Birth control laws

The Bill on which the Hearing was held had passed the House in October, 1921. It aimed primarily to make race track betting tips unmailable, but section No. 5 to which Senators Stanley and Borah objected most strenuously was a sweeping infringement of the freedom of the press, by which nothing could go through the mails that gives any information as to bets or wagers on any contest of speed, strength or skill. The bill was referred to a Sub-Committee of the Judiciary consisting of Senator Sterling, Chairman, and Senators Borah and Overman.

The measure has never been reported out by the full committee, and it seems evident that the vigorous opposition of the two Senators who argued on principle, and the disapproval of powerful newspaper associations, have resulted in the burying of the bill.

At the time of this Hearing (January, 1922), Senator Stanley was not on the Judiciary Committee but he was so interested in preserving the right of free press from further encroachment that he appeared at the Hearing as an opponent of the bill, and as a pleader for fundamental liberty. At present, however, he is a member of the Judiciary Committee, with the best of opportunities to make his convictions count effectively for the Cummins-Vaile Bill, in which precisely the same principle is at stake, namely, the freedom of the press and the right of the individual to have access to knowledge.

The V. P. L. Director was originally indebted to Senator Borah for her copy of the report of this Hearing. He has never faltered in his opposition to the principle of censorship. And Senator Sterling, the Chairman before whom this Hearing was held, was already at that time committed to support of the Cummins-Vaile Bill. He gave his word that he would work for the Bill in the Judiciary Committee and on the floor of the Senate.

In the 113 pages of the Report of the two Hearings on the bill to exclude gambling information from the mails, there are many more analogies to the principle involved in the Cummins-Vaile Bill than there is room to recount, so the excerpts below are only samples.

At the very start there is similarity of circumstance. At the first Hearing Senator Stanley spoke “especially of the section that was added in the last hour of debate, about which I am advised comparatively few members of Congress knew anything at the time of its passage.” That the House should have inadvertently passed a measure on the strength of its moral sounding aim, but which contained an unwarranted suppression of constitutional rights is exactly what happened in 1873, when the Comstock bill was hastily passed, aimed at obscenity, just as this bill was aimed at gambling, but blundering into suppression not only of crime, but of freedom.

Sen. Stanley (speaking on behalf of representatives of the chief metropolitan newspapers): “These great papers wish an opportunity to show that the gambling evil is not best remedied—especially by a government of delegated powers—by an unwarranted restriction of the freedom of the press or the freedom of speech.”

(Similarly, the abuse of contraceptive information is not to be remedied by laws forbidding access to that information. Ed.)

Sen. Stanley (at the second Hearing): “Despotic governments have always viewed and always will view freedom of speech with apprehension and alarm. When you have placed a censorship or arbitrary inhibition or prohibition upon either the freedom of speech or the freedom of the press, you have not invaded one constitutional right, but have imperilled or desolated them all.”

Sen. Borah: “Do you attack this as unconstitutional, or simply the policy of it?”

Sen. Stanley: “Both. I maintain that it is not necessary to show that it is unconstitutional, because of its folly and its unwisdom. It is absolutely a violation of the spirit of the Constitution.”

Sen. Sterling: “If you think race-track gambling is an evil, do you think that advice or suggestions in regard to wagers and bets should be prevented?”

Sen. Stanley: “May I answer that question by asking another? Does the Chairman believe that the Federal government should pass a law prohibiting anything that is morally or industrially wrong?”

Sen. Sterling: “Oh no, there are limitations of course upon the power of the Federal government to do those things.”

Sen. Stanley: “Yes, ... I had begun to doubt it.”

Sen. Sterling: “This prohibits the use of the mails for certain purposes.”

Sen. Stanley: “Yes.”

Sen. Sterling: “And we have passed laws relative to the use of the mails ... prohibiting certain written or printed matter....”

Sen. Stanley: “And Mr. Chairman, that is the worst vice, the worst phase of this legislative itch with which the country is infected, for the Federal and sumptuary regulation of all the activities of the people, moral, intellectual and industrial. It is gaining. One bad law breeds a million.”

Sen. Borah: “Well, Mr. Stanley, you do not have to make any argument to me that we have no power to establish a censorship.”

Sen. Stanley: “This is as fine an instance, Mr. Chairman, as I know, of the abortive birth and progress of this character of half baked legislation. A bill, honest, and perhaps advised in the main, was introduced.... As it passed a Representative took a shot at it on the fly and inserted this section 5. The Postmaster General (Hays) in a letter to Chairman Nelson of this Committee very pertinently observed: ‘This particular section 5 makes it an offense for newspapers to publish racing news. I favor the bill, but am opposed to this section 5. I was not consulted about it, and I hope this section does not pass. The whole bill had better be defeated in my opinion, than to add this additional curtailment of the freedom of the press. There has been a very strong tendency of late in that direction, and I am sure it is essential that such tendency be checked. I am reminded of Voltaire’s statement, “I wholly disapprove what you say and will defend with my life your right to say it.”’”

Sen. Borah: “It is not necessary to proceed any further then, is it?”

