United States v. Samuel Roth

This is an appeal by Samuel Roth from his conviction for violation of 18 U.S.C. § 1461. The indictment contained twenty-six counts charging the mailing of books, periodicals, and photographs (and circulars advertising some of them) alleged to be "obscene, lewd, lascivious, filthy and of an indecent character." Three counts were dismissed. After a trial the jury found defendant guilty on four counts, and not guilty on nineteen. The trial judge sentenced defendant to five years' imprisonment and to pay a fine of $5,000 on one count, while on each of the other three counts he gave a like term of imprisonment, to run concurrently, and a $1 fine remitted in each case. On this appeal, defendant claims error in the conduct of the trial, but once again attacks the constitutionality of the governing statute.

This statute, 18 U.S.C. § 1461, originally passed as § 148 of the act of June 8, 1872, 17 Stat. 302, revising, consolidating, and amending the statutes relating to the Post Office Department, and thence derived from Rev.Stat. § 3893, herein declares unmailable "[e]very obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character,"1 and makes the knowing deposit for mailing of such unmailable matter subject to a fine of not more than $5,000 or imprisonment of not more than five years, or both. In United States v. Rebhuhn, 2 Cir., 109 F.2d 512, 514, certiorari denied Rebhuhn v. United States, 310 U.S. 629, 60 S.Ct. 976, 84 L.Ed. 1399, Judge Learned Hand, in dealing with a claim of unconstitutionality, pointed out that it had been overruled in Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606, "and many indictments have since been found, and many persons tried and convicted. * * * If the question is to be reopened the Supreme Court must open it." Since that decision many more cases have acknowledged the constitutionality of the statute, so much so that we feel it is not the part of responsible judicial administration for an inferior court such as ours, whatever our personal opinions, to initiate a new and uncharted course of overturn of a statute thus long regarded of vital social importance and a public policy of wide general support. It is easy, in matters touching the arts, to condescend to the poor troubled enforcement officials; but so to do will not carry us measurably nearer a permanent and generally acceptable solution of a continuing social problem.

Against this background we are impressed by the decision this year of a great court in Brown v. Kingsley Books, Inc., 1 N.Y.2d 177, 151 N.Y.S.2d 639, 641, 642, 134 N.E.2d 461, 463, where, accepting general constitutionality of such legislation, the decision breaks new ground in upholding authorization of preventive relief by way of injunction at the suit of a public officer.2 In his opinion, Judge Fuld summarizes the controlling law thus: "That clearly drawn regulatory legislation to protect the public from the evils inherent in the dissemination of obscene matter, at least by the application of criminal sanctions, is not barred by the free speech guarantees of the First Amendment, has been recognized both by this court [citing cases] and by the United States Supreme Court [citing cases]." Among cases from New York which he cites is People v. Doubleday & Co., 297 N.Y. 687, 77 N.E.2d 6, affirmed by an equally divided court, 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398, while among the cases in the United States Supreme Court upon which he relies are United States v. Alpers, 338 U.S. 680, 70 S.Ct. 352, 94 L.Ed. 457; Winters v. People of State of New York, 333 U.S. 507, 510, 518, 520, 68 S.Ct. 665, 92 L.Ed. 840; and United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843. He goes on to say: "Imprecise though it be — its `vague subject-matter' being largely `left to the gradual development of general notions about what is decent' (per L. Hand, J., United States v. Kennerley, D.C., 209 F. 119, 121) — the concept of obscenity has heretofore been accepted as an adequate standard." In the case last cited, Judge Hand asked [209 F. 121], "* * * should not the word `obscene' be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now?" and continued: "If letters must, like other kinds of conduct, be subject to the social sense of what is right, it would seem that a jury should in each case establish the standard much as they do in cases of negligence." In quoting this with approval, the Ninth Circuit has recently said: "We think Judge Learned Hand was in the best of his famous form in his happy use of words." Besig v. United States, 9 Cir., 208 F.2d 142, 147.

