CHAPTER III

IS ENFORCEMENT POSSIBLE?

_Relatively few indictments in over fifty years: Ulterior motive in many of those: Post Master General Hays’s leaning toward revision: Post Master General Work’s gesture of enforcement: Clinic reports and medical research data unlawfully published and mailed: Misleading criminal advertisements go unpunished: Government itself breaks the law: Forbidden books found in Congressional Library: Senators and Congressmen willing to break law, but hesitate to revise it._

As noted in the last chapter, it was admitted by Comstock that the law as he framed it, was essentially hypocritical with regard to the giving of contraceptive information. According to his own records, relatively few of the many arrests he procured, were for giving contraceptive information, and a very small part of those were for that thing pure and simple, but usually because contraceptive information was involved in other matters or when it was the most convenient means of “getting” a person, whose arrest was wanted for other reasons. Apart from the prosecutions instigated by Comstock and his successor John Sumner, the government officials in over fifty years have made almost no effort to indict those who have broken the law,—certainly no effort that is at all commensurate with the sweeping and unqualified character of the prohibition. Diligent search has been made for a complete list of the indictments in the United States for the giving of contraceptive information, but so far, no such list has been found, and to extract those few cases from the multitudinous court records would be almost a life work. But enough search has been made to amply warrant the statement that prosecutions have been few, and that infringements have now mounted into the millions. And, like Comstock, the regular government officials, have also been prone to utilize infringements of the contraceptive ban as an excuse for indicting people whose arrest was wanted otherwise.

In Comstock’s own book “Frauds Exposed,” in which he recapitulates his forty years of work in jailing people, the space given to contraceptive cases is only about five per cent of the whole book. His greatest emphasis and the bulk of his effort went to suppressing general obscenity, gambling and fraud. A similar proportion is found in his later book, “Traps for the Young.” In D. M. Bennett’s pamphlet on “Anthony Comstock,—His Career of Cruelty and Crime,” 27 cases of prosecutions initiated by Comstock are chronicled. Of these only 5 are indictments involving the giving contraceptive information. In Theodore Schroeder’s monumental volume, “Obscenity and Constitutional Law,” which reviews obscenity prosecutions covering several generations, there are found to be less than ten in which contraceptive information was the probable main factor in the case. Appendix No. 4 gives a list of 23 more or less well known cases of prosecutions with the disposition of each case. Several of them were instances where the birth control issue was obviously used as a cloak for an ulterior motive in causing the arrest.

This was notably true in the recent case of Carlo Tresca, the editor of an Italian paper, “Il Martello,” published in New York City. The facts in the case were, briefly, these: In the absence of Mr. Tresca the advertising manager of the paper printed a two-line, small-print advertisement of a pamphlet on birth control methods, by an Italian physician, a publication which has been very popular and which has been considerably advertised in other Italian papers; the Post Office notified “Il Martello” that the advertisement rendered the paper unmailable as it was an infringement of Section 211 of the Federal Criminal Code; the two lines were accordingly deleted and the edition was mailed; but shortly afterwards the advertising manager was arrested and imprisoned for the infringement; Tresca also was arrested, though he had not known of the advertisement at the time it was printed; he was sentenced to “a year and a day” in the Federal penitentiary at Atlanta. During and after his trial some illuminating testimony was brought forth, showing that the birth control charge was merely a handle for political persecution; it seems that Tresca in his paper and otherwise had vigorously opposed the Mussolini regime in Italy, and the Italian Ambassador while making a dinner address in Washington had stated that there was a certain Italian paper in New York which ought to be suppressed; “Il Martello” was subsequently subjected to many petty annoyances from the Post Office, culminating in the arrest of the editor on the birth control charge, _after_ the offending advertisement had been promptly deleted in accord with the Post Office notification; during the trial the prosecuting attorney admitted that the complaint against the paper regarding the advertisement had come from the office of the Italian Ambassador.

These facts became widely known. Many letters of protest from well known citizens were sent to the Attorney General and President Coolidge, with the result that the President commuted the sentence to four months.

