“The Sex Side of Life”: The Obscenity Case of Mary Ware Dennett
Craig, John M
In the late afternoon of April 23, 1929, Mary Ware Dennett sat in a Brooklyn, New York, courtroom awaiting the verdict in her celebrated “obscenity trial.” After deliberating for forty-two minutes, twelve “middle-aged family men” returned with their decision. As jury foreman Charles T. Cronin rose to speak, one of Dennett’s sons, seated next to her, “reached over and pressed her hand.” Cronin announced that the jury had found the birth control and sex education advocate guilty of sending obscene material through the mail. Facing the possibility of a five-thousand-dollar fine, five years in jail, or both, a somewhat shaken Dennett faced newspaper reporters as she left the courtroom. “It is hard to go on with this sort of thin” she said. “I never thought it would lead to this.” But the next day, while still awaiting Judge Warren B. Burrows’s sentence, Mary Dennett sounded defiant, proclaiming she would pay no fine, however small: “If a few federal officials want to use their power to penalize me for my work for the young people of this country, they must bear the shame of a jail sentence. It is the government which is disgraced, not I.”(1)
The course of events that had brought Mary Dennett to the Federal District Court in Brooklyn commanded the attention of many Americans in the spring of 1929. Stories about the fifty-three-year-old grandmother appeared in most newspapers in the country. It seemed nearly everyone knew about the travail of Mary Ware Dennett. What they did not know at that point, however, was that United States v. Dennett would ultimately prove to be a landmark censorship case that paved the way for dramatic changes in the legal definition of obscenity.(2) Though uncomfortable with the notoriety accompanying her bizarre trial, Dennett believed challenging the prevailing obscenity laws on constitutional grounds was worth the personal gamble.
Before the ordeal of 1929, Mary Dennett had devoted decades to social and political activism. Born in Worcester, Massachusetts, in 1872 to George Whitefield and Livonia Coffin Ames Ware, she grew up in comfortable, middle-class surroundings. Her father was a wool merchant, and her mother’s side of the family included some notable reform-minded writers, including Mary’s great-uncle Charles Carleton Coffin, the famous Civil War correspondent, and aunt Lucia Ames Mead, the prominent peace activist. Mary went to public and private schools in the Boston area, attended the Boston Museum of Fine Arts school, and, upon graduation, taught decoration and design at the Drexel Institute in Philadelphia from 1894 until 1897. The following year, with her sister Clara, she opened a handicraft shop that sold gilded leather. The Ware sisters revived the ancient art of making guadamaciles, “the Spanish name for the gilded and tooled wall hangings which formed the major hand-craft of Spain” in the fifteenth and sixteenth centuries.(3) In 1900, she married architect William H. (“Hartley”) Dennett, with whom she had three boys, two of whom (Carleton and Devon) survived past childhood. Like her aunt Lucia Mead, who served as president of the Massachusetts Woman Suffrage Association in the early years of the twentieth century, Mary Dennett became an active leader of the state suffrage group. She organized events and special campaigns, addressed open air public meetings, presided at suffrage festivals, and served as the group’s field secretary from 1908 until 1910.(4) At that point, she accepted election as the National American Woman Suffrage Association’s (NAWSA) corresponding secretary, and she remained one of this organization’s chief publicists until 1914.(5)
Mary Dennett and her husband, Hartley, separated formally in 1909, after “Mr. Dennett’s affection for another woman” led him to abandon the family. Mary maintained custody of the two children, then ages nine and five.(6) She obtained a divorce on grounds of desertion in 1913 in a trial that received extensive, and rather sensational, newspaper coverage because Hartley continued to insist publicly that he loved both his wife and his lover, socialite Margaret Chase.(7) As a result of the ordeal, in subsequent years Mary Dennett tried to avoid situations that invited public scrutiny of her life and work. Though a political activist, she harbored “a deep aversion to being spotlighted.”(8)
During This trying time in her life Mary Dennett also became active in the Intercollegiate Socialist Society, the single-tax movement, and, particularly after 1914, the American peace movement. Following the outbreak of World War I she served as field secretary for the American Union Against Militarism, helped found the People’s Council for Peace and Democracy, and joined the New York City branch of the Woman’s Peace Party. Most important, however, Dennett became interested in the birth control movement, the cause that would command most of her attention from 1915 to the time of her trial. She helped found the National Birth Control League (NBCL) and led the organization from 1915 until 1918. The NBCL disintegrated in 1919 as Mary Dennett created a new organization, the Voluntary Parenthood League (VPL), which became the principal rival of Margaret Sanger’s American Birth Control League (ABCL) during the 1920s. Dennett advocated a vigorous national campaign to repeal federal and state statutes forbidding the sending of birth control information through the mails, laws that became known as “open bills.” She remained true to this position throughout her years as a reproductive rights activist. To Dennett, the matter was a civil liberties issue — the VPL sought the passage of “legislation for the single purpose of removing the barriers to education.”(9)
Margaret Sanger, who had advocated militant lawbreaking tactics to publicize the foolishness of the Comstock laws before the 1920s, gradually moved away from this focus. She generally agreed with Dennett’s view that lawbreaking was an ineffective tactic by the time she created the ABCL in 1921, but unlike Dennett, Sanger embraced the notion of lobbying for “doctors only” laws that would allow physicians to distribute information to patients. At times, the charismatic Sanger continued to employ confrontational tactics designed to garner publicity for the movement, including some actions wit which Dennett disagreed. It was, however, Sanger’s aggressive campaign targeting the support of doctors and eugenicists that Dennett most deplored. Dennett and Sanger became bitter rivals who refused to cooperate or even treat one another civilly. The combative, though often insecure, Sanger created much of the friction because of her reluctance to allow anyone else to be seen as the leader of the birth control movement or to receive credit for even the smallest of successes.(10)
Scholarship on the American birth control movement of the period between the world wars has focused on Margaret Sanger. Mary Dennett has received attention primarily as Sanger’s less popular, more “conservative” rival.(11) Such labeling can be misleading. Dennett, whose views on a variety of political issues were actually more “radical” than Sanger’s, believed that legislation would ultimately catch up with current practices. Dennett recognized that by the 1920s the “well-to-do educated class . . . obtained and utilized birth control knowledge, despite the laws.” She believed widespread public discussion of the issue was not taking place simply because of “embarrassment,” that “sex consciousness [had] overwhelm[ed] conscience.”(12) Dennett saw the restrictive laws pertaining to birth control as a “dead letter” because “boot-legged information and contraceptives circulate[d] among growing millions of citizens.” The retention of “any legal prohibition whatever had become] a mere gesture and pretense.”(13) Confident that the death of the Comstock statues as they related to birth control was imminent, Dennett disapproved of some of Sanger’s sensational, publicity-seeking tactics as counterproductive. If she miscalculated in anticipating Comstock’s “official” demise, her expectations are understandable given the widespread violation of the law during the period.