So this important social problem, which has come down to us from English law and which has led to statutes of a generally similar nature in almost all of the other jurisdictions in this country, see Brown v. Kingsley Books, Inc., supra, 1 N.Y.2d 177, 151 N.Y.S.2d 639, 134 N.E.2d 461; Note, 22 U. of Chi.L.Rev. 216, has resulted in a general judicial unanimity in supporting such prosecutions. There is a considerable body of additional precedents beyond those cited above, both in the Supreme Court of the United States and in other federal jurisdictions, of which various examples are given in the footnote.3 It will not do to distinguish these cases as dicta or suggest that they have not considered modern problems. They are too many and too much of a piece to allow an intermediate court to make an inference of doubt in the circumstances. We can understand all the difficulties of censorship of great literature, and indeed the various foolish excesses involved in the banning of notable books, without feeling justified in casting doubt upon all criminal prosecutions, both state and federal, of commercialized obscenity. A serious problem does arise when real literature is censored; but in this case no such issues should arise, since the record shows only salable pornography. But even if we had more freedom to follow an impulse to strike down such legislation in the premises, we should need to pause because of our own lack of knowledge of the social bearing of this problem, or consequences of such an act;4 and we are hardly justified in rejecting out of hand the strongly held views of those with competence in the premises as to the very direct connection of this traffic with the development of juvenile delinquency.5 We conclude, therefore, that the attack on constitutionality of this statute must here fail.

Defendant, however, takes special exception to the judge's treatment in his charge of the word "filthy," asserting that he opposed this term to the other parts of the statute, so as to render the statute vague and indefinite. What the judge said was this: "`Filthy' as used here must also relate to sexual matters. It is distinguishable from the term `obscene,' which tends to promote lust and impure thoughts. `Filthy' pertains to that sort of treatment of sexual matters in such a vulgar and indecent way, so that it tends to arouse a feeling of disgust and revulsion." But this seems to us in line with long-standing judicial definitions of the term. The words "and every filthy" were inserted in the statute at the time of the enactment of the Penal Code in 1909. And in United States v. Limehouse, supra, 285 U.S. 424, 426, 52 S.Ct. 412, in 1932, Mr. Justice Brandeis for the Court pointed out the obvious intent to add "a new class of unmailable matter — the filthy." As he definitely pointed out, this plainly covered sexual matters; and the Court, so he said, had no occasion to consider whether filthy matter of a different character also fell within the prohibition. We do not see how this case can be read other than as support for the interpretation made by the court below and for the validity of the Act as interpreted. Moreover, earlier it had been ruled by the Sixth Circuit in Tyomies Pub. Co. v. United States, 6 Cir., 211 F. 385, 390, in 1914, that the trial judge properly submitted the issue to the jury as to whether or not a picture was filthy with the explanation: "`By the term "filthy" is meant what it commonly or ordinarily signifies; that which is nasty, dirty, vulgar, indecent, offensive to the moral sense, morally depraving and debasing.'" This is in substance what Judge Cashin charged here. See also United States v. Davidson, D.C.N.D.N.Y., 244 F. 523, 534, 535; Sunshine Book Co. v. Summerfield, D.C. D.C., 128 F.Supp. 564.

Hence, having in mind Judge Hand's admonition in United States v. Kennerley, supra, D.C.S.D.N.Y., 209 F. 119, 121, that the jury must finally apply the standard thus indicated, we think there was nothing objectionable in the judge's instructions to the jury. Certainly, against this background, "filthy" is as clear and as easily understandable by the jury6 as the terms "obscene" and "lewd" already committed to its care. Possibly some different nuances might have been given the term — though we are not sure what, nor are we given suggestions — but we cannot believe that the jury would have been helped. Nor did the defendant at the time find anything to question in the charge; his counsel, after the judge had granted all the specific additional requests he made, said that the judge had "fairly covered everything." Now he is not in a position to press this objection. Here we have more than a waiver by failure to object. We have in fact an instance of submission of issues to the jury on more than a single ground which might have been separated had the parties so desired. Since no request for separate verdicts or for withdrawal of this issue from the jury was made, the conviction must stand as supported by the clear evidence of obscenity. United States v. Mascuch, 2 Cir., 111 F. 2d 602, certiorari denied Mascuch v. United States, 311 U.S. 650, 61 S.Ct. 14, 85 L.Ed. 416; United States v. Smith, 2 Cir., 112 F.2d 83, 86; United States v. Goldstein, 2 Cir., 168 F.2d 666, 672; Claassen v. United States, 142 U.S. 140, 147, 12 S.Ct. 169, 35 L.Ed. 966; Stevens v. United States, 6 Cir., 206 F.2d 64, 66; Todorow v. United States, 9 Cir., 173 F. 2d 439, 445, certiorari denied 337 U.S. 925, 69 S.Ct. 1169, 93 L.Ed. 1733; United States v. Myers, D.C.N.D.Cal., 131 F. Supp. 525, 528. On either ground, therefore, this assignment of error must fail.

