A state legislator named Frank Grist shepherded a law through the state legislature in 1924 which applied state-level penalties to anyone who sold literature in North Carolina which had been banned by the U.S. Post Office Department pursuant to federal law. A magazine published by the famous editor H. L. Mencken potentially ran afoul of this statute, which was on the books until 1971.
Grist was a sufficiently well-known Tar Heel politician for Sam Ervin to include an anecdote about him in Ervin’s 1983 book Humor of a Country Lawyer.
In the North Carolina General Assembly’s extra session of 1924, Grist introduced a law which the legislature passed. Entitled “An Act to Prevent the Sale and Dissemination of Obscene Literature,” Grist’s statute prohibited the sale in North Carolina of “any magazine, periodical or other publication, which is now or may hereafter be excluded from the United States mails.” Sale to both adults and minors was specifically forbidden, and misdemeanor penalties were imposed on violators. Another provision stated: “That this act shall not be construed to in any way conflict with or abridge the freedom of the press, and shall in no way affect any publication which is permitted to be sent through the United States mails.”
A possible antecedent to the Grist law, dating back to 1885, made it a crime to sell, on the premises of any North Carolina school, “any obscene literature, as determined and defined in the postal laws and regulations of the United States Post Office Department.” This probably referred to the federal Comstock Law, which prohibited the U.S. Post Office from carrying obscene literature. The 1924 Grist law was not limited in its application to school grounds, but prohibited the sale of Post Office-banned material anywhere in the state.
Another distinctive feature of the Grist law was pointed out in a 1925 comment in the North Carolina Law Review. The legal journal observed that, while the title of the Grist law referred to obscene literature, the scope of the law extended to “all non-mailable matter, such as newspapers excluded from the mails during the war [World War I] for political reasons or otherwise.” Federal law, in addition to prohibiting the mailing of obscene literature, included bans on the circulation of certain allegedly seditious literature. Perhaps reflecting this insight, when the Grist Law was codified in the North Carolina General Statutes as § 14-194, the bill’s original title, with its reference to obscenity, was replaced with a broader reference to “publications barred from the mails.”
Law professor Robert H. Wettach, writing in the February 1926 edition of the North Carolina Law Review, said he could find no case in the state Supreme Court where Tar Heel newspapers had violated the Grist law and certain other state statutes regulating the press. “Perhaps,” speculated Wettach, “the newspapers keep within the law or perhaps [the Grist law and the other statutes] are of the unenforceable variety.”
A suggestion for enforcing the Grist law was offered in the same year, 1926, by the law’s sponsor, Frank Grist, who by now was the state Commissioner of Printing and Labor. Commissioner Grist invited H. L. Mencken, editor of the American Mercury magazine, to come to North Carolina and provoke his own arrest by selling the April 1926 edition of the Mercury. The April Mercury had been banned from the mails by the U.S. Post Office Department because of alleged obscenity. Prior to that Post Office’s ban on his magazine, Mencken had staged his own arrest in Boston, Massachusetts, by selling the allegedly obscene issue, which had been targeted by Boston anti-vice crusaders.
The allegedly obscene articles singled out by Mencken’s Boston foes were an article by Herbert Asbury entitled “Hatrack,” about a small-town prostitute who was hypocritically shunned by her churchgoing clientele, and an editorial on sex by Mencken’s co-editor, George Jean Nathan. Mencken had been acquitted on obscenity charges under Massachusetts law shortly before the Post Office issued its ban. The Post Office cited “Hatrack” and the Nathan article as proof of obscene content. During subsequent litigation, the Post Office also cited an advertisement for an allegedly obscene book (an English translation of a racy French work).
Mencken fought to have the federal courts overturn the U.S. Post Office’s ban on the April Mercury, but after an initial victory in the trial court he ultimately lost on a technicality in the appeals court (although two of the three appeals judges privately doubted whether the April Mercury was in fact obscene). Therefore, the U.S. Post Office ban remained intact, and selling the April Mercury in North Carolina remained illegal under the Grist law. As to Grist’s challenge that Mencken come and submit himself to arrest, Boston-style, in North Carolina, the editor later explained that he had no interest in such a plan: “[W]e had enough action on other fronts to keep me busy,” Mencken explained, “and I was not much interested in what went on in North Carolina.” In fact, Mencken visited North Carolina in 1926, on non-censorship-related business, and he had several friends in the state. But he never sought to have himself arrested under the Grist law.
The Grist law was repealed by the state legislature in 1971, in a law entitled “An Act Prohibiting Indecent Exposure.” The 1971 statute not only adopted a new law against indecent exposure, but it repealed four existing laws dealing with indecent exposure and obscenity, including the 1924 Grist statute.
