American Headlines: Postal censorship against H. L. Mencken

To understand the famous “Hatrack” case and H. L. Mencken’s battle with the United States Post Office from 1926 to 1927, we need to remember that the censorship laws were much harsher in the 1920s than today. Then as now, it was illegal to send "obscene" material through the mail, but obscenity was defined more broadly than today. Judicial precedents said that obscenity was material which could appeal to the lewd propensities of susceptible readers who were likely to read the material.

Journalist and author H. L. Mencken had frequently criticized the United States Postal Service for allegedly censoring genuine literature and politically dissident publications, sometimes under the guise of suppressing "obscenity."

Mencken edited a magazine entitled the American Mercury. This magazine was quite critical of the establishmnent. Mencken, and many authors whose articles Mencken published in the Mercury, were critical of the politically influential Methodist church, which Mencken blamed for Prohibition and other alleged atrocities. A *Mercury* article had also criticized the establishment in Boston, Mass.

The April, 1926 issue of the Mercury contained three items which later embroiled the magazine and its editor in a conflict with government authorities. The first item ws an article by Herbert Asbury. Asbury was working on a book called "Up From Methodism," and the article was a chapter from this upcoming book.

The article, entitled “Hatrack,” was the allegedly true story of a small-town prostitute in Farmington, Missouri, when Asbury was a child. This prostitute had the nickname “Hatrack” on account of her gangly physique. However, her charms were sufficient to enable her to attract paying clients. Despite her sinful life, Hatrack came to church every Sunday, seeking forgiveness, but the good people of the town shunned her, so Hatrack went back to her life of sin.

Also in the soon-to-be famous April issue of the Mercury was an editorial essay by George Jean Nathan, a founding editor of the magazine. The essay, entitled “The New View of Sex,” was included in the “Clinical Notes” section of the magazine. Nathan’s essay claimed that men no longer held the old opinion that sex was “a grim, serious and ominous business.” Instead, sex now wore “the mask of comedy....Sex is, purely and simply, the diversion of man, a pastime for his leisure hours and, as such on the same plane with his other pleasures"

The third item of interest in the April Mercury was an ad for an allegedly obscene book. This ad was invoked belatedly by the Post Office when it was trying to characterize the April *Mercury* as obscene, but otherwise the ad played only a marginal role in the "Hatrack" affair.

The April issue of Mercury attracted the interest of a Boston organization known as the Watch and Ward Society. The Society, under the leadership of J. Frank Chase, had assigned itself the task of monitoring literature sold in Boston and vicinity in order to determine if such literature was obscene. If the Society considered a book, or an issue of a periodical, to be obscene, then the Society would so notify booksellers or newsdealers (as the case might be). If a book dealer or newsstand proprietor sold a copy of a work branded obscene by the Society, then the Society (which was politically influential) would arrange to have the seller arrested and prosecuted for violating the obscenity laws of Massachusetts. In practice, businesses complied with the decisions of the Society and did not try to sell anything which the Society said was obscene. The Society’s policing of Boston literature was sufficiently well-known that, in other parts of the country, works were sold under the slogan “banned in Boston,” in the hopes of exciting the curiosity or the prurient interest of potential readers.

The Watch and Ward Society concluded that the *Mercury's* April issue went too far, and news dealers were duly notified that the April issue of the American Mercury was considered obscene.

Mencken decided that the banning of his magazine presented an excellent opportunity to challenge the authority of the Watch and Ward Society.

As part of his challenge to the Watch and Ward Society, Mencken stormed into Boston and arranged to sell a copy of the April Mercury to J. Frank Chase himself, the leader of the Watch and Ward Society, on April 5. Once the sale was completed, Boston cops arrested Mencken on a charge of selling obscene literature.

Mencken was promptly tried before a judge. The prosecutor cited the “Hatrack” article and Nathan’s sex editorial as making the magazine obscene. The judge, however, acquitted Mencken on April .

The very next day, April 8, Horace J. Donnelly, the Solicitor of the U. S. Post Office Department, ruled that the April's Mercury was obscene, whatever the judge in Massachusetts may have said. Therefore, according to the federal Comstock Law, sending this issue of the magazine through the mail was a federal offense and no Post Office employee could deliver the magazine. The magazine was obscene, according to the Post Office, because of the “Hatrack” article and Nathan’s essay on sex.

In fact, the press run of the April Mercury had already been mailed out to subscribers by the time the Post Office declared it unmailable, so the Post Office censorship had little practical effect. Mencken sued the Post Office anyway, claiming that the April *Mercury* was not in fact obscene.

Mencken also sued the Watch and Ward Society in Boston as well as the Society’s leader, J. Frank Chase. A federal judge ruled that Chase’s organization was guilty of an illegal restraint of trade. Prosecutors, not private activist groups, should censor literature, according to the judge's ruling.

In Mencken's suit against the Post Office, Judge Julian Mack presided. Judge Mack didn’t think that any of the material in the April Mercury violated the obscenity law. "Hatrack" and the sex editorial were not obscene, the judge held. Judge Mack issued a temporary injunction requiring the Post Office to carry the April Mercury through the mail. The government appealed Judge Mack’s order to the Second Circuit Court of Appeals.

Unbeknownst to Mencken (and unbeknownst to the general public until the 1990s), Mencken’s squabble with the Post Office was developing into a possible landmark free-speech case. In the Second Circuit Court of Appeals, Mencken’s case against the Post Office was being considered by a panel of three judges. Notes regarding the court’s internal deliberations, made public in recent years, indicate that the judges in the American Mercury case were potentially on the verge of issuing a precedent-setting decision about obscenity and freedom of expression.

