As a judge of an inferior court, I am constrained by opinions of the Supreme Court concerning the obscenity statute to hold that legislation valid. Since, however, I think (as indicated in the foregoing) that none of those opinions has carefully canvassed the problem in the light of the Supreme Court's interpretation of the First Amendment, especially as expressed by the Court in recent years, I deem it not improper to set forth, in the following, factors which I think deserve consideration in passing on the constitutionality of that statute.
1. Benjamin Franklin, in 1776 unanimously designated Postmaster General by the First Continental Congress, is appropriately known as the "father of the Post Office." Among his published writings are two 6 -- Letter of Advice to Young Men on the Proper Choosing of a Mistress and The Speech of Polly Baker -- which a jury could reasonably find "obscene," according to the judge's instructions in the case at bar. On that basis, if tomorrow a man were to send those works of Franklin through the mails, he would be subject to prosecution and (if the jury found him guilty) to punishment under the federal obscenity statute. 7
That fact would surely have astonished Jefferson, who extolled Franklin as an American genius, 8 called him "venerable and beloved" of his countrymen, 9 and wrote approvingly of Franklin's Polly Baker. 10 No less would it have astonished Madison, also an admirer of Franklin (whom he described as a man whose "genius" was "an ornament of human nature")† and himself given to telling " Rabelaisian anecdotes." 11 Nor was the taste of these men unique in the American Colonies: "Many a library of a colonial planter in Virginia or a colonial intellectual in New England boasted copies of Tom Jones, Tristram Shandy, Ovid's Art of Love, and Rabelais. * * *" 12
As, with Jefferson's encouragement, Madison, in the first session of Congress, introduced what became the First Amendment, it seems doubtful that the constitutional guaranty of free speech and free press could have been intended to allow Congress validity to enact the "obscenity" Act. That doubt receives reinforcement from the following:
In 1799, eight years after the adoption of the First Amendment, Madison, in an Address to the General Assembly of Virginia, 13 said that the "truth of opinion" ought not to be subject to "imprisonment, to be inflicted by those of a different opinion"; he there also asserted that it would subvert the First Amendment 14 to make a "distinction between the freedom and the licentiousness of the press." Previously, in 1792, he wrote that "a man has property in his opinions and free communication of them," and that a government which "violates the property which individuals have in their opinion * * * is not a pattern for the United States." 15 Jefferson's proposed Constitution for Virginia ( 1776), provided: "Printing presses shall be____________________