It is noteworthy that Tresca’s original sentence was the longest of any on record in recent years, perhaps in any years, for this sort of offense. The maximum of five years in jail and $5000 fine seems never to have been imposed since the law was enacted. In the 23 cases listed in Appendix No. 4, the imprisonment terms were as follows: one for a year and a day, one for six months, two for sixty days, four for thirty days, three for fifteen days, and seven were freed or their cases were dismissed. As to fines,—there was one of $1000, one of $100, three for $25 and one for $10. It is told of a judge in the middle west that he imposed a fine of _one cent_ in a case of this sort; the prisoner was guilty under the law, so the judge did his duty, but he apparently also took occasion to register his opinion of the value of the law. Margaret Sanger, the best known among birth control “criminals,” has served but thirty days in jail, all told, though arrested four times. Her nine indictments under the Federal law in 1914 were dismissed. She was freed after arrest in Portland, Oregon, as was also the case when she was arrested at the Town Hall in 1921 in New York when the police broke up the meeting before any one had spoken at all. The charge in this instance was not giving contraceptive information, but disorderly conduct and resisting the police. The one sentence she served was that imposed for opening her “Brownsville” Clinic for giving contraceptive instruction in New York in 1916. For at least ten years past, the local police, the Post Office authorities and John Sumner, Comstock’s successor, have known that Mrs. Sanger was infringing both Federal and State law on a more or less wholesale scale, but there has been no prosecution. In a lengthy letter which Sumner wrote to all the members of the U. S. Senate Judiciary Committee on February 18, 1921, and in an almost identical letter which he wrote to Senator Cummins on January 23, 1923, in which he pleaded for the continuance of the present laws without change, he twice mentions the fact that Mrs. Sanger had “published a pamphlet entitled —— which described various methods and articles for the prevention of conception and their methods and use.” Yet he has not had her arraigned, as he would be in loyalty bound to do, if his belief in the present laws were thorough-going, as he assured Senator Cummins it was. In his letter Mr. Sumner gives the title of the pamphlet, which makes him also an offender against the Federal law, Section 211,—which forbids anyone to mail any “written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how or of whom or by what means conception may be prevented.” Mr. Sumner in his letter told the Senator “of whom,” and he did so “directly.” He knew he did not risk arrest for doing it even though his act was a “crime.” In all probability neither should we, if we were to print the title of the pamphlet; but as both the author and the publisher of this book are interested in the discussion of sound legislation on this subject rather than in possibly precipitating one more indictment under this good-for-naught law, we discreetly leave the title blank.

The conclusion seems quite obvious, judging by the light penalties, the few prosecutions, and the blinking at infringements, that the government, like most citizens, takes this law very lightly and has no idea of living up to its obligation to enforce it. There has been one Post Master General however in recent times who has made at least a gesture toward enforcement, and another who made at least a gesture toward a common-sense revision of the laws.

The latter was Post Master General Hays, and had he not resigned his position to go into the moving picture business, perhaps the United States laws on this subject would now be renovated so as to be more a reflection of the people’s beliefs and more true to American ideals. The circumstances in the summer of 1921 were most propitious. Mr. Hays had made several public statements that he was convinced that the Post Office should not operate a censorship system. He had put himself on record in unmistakable terms, and his words had been widely published by the newspapers. So in August of that year, an interview with Mr. Hays was secured by the Director of the Voluntary Parenthood League, and the question laid before him as to whether the time was not more than ripe to remove this particular censorship from the laws which govern the Post Office. He received the suggestion with marked cordiality, saying that it was very timely, for he had about reached the conclusion that it was his duty to submit to Congress a recommendation for the revision of all the Post Office laws which had any bearing on censorship. He asked for a résumé of all pertinent data on the laws affecting birth control knowledge, and he also asked for specimens of good books and other publications on the subject such as are used abroad. On being told that it would break the law (Section 211) to mail such publications to him, he said, “Oh no, I wouldn’t want that done, send them by express.” “Can’t be done,” was the answer, “because Section 245 forbids that also.” “Well then,” said the Post Master General, with an appreciative smile, “by messenger.” The parcel was forthwith delivered to him by that method. But even that was unlawful, for according to Section 312, it is a crime in the District of Columbia to “lend or give away,” or to have in one’s “possession for any such purpose, any book, pamphlet,” etc. Mr. Hay’s plan to submit a revision to Congress was never carried out, perhaps because his retirement from office followed too shortly after to make it practicable. And apparently he was not of a mind to leave his plan behind him as a recommendation to his successor, Dr. Hubert Work, former President of the American Medical Association. Judging by later developments, it would have been futile for him to have done so.

