*1 DAY, ENTERPRISES, INC., MANUAL et al. v. GENERAL. POSTMASTER February 26-27, Argued 1962. No. 123.
Decided June *2 argued M. Dietz Stanley petitioners. the cause for Lynch. him on With the brief was J. Edioard argued J. William Doolittle respondent. the cause for Cox, him on With the briefs were Solicitor General Orrick, Attorney Laughlin, Assistant General John G. Jr. L. and David Rose. announced the judgment of the Harlan Justice
Mr. Court and an in opinion which Mr. Justice Stewart joins.
This case draws in question a ruling the Post Office Department, sustained both by the District Court and the Court of Appeals, App. S. D. U. C. F. 2d 455, barring from the mails a shipment of petitioners’ magazines. That ruling was based on alternative deter- magazines minations (1) were themselves “obscene,’’ (2) and gave information as to where obscene obtained, matter rendering could be thus nonmail- them separate provisions able under two of 18 C. § U. S.
known as the Comstock Act.1 (368 Certiorari granted was provides Section 1461 part: of U. S. C. in
“Every obscene, lewd, lascivious, filthy indecent, article, or vile matter, thing, device, substance; or and—
“Every printed card, letter, written or circular, book, pamphlet, advertisement, any giving information, directly or notice of kind or indirectly, where, how, whom, or or or what means incon- ruling that this the claim 809) to consider
S.U. and interpretation application the proper sistent with of this established two principles with and States, 354 S. Roth v. United decisions. prior Court’s California, 361 147.2 476; U. S. Smith v. engaged corporations respectively are
Petitioners three magazines MANual, Trim, titled publishing They offices the same Grecian Guild Pictorial. have at Washington, C., president, D. and a common address largely The magazines one Herman L. Womack. consist near-nude, male photographs nude, models model give photographer, names of each and the matters, articles, things such mentioned be obtained or *3 made .... convej’ed be
“Is declared to nonmailable matter and shall not be any post by any in the or delivered from officeor letter carrier. mails mailing, knowingly carriage mails in the “Whoever for the uses delivery by mails, anything or be non- declared this section to knowingly by according mailable, to be or causes delivered mail thereon, place it is to be direction or at at which directed by person addressed, knowingly it is or takes delivered to whom any thing purpose circulating such mails for the or dis- disposition thereof, posing aiding thereof, or of in the circulation or $5,000 imprisoned more not five shall fined not than more than years . . . .” case, petitioners’ Because of our view of we need reach that, applied instance, third contention as this these Post Office procedures “prior amounted to an unconstitutional restraint” on publication magazines. petitioner of these in this has not case questioned Department’s general authority the Post under Office magazines they these from the mails 1461to withhold are obscene. if opinion question, If that in the of Mr. discussed Brennan, Justice post, p. open Court, still be deemed this see Milwaukee Publishing Burleson, J., (Brandéis, 421-422 Co. v. 255 U. S. Hannegan Esquire, Inc., dissenting); cf. v. 327 U. S. we do not argument except upon think be decided full-dress and brief should ing, not been us which have afforded here.
together They address of the latter. also con- with the independent photog- tain a by number advertisements offering raphers photographs nudist for sale. March six 25, 1960, parcels containing aggregate
On an copies of the three from Alex- magazines, destined andria, Virginia, Chicago, were detained Illinois, postmaster, Alexandria pending ruling by superiors his at Washington magazines as to whether the were “non- mailable.” After an evidentiary hearing before the Judicial Officer of the Post Department Office there ensued the administrative and court decisions now under review.
I. On the issue of obscenity, distinguished as from unlaw- ful advertising, the case comes to us with the following findings, administrative which are supported by substan- tial evidence and which we, and parties, indeed the for the part, most themselves, (1) accept: magazines are not, asserted petitioners, physical “body- culture or building” publications, but are composed if primarily, not exclusively, for homosexuals, and literary, have no scientific other merit;3 (2) they would appeal “prurient interest” of such sexual but would not deviates, have for sexually interest normal individuals; and (3) the magazines are read entirely by almost homo- *4 sexuals, and possibly a few adolescent males; ordinary the male adult would not normally buy them. premises, question
On these the maga- whether these zines “obscene,” are as it was argued decided below and us, before was thought depend to on solely a determina- 3The Judicial publisher Officer found that “the has admitted that magazines the knowingly published are appeal to to the male homo group,” publisher sexual and that “The of the issues here involved has deliberately planned publications they these so appeal that would the male homosexual audience . . . .” of which their terms “audience”
tion as to the relevant This view judged. should be appeal “prurient interest” the belief evidently stemmed obscenity issue of the 489, this States, S. 354 U. in Roth v. United that single determin- test following established the Court “whether is obscene: material ing challenged whether community contemporary person, applying average material taken of the theme the dominant standards, (Footnote interest.” prurient appeals as a whole rejecting Appeals, omitted.) basis the Court On this “prurient interest” that petitioners’ contention in terms magazines judged should be appeal of the though even “average person,” on the likely impact their held magazines, of the likely recipient not a on the impact their finding respecting administrative sufficed to establish Govern- “average homosexual” obscenity. ment’s as to their case thought thus below question do not reach the We find case. For we dispositive aspect on this which, than magazines an no less lacking these element “prurient interest,” is essential to a valid determination Post and to which neither the obscenity under § Appeals nor Court of addressed Department Office magazines at so offen- itself all: These cannot be deemed community to affront stand- sive on their face as current decency refer to quality ards of that we shall hereafter —a “indecency.” “patent Lacking offensiveness” or quality, magazines legally cannot be deemed “obscene,” question and we need not consider “prurient “audience” which their proper interest” appeal judged. should be 1461, “obscene, lewd, lascivious,
The words of inde- cent, filthy vile,” something connote portrayed ain so as to make unacceptable manner offensive under community current mores. While in usage common *5 words have different shades of meaning,4 the statute since inception always its has been taken as aimed at obnox- iously debasing portrayals Although of sex.5 the statute such irrespective condemns material effect 4The words of the statute are defined in Webster’s New Inter Dictionary (unabridged, ed., 1956) national 2d follows: obscene taste; foul;
“1. loathsome; Offensive disgusting. chastity expressing “2. a or modesty; Offensive of mind presenting something delicacy, purity, mind or view decency exposed; lewd; indecent; as, language, forbid to be dances, images.”
lewd Lustful; libidinous; lascivious; “4. unchaste ....
—“Syn. Licentious, lecherous, sensual; dissolute, debauched, im- pure; obscene, salacious, pornographic.”
lascivious Wanton; lewd;
“1. lustful. —“Syn. Licentious, lecherous, libidinous, salacious.” indecent decent; specif.: unseemly;
“Not Unbecoming . indecorous . . . — “Syn. Immodest, impure; gross, obscene.” filthy
“1. filth, moral; nasty; Defiled with disgust- whether material or ingly dirty; polluting; foul; impure; obscene.
