But the spirit of censorship, thus for a time strangely revived, soon passed. Today therefore the courts apply simple tests, tests savoring of nothing that involves censorship, tests necessary only for the protection of the public against influences that directly, and without the necessity of argument in demonstrating their effect, bear upon public morals. It requires, therefore, but a few words to describe these tests as they are known to the law of this state today.
In the first place, the words of the statute mean exactly what they say and require no subtlety of interpretation. In the words of Cullen, C. J., the statute “is directed against lewd, lascivious and salacious or obscene publications, the tendency of which is to excite lustful and lecherous desire.” (People v. Eastman, 188 N. Y. 478, 480.) That being true, this simple test excludes others which, however subtle may be the argument in their support, however honest the intention of the people who urge them, inevitably lead to the thing which Seabury, J., has said,—but which everybody would know even if it had not been said by this particular Judge,—is outside the purview of criminal law as administered in English-speaking countries,—censorship by indictment.
In the second place this statute does not forbid publication of the polemical. “It seems to be”, says Andrews, J., of the book under review by the Court of Appeals, “largely a protest against what the author, we believe mistakenly, regards as the prudery of newspaper criticism.” (Halsey v. New York Society, 234 N. Y. 1, 4.) The prosecutor, and indeed the court itself, may not agree with what the book may advocate, may not take the sentiment which it expresses, but the book cannot be condemned for that. “Differ as men may as to the views of Voltaire on many questions”, said Seabury, J., in the case which we have already cited, “his works cannot be burned by the public hangman under the guise of a section of our Penal Code.” (St. Hubert’s Guild v. Quinn, 64 Misc. 336, 342.) We need not, however, pursue this subject further, because People v. Eastman (188 N. Y. 478) stands as a monument to the proposition under discussion. One has only to read the article for which an indictment was brought (it is repeated verbatim in the dissenting opinion of O’Brien, J., at pp. 482–484) to realize that its nature was such as to excite in the minds of thousands of our best citizens feelings which it is impossible adequately to describe. Yet, disregarding the decision of the English courts in Regina v. Hicklin (L. B. 3 Q. B. 369), where a precisely similar book was held indictable, our Court of Appeals sustained a demurrer to an indictment which set forth the article in question.
Nor is it necessary, in order to protect a book from indictment, that it teach a moral lesson.
People v. Brainard (192 App. Div. 816);
Halsey v. N. Y. Society (234 N. Y. 1).
The Appellate Division of this Department has well borne out this proposition when, in reversing a judgment of conviction, it said:
“I can see no useful purpose in the publication of the book. I cannot agree that it has any moral lesson to teach. Its publication might well be prohibited as a recital of life in the underworld, as is prohibited books containing recitals of crimes.” (People v. Brainard, 192 App. Div. 816, 821.)
In short, this statute was not intended, as the Court of Appeals has said in one of the cases above cited, “to regulate manners”. (People v. Eastman, 188 N. Y. 478, 480.)
What then do these tests of the law come to? The courts in their own words have told us that. If the book has literary merit, then it is not within the condemnation of the statute.