The tyranny of community standards: When public outrage replaces objective evidence

“ In short, in my view of the matter, the standard that is in fact applied to determine right from wrong is to be found in public opinion, whether the community that evolves it is a savage tribe or the race as a whole. ”

“ Experience has shown, that when certain moral evils exist in a community, efforts to awaken public sentiment against such practices, and combinations for the exercise of personal influence and example, have in various cases tended to rectify these evils. ”

“ But where has there been seen a public which set any such limit to its censorship? or when does the public trouble itself about universal experience? In its interferences with personal conduct it is seldom thinking of anything but the enormity of acting or feeling differently from itself; and this standard of judgment, thinly disguised, is held up to mankind as the dictate of religion and philosophy, by nine-tenths of all moralists and speculative writers. These teach that things are right because they are right; because we feel them to be so. ”

“ But the Court does retain the view that certain sexually oriented material can be considered obscene and therefore unprotected by the First and Fourteenth Amendments. To describe that unprotected class of expression, the Court adopts a restatement of the Roth-Memoirs definition of obscenity: "The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest... ”

“ The Constitution permits material to be deemed 'obscene' for adults only if, as a whole, it appeals to the 'prurient' interest of the average person, is 'patently offensive' in light of 'community standards,' and lacks 'redeeming social value.' These vague and highly subjective aesthetic, psychological and moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. ”

“ Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to "sexual impurity" or has a tendency "to excite lustful thoughts." This is community censorship in one of its worst forms. It creates a regime where, in the battle between the literati and the Philistines, the Philistines are certain to win. ”

“ It is apparent that men can be social beings no longer than they believe each other. When speech is employed only as the vehicle of falsehood, every man must disunite himself from others, inhabit his own cave, and seek prey only for himself.
Yet the law of truth, thus sacred and necessary, is broken without punishment, without censure, in compliance with inveterate prejudice and prevailing passions. Men are willing to credit what they wish, and encourage rather those who gratify them with pleasure, than those that instruct them with fidelity. ”

“ There is no quackery in medicine, religion, or politics, which may not impose even on a powerful mind, when that mind has been disordered by pain or fear. It is therefore no reflection on the poorer class of Englishmen, who are not, and who cannot in the nature of things be, highly educated, to say that distress produces on them its natural effects, those effects which it would produce on the Americans, or on any other people, that it blinds their judgment, that it inflames their passions, that it makes them prone to believe those who flatter them, and to distrust those who would serve them. ”

“ The common subordination to the law, the reciprocal recognition that the decision can be made only according to the objective weight of the evidence, the observance of forms which are held to be inviolable by both parties, the consciousness throughout the whole procedure of being encompassed by a social power and order which are the means of giving to the procedure its significance and security—all this makes the legal controversy rest upon a broad basis of community and consensus between the opponents. ”

“ The evil of a law operating in this way on manners, by holding out an example of cruelty and injustice, however effectual it might be found, is not denied. In like manner, a law falling short of or disappointing the just indignation and moral sense of the community, is, for the same reason, faulty as one that exceeds and outrages it. ”

“ Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor. ”

“ If there be no abstract definition, such as I have suggested, should not the word "obscene" be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now? To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the [p193] necessities of the lowest and least capable seems a fatal policy. ”

“ If something is said reflecting on the character of an intimate friend or near relative, how unwilling we are to lend an ear to it, how we catch at every excuse or palliating circumstance, and hold out against the clearest proof, while we instantly believe any idle report against an enemy, magnify the commonest trifles into crimes, and torture the evidence against him to our heart’s content! ”

“ This is because our newspapers, including those who professedly stand as representatives of the highest culture of the community, have been in the habit of making such constant and reckless assaults upon the characters of even very good public men, as to greatly detract from their influence when they attack one who is really bad. They paint everyone with whom they disagree black. As a consequence the average man, who knows they are partly wrong, thinks they may also be [Pg 76] partly right ”

“ Much that has been written concerning the subject is of a purely literary or polemical character, embodying prejudices, general opinions and beliefs, putting forward conclusions drawn at long range from attempted interpretations of the results of investigations not properly considered, and brought out for the sole purpose of swaying opinion or influencing sentiment. ”

“ We are forced then to the conclusion that this community, as a body, by long indulgence in. the wicked habit of wronging and maltreating colored people, has become, like a moral lunatic, utterly powerless, by the exercise of its own will, to resist or control the propensity. ”

“ It is a matter far below legislative attention; while the powers of definition are exhausted under the stupendous accumulation of regulations and interdictions for the good order of society. So hardened may the moral sense of a community be by universal and continual custom, that we are perfectly aware these very remarks will provoke the ridicule of many persons, including, it is possible enough, some who may think it quite consistent to be ostentatiously talking at the very same time of Christian charity and benevolent zeal. ”