In many ways, Mary Dennett’s personal philosophy on the necessity of freeing birth control information from its legal classification as obscene literature went hand in hand with her views on women’s suffrage. In her arguments favoring the ballot for women, Dennett stressed the need for changes in the nature of the American family. Parents had always been “jointly and equally responsible for the existence of children” but in modem American society should be “jointly and equally responsible for their welfare, and it follows inevitably that they should be jointly and equally equipped with the one most powerful and most necessary tool for the welfare of children,” the ballot. Men and women might provide “special kinds of service” to the family and to the state, but neither must play a superior role.(14) This equality within the family must also extend, she believed, to “self-determined, wisely undertaken parenthood.” But women were denied an equal role because fundamental information about birth control was not universally available.(15)
Of course, after the passage of the Nineteenth Amendment, Mary Dennett was able to focus her attention on birth control advocacy. Her Voluntary Parenthood League remained an effective rival of the ABCL until about 1927. A skilled publicist, Dennett produced a great deal of literature during the 1920s, including a book. In 1926 Frederick H. Witchcock published Dennett’s Birth Control Laws, which provides her fundamental views on sex education and birth control, though in “an untechnical fashion.”(16) The three-part work identifies the legal restrictions against disseminating birth control information and analyzes the differences between the Sanger and Dennett positions, suggesting that striking down the features of the state and federal laws governing the mailing of birth control information should be the movement’s main concern.
Birth Control Laws looks at the origins and major features of the Comstock laws. The first such measure was introduced in 1873 by Anthony Comstock, who subsequently served for thirty-three years as a special anti-obscenity agent in the postal service and as leader of the New York Society for the Suppression of Vice. This law, Section 211 of the Federal Criminal Code, pronounced that “every obscene, lewd, or lascivious [publication constituted] non-mailable matter.” Violators of the Comstock law faced maximum sentences of five years, a five-thousand-dollar fine, or both. Any material that included information on “preventing conception” was banned. Four other obscenity statutes later strengthened the first 1873 law.(17)
Birth Control Laws examines the proposed legislative actions designed to modify the Comstock obscenity statutes. The Cummins-Vaile Bill (1923), which Dennett helped frame, called for the simple deletion of the words “preventing conception” from the 1873 law. The book analyzes in detail the value of Cummins-Vaile (which never did make it to the Boor of the House or Senate then looks at the “doctors only” idea of Sanger and her followers, a strategy Dennett attacks as “circuitous, undignified, [and] impracticable.”(18) According to Dennett, if a “doctors only” bill won passage, only individuals wealthy enough to afford regular medical care would have access to information that all people had the right to know.
At the end of Birth Control Laws, Mary Dennett considers the efficacy of bringing test cases before the courts. She concludes, however, that this approach would not represent “a promising way to get results, certainly not quick results.”(19) Her pessimism derived primarily from a personal conflict with government officials she had been trying to resolve since 1922, In April of that year, Postmaster General Hubert Work had banned a Dennett-authored pamphlet as an obscene publication. The work in question, The Sex Side of Life: An Explanation for Young People, was a sex education manual for children, as the title suggests.(20) Dennett requested repeatedly that postal authorities identify the specific reasons behind the ban (which they refused to do) and asked for a reconsideration of the ruling. A second postmaster general reviewed The Sex Side of Life in 1925 but again found its content in violation of the postal obscenity statute.(21) In early 1926, Dennett consulted American Civil Liberties Union chief counsel Arthur Garfield Hays about securing an injunction against the postal service. Dennett was prepared to confront government officials in court, to launch a direct attack upon the Comstock statutes. Hays, who was interested in moving the ACLU toward a position of taking on nonpolitical censorship, told her he would take the case. But Hays sensed, “amounting almost to a feeling of certainty, that the Court would not overrule the Post Office Department.”(22) He did not think the timing was right. His skepticism seemed well founded since, in spite of a variety of legal challenges, the Comstock statutes had remained virtually unscathed for fifty years. Disappointed that Hays saw her case as nearly hopeless, she continued to seek an opportunity to challenge the postal service.
The banning of The Sex Side of Life infuriated Mary Dennett because she was quite proud of this work. The twenty-four-page pamphlet had enjoyed an interesting history. In 1915, Dennett confronted a problem associated with single parenthood. Wishing to teach her sons about sex, she wrote a primer for Carleton, age fourteen, and Devon, age ten. Over the next three years, “the manuscript was loaned frequently.” Dennett looked for a publisher and the Medical Review of Reviews included it in an issue in 1918. It was then reprinted in The Modem School later that year.(23) Dennett subsequently received so many requests for copies of the article that she had it reprinted. She sold the booklet for twenty-five cents a copy, and at lower prices for large quantities, to a number of state public health departments and some public schools, to organizations such as the YMCA and the YWCA, and to individuals throughout the country and abroad.(24)
The Sex Side of Life, as Dennett explained in its introduction for elders, was “far more specific than most sex information written for young people.”(25) Rather than telling children that sex was something to be ashamed of, she advised them hat “the climax of sex emotion is an unsurpassed joy, something which rightly belongs to every normal human being, a joy to be proudly and serenely experienced.”(26) The manual itself included four explicit diagrams, the use of the proper medical terminology for sex organs and functions, and a very clear explanation of physiological and emotional aspects of sex. Dennett believed her pamphlet received the postal service’s stamp of disapproval because she had been openly critical of its censorship practices. She saw the government agency’s motive as simple revenge and defied the postal service by continuing to send the pamphlet in sealed envelopes under first class postage.(27)
In August 1928, two years after consulting with Arthur Garfield Hays, Dennett sent a copy to ACLU counsel Morris L. Ernst after reading an article he wrote condemning censorship. He wrote back, asking if she “ever considered testing out the legality of the pamphlet in the courts?”(28) Ernst offered to take the case without compensation should Dennett wish to fight the postal authorities in court. On October 20 she wrote to Ernst, informing him, “I should be heartily glad to have the case proceed.” Dennett noted her “very real dread of the publicity which might attend the case . . . [but] decided o take the gamble and be game.”(29)
Since its creation in 1917, the American Civil Liberties Union had focused on labor and political speech, all but ignoring other forms of censorship. In 1927, co-director Forrest Bailey explained that antiobscenity “is a phase of free speech which we have kept clear of . . . to avoid complicating our main issues,” though the ACLU’s reluctance no doubt stemmed more from the conservative moral attitudes of its leaders than from any tactical stance.(30) Only the two ACLU counsels Dennett had contacted, Hays and Ernst, rejected the prevailing puritanical views and hoped to force the organization to broaden its agenda. Ernst’s 1928 book (written with William Seagle To the Pure, offered a bitter attack on obscenity laws, and he began seeking cases designed to challenge the constitutionality of the Comstock statutes. The “marriage” of Ernst and Dennett was ideal, therefore.
