It was the policy of the American Civil Liberties Union (ACLU) during the 1920s to contest only those obscenity regulations that were “relied upon to punish persons for their political views.”Footnote ¹ So stated a 1928 ACLU bulletin, reiterating a position to which the organization had adhered since its formation in 1920. For the majority of the ACLU's executive board, “political views” encompassed the struggle for control of the government and the economy, but not of the body. The early ACLU was not interested in defending avant-garde culture, let alone sexual autonomy.

Only three years later, however, the ACLU was the undisputed leader of the anticensorship campaign and an aggressive advocate of artistic freedom and birth control. With that shift, the ACLU inched closer toward a new model of civil liberties: one that celebrated individual expressive freedom over substantive social change. Thus transformed, the civil liberties movement finally attracted widespread public support, paving the way for a pluralistic turn in politics as well as personal morality.

What happened in the intervening years to change the ACLU's agenda so completely? The catalyst, I argue, was a postal censorship dispute, resolved by the Second Circuit's 1930 speech-friendly decision in United States v. Dennett.Footnote ² When the ACLU announced its successful appeal in Dennett in March 1930, many Americans considered the news a victory for justice. Although few knew it, it was justice of an uncommonly poetic sort. The case was the ACLU's first important attack on postal obscenity censorship, and the Second Circuit's seminal decision was a significant achievement for the organization and its client. Newspaper accounts heralded Mary Ware Dennett as the protagonist.Footnote ³ But Dennett's role in the struggle was quite different from what she and her civil liberties allies might have predicted. For years, the pioneering birth control activist—a former secretary of the ACLU's predecessor organization, the National Civil Liberties Bureau (NCLB)—had lobbied unsuccessfully for revision of the postal censorship laws. In the end, it took a criminal prosecution of Dennett herself to mobilize public opinion and effect legal change.

The object of the legal dispute was Dennett's sex education pamphlet, The Sex Side of Life: An Explanation for Young People, which was widely regarded as the best available tract on the subject. Postal authorities declared the pamphlet obscene despite effusive praise by medical practitioners, religious groups, and government agencies for its frank and objective style. When Dennett continued to circulate it by mail in defiance of the postal ban, she was prosecuted for obscenity. The ACLU came to her defense.

At the time, however, the organization's leadership was unconcerned with Dennett's broader goals. The ACLU was founded, according to early organizational documents, to assist in the “struggle of labor” by facilitating orderly progress toward revolutionary social change.Footnote ⁴ By the late 1920s, it had moved beyond its initial commitment to the “right of agitation,” which had encompassed workers' rights to organize collectively. For strategic and ideological reasons, the organization increasingly had emphasized less controversial values, such as religious and academic freedom. In the realm of sexual morality, however, most members of the ACLU were untroubled by state regulation, and few were eager to challenge obscenity laws. ACLU board members agreed to sponsor Dennett's case because, in their view, The Sex Side of Life was not obscene. On the contrary, it instructed the youth on an issue of social importance. Censoring the pamphlet interfered with established progressive projects such as the dissemination of scientific knowledge and the promotion of happy, stable marriages. At the same time, it curtailed parents' authority to educate their children in accordance with their own values.Footnote ⁵ In short, defending The Sex Side of Life was an uncontentious opportunity to challenge the government's suppression of disfavored ideas.

Unexpectedly, however, the litigation unleashed a far more sweeping anticensorship initiative. Dennett's heavily publicized conviction, overturned by the Second Circuit on appeal, generated popular hostility toward the censorship laws. ACLU attorneys recognized that a more aggressive anticensorship initiative would improve the organization's political and financial standing. Moreover, the debate surrounding Dennett's prosecution prompted a re-evaluation of why civil liberties mattered. The swift success of the new approach convinced many civil libertarians that speech should be protected regardless of its social value. United States v. Dennett, in the words of ACLU co-counsel and emerging free speech leader Morris Ernst, was a “test-case of vital importance.”Footnote ⁶

An Organizational Agenda in the Making

It is well established in the historiography of civil liberties that the early leadership of the ACLU was not interested in protecting cultural expression.Footnote ⁷ Whatever motivated the ACLU's founders to champion free speech—a complicated and contested question—artistic freedom and “moral” autonomy were peripheral concerns at best. Within a decade, however, the ACLU was unqualifiedly committed to the fight against censorship. Many of its supporters were reluctant to defend Communists but eager to endorse artistic freedom.

No historian of free speech has provided an account of how and why the organization branched out into this new realm.Footnote ⁸ Meanwhile, obscenity scholars have related changing public mores during the 1920s and 1930s to a relaxation of obscenity regulation, but they have not connected the liberalizing trends to legal developments in the broader context of civil liberties.Footnote ⁹ In this article, I offer a potential explanation for the shift in the civil liberties agenda during the late 1920s and early 1930s. The ACLU's new vision of civil liberties, I suggest, was inspired by the unexpected popularity of its victory in United States v. Dennett. That case is often overlooked in histories of free speech, perhaps because it never reached the Supreme Court, was not decided on First Amendment grounds, or its implications for the broader civil liberties movement were not immediately apparent.Footnote ¹⁰ And yet, Dennett fundamentally redefined the way that lawyers, judges, and activists understood the category of civil liberties.Footnote ¹¹ It introduced the possibility of a free speech agenda premised on personal autonomy, a cause that resonated strongly with mainstream Americans, rather than economic equality, which polarized them. Within a matter of years, the ACLU would recast its political and economic cases to comport with this new rationale. And the payoff was swift and spectacular. When Dennett was decided, the ACLU was a fringe group and the civil liberties it defended were often maligned as un-American. A mere decade later, President Roosevelt would stand before the nation and declare that the first of the fundamental human freedoms was the freedom of speech.Footnote ¹²

This chronology turns on its head the conventional wisdom that protection of free speech in America began with “political” speech and steadily expanded toward more personal liberties.Footnote ¹³ Civil liberties advocacy groups, including the ACLU, did indeed follow that trajectory. But the public did not. Rather, it was civil libertarians' successful defense of popular, nonpolitical (as the authors of the 1928 ACLU pamphlet understood that term) causes, such as the dissemination of scientific and sexual knowledge, that paved the way for popular tolerance of political dissent.

Of course, understanding how and why the civil liberties movement changed during the interwar period entails understanding what it was changing from. The figures at the forefront of the interwar civil liberties movement were a varied group, and their prewar sympathies and activities had ranged across a broad spectrum. The majority, however, had considered themselves progressives, and as such, despite their many disagreements, they had shared a common hostility to the federal courtsFootnote ¹⁴ and to constitutional rights-based claims. These they identified with corporate and judicial opposition to protective labor legislation, epitomized by the Supreme Court's notorious decision in Lochner v. New York,Footnote ¹⁵ which invalidated a New York maximum-hours law because it interfered with an implicit constitutional “right to free contract.” Such cases prompted reformers to seek social progress through state action rather than the judiciary.

That the progressives distrusted constitutional adjudication does not mean that they opposed free speech. On the contrary, under peacetime conditions, most progressives favored robust public discussion, at least as a policy matter. The Progressive Era had witnessed a rapid transformation of social, scientific, and cultural values. Many widely accepted theories in the 1910s had been marginal, if not repressed, a few decades earlier. Social progress was fundamentally dependent on the formulation and expression of new ideas. When war was declared, however, their broad commitment to social welfare and their corresponding support for President Wilson led many progressives to condemn dissent, or at least to support the right of a majoritarian government to quash it.Footnote ¹⁶

Repression during the war years hit anarchists and socialists most heavily, as it had for decades. But the wartime prosecutions were far more aggressive and targeted a wider range of speech. Moreover, many dissenters were denied the opportunity to defend themselves. The Espionage Act of 1917 authorized the Post Office Department to act unilaterally in denying mailing privileges to suspect newspapers, journals, and other outlets of dissent.Footnote ¹⁷ Postmaster General Albert Burleson proved a willing and enthusiastic censor,Footnote ¹⁸ and many leftist and antiwar publications were forced to shut down. Perhaps the best known example, The Masses, was edited by Max Eastman, brother of Crystal Eastman, who, along with Roger Baldwin, cofounded the ACLU. Although Judge Learned Hand famously decided, as a matter of statutory interpretation, that the suppression of The Masses based on its antiwar editorials and political cartoons exceeded the authority of the Espionage Act, his decision was reversed by the Second Circuit on appeal; the journal, deprived of its second-class mailing privileges, had no choice but to close its doors.Footnote ¹⁹ Episodes of this kind were highly publicized and prompted a growing contingent of journalists and politicians to resent the suppression of speech in general and bureaucratic censorship in particular.Footnote ²⁰

In the conventional narrative, World War I generated a new and powerful alliance between progressives and liberal lawyers on behalf of expressive freedom.Footnote ²¹ Concerns mounted when the end of hostilities abroad failed to stem the nationalist hysteria. In a climate of heightened social tensions, marked by a wave of labor strikes and the Chicago race riot, anti-immigrant and anti-Communist sentiments escalated. Wilson's attorney general, A. Mitchell Palmer, instigated the notorious Palmer Raids in response to anarchist bombing attacks on his Washington home, among other targets.Footnote ²² Between November 1919 and January 1920, the federal government arrested several thousand suspected radicals and deported hundreds of foreign nationals, including Emma Goldman and Alexander Berkman. Although public reaction to the raids was generally favorable—according to the Washington Post, “[t]here [was] no time to waste on hairsplitting over infringement of liberty when the enemy [was] using liberty's weapons for the assassination of liberty”—the Red Scare of 1919 pushed the limits of progressive complacency.Footnote ²³ Disillusioned by the failure of the war to make the world safe for democracy, and distressed by the unprecedented extent of the postwar repression, such civil liberties theoreticians as Felix Frankfurter and Zechariah Chafee reinvented free speech as a means of advancing the public interest and defusing social conflict, notwithstanding their serious reservations about the speakers' underlying beliefs. For the first time, the argument goes, scholars, judges, and public officials imagined a marketplace of ideas,Footnote ²⁴ where theories and thinkers would battle it out and the best one would be the last to remain standing.Footnote ²⁵

This standard account captures only part of the story. Certainly, the war and the ensuing Red Scare prompted re-evaluation of the importance of free speech. Organization and advocacy on behalf of civil liberties were in shambles at the close of the war, but as the wartime exigencies dissipated and repression continued, many Americans within and outside the political and legal establishments began to espouse greater tolerance for dissent and stronger adherence to the rule of law. Still, the transformation was a matter of degree rather than kind. In the years after World War I, most proponents of free speech were simply reviving arguments espoused by progressives for the previous two decades. Political pluralism, for them as for their prewar counterparts, was an instrument of social welfare. To be sure, academics and some judges readjusted the rank of expressive freedom in the hierarchy of progressive values; the specter of mob violence and mass hysteria had emphasized the high toll of enforced uniformity on public well-being. Moreover, many converts were motivated by new concerns, including the rapid expansion of the administrative state. The notion of a libertarian democracy provided a valuable foil to bolshevism (and later, fascism), and an important counterbalance to bureaucratic centralization. On the whole, however, the dominant theories of civil liberties in 1920 were neither successful at insulating disfavored speech from prosecution nor new in any significant way.