Our conclusion here settles the substantial issues on this appeal. As we have indicated, if the statute is to be upheld at all it must apply to a case of this kind where defendant is an old hand at publishing and surreptitiously mailing to those induced to order them such lurid pictures and material as he can find profitable. There was ample evidence for the jury, and the defendant had an unusual trial in that the judge allowed him to produce experts, including a psychologist who stated that he would find nothing obscene at the present time. Also various modern novels were submitted to the jury for the sake of comparison. Very likely the jury's moderate verdict on only a few of the many counts submitted by the government and supported by the testimony of those who had been led to send their orders through the mail was because of this wide scope given the defense. As the judge pointed out in imposing sentence, defendant has been convicted several times before under both state and federal law. Indeed this case and our discussions somewhat duplicate his earlier appearance in Roth v. Goldman, 2 Cir., 172 F.2d 788, certiorari denied 337 U.S. 938, 69 S.Ct. 1514, 93 L. Ed. 1743.

Defendant claims error in entrapment because his advertisements were answered by government representatives. But this method of obtaining evidence was specifically approved in Rosen v. United States, supra, 161 U.S. 29, 42, 16 S.Ct. 434, 438, 480, and has been usual at least ever since. Ackley v. United States, 8 Cir., 200 F. 217, 222. In no event was there any improper entrapment. See United States v. Masciale, 2 Cir., 236 F.2d 601. The government's summation in the case was within the scope of the evidence, and the court's charge was concise and correct. But one other matter needs to engage our attention. That was the defendant's claim of error in that the court charged with respect to the statute as it was at the time of the offenses, although it had been amended on June 28, 1955, or before the trial. But this amendment was designed to stiffen the Act and arose because in Alpers v. United States, 9 Cir., 175 F.2d 137, a conviction for mailing obscene phonograph records was reversed on the ground that such records were not clearly embodied in the statutory language quoted above. Although this decision was reversed and the conviction reinstated in United States v. Alpers, supra, 338 U.S. 680, 70 S.Ct. 352, the Congress was so anxious that there be no loophole that it enacted an amendment making unmailable now "[e]very obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance."7 It would seem clear, therefore, that defendant has no ground of complaint because he was tried under the statute existing at the time of his offense; and in no event could he have been harmed.

Judgment affirmed.

FRANK, Circuit Judge (concurring).

The reference in Judge Clark's opinion to juvenile delinquency might lead the casual reader to suppose that, under the statute, the test of what constitutes obscenity is its effect on minors, and that the defendant, Roth, has been convicted for mailing obscene writings to (or for sale to) children. This court, however, in United States v. Levine, 2 Cir., 83 F.2d 156, has held that the correct test is the effect on the sexual thoughts and desires, not of the "young" or "immature," but of average, normal, adult persons. The trial judge here so instructed the jury.1

On the basis of that test, the jury could reasonably have found, beyond a reasonable doubt, that many of the books, periodicals, pamphlets and pictures which defendant mailed were obscene. Accordingly, I concur.2

I do so although I have much difficulty in reconciling the validity of that statute with opinions of the Supreme Court, uttered within the past twenty-five years,3 relative to the First Amendment as applied to other kinds of legislation. The doctrine expressed in those opinions, as I understand it, may be summarized briefly as follows: Any statute authorizing governmental interference (whether by "prior restraint" or punishment) with free speech or free press runs counter to the First Amendment, except when the government can show that the statute strikes at words which are likely to incite to a breach of the peace,4 or with sufficient probability tend either to the overthrow of the government by illegal means or to some other overt anti-social conduct.5