Ironically, before Ernst finished devising a strategy to get the case into a courtroom and bring an injunction suit against the government, the Justice Department indicted Mary Dennett under the Comstock law of 1873. Federal prosecutors were unaware of the impending challenge Dennett and Ernst were devising; the timing constituted nothing more than an odd coincidence.(31) A post office inspector attached to the Washington, D.C., office “rigged up a decoy to order a pamphlet,” which Dennett sent to a post office box in Grottoes, Virginia, near Staunton. After a grand jury indicted her, the case went before Judge Grover M. Moscowitz in U.S. District Court in New York. Ernst filed a motion to quash the indictment and at the hearing argued:
This pamphlet is not obscene. Its motive is clean and healthy. It is pure, if you use the word in that way. Obscenity is a subjective thing. It exists in the minds of dirty vice-hunters who are always looking for dirt. They can always find dirt because it is a subjective thing. And I say not Mrs. Dennett but the grand jurors were obscene.
Assistant U.S. Attorney James E. Wilkinson responded by labeling the pamphlet “filth.” After claiming it was the court’s duty to protect “the young from this idea of sex which pervades the world today,” he branched off into a rather incongruous “patriotic” argument. Attacking Dennett for mentioning birth control in the manual, he asked, “What will happen to America if our national standards fall so low? Where will our soldiers come from in our hour of need? God help America if we haven’t men to defend her in that hour.”(32)
After consulting twelve experts on each side, Judge Moscowitz refused to quash the indictment. Actually, facing charges of judicial misconduct on a separate matter, Moscowitz begged Ernst to withdraw the motion to quash and have a demurrer substituted so a new judge could be appointed. Ernst and Dennett agreed but ended up with a less able, and less progressive, judge at trial in Warren Burrows when the case finally went before a jury on April 23.(33) After the completion of the jury selection process on the morning of that day, prosecutor Wilkinson presented the government’s case in less than an hour. He simply read The Sex Side of Life into the record, emphasizing “in a rising voice . . . the description of intimate details” about sex. Defense attorney Ernst then called his first witness, Abel T. Gregg of the national council of the YMCA. Ernst planned to call several dozen witnesses, including college professors, theologians, social workers, and physicians. But as Ernst’s questioning of Gregg began, Wilkinson objected to all the defense witnesses on the grounds that any testimony about the circulation of the pamphlet and whether its content was obscene would be irrelevant. Judge Burrows removed the jurors and promptly agreed with the prosecutor. Burrows ruled that “the question of the distribution of the pamphlet does not seem to me a matter for the jury.” He added that the twelve men should decide if the sex manual offended “the common sense and modesty of the community.”
Thus only one witness took the stand for the defense — Dennett herself. She explained the origins of the manual, but the judge refused to allow her to discuss its distribution. In his closing arguments, Ernst, labeling the government’s case “absurd,” said the matter was simply one of censorship. “To convict Mrs. Dennett,” he suggested, “you will have to convict this community to silence on fundamental facts.” Wilkinson countered by calling The Sex Side of Life “pure and simple smut” and warned that “this woman is trying to drag us down into the sewer.” The prosecutor also announced proudly that if he “could stand between this woman and the children of the land, [he] will have accomplished something.”(34) The jurors gave him his wish, and a few days later Judge Burrows settled on a three-thousand-dollar fine but no jail time. Mary Dennett then rendered the lack of an imposed prison sentence irrelevant by proclaiming she would not pay the fine.
In the weeks following the trial, newspapers and magazines throughout the country devoted considerable attention to the case. Editorial opinion was overwhelmingly favorable toward Mary Dennett and rebuked the government in pointed, often sarcastic, terms. New York newspapers were particularly unkind to the prosecution, as the Telegram labeled the proceedings “inquisitional injustice” and the World assessed he results as “deeply disturbing.” Elsewhere, an editor for the Rochester (Minn.) Post noted that the verdict and fine were “considered unfair and absurd by an overwhelming public sentiment,” while an Indianapolis writer praised The Sex Side of Life as “a prophylactic and disinfectant against common gutter smut,” calling The suppression of Dennett’s work a “miscarriage of justice.”(35)
Other editorials stressed a positive “side effect” of the verdict, as well. The Elizabeth (N.J.) Times predicted that the case would “attract world-wide attention and to rival the ‘evolution’ trial in Tennessee, as a reflection on the intelligence of some of our judges and juries.” The Providence Bulletin claimed that “a few more court decisions like the one against Mrs. Dennett . . . would tremendously advance the cause” of sex education. e editorial went on to suggest that “the publicity which Mrs. Dennett’s little book . . . [has] gained through [this] medieval assault has already provoked a most favorable reaction. It is doubtful if the law and the police could have done half as much by commendating action to advance the cause as they have done by their widely criticized opposition.”(36)
A week after the trial, Mary Dennett wrote that “support for the case is rolling up till it looks like a mountain range,” and the sympathetic outpouring included hundreds of letters and telegrams. Though one correspondent, disturbed over The Sex Side of Life’s discussion of masturbation, reminded her that “it leads to insanity most frequently,” nearly all were positive. Many birth control supporters, prominent reformers, and old friends sent notes. Margaret Sanger told her that she was “bound to win in the higher courts. I certainly hope so.”(37) A minister informed Dennett that he had personally telephoned Judge Burrows to complain about the verdict. The clergyman went on to observe that “the chief qualifications of a juror is that he be a moron. In the Dennett case the prosecutor was of the same intelligence.”(38) Another correspondent, who identified himself as “only a colored man,” offered “to serve the sentence for [Dennett] if [she] would let him.”(39)
As of May 8, Dennett noted that she knew of “only [a] single instance . . . of newspaper disparagement of me or my pamphlet.”(40) Though very few editorials praised the government’s actions, Dennett’s opponents did enjoy some limited press coverage. Canon William Sheafe Chase of Christ Church, Brooklyn, a longtime opponent of the birth control movement, explained that Dennett “was convicted because, although mankind by many centuries of sex experiences has evolved monogamy and denounced promiscuity, Mrs. Dennett’s pamphlet in effect ignores marriage and the paramount fact at the sex impulses are primarily and principally given not for selfish gratification apart from God’s purposes.” His views were widely quoted. Canon Chase also participated in public debates on the subject and began work on his own sex manual.(41) Another prominent opponent, superpatriot Ralph M. Easley, had parts of an “Open Letter thanking the jurors published in some newspapers. Easley noted Dennett’s work for “notoriously disloyal” peace organizations in addition to attacking The Sex Side of Life as “filthy and disgusting o any clean-minded person.”(42) Some letters editors critical of Dennett also appeared. A writer to the Newark Ledger said she did not “want grandmother Dennett to tell my children anything about things ‘sweeter than turkey.'” Another condemned Dennett “for the harm that her literature could work. . . . Giving young persons direct instruction about sex matters puts sex in the forefront of their lives and gives it undo importance.”(43)
Though a smattering of criticism of Mary Dennett, Morris Ernst, and The Sex Side of Life found its way into print, the overwhelming public support for the Dennett position revealed dramatic changes in American attitudes regarding various moral issues that had occurred since the first Comstock law passed in 1873. As Samuel Walker, historian of the ACLU, suggests, “The Dennett case was an indication of changing public attitudes toward sexuality.”(44) The acrimonious public criticism leveled by traditionalists against the youth-led “revolution” in morality, which characterized the first half of the 1920s, had spent its force. Ministers and other middle-class traditionalists had warned, often in highly distorted and emotional terms, of the myriad evils associated with jazz, dance, motion pictures, automobiles, cosmetics, and clothing styles. The new openness in sex matters and the various forms of “brazen defiance of decency and modesty” would lead to the ruin of the nation, defenders of Victorian standards predicted.(45) But the cavern between this rhetoric and actual practices seemed to most American so wide by the end of the decade that characterization of The Sex Side of Life as “pure and simple smut” was laughable.