—“Syn. Squalid, unclean, gross, licentious.” vile sin; Morally “2. contaminated; morally befouled or as if impure; wicked; evil; base or sinful .... unclean; filthy;
“3. . repulsive; . . odious .... — “Syn. Cheap (despicable), debased; depraved; corrupt, sordid, vicious; disgusting, loathsome, foul.” To the same effect see Web- Dictionary (unabridged, 1961). ster’s New International 3d ed. obscenity bearing The first federal statute on was the Tariff Act importation pic- of 1842 which forbade the obscene” “indecent and *6 484 early case falls, the hands it into whose those upon
have Bennett, 14571), (No. 1093 24 Fed. Cas. States v. United language: the stat- statutory limiting gloss upon the a put expressed as now which, material only indecent reaches ute States, a whole as supra, 489, at “taken in Roth v. United element, “effect” interest.” This prurient to appeals language from that in different originally cast somewhat into fed- 489), was taken of Roth (see atS., 354 U. Regina leading English case law the obscenity eral v. Hicklin, [1868] L. R. 3 Q. B. 360, which a distin- following illumi- judge given has the guished Australian nating analysis: as the word as one reflects that
“As soon ‘obscene/ nothing to do with ordinary English word, an has people, and that corrupting depraving susceptible things offensive it is used to describe which are decency things and not which current standards I plain, thoughts, induce to sinful becomes . R. Hicklin . . J., in think, Cockburn, C. ... v. In torial authorized confiscation. 5 Stat. 566-567. 1865 matter and Congress touching mailing passed the the first Postal Act on the making deposit . . matter, it a crime to an “obscene book . obscene vulgar publication or other of a and indecent in the mails. character” 13 the in Stat. 507. The reenactment of 1865 Act the codification change adjectives describing postal not laws 1872 did several objectionable Act, matter. Stat. 302. The Comstock Stat. descriptive added the terms “lewd” and “lascivious” so that any “obscene, lewd, proscription . . . then or lascivious book included publication character,” or other of an indecent but this Court States, Swearingen 446, 450, that the v. United 161 U. S. held words single “obscene, offense. In lewd or lascivious” described filthy” phrase every “and as well the word “vile” were included Act, provisions of the Comstock 35 Stat. 1129. In 1955 words arranged present were in their order. 69 Stat. 183. The Court of “indecent, filthy Appeals for the First Circuit noted words “obscene, meaning by preceding in their words vile” are limited lewd, lascivious,” and that to matters of sex. all have reference Eagle Publications, States, Flying Inc. United F. v. 2d logical was not propounding definition of the word ‘obscene,’ merely explaining but was that particular necessary characteristic which was bring an obscene publication relating within the law obscene libel. [6] tendency deprave characteristic which makes a publication obscene but is the characteristic which makes an publi cation criminal. It is at an once essential element in the crime and the justification for the interven *7 tion of the common law. itBut is not the whole and sole test of what constitutes an obscene libel. There is no obscene libel published unless what is is both according offensive to decency current standards of and calculated or likely to have the effect described in R. v. Hicklin . . . .”7 Regina v. Close, [1948] L. Vict. R. 463, Judgment of J. Fullagar, (Emphasis in original.) thoughtful
The of studies the American Law Institute reflect the same twofold concept obscenity. of Its earlier draft of a Model Penal Code contains the follow- ing definition of thing “obscene”: “A is if, obscene considered as a whole, predominant its appeal is to English “Obscene usage libel” in simply material, means obscene being derived libellus, from John-Stevas, “little book.” See St. Obscenity Law, and the 24. passage The Regina referred to in following: v. Hicklin was the “I obscenity think the test of this, tendency is whether the of the matter charged obscenity deprave corrupt is to and those whose minds are open influences, to such immoral publication and into whose hands of Now, regard this sort work, fall. with quite to this is it intended to sex, impure and libidinous certain “sexual legal quotations even definition of “obscene.” thoughts” test, signify it persons would our character.” suggest approval Regina but more advanced only to the minds v. Close and the Hicklin [1868] either the emphasize L. years, thoughts 3It. “tendency Q. B., young two elements case at 371. of a most deprave” of either are not substantially beyond it goes . if . . and interest prurient representa- description or customary limits of candor Code, Model Penal I., L.A. matters.” such tion (Emphasis (2). 207.10 (1957), § No. 6 Draft Tent. currently proposed organization’s same added.) The as a considered if, is “Material reads: definition . . . interest prurient is to whole, predominant appeal its customary substantially beyond goes if in addition such mat- representing describing or limits candor in Proposed Official Code, Penal I., A. L. Model ters.” added.) (Emphasis (1). § 251.4 (May 4, 1962), Draft requires statute thus federal Obscenity under offensiveness; (1) patent elements: proof of two distinct conjoin must Both appeal. interest” (2) “prurient under can found “obscene” challenged material be before- ele- the two cases, sure, In obscenity most is offensive patently for that which coalesce, ments tend to “prurient inter- carry requisite usually will also where, as only is in the instance appeal. est” It unusual here, “prurient appeal interest” of the material persons found that occasion particular limited to class *8 truly inquiry question arises into the independent is patently whether or not material offensive. the considering The in Appeals Court of was mistaken Roth made of “prurient appeal interest” the sole test obscenity.9 Reading dispensing that case as with the by Institute, part approved This the definition the of was “Proposed meeting Washington, C.,D. Draft,” Official at its annual in May 1962. 9It is also evident the Officer of the Office Judicial Post Department and its view of counsel entertained same mistaken Report Roth. The did itself of Judicial Officer not address directly indecency magazines, except aspect inherent to tangentially findings extent that such factor was involved already 481). expert (supra, p. summarized is true of the same government testimony adduced counsel at the administrative hearing.
requisite patently portrayal of would be not offensive only §with 1461 and common-law inconsistent its back- keeping ground, purpose but out with Roth’s evident to tighten obscenity standards. The Court there both rejected excerpt” “particularly suscep- “isolated persons” case, tible tests of the Hicklin S., at 488- U. pains and was to point at out that not all portrayals of sex could be reached by obscenity only laws but those treating subject “in a pru- manner appealing rient interest.” atS., That, course, but a compendious way embracing obscenity standard both concept of patent offensiveness, mani- fested the terms itself, §of 1461 and the element of the likely corruptive effect the challenged material, brought Regina into federal law via v. Hicklin.