Sen. Stanley: “Senator, I think there is more in this than this bill. I have no fear that this bill will pass. This is too much. Neither the minds nor the stomachs of the people are prepared to endure it. But I wish to emphasize its evils in order that this character of legislation may be discouraged, that this persistent and pernicious effort to control the freedom of the press may find an end somewhere at some time.”

(The Cummins-Vaile Bill will also help to end it. Ed.))

Sen. Borah: “Well, Senator Stanley, as I think you know from personal conversation, I am quite in sympathy with your view, but I am unable to construe this letter (from Postmaster General Hays, quoted above) in harmony with a number of statutes that are already upon the statute books, and already in force.”

(The Comstock law, for instance. Ed.)

Sen. Stanley: “It is unfortunately true.”

Sen. Borah: “Indicating that we are taking a step back to constitutional government.”

Sen. Stanley: “Buckle says that all civilization for five hundred years consisted in repealing laws. I wish Buckle were eligible for a seat in the Senate now.”

(Hear, hear! Ed.)

“Mr. Chairman, the greatest influence for good—and it may be greatest power for evil—is the power of the press. There is no free government without it. There are no free men without it. There is no free thought without it. I commend to your attention just a little paragraph from that great defense of free institutions, with (one) possible exception, the greatest in the English tongue: ‘Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do ingloriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?’”

Sen. Stanley continuing: “Now let us see what this bill prohibits. Section 5 reads: ‘No newspaper, postcard, letter, circular, or other written or printed matter containing information, or statements, by way of advice of suggestions, purporting to give the odds at which bets or wagers are being laid or waged, upon the outcome of speed, strength or skill, or setting forth the bets,’—now get this,—‘made or offered to be made, or the sums of money won or lost upon the outcome or result of such contest,’ etc.

“If a school boy at college should write to his mother that his room-mate had bet five cents on a foot-ball game, he could be sent to the penitentiary for five years and fined $5000.

“Put in force this act and then endeavor to convince a civilized world that this is the land of the free and the home of the brave.”

(Compare the wording of this proposed law with that of the old Comstock law by which “every book, pamphlet ... paper, letter, writing ... or notice of any kind giving information directly or indirectly where, how or of whom or by what means,” etc., conception may be controlled is unmailable. Then parallel Sen. Stanley’s instance of the college boy and his five cent bet on the foot-ball game with the fact that no mother can now lawfully write to her married daughter any information even in a private letter as to how she may space the births of her babies. Ed.)

Sen. Stanley: “The evil of attempting to restrict the freedom of the press in discussing this matter more than counterbalances any possible ultimate good. It is purely problematical whether it would stop any racing or not, or deter it. It is an actual fact that it would be another step in the wrong direction—that is of a pernicious, vexacious, inquisitorial censorship of the press.

“It would of course be argued that the boy would not be sent to prison for five years or fined $5000. And why? Because judges have more sense and more humanity and more decency than the Senate, and that they would refrain from doing what they are authorized to do. Now you enact this bill, and how do you know that somewhere, sometime, you are not going to find a Judge that has just as little sense of proportion and propriety and justice as the Senate of the United States?

(For instance the Judge who sent Carlo Tresca to jail for a small unwitting infringement of the Comstock act, which government officials as a whole make not the slightest attempt to enforce.Ed.)

Sen. Stanley, satirically: “Because Congress has gone very near the end of its constitutional tether, it should cut the tether and go the whole length: because it has regulated the freedom of the press in a few respects, it should now proceed to regulate them in all respects.”

Sen. Borah: “I think, Senator Stanley, that the argument that we will have to rely upon finally is whether we are going any further. There are plenty of precedents for this law on the statute books.... They are bad precedents, but they are there.”

Sen. Stanley: “Exactly, Senator Borah.”

Sen. Borah: “I would like to repeal many of them.”

Sen. Stanley: “I would like to join you in that....

“No man of course is in favor of moral uncleanness.... But that is no reason why the Federal Government should act as a spy and as a supervisor of the private relations between men and women in the several States....

“Race gambling no one doubts is an evil. Of course it is. But intemperance is a bad thing. Therefore the papers must not encourage intemperance by mentioning the concomitants of an alcoholic drink; the other day an officer tried to stop the Cincinnati Inquirer from making reference to a copper can because they said some copper cans were used for distilling! That is a fact. Where are we going to stop?

“Burglary is a bad thing. Think of it, there are millions of men who do not know that a simple flat piece of steel, called a jimmy, can be used to open doors that are locked.... Suppose the papers tell of how a man gets into a house by means of a jimmy ... some fellow reads that and gets a jimmy and breaks into a house. Are you going to stop all mention of that?... I want to stop now, any further advance as Senator Borah has said, in this pernicious practice of regulating the morals of the people by prescribing what the press shall say about their morals, whether in their domestic relations, their gaming practices, or anything else....

“You pass this act, and by virtue of its precedent and those others of its kind that now deface the statute books of a free country, within a few short years, with a little ingenuity, I can keep anything out of the columns of the press except an account of a school picnic or a pink tea. I thank you, Mr. Chairman.”

(And this paper thanks the Senator.Ed.)