Of course, this begs the question of why legislators and public officials lagged behind prevailing public sentiment on the matter. The answer was primarily that causes such as birth control and sex education constituted dangerous political issues. Even though the majority of American families used some form of contraception, few took a public stance supporting its use, a fact often lamented by Mary Dennett. Americans were similarly reluctant to take a strong position on the sex education issue. he opponents of birth control and sex education, however, could be quite vociferous, to say the least. Morris Ernst recognized this and sought with some success to convince colleagues in the ACLU that “ordinary citizens were more tolerant than government bureaucrats” and that the organization should try to “transfer the power to determine what was indecent from public officials to juries.”(46)
Even before Dennett’s trial began, the American Civil Liberties Union pledged its support if she lost in district court. Eyeing the impending appeal as a significant test case, after the negative verdict it formed the Mary Dennett Defense Committee.(47) This group, chaired initially by publisher Roy W. Howard, set to work raising money and organizing a rally at New York’s Town Hall on May 21. Within a month the committee had raised over $1,000 in the event the case made its way to the Supreme Court (ultimately it collected over $3,000)(48) Morris Ernst continued to donate his time for free.
After the circuit court agreed to consider the appeal, Dennett’s case continued to receive widespread attention. The defense team chose to appeal the conviction on three major grounds: (1) that the pamphlet was not obscene; (2) that the judge erred in disallowing testimony as to the distribution of it; and (3) that the Comstock law was unconstitutional in violating freedom of the press and in not making the offense specific.(49) The Defense Committee, meanwhile, grew from eight people to over fifty prominent Americans. Chaired by John Dewey, it included Alice Stone Blackwell, Mrs. Jacob Riis, and Rabbi Stephen Wise.(50)
Uncomfortable with her status as a celebrity and longing “for peaceful days at my leather bench,” Dennett nonetheless agreed to make the most of the favorable publicity. As she told businesswoman Lillian Burton, a member of the Defense Committee, her “endurance test” would be worth the pain because the case was “not a matter that chiefly concerns my freedom from discomfort and unwelcome publicity, but [it is] a potential service toward freedom for everyone from government censorship and toward progress in sex education.”(51) She signed a contract with Vanguard Press for a book telling about her experience, granted interviews, wrote letters to editors that appeared in print, and responded to a huge volume of new orders for The Sex Side of Life. Obviously, copies could not be sent by mail, but at least 1,500 were expressed to various individuals and organizations, and 10,000 more were printed.(52)
On May 21, Dennett and Ernst spoke before a large crowd at New York’s Town Hall. Ernst’s address focused upon the foolishness and dangers of government and other forms of censorship, which he found inconsistent with the original intent of the nation’s founding fathers. He asked “the censors to consider whether or not they themselves haven’t been the greatest inciters to an undue influence on matters sexual. Their campaigns have spread more sexual material of the type they don’t want than all of the printing presses in the land could have accomplished without their aid.(53) Dennett, in her talk, stressed the positive side of all the publicity her case received. She looked “forward to the day when we shall have a sex education that matches up to the time we live in, expressive as the time we live in . . . [and] as progressive as commerce and science.”(54)
As it turned out, Dennett’s notoriety also had some less obviously laudable results, at least from her perspective. For instance, one enterprising businessman tried to profit from all the publicity the trial received. The manager of Werba’s Theater in Brooklyn devised a stage and screen production of The Sex Side of Life. This fifty-cent show for women only, which contained “actual scenes showing everything,” used Dennett’s name and photograph to promote the imaginative venture. An associate in Ernst’s law firm paid a visit to Werba’s to inform the manager that a lawsuit would be forthcoming if he did not change the name of the show and remove all references to Mary Dennett in advertising it. He complied immediately with the request, though “business [remained] very good,” according to the Ernst associate.(55)
On January 15, 1930, Morris Ernst presented Dennett’s appeal before the U.S. Court of Appeals, Second Circuit, Judges Thomas W. Swan, Harrie B. Chase, and Augustus Hand presiding. Ernst labeled the issue at hand “a test case of vital importance.” He warned that if the conviction stood, “incalculable harm will result. The outcome will mark a further invasion of constitutional liberties. . . . It will deal a disastrous blow to the cause of sex education.”(56)
The position of the Justice Department was straightforward because clear precedent seemed to be on their side. The extensive power exercised by postal authorities to censor the mails rested on two landmark cases, Ex parte Jackson (1878) and United States v. Bennett (1879). In the former, which was not an obscenity case, the Supreme Court ruled that the First Amendment did not apply to the mails. In Bennett, in which a defendant was convicted of mailing a tract favoring legalized prostitution, the court of appeals identified a test for obscenity, something the Comstock statute of 1873 had failed to do. Circuit Judge Samuel Blatchford, later of the Supreme Court, concurred with the trial judge who imported the so-called “Hicklin rule” from England. In 1868, Lord Chief Justice Cockburn, in Queen v. Hicklin, ruled that “the test of obscenity is this, 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
publication of this sort may fall.”(57) In upholding the conviction of Bennett, Blatchford addressed directly the question of what constituted obscene, and therefore unmailable, matter. A work must be banned, he concluded, based on the effect of an isolated excerpt on particularly susceptible persons. With this decision, the “Hicklin rule” became the recognized test of obscenity used in American courts.(58)
Between 1879 and 1913, relatively few challenges to the Comstock laws or the Hicklin rule appeared in the various state or federal courts. Publishers simply refused to challenge the authority of Anthony Comstock, submitting manuscripts to him for his approval. In cases that did go to trial, including a series of decisions during the 1880s, judges applied the Hicklin rule without qualification.(59) But in his opinion in United States v. Kennerley (1913), then District Court Judge Learned Hand condemned the Hicklin rule even in upholding a conviction. Though Hand acknowledged that “the test had been accepted by the lower federal courts until it would be no longer proper for me to disregard it,” he went on to observe that “the rule as laid down, however consonant it may be with Victorian morals, does not seem to me to answer to the understanding of morality at the present time.” To Hand, a test that protected the “lowest and least capable seems a fatal policy.” As a lower court federal justice, Hand was inviting the defendant to appeal, which he did. But the Circuit court in New York proceeded o avoid the matter by simply overturning Kennerley’s conviction of applying the Hicklin rule and judged the book in question not obscene by that standard.(60)