To consider that the “obscenity” exception in “the area constitutionally protected Roth, speech press,” at require does not any determination as to patent offensiveness vel non of the material itself might put well public American in jeopardy of being denied access to many worthwhile works in literature, science, or art. For one would not have travel far even among the acknowledged masterpieces in any of these fields to find works whose “dominant theme” might, not rea- beyond son, be claimed to appeal “prurient interest” of the reader or observer. We decline attribute to Congress any such quixotic and deadening purpose as would bar from the all mails material, not patently offensive, which stimulates impure relating desires to sex. Indeed such a § construction of 1461 would doubtless encounter
constitutional Roth, barriers. at 487-489. Consequently we power consider the by Congress exercised in enacting 1461 as no more embracing than the interdiction *9 “obscenity” as it had theretofore been understood. It is only material indecency whose is self-demonstrating and standpoint which, of its effect, may be said 488 interest prurient
predominantly appeal of the force the mails bar from has chosen to Congress § dispositive what we consider come then
We magazines Are these of case. phase on this question be question this face? Whether on their offensive Lock- law, fact and see of mixed one of deemed fact Develop Obscenity: The Censorship of McClure, hart and 5, 114r- L. Rev. Standards, Minn. 45 ing Constitutional for remanding the case (1960), we see no need 115 or the Department by the Post Office initial consideration missing in their determina factor Appeals this Court of involving entangled matters issue, factual tions. That Press, Inc., v. Christen claim, Grove a constitutional see ultimately this Court. berry, 436, F. 2d one for being us, we determine The relevant materials before issue for ourselves. “community” first
There must be decided the relevant the issue must be decency terms of whose standards federal proper think that the test under this judged. We reaching as statute, parts it does to all States United cul- many whose different ethnic and population reflects backgrounds, decency. tural is national standard of We Congress constitutionally need not decide whether could prescribe geographical a lesser framework for this judging issue10 which would not have consequence the intolerable denying country some sections of the access to mate- rial, acceptable, might there deemed which others prevailing community considered offensive standards decency. Michigan, Butler v. Cf. U. S. '380. regards judging As the standard the element of “indecency,” gives guidance the Roth case beyond little The 1958 amendments S. C. Stat. author place delivery izing prosecution purpose at criminal evince no to make the less than national. .standard
489 indicating that is the standard which, constitutional one “prurient as with interest,” requires taking challenged Roth, material “as a whole.” Being at 489. ultimately only concerned with question whether the First and Fourteenth protect Amendments material that admittedly obscene,11the Court there had no occasion to explore application of a particular obscenity standard. important At least one state court and some authoritative commentators have considered Roth and subsequent cases12to indicate only “hard-core” can pornography constitutionally be reached under this similar state obscenity statutes. People See v. Richmond County News, Inc., N. Y. 2d 578, 175 681; N. 2dE. Lockhart and McClure, supra, at 58-60. Whether “hard-core” por nography, something proper be the less, test, we need go in no present further case than to hold that magazines in question, taken as a cannot, under whole, any permissible constitutional standard, be deemed beyond the pale of contemporary notions of rudimentary decency.
We cannot accept full the Government’s description magazines these which, contrary (354 to Roth S., U. 488-489), at emphasize tends to some respects overdraw certain features in several of the photographs, expense at the fairly of what magazines taken aas depict.13 whole independent Our own examination of presented Roth obscenity No issue was S., materials involved. 354 n. at 8. cited, infra, See p. cases magazines ‘'The contained material, pictures little textual with male dominating every models page almost typical The page .... consisted of photograph, with the name of the model and the photographer and age (usually occasional references to the model’s 26), eyes, under physical color of occupation. dimensions and magazines little, contained either in pictures, text or that could be the most magazines us to conclude leads unpleasant, dismally they are them is that
can be said of make enough is not tawdry. But this uncouth, interest” “prurient from their them “obscene.” Divorced *11 they patronage persons whose to the unfortunate appeal por- separate issue), these (a capturing aimed at were as fairly regarded be trayals of the male nude cannot female the many portrayals of than objectionable more every portrayal not Of course society nude tolerates. v. Parmelee nudity is obscene. See male or female of 2d 206-208, 113 F. States, D. App. C. United Summerfield, S. v. 355 U. 732-734; Book Co. Sunshine States, we v. 180. Were to 372; Mounce United S. they do not transcend magazines, although hold that these decency, be denied access to of prevailing bounds legislation as that mails undifferentiated such ignoring admonition that “the before we would be us, . . . into this area First cannot door [the Amendment] opened ajar; kept tightly it must be closed and be left way weight lifting, building relating to muscle as considered physical culture or .... models, usually posed
"Many photographs of the were of nude male ; object genitals . . . a number were of with in front of their some partially emphasis but- nude nude males with on their bare directly Although pictures exposed tocks .... none of suggested genitals, pubic his hair and others model’s some showed ; penis . appeared what . . others showed male semi-erect well) (and reclining legs models with their their arms as sometimes Many spread apart pictures wide showed models wear- .... of ; ing only cloths, gowns,’ posing straps ‘V . . showed loin . some maga- apparently removing clothing .... Two of the model his pictures pairs posed together suggestively zines had models magazines photographs "Each of the contained with models objects long pointed magazines swords or other .... also con- virtually wearing only boots, photographs shoes, tained nude models pictures jackets or leather There were also helmets .... models posed beating with chains or of one model another while a third held weeping . his in his hands as if . . .” face only necessary slightest prevent crack encroach- upon important (footnote omitted). ment more interests” Roth, at 488.14
We conclude that the ruling respecting administrative nonmailability improvident insofar as depends on magazines determination are these obscene.