The ACLU's vision of civil liberties was an exception. Although they began as progressive reformers, the organization's founders had come to share the views of the radical dissenters they defended.Footnote ²⁶ In their work for the National Civil Liberties Bureau (NCLB), the ACLU's precursor, they had actively but ineffectually invoked the full panoply of prewar civil libertarian arguments on behalf of their clients. And therefore, when they created the ACLU in 1920, they sought out new solutions for facilitating fundamental social change.Footnote ²⁷ They made generous use of progressive arguments and collaborated actively with prominent progressives in authoring pamphlets and drafting legal briefs. At the same time, although they abhorred Lochner-style conceptions of individual rights—which emphasized property rights at the expense of such “personal rights” as privacy, bodily integrity, and expressive freedomFootnote ²⁸—they borrowed conservatives' language and studied their tactics.Footnote ²⁹ For the core leadership, however, the immediate lesson of the government's wartime policy was not about pluralism or personal responsibility. In the wake of the Bolshevik revolution, Roger Baldwin, Norman Thomas, Albert DeSilver, Walter Nelles, and the other members of the ACLU inner circle believed that the downfall of the American economic system was imminent, and desirable, in America. In their new understanding, which grew out of the radical labor movement, government threatened the public good. The role of the civil liberties movement was to ensure that in the coming struggle between labor and capital, the state would not interfere. To that end, civil liberties would need to encompass not only the right to advocate ideas, but also to engage in concerted activity, that is, the boycott, the picket, and eventually the general strike.

The strident radicalism of the ACLU's early rhetoric, like the revolutionary moment that produced it, was short lived. The early leadership considered the coal and steel strikes of 1919 to be “the greatest demonstrations of working-class power in the history of the country,”Footnote ³⁰ and even after the Wilson administration broke them, the ACLU thought its place was on the front lines.Footnote ³¹ It was quickly evident, however, that social change through “agitation” was a distant specter. The Republicans who came to office in the 1920 election were eager to reverse labor's remaining wartime advances. Assistance was forthcoming from the Supreme Court, which, under its newly appointed Chief Justice William Howard Taft, rejected labor's arguments that boycotts and picketing were constitutionally protected speech even as it struck down state anti-injunction laws as unconstitutional infringements on employers' property rights.Footnote ³² The postwar depression exerted downward pressure on wages and put unions further on the defensive. By 1921, union membership had declined by 1.5 million and the open shop was the rule. Within a few more years, as economic conditions improved, mass mobilization through direct action seemed a hopeless endeavor in the short term.

From the perspective of the ACLU, the changing labor landscape called for a revised set of civil liberties commitments. The organization had achieved no more success in protecting labor activity from state (including judicial) interference than it had, working with its progressive allies, in the domain of politically subversive advocacy. The ACLU's 1925 Annual Report laid out the organization's new understanding. Although popular and judicial tolerance of dissent appeared to be increasing, the relative quietude merely reflected a reduced need for repression. Government and industry could temper their efforts to crush worker militancy because “widespread prosperity” had already accomplished that task. “The efforts to impose majority dogma by law and intimidation have shifted from the industrial arena to the field of education,” the report concluded.Footnote ³³ Going forward, a crucial part of the ACLU's project was to safeguard radical education and to undermine countervailing attempts by the state to institutionalize conservative views. The organization continued to defend the few anarchists and Communists prosecuted under state criminal syndicalism laws. It contested ideologically grounded immigration laws, and it opposed alien registration and deportation bills. It also engaged with racial discrimination, especially lynchings. But during the labor lull of the 1920s, it made primary and secondary education its most visible focus. Notably, the leaders of the ACLU promoted a broad right to education because they hoped that the radical labor movement, if given the opportunity to educate the masses, would ultimately triumph. Their new rallying cry was Justice Holmes's dissenting proclamation in Gitlow v. New York (which, like Whitney v. California, was argued by Walter Nelles and Walter Pollak of the ACLU): “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”Footnote ³⁴

The new commitment dovetailed both with traditional progressive goals and with the conservative commitment to individual rights. And the ACLU emphasized the commonalities, gradually guiding both groups toward a civil libertarian stance. Its involvement in such cases as Pierce v. Society of Sisters (invalidating Oregon's compulsory education law on due process grounds) and the Scopes trial (contesting a Tennessee law prohibiting the teaching of evolution) revealed that academic freedom, unlike the rights of anarchist immigrants or radical workers, commanded mainstream support.Footnote ³⁵ When the organization first addressed the issue of academic freedom as a potential area of activity in June 1924, it openly acknowledged its concern, namely, “propagandists' efforts to distort education in the interest of a particular conception of political and economic thinking,” of which the Lusk Committee's effort to shut down the socialist Rand School of Social Science was the most prominent example.Footnote ³⁶ Increasingly, however, cooperation with the American Association of University Professors and other reputable groups taught the ACLU leadership to moderate its language. The ACLU redefined its goal as eliminating “force[d] conformity,” a cause palatable to many of the same progressives who championed public schooling and who initially supported Oregon's effort to eliminate parochial education in the state.Footnote ³⁷ Unfettered academic debate would serve the public interest by encouraging critical thinking and advancing social thought. Civil liberties would encourage American ingenuity and facilitate progress by preventing the “complete standardization” of the “intellectual life of [the] nation”Footnote ³⁸—which is why the ACLU could advocate the right of Catholics to private education in Oregon and the right of Tennessee school teachers to explain evolution in the same breath.Footnote ³⁹

These early seminal cases were also instrumental in attracting an important new constituency: the conservative bar. With the battle over education, the source of repression had subtly shifted. Even more than before, the ACLU came to define itself in opposition to state authority.Footnote ⁴⁰ Perhaps because the old progressive convictions were so deeply ingrained, or perhaps because progressive ideology was so pervasive and its language so dominant, the early ACLU had preserved a place for the state in regulating the “marketplace of ideas” and in tempering its effects. It continued to pursue free speech through legislatures and administrative agencies,Footnote ⁴¹ and it remained skeptical of the judicial forum, a distrust that stemmed not only from the Supreme Court's notorious exercises of judicial review, but also from the less mandarin but equally reviled labor injunctions issued by the trial courts.Footnote ⁴² Roger Baldwin was a pragmatist,Footnote ⁴³ however, and he pushed the organization's lawyers to pursue judicially enforceable constitutional rights, notwithstanding objections from much of the ACLU's membership. In 1925, litigation appeared sufficiently promising to prompt ACLU attorney Arthur Garfield Hays to propose a study of “affirmative legal action” as a means of securing “labor's civil rights.”Footnote ⁴⁴ Over time, through its cooperation with conservative lawyers, the ACLU began to reimagine the courts as a check on government's reach rather than an arm of the state. Where progressives promoted free speech to ensure the legitimacy of state coercion, the ACLU's leadership contested the government's regulation of ideas in order to undermine its monopoly on power. Eventually, it hoped, the working classes would rise to fill the void.

The question for the next half-decade was how far the new program would extend. In the minds of the ACLU's leaders, state inculcation of religious orthodoxy was clearly inimical to revolution. So was the effort to shut unconventional ideas out of the schools (including the prohibition on ACLU-sponsored meetings in the New York public schools, an ongoing battle that in 1927 the ACLU deemed the “most important free-speech fight of the year”).Footnote ⁴⁵ There was one field, however, into which the organization had not yet ventured. In spite of the longstanding association of radicalism with “free love,”Footnote ⁴⁶ the ACLU, restrained by progressives on the National Committee and by the board members' own biases, had resolutely excluded the regulation of sexual relations from its purview.Footnote ⁴⁷ Nonetheless, there was a marginal but mounting sentiment within the ACLU that social change was threatened not only by laws directly suppressive of radical ideas, but also (in the words of the ACLU's designated theoretician, Leon Whipple) by the “steady extension of the police power over health, morals, and personal habits”—the “slow encroachment” of the state into all aspects of personal liberty.Footnote ⁴⁸ With the suppression of Mary Ware Dennett's foundational sex education pamphlet, the ACLU faced the new terrain head on.

The Sex Side of Life

Mary Ware Dennett had challenged social norms throughout her life, politically and personally. Born in 1872 to a middle-class family in Worcester, Massachusetts, she attended Boston-area schools (public and private) and studied at the School of Art and Design at the Boston Museum of Fine Arts. From 1894 to 1897 she headed the Department of Design and Decoration at the Drexel Institute of Art in Philadelphia. In 1898, she and her sister opened a gilded leather shop, the kind of fancywork to which aspiring female artists could turn for an income, and the two women garnered national attention for rediscovering a lost process for making cordovan gilded leathers.Footnote ⁴⁹

Mary Ware married William Hartley Dennett in 1900. Together, they had three children, one of whom died in infancy. Dennett separated from her husband in 1909 when he declared himself a free-lover and sought to convince her to accept his relationship with their friend and neighbor, whose own husband sanctioned the relationship and invited him to live in their home. The custody proceedings and subsequent divorce generated sensationalist news coverage, which distressed Dennett deeply.Footnote ⁵⁰ Despite her aversion to publicity, however, she remained active in public life. During the first decade of the twentieth century she served as field secretary of the Massachusetts Woman Suffrage Association, and in 1910, she was elected corresponding secretary of the National American Woman Suffrage Association. During the First World War, Dennett became a prominent pacifist. She was a founding member of the People's Council of America for Democracy and Peace and a member of the Woman's Peace Party in New York. Notably, she also served as field secretary for the American Union Against Militarism and, once it was organized as a separate entity, for the NCLB. In that capacity, she witnessed first-hand the unchecked use of postal censorship to curtail public exposure to unpopular views.

When the war drew to a close, Dennett's focus shifted to birth control, the cause that would dominate her life for the next two decades. In 1915, Dennett had helped organize the United States' first birth control organization, the National Birth Control League. Four years later, she founded the Voluntary Parenthood League—the institutional rival of Margaret Sanger's American Birth Control League—and became Sanger's chief contender for leadership of the birth control movement. Whereas Sanger tempered her demands for birth control reform in the interwar period by advocating medical regulation rather than open access, Dennett called for repeal of all restrictions on contraception. In particular, she was a fierce and vocal opponent of the 1873 Comstock Act. A federal statute, the Comstock Act gave the postal authorities immense discretion to censor obscene material, and Dennett considered it a formidable obstacle to birth control reform. Under its terms, the postal service was free to suppress not only “lewd” images and literature, but also publications considered morally suspect, such as arguments against the legal regulation of marriage and pamphlets providing information about contraception, as well as contraceptive devices themselves.Footnote ⁵¹

In the early 1920s, Dennett believed the Comstock Act was on its way out. Under the leadership of Postmaster General William Hays, censorship of political materials had declined from its wartime heights, and Dennett thought Hays might even petition Congress for a change in the laws.Footnote ⁵² But the postal crusade against obscenity and birth control redoubled under Hubert Work, who took over the office in 1922 when Hays was named president of the Motion Picture Producers and Distributors of America (it was in this role, which he held for more than 20 years, that he would implement the influential 1930 “Hays Code” for movie self-censorship). Consequently, Dennett spearheaded a legislative effort to repeal the prohibition on the dissemination of information about birth control, which she unavailingly distinguished from the dissemination of contraception itself. In 1923, after a long effort, she managed to find sponsors in the Senate and the House. The Cummins–Vaile Bill, which Dennett drafted, would have prohibited postal censorship of birth control materials.Footnote ⁵³ But despite her unflagging efforts, including her publication in 1926 of Birth Control Laws,Footnote ⁵⁴ a book that criticized the Comstock laws and advocated legislative change, the bill reached a dead end. According to Dennett, few members of Congress actually opposed the bill, but it was kept off the floor to avoid the liability of a vote.