Over the next fifteen years, few judges had the opportunity to address the challenge laid down by Learned Hand in the Kennerley case. Thus, in the Dennett appeal, Assistant U.S. Attorney Herbert Kellogg relied on the Hicklin rule, noting simply that the pamphlet in question was, indeed, “lewd and lascivious.” The Sex Side of Life had failed the long-recognized test of obscenity, as a jury of Dennett’s peers had determined.(61) For two months, the circuit court justices considered the case. Then, in an opinion written by Augustus Hand, the cousin of Learned Hand, the judges announced their decision. They refused to concede many of the challenges raised by Ernst. Consistent with the Bennett decision, Hand noted tat the personal motives of Dennett were irrelevant and that “it was perhaps proper to exclude the evidence . . . as to the persons to whom the pamphlet was sold.” They also assumed the constitutionality of the Comstock law of 1873. But Hand went on to argue the “important consideration” was the meaning of the words “obscene, lewd, or lascivious.” Consistent with the principal objection raised by Ernst, Hand observed:
The defendant’s discussion of the phenomena of sex is written with sincerity of feeling and with an idealization of the marriage relation and sex emotions. . . . Any incidental tendency to arouse sex impulses which such a pamphlet may perhaps have, is apart from and subordinate to its main effect. The tendency can only exist in so far as it is inherent in any sex instruction and it would seem to be outweighed by the elimination of ignorance, curiosity, and morbid fear. The direct aim and the net result is to promote understanding and self-control.
Therefore, the court reversed the Dennett conviction.(62)
In the Dennett decision, Augustus Hand adopted a line of thought later labeled the “dominant theme” requirement. A serious, truthful work that dealt with sex might incidentally arouse lust in some persons, but that in itself did not make it obscene. He repudiated Judge Blatford’s application of the Hicklin rule that labeled as obscene any work that would “suggest impure and libidinous thoughts in the minds” of the most susceptible persons. Hand also concluded that the work must be evaluated as a whole. In doing so, Hand and his colleagues toppled the major legal barrier restricting meaningful sex education for children.
Mary Dennett rejoiced at her victory, particularly because the government chose not to appeal to the Supreme Court. “I’m just as glad as I can be,” she said, “and not a little surprised. I scarcely expected a clean cut decision.”(63) Editorial writers throughout the nation shared her joy, as the large majority of opinion hailed the Dennett decision as a significant repudiation of government censorship. Frequently, popular discussions of the Dennett case focused on the positive backlash that repressive actions can initiate. In one editorial, contained under the heading “Stupidity Enlightens,” the writer noted how “a year ago Mrs. Dennett’s work was not widely known. Today its title and content are known to newspaper readers throughout the nation” A Tulsa writer saw the decision as a great “blow at the prudes [who exhibited] more zeal than brains.” Another suggested that Dennett’s pamphlet “has been more widely distributed than ever . . . into the hands of parents, and hence to their children.” One writer even argued that increasing the availability of sex education could be seen as a patriotic victory. He predicted that the quality of national leadership would improve with advances in education, since “stork myths do not breed George Washingtons.”(64)
Mary Dennett’s fight against government-sponsored repression did demonstrate how repressionists often damage their own causes by provoking hostility among otherwise apathetic Americans about the dangers of censorship. Thus it reveals a positive “side effect” of intolerance. The case also “finally forced the ACLU to come to terms with sex,” as Samuel Walker suggests. When the government chose not to appeal o the Supreme Court, the Dennett Defense Committee turned the remaining $1,265 over to the ACLU to “fight restrictions on birth control information.” With Morris Ernst at the forefront, the organization led the legal struggle to overturn the Comstock ban. Moreover, “the public response to the Scopes and Dennett cases clearly suggested untapped sources of support for civil liberties.” During the 1930s, the ACLU’s free speech agenda widened considerably include all forms of censorship.(65)
The significance of the Dennett case goes far beyond these developments, however. The most important aspect of the Dennett decision was that it represented a landmark court action. It became the first significant step in providing a new definition of what constituted obscenity. In 1931, the year following the victory in the appeals court, Morris Ernst represented publisher G. P. Putnam’s Sons in the United States v. One Obscene Book Entitled “Married Love,” by British birth control advocate Marie Stopes. Judge John M. Woolsey, in the same federal district court where Dennett faced indictment, ruled that Married Love “may fairly be said to do for adults what Mrs. Dennett’s book does for adolescents” and was thus not obscene. Two years later, with Ernst again defending a publisher, this thinking was extended to fiction when Woolsey determined that James Joyce’s long-banned Ulysses was not obscene. In confirming Woolsey’s opinion on appeal, Augustus Hand observed:
It is settled, at least as far as is court is concerned, that works of physiology, medicine, science, and sex instruction are not within the [Comstock] statute, though o some extent and among some persons they may tend o promote lustful thoughts. We think the same immunity should apply to literature as to science, where the presentation, when viewed objectively, is sincere, and the erotic matter is not introduced o promote lust and does not furnish the dominant note of the publication.(66)
Taken together, the Dennett, Married Love, and Ulysses decisions modified the Hicklin rule dramatically. No longer did the courts consider the effect of an isolated excerpt on especially susceptible persons but instead considered “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”(67)
Not until 1957, with the Roth case, was the issue “squarely presented to [the Supreme Court] whether obscenity was protected by the First Amendment.” Appropriately, Morris Ernst represented Roth in the proceedings. The court disagreed with Ernst, though, who argued, as he had twenty-seven years before, that all speech should receive protection, but the justices did affirm the Woolsey/Hand test.(68) A decade later, the Supreme Court, led by William Brennan, fashioned a different definition of obscenity: a book had to be “utterly without redeeming social value” to be banned.(69) The Brennan doctrine was rejected in 1973, however, by a more conservative court. The present standard, established in Miller a California, is actually similar to the Woolsey/Hand definition developed in the early 1930s, which began, of course, with the Dennett decision.(70) The major difference is that the present standard is flexible in allowing for variation among communities. As for the Comstock statute, this long-outdated reflection of Victorian standards was not replaced unitl 1970.