I—< question advertising. There remains the It is petitioners contended that held themselves o.ut purveyors material, or that the advertise- ments, as distinguished from the other contents of the magazines, were obscene on their own account. The advertisements were all independent third-party pho- tographers. with And, respect neither advertise- magazines ments nor the do themselves, we understand the Government suggest that the “advertising” provi- *12 sions of 1461 if § are violated mailed merely material “gives promises the leer that the customer some obscene pictures.” Hornick, United States v. 229 F. 2d 121. 120, an approach Such to the statute could not withstand the underlying of Roth. precepts Christenberry, v. See Poss Supp. 411, Schillaci, 179 F. 415; cf. United v. States 166 F. 303, Supp. 306. claim on this branch of the case then, rests, on the fact that some third-party adver- tisers in possession were found of undoubtedly what regarded be as photographs,15 “hard-core” and postal that sought Congress only Since has bar to from the mails material “obscene, lewd, that lascivious, indecent, filthy vile,” it is statutory within this judge framework that we must the materials us, before we need magazines not consider whether these could con stitutionally narrowly be reached under “a statute drawn to define punish specific constituting present conduct as a clear and dan ger.” Connecticut, Cantwell v. 310 U. S. 15A photographs number police, possess of such were seized ing warrants, knowledge search arrest but that these advertisers selling, sell, photographs were or would brought such -wasnever home any petitioners. to of these of the adver- obtaining names although
officials, not received magazines, in petitioners’ the lists tisers from through mails material offensive somewhat less in advertising petitioners’ were studios which certain magazines. with. Should be dealt must first of law question
A construed §of 1461 be proscription "obscene-advertising” at knew that publisher requiring proof to sell obscene offering were some of his advertisers least provi- although the criminal words, In other material? supra), can the (note 1, scienter require do sions under that in Department proceedings civil Office Post are We proof? a burden escape with lesser section First, Congress has a answer. negative constrained mailing in indicted required respect scienter of one statute. In the constitutional proscribed material itself, hesi- finds we should climate in which this statute pub- to render Congress purpose tate attribute civilly advertisements for the innocuous responsible lisher showing absence of others, materials of of such materials that he the character knew express authority to the grant And with no offensive. keep matter from the Department Post Office accept slow to (see supra), we should be mails note required proof expressly suggestion an element altogether omitted in an proceeding may a criminal ground proceeding. civil this Court’s parallel Second, indicates California, v. S. decision Smith *13 arise question a constitutional would that substantial requiring proof construe as not were we to power For the of the Post proceedings. scienter civil if magazine mails, a with- Office to bar exercised publisher’s knowledge of the character proof out magazine, included would as of the advertisements a “impose public’s severe limitation on the effectively protected access to constitutionally matter,” S., at 153, as would a obscenity state statute which makes criminal possession of obscene material proof without of scienter. publishers Since cannot practicably be expected investigate to each of their advertisers, and since consequences economic of an barring order even a single issue a periodical from the mails might entail heavy financial sacrifice, magazine a publisher might refrain from accepting advertisements from those whose own materials could conceivably deemed be objectionable Department. the Post Office deprive This such would materials, might which otherwise constitu- be to entitled legitimate tional protection, recognized avenue of access public. to To sure, the Court found it unnecessary in scope Smith delineate the of scienter which would satisfy the Fourteenth Amendment. Yet it may safely be said which, federal statute as we it, requires presence construe element is not as the satisfied, suggests might merely Government be, by showing “good that a defendant did make a faith effort” to ascertain the character of his advertiser’s materials.
On these in this case. premises we turn the record Although postal petitioners’ presi officials had informed dent, Womack, Department prosecuting their was sending several his for matter advertisers through mails, of this there no evidence that material was shown to him. He no thus afforded opportunity judge alleged himself as its obscen ity. government Contrariwise, one of the witnesses at hearing the administrative admitted petitioners that the had deleted the advertisements of several photographic being studios after informed the Post Office that proprietors had been convicted of mailing obscene mater *14 postal officials the none of that record reveals The
ial.16 some from matter obscene allegedly who received maga petitioners’ from names their obtained advertisers of inde a result as was received material zines; this can us record before Nor on checks. test pendent by the material seized with the linked petitioners con only asserted such 15, supra. The Note police. studio seized at the matter was “hard core” nection —that of an ade short advertisers —falls petitioners’ of one advertiser that knew showing petitioners that quate own matter. Womack’s sale obscene offering for was through the material sending conviction D. States, App. S. C. v. United mails, Womack on conduct like proof F. 2d remote acting time he advertisers. At part mate studio; the vendee of the of another president magazines, had in petitioners’ an while advertiser rial, pub issues were present his own studio before closed postal one general testimony Finally, lished. experience in his advertisers effect that inspector to the on leading their customers character, after first this with usually up followed material, with borderline hardly of probative can be deemed matter, “hard-core” at hand. significance on the issue proof showed no more than At best the Government’s knowledge that petitioners chargeable were with offering photographs advertisers were the same these as those character, purposes, and with the same reflected know Grecian Guild Pictorial carried notice that “does not ingly nude, undraped use the work of studio which takes sells photographs. photographers or side view listed above front magazine, photographs.” such To be sure this as did do offer others, publisher also carried a notation that was familiar urged support with work of the advertisers reader to them'; knowledge but this cannot well be taken as an admission of the advertisers’ works were obscene.
in magazines. enough their own is satisfy This the Government’s proof burden of on this score.17
In conclusion, nothing in opinion this of course remotely implies approval of type magazines pub- lished petitioners, these still less of the sordid motives which prompted publication. their All we is that decide on particular this record magazines these subject are not repression under § 1461. Reversed.
Mr. Black Justice concurs in the result.
Mr. Justice Frankfurter part took in no the decision of this case.
Mr. Justice White no part took the consideration or decision of this case.
Mr. Brennan, Justice with whom The Chief Justice Douglas and Mr. Justice join, concurring the reversal. I agree that judgment reversed, below must be though for reason my from different Brother Harlan’s.
This is the first occasion on which given the Court has
17We do not appropriate think it would stage at this late proceedings remand the case for further on the issue of scienter. Although suggesting arguable” that that scienter is not “[it] necessary part element under statute, this of the the Government aspect undertakes to defend this judgment primarily on the premise that it was. The record shows that at the administrative hearing government sought petitioners counsel to fasten the with knowledge third-party selling advertisers were “obscene” rejected material. The petitioners’ Judicial pro Officer indeed posed findings publishers “the magazines of each of the . personal evidence . . had no knowledge of the material sold sure, advertisers ....’’ To be the record does not disclose whether this “knowledge” proved because was deemed rather than that such element was not considered relevant. But on the motions cross summary judgment, upon record, based the administrative petitioners’ Government did not undertake to allegations controvert necessary scienter was a part element under this of the statute. hold- order Department to a Post Office plenary review1 obscene. because “nonmailable” matter ing employ magazines, of certain publishers Petitioners, claimed half of their of about mails in the distribution 1960, petitioners March On 25,000. circulation transmission publications for of their copies deposited Virginia, Chi- Alexandria, mail class second acting, appar- postmaster, Alexandria However, the cago. that the on his belief to petitioners, notice ently without “nonmailable” and therefore be obscene magazines might delivery and forwarded withheld §C. under 18 U. S. *16 Depart- Post of the Office the General Counsel samples to petitioners that official notified and 7 April 5 ment. On being withheld magazines were only that not they were nonmail- that opinion delivery because his held since hearing would be no formal able, but also that Shortly was monetary value involved. an insufficient Post 11, 1960, petitioners requested thereafter, April on in the sought relief hearing, injunctive and also Office against this for the District of Columbia District Court Post mailing. day the stoppage of their On the same General Counsel and reversed the Office Judicial Officer Court hearing, and the District ordered a thereafter April pleadings after temporary 21, refused relief. On hearing the Judicial filed, begun had been before April petitioners’ suit was dis- injunction Officer. On further they might missed on condition that seek forthcoming if final administrative action was relief days by April April one month and three On after the Judicial Officer handed down his mailing, holding magazines nonmailable, obscene and opinion way into petitioners’ thus court. opening petitioners complaint filed the May 13, On now before alleging magazines obscene, were not us, that Inc., One, Olesen, v. 355 U. S. and Sunshine Book Co. v. summarily argument. Summerfield, 355 were decided U. S. without respondent’s action in withholding them from the mails was “unlawful . inequitable . . calculated ...
