeder became the outstanding partisan in the United States on behalf of free speech to about 1920; until the War and the activities of the ACLU began a new chapter in the struggle for liberty of speech and press, the one-man show called the Free Speech League was the major libertarian organization operating in America.
When Schroeder came to New York, Anthony Comstock (1844-1915) reigned supreme as the nemesis of "vice." Comstock always liked a verse his sister Polly had taught him as a lad: "Build it well whate'er ye do./ Build it straight and strong and true./ Build it high and clean and broad./ Build it for the eye of God." Comstock took all that quite seriously, and in his twenties began to build things quite clean—preferably clean as a bare bookshelf. Under his inspiration, many vice societies were formed across the land, including his own, the New York Society for the Suppression of Vice, and in Boston, the zealous New England Watch and Ward Society. Whatever Comstock felt was objectionable on religious or moral grounds, writes a modern historian, "became illegal, at least for persons fined and sentenced to prison terms on the basis of [Comstock's] uncorroborated testimony."
Comstock waged a relentless war against the "hydra-headed monster of obscenity…the greatest curse to the youth of this country…a deadly poison, cast into the fountain of moral purity." Obscenity, he believed, was a cursed business, working beneath the surface "like a canker worm, secretly eat[ing] out the moral life and purity of our youth [who] droop and fade before their parents' eyes." Anyone who stood in his way, like Schroeder's hero Ingersoll, came in for his brutal attack. As he wrote in Frauds Exposed, impiety led to lust, and lust, after all, defiles the body, debauches the imagination, corrupts the mind, deadens the will, destroys the memory, sears the conscience, hardens the heart, and damns the soul.…It robs the soul of manly virtues, and imprints upon the mind of the youth, visions that throughout life curse the man or woman.
Liberty, Comstock wrote, may mean license, and "freedom of press and speech means that they may, without let or hindrance, blaspheme and deride the holiest things.…" Eternal vigilance, he never tired of saying, was the price of moral purity. His hope was that the law of 1873, which in common parlance bears his name, had swept the streets clean of vendors of indecent images and sellers of pamphlet obscenity. Shop windows in Comstock's New York were purged of evil, he boasted; one could walk them "without being outraged in mind by lewd pictures that formerly flaunted themselves to public gaze." The law, Comstock's law, was "good, and right, and proper." "Every household has a right under the law to defend and keep pure its circle. There is no interest dearer, or more important to any man, than the moral purity and spiritual welfare of his children. The Liberals demand that the legal barriers, that protect and keep our children pure, be broken down. By the Grace of the Everliving God, and in the name of this great American people, their demand shall not be allowed." Unfortunately for Schroeder, Comstock had the law on his side; since the Supreme Court decisions on obscenity in June 1973, the neo-Comstockians have it again on their side as well.
Anthony Comstock was well-armed with ammunition to fight his battle to purify America. The Framers did not pronounce upon obscenity when writing the Constitution, however, and to attempt to read into the fundamental law of the land a prescription for dealing with "lewd" utterances caused—and still causes—many difficulties, whether or not Schroeder and Comstock fully recognized it when they began their activities. History guides the way, not metaphysics, and history is unclear at many points.
The major sticking point in this matter is the question of how libertarian the intent of the First Amendment framers had been. Until the late 1950's, the scholarly consensus, and that among jurists as well, was that America's Bill of Rights had encompassed a broad libertarian theory of freedom of expression. At the very least, all scholars were and are agreed that the First Amendment prohibited licensing systems, stamp taxes, prosecutions for "seditious libel," "previous restraints" on publishing. Many have thought the Amendment meant much more. But a foremost Constitutional scholar, Leonard W. Levy, maintained that it was not intended to supersede the common law of seditious libel; that the theory of freedom of speech in political matters was quite narrow until the very end of the 18th century; that the First Amendment was more an expression of federalism than of libertarianism. Levy challenged the views of the late Harvard scholar, Zechariah Chafee, Jr., that there had been a great deal of freedom of speech and press in the early American period. The generation that adopted the Constitution and the Bill of Rights, according to Levy and John P. Roche, did not believe in a broad scope for freedom of expression, particularly in the realm of politics. Levy wrote that "libertarian theory from the time of Milton to the ratification of the First Amendment substantially accepted the right of the state to suppress seditious libel." This revisionism is well supported by the evidence, but it is a modern interpretation and was not the accepted belief in Schroeder's heyday.