Ironically, the Dennett decision also had an impact on the process that removed the stigma of illegality from birth control information and devices. In Davis v. United States (1933), Judge Thomas Swan, who heard the Dennett appeal, noted that, based on the Dennett opinion written by colleague Augustus Hand, “the [Comstock] statute must be given a reasonable construction.”(71) The Davis ruling then paved the way for Morris Ernst to argue in the Japanese pessaries case (1936) that birth control could be medically necessary. Judge Grover Moscowitz, by then cleared fully of charges of wrongdoing, ruled that the diaphragms in question could not be seized by the Customs Service if they were intended for legitimate medical use. The circuit court affirmed the decision on appeal, with Augustus Hand offering the opinion. He observed that the Comstock law’s framers lacked adequate information about the dangers of conception and the safety of contraception and argued that if they had known about each they would not have included the words “preventing conception” in the statute.(72) With a stroke of the pen, Augustus Hand took a major step toward effecting what Mary Dennett had sought through legislative action for two decades, though contraception was still illegal in some states until the mid-1960s.
Following her legal victory in 1930, Mary Dennett stepped up her lobbying work in favor of an “open,” or “clean,” as she began to put it, birth control bill. In the wake of her legal victory tat publicized the foolishness of the Comstock laws, she believed the time was right to push forward. She tried to persuade Margaret Sanger to accept the “open bill” idea but without success. In 1931 she wrote to Sanger pleading with her to embrace full leadership of the movement by pushing for “clean legislation . . . for decency and freedom.” She reminded her long-alienated colleague that such legislation represented Sanger’s earliest view and recalled “a day back in 1915 when you lunched with me at my apartment, and the shine in your eyes when you talked of your determination not to rest till the people had the knowledge and the help they needed and birth control was rescued from indecency.(73) But the plea had no impact on Sanger, and Dennett withdrew from active organizational work within the reproductive rights movement.(74)
Over the next fifteen years she devoted much of her attention to the American peace movement. In 1941, at the age of sixty-nine, she was elected chair of a new organization, the World Federalists. She brought the same kind of commitment to peace work that she had devoted to the campaign to fully legalize sex education and birth control. Upon her death in 1947, she had left behind many decades of skilled organizational activism.
Scholars have afforded the career and ideas of Mary Ware Dennett very little attention since her death a half century ago. She was not a charismatic leader like Margaret Sanger or confrontational by temperament; in fact, she shunned public scrutiny of her personal life. But Dennett did not shrink from conflict in pursuit of the reform goals to which she devoted herself. During the 1920s, she challenged government officials and the obscenity laws they sought to enforce, though this effort placed her personal freedom a risk. No only did the resulting anticensorship battle she waged with the support of Morris Ernst and the ACLU establish an important legal precedent, her celebrated trial brought the sex education debate before many Americans who had thought little about the matter before 1929. Her victory may not have lived up to the predictions of an editorial writer in 1930 who believed it would “tear the veil of Victorian cant from sex relationship and open the way for the discussion of it on the scientific basis.”(75) But together with other landmark twentieth-century cases, it helped clarify the place of the Bill of Rights in American society.
Notes
1. “Mrs. Dennet Guilty in Sex Booklet Case,” New York Times, April 24, 1929; “Mrs. Dennett Wins Delay of Sentence as Motion to Quash Verdict Fails,” New York Telegram, April 25, 1929. See also The Prosecution of Mary Ware Dennett for “Obscenity” (New York: American Civil Liberties Union pamphlet, June 1929), 4-6. An earlier version of this article was presented at the Ninth Berkshire Conference on the History of Women, June 1993. Funding for the project was provided in part by a Pennsylvania State System of Higher Education Professional Development Grant.
2. Among the many works that note the significance of the Dennett case are Paul S. Boyer, Purity in Print: The Vice-Society Movement and Book Censorship in America (New York: Charles Scribner’s sons, 1968), 239-242; Jay E. Daily, Anatomy of Censorship (New York: Marcke Dekker, 1973), 80-81; James Jackson Kilpatrick, The Smut Peddlers (Westport, Conn.: Greenwood Press, 1960), 157-158; Frederick F. Schauer, The Law of Obscenity (Washington, D.C.: The Bureau of National Affairs, 1976), 24-25; Harry M. Clor, Obscenity and Public Morality: Censorship in a Liberal Society (Chicago: University of Chicago Press, 1969), 20; Terrence Murphy, Censorship: Government and Obscenity (Baltimore: Helicon Press, 1963), 6-8; James C. N. Paul and Murray L. Schwartz, Federal Censorship: Obscenity in the Mail (New York: Free Press of Glencoe, 1961), 43-45, 63. Of special interest is the work of Dennett’s attorney, Morris Ernst. See Morris L. Ernst and Alexander Lindey, The Censor Marches On: Recent Milestones in the Administration of the Obscenity Law in the United States (New York: Doubleday, Doran, and Co., 1940), 40-44, and Morris Ernst and Alan U. Schwartz, Censorship: the Search for the Obscene (New York: The MacMillan Co., 1964), 80-92. Edward de Grazia’s Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (New York: Random House, 1992) provides a lively review of the development of obscenity laws and the courts’ changing interpretations of them.
3. Mary Ware Dennett and Clara Ware Hill, Guadamaciles: Gilded and Tooled Leathers, Revival of a Lost Art (n.p., n.d.). Eileen Boris, Art and Labor (Philadelphia: Temple University Press, 1987), discusses various aspects of Dennett’s role in the handicraft movement.
4. Ida Husted Harper, ed., The History of Woman Suffrage (New York: J.J. Little and Ives, 1992; repr., New York: Arno Press, 1969), 6:276, 294; “The May Festival,” Woman’s Journal 40 (May 29, 1909): 86.
5. Dennett’s work as NAWSA corresponding secretary is detailed in Harper, History of Woman Suffrage, 5:282-405 passim. Brief sketches of Mary Ware Dennett’s life are contained in Christopher Lasch, “Mary Coffin Ware Dennett,” in Edward T. James, ed., Notable American Women (Cambridge, Mass.: Belknap Press of Harvard University, 1971), 1:463-465; Lynne Masel-Walters, “Mary Ware Dennett,” in American Women Writers (New York: Frederick Unger Publishing Co., 1979), 1:491-493; Irma Conkling Lee, comp., the Biographical Cyclopedia of American Women (New York: Franklin W. Lee Publishing Corp., 1925), 2:236-240.
6. “Suffragette Gets Divorce,” New York Times, February 12, 1913.
7. A transcript of Dennett v. Dennett is contained in the Mary Ware Dennett Papers, Arthur and Elizabeth Schlesinger Library, Radcliffe College (hereafter cited as Dennett Papers), box 2. Some clippings about the sensational case are also included.