censor and harass plaintiffs a prior ... restraint designed deprive plaintiffs rights their under the First . ,” Amendment . . and requesting temporary and permanent injunctive relief. Petitioners then moved summary alia, judgment, arguing, inter that “the Post Department Office held a time-consuming hearing, product of which was an contrary Order to the estab- lished law of the United States .... This amounts the most censorship. obnoxious and unconstitutional The principal effect hearing ... administrative is to delay action this . . . Plaintiffs Court. assert the Post Office has ex parte conducted an administrative prior treading upon restraint an area of constitutional sensitivity from the apart problems substantive of deter- mining magazines whether or not the . . are obscene. . Further, plaintiffs argue procedure entire civil upon followed Office a criminal Post based statute raises constitutionality.” too, doubts of Respondent, summary judgment. granted moved for His motion was and the complaint dismissed opinion. without Court *17 Appeals affirmed, holding magazines obscene.
In addition to question particular whether the mat- obscene, is ter the Post Office raises ques- order insistent validity tions procedure about of the which whole gave it, rise to orderly vital to the development this body of law and its administration. risk We erosion First Amendment vigilance liberties unless we train our upon whereby the methods is obscenity condemned no upon less than whereby standards it judged. is Warrant, Books, v. 717; Marcus Search 367 S. Kingsley U. Inc., Brown, v. 354 436; California, U. S. see also Smith v. Questions 361 procedural safeguards U. S. 147. loom large in the of an wake order such as the one before us. Among (a) them are: whether Congress can close the
498 prosecution than other any means obscenity by
mails to authorize if it can Congress, (b) whether sender; of its obscenity be deter- that provide can mail, exclusion court, except forum instance first in the mined authorize so Congress if could (c) whether, even and upon has in fact conferred censorship, administrative from the matter any power exclude authorities postal of its obscene character.2 their determination upon mails by these troubled have been judges Lower courts to decide occasion has not had questions,3 but this Court sur- us now.4 It question (c) is before At least them. important issue significance even passes general “mailability.” for this material’s judging of the standards ground this involves dealing with the case on Moreover, in others. difficulty than inheres less constitutional acting is ultra Postmaster General conclusion Congress granted power has which vires not because 2 (c) (a), (b) question, be the if were There would also validity particular procedures affirmatively, of the answered employed. the Post Office has 3 Inc., Christenberry, 488, Press, Supp. 175 See, g., e. Grove v. F. 435; Summerfield, 495, 433, Sunshine Book Co. v. 101 and 276 F. 2d (dissenting 358, 364-367, 114, App. D. 249 F. 2d 120-123 U. S. C. Goldman, supra, opinion), reversed, see n. 1. And cf. Roth v. 172 Olesen, (concurring opinion). Compare v. F. 2d 794-795 Stanard Stanard, (opinion Douglas), S. of Mr. Justice Olesen v. 74 Ct. 768 785; Co., App. F. Book 2d v. Sunshine 95 U. S. Summerfield F. D. C. 2d 42. “complain generally argues petitioners The Government prior restraint,' specifying . ‘an . . without unconstitutional [where] petitioners challenge vice lies . the asserted . . .” Insofar as restraints, constitutionality impose 1461 if read to civil their suit of § requirements convening three-judge court would be within the But under 28 S. C. and therefore that claim is not here. § grounded upon insofar as their attack is a claim that § granting power Office, censorial to the Post be construed *18 apply. does not
he asserts, greatly here while influenced by constitutional doubts, any not require does decision to whether censorship establishment administrative could be con- Hannegan Inc., Esquire, stitutional. v. 146; S.U. Dulles, Kent v. S. 116.5 U.
Mr. Justice Holmes has said: “The United States give up the Post Officewhen it sees but fit, while carries onit use the mails is a part almost as much of free speech as the right to use our and it would take tongues, very strong language to Congress convince me that ever give intended to practically such a despotic power one man.” Publishing Burleson, Milwaukee Co. v. S. (dissenting opinion). 5My question Brother Harlan states that no is raised as to the Department’s general authority
Post Office under 18 U. S. C. 1461 withhold obscene matter from the mails. The Government asserts only that at the petitioners objection administrative level the made no procedure. The suggest Government does not that chal lenge power Post Office’s to act at all had to made before body. challenge administrative presents jurisdictional That question open petitioners and is initially even if not asserted agency proceeding. See United States v. L. A. Truck Tucker Lines, Inc., although perhaps 344 U. S. 38. And artfully, petitioners challenge authority did of the Post Officein the Dis trict Court. In summary judgment their motion petitioners argue stated: procedure that the entire “[P]laintiffs civil followed upon the Post Office based a criminal statute raises doubts of constitutionality. fragile foundation on which the Post Office kept action mind, rests must be dealing both in with the substan obscenity question tive determining proper scope involved and in judicial lacking review. . . . There specific here the kind of legislative direction to agency the administrative in certain justifies judicial circumstances deference to administrative deter Appeals minations.” The Court of issue, per did not discuss the haps because it field, had held Sunshine Book v. Co. Summer supra, questioned authority exists; n. the Government suggest petitioners argument does not failed to make their there. Court, petitioners And in this continue their attack and the Govern ment, fully reservation, against without defends it. *19 amendment enactment or by its Congress,
Whether Code), has Criminal part (a § S. C. 18 U. obscenity, to censor General Postmaster authorized no upon relies The Government question. precise is our constitutionally question- support provision other material. censorship of this of administrative power able every from the declaration inferred power is That and shall matter 1461 is “nonmailable in proscribed item post any mails or delivered conveyed in the not be granting that these Even letter carrier.” by any or office allowing the a construction permit on their face words in a criminal their use power asserts, Office the Post contrast with legislative history, and the statute, their provisions dealing with history of other the words so most doubt problems, raise the serious similar granted by per- power a was so important and sensitive obscenity honey- is functory provision. a The area of guaranties, hazards for First Amendment combed with would be grave questions and the constitutional which be decided grant power of such should not raised are as to ambiguous when the materials so relevant grant whether such exists.