When Dr. Work took office, he lost no time in making his gesture about the enforcement of the obscenity laws; for only a few days after he became Post Master General, the following official Bulletin was conspicuously posted in all the Post Offices of the Country:

IT IS A CRIMINAL OFFENSE

TO SEND OR RECEIVE OBSCENE OR INDECENT MATTER BY MAIL OR EXPRESS

The forbidden matter includes anything printed or written, or any indecent pictures, or any directions, drugs or articles for the prevention of conception, etc.

The offense is punishable by a _Five Thousand Dollar Fine or Five Years in the Penitentiary or Both_.

Ignorance of the law is no excuse.

For more detailed information on this subject read Sections 480 and 1078 of the Postal Laws and Regulations, which may be consulted at any post office.

The Birth Control Herald of July, 1922, commented as follows on this Bulletin:

If Dr. Work intends to enforce the laws, it does him credit. But suppose he undertakes to prosecute all infringements? The relatively low birth-rate in well-to-do families indicates wholesale breaking of this law. How is he going to enforce it? Will he trail these several million respectable, influential parents till it is discovered how they learned the science of family limitation?

There are about twenty-five million families in the country and, roughly speaking, ten million of these are the well-to-do—those above the income tax exemption. Suppose a tenth of these can be convicted of having secured by mail or express the contraceptive information on which their own family limitation is based. The authorities would hardly imprison a whole million. It would mean “standing room only in the jails.” An alternative would be to fine them. One million law breakers, fined $5000 each would provide Uncle Sam with a handy five billion in these days, when the national debt stands at about eight billion. But, like the jail idea, this might be a bit impracticable! What alternative is there then? The million malefactors might be _acquitted_,—but that would make the officers of the law look silly. So,—there it is, a large problem staring at the new Postmaster-General. How will he meet it?

Dr. Work’s Bulletin says “Ignorance of the law is no excuse.” Similarly also, difficulty of enforcement is no excuse for him. So long as the law stands he and the Department of Justice must carry it out, or else be unfaithful and inefficient public servants.

Possibly Dr. Work might welcome a practical suggestion, namely, that he promptly request Congress to change this futile law which has encumbered the Statute books since Anthony Comstock got it passed in 1873. Any law that can’t be generally enforced should be repealed.

How about the families below the income tax exemption? There are over ten million of these also,—and they are the ones against whom this laws works successfully. Their ignorance and poverty prevent their securing the knowledge which the well-to-do get in spite of the law.

This Bulletin of Dr. Work’s may well serve as a reminder that common fair play for these ten million families demands that Congress shall change the laws at once. Perhaps also this Bulletin will rub it into the minds of the well-to-do parents that the knowledge by which they space their own babies and regulate their own family birth rate is legally classed as “obscene and indecent.” How much longer do decent people care to submit to this governmental insult?

Several of the best doctors who have done years of research work on methods of controlling conception, are ready _now_ to write books. One of the foremost publishing firms of America, with offices in London also, is ready to bring out an American edition of the excellent book on the control of conception, by a famous British scientist,—a book which has gone through five editions in England, and is the generally accepted text-book on the subject. Our law prevents.

It is time to do something beside talk. It is time to _end the need for the birth control movement_, by demanding that Congress change the laws.