“ If the reader, after perusing the preceding facts, testimony, and arguments, still insists that the 'public opinion' of the slave states protects the slave from outrages, and alleges, as proof of it, that cruel masters are frowned upon and shunned by the community generally, and regarded as monsters, we reply by presenting the following facts and testimony. ”

“ Lynching as a crime against society is not yet distinguished from lynching as the justifiable infliction of a deserved punishment by private citizens. Furthermore, it is difficult to create a public sentiment against lynching because of the racial antipathy which aggravates the evil in certain sections of the United States. Time will be required for the effectual application of a remedy for lynching. Any anti-lynching measures that may be adopted must be considered as palliatives rather than as remedies.
No single statute can be enacted which will put an end to the practice of lynching ”

“ We have already adverted to one of the most ordinary sophisms of our opponents. “Why,” they exclaim, “is our whole body to be censured for the depravity of a few? Every society has its miscreants. If we had our Hodge, you had your Thurtell. If we had our Huggins, you had your Wall. No candid reasoner will ground general charges on individual eases.” The refutation is simple. When a community does nothing to prevent guilt, it ought to bear the blame of it. ”

“ Hence the standard of public morality is precisely the same as that which is elsewhere applied to the individual in his personal relation to God; and the sins enumerated are attributed to the city merely because they are tolerated and encouraged in individuals by laxity of public opinion and the force of evil example. Jerusalem is a community in which these different crimes are perpetrated: “Father and mother are despised in thee; the stranger is oppressed in the midst of thee; orphan and widow are wronged in thee; slanderous men seeking blood have been in thee ”

“ Every measure which will tend to invalidate the excuses offered for the adoption of lynch-law procedure, every measure which will tend to prevent the commission of crimes provoking resort to lynch-law procedure, every measure which will tend to strengthen and maintain a popular reliance on legal procedure, every measure which will in any way tend to create a strong, uncompromising public sentiment against lynching, all of these must be adopted if the practice of lynching is to be made a thing of the past in the United States. ”

“ The contempt, the indignation, the abhorrence of the community shall be our weapons of offence. Wherever he moves, he shall find no house to receive him, no table spread to nourish him, no welcome to cheer him. ”

“ Injustice, in trying condemning and punishing upon the mere Representations of interrested Men, without calling the Party to answer; and Cruelty in the Destruction of a whole Community only because it is alledgd that Outrage has been committed in it, without the least Enquiry whether the Community have been to blame. ”

“ What is most unconscionable is that there is not a shred of evidence to justify the certain loss of life. Do the generalized threats and half-truths of this administration give any one of us in Congress the confidence to tell a mother or father or family that the loss of their child or loved one was in the name of a just cause? ”

“ The weak, the ignorant, the uninformed, the necessitous, are the sufferers; the crafty and the opulent are the gainers. [61] The evil augments until the moral sense of the community, revolting at the frightful accumulation of fraud and misery, applies the radical remedy of total reform.
Thus, pecuniary, political, and moral considerations require the government to retrace its steps, to return to first principles, and to restore its fiscal action to the safe and solid path of the constitution. ”

“ Can you remain silent and inactive when such things are done in our own community and country? Is your duty to humanity in the United States less binding?
What can you do, reader, to prevent lynching, to thwart anarchy and promote law and order throughout our land?
1st. You can help disseminate the facts contained in this book by bringing them to the knowledge of every one with whom you come in contact, to the end that public sentiment may be revolutionized. Let the facts speak for themselves, with you as a medium. ”

“ If the press is not so universally wicked, nor so deeply conspiring, as Mr. Sinclair would have us believe, it is very much more frail than the democratic theory has as yet admitted. It is too frail to carry the whole burden of popular sovereignty, to supply spontaneously the truth which democrats hoped was inborn. And when we expect it to supply such a body of truth we employ a misleading standard of judgment. We misunderstand the limited nature of news, the illimitable complexity of society; we overestimate our own endurance, public spirit, and all-round competence. ”

“ A man who wishes to serve the cause of religion ought to hesitate long before he stakes the truth of religion on the event of a controversy respecting facts in the physical world. For a time he may succeed in making a theory which he dislikes unpopular by persuading the public that it contradicts the Scriptures and is inconsistent with the attributes of the Deity. But, if at last an overwhelming force of evidence proves this maligned theory to be true, what is the effect of the arguments by which the objector has attempted to prove that it is irreconcilable with natural and revealed religion? ”

“ The presumption of innocence, the right to jury trial, proof of guilt beyond a reasonable doubt-these become barriers in the path of officials who want to impose their standard of morality on the author or producer. The advantage a censor enjoys while working as a supreme bureaucracy disappears. The public trial to which a person is entitled who violates the law gives a hearing on the merits, airs the grievance, and brings the community judgment to bear upon it. ”