The troublesome aspect of the federal obscenity statute — as I shall try to explain in the Appendix to this opinion — is that (a) no one can now show that, with any reasonable probability obscene publications tend to have any effects on the behavior of normal, average adults, and (b) that under that statute, as judicially interpreted, punishment is apparently inflicted for provoking, in such adults, undesirable sexual thoughts, feelings, or desires — not overt dangerous or anti-social conduct, either actual or probable.

Often the discussion of First Amendment exceptions has been couched in terms of a "`clear and present danger'". However, the meaning of that phrase has been somewhat watered down by Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 865, 95 L.Ed. 1137. The test now involves probability: "`In each case (courts) must ask'", said Chief Justice Vinson in Dennis, "`whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.'" It has been suggested that the test now is this: "The more serious and threatened the evil, the lower the required degree of probability."6 It would seem to follow that the less clear the danger, the more imminent must it be. At any rate, it would seem that (1) the danger or evil must be clear (i. e., identifiable) and substantial, and (2) that, since the statute renders words punishable, it is invalid unless those words tend, with a fairly high degree of probability, to incite to overt conduct which is obviously harmful. For, under the First Amendment, lawless or anti-social "acts are the main thing. Speech is not punishable for its own sake, but only because of its connection with those * * * acts * * * But more than a remote connection is necessary * * *"7 See, e. g., American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 398, 70 S. Ct. 674, 683, 94 L.Ed. 925, as to "the right of the public to be protected from evils of conduct, even though the First Amendment rights of persons or groups are thereby in some manner infringed". (Emphasis added.)

As I read the Supreme Court's opinions, the government, in defending the constitutionality of a statute which curbs free expression, may not rely on the usual "presumption of validity." No matter how one may articulate the reasoning, it is now accepted doctrine that, when legislation affects free speech or free press, the government must show that the legislation comes within one of the exceptions described above. See, e. g., Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 96 L.Ed. 1098. Moreover, when legislation affects free expression, the void-for-vagueness doctrine has a peculiar importance; and the obscenity statute is exquisitely vague. (See the Appendix, point 9.)

True, the Supreme Court has said several times that the federal obscenity statute (or any such state statute) is constitutional. But the Court has not directly so decided; it has done so sub silentio in applying the federal statute, or has referred to the constitutionality of such legislation in dicta. The Court has not thoroughly canvassed the problem in any opinion, nor applied to it the doctrine (summarized above) concerning the First Amendment which the Court has evolved in recent years. I base that statement on the following analysis of the cases:

In Ex parte Jackson, 1877, 96 U.S. 727, 24 L.Ed. 877, the Court held valid a statute relating to the mailing of letters, or circulars, concerning lotteries. Such letters or circulars might well induce the addressees to engage in the overt conduct of engaging in lotteries. The Court, only in passing, referred to the obscenity statute and said it, too, was valid.

In Rosen v. United States, 1896, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606, the issue was solely the sufficiency of an indictment under the obscenity statute, not the validity of that legislation, and the Court did not discuss its validity.

In Swearingen v. United States, 1896, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765, the Court reversed a conviction under the obscenity statute; it did not consider its constitutionality.

Dunlop v. United States, 1896, 165 U.S. 486, at page 501, 17 S.Ct. 375, at page 380, 41 L.Ed. 799, did not discuss the constitutionality of the statute; moreover, the opinion shows that it dealt with advertisements soliciting improper sexual relations, i. e., with probable conduct, not with mere thoughts or desires.

In Public Clearing House v. Coyne, 1904, 194 U.S. 497, at page 508, 24 S.Ct. 789, at page 793, 48 L.Ed. 1092, which did not involve the validity of the obscenity Act, the Court said in passing that its constitutionality "has never been attacked."

In United States v. Limehouse, 1932, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843, the Court decided the correct interpretation of the word "filthy" in the statute, and did not consider t