However neither under Dr. Work’s administration nor that of his successor has there been evidence of any effort even remotely approaching a genuine attempt at enforcement. In fact infringements seem to be blinked at more and more as time goes on. Very significant and interesting recent infringements are the publication and circulation of the reports on contraceptive methods used in the clinic operated by the Research Department of the American Birth Control League (Dr. James F. Cooper, speaking at the recent Hearing on a bill to amend the New York law stated that 5000 copies of this report had been sold to physicians); also the report by Dr. —— of the research work on contraceptive method, carried on by the New York Committee on Maternal Health, and published in the “American Journal of —— and ——.” The latter report makes a survey of all the chief methods in use at present both here and in Europe, with descriptions, and an estimate of their relative merit. In neither instance has there been any prosecution or suppression, though the publishers are forthright and knowing breakers of the law. If the well known physician who wrote the article in the above indicated medical journal and the also well known medical publisher who issues the magazine can break the law so frankly, and not be arrested, it would seem as if we might well do likewise and give their names, but we leave them blank, not only to avoid the remote possibility of arrest, but to give the reader one more means of realizing that the present laws are legal nonsense.

Another striking feature of the present situation is the blatantly misleading advertisements of publications which contain no contraceptive information, but which are advertised as if they did. Margaret Sanger’s book, “Woman and the New Race” has been repeatedly advertised by book dealers who lean to sensationalism, as if it contained instruction in positive methods of birth control. Various garish phrases have been used, such as “This daring woman has at last told the real truth about birth control,” etc. The little pamphlet, “Yes,—but,” published by the Voluntary Parenthood League, to answer the objections and misunderstandings which were current several years ago, was reprinted by a sensational publisher without permission, and advertised as if it gave contraceptive information. Thousands of poor worried parents have bought these books,—some of them, as the writer well knows, having spent very hard earned pennies to do so,—only to find that they had bought another “gold brick.” The book did not give the one thing they wanted, and which was their sole reason for ordering it. One of the worst of such instances is an advertisement which appeared recently in one of the popular humorous weeklies. It is exactly reproduced below:

[Illustration: _DON’T MARRY_

until you have read our wonderful book on Birth Control. Tells simply and clearly all about =Birth Control=, Marriage; etc. Discusses the following vital subjects: “=Private Advice to Women=; =Birth Control=; =Too Many Children=; =Determination of Sex=; =Race Suicide=.” Over 200 pages, cloth bound. =Also=, for a limited period only, “What Every Mother Should Know,” by =Margaret Sanger=, great Birth Control Advocate. =SEND NO MONEY.= Pay postman $2.50 and postage for the two books.

=PUB. CO.=, =Broadway, N. Y. C.=,

_WHY PAY THE PRICE?_ ]

The writer took the trouble to go to the address given, and to inspect the book. It contained no contraceptive information whatever. It distinctly _did not_ tell “all about birth control.” The man in charge of the office, and who had been responsible for the advertisement, admitted its deliberately fraudulent character, and frankly said he used this method to make the book sell better, that personally he did not like sensationalism, but “one must make a living somehow.” The writer also inquired of the publisher of the paper in which the advertisement appeared, as to how they dared and why they cared to publish this sort of thing. Apart from the question of taste, it would seem as if the advertisement warranted indictment for obtaining money under false pretenses for one thing, and for another that it gave “notice” ... “directly” ... “where” to obtain (contraceptive) birth control information. The result of the inquiry was a letter from the publisher’s office saying that the contract for the advertisement would not be renewed. It also stated that every advertisement that had ever appeared in their paper had “first had the endorsement of the U. S. Postal authorities.” This last is surely an amazing statement. If the Postal Authorities are willing to approve such crass, vulgar and fraudulent advertisement of birth control information under the present laws, it would seem not a wild thing to demand a change of the laws, so that advertisements could be open, dignified and honest, as they may be in England, for instance. One of the largest and most reliable of the British chemists advertises its service by the simple words, “All birth control requirements, —— and Co. —— London.” One of the best known medical publishers of England announces the important new book on the control of conception by Dr. ——, with the natural straightforwardness that belongs to any scientific subject. One of their advertisements reads as follows (except for the omissions compelled by our laws):

* * * * *

ITS THEORY, HISTORY AND PRACTICE

A Manual for the Medical and Legal Professions

By ——, D.Sc., Ph.D., (Fellow of University College, London)

_Contents_:

Author’s Preface

Introduction by Sir William Bayliss, F.R.S.

Introductory Notes by Sir James Barr, M.D., Dr. C. Rolleston, Dr. Jane Hawthorne and “Obscurus.”