The Day They Busted Mencken

In 1922, Baltimore-based journalist, essayist, literary critic and gadfly H. L. Mencken wrote, “I am, in brief, a libertarian of the most extreme variety, and know of no human right that is one-tenth as valuable as the simple right to utter what seems (at the moment) to be the truth.” Toward this end he used his American Mercury magazine and other publications as platforms from which to wage his ongoing war against the more ludicrous expressions of self-righteous morality, in particular fundamentalism, Prohibition and censorship. He once described the Puritan mindset that so dominated the American Northeast as “the haunting fear that someone, somewhere may be happy,” and his post-mortem evisceration of Anthony Comstock (who had staged the most singularly effective and far-reaching censorship campaign the nation had ever seen) remains shockingly timely. But That’s another story.

Comstock had taken his fight against obscenity national with the conscription of the United States Post Office, lobbying for legislation that made the mailing of materials deemed obscene a federal offense (again that’s another story). But on a local level his New York Society for the Suppression of Vice was an extremely effective weapon when it came to cracking down on New York-based publishers, booksellers, book buyers, art galleries and theaters that displayed or sold material he found personally offensive. The NYSSV was so effective it spawned other bluenose organizations in other major US cities around the turn of the twentieth century, in which holier than thou citizens took it upon themselves to scrub their own communities clean of books and art they didn’t like. It wasn’t just Fanny Hill and pornographic stereographs they were after, but George Bernard Shaw, Oscar Wilde, Eugene O’Neill, and The Decameron. Among these tight-assed citizen vigilante groups, the most powerful by far was Boston’s Watch and Ward Society, formed in 1878 with the stated purpose of cleaning up corruption in local politics. Perhaps finding that a futile waste of time, in 1906 the leaders of the Watch and Ward Society shifted their focus, aiming their vigilance at any manner of artistic expression they deemed unseemly or that might undermine the upstanding moral virtues of the fine God-fearing Christians of Boston. They did this, with the cooperation of the local vice squad and the blessing of city fathers, by banning anything they found offensive and ordering the arrest of those responsible.  By the second decade of the twentieth century, no city in the nation could approach Boston when it came to banning things, and the term “Banned in Boston” soon became a big selling point in other American cities. If a book or play had been banned in Boston, you could almost guarantee hot diggity sales across the rest of the country.

But in Boston, The Watch and Ward Society—made up of citizens, not politicians, lawyers, or law-enforcement officers—wielded so much power that booksellers and publishers were terrified to cross them. If you bought or sold something they decided could corrupt the morals of your average eight-year-old girl, you could find yourself not only out of business, but in jail in short order.

In 1926, Mencken, well aware of the situation in Boston, decided to do something about it. Publishing essays lampooning our self-appointed moral guardians or condemning censorship in philosophical terms was all fine and good, John Milton and the Marquis De Sade had done the same thing, but what had it accomplished?  Plays were still being shut down, museums were still hiding artwork away in vaults and classic literature was still being banned. Better to take the war directly to the enemy. He began hatching a scheme which, if successful, would lead to a court battle he felt certain he could win. As he would later write in a 1937 article about the event, “{If} [Watch and Ward Society leader John] Chase were permitted to get away with this minor assault he would be encouraged to plan worse ones, and, what is more, other wowsers elsewhere would imitate him.”

The April, 1926 issue of the American Mercury proved irresistible to Chase and his minions. The essay arguing sex should be seen as a simple and pleasant bit of recreation to pass the time would likely have been enough to get the issue banned, as would have the ad for a book already condemned by the Watch and Ward Society. The clincher, however, was an excerpt from Up From Methodism: A Memoir of a Man Gone to the Devil, by Gangs of New York author Herbert Asbury.

Asbury was the  grandson of the first American bishop of the Methodist church, and in 1926, while a reporter for the New York Herald Tribune, he set to work on an intentionally profane memoir about his Methodist childhood in Missouri. “Hatrack,” the chapter he submitted to Mencken’s magazine, concerned a prostitute from his hometown who, despite being a devout Christian, found herself rejected by the church. As he tells it, she continued her life of ill-repute, bringing her Catholic customers to the Protestant cemetery to complete the transaction, and vice-versa.