I. briefly § 1461 It origin tag The told.6 was the requests end of bill drawn 1865 to meet Post Office history no There is need to consider here the before which rejection highlighted by by Congress 1836, largely on grounds, request legislation constitutional of President Jackson’s for suppress “incendiary” mail distribution of abolitionist literature. Rogers, Congress (1916); Deutsch, See The Postal Power 'of Freedom (1938). Mails, of the Press and of the 36 Mich. L. Rev. 1865 Senate debates referred to such action the kind for which power Cong. Globe, Cong., should be withheld. 2d 38th Sess. 661 (1865). occasionally allegedly The Post Office seized treasonable changes. administrative first various Its version read:
“That no book, pamphlet, picture, print, obscene publication character, other vulgar of a and indecent shall ; be admitted into the mails of the United States all deposited but such publications *20 or office, mails, received post at discovered shall be and or destroyed, disposed seized otherwise of, as the Postmaster General shall And any direct. or person persons who deposit shall or be cause to deposited in any post office or post branch office of States, United for mailing delivery, for an book, pamphlet, picture, print, or pub- other knowing lication, vulgar same to be of a and indecent shall character, guilty be deemed of a mis- being demeanor, and, duly thereof, shall, convicted every for offense, such be fined not than $500, more or imprisoned more not than one year, both, according to the aggravations circumstances and the offense.” offering
In this proposal, Chairman Collamer of the Sen- ate Office pains Post Committee took point out that it “may be liable to some objection. ... Iam per- haps entirely satisfied with it,” and Senator Reverdy newspapers despite authority. its Rep. lack 51, See R. No. H. Cong., Sess., pp. (1863). 37th 3d only procedure
The against noncriminal authorized obscene material before 1865 proceeding was a imported for material’s forfei- Judicial 566; ture. Stat. see Toys, United States v. Three Cases 28 Fed. 16,499; Anonymous, No. Cas. Fed. Cas. No. 470. For comprehensive history discussion of the practice and censorship in the Post Customs, Office Bureau of Schwartz, see Paul and Censorship: Obscenity (1961), Federal Paul, the Mail Non-Mailability Obscenity: Post Office and Note, An Historical (1961). 8 U. C. L. A. L. Rev. seals, breaking postmasters about concerned
Johnson, suggestion Collamer’s up Chairman immediately took Chairman adopted. provision penal only “might be nonpenal clause Collamer, agreeing give undertaking postmaster] [a a precedent made be as he would mails,” said over the censorship a sort moved then Johnson dropped. Senator if it were happy very establishing a bad would be strike it: “[I]t any- to take authority to postmasters give precedent much acknowledged mail.” He thing out penal pro- uncovered, thought but is sent material However, Senator the evil. to meet sufficient vision observed: Sherman if would be satis- prefer, much the Senator
“I would clause of striking out the second simply with fied, I prohibition against think the the first [sentence]. going into mails of this character publications *21 many are well aware ought to stand. We country from the are sent all over publications these of the parties of New York with the names city the postmasters sending backs, on the so them mail know that it matter opening without improper car- matter, indecent and to be is offensive therefore, legis- I think, mails. .public ried in the such when prohibition against carrying lative matter postmasters it should be left. Prob- is known allowing second clause him to mail ably open struck . . . .” matter should be out acquiesced Johnson and the bill was then passed, Senator reading: picture,
“That no obscene book, pamphlet, print, or vulgar of a publication character, other indecent shall admitted into the ; mails the United States . person persons Cong. . . .” Globe, 38th Cong., 2d Sess. 660-661 (1865); Stat. 507. on are two possible § There constructions this possibility basis of brief Senate discussion. One is breaking seals,7 postmasters that short of could remove they thought matter which from its face or the name of its sender to be obscene. The second construction is that postmasters only could matter but to turn over remove appropriate proposed subject authorities as prosecution a criminal also of course after that —and material had been in a determined, criminal trial its sender, to be Support obscene. for this construc- second tion is found only in the brief 1865 Senate considera- tion itself but also in amending an statute § enacting banning section material with obscene matter on its explicitly face and —unlike provid- 1461— ing that it “shall be withdrawn from mails under such regulations as the Postmaster-General prescribe.” shall
The 1865 Senate discussion is not unambiguous, but I suppose cannot that Senator Johnson —who had already noted his awareness that much obscene material was dis- coverable without breaking seals, so, and even his deter- opposition mined being to its stopped have —would accepted Senator suggestion Sherman’s had he understood it to mean more than that the Post Office could stop obviously questionable matter for the purpose of trans- mitting it prosecuting authorities, stop could matter already held obscene if it were sent again, and could inves- tigate matter by persons sent previously and, convicted if the matter were found violative, could present it to the prosecuting authorities. I believe this correct
7 Congress in undoubtedly against 1865 was any power in the Post (see Office to Cong. break seals Globe, Cong., 38th 2d 660-661), Sess. years and 23 later explicit made this as to first class mail. 25 Stat. 496-497. But prohibition even that was a “out of abundant caution” imply was not any power intended to open mail of other classes. Cong. (1888). See 19 Rec. 8189 8 496, 25 now 18 U. S. C. Stat. 1463. §
504 But at least the 1865 enactment.
construction to avoid the are necessary if we correct, arguably (see Near v. infirmity9 constitutional probable section’s Book Sunshine Summerfield, v. Minnesota, 697; S. 283 U. as construed 42) if 221 F. 2d Co., 169, D. C. App. S. 95 U. exclude Postmaster General allowing the a provision sent viola- previously a who had by person all matter sent not be by attaint could an Such exclusion matter. tive the use of . . . that “hoary dogma by the justified impose on which the Government privilege is a mails since long has chooses, as it that] conditions [for such States, S. 354 U. Roth v. United evaporated.” Inc., 327 Esquire, Hannegan v. (dissenting opinion); 518. Randall, v. U. S. 156; atS., Speiser concerning the removal developments Subsequent contemporaneous nearly a mails reveal matter from the doubts awareness of constitutional for and strong distaste meaning- such reflects judicial censorship, as about non surrounding 1461's enactment. fully ambiguity § on the history throughout 1461’s ambiguity persisted That has In the amendment, reconsideration, and codification. Congress’ handling prob- of related history concurrent lems, grant a has either clear there been each instance as General for matters power or, the Postmaster inextricably Amendment intertwined with the First obscenity, provision for rather than administra- judicial Nothing process. suggest tive is found to that one should ambiguity grant power to find a resolve Publishing Compare Lewis censorship. administrative Morgan, Co. v. U. S. considering
In 1868, provision making it unlawful deposit concerning lotteries, letters circulars House Conferees struck a Senate which proposal would have Publishing Burleson, See Milwaukee Co. v. 407, 423, 255 U. S. (Brandéis, J., dissenting). 429-430
505 mail and from the to remove postmasters authorized' any letters circulars letter offices deposit in dead House Postal Committee thought to concern lotteries. thought that was a explained “We Chairman Farnsworth and there- postmasters, dangerous power upon confer That section provides fore we stricken it out. have . . which deposit the mails . shall be unlawful thought thought we provision. we would be wise But extraordinary this give postmasters it would not wise to suspicion.” Cong. mere power upon to be exercised Opinions of Cong., (1868). 40th 2d 4412 Globe, Sess. advising as to the Attorney postmasters’ General authority lottery emphasized under this provision necessity legislative to warrant explicit authorization removal material from the mails. Those cited opinions examples containing authori- provisions express such zation but, significantly, did include 1461—an important light omission in the of the of the observation Attorney gave General that from the he examples aside provisions permitting there are other a detention of “[i]f letters a postmaster, they escaped my have attention. that, It is at least, affecting believed there are no others the subject present inquiry.” Furthermore, describing the authorizations he did find, Attorney General said: “It will be seen none of authorize these what can properly any suspected be called a ‘seizure’ of letters a postmaster, because, he is not probably, deemed proper functionary to bring to trial and 10 punishment violating postal those laws.”
