Clayton W. Horn

“ The freedoms of speech and press are inherent in a nation of free people. These freedoms must be protected if we are to remain free, both individually and as a nation. The protection for this freedom is found in the First and Fourteenth Amendments to the United States Constitution, and in the Constitution of California, Art. I, sec. 9 which provides in part: “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press . ”

“ No two persons think alike; we were all made from the same mold but in different patterns. Would there be any freedom of press or speech if one must reduce his vocabulary to vapid innocuous euphemism? An author should be real in treating his subject and be allowed to express his thoughts and ideas in his own words.
In People v. Viking Press, the court said: "The Courts have strictly limited the applicability of the statute to works of pornography and they have consistently declined to apply it to books of genuine literary value. ”

“ If the statute were construed more broadly than in the manner just indicated, its effect would be to prevent altogether the realistic portrayal in literature of a large and important field of life. . . . The Court may not require the author to put refined language into the mouths of primitive people," and in People v. Vanguard Press, the Court observed: "The speech of the characters must be considered in relation to its setting and the theme of the story. It seems clear that use of foul language will not of itself bring a novel or play within the condemnation of the statute. ”

“ If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. ”

“ Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it. ”

“ Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society-the fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. ”

“ Justice Cardozo said: "A word is not a crystal, transparent and unchanged. It is the skin of living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." ”

“ Thomas Jefferson in his bill for establishing religious freedom wrote that “to suffer the Civil Magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty . ”

“ If it does not have the slightest redeeming social importance it may be obscene. The test of obscenity in California is that the material must have a tendency to deprave or corrupt readers by exciting lascivious thoughts or arousing lustful desire to the point that it presents a clear and present danger of inciting to anti-social or immoral action. The book or material must be judged as a whole by its effect on the average adult in the community. ”

“ Such competent studies as have been made do conclude that so complex and numerous are the causes of sexual vice that it is impossible to assert with any assurance that 'obscenity' represents a ponderable causal factor in sexually deviant behavior. ”

“ It is to be noted that the statute requires proof of criminal intent, namely, that the defendants did willfully and lewdly commit the acts specified. It should also be noted that no reference to minors is made in the statute.
It must be borne in mind that the prosecution has the burden of proving beyond a reasonable doubt and to a moral certainty two things: first, that the book is obscene and, second, that the defendants willfully and lewdly committed the crime alleged. It is elementary that where a statute makes a specific intent an element of an offense, such intent must be proved. ”

“ We are so fearful for other people's morals; they so seldom have the courage of our own convictions."
In Commonwealth v. Gordon: the test for obscenity most frequently laid down seems to be whether the writing would tend to deprave the morals of those into whose hands the publication might fall by suggesting lewd thoughts and exciting sensual desires. The statute is therefore directed only at sexual impurity and not at blasphemy or coarse and vulgar behavior of any other kind. The word in common use for the purpose of such statute is "obscenity." ”

“ To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. ”

“ Opinions of professional critics publicly disseminated in the ordinary course of their employment are proper aids to the court in weighing the author's sincerity of purpose and the literary worth of his effort. These are factors which, while not determining whether a book is obscene, are to be considered in deciding that question. ”

“ The very argument advanced to sustain the statute's validity, so far as it condemns the obscene, goes to show the invalidity of the statute so far as it condemns 'filth,' if 'filth' means that which renders sexual desires 'disgusting.' For if the argument be sound that the legislature may constitutionally provide punishment for the obscene because, anti-socially, it arouses sexual desires by making sex attractive, then it follows that whatever makes sex disgusting is socially beneficial. ”

“ There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly. ”

“ The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. ”

“ As a dramatic composition it serves to degrade the stage where vice is thought by some to lose "half its evil by losing all its grossness." That it is indecent from every consideration of propriety is entirely clear' but the court is not a censor of plays and does not attempt to regulate manners. One may call a spade a spade without offending decency, although modesty may be shocked thereby. ”

“ The effect of the publication on the ordinary reader is what counts. The Statute does not intend that we shall "reduce our treatment of sex to the standard of a child's library in the supposed interest of a salacious few. This test, however, should not be left to stand alone, for there is another element of equal importance-the tenor of the times and the change in social acceptance of what is inherently decent.
The modern rule is that obscenity is measured by the erotic allurement upon the average modern reader ”

“ Comparison of the material with other similar material previously adjudicated is proper. The people owe a duty to themselves and to each other to preserve and protect their constitutional freedoms from any encroachment by government unless it appears that the allowable limits of such protection have been breached, and then to take only such action as will heal the breach. ”