8. Mary Dennett to Morris Ernst, October 20, 1928, Dennett Papers, box 27, fldr. 485.
9. Quoted from a Voluntary Parenthood League Memorandum, Myra P. Gallert to Member of the VPL Executive Committee, October 23, 1925, Dennett Papers, box 15, fldr. 262.
10. The relationship between Sanger and Dennett is traced in David M. Kennedy, Birth Control in America: The Career of Margaret Sanger (New Haven: Yale University Press, 1970), 76, 91, 94, 219-221; Madeline Gray, Margaret Sanger: A Biography of the Champion of Birth Control (New York: Richard Marek, 1979), 145-146, 177-178, 325; Linda Gordon, Woman’s Body, Woman’s Right: Birth Control in America (New York: Penguin Books, 1990), 286-89; Ellen Chesler, Margaret Sanger: A Biography (New York, Simon and Schuster, 1992), 130-143-145, 232-235. In her autobiography, Sanger said of Dennett: “Mrs. Dennett was a good promoter and experienced campaigner, a capable office executive, an indefatigable worker for suffrage and peace, with a background that might have been invaluable. I often regretted that we could not have combined our efforts.” Margaret Sanger: An Autobiography (New York: W. W. Norton, 1938), 181.
11. For example, see Chesler, Woman of Valor, 145.
12. “On Account of My Position,” A Letter to Leaders (New York: Voluntary Parenthood League, [1925]), n.p.
13. An Open Letter to Margaret Sanger, Hon. Frederick H. Gillette, and the Judiciary Committee of the Senate, February 11, 1931, v. 502, ACLU Cases, American Civil Liberties Archives, Seeley G. Mudd Manuscript Library, Princeton University (hereafter cited as ACLU Cases).
14. “Address by Mrs. Mary Ware Dennett before the Penn. Federation of Women’s Clubs, Scranton, October, 19, ’10,” Dennett Papers, box 12, fldr. 208.
15. Mary Ware Dennett, “What Birth Control Means,” Physical Culture 48:1 (July 1922): 42, 121.
16. Mary Ware Dennett, Birth Control Laws: Shall We Keep Them Change Them or Abolish Them (New York: Frederick H. Hitchcock, 1926), iv.
17. For a useful and succinct examination of Anthony Comstock and the law he fashioned, see Ernst and Schwartz, Censorship: The Search for the Obscene, 29-37.
18. Dennett, Birth Control Laws, 216.
19. Dennett, Birth Control Laws, 265-266.
20. Mary Ware Dennett, The Sex Side of Life: An Explanation for Young People (New York: Mary Ware Dennett Publications, 1928).
21. Mary Dennett’s own account of the origins of the whole affair, as well as the entire text of The Sex Side of Life, are contained in her book, Who’s Obscene? (New York: Vanguard Press, 1930), 10-31. See also Paul and Schwartz, Federal Censorship, 44.
22. Arthur Garfield Hays to Mary Dennett, May 21, 1926, Dennett Papers, box 25, fldr. 441. They continued to correspond on the matter; see Hays to Dennett, September 20, 1926, and October 4, 1927, box 25 fldr. 441. Dennett was a member of the ACLU.
23. “The Sex Side of Life: An Exploration for Young People,” Medical Review of Reviews 24:2 (February 1918): 68-75, and reprinted in The Modern School: A Monthly Magazine Devoted to Libertarian Ideas in Education 6 (June 1918): 162-176. The New Republic reprinted substantial portions of it under “What Mrs. Dennett Wrote,” New Republic 58 (May 8, 1929): 329-332.
24. United States v. Dennett, 39 F. 2d. 564 (1930); “Mrs. Dennett Wins Delay of Sentence,” New York Telegram, April 25, 1929; The Prosecution of Mary Ware Dennett, 3. Dennett, Who’s Obscene?, 6.
25. Dennett, The Sex Side of Life, 2.
26. Dennett, The Sex Side of Life, 4.
27. Dennett, Who’s Obscene?, 10-31.
28. Morris Ernst to Mary Dennett, August 30, 1928, Dennett Papers, box 27, fldr. 485.
29. Mary Dennett to Morris Ernst, October 20, 1928, Dennett Papers, box 27, fldr. 485.
30. Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York: Oxford University Press, 1990), 82-83.
31. Ellen Chesler observes that “sexually explicit literature … earned legal protection in 1930, ironically enough, when [Sanger’s] old rival Mary Ware Dennett challenged the censorship of one of her own sex education pamphlets and won on appeal.” In spite of a number of ironies that manifested themselves during Dennett’s ordeal, including the timing of the indictment, the fact that the civil libertarian Dennett confronted the government and won was hardly ironic. If anything, the result of the Dennett case served to validate some of the defendant’s long-held views.
32. Wilkinson undoubtedly wanted to “remind” the judge that Dennett was a birth control activist. Ernst and Wilkinson quoted in Dudley Nichols, “Sex and Our Children,” The Nation, 128 (February 6, 1929), 154-155.
33. Moscowitz’s “problem” is described by Dennett, as well as other aspects of the pretrial period, in Mary Dennett to “Dearest Myra [P. Gallert] and Vine [McClasland],” March 13, 1929; Mary Dennett to “Dearest Two [Myra and Vine],” March 18, 1929; Mary Dennett to “Vine and Myra,” April 10, 1929, Dennett Papers, box 25, fldr. 438.
34. United States v. Dennett, 76 A. R. L. 1092. A transcript is contained in the Dennett Papers, box 24. The account of the trial is also drawn from “Mrs. Dennett Guilty in Sex Book Case”; Dudley Nichols, “Sex and the Law,” The Nation 128 (May 8, 1929): 552-554; The Prosecution of Mary Ware Dennett, 3-6; Mary Dennett, Who’s Obscene?
35. “The New Inquisition,” New York Telegram, April 24, 1929; “The Case of Mrs. Dennett,” New York World, April 25, 1929; “Suppressed Evidence,” Rochester (Minn.) Post, May 6, 1992′ “Picking on a Woman,” Indianapolis (Ind.) Times, April 30, 1929.
36. “This Should Be Fought Out,” Elizabeth (N.J.) Times, April 30, 1929; “It’s and Ill wind …,” Providence (R.I.) Bulletin, May 2, 1929.
37. Margaret Sanger to Mary Dennett, May 24, 1929, Dennett Papers, box 24, fldr. 419.
38. T. R. Buttrick to Mary Dennett, April 29, 1929, Dennett Papers, box 23, fldr. 415.
39. Mary Dennett to “Dearest People,” May 2, 1929, Dennett Papers, box 24, fldr. 433. Many letters and telegrams are contained in the Dennett Papers, box 23, 24 and 25.