Ultimately, it would be the courts rather than the legislatures that would rein in the postal censors. The impetus for change was Dennett's own sex education pamphlet, The Sex Side of Life: An Explanation for Young People. The pamphlet was heralded by secular and religious reformers as an indispensable educational tool,Footnote ⁵⁵ and its censorship, coupled with Dennett's conviction for mailing an obscene publication, touched off a firestorm of public outrage and offended judicial sensibilities.

For all the controversy it would engender, The Sex Side of Life was penned, ostensibly, with very modest intentions. Dennett claimed that when she wrote the pamphlet in 1915, she had particular young people in mind: her sons Carl (then 14 years old) and Devon (10 years of age). According to Dennett, Carl asked her a series of questions about sex in his letters home from summer camp. She prepared the pamphlet by way of response and sent it to him while he was away.Footnote ⁵⁶

Dennett sampled more than sixty books and pamphlets on sex before writing her own. She rejected their tone of disapproval and insisted that sex, in the appropriate context, “is the very greatest physical and emotional pleasure there is in the world.” She criticized one attempt at sex education for its “old-fashioned stupid idea about women,” which made her indignant because it implied that “women were made to be taken care of” rather than being “partners in life with men.”Footnote ⁵⁷ Moreover, she worried that the literature assumed prior knowledge and traded in euphemisms instead of frankly explaining the terminology and physiology of sex.

Dennett's introduction to The Sex Side of Life attributed the deficiency in sex education literature to the fact that “those who have undertaken to instruct the children are not really clear in their own minds as to the proper status of the sex relation.” Educational literature was confused with respect to physiology and sentimental in its description of natural science, but it was most troubling in its moral treatment of sex; it presented children with a “jumble of conflicting ideas,” from fear of venereal disease and the duty of suppressing one's “animal passion” to the sacredness of marriage.Footnote ⁵⁸ Emotionally, Dennett noted, the subject was simply ignored.Footnote ⁵⁹

Endeavoring to correct these omissions, Dennett outlined the physiological process of sex, including an explicit description of the mechanics of intercourse. She addressed tabooed topics from venereal disease (which, she assured her readers, was treatable by modern medicine) to masturbation, which she discouraged unless the urge was “overwhelming.”Footnote ⁶⁰ Finally, she made the “frank, unashamed declaration that the climax of sex emotion is an unsurpassed joy, something which rightly belongs to every normal human being.”Footnote ⁶¹ By the time Dennett was haled into court, sentiments such as these would be par for the course (Sanger, for one, also utilized them). Indeed, social scientists would make mutual sexual gratification a prerequisite of the new companionate marriage.Footnote ⁶² But in 1915, Dennett's celebration of sexual pleasure was unconventional, even radical.Footnote ⁶³

The Sex Side of Life combined advanced views about women's sexuality circulating among sophisticated feminists with the social hygiene impulse that was burgeoning at that time.Footnote ⁶⁴ A Progressive Era reform initiative, the social hygiene movement sought to hold men and women to a “single standard” of sexual fidelity in order to combat prostitution, venereal disease, and associated social pathologies. Social hygienists—particularly the women among them—also imagined sexual responsibility as a mechanism for achieving sex equality, although their ambitions were predictably undermined in practice.Footnote ⁶⁵

Where Dennett broke from the social reformers was in her permissive approach to sexuality. Dennett, too, advocated a single standard for men and women, but hers was a standard of relative leniency. Whereas her reformist counterparts sought to mobilize state regulatory authority on behalf of sexual purity, Dennett consistently counseled her young correspondents that sexual experimentation was natural and desirable. This bolder message, however, was understated in The Sex Side of Life, and Dennett generally minimized it when she promoted the pamphlet. As late as the early 1930s, organized vice crusaders assumed that Dennett was an ally in the struggle against sexual promiscuity.Footnote ⁶⁶

Consistent with her family-friendly narrative, Dennett kept the focus on Carl and his wholesome boyhood curiosity. According to Dennett, Carl did not mention his mother's essay until he returned home from camp, when he called out from the shower, in the hearty manner young boys used in sex education literature long afterward, “Hi, mother, that paper you sent me was all right.” “Did it fit the bill?” Dennett asked. “It sure did,” he replied.Footnote ⁶⁷ Carl's enthusiastic endorsement was only the beginning. His friends began borrowing the text, and Dennett's own friends and colleagues requested copies. Soon thereafter, the medical community took an interest in Dennett's explanation. The Sex Side of Life was printed in The Medical Review of Reviews, next to a glowing editorial review, in February 1918. Dennett began producing the text in pamphlet form. Copies were distributed by the YMCA, a chief purveyor of social hygiene literature, and used for instruction in the Union Theological Seminary and the Bronxville, New York public schools.

Despite the warm response to Dennett's pamphlet in educational and social science circles,Footnote ⁶⁸ circulation of the pamphlet was beset by legal difficulties. In 1922, Postmaster General Work declared The Sex Side of Life obscene and unmailable. Three years later, a second postmaster agreed and upheld the ban. Notwithstanding Dennett's repeated requests, the postal service refused to identify the offending characteristics or passages of the pamphlet.Footnote ⁶⁹ Dennett solicited letters from senators and other prominent individuals in an effort to convince the postal service to reconsider the ban, but the campaign was unsuccessful.Footnote ⁷⁰ Dennett believed her pamphlet was targeted in retaliation for her outspoken criticism of postal censorship practices, and she was outraged.Footnote ⁷¹

After trying to reason with the postal authorities, Dennett began to consider her other options. Newspaper accounts, in order to make her a more sympathetic defendant, would later portray Dennett as a matronly grandmother who had been dragged into a humiliating judicial entanglement against her will. Many journalists quite consciously constructed Dennett as an unassuming figure, over Dennett's own objections.Footnote ⁷² According to most reports, Dennett's only ambitions were to educate her children and to help other mothers do the same; they painted the outspoken feminist as an appropriately modest woman, the unwitting victim of a ruthless legal assault. Dennett, however, resented this characterization. It was true that she was shy of publicity, and while her case was pending, she turned down all but one of the many speaking invitations she received.Footnote ⁷³ But Dennett, at 53 years of age and in robust health, had always taken a much more calculated and proactive approach to the law, and her own case was no exception.Footnote ⁷⁴

Dennett was intimately familiar with her potential allies in the effort to end postal censorship. As secretary of the NCLB, she had met or corresponded with most of the leaders of the interwar civil liberties movement, and she counted as friends and acquaintances many of the early board members of the ACLU.Footnote ⁷⁵ The challenge, as she well knew, was to convince her former colleagues that sex education was part of the broader struggle for civil liberties.

The ACLU and Obscenity

Although the ACLU professed to make “no distinction as to whose liberties it defend[ed]” and to put “no limit on the principle of free speech,”Footnote ⁷⁶ this sweeping language was misleading. The organization's leaders were, as a general matter, untroubled by “moral” censorship. The monthly ACLU bulletins reporting on the “civil liberty situation” occasionally included blurbs on obscenity cases, but the organization rarely took an aggressive stand on such prosecutions.Footnote ⁷⁷ Even as rampant artistic censorship in Boston rendered the city a laughing stock in much of America, the ACLU remained largely aloof from the debate.

The censorship cases in which the ACLU did become involved almost invariably pertained to political speechFootnote ⁷⁸ or to the prior restraint of expression, an issue with a very established pedigree.Footnote ⁷⁹ The limits of this enterprise were conspicuous to prewar free speech activists. In correspondence between Theodore Schroeder and Baldwin in 1918, the former complained that the ACLU was narrowing the scope of civil liberties to the political, to the exclusion of “the more personal liberties which are being very much invaded.”Footnote ⁸⁰ Baldwin, unpersuaded, dismissed these issues as peripheral to “the wider political question which we are discussing.”Footnote ⁸¹

In the mid-1920s, however, a new minority within the ACLU began to argue that obscenity prosecutions ought to receive more attention from the organization. The two most prominent voices for expansion were Arthur Garfield Hays and Morris Ernst, who were appointed general counsels during this transitional period.Footnote ⁸² As contemporaries of their ACLU colleagues (almost all of whom were born in the 1880s and came of age during the Progressive EraFootnote ⁸³), Hays and Ernst endorsed protective labor laws and distrusted judicial oversight in the economic realm. And yet, they were uneasy about state interference with personal conduct and beliefs. They defended free speech not because they thought it the surest way of securing radical economic change, or even of finding political truth, but because they recognized how rapidly public morality (as well as political ideology) shifted. They were skeptical that any overarching truth was ascertainable by anyone, let alone the government.

Although they were cynical about the process of judicial decision making, Ernst and Hays were lawyers. As such, they tended to favor the courts as a venue for protecting civil liberties.Footnote ⁸⁴ Moreover, both maintained successful private law practices and regularly defended periodicals and publishing houses against obscenity charges. In these private censorship matters, they based their legal strategies on the long-term interests of their clients.Footnote ⁸⁵ And their clients, though fully conversant in the language of “public good” and community enrichment, were unenthusiastic about submitting their investments to government review. They knew that respectability conferred certain advantages, but the costs of confiscation and prosecution far outweighed the benefits of official approval. Keeping the state out was best for the bottom line.