In 1461 1872, § part amended as of a codification of postal legislation. The amendment proscrip- added a against tion mailing of “any letter upon the envelope of which, or postal card upon which epithets scurrilous Op. Atty. 10 16 (1878); id., Gen. (1868); id., and see 12 (1868). devices disloyal printed, written or have been *24 section 302.11 The . . . 17 Stat. engraved
printed Law was enacted when the Comstock further revised was penal- statute established 598. That in 1873. 17 Stat. obscenity or publishing in any way in or dealing ties federal in areas under an immoral nature any article of mailed of items not to be the list expanded jurisdiction, of procuring aid the matter intended to to include of items. all such importation abortion, and banned Casserly objected floor, to the Senator the bill came When pro- allowing officers to seize provision customs be left to “I do not know whether it can hibited items: safety what to determine with officers the custom-house admitted.” of literature or what sort of matter to be kind bill Cong. Cong., (1873). 1436 Globe, 42d 3d Sess. changed officers accordingly was to authorize customs proceed in a federal simply items, detain the and then them, satis- judge court condemn if the federal were Id., that must they fied be condemned. at 1525. There suggestion is no thought customs officers be were 12 than trustworthy postal officers; less this insistence upon judicial proceedings plainly congressional shows aversion to censorship. administrative hasty
The Comstock bill but' scant consid- received passed, eration.13 As its was language susceptible reading which would fail penalize mailing provision any may There also a material "which be seized or for violation detained of law shall be returned to the owner same, disposed or sender of the or otherwise of as the Postmaster- may direct,” 323, only may General 17 Stat. but that what states may be with detained, ques done material which seized or be and our except tion is whether obscene in the narrow circumstances material — already pp. be Compare seized or detained at all. described— 511-512, infra. id., Casserly’s But see statement, second at which was a misunderstanding of the bill. Paul, supra, See n. at 51-57. literature, only or indecent and reach actual Closing gap
abortifacients. this inadvertent was the sole amendment, of an 19 Stat. which purpose14 made among language changes; them, several the substitution words which the makes Government so much— matter, to be “declared non-mailable shall not [which] conveyed mails, in the nor post- delivered by any office nor cursory letter-carrier” —for more shall be carried the mail.” Moreover, [not] “[which] the 1876 understanding discussion evinces the only obscene materials Post removable Office were those which were to as, already be submitted or which been, subject had a criminal prosecution. The *25 manager of the amendment assured “Nor, sir, the House: give right bill any any does this to to postmaster open or anybody’s to interfere with mail. is anything It like else, you convict, before can offer and you must make proof.” During the debate a different speaker said: jury any “Whenever a in in locality country the shall find a paper that may contains matter which be to devoted purpose a which they indecent, deem immoral —not only but immoral —the jury convict the man who sends manager proposed 14 The bill’s in the House said: bill in “[T]he changes except wise provide penalty no the law it now to a for is By oversight the circulation drafting of obscene literature. an in the original applies only penalty disposition section the of articles purpose procuring prevent circulated or for sold the of abortion or ing conception. Already this spoken obscene class of matter of portion in other prohibited passing through the of the section is from mails, penalty provided. way changes the but no is in ... no [I]t nothing the section as now It it is. makes non-mailable that is not merely provides penalty. Cong. now non-mailable. It a 4 ...” (1876). Rec. 695
“Section [1461] is perfected by the bill so as to provide complete penalty mailing prohibited for the all of kinds of matter therein to pass through Cong. mails.” 4 the Rec. 3656. The did Senate not change. Cong. this 4 discuss See Rec. 4261-4264. mail, and the it man who receives paper the
the from newspaper to exclude that is authorized postmaster word urging that speaker, mail.” A third object “I to warned: do removed, be “scurrilous” I like the committee mails, but would purification giving far in go not to too bill they reconsider this when Congressman feared Another postmasters discretion.” law a make would severity penalties that unwilling would be juries letter, judges because dead debate reflected the tenor of the entire to Thus convict. only criminal application. 1461 had premise administrative suggested No also authorized one Cong. And see censorship. Cong. Rec. 695-696.15 (1879). Rec. prob Discussion the Senate included first reference to the obscenity hardly guide
lem of standards such as to afford —it lines for administrative action: President, prohibiting “Mr. Mr. the transmission MORTON. any through ought great matter there be used mails care ought particularly and it defined. All of that be described and beginning is bill is which described in the first section of this eminently proper being prohibit through the transmitted mails; part vague there is but is a section that I think susceptible prohibits through of abuse. It the transmission the mail ‘every adapted thing article or intended or indecent question may immoral use.’ What an ‘immoral use?’ That defined; subject very opinions. different The word ‘obscene’is well *26 means; every- you prohibit we but can understand what when thing use, is for immoral an there would be wide differences of opinion point. on that
“Mr. The words law CONKLING. same are in the now. “Mr. That I MORTON. be. remember a time when certain newspapers pamphlets prohibited going through and were States, they mails in certain because were held to be of an immoral incendiary character,’ my and seditious character —of ‘an as friend suggests. opinion changed from Ohio Public has [Mr. Sherman] upon point. prohibit But when we come of transmission any mails, through ought to pretty matter we understand what well things many portion are people is. There that a of our would con-
509 Especially significant pointing up purely penal legislative are the application § 1461 events changed An amendment but few months’ duration on postal counterfeiting money law such crimes orders. provision It included a penalizing mailing any upon envelope matter or of which outside cover was indecent, scurrilous, threatening, etc., language.16 The provision promptly was amended the same session because was a suspicion “there that an implied power was given postmasters open letters. Of course there was no such intention, and this bill eliminates that [new] objectionable feature . .” Cong. . . Rec. 8189.17
But even more significantly, the trans- new enactment ferred to a new section, 1463, § 496, 25 Stat. the ban §of which, (19 the 1876 90), version Stat. had reached “every upon letter envelope which, postal upon or which, indecent, card lewd, obscene, or delineations, lascivious epithets, terms, language may or be written or printed”; merely § instead of portions sider immoral that other entirely would consider moral. people might Some pack highly immoral; consider a of cards others might they entirely Many think proper. things were might other Cong. be enumerated.” 4 Rec. 4263. 16“And all envelope matter upon otherwise mailable law wrapper or outside which, postal cover or card, upon which indecent, lewd, lascivious, obscene, libelous, scurrilous, threatening delineations, epithets, terms, reflecting injuriously or language, or upon the another, may character or printed, conduct of be written or hereby are matter, declared to be non-mailable and shall not be con veyed mails, in the any post-office nor delivered from nor letter-carrier; any person knowingly deposit who shall . . . .” 25 Stat. 188. proscription epithets of scurrilous part had been of 1461 as
amended in 17 Stat. but it was removed in when vagueness objected word's breadth and were to. Its reenactment largely process aimed at “blackmailing” for the collection of Cong. 2206, 6734, (1888). debts. 19 Rec. id., But see also at 6733-6734.
