Sumner v. Macfadden

Natural enemies are Publisher Bernarr ("Body Love") Macfadden and New York's Society for the Suppression of Vice, founded by the late famed reformer Anthony Comstock and now headed by thin-lipped John Saxton Sumner. As early as 1905 Publisher Macfadden ran afoul of the Society because of a "Health Rally" in Madison Square Garden. Last week occurred another climax in the feud: Mr. Sumner's Society was awarded $10,000 damages in a $100,000 libel suit against Mr. Macfadden's tabloid Evening (porno) Graphic.

The libel case arose out of the introduction in 1927 of a legislative bill to revoke the Society's charter. One of the provisions in New York's penal laws allows the Society to collect 50% of the fines imposed in "vice" cases discovered by it. The Graphic, agitating for abolition of the Society, stated what has been charged by many another foe of Censor Sumner: that the Society's operatives functioned as agents provocateurs, habitually duped reluctant booksellers and printers into selling contraband books or erotic pictures, and then arrested them. The Society sued. Publisher Macfadden engaged as counsel Morris L. Ernst, defender of many a "liberal" cause.

Lawyer Ernst marshalled an attack upon the character of the Society. He summoned famed writers and artists to testify that the Society "could not tell the difference between filth and literature." Writer Carl Van Doren called the Society "a conspicuous nuisance in the community." Heywood Broun, co-biographer with Margaret Leech (Mrs. Ralph Pulitzer) of Anthony Comstock, said that the plaintiff's reputation was "bad." Artist Rockwell Kent testified that by emphasizing the "filth" in books which it disapproves (notably Jurgen, Casanova's Homecoming and The Well of Loneliness) the Society has boosted sales of such books beyond normal by bringing them to the attention of eroticurious minds.

When the decision went against him, Lawyer Ernst declared he would appeal on the grounds that the Society constitutes itself a branch of the Government and hence is not permitted to sue a private concern.

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