In any case, freedom of speech did not necessarily mean freedom to utter "obscenities." In 1821, the American bellwether of morality, the Commonwealth of Massachusetts, provided the first prosecution in this nation for obscene literature. The issue was John Cleland's Memoirs of a Woman of Pleasure, better known to generations of schoolboys as Fanny Hill. The Massachusetts court ruled that obscene libel was a criminal offense. Thereafter, until the Civil War, few obscenity prosecutions occurred. In 1865, Congress barred "obscene" goods from the mails. Then Britain took the lead in a celebrated case in 1868, which provided the Lord Chief Justice, Sir Alexander Cockburn, an opportunity to lay down his standard: "The test of obscenity is 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." The United States accepted this test, the Hicklin test, in 1879, and it remained the generally applied rule until 1933, at which point it gradually began to be challenged. Finally, the Hicklin test was overthrown in 1957, although the Supreme Court that year, in Roth v. United States, ruled that the First Amendment did not protect obscenity, a position reiterated on many occasions since by the Court.
Meanwhile, Anthony Comstock's labors had been rewarded with the passage of the Federal law of 1873 which banned "obscene" items from the mail and provided stern enforcement provisions. Armed with that act and with the Hicklin test, crusaders against vice marched sternly along, successfully obstructing the dissemination of "lewd" pictures and writings. Freedom of speech, de facto and de jure, came to mean freedom of "clean" speech alone. The Hicklin test, which judged every passage of a book independently, made the whole suffer for the sin of the part: if any section of a book was "obscene," the book was forbidden in toto. By 1900, many branches of the American Federal and state governments were involved in suppressing "obscenity" and, for that matter, much other printed matter having to do with sex.
In early November 1905, Schroeder wrote to his fellow New Yorker, Comstock, the embodiment of late Victorian neo-puritan bourgeois morality. Schroeder mentioned that he was about to begin a study of suppression of obscene literature, in order to clarify his own mind about the issue, asking the vice hunter for the titles of books and pamphlets which would be helpful for such an investigation. Comstock invited Schroeder to stop by and talk, but added: "I could not furnish you with a list of these books or pamphlets, nor could I place them before you for examination without, myself, violating the law."
But the irrepressible Schroeder continued to prod his pen-pal. Letters flew back and forth in late 1905 and early 1906, Schroeder's designed to bring out Comstock's views, Comstock's designed to prove his opinions by assertion and moralistic declarations. Comstock: "Evil thinking cuts grooves in the brain, if you please, which wear deeper and deeper until fixed habits of thought are formed.…" Schroeder: Would you look at a little manuscript I have been working on? Comstock did, and then: "I have been over [your manuscript] several times. The more I go over it, the more absurd and unreasonable it seems, for the reason that you eliminate childhood and youth, public morals, public peace and public welfare, and argue upon an entirely false basis." In the realm of "obscenity," when libertarians and traditionalists argue: plus ca change, plus c'est la meme chose.
The two men never met face to face; once they were scheduled to debate, but Comstock failed to show up. Some 60 years ago, the libertarian and moralist positions in regard to the First Amendment guarantee of speech and press freedoms were best represented by these two men. The libertarian, like Schroeder, believed that the First Amendment prohibited any censorship of obscenity whatsoever, that obscenity was not harmful either. The moralist, like Comstock, was convinced that the First Amendment was not intended to prohibit censorship of obscenity—history bears him out on this—and that obscenity was an objective reality, an insidious vice, a definite harm to too many people.
One difficulty in comprehending this matter is that "obscenity" and "pornography" are terms which have never been adequately defined, not that the lack of adequate definition has impeded the argument, nor will it in future. The law speaks in the many tongues of Babel, and such men as Schroeder and Comstock, and their heirs today, have nothing to say to each other on this subject. Efforts by Schroeder throughout 1906 and into early 1907 to bring about a meaningful exchange of views with Comstock, failed. They talked past each other, and at length Comstock stopped writing to Schroeder entirely.