Relatively speaking, then, Ernst and Hays stood out as liberal individualistsFootnote ⁸⁶ in a circle of reformers and radical activists. Moreover, as Jews in an overwhelmingly Protestant movement, they came to the ACLU from different backgrounds and with different values.Footnote ⁸⁷ By 1928, both were vocal opponents of censorship. In 1926, Hays had represented H. L. Mencken, editor of the American Mercury, in his notorious battle with Boston's Watch and Ward Society,Footnote ⁸⁸ and he was celebrated as a hero in the Boston anticensorship campaign.Footnote ⁸⁹ Meanwhile, Ernst was fighting censorship through multiple channels. In 1926, he testified before the Senate Committee of Interstate Commerce against the Dill Bill to restrict broadcasting. He advocated the free use of radio for the expression of public opinion, cautioning that “[o]nce the country has become accustomed to censorship of broadcasting, it is but an easy step to the censorship of newspapers.”Footnote ⁹⁰ And while he was certainly concerned about the suppression of political speech,Footnote ⁹¹ he was eager to protect artistic expression as well. In 1927, Ernst unsuccessfully defended John Herrmann's What Happens, an unremarkable book containing an apparently objectionable profanity, before a New York jury.Footnote ⁹² In the wake of the defeat, he undertook a systemic study of obscenity censorship in America. His 1928 book, To the Pure: A Study of Obscenity and the Censor, coauthored with William Seagle, was a scathing critique of the obscenity laws.Footnote ⁹³

Notwithstanding their opposition to the vice societies, Ernst and Hays tended to separate their service to the ACLU from their private (and usually remunerative) anticensorship work. By the late 1920s, however—just as Ernst and Hays were gaining influence within the ACLU—the organization's agenda was in flux. After several years of largely haphazard expansion in its activities, the ACLU leadership lacked the clarity of its early vision, and a revised statement of principles and commitments was in order. Meanwhile, the mounting success of civil liberties claims in the courts commended litigation as a strategy for reform, and afforded a new measure of power to the organization's lawyers. In November 1928, Ernst proposed to the National Committee the expansion of the ACLU's activity to include censorship of the movies and talkies, and the committee approved the addition.Footnote ⁹⁴ And yet, as late as 1929, the organization stated that whereas it opposed advance censorship of any kind, prosecution of a published work on obscenity grounds was not a civil liberties concern.Footnote ⁹⁵ Despite their public position, however, many ACLU members had begun to reassess their views on this issue.

In February 1929, Roger Baldwin, on behalf of the Executive Committee, urged a formal clarification and extension of the organization's objectives. Baldwin told members of the large and respectable National Committee that “the policy of the American Civil Liberties Union since its foundation has been to protect the civil liberties described as ‘freedom of speech, press, and assemblage’” and occasionally, if incidentally, the “right to be free from unreasonable searches and seizures.”Footnote ⁹⁶ But these rights, he emphasized, were not the only ones protected by the state and federal constitutions. The letter laid out several avenues for expansion, ranging from civil rights and criminal defense to opposition to the draft and American imperialism. Among its various proposals was opposition to the censorship of books, plays, radio, and movies, although the committee likely intended to curb political censorship rather than foster artistic freedom.

The members of the National Committee were open to some changes and hostile to others. In response to criticism, the Executive Committee promised not to take on such issues as the rights of criminal defendants, civil liberties in areas under American military control, or the validity of the draft (“as a violation of liberty of conscience, instead of as now, opposition only to interference with agitation against it”Footnote ⁹⁷). A few members of the National Committee, including labor activist and University of Chicago Settlement House Director Mary McDowell, opposed any new involvement in censorship work.Footnote ⁹⁸ Most, however, supported or at least accepted the ACLU's recommendations with respect to censorship.

A letter to Baldwin from Harvard Law professor and future Supreme Court justice Felix Frankfurter cogently expressed concerns shared by much of the National Committee.Footnote ⁹⁹ Frankfurter argued against diluting the ACLU's message and spreading its resources too thin. He explained:

Frankfurter wanted the ACLU to be interested in such issues as civil rights, pacifism, internationalism, and birth control only to the extent that they implicated the freedom to espouse those causes. He reasoned: “[I]t is one thing to ‘back up’ local groups that seek to gain a hearing for birth control; it is a totally different thing to ‘back up’ that local group in securing birth control legislation. The former is the Union's essential concern; the latter is none of the Union's business.”Footnote ¹⁰¹

Frankfurter, along with an increasing contingent of civil libertarians, was ready to defend speech regardless of its viewpoint. But he had a particular kind of speech in mind: namely, speech advocating political or economic change, or access to the democratic process. As a progressive veteran of the post-World War I civil liberties movement, that is what “free speech” meant to him and to the majority of his colleagues. A more libertarian position on artistic censorship would require a major change in public values as well as the law. That change found an unexpected form in United States v. Dennett.

United States v. Dennett

In 1926, Mary Ware Dennett proposed a legal challenge of the Comstock laws to Arthur Garfield Hays. She hoped a court might be persuaded to enjoin the postal service from censoring The Sex Side of Life. Hays was sympathetic to the project, but he thought their chances slim and counseled Dennett to wait for a more opportune moment.Footnote ¹⁰² The problem, he explained, was the standard of review. A court would declare the postal ruling invalid only if it was “arbitrary and wholly without foundation,” a decidedly difficult hurdle. Dennett's pamphlet was explicit in its description of sex, and if a court considered its propriety subject to debate, it would uphold the ban.Footnote ¹⁰³ In other words, in the mid-1920s, postal suppression of Dennett's pamphlet was so clearly lawful that a renowned civil liberties attorney considered it imprudent to bring a test case. No court was likely to consider the censorship inappropriate, much less declare it contrary to legislative intent or, even more radically, unconstitutional.

Two years later, Dennett had better luck. When Morris Ernst published an article attacking censorship, she wrote to him about her plight. Responding to her overture, Ernst told her that he had followed her work for years and asked whether she had “ever considered testing out the legality of the pamphlet in the courts.”Footnote ¹⁰⁴ Dennett was forthright about Hays's discouraging advice.Footnote ¹⁰⁵ Nonetheless, after some initial hesitance, Ernst enthusiastically devoted himself to Dennett's case, and he promptly began exploring possibilities for getting The Sex Side of Life into court.

Postal authorities beat Ernst and Dennett to the punch. Despite the postal ban, a resolute Dennett had continued to send her pamphlet through the mail in sealed envelopes throughout the 1920s.Footnote ¹⁰⁶ The postal service quietly tolerated her defiance until 1928. In that year, however, in purported response to a complaint by members of the Daughters of the American Revolution, the Post Office Department ordered The Sex Side of Life from Dennett under a fictitious identity.Footnote ¹⁰⁷ Dennett obligingly mailed out a copy of the pamphlet.Footnote ¹⁰⁸ Soon thereafter, in December 1928, she was indicted under the Comstock Act in the Federal District Court sitting in Brooklyn, the jurisdiction in which her Astoria, Queens home was located. Dennett faced a maximum sentence of 5 years in prison and a $5000 fine.Footnote ¹⁰⁹ Ernst immediately agreed to represent her (he donated his time at both the trial and appellate levelsFootnote ¹¹⁰), and he convinced the ACLU to sign on as well.

When the ACLU agreed to sponsor Dennett's case, no one on the Executive Committee was advocating a full-scale assault on the obscenity laws. Rather, still reeling from their divisive role in the Scopes trial—in which National Committee member Clarence Darrow, despite the board's repeated entreaties, had ridiculed religious fundamentalism rather than emphasizing pluralism and academic freedom as instructed—they saw Dennett's prosecution as another opportunity to defend a contentious contribution to modern science from the censorial reach of the state. This time, they hoped, they could do so without triggering public resentment.Footnote ¹¹¹ According to ACLU literature, The Sex Side of Life contributed to an important public discussion about sexual hygiene and sexual relations within marriage. No one, they insisted, actually thought the pamphlet was “obscene” in any legitimate sense of the word; squeamish, if not vindictive, authorities were using the obscenity laws to quell discussion on an important but uncomfortable social issue.

Ernst's strategy in the District Court was consistent with the ACLU's expectations. His first act as Dennett's attorney, in January 1929, was to file a motion to quash her indictment. That is, he asked Grover M. Moscowitz, the presiding judge, to rule that The Sex Side of Life was not obscene as a matter of law. To do so, he sought to portray the pamphlet as an irreproachable example of good, clean sex education—in the words of one of its medical endorsers, as “[t]he simplest, sweetest, most direct treatment of the subject” ever produced.Footnote ¹¹² Adolescents are not satisfied with cryptic allusions, Ernst suggested, and when no appropriate literature exists, they rely on the “filthy misinformation of the streets, the dirty words chalked upon signboards and the obscene gossip of other children.”Footnote ¹¹³ By contrast, the truth, unadorned and respectful, was not obscene.

Ernst also urged the court to consider the motives and circumstances of publication.Footnote ¹¹⁴ Dennett's rationale for producing the pamphlet—her belief that existing sex education literature was inadequate because it did not grapple with the physical, moral, or emotional implications of sex—was, according to Ernst, “in complete accord with modern scientific thought.” The fact that Dennett produced the pamphlet “as an unselfish social service,”Footnote ¹¹⁵ rather than to make money, confirmed that her motives were pure.Footnote ¹¹⁶

In short, rather than challenge the existing definition of obscenity, Ernst argued that The Sex Side of Life was safely outside its realm. The pamphlet, he insisted, “is neither smut nor pornography. There is not a dirty word or a dirty thought in it.”Footnote ¹¹⁷ His memorandum in support of his motion to quash the indictments quoted at length from a pamphlet produced by the New York State Department of Health describing a need for comprehensive sex education materials of precisely the kind Dennett had produced.Footnote ¹¹⁸

In the face of Ernst's argument, Judge Moscowitz felt inadequate to the task of assessing the pamphlet's character. He therefore proposed an open hearing at which representatives from both sides would express their opinions of the pamphlet. And he called three members of the clergy—a Catholic priest, a Protestant minister, and a Jewish rabbi—to join him on the bench during arguments and to “aid the conscience of the court on the matter.”Footnote ¹¹⁹ All of this may sound like the setup for a joke. And, indeed, the exaggerated rhetoric of the prosecuting attorney, United States District Attorney James E. Wilkinson, seems comical in retrospect. Wilkinson denounced “The Sex Side of Life [as] pure and simple smut.”Footnote ¹²⁰ “If I can stand between this woman and the children of the land,” he proclaimed in court, “I will have accomplished something.”Footnote ¹²¹

To Moscowitz, however, the issues were serious. Although he privately believed that Dennett's pamphlet was not obscene, he did not feel comfortable deciding the issue without submitting it to a jury.Footnote ¹²² To make matters worse, Moscowitz was facing legal difficulties of his own—charges of misconduct in an unrelated matter—and he feared the publicity that might attend a decision either way in the highly publicized Dennett case. As it turned out, Moscowitz never made use of his clerical guests;Footnote ¹²³ instead, he permitted the parties to submit written statements. Ernst chose a representative sample from the scores of endorsements the pamphlet had received, and Wilkinson submitted a collection of letters solicited in opposition. Even then the decision was too much for Moscowitz, and he delayed the trial yet again. After a series of postponements, he simply punted. With apologies, he convinced Ernst to have the case transferred.Footnote ¹²⁴ Ernst thereupon withdrew his motion to quash the indictment and filed a demurrer instead, which brought the matter before another judge, Marcus B. Campbell. Judge Campbell heard argument from Ernst and Wilkinson on the demurrer, which he denied. He then reassigned the case on the theory that Ernst would no longer want him to preside over the matter.

