Swearinger v. United States, 161 U.S. 446 (1896)

The Supreme Court reversed the conviction of Dan K. Swearinger, editor and publisher of the Kansas Burlington Courier, who ran afoul a federal law, strengthened in 1873 at the urgings of the newly formed Committee (later Society) for the Suppression of Vice as well as the Young Men’s Christian Association, prohibiting the mailing of ‘‘every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter writing, print, or other publication of an indecent character.’’ Swearinger was indicted under this law, which became known as the Comstock Act (named after its author, Anthony Comstock) and charged with depositing in the post office copies of the Courier that contained an allegedly obscene article. The trial judge had instructed the jury that the newspaper article was obscene and thus not mailable under federal law; he then charged the jury to consider only whether there was evidence that Swearinger tried to use the post office to mail the newspaper with the offending article.

This case, although ostensibly about obscenity, also reflected the use of the law to squelch political opponents. Political turmoil and hard-hitting politics were common during the 1890s. In Kansas and throughout much of the West and South, farmers and their agrarian allies created ‘‘populist movements’’ and the new Populist Party, pitting themselves against the railroads. Throughout the decade the reformers, who were often successful at the polls, sought restrictions on intrastate rail operations, primarily in the form of maximum freight rates. Against this tumultuous backdrop, Swearinger, a populist, published an article attacking a foe.

This ‘‘red-headed mental and physical bastard,’’ according to the Courier’s article, had ‘‘slandered and maligned every Populist in the State, from the Governor down to the humblest voter.’’ The article, among other things, went to say that the culprit ‘‘is known to every decent man, woman, and child in the community as a liar, perjurer, and slanderer, who would sell a mother’s honor with less hesitancy and for much less silver than Judas betrayed the Saviour . . . He is a contemptible scoundrel . . . pretending to serve Democracy and is at the same time in the pay of the Republican party. He has been known as the companion of negro strumpets . . . The sooner Populists and Populist newspapers snub him, quit him cold, ignore him entirely, the sooner will he cease to be thought of only as a pimp that any man can buy for $1 or less.’’

The Supreme Court, by a five-to-four margin, disagreed the article was obscene. According to the majority, the article’s ‘‘language is exceedingly coarse and vulgar, and, as applied to an individual person, plainly libelous’’ and then added, echoing the Hicklin Rule, ‘‘but we cannot perceive in it anything of a lewd, lascivious, and obscene tendency, calculated to corrupt and debauch the minds and morals of those into whose hands it might fall.’’ In other words, crude language was not necessarily obscene. More specifically, the majority clarified that ‘‘obscene,’’ ‘‘lewd,’’ and ‘‘lascivious’’ in the federal statute referred to immorality and ‘‘sexual impurity’’ and that these words should be interpreted according to the common law offense for obscene libel. Blasphemous words or phrases were no longer considered obscene. Finally, the majority concluded that the words ‘‘obscene, lewd or lascivious’’ in the statute described one and the same offense, not different and distinct offenses.

ROY B. FLEMMING

References and Further Reading

• Bates, Anna Louise. Weeder in the Garden of the Lord: Anthony Comstock’s Life and Career. Lanham, MD: University Press of America, 1995.
• Beisel, Nicola Kay. Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America. Princeton: Princeton University Press, 1997.

Cases and Statutes Cited

• Swearinger v. United States, 161 U.S. 446 (1896)