40. Mary Dennett to “Dear Folks,” May 8, 1929, Dennett Paper, box 24, fldr. 433.
41. Canon Chase quoted in Haywood Broun, “Broun Answers Canon Chase,” New York Telegram, May 14, 1929; “Mrs. Dennett Gets Ovation at Town Hall,” New York Telegram, May 24, 1929; “Canon Chase Works on Sex Pamphlet,” Yonkers Herald, June 12, 1929.
42. Ralph M. Easley, An Open Letter to the Twelve Jurymen Who Tried the Case of the United States Government against Mary Ware Dennett, Praising Their Courage, Their Decency and Their Wisdom (n.p.: [1929]). A copy is contained in the Dennett Papers, box 24, fldr. 431.
43. “Letters to the Editor,” Newark (N.J.) Ledger, May 7, 1929; “Mr. Hooper Regards Sex Instruction as Largely Superfluous,” Hartford Courant, June 2, 1929.
44. Walker, In Defense of American Liberties, 85.
45. Quoted from a writer in the Literary Digest by Dorothy M. Brown, Setting a Course: American Women in the 1920s (Boston: Twayne Pub., 1987), 181. For a general discussion of the traditional battle against changes in the manners and morals, see Brown, Setting a Course, 167-192; Gilman M. Ostrander, “The Revolution in Morals,” in John Braeman, Robert H. Brenner, and David Brody, eds., Change and Continuity in Twentieth-Century America: The 1920s (Columbus: Ohio State University Press, 1968), 323-349; Paula S. Fass, The Damned and the Beautiful: American Youth in the 1920s (New York: Oxford University Press, 1977), 17-25, 260-290.
46. Walker, In Defense of Civil Liberties, 83.
47. Forrest Bailey to Mary Dennett, January 17, 1929, reel 71, v. 374, ACLU Cases.
48. Mary Ware Dennett Defense Committee Meeting, Minutes of May 31, 1929, v. 374, ACLU Cases.
49. Appellant’s Brief, U.S. v. Dennett, a copy of which is contained on reel 44, vol. 431, ACLU Cases; The Prosecution of Mary Ware Dennett, 6.
50. “Members of the Dennett Committee,” v. 431, ACLU Cases.
51. Mary Dennett to Lillian Burton, January 13, 1930, v. 431, ACLU Cases; Forrest Bailey to Louise S. Bryant, December 18, 1929, v. 374, ACLU Cases.
52. Dennett and Ernst feared that John Sumner of the New York Vice Society would move to seize all copies of The Sex Side of Life. Dennett revealed this fear, as well as other feelings and actions during the excitement of the immediate posttrial period, in letters to her mother and other members of her immediate family. Mary Dennett to “Dearest People,” May 2, 1929, and Mary Dennett to “Dear Folks,” May 8, 1929, Dennett Papers, box 24, fldr. 433.
53. Public Hearing on Sexual Education — Freedom or Censorship, under auspices of the Mary Ware Dennett Defense Committee at Town Hall, New York City, May 21, 1929, Dennett Papers, box 27, fldr. 484, 13.
54. Public Hearing on Sexual Education, 25.
55. Alexander Lindey to Mary Dennett, May 18, 1929, Dennett Papers, box 27, fldr. 485.
56. Quoted from “Appeal is Argued for Mrs. Dennett,” New York Times, January 16, 1930; see also Appellant’s Brief, 59.
57. Regina v. Hicklin, L.R. 3 Q.B. 350 (1868). The Hicklin decision is reprinted in Haig A. Bosmajian, Obscenity and Freedom of Expression (New York: Burt Franklin & Co, 1976), 1-5; Edward de Grazia, Censorship Landmarks (New York: R. R. Bowker Co., 1969), 5-11.
58. United States v. Bennett, 16 Blatch. 338 (1879). Paul and Schwartz, Federal Censorship, chap. 3.
59. The cases included United States v. Britton, 17 F. (1883); People v. Muller, 96 N.Y. 408 (1884); United States v. Wightman, 29 F. 636 (1886); United States v. Bebout, 28 F. 522 (1886); and United States v. Clarke, 38 F. 732 (1889). The Muller decision is reprinted in de Grazia, Censorship Landmarks, 42-44. The Wightman, Bebout, and Clarke decisions are contained in Bosmajian, Obscenity and Freedom of Expression, 6-8. The sole Supreme Court pronouncement on the definition of obscenity, though vague, occurred in Swearingen v. United States, 161 U.S. 446 (1896). See de Grazia, Censorship Landmarks, 46-47.
60. United States v. Kennerley, 209 F. 119 (1913). The decision is reprinted in Bosmajian, Obscenity and Freedom of Expression, 9-10; de Grazia, Censorship Landmarks, 58.
61. “Idealism of Dennett Sex Primer Cited in Appeal from Conviction,” New York World, June 16, 1930.
62. United States v. Dennett, 39 F. 2d. 564 (1930). Reprinted in Bosmajian, Obscenity and Freedom of Expression, 13-16; de Grazia, Censorship Landmarks, 83-86.
63. “Mrs. Dennett Freed in Sex Book Case,” New York Times, March 4, 1930.
64. “Stupidity Enlightens,” Denver Rocky Mountain News, April 21, 1930; “Blow at the Prudes,” Tulsa World, March 7, 1930; “Sane Decision,” Sioux City Tribune, March 13, 1930; El Paso Times, April 7, 1930.
65. Walker, In Defense of American Liberties, 84-86.
66. United States v. One Book Entitled Ulysses, 5 F. Supp. 182 (1933), aff’d 72 f2d. 705 (1934). See de Grazia, Censorship Landmarks, 94-101; Bosmajian, Obscenity and Freedom of Expression, 18-24.
67. Quoted from Justice William Brennan discussing the Dennett and Ulysses decisions, in Roth v. United States, 354 U.S. 476 (1957). See de Grazia, Censorship Landmarks, 290-300; Bosmajian, Obscenity and Freedom of Expression, 66-76.
68. Roth v. United States.
69. A Book Named “John Cleland’s Memoirs of a Woman of Pleasure,” v. Attorney General, 383 U.S. 413 (1966).
70. Miller v. California, 413 U.S. 15 (1973).
71. Davis et. al. v. United States, 62 F. 473 (1933).
72. United States v. One Package of Japanese Pessaries, 86 F 2d. 737 (1936). Kennedy, Birth Control in America, 243-259.
73. Mary Dennett to Margaret Sanger, February 28, 1931. v. 502, ACLU Cases.
74. After she won her appeal, Mary Dennett did write a book on sex education, The Sex Education of Children: A Book for Parents (New York: Vanguard Press, 1931).
75. “Mrs. Dennett’s Case,” Xenia (Ohio) Gazette, March 8, 1930.
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