The manuscript to which Schroeder had referred in his letters to Comstock, appeared in print in July 1906. In what was to be his lifelong standard argument, Schroeder wrote that obscenity was not an objective thing, "not a sense-perceived quality of literature or art, but is only distinguishable by the likeness of particular emotions associated with an infinite variety of mental images." In short, obscenity exists only in the minds and emotions of those who believe in it. More—not less—information should be made available to people in order to combat venereal disease and mental illness, he wrote. Fewer—not more—prosecutions for obscenity should be tolerated by a "decent" society. "Tests" of obscenity do not work, and "where the law is uncertain, there is no law (ubi jus incertum, ibi jus nullum)." Any argument which could justify the suppression of "obscene" literature could just as easily be used to justify "every other limitation that has ever been put upon mental freedom.…The right of expression of opinion is inseparable from the right to hear and weigh arguments." Freedom, Schroeder never tired of warning, would not take care of itself. The masses are indifferent to the constitutionally-guaranteed liberties of others, and their sordid self-interest and bigotries allow them complacently to watch one limitation added to another, "until all freedoms will be destroyed by judicial amendments to our charters of liberty." Man is not amenable to being made useful or good by laws and edicts, and certainly not to being made "pure." So far so good; it was a needed corrective to the common wisdom of the day.
But Theodore Schroeder was not the man to go but half-way. He based his contention that obscenity should not be legislated against on the unprovable premise that it had not been an offense at common law. His historical references were voluminous, reaching deeply into 17th century English law. Much of his case hung by that cord, which insisted that that part of the English common law which entered into American law with the Revolution did not make of obscenity a criminal offense.
It hung by that cord, and there, in fact, it strangled, because the misdemeanor of "obscene libel" had in fact entered English common law in 1663 and has never since been seriously challenged. "Libel" in this case had no connection with its popular meaning. Rather, it derived from libellus, a diminutive of liber, literally meaning "a little book." Decisions following the 1663 case confirmed that ruling. Schroeder, however good his intentions, was in error as to the facts. He insisted that something was not legal when, by definition, it was. Contrary to his assertions, Congress had specifically empowered the post office to ban "obscene" items from the mail, and since the Supreme Court had not ruled those laws unconstitutional, they were indeed not unconstitutional—given the fact that the Supreme Court decides what the Constitution means, and until a reversal, a Court ruling stands supreme. Furthermore, Schroeder had himself fought to see that Congress's ban on one kind of sexual conduct, polygamy, be enforced. One exception breaks any absolute; here we have two—polygamy and "obscene" items in the mails.
Moreover, Schroeder entered fearlessly into territory where no amount of evidence has yet become available to give final proof: that of the mystery of sex. Schroeder believed that prudery is always the manifestation of excessive sensuality. From that he determined that modesty leads on to prudery, which gives rise to acute erotophobia, which inevitably and always leads to the attempt to suppress sex; that is, to censorship. It was a stirring, even a daring thought.
Had Schroeder confined himself to formulating a moralistic case concerning obscenity, he could at least have met Comstock on his own ground. Or, by concentrating on the laws' ambiguity, he would have occasioned doubts as to the wisdom of those pronouncing upon obscenity. Even by dwelling on specific instances of truly ludicrous persecutions and prosecutions, he might have weakened his opponents' stance by exposing it to effective ridicule. And he made a good case for the illiberality of many "liberals" and "radicals" on this subject. He declared: "I stand for a free press, and therein differ from all 'sane radicals' who do not…but who 'draw the line decidedly' at some distance on this side of freedom." Like witchcraft, he said, obscenity, exists only in the mind of the believer.
When, momentarily, Schroeder got off the subject of obscenity and concentrated simply on the matter of police oppression against free speech, he trod on firm ground. For a man as un-anarchistic as Schroeder to publish in Emma Goldman's Mother Earth took some courage, but to defend her and other unpopular radicals against comstockian prudery was a natural outgrowth of his libertarian philosophy, consistent with his principles, relying in no way on any misreading of legal history.
