therefore hold that the federal obscenity statute punishing the use of the mails for obscene material is a proper exercise of the postal power delegated to Congress by Art.
I, § 5; Ga.Penal Code, Eighth Div., §VIII (1817), Digest of the Laws of Ga. 364 (Prince 1822); Act of 1803, c. 54, II Md.Public General Laws 1096 (Poe 1888); Commonwealth v. Kneeland, 37 Mass. Clearly it is not our function to decide this question. United States v. Kennerley, 209 F. 119; MacFadden v. United States, 165 F. 51; United States v. Bennett, 24 Fed.Cas. 354 U. S. 482-483.
Pp. Cf.
. 194; 64 Stat. .
I do not think we can approve that standard and be faithful to the command of the First Amendment, which, by its terms, is a restraint on Congress and which by the Fourteenth is a restraint on the States. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. (a) Since an earlier decision of the court below holding the Michigan escheat law unconstitutional as applied to national banks, this Court has held, in effect, that the Constitution of the United States does not prohibit a state from escheating deposits in a national bank located and actively doing business therein, abandoned by their owners, or belonging to missing persons. Hearings before Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, pursuant to S.Res.
Other constitutional questions are: whether these statutes violate due process, [Footnote 3] because too vague to support conviction for crime; whether power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth), and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art.
The decided cases which indicate the limits of state regulatory power in relation to the federal mail service involve situations where state regulation involved a direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal functions.
Such material would need to be completely without redeeming social value to be classified as obscenity. [Footnote 31] We. E.g., Roth v. Goldman, 172 F.2d 788, 789; Parmelee v. United States, 72 App.D.C.
With the exception of Beauharnais v. Illinois, 343 U. S. 250, none of our cases has resolved problems of free speech and free press by placing any form of expression beyond the pale of the absolute prohibition of the First Amendment. ." 302; 17 Stat.
If experience in this field teaches anything, it is that "censorship of obscenity has almost always been both irrational and indiscriminate." Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. The federal obscenity statute makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . The First Amendment puts free speech in the preferred position. . Proceeding from the premise that "no issue is presented in either case, concerning the obscenity of the material involved," the Court finds the "dispositive question" to be "whether obscenity is utterance within the area of protected speech and press," and then holds that "obscenity" is not so protected, because it is "utterly without redeeming social importance." Act Concerning Crimes and Punishments, § 69 (1821), Stat.Laws of Conn. 109 (1824); Knowles v. State, 3 Day (Conn.) 103 (1808); Rev.Stat. See also Mutual Film Corp. v. Industrial Comm'n, 236 U. S. 230, 236 U. S. 242, where this Court said as to motion pictures: ". XIV; Va. Bill of Rights, 776, § 12.
Dunlop v. United States, 165 U. S. 486, 165 U. S. 499-500. But state action affecting speech or press can and should be weighed against and reconciled with these conflicting social interests.".
Pp. or other publication of an indecent character," and Roth's conviction thereunder for mailing an obscene book and obscene circulars and advertising, are sustained. .
. If affirmed, the District Court, in dismissing the action "on the merits," adopting the "settled doctrine" of its own prior adjudications. What Mr. Justice Jackson said in Beauharnais, supra, 343 U.S. at 343 U. S. 294-295, about criminal libel is equally true of obscenity: "The inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functions and duties in relation to those freedoms.
. ", Id. . [Footnote 2/9], It is no answer to say, as the Court does, that obscenity is not protected speech. .". Cal.Const., Art. ." Madison's Report on the Virginia Resolutions, 4 Elliot's Debates 571. By these standards, punishment is inflicted for thoughts provoked, not for overt acts nor antisocial conduct. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to "sexual impurity" or has a tendency "to excite lustful thoughts."
I do not think that the problem can be resolved by the Court's statement that "obscenity is not expression protected. . the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.
I, § XXII; N.C.
by the First Amendment."
(b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. . Railway Mail Assn. * The definition of obscenity which the Court adopts seems in substance to be that adopted by those who drafted the A.L.I., Model Penal Code.
13, is not applicable to this case. And so, in the final analysis, I concur in the judgment because, upon an independent perusal of the material involved, and in light of the considerations discussed. 504, 507; 17 Stat.
My second reason for dissatisfaction with the Court's opinion is that the broad strides with which the Court has proceeded has led it to brush aside with perfunctory ease the vital constitutional considerations which, in my opinion, differentiate these two cases. See also United States v. Harriss, 347 U. S. 612, 347 U. S. 624, n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342 U. S. 340; United States v. Ragen, 314 U. S. 513, 314 U. S. 523-524; United States v. Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Fox v. Washington, 236 U. S. 273; Nash v. United States, 229 U. S. 373. Giboney v. Empire Storage Co., 336 U. S. 490, 336 U. S. 498; Labor Board v. Virginia Power Co., 314 U. S. 469, 314 U. S. 477-478. 705; 35 Stat. 1079, 272 S.W.2d 283; Adams Theatre Co. v. Keenan, 12 N.J. 267, 96 A.2d 519; Bantam Books, Inc. v. Melko, 25 N.J.Super. The First National Bank-Detroit, closed its doors in 1933 and, in its liquidation, dividends on proved claims, small in average but large in the aggregate, have remained for some years in the hands of the federal liquidators, unclaimed by their owners. thoughts." 741, § 15 (1836); Act of 1798, c. 33, §§ 1, 3, Rev.Stat. . Hart, The Relations Between State and Federal Law, 54 Col.L.Rev.
", The trial judge who, sitting without a jury, heard the Alberts case, and the appellate court that sustained the, judgment of conviction, took California's definition of "obscenity" from People v. Wepplo, 78 Cal. Decided November 7, 1949. . Petitioner's application for bail was granted by MR. JUSTICE HARLAN in his capacity as Circuit Justice for the Second Circuit.
The Court of Appeals affirmed the District Court's dismissal of the action "on the merits," but it was not clear whether it did so upon the ground that the Michigan statute was unconstitutional or upon the ground that it was not intended to apply to receiverships begun before its enactment. .
That function belongs to the state legislature.
moral fabric of society. boundaries sufficiently distinct for judges and juries fairly to administer the law.
Mistakes of the past prove that there is a strong countervailing interest to be considered in the freedoms guaranteed by the First and Fourteenth Amendments.
That standard is, in my view, more inimical still to freedom of expression. XVI; N.H.Const., 1784, Art.
129, 149 F.2d 511; Parmelee v. United States, 72 App.D.C. ", "Whoever knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable, or knowingly takes the same from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both.". All it need do is to incite a lascivious thought or arouse a lustful desire. Pp. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship. A more recent docket listing Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site.
7, and it. As a people, we cannot afford to relax that standard. . 354 U. S. 481-485.