“No, I couldn’t do that. The law is there. Something must happen to it.”
“The law may not be what it should be, but you’ll never get anywhere by violating it. It must be changed by legal methods; gather all your friends and go to Congress.”
Again I stated my position. The law specified obscenity, and I had done nothing obscene. I even had the best of the Government as regarded the precise charge. I had not given contraceptive information in the Woman Rebel, and therefore had not violated the law either in spirit or principle. But I had done so in circulating Family Limitation, and that would inevitably be brought up. I really wanted this, so that birth control would be defined once and for all as either obscene or not obscene.
Mr. Untermyer took down one of his ponderous books and read over the section in question. Again he said, “The evidence is that you have violated the law. We don’t separate the spirit from the letter. It is all there. It seems to me that pleading guilty would let you out of your troubles without loss of dignity. You should consider yourself fortunate at the suggested outcome. You can gain nothing by trial. You cannot even get publicity in these days when the papers are crowded with war news and the big events of history are happening.”
I still could not admit his interpretation. You had to differentiate between the things mentioned in that law and actual obscenity; the courts would some day have to decide on this.
“You have no case,” Mr. Untermyer persisted. “If you have broken the law, there is nothing anyone can do or say to argue that fact away. We must prevent your going to jail, however. I’ll see what I can do.”
“I’m not concerned with going to jail. Going in or staying out has nothing to do with it. The question at stake is whether I have or have not done something obscene. If I have done nothing obscene I cannot plead guilty.”
Mr. Untermyer was upset. Instead of his former warmth I was aware of a curt and cold politeness. I went from his office feeling I had had an opportunity to make a powerful friend and had lost it by refusing to accept the legal point of view.
Max also was decidedly angry. His attitude was, “We tried to help you, and you declined help.” He wrote formally:
You could accompany your plea of guilty with a statement, both before the Court and for the press, which would make it a far more signal attack upon the law to whose violation you would be pleading guilty than a plea of not guilty. It would do a thousand times more good. At the same time it would satisfy your pride, or your feeling that you ought to be brave enough to stand up for what you think, or whatever it is that is making you refuse the advice of counsel.