Well, the piece resulted in the predictable shitstorm, and the April issue of The American Mercury was immediately declared obscene and banned by the Watch and Ward Society. Upon hearing the good news, Mencken contacted his lawyer, Boston-based attorney Herbert Ehrmann, and got on a train the next day.

The first thing they had to do, Ehrmann explained when Mencken arrived, was go to the Boston Health Department and meet with the Superintendent of Peddlers to obtain a peddler’s license permitting them to legally sell copies of the magazine in Boston Commons. That done, Ehrmann contacted Chase, asking him to meet Mencken at the corner of Park and Tremont, where Mencken would sell him a copy of the very magazine Chase’s organization had declared obscene a few days earlier. After that, Chase could feel free to have Mencken arrested if he so chose.

There was nothing accidental about the chosen meeting spot. The corner was home to the Park Street Church, where for nearly 120 years evangelical preachers had tried to terrify their congregations into lives of righteousness with fiery sermons about hell and damnation, leading the intersection to be dubbed “Brimstone Corner.”

Chase was understandably suspicious about Ehrmann’s offer. He was clearly familiar with Mencken, and was in all likelihood familiar with Ehrmann as well, a local who’d gained a national reputation as part of Sacco and Vanzetti’s defense team. Chase was used to everyone being terrified of him and doing whatever he said, but now here was this upstart journalist from Baltimore who, like all gentlemen of the Fourth Escape, was obviously up to some devilments. If nothing else, he was there to make trouble for Chase.

It’s unclear why, exactly, Chase agreed to participate in the publicity stunt. It reminds me in a way of Donald Rumsfeld agreeing to be interviewed on camera by Errol Morris. Maybe Ehrmann was simply that persuasive, or Chase was so blinkered he didn’t recognize it as a publicity stunt. An even sadder possibility is that, like Rumsfeld, Chase was convinced he could match wits with Mencken and come out on top.

In any case at noon on April fifth, a week after the magazine had been banned, Mencken showed up at Brimstone Corner, a copy of the American Mercury in hand. Word had spread about the public confrontation, and the streets were packed with onlookers, most of them, Mencken surmised, Harvard students. But instead of showing up himself as agreed, Chase instead sent his assistant to meet Mencken. Although the youngster assured Mencken he was a member in good standing of Watch and Ward, with all rights and privileges that came with the position (including the right to order arrests), Mencken was having none of it. He would only sell the magazine to Chase himself.

The assistant left, and some time later sure enough, the murmurings of the crowd announced that Chase himself had arrived, accompanied by a plainclothes officer and Captain George Patterson, Chief of the Boston PD’s vice squad.

Without much ado, Mencken offered to sell Chase the offending magazine he was carrying, and Chase handed over a fifty-cent piece. In a bit of showmanship, Mencken bit the coin to test its authenticity, and Chase ordered that the journalist be arrested.

Mencken was not billyclubbed or handcuffed. Capt. Patterson merely tapped him on the shoulder, and they made the four-block walk through the crowd to the precinct house in Pemberton Square, where Mencken was booked on a charge of possessing and selling obscene material.

The next day they went before a judge who, clearly no fan of the Watch and Ward Society, declared the April issue of The American Mercury was not obscene, and acquitted Mencken on all counts. Mencken then turned around and sued the Watch and Ward Society, accusing them of restraint of free trade. Again the judge was on Mencken’s side, going so far as to state that the banning of objectionable material was the job of lawyers and elected officials, not citizens.

Emboldened by these two victories, Mencken had the legal footing he needed to go after his real target. After the Solicitor General of the Post Office, ignoring the decision of the Boston judge, declared that issue of the American Mercury obscene, and therefore sending it through the mail a federal offense, Mencken filed suit against the U.S. Postal Service. It would have been a landmark First Amendment case and, had he won, it would have dealt a serious blow to those pinch-faced do-gooders who would tell us what we can and cannot read. That, however, would have to wait until Barney Rosset and Grove Press landed in court three decades later. Mencken’s suit was dismissed on a technicality, and that was that.

Even though in the years that followed the Watch and Ward Society would again shift their focus to more definable vices like gambling, books would continue to be banned in Boston at an  unprecedented clip until the time of Mencken’s death in 1956.

by Jim Knipfel