11. Reigen
box 19/1
Can it be said that the guilt of the defendant in
this case is beyond any reasonable doubt? Consider
the divergent reaction of the various judges who
have heretofore passed on“ Reigen':
Proceedings were first ccmmeneed against one
Gottschalk for the sale of“ Reigen“ in the Magis¬
trate's Court bythe New Vork Society for the Sup¬
pression of Vice. On November 27, 1929, Judge
Brodsky dismissed the complaint and wrote an ad¬
mirable opinion, which we annex hereto and mark
Exhibit A. The score was 1 to 0 in favor of the
book. Within two months Pesky, the defendant in
the instant case, was haled into the Court of Spe¬
cial Sessions of the City of New York; and by a
vote of 2 to 1, was declared obscene. Af that mo¬
ment the score as to its obscenity stood 2 to 2, two
judges having upheld it, and two condemned it.
Onthe appeal to the Appellate Division, the Appel¬
late Court divided bya vote of 3 to 2; and the score
now stands 5 to 4 against the book. Is it possible
to urge that the defendant is guilty “to a moral cer¬
tainty“’ when among thetjudiciary itself there has
been such a sharp cleavage of opinion?
Any censorship of literature is, in the final analy¬
sis, an impairment of the basic rights of freedom of
the press, and must be reluctantly exercised. As
Justice Oliver Wendell Holmes said in the case of
U. S. v. Schwimmer, 279 U. S. 644:
„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 with those who
agree with us, but freedom for the thought that
we hate.?