But his assault on Comstock and comstockery invariably went too far. When he did not fall into the error of incorrectly evaluating the history of obscenity at common law, he was as likely as not to take to indulging in ad personam attacks on Comstock's personal decency. All this was unnecessary and counter-productive. By the end of 1907, the major outlines of Schroeder's approach had been drawn. An article in the Albany Law Journal set out his arguments: laws against obscenity were unconstitutional because they were not within any expressed or implied power of Congress to enact; such laws were void because they violated the First Amendment; the laws also violated the "due process" clause and the injunction against uncertain laws; and the obscenity laws violated the Constitutional guarantees against ex-post facto laws. Thus he tried to nullify the anti-obscenity laws by asserting that they exceeded the bounds of properly drawn legislation and violated Constitutional protections. He knew that the courts thought otherwise, but the mere existence of judicial decisions contrary to his beliefs never caused him to doubt that he knew best.
Although by 1908 the Free Speech League had issued a number of pamphlets by people other than its secretary, the bulk of FSL publications were by Schroeder. He corresponded actively with a variety of reformers and Progressives and radicals, earning the gratitude of Emma Goldman, Upton Sinclair, and others. In 1908 he married—or began to live as common-law husband with—one Eleanor Sankey-Jones, a feminist disciple of Lucy Stone, the 19th century Massachusetts woman's liberationist. From then on, until her death in 1950, Nancy, as he called her, stood as his staunchest defender and constant help-mate in fighting the good fight for a libertarian interpretation of the First Amendment. They moved to a farm in Cos Cob, Connecticut, whence Schroeder commuted to his office in the city.
As the years passed, Schroeder refined his views and sometimes shifted his emphasis. But in the main, his arguments were fully limned by the time he took up residence with Nancy. By 1908, he had come to dwell on what he called a "scientific" use of the law, believing that there was something in fact which could be called the law. A wealth of pamphlets issued from his FSL office attempting to prove the existence of law as that which did not violate the canon: ubi jus incertum, ibi jus nullum, despite the fact that much American legislation is plagued by uncertainty and not yet declared invalid by the courts. Examples which should have occurred to him, but did not, include the very phrase "due process of law," which is as uncertain a concept as "obscenity." Both phrases are recognized as valid, even vital ones for courts to consider when adjudicating. Rhetorically at least, Schroeder's "ought" was identical to his "is"; that technique may work in debate, and it may be "morally" right, but it falls flat as history and as law.
His concern was humane, to show that the law is often oppressive. He believed fully and courageously that freedom of speech meant not just the right to agree with the majority, but the right to say with impunity anything and everything which one chooses to say, and to speak it with impunity so long as no actual material injury results to any one and when it results then to punish for the contribution to that material injury and not for the mere speech as such. He wanted to show how mere caprice, whim, idiosyncrasy, or malice may lead a judge or jury to decide that something was "obscene." Naturally, an absolutely certain law would help eradicate such iniquity. But the development of an absolutely certain, all-encompassing body of laws was and probably still is a pipe-dream.
And yet, he was not wrong in feeling that though everyone professed belief in freedom of expression, few did so in the concrete, "and almost everybody can be relied upon to endorse some abridgment of freedom of the press whenever others wish to use that freedom to express anything radically different from their own thoughts.…" Comstock, after all, was still supreme.
Although Schroeder formed the FSL and belonged to various other groups, he was never the sort who fit easily or happily into formal alliances. Nor was he, strictly speaking, a "Progressive," that major strand of social reformism of the time. To the degree that the "muckrakers" were exposing societal faults and were the educational forerunners of Progressivism, Theodore Schroeder was a muckraker, anxious to effect legislative changes for society's betterment. But being a muckraker reflected more his temperament than his participation in any well-developed movements. As Schroeder's ally, Steffens, revealed clearly in his Autobiography, the muckraker of yesterday could easily become the thoroughgoing critic of Progessivism tomorrow. Like Steffens, Schroeder was both an effective revolutionary in thought and skeptical of much reform and many reformers.