American Mercury, Inc. v. Kiely, 19 F.(2d) 295 (2nd Circuit 1927); Angoff, Charles. H.L. Mencken: A Portrait from Memory. Thomas Yoseloff, 1956; Asbury, Herbert. “Hatrack.” The American Mercury, vol. VII, No. 28 (April 1926); Asbury, Herbert. Up From Methodism. Alfred A. Knopf, 1926 (the “Hatrack” article is a chapter in this book); Bode, Carl (ed.) The Editor, the Bluenose, and the Prostitute: H.L. Mencken’s History of the “Hatrack” Censorship Case. Roberts Rinehart, 1988; Boyer, Paul S. Purity in Print: The Vice Society Movement and Book Censorship in America. Scribner, 1968; “The Case of the April Mercury.” The Publishers’ Weekly, April 17, 1926, pp. 1333-34; Cunningham, Shawn. “Mencken and the Feds.” Menckeniana, No. 123 (Fall 1992); De Grazia, Edward. Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius. Random House, 1992; “Debarred Paper Cannot Be Sold in North Carolina,” Winston-Salem Sentinel, April 10, 1926, p. 26; Editorial in Durham Herald, reprinted in Raleigh Times, April 14, 1926; Ervin, Sam J., Jr. Humor of a Country Lawyer. University of North Carolina Press, 1983 (pp. 66-67); Gunther, Gerald. Learned Hand: The Man and the Judge. Alfred A. Knopf, 1994; Harvard University Library, Learned Hand Papers, “Hatrack” file, Box 181, File 3; Hays, Arthur Garfield. Let Freedom Ring. Boni and Liveright, 1928; Hobson, Fred. Mencken: A Life. Random House, 1994; Hobson, Fred. Serpent in Eden: H. L. Mencken and the South. University of North Carolina Press, 1974; Longley, Maximilian (as Eric Longley). “Mencken vs. the Post Office,” Menckeniana, No. 140 (Winter 1996), pp. 6-12; Longley, Maximilian (as Eric Longley). “H. L. Mencken and North Carolina,” Menckeniana, No. 137 (Spring 1996), pp. 8-12; Longley, Maximilian (as Eric Longley). “H.L. Mencken & North Carolina: A Strange But True Alliance.” Spectator (Raleigh, NC), Vol. 17, No. 29 (June 1-June 8, 1995), pp. 8-9; Longley, Maximilian (as Eric Longley). “Sex and H.L. Mencken: A Case of Snail Mail Censorship,” Gloss, Issue #1, Winter 2002. (The original host site no longer seems to be available, but the article is (largely) available online at “American Headlines: Postal censorship against H. L. Mencken,” http://www.essortment.com/all/hlmencken_rnqv.htm); Mencken, H. L. A Mencken Chrestomathy. Vintage Books, 1982; Mencken, H. L. “A New Constitution for Maryland.” Reprinted in Menckeniana, No. 100 (Winter 1986); Mencken, H. L. My Life as Author and Editor. Alfred A. Knopf, 1993; Mencken, H. L. Thirty-Five Years of Newspaper Work. Johns Hopkins University Press, 1994; Nathan, George Jean. “Clinical Notes – The New View of Sex.” The American Mercury, vol. VII, No. 28 (April 1926); North Carolina General Assembly, “An Act to Prevent the Sale and Distribution of Obscene Literature,” Session Laws, Extra Session 1924, Chapter 45; North Carolina General Assembly, “An Act Prohibiting Indecent Exposure,” Session Laws, 1971, Chapter 591 (HB 91); North Carolina General Statutes (1953 edition). § 14-189 [relating to the sale in schools of literature which is obscene as defined by U.S. postal laws and regulations]North Carolina General Statutes (1953 edition. § 14-190, “indecent exposure, immoral shows, etc.”; North Carolina General Statutes (1953 edition. § 14-191 [sheriffs and deputies to report violations of § 14-189 and § 14-190]; North Carolina General Statutes (1953 edition). § 14-194, “Circulating publications barred from the mails”; Rodgers, Marion Elizabeth, ed. The Impossible H. L. Mencken: A Selection of his best newspaper stories. Doubleday, 1991; Singleton, M. K. H. L. Mencken and the American Mercury Adventure. Duke University Press, 1962; Teachout, Terry, ed. A Second Mencken Chrestomathy. Vintage Books, 1994; Wettach, Robert H. (?) “Sale of Non Mailable Publications” (commentary on recent legislation), North Carolina Law Review, Vol. 3, No. 1 (1925), pp. 25-26; Wettach, Robert H. “Restrictions on a Free Press,” North Carolina Law Review, vol. 4, No. 1 (February 1926).
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