Dennett's case finally went to trial in April 1929, before Judge Warren B. Burrows. The only evidence submitted to the jury, despite Ernst's best efforts, was the pamphlet itself. Burrows excluded all evidence of Dennett's motives as well as the approval of the pamphlet by educators and physicians.Footnote ¹²⁵ The all-male jury returned a guilty verdict in under an hour.Footnote ¹²⁶ Dennett was fined $3000, but she refused to pay and declared that she would serve out her prison term instead.Footnote ¹²⁷ Ernst promptly filed an appeal.

Although Ernst's strategy did not avail Dennett in the District Court, he was optimistic about persuading the appellate judges to reverse her conviction. He hoped that public outrage over the lower court's decision would carry weight on the appellate level. He devoted the bulk of the brief to arguing that the District Court improperly excluded evidence of Dennett's motivations and of the pamphlet's positive reception, and that the case should never have gone to trial.Footnote ¹²⁸

But he also made a series of powerful substantive claims about the Comstock Act that moved beyond his arguments at trial. First, he argued that The Sex Side of Life did not fall within the category of obscenity as it ought to be defined. In his brief, Ernst traced the history of obscenity in the law and argued that the “essence of the crime is sexual impurity, not sex itself.” A publication such as Dennett's, which neither was impure nor “pander[ed] to the prurient taste,” was not properly within the meaning of the statute.

In this regard, Ernst's rhetorical task was to portray The Sex Side of Life as an “honest presentation of sex facts,” firmly planted in an educational mission. He was at pains to distinguish the pamphlet from those modes of speech deemed subject to regulation in the past: “lurid literature and advertisements distributed by quacks to beguile the public into buying worthless nostrums” (that is, the information on birth control that had once been grist for the Comstock Mill); “violent attack[s] on religion or religious customs”; “newspaper reports of crime, immorality or fornication”; “defense[s] of illegitimacy or moral laxity”; and “forthright pornography.” And Dennett's book was indeed a departure from these earlier forms of sexualized literature, some informative, some prurient.Footnote ¹²⁹

Ernst also made a bolder argument on appeal: he claimed that the Comstock law was unconstitutional. He argued first that the federal government had exceeded its authority in propagating the statute—that control over people's morality had never been relinquished to it. He cautioned that if the obscenity law were deemed constitutional, the government would be empowered to enforce a federal moral standard that might directly conflict with the local standards of the various states, to which such decisions were entrusted.Footnote ¹³⁰ But Ernst, unlike the historical predecessors he cited, did not merely suggest that the statute fell outside the federal power to control the post roads under Article I, Section 8 of the Constitution. He also argued that it flatly contravened the First Amendment to the Constitution of the United States.Footnote ¹³¹

Ernst was not naïve about his chances. The Supreme Court had ruled in Ex parte Jackson that the freedom of the press did not prevent Congress from excluding pamphlets from the mail, and it had given no indication that it was about to change its mind.Footnote ¹³² Indeed, Ernst conceded that obscenity statutes repeatedly had been deemed constitutional by the federal courts.Footnote ¹³³ He nonetheless contended that changing public mores warranted reconsideration of the issue. Most important, he sought to extend the powerful rhetoric of Justices Holmes's and Brandeis's dissents in the Supreme Court's recent First Amendment cases, which dealt with political speech, to the obscenity context. For example, he quoted from Justice Holmes's dissenting opinion in United States v. Schwimmer: “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”Footnote ¹³⁴

In 1930, the vast majority of what today falls within the scope of the First Amendment was beyond its purview. Even in the realm of political speech, few interwar free speech advocates believed that the Founders had anticipated and enshrined in the Constitution a robust vision of freedom of expression. Rather, ACLU attorneys sought consciously to write free speech into the First Amendment. Law, to these critics of Lochner-era legalism, was not a vehicle for protecting natural rights. It was a political tool.Footnote ¹³⁵ And whereas Ernst's First Amendment argument was predictably unavailing, the fact that he made it at all reflects a sense of new possibility. He argued that the Comstock law was unconstitutional because he believed there was a fighting chance that the Second Circuit would agree.

Judge Augustus N. Hand, writing on behalf of a three-judge panel,Footnote ¹³⁶ accepted the spirit of Ernst's argument if not its implications. Hand. although less prominent and less eloquent than his famous first cousin, Learned, would go on to author some of the most influential obscenity decisions of the 1930s. In Dennett, he insisted that there could be no doubt about the constitutionality of the statute, but he nonetheless reversed the conviction on the basis that The Sex Side of Life was not obscene. The decision implicitly modified the “Hicklin test,” imported by a federal circuit court 50 years earlier in United States v. Bennett,Footnote ¹³⁷ according to which a work could be judged obscene on the basis of a single passage that would corrupt the youth, the most susceptible of audiences.Footnote ¹³⁸ Judge Hand's opinion in Dennett was more permissive. A sex education pamphlet such as Dennett's might have an “incidental tendency to arouse sex impulses,” he explained, but that effect was “apart from and subordinate to its main effect.” Any sex instruction might titillate some of its readers, but in Dennett's case, this tendency “would seem to be outweighed by the elimination of ignorance, curiosity, and morbid fear.” A work must be judged in its entirety; an explicit passage in a truthful and socially constructive sex education pamphlet would not render the whole work obscene. In sum, the court held, “an accurate exposition of the relevant facts of the sex side of life in decent language and in manifestly serious and disinterested spirit cannot ordinarily be regarded as obscene.”Footnote ¹³⁹

Dennett was decided as a matter of statutory interpretation. Modest in its reasoning, it left the Comstock Act more or less intact. And yet, it signaled the end of judicial deference to postal censorship. Judge Hand's opinion meant that judges would henceforth subject administrative determinations of obscenity to genuine examination. Moreover, it acknowledged for the first time that sexual matters were not always or necessarily destructive of social values. Indeed, its basic recognition of a public interest in sex laid the groundwork for the Supreme Court's mid-century extension of First Amendment protection to sexually explicit speech.Footnote ¹⁴⁰

Despite her relief, Dennett refrained from celebrating for several days while the government decided whether to appeal the case to the Supreme Court. The United States attorney filed a request to do so,Footnote ¹⁴¹ but the solicitor general, Thomas T. Thacher, decided to let the Second Circuit's decision stand. According to Thacher, Dennett was a mere factual dispute unworthy of consideration by the Supreme Court.Footnote ¹⁴² In reality, the Second Circuit's decision effected a very real change in the law of obscenity. But public opposition to the case, along with the possibility of an adverse judgment in the Supreme Court, no doubt dissuaded Thacher from pursuing the issue.

A few years after Dennett, Morris Ernst would declare: “The decisions of the courts have nothing to do with justice. . . . [T]he point of view of the judge derives from the pressure of public opinion.”Footnote ¹⁴³ Ernst's claim is an oversimplification, but it rang true in the Dennett case. Many prominent men and women, along with myriad organizations and members of the clergy, had rallied to Dennett's defense.Footnote ¹⁴⁴ In her letters to her family, Dennett described an outpouring of assistance and encouragement from all reaches of society. “The support for the case is rolling up till it looks like a mountain range,” she reported. Aid was forthcoming from organizations as well as private citizens. The New Republic donated its back cover to the Defense Committee. Associations and universities issued official statements on Dennett's behalf. Old friends and colleagues from Dennett's suffrage and Voluntary Parenthood League days, including muckraker Ida Tarbell, re-established correspondence and offered to help, and hundreds of strangers sent letters, donations, and orders for The Sex Side of Life.Footnote ¹⁴⁵ Dennett was most touched by the support she received from ordinary people, including an Italian worker, whose letter Dennett had translated by a neighbor,Footnote ¹⁴⁶ and a “colored” man who offered to serve Dennett's sentence in her stead.Footnote ¹⁴⁷

When the decision was announced, newspapers throughout the country ridiculed the prosecution and congratulated Dennett on her victory.Footnote ¹⁴⁸ Journalistic support may have been particularly enthusiastic given the financial and editorial interests at stake. One might suppose, for example, that Scripps-Howard newspaper publisher Roy Howard agreed to chair the Dennett Defense Committee because the prospect of leniency in the obscenity laws appealed to his business sense as well as his aesthetic sensibilities.Footnote ¹⁴⁹ But whatever the underlying motivation, coverage of the Second Circuit decision was unqualifiedly exuberant. The Kansas City Star considered it “preposterous that [Dennett] should have been put to trial.”Footnote ¹⁵⁰The World called the reversal of Dennett's conviction “a denial of the archaic idea on which this prosecution rested and which threatened free thought so seriously,” a decision “manifestly of the first importance.”Footnote ¹⁵¹ Lewis Gannett of the Tribune labeled Dennett “an historic case, a landmark in the history of America's attitude toward sex,”Footnote ¹⁵² and he hailed the court's decision as a clarion call for broader reform.

The ACLU was effusive, calling the Second Circuit's decision “an outstanding victory for free speech,” which would dissuade the government from bringing future prosecutions.Footnote ¹⁵³ Dennett too was gratified by the outcome.Footnote ¹⁵⁴ Ernst, however, was less sanguine. Certainly, he was pleased by Judge Hand's opinion and its vindication of The Sex Side of Life. He nonetheless regretted that the decision did not undermine postal censorship more broadly.Footnote ¹⁵⁵

In this context, a final point about Ernst's litigation strategy bears mentioning. It is a prerogative of the lawyer to argue in the alternative: to set out multiple and even inconsistent theories according to which a court might reach a decision for the litigant. In the Dennett case, Ernst did precisely that. The Second Circuit reversed Dennett's conviction not because The Sex Side of Life expressed the author's imagination or because it evoked an intellectual response in the reader or even because it did no harm, but rather because it enhanced the public good. Although it was drafted a full decade after World War I, Ernst's brief supplied the court with a progressive vision of free speech: “[I]f enlightenment and breadth of vision are necessary to social welfare; if it is right to try and banish ignorance from a realm of human study where taboos and truth-dodging have been definitely established as the causes of incalculable harm in the past, then the judgment of conviction must be set aside, and the defendant discharged.”Footnote ¹⁵⁶ Ernst argued throughout the proceedings that Dennett's pamphlet deserved protection because it was of substantial social value. This was a position that the Second Circuit proved willing to accept.

And yet Ernst also gestured, in conclusion to his brief, toward a bolder principle. “[E]ven if the pamphlet were not educational, even if it were utterly worthless,” he suggested, “the mere fact that it deals with sex would not bring it within the statute.” He clarified:

Put simply, Ernst argued that regardless of social worth, all expression should be permissible unless its principal purpose was to pollute public morals.Footnote ¹⁵⁸ In doing so, he urged the court to break from precedent and accept a radical new vision of free speech.

Ernst would litigate dozens of obscenity cases over the next decade, winning most of them.Footnote ¹⁵⁹ The early cases involved “wholesome” materials of the Dennett variety. Over time, however, Ernst became more ambitious. Still citing Dennett as a central precedent, he defended a body of literature and illustrations that verged increasingly on the pornographic.Footnote ¹⁶⁰ It is evident from Judge Hand's decision that in 1930 the courts were not yet ready to accept this approach, which would have removed government from the business of deciding which ideas are good for society. Ernst, however, was ready to espouse it. And the Dennett case had made this new position possible, even before the Second Circuit's decision was handed down.

