American Mercury v. Chase

• Decision Date: 14 April 1926
• Docket Number: No. 2541.,2541.
• Citation: 13 F.2d 224
• Parties: AMERICAN MERCURY, Inc., v. CHASE et al.
• Court: U.S. District Court — District of Massachusetts

13 F.2d 224 (1926)

AMERICAN MERCURY, Inc., v. CHASE et al.

No. 2541.

District Court, D. Massachusetts.

April 14, 1926.

Herbert B. Ehrmann and Goulston & Storrs, all of Boston, Mass., and Arthur Garfield Hays, of New York City, for plaintiff.

Edmund A. Whitman, of Boston, Mass., for defendants Chase, Watch & Ward Society, and Hotel & Railroad News Co.

Wm. F. Garcelon, of Boston, Mass., for Armstrong Co.

Francis P. Garland, of Boston, Mass., for Union News Co.

MORTON, District Judge.

The questions before me arise on the defendant's motion to dismiss the plaintiff's bill, and the plaintiff's motion for an injunction pendente lite. As the facts alleged in the bill are accepted by the motion to dismiss, and those shown by the evidence on the motion for injunction are substantially the same, both questions can conveniently be considered together. The material facts are not seriously in controversy.

The defendant Chase and the society of which he is secretary scrutinize publications of various kinds, including books and magazines. If they believe that a book or article violates the law, they inform the large distributors of their opinion, with the intimation, express or implied, that if the book or magazine be sold or distributed prosecution will follow. Where this warning is ignored, it is their custom to institute prosecutions. Such notice or warning is generally sent to one Tracy, who is connected with the New England Newspaper Publishing Company, a distributor of periodicals, with the understanding that he will pass it along to other persons in the distributing trade, who are thus apprised that the article (or book) is considered unlawful by said defendants, with the statement or implication that prosecution will follow if it is sold or circulated. That course was followed as to the April number of the American Mercury, and said defendants avow their intention to follow the same course as to future issues which seem to them objectionable. The effect of such notice is to interfere very seriously with the sale of the book or magazine objected to.

The important question is whether this is a legal course of conduct. May an unofficial organization, actuated by a sincere desire to benefit the public and to strengthen the administration of the law, carry out its purpose by threatening with criminal prosecution those who deal in magazines which it regards as illegal; the effect being, as a practical matter, to exclude such magazines from sale through ordinary channels, and thereby to inflict loss upon their proprietors?

The injury to the persons affected does not flow from any judgment of a court or public body; it is caused by the defendants' notice, which rests on the defendants' judgment. The result on the other person is the same, whether that judgment be right or wrong; i. e., the sale of his magazine or book is seriously interfered with. Few dealers in any trade will buy goods after notice that they will be prosecuted if they resell them. Reputable dealers do not care to take such a risk, even when they believe that prosecution would prove unfounded. The defendants know this and trade upon it. They secure their influence, not by voluntary acquiescence in their opinions by the trade in question, but by the coercion and intimidation of that trade, through the fear of prosecution if the defendants' views are...