Of the three judges hearing Mencken’s case against the Post Office, Learned Hand is probably the most famous. Judge Hand had previously served as a federal trial judge in New York. Later, he was promoted to the Second Circuit Court. Hand would stay on the Second Circuit Court until his death in 1961. Although frequently considered by various Presidents for appointment to the U. S. Supreme Court, Hand was always passed over in favor of other candidates. His opinions in several areas of the law would be very influential.

Judges in the Second Circuit had the habit of sending memos to each other about the cases they were considering. All three judges in the American Mercury/Post Office case wrote such memos to each other. Judge Hand’s memo, dated April 12, 1927, said the two articles were not obscene.

Hand urged his colleagues to adopt a different definition of obscenity than the courts had been accustomed to follow. The current definition of obscenity (known as the *Hicklin* rule) focused on a work's harmful effect on susceptible people. Hand urged his colleagues to repudiate the Hicklin rule, and to use Mencken’s case against the Post Office as an opportunity to do so.

Hand’s memo attacked the Hicklin definition of obscenity, saying that the Hicklin rule made “unlawful all literature, however inoffensive to normal persons, because the inordinately lewd can find in it a gratification of their propensities.” In other words, the Hicklin rule would ban material about sex which didn’t turn on any normal person, but which some pervert might find arousing.

Hand continued: “[The Hicklin standard] seems to me an impossible test which would include medical works and nearly all fiction which described love in any other than denatured language....It is an impossible standard to apply and would effectively destroy letters.”

Hand wanted to evaluate an allegedly obscene work based on its effect on normal readers. Under this standars, Hand thought that neither "Hatrack" nor the sex editorial was obscene.

The memorandum on the American Mercury case by Judge Martin Manton was at an opposite pole from Judge Hand’s memo. Judge Manton had been associated with the Tammany Hall political organization in New York City, a fact which probably helped him get his judicial post. Manton was not on close terms with Judge Hand or with Judge Thomas Swan (the third judge hearing the American Mercury case). Sometimes, as now, Manton was in conflict with judges Hand and Swan.

Manton’s memo to his fellow-judges argued that the federal courts should not interfere with the judgment of the Post Office. As a district court judge, Hand had tried to prevent post-office censorship but the appeals court had urged that federal judges should defer to the Post Office in censorship cases. Judge Manton gently reminded his colleagues how Hand's previous stand against postal censorship had failed.

Judge Manton couldn’t resist commenting on the “Hatrack” article and the sex essay. Manton believed that these articles were “harmful.” Both articles had “a tendency to corrupt the young, and their publication should be forbidden.”

The third judge hearing the case, Thomas W. Swan, was a former dean of Yale Law School. Judge Swan had friendly relations with Judge Hand, and he had views on the obscenity issue which were similar to Hand’s. Judge Swan didn’t think the “Hatrack” article and the sex essay were obscene. Swan indicated that if his fellow-judges, Hand and Manton, wanted to deal with the obscenity issue, then he (Swan) would rule in Mencken’s favor and against the Post Office. Swan indicated, however, that there was another issue involved in the case, a legal technicality which didn’t involve obscenity at all.

The legal technicality which Judge Swan raised was basically this: The April *Mercury* had been mailed out before the Post Office banned it, and therefore, at least at this stage of the proceedings, it would be merely "academic" to rule in Mencken's favor, even if the censorship had been illegal.

The court agreed with Judge Swan on the technical issueOn May 2, 1927, Judge Manton delivered an opinion on behalf of all three judges, saying that even if the Post Office was wrong on the obscenity issue, an injunction at this stage was not the appropriate remedy. Thus the court sidestepped the obscenity/First Amendment issue, and no groundbreaking precedential decision was issued (Judge Martin Manton later went to prison for bribery

The federal Appeals Court decision of May 2, 1927 had reinstated the Post Office’s banning order against the April, 1926 issue of the American Mercury. Former Mencken associate Charles Angoff, in a 1956 memoir of Mencken, said that “[t]echnically, I believe, there is still a ban on sending the April, 1926 issue through the mails.” Developing legal standards, however, soon made the ban obsolete.

Judge Learned Hand, who had tried to use Mencken’s test to liberalize the law of obscenity, soon had other opportunities to achieve this objective. In some key decisions during the 1930s, decisions which Hand either wrote or joined, the Second Circuit Court essentially got rid of the Hicklin rule and interpreted federal obscenity laws in such a way that alleged obscenity must be evaluated from the standpoint of a normal person, not the standpoint of a pervert. These Second Circuit decisions were mentioned favorably by the United States Supreme Court when it started deciding key obscenity cases in 1957. In 1973, the Supreme Court gave a definition of obscenity which would be binding on both the state and federal governments; hereafter, any government which adopted a stricter definition would be in violation of the First Amendment.

The Supreme Court has specified that, to be obscene, a work must be both explicit and offensive. Under this standard, “Hatrack” and Nathan’s essay are too tame to qualify as obscene. A work is not obscene if it has “serious literary, artistic, political, or scientific value.” The “Hatrack” article and the Nathan essay probably fit this description-they are serious articles in a serious magazine.

Nowadays, thankfully, the great fights over obscenity are not fought over articles like “Hatrack” in print magazines.