The ACLU's Campaign Against Censorship

In histories of free speech, United States v. Dennett is generally cast (often in footnotes) as a pivotal precursor to United States v. Ulysses and the final demise of the Hicklin test.Footnote ¹⁶¹ And indeed, as a doctrinal matter, Dennett did provide the basis for future decisions. But Dennett was more than a step along the way to the judicial protection of artistic expression. In the months after the Second Circuit's decision, the ACLU took advantage of the popularity of the Dennett case to re-evaluate and expand its position on censorship. The reformulation was not a matter of simple opportunism. Rather, the public conversation about censorship unleashed by Dennett's conviction and subsequent vindication changed the way that the ACLU related to the law and politics of obscenity. Although it began as an education case in the mid-1920s mold, Dennett sparked a debate about whether the state should ever inhibit freedom. The appeal and its aftermath strongly influenced the beliefs and tactics of influential civil libertarians, as well as their contributors and supporters. Within a few years of the Second Circuit's decision, civil libertarians were aggressively advocating not only open sex education but also artistic freedom and even, in some cases, birth control.

United States v. Dennett marked a turning point in the intellectual trajectory of the ACLU and, more broadly, in American understandings of and relationships to civil liberties. There is no doubt that extrinsic developments, from the cultural experimentalism of the Roaring Twenties to the compelling rhetoric of Holmes's and Brandeis's First Amendment dissents, influenced the course of events. The ACLU appointed Ernst and Hays as general counsels in the late 1920s because (in part through its own maneuvering) free speech was becoming an increasingly liberal and lawyerly affair. Ernst, for his part, was moving toward a theory of expressive autonomy well before Mary Ware Dennett sought his services. He was resistant to morals regulations from the start, and the professional and financial pressures of his private law practice were nudging him ever more forcefully in that direction. The circumstances of Dennett's prosecution were, however, particularly well suited to Ernst's needs. Ernst was acutely aware that an unfavorable legal posture or an unsympathetic defendant could undermine the soundest of litigation strategies.Footnote ¹⁶² He knew that a public relations defeat for the ACLU would be costly for the organization; if it happened on his watch, it threatened to shift internal authority to the board's progressive holdouts. Dennett was Ernst's opportunity to bring together the tolerance of dissent and the freedom from sexual squeamishness under a single civil liberties banner.

In a period when government regulation of private life seemed increasingly trivial, ineffectual, and ill advised, the defense of sex education was a singularly persuasive cause. A constellation of factors made Dennett a landmark event in the history of civil liberties, ranging from popular support for the case and the financial contributions it generated to Ernst's newfound confidence in strategic litigation. The very fact of winning in United States v. Dennett made a broader agenda seem possible.

As an organizational and institutional matter, Dennett's ordeal was instrumental in expanding the ACLU's position on censorship. The Executive Committee officially offered Dennett the organization's support in January 1929.Footnote ¹⁶³ In April of that year, the board constituted “The Mary Ware Dennett Defense Committee,”Footnote ¹⁶⁴ which was to include educational, religious, and scientific leaders from across the country and drum up public support for Dennett's cause.Footnote ¹⁶⁵ In early November, the Defense Committee (headed by John Dewey,Footnote ¹⁶⁶ after several months under the leadership of Roy Howard) launched a national campaign on Dennett's behalf, soliciting support throughout the United States.Footnote ¹⁶⁷

Early on, the ACLU was enthusiastically committed to Dennett's defense but cautious in its justification of the pamphlet. It explained its participation in the case in narrow terms, emphasizing the propriety and importance of The Sex Side of Life rather than asserting an abstract right against state interference in private matters:

Freedom of the press, argued the ACLU, “means the right to print and distribute freely facts or opinions on public issues.”Footnote ¹⁶⁹The Sex Side of Life was not obscene, because it did just that: it provided children with sorely needed information on sex education, a public issue of the utmost importance. Even one year later, as the appellate decision neared, the ACLU clung to its early position.Footnote ¹⁷⁰ A press bulletin issued in January 1930 quoted Forrest Bailey, secretary of the Mary Ware Dennett Defense Committee: “The real question the court is asked to decide,” he said, “is whether a serious and accurate piece of writing on sex that has been found valuable for ten years in the work of leading educational and welfare agencies can be condemned as ‘obscene’ in the meaning of the law.”Footnote ¹⁷¹

At Ernst's urging, however, the Second Circuit's decision ventured significantly beyond the modest question that Bailey described. Indeed, it fundamentally changed the legal doctrine of obscenity. And the litigation, sensationalistic from the outset,Footnote ¹⁷² generated outpourings of public support that changed the ACLU's vision of civil liberties. The change did not quite happen overnight. As late as 1932, Ernst complained that “many people who belong to an organization such as the Civil Liberties Union are afraid of the right to spread sexual ideas.”Footnote ¹⁷³ Still, after Dennett, obscenity was undeniably a civil liberties issue. The Executive Board of the ACLU, guided by Ernst, seized on the Dennett case to explore and excoriate postal censorship more generally. “The importance of the case in court far exceeds the issue of [The Sex Side of Life] itself,” an ACLU pamphlet explained. “It involves the whole method of determining obscenity, the rules of evidence in trials, and the constitutionality of the law under which the Post Office Department operates its censorship.”Footnote ¹⁷⁴

Just as the Dennett case convinced civil libertarians that obscenity was a worthwhile civil liberties issue, it also persuaded many antiobscenity activists that censorship laws at least occasionally resulted in the suppression of desirable speech. Mainstream organizations, including the League of Women Voters and the Woman's Christian Temperance Union, advocated “rigid enforcement of anti-vice laws,” but they also lobbied for better sex education.Footnote ¹⁷⁵ Like their male counterparts in the anti-vice movement, they condemned “dirty” magazines, movies, and burlesque shows. At the same time, however, they regarded marital sex as natural and desirable.Footnote ¹⁷⁶ Characteristically, Catheryne Cooke Gilman, a leading antiobscenity reformer, circulated The Sex Side of Life to teenagers (and planned to adapt the text for younger children) in order to discourage the sex delinquency that she attributed to inadequate sex education and induced ignorance, or “the conspiracy of silence.”Footnote ¹⁷⁷

Gilman's attitude was representative of an increasingly influential segment of the antiobscenity movement that sought simultaneously to eliminate prurience and to promote healthy and fulfilling sexual practices within marriage.Footnote ¹⁷⁸ “Old-fashioned” vice crusaders, such as the New England Watch and Ward Society and the New York Society for the Suppression of Vice, indiscriminately condemned all sexually explicit material.Footnote ¹⁷⁹ Indeed, from their perspective, materials like Dennett's were even more dangerous than outright pornography, because they threatened to make sex respectable.Footnote ¹⁸⁰ By contrast, reformers like Gilman saw sex education materials as a remedy for sexual prurience rather than its cause. They feared that prosecutors would target educational offerings rather than the more worrisome but better-financed commercial ones.Footnote ¹⁸¹ Many endorsed explicit medical materials about sex, and few frankly opposed contraception.Footnote ¹⁸² While Gilman and her allies continued to distinguish desirable treatments of sex, such as The Sex Side of Life, from the more vulgar sort,Footnote ¹⁸³ Dennett's prosecution demonstrated how easily censorship laws could target the former and prompted many social moderates to question censorship in general.

In short, ordinary citizens felt strongly that Dennett's prosecution crossed a line, and free speech enthusiasts pressed their advantage. In May 1929, 1500 people attended a Town Hall meeting to discuss the Dennett case and associated issues. Speakers cited a need for freedom of instruction on “sex subjects” by health authorities, religious bodies, and educators, among other groups. “Because this freedom [was] shown by the recent trial and conviction of Mary Ware Dennett to be seriously menaced,” the attendees called for the formation of a permanent agency on censorship. Its principal purpose was to resist the censorship of sex education, but its agenda would encompass the “systematic consideration of censorship and the problems of public policy underlying it,” as well as “recommendation for alterations in existing laws, federal and state, wherever required to insure the necessary freedom.”Footnote ¹⁸⁴

Out of this meeting, the National Committee for Freedom from Censorship (“NCFC”) was born. Crucially, contributions to the Dennett Defense Fund had far exceeded what was necessary for the appeal, and the ACLU voted to finance the NCFC out of the surplus. The fundraising potential of the anticensorship work took on increasing significance in the wake of the stock market crash, and it encouraged the organization's new direction.Footnote ¹⁸⁵ From the outset, the NCFC emphasized the need for public pressure as well as litigation. In March, a few days after Judge Hand issued his opinion in Dennett, an ACLU bulletin instructed members to urge their local broadcasting stations to protest exclusion of the subject of birth control from the air.Footnote ¹⁸⁶ One year later, the ACLU's Monthly Bulletin for Action asked ACLU constituents to monitor for news of censorship initiatives or ordinances in their cities and towns.

By 1931, the ACLU was ready to enter the censorship fray in full force. The Board of Directors hoped to unify the anticensorship campaign, and to that end it hired a full-time secretary for the NCFC.Footnote ¹⁸⁷ In July, the council announced a “drive against censorship in all its forms” headed by Pulitzer Prize-winning playwright Hatcher Hughes.Footnote ¹⁸⁸ It pursued reform through a combination of legislative change and test case litigation. In particular, it focused on post office censorship, state movie censorship laws, the New York state theater padlock law, and the vice societies.Footnote ¹⁸⁹

Dennett herself became a powerful voice for civil liberties, and she was influential in expanding the ACLU's mission. Fresh from her court battle, she had a lot to say about the ACLU's new project. “Censorship is like wearing gray clothes because they don't show the dirt,” she quipped in a 1930 forum.Footnote ¹⁹⁰ For Dennett, the crusade against obscenity censorship meant doing battle with the “miserable old concept that sex itself is dirty.” On the one hand, she advocated the free distribution of birth control and sex education literature because she deemed it “clean.”Footnote ¹⁹¹ But she went much further, at this point suggesting that sexually explicit expression might be worth protecting even if she—or progressive social and scientific circles more broadly—deemed it perverse instead of illuminating.Footnote ¹⁹²

The antidote to obscenity, according to Dennett, was more speech. “In the course of time it will become clear to all normal citizens,” she insisted, “that the dirt-seeing faculty can be educated but not legislated out of people. As that discovery is made by larger and larger sections of the public, the demand will grow for dumping the obscenity laws into the legal scrap-basket as just so much useless clutter.”Footnote ¹⁹³ Her stated goal—to “gradually eliminate the obscene mind from the world”—was still publicly oriented, but no amount of legal finessing and fine-tuning would accomplish the task.Footnote ¹⁹⁴ “The cure for the situation,” she insisted, “lies not in more suppression, but in less and less.”Footnote ¹⁹⁵

Significantly, Dennett was proposing the same remedy for antisocial and corruptive speech in the moral realm as civil libertarians had been advocating in the political sphere for the past half-decade. Her reasoning, however, was subtly different. In the political context, ACLU lawyers argued that bad ideas (for example, the Ku Klux Klan's) would be less powerful, and less damaging, if they were exposed to scrutiny; good ideas, even unpopular ones, would withstand a critical barrage. That rationale—which never fully persuaded the ACLU's National Committee, much less a national audience—did not easily translate to the circulation of sexually explicit speech.Footnote ¹⁹⁶ On the contrary, legalization seemed sure to increase consumption of lascivious materials. Dennett claimed that education would operate more effectively when its target was out in the open, but the argument was clearly a stretch, as her former allies in the social hygiene movement were quick to point out.