Mabel Dodge, who maintained what Steffens called "the only successful salon I have ever seen in America," rarely numbered Schroeder among her guests—he declined the invitations—although she considered him a man to her liking, one who was "willing to die for his views had it been necessary." While Hapgood, Margaret Sanger, Steffens, Emma Goldman and her lover Berkman, Big Bill Haywood, Edwin Arlington Robinson, Walter Lippmann, Max Eastman, John Reed, and many other "advanced" thinkers congregated in Mabel's livingroom, Schroeder remained in his house with Nancy, churning out his pamphlets and later, his dozen books. The heyday of the Village as center of the New York intellectual circle coincided with Schroeder's retreat into a gradual isolation from active involvement in coordinated efforts and his turn to the pen as his major mode of working for change. Mabel Dodge's elegant house, bedecked with antiques and all the trappings of capitalistic splendor, may well have been the perfect setting for the radical-chic of the 'teens, but it was not a place where Schroeder felt comfortable.
Schroeder and Nancy admired people like Victoria Clafflin Woodhull, "Mrs. Satan," an advocate of woman's rights, propagandist for and practitioner of free love, and a victim of Anthony Comstock at the beginning of his long, brutal career. And the Schroeders also admired that genuine eccentric, George Francis Train (1829-1904), who, among his other notable activities, had distributed a pamphlet containing quotations from the Bible, for which the humorless Comstock had him arrested on the charge of circulating obscenity. Mrs. Satan and the mythic Train, and others like them, caught Schroeder's attention. He shared their quality of individuality but lacked their flamboyance. He was, perhaps, an individualist anarchist, more individualist than anarchist, such that even though he always believed the Constitution of the United States was a workable document for the governance and welfare of The People, he often despaired of ever finding his government worthy of respect, much less of devotion. He wanted a better America, one in which people could be as weird as Victoria Woodhull and George Francis Train, but even more, one in which the average citizen would be protected from neo-puritanical harassment and encouraged to develop himself to his fullest potential.
At the end of Schroeder's first decade away from the midwest and Utah, the characteristic American "religion" of the articulate and up-to-date middle class was the optimism of the Social Gospel and the firm belief in Progress. Yet few of the illuminati of the Progressive era believed that modern society required a drastic overhaul; most were to some degree conservative, taking their ultimate goals and values for granted. But not Schroeder. His one working relationship with avatars of the social gospel movement—that in 1900 with Josiah Strong and his League for Social Service, as partners in the effort to keep Brigham Roberts out of Congress—left a bad taste in his mouth. Schroeder was neither conservative nor reactionary, nor was he a Progressive custodian of culture, nor did he think the values of the middle-class automatically desirable or their goals necessarily bully.
He was an amoralist like Mencken, though not nearly so clever; he was a relativist and "scientist" like Thorstein Veblen; he may have been attracted to the scientific management movement of Frederick W. Taylor and his devotees, but he never remarked Taylor in his articles and letters. He knew and worked on occasion with socialists but was not then one of them, nor ever officially of their ranks. He admired Emma Goldman's bravery and compassion and approved a few of her causes, but later recognized her shallowness as a thinker and disdained the emotionalism of her appeal.
By the end of the first decade of this century, Schroeder was, in his philosophy, somewhere between Robert Ingersoll and the new radicalism of socialism. Although Progressivism was to some degree influenced by the new radicalism, it was more deeply indebted to 19th century populism and was primarily a political movement; whereas the new radicalism, with which Schroeder can at least tenuously be associated, was interested less in politics per se than in questions of education and sex. Schroeder was not a scholar, but he was an educator; he was not a sexual libertine, but, faute de mieux, a libertarian. He believed that society needed a major overhaul, not a socialist revolution or anarchist chaos, but a revamping none the less. He disdained the Progressives' moralism and "uplift," planting a healthy a-moralism, an impartial relativism, and later, as he developed his ideas more thoroughly, a fully democratized, psychologically mature society of free men and women. As Theodore Schroeder's first decade away from the Mormon Zion came to a close, he is best seen as a lonely toiler, not as an examplar of any movement or as a partner with any significant group in effecting socially fashionable changes. He was a radical libertarian in his day and a pioneer of much libertarian thought in the decades thereafter.
Dr. David Brudnoy is a contributing editor of REASON and writes a syndicated newspaper column, in addition to teaching history at Harvard's Institute of Politics. His doctoral dissertation (Brandeis University, 1971), "Liberty's Bugler, The Seven Ages of Theodore Schroeder," from the fourth chapter of which this article is derived, dealt largely with questions of pornography and the law.