In reality, Dennett was approaching a libertarian stance on speech issues that far outstripped her reformist roots. The problem, for Dennett, lay in specifying a legal definition of obscenity. In her view, obscenity was by its very nature culturally dependent. “It varies ridiculously from time to time and from place to place,” she noted, in a formulation that presaged the language of the Supreme Court decades later. That inherent ambiguity created problems with line-drawing and chilling effects, but these were not Dennett's primary concerns. Rather, Dennett believed, given the slipperiness of social norms, that it was foolhardy and dangerous to enforce community standards from the top down. Although she still invoked the “public interest,” that notion was becoming increasingly theoretical and abstract. When she said that the tolerance of divergent beliefs and behaviors served the public interest, she simply meant that the best society was one that valued cultural pluralism, if not individual freedom. The ACLU actively solicited Dennett's views on what sorts of projects the NCFC should pursue, and her evolving views pushed the organization in new directions.Footnote ¹⁹⁷

Of course, Dennett and Dennett were only one part of the new movement. The NCFC capitalized (literally and figuratively) on its victory in Dennett, but mounting public opposition to censorship had helped make the groundswell of public support for Dennett possible in the first place. As is so often the case, government efforts to ratchet up the suppression of speech gave rise to a broad-based resistance movement.Footnote ¹⁹⁸ Already in 1929, as vice crusaders in Boston and New York intensified their efforts to suppress “immoral” speech, the ACLU counted the censorship of books, plays, and talking moviesFootnote ¹⁹⁹ among the three new issues facing civil libertarians.Footnote ²⁰⁰ The onset of the Depression made matters worse, as publishers and producers pushed the boundaries of acceptability in order to attract bigger audiences and stay afloat. In New York State, the ACLU mobilized against a 1931 censorship bill that would have created a bureaucratic mechanism for regulating plays, akin to the one already in place for motion pictures.Footnote ²⁰¹ Civil liberties advocates made use of the heated public debate surrounding the proposal to attack censorship more generally. Participants at a meeting organized to discuss the bill roundly condemned it, but they also “pledge[d] unremitting effort to repeal existing censorship laws,” including post office censorship, the restrictive regulation of the airwaves by the Federal Communications Commission, the censorship of moving pictures, mandatory curricula, and sectarian religious exercises in the public schools.Footnote ²⁰²

The public attention generated by the effort to defeat theater censorship also spilled over into the NCFC's campaign against customs censorship. During the 1920s, the Customs Office unilaterally prevented the importation of thousands of medical, scientific, and artistic texts. In the fall of 1929, the NCFC worked with Senator Bronson Cutting to craft amendments to the Tariff Bill that sharply curtailed customs censorship authority by transferring the power to determine whether a work was obscene from the Customs Office to the federal courts.Footnote ²⁰³ The change in venue reflected a concerted effort on the part of civil libertarians to weaken administrative control over speech. The post office had long been an eager censor, from its quest for prurience after passage of the Comstock laws through its crusade to weed out national disloyalty under the Espionage Act. But the interwar expansion of the administrative state made the threat of bureaucratic authority increasingly pressing. As the Dennett case demonstrated, unchecked administrative discretion was apt to target not only unpopular speech, but even popularly valued speech, especially when its authors were critical of the state. Rather than extol agencies for their expertise and insulation from political influence, as they had done several years prior, groups such as the NCFC overcame their lingering Lochner-era inhibitions and hailed the courts as a fairer forum for resolving disputes.

Censorship in the Courts

Appropriately enough, the new tariff law became the vehicle for Morris Ernst's next major legal battles. Within a year of Judge Hand's opinion in Dennett, Judge John M. Woolsey produced two trailblazing obscenity decisions in the Southern District of New York. Both involved the exclusion by customs agents of books written by Dr. Marie C. Stopes, a leading British birth control advocate; both were argued by Ernst; and both were filed under the Tariff Act of 1930, which prohibited the importation of any material “which is obscene or immoral.”Footnote ²⁰⁴ In both cases, as in the many others he would argue in the coming years, Ernst emphasized changing public mores. The public, he insisted, was ready to talk openly about sex.Footnote ²⁰⁵

The first case, United States v. One Obscene Book, entitled “Married Love,” Footnote ²⁰⁶ centered on Stopes's sex manual for married couples. Stopes was a longtime friend of Dennett's, and Dennett urged Ernst to take up the case.Footnote ²⁰⁷ Although Judge Woolsey decided the matter on procedural grounds (the proceeding was barred, he held, by a prior decision in the Eastern District of Pennsylvania that deemed the work not obscene and therefore eligible for importation), he was moving toward a wholesale reformulation of the Hicklin test, at least in the customs context. In doing so, he relied heavily on the Dennett precedent. Ernst devoted three full pages of the brief to comparison with Dennett, and he submitted a copy of The Sex Side of Life as well as his appellate brief from the case to the court.Footnote ²⁰⁸ The strategy worked. The book was not obscene, in Woolsey's view, because it “treat[ed] quite as decently and with as much restraint of the sex relations as did Mrs. Mary Ware Dennett in ‘The Sex Side of Life, An Explanation for Young People.’”Footnote ²⁰⁹Married Love, according to Woolsey, “may fairly be said to do for adults what Mrs. Dennett's book does for adolescents.”Footnote ²¹⁰

In The Nation, Dennett, who by virtue of her published writing as well as her own travails had come to be regarded as something of an expert on obscenity law, celebrated Woolsey's decision in the Married Love case. She identified two factors that appeared promising for future cases. First, judges had begun to appraise publications based on their total effect and intent rather than isolated excerpts. Second, the recent decisions presupposed a reader of normal intelligence and demeanor, not an unusually susceptible one.Footnote ²¹¹ Both ideas had been latent in her own case, but Judge Woolsey's opinion in Married Love made them explicit. His decision, according to Dennett, “ha[d] established another precedent by which the absurd obscenity statutes of this country may be slowly but surely broken down.”Footnote ²¹²

Three months later, in July 1931, Judge Woolsey built upon that precedent in United States v. One Book, Entitled Contraception.Footnote ²¹³ Ernst and his colleague Alexander Lindey, acting together on behalf of the NCFC, represented the book in what Gordon Moss called “the first test case undertaken by this Council in an effort to liberalize the Customs censorship of foreign books.”Footnote ²¹⁴ The Contraception case, like Married Love, involved the importation of a practical guide by Dr. Stopes. This one, however, was bolder in its content. Contraception was an explicit account of the theory, history, and practice of birth control. Applying the test he had articulated in the Married Love case, Judge Woolsey reasoned that the reading of Contraception “would not stir the sex impulses of any person with a normal mind.”Footnote ²¹⁵ As a “scientific book written with obvious seriousness and with great decency,” it was not obscene. Nor was it a drug, medicine, or article for the prevention of conception within the meaning of the statute. Woolsey therefore dismissed the action against the seized book and held that Contraception was eligible for importation into the United States. His opinion made it permissible to import birth control information for the first time since the practice was made illegal in 1890.Footnote ²¹⁶

However progressive Woolsey's views, his decisions in the two obscenity cases are as notable for what they did not hold as for the relief they granted. In both cases, the ACLU argued that the customs law violated the First Amendment's guarantee of freedom of the press. Woolsey rejected this argument in short shrift. “I think there is nothing in this contention,” he wrote. “The section does not involve the suppression of a book before it is published, but the exclusion of an already published book which is sought to be brought into the United States. . . . Laws which are thus disciplinary of publications whether involving exclusion from the mails or from this country do not interfere with freedom of the press.”Footnote ²¹⁷ Freedom of the press, for Woolsey, meant freedom from prior restraints on publication.Footnote ²¹⁸ He was not yet ready for an extension of the First Amendment on the order of what the ACLU was suggesting. The constitutional argument was a long shot in the customs case, just as it was in United States v. Dennett.

Nor did the Woolsey decisions represent a frontal assault on the Comstock laws. As NCFC Secretary Gordon Moss was careful to emphasize, the Contraception case involved the Customs Bureau law, a statute far narrower than the postal laws, which explicitly prohibited the transportation of birth control materials by mail.Footnote ²¹⁹ Moss was skeptical that the decision (or any others) would have much weight in “whittl[ing] down the meaning of the postal prohibition,” which “appear[ed] to be water-tight.”Footnote ²²⁰

Finally, the Married Love and Contraception decisions applied only to medical and scientific tracts.Footnote ²²¹ The judiciary had not yet signaled a similar openness with respect to literary texts. The ACLU was ready to move on this issue, but it was waiting for an ideal test case. In a letter to Arthur Garfield Hays regarding a medical text containing “many illustrations of a decidedly risqué character,” Gordon Moss relayed the position of at least one representative of Ernst's office when it came to strategic litigation: “[W]e should take only those cases where the cards [are] stacked in our favor, and where a favorable decision would establish precedent for an entire class of literature heretofore prohibited.”Footnote ²²² The constraints were even more rigid in the realm of artistic expression,Footnote ²²³ in which the ACLU was hesitant to defend any book written in the twentieth century. Strategic litigation had availed the ACLU well in the past decade, and it was a method with strict practical guidelines. Gordon Moss believed that censorship “in the field of literature” should first “be taken up on behalf of these old classics.”Footnote ²²⁴

Nonetheless, the book that would break down the censorship barriers turned out to be decidedly modern: James's Joyce's Ulysses, a book as celebrated by critics as it was castigated by vice crusaders. Ernst represented Random House, which had contracted with Joyce to publish an American trade edition of the book, and he actively sought to avoid litigation in the matter.Footnote ²²⁵ Although the United States Attorney's office chose (reluctantly) to prosecute, Ernst was able to arrange for Judge Woolsey to preside over the case.Footnote ²²⁶ Chastened by Woolsey's dismissive tone in the Stopes cases, Ernst did not even raise a First Amendment claim. Instead, he played up Ulysses's artistic innovativeness and its reliance on real and familiar patterns of colloquial speech. Joyce's profanity was not intended to incite lustfulness, he argued; it was designed to reveal the harsh reality of human expression and behavior. Judge Woolsey was convinced. In United States v. One Book Entitled Ulysses, Woolsey explicitly repudiated the Hicklin test. Once again deeming the customs laws inapplicable, he reasoned that even in the literary context a book must be judged by its aggregate effect, not by isolated passages, and that obscenity must “be tested by the court's opinion as to its effect on a person with average sex instincts.”Footnote ²²⁷ In November 1933, the Second Circuit agreed.Footnote ²²⁸

The public outcry over the censorship and prosecution of Ulysses became a political liability for the Hoover administration, a lesson that the newly elected Roosevelt took to heart. The devastating effects of the Depression had made the vice crusaders' efforts to curb the circulation of sexual materials seem increasingly trivial. As Ernst explained in 1934, “In this period while men's stomachs have been empty, there appears to have been less fear of writings dealings with sex.”Footnote ²²⁹ The press coverage of Ulysses drove this point home, and in the wake of the Second Circuit's decision, the Customs Service hired a special advisor on obscenity matters and downsized its censorship effort substantially.Footnote ²³⁰ In short, Ulysses changed the practice as well as law of customs censorship, and, by extension, it precipitated a real shift in mainstream American attitudes about obscenity. After Ulysses, many foreign books long since barred as obscene were made available in reputable American bookstores for the first time. This ease of access, in turn, encouraged many American readers to rethink the acceptable parameters of sexual propriety in literature. Whatever its limitations, the Ulysses case was a major victory for Ernst and the civil liberties movement. A 1938 Harvard Law Review article, reflecting on the decision, called it a “new deal for literature.”Footnote ²³¹

A new public appreciation for artistic freedom and the reformulation of obscenity law were the most visible legacies of United States v. Dennett. But birth control was Dennett's true and enduring passion, and it is appropriate that her own legal victory paved the way for a major liberalization on that issue as well. As with obscenity, the legal battle was only part of the story. To begin with, Americans were becoming increasingly suspicious of government regulation of private life. The failure of Prohibition provided a timely example of the folly of interfering with private morality. A few years later, in the aftermath of Judge Woolsey's decision in Ulysses, Morris Ernst tellingly declared: “The first week of December 1933 will go down in history for two repeals, that of Prohibition and that of squeamishness in literature. . . . Perhaps the intolerance which closed our breweries was the intolerance which decreed that basic human functions had to be treated in books in a furtive, leering, hypocritical manner.”Footnote ²³²

Ernst might easily have extended the comparison to contraception.Footnote ²³³ Opinion polls over the course of the late 1920s and early 1930s showed a steady upward trend in popular support for birth control, which was rapidly winning mainstream approval.Footnote ²³⁴ The Depression was instrumental in this change. Many Americans regarded family limitation as a necessary corollary to their increasingly strained household finances.Footnote ²³⁵ In 1931, the Federal Council of Churches of Christ in America, a coalition of mainline Protestant denominations (and the precursor to the National Council of the Churches of Christ in the United States of America), tentatively approved the use of birth control by married couples. A substantial majority of its Committee on Marriage and the Home believed that “the careful and restrained use of contraceptives by married people is valid and moral” and that “[s]ex union between husbands and wives as an expression of mutual affection, without relation to procreation, is right.”Footnote ²³⁶

Still, as in the case of obscenity regulation, the courts moved more closely in step with public opinion than the legislatures did. Despite growing approval for contraception, state and federal governments were reluctant to anger religious constituencies by tackling the issue directly, and they continued to censor materials advocating and explaining the use of contraceptives.Footnote ²³⁷ Disillusioned with the prospects of legislative change, Morris Ernst suggested “nullification” of prohibitions on birth control, a process which entailed executive nonenforcement as well as judicial erosion of the laws.Footnote ²³⁸ Significantly, and somewhat counterintuitively, this strategy was predicated on the assumption that judicial decisions would reflect changing social norms, not the modern, liberal notion that courts would serve as a check on repressive majoritarian impulses. In other words, Ernst believed, Lochner notwithstanding, that courts were more likely than legislatures to resist pressures by powerful donors or by small but influential voting blocs. Partly, the difference was a function of framing: whereas a legislative vote to legalize birth control (or to permit communist leafleting) would look like a substantive endorsement of promiscuous sex (or of communism), an equivalent judicial decision could more easily be cast as an abstract commitment to individual rights. Consequently, Ernst increasingly focused his energies on incremental judicial reform. His approach was fruitful, and Dennett was among its critical components. The doctrinal progression from United States v. Dennett to the pivotal 1936 birth control case United States v. One Package was indirect in comparison with the parallel path from Dennett to Ulysses, but the Dennett precedent was nonetheless crucial.

One step in the “nullification” process was the Contraception case. As Dennett had long argued, the practice of birth control would never be made legal as long as information about contraceptives was forbidden. The Comstock Act, however, had prohibited more than writing about contraception; it had also banned from the mails “any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion.” That provision, too, needed to be whittled down.

The first major breakthrough came in 1930, with the Youngs Rubber case.Footnote ²³⁹ In it, the United States Court of Appeals for the Second Circuit was asked to decide a trademark infringement lawsuit by the manufacturer of Trojan condoms. In his opinion, Judge Thomas Swan, who had been a member of the Second Circuit panel that reversed Dennett's conviction, declared (albeit in dictaFootnote ²⁴⁰) that contraceptives were permissible when prescribed by physicians. Three years later, the Comstock laws were limited still further, with the Sixth Circuit's decision in Davis v. United States. Footnote ²⁴¹ The defendants in that case, contraceptive wholesalers, were charged in Ohio with the circulation of contraceptive devices by common carrier.Footnote ²⁴² The Sixth Circuit judges were not bound by Second Circuit precedent, but they nonetheless cited Dennett for the proposition that birth control laws “must be given a reasonable construction.”Footnote ²⁴³

The Davis decision, in turn, provided a persuasive doctrinal basis for the Second Circuit's 1936 decision in United States v. One Package, which invalidated importation restrictions on medically indicated contraceptives.Footnote ²⁴⁴ That case was sponsored by Margaret Sanger and the American Birth Control League. Like so many others, it was argued by Morris Ernst, who would serve for many years as general counsel of Planned Parenthood. As fate would have it, it was heard in the District Court by Judge Grover Moscowitz, who by then had ridden out the misconduct charges that stole him away from the Dennett case.Footnote ²⁴⁵ Moscowitz held that the diaphragms at issue had been seized improperly by customs because they were intended for medical purposes. Judge Augustus Hand, once again writing for the Second Circuit, affirmed Moscowitz's decision.Footnote ²⁴⁶ According to Hand, Congress would not have intended to “prevent the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being of their patients.”Footnote ²⁴⁷

As with Dennett itself, the case was decided as a matter of statutory interpretation only. It did not create a liberty interest in contraception, despite Ernst's efforts,Footnote ²⁴⁸ nor did it use the term “right.” It applied only to the importation of contraceptives; as a matter of precedent, it had virtually no relevance to a subsequent interpretation of a state statute by a state court. And many such statutes still existed. A summary of birth control laws in the United States prepared by the NCFC in July 1931 provides a useful snapshot of the regulations and restrictions on the books at that time. According to the report, twenty-one states specifically prohibited the dissemination of information about contraception (though only Connecticut forbade actual use).Footnote ²⁴⁹ Despite all this, Sanger celebrated the decision as “the end of birth control laws,” “an emancipation proclamation to the motherhood of America.”Footnote ²⁵⁰

Dennett, no doubt, was more reserved about the decision. Beginning with her effort to repeal the Comstock Act—which, of course, began her long civil liberties saga—she had criticized Sanger for advocating a narrow medical exception to the birth control laws. Dennett believed strongly that only universal access would guarantee “birth control knowledge for all citizens instead of class privilege.”Footnote ²⁵¹ The dispute came to a head in the early 1930s, when Dennett argued against Sanger's proposed amendment to the birth control laws because it exempted medical professionals from penalty without removing birth control from the auspices of the obscenity laws. In the same month that the ACLU endorsed Sanger's bill, Dennett urged a “clean repeal amendment,”Footnote ²⁵² prompting an editor of Time to advise Dennett to “get together for unified action in behalf of birth control, voluntary parenthood or what you agree to call your movement” lest people come to regard their “several causes as the mere fields of action for ambitious ladies.”Footnote ²⁵³ Still, even for Dennett, United States v. One Package must have seemed an important victory. In it, Ernst did not argue that advocacy of birth control was permissible, or even that instructions on the use of birth control was permissible. He argued that birth control itself was an inappropriate subject for government regulation.

Almost a decade after her indictment, Dennett retired from public life. In her letters to colleagues and friends, she often reflected on how future historians would regard her, and one wonders whether she later was satisfied with her legacy. Dennett dedicated her life to “public work,” and she was vehement that she had “done a thing or two beside achieve ‘silver hair’” during her years of service.Footnote ²⁵⁴ In addition to her many accomplishments as a suffragist and birth control advocate, she helped limit the scope of obscenity laws and, indeed, helped redefine civil liberties. Still, she believed that future generations would enjoy a robust individual autonomy that her contemporaries could barely imagine. In a celebration of Judge Woolsey's decision in Married Love, she wrote, “If we who are living now could come back to this earth a hundred years hence we should probably view with amused incredulity the records of the preposterous doings of our century in the field of censorship.”Footnote ²⁵⁵ As for her disagreement with Sanger, Dennett felt strongly that half-measures were destructive and that history would vindicate her approach.

For his part, Ernst assisted and in turn was influenced by Sanger as well as Dennett.Footnote ²⁵⁶ An article in The Nation written while Dennett's appeal was pending reflected on the irony that the “[t]wo well-known women” had come together in the New York penal system. “For on successive days Mrs. Dennett, the conservative, was convicted of sexological heresy by a federal jury over in Brooklyn, while Mrs. Sanger, the militant, sat in a Manhattan police court and heard eminent volunteers from the medical profession so smash charges against her birth-control clinic that it appears improbable that the magistrate will hold the case for trial.”Footnote ²⁵⁷ Ernst, of course, was defense counsel in both matters.

In retrospect, there was much to recommend both strategies. Dennett's disillusionment with legislative change made the social reformist ever more radical; Sanger's success at ingratiating herself with professionals endeared the erstwhile socialist to incremental reform. The differences were ideological as well as strategic. In time, Dennett adopted a theory of civil liberties much like the rights-based individualism that Sanger had espoused decades earlier and gradually repudiated.Footnote ²⁵⁸ For the mature Dennett, birth control was a matter best left to private discretion, despite its public implications. Government interference in individual decision making was impossible to modulate and undesirable as a matter of principle. Sanger's compromises may have yielded more in the way of concrete results, but the ACLU was deeply indebted to Dennett for the civil liberties revolution it wrought. The question whether to sacrifice principle in favor of stop-gap gains would plague the ACLU for decades. In his many years of service to the ACLU, Ernst himself would often face precisely this dilemma.Footnote ²⁵⁹ He foresaw with astounding acuity the path that birth control litigation would follow over the coming decades, with its halting expansion of the health exception to include, eventually, threats to a woman's psychological well-being, irrespective of her marital status.Footnote ²⁶⁰ He was uneasy about this medical “compromise,” and yet he regarded it as a potentially fruitful strategy.Footnote ²⁶¹ In their court briefs, however, ACLU lawyers were free to make their boldest arguments. And although practical exigencies influenced what cases they chose to pursue, their theory of civil liberties became ever more capacious.