510 and was nonmailable was matter
declaring that the listed items that those delivered, provided conveyed not to be regula- under such the mails be withdrawn “shall . . . It prescribe shall tions as the Postmaster-General at the same § that 1461—amended strange, think, I is to also not amended § time as 1463 enacted —was from the withdrawal for explicit provision an include Congress’ authority if withdrawal had been mails, any general did Congress contemplate But intention. dis- obscenity. The House censorship administrative to power expressed agreement that besides cussion most limited no more than the punish, there should be that § mail—-and 1463 states power stop Post Office to focusing limitation; debate, almost and the Senate entirely be, how rein- upon penalties severe should upon postmasters forced the under- restrictions exclusively Cong. that is 19 Rec. penal. lined 1461 See § 7660-7662, 8189. congressional dealing
The last with 1461 which is pertinent again our inquiry occurred when amended, that section was this time bar more abortifa- and “every cients mail letter, package, or other packet, 18 containing matter any filthy, vile, thing.” or indecent Though reports unenlightening, committee are House plain changes discussion makes were intended Swearingen reverse the v. limitations stated United States, 161 applied only U. S. the statute immorality “that form of has which relation to sexual impurity,” and that its words “the meaning had same law in given prosecutions them at common for obscene S., 451; Cong. libel.” at Rec. 995-999, Cong. Rec. 283-284.19 The two brief House discussions suggest that there were members who did believe
1835 Stat. 1129.
Limehouse,
States
See United
v.
II. only is not goes Section 1463 the statute which further than 1461 authorizing censorship. § towards Post Office prohibiting Five other criminal statutes the introduction of various matter into mails either contain within themselves or have counterparts direct in laws postal explicit which contain to authorizations the Postmaster General to remove or In return such matter.20 sharp
20(1) provision against mailing 18 S. C. the criminal § U. face, explicitly empowers matter libelous on its Gen Postmaster regulations governing mails; eral to make its withdrawal (2) lottery 18 U. S. C. 1341 and and criminal mail fraud §§ provisions, matching postal empowering have a section laws General, upon satisfactory him, the Postmaster evidence to to mark “lottery mail sender, “fraudulent” or mail” and return it to its 39 II) (Supp. 4005; (3) making U. S. C. 18 it a crime U. S. C. § § by using address, to conduct a fraudulent scheme a false name or also General, counterpart empowering has a civil section the Postmaster upon identity satisfactory him, require proof evidence or to 4003; II) office, (Supp. send such mail to the dead S. C. letter 39 U. § (4) 1716, making mailing 18 U. S. C. 1715 and of fire criminal the §§ injurious articles, explicitly arms and state that the Postmaster Gen transmission; regulations governing (5) eral make their 18 1717, making mailing advocating U. S. criminal C. of matter § treason, explicitly employees authorized dead letter office to open such mail. 74 Stat. And 7 and See see U. S. C. 150cc § (plant pests); (plants plant prod 33 Stat. 1270 Stat. 38 1113 ucts) ; (foreign agents’ propaganda advocating 22 U. S. C. § republic); compare violent disorder other American 7 U. S. C. (false advertising seed); 77q (fraudulent S. C. mat- § §§ except for sanctions as to silent 1461—itself
contrast, § counterpart no penalties criminal provision —has recodifica once It is mentioned laws. postal in the collecting the var (a), a section of 1960—in tion nonmailable matter as designating provisions ious and the floor Report indicates the Committee which, not intended assure, note and reviser’s discussion throughout. ambiguous law change existing 21— the Post material has been The removal *29 1950, In 4006 only weapon against § it. Office’s any per- mail of granting special powers over the enacted satisfaction, to be found, to General’s son the Postmaster to using money providing to be the mails obtain thing: or vile article or any information about to person mail “unlaw- Postmasters could mark sent they forbid sender; ful” and return it to its and could postal orders or payment person any money to that of clarity to notes, and return the funds the senders.22 The than grant noteworthy these is no less powers of subsequent history. their In Postmaster Gen- 1956 the sought23 power order, eral and obtained the to an enter pending proceeding the administrative determine invoked, § whether 4006 should be under which all mail regarding securities), (solicitation proxies), ter 80a-20 of 80a-24 (sales regarding 80b-3, (invest- securities), literature 80b-5 80b-6 materials); (publications registered ment advisers’ S. 50 U. C. 789 § organizations). Communist Magnetic Healing McAnnulty, See American School v. 187 S.U. 94, 109. Rep. 36, Cong., 21 H. (1959); Cong. R. No. 86th 1st Sess. A44 105 (1959) Cong. 15,667 (1960); supra, Rec. 3157 and 106 Rec. and see n. 11. 22 451, (Supp. II) 64 Stat. now revised and codified as S. 39 U. C. 578, 4006. See 74 Stat. 655. § 23 appears It 1956, that between 1950 and the Postmaster General asserted, agreed, already and some power. courts that he had the Olesen, supra, 3, See Stanard v. n. at
513 respondent to the could be The impounded. addressed days at 20 expire order was the end of unless the Post- in a an sought, Court, master General Federal District continuing impounding. 20-day order order by a General, court, the Postmaster and its extension were if only “necessary to issue effective enforcement In hearings extensive were held [§4006].” on request 20-day the House Post Office’s be period extended to 45 days, standard necessity changed “public Instead, interest.”25 what was enacted in 1960 stripped the Postmaster Gen- eral his power issue an interim order for period, him and directed to seek a temporary restraining order in a Federal District Court.26
2470 Stat. 699.
25Hearings Operations before House on Subcommittee Postal the Committee on Post Office and Civil Service on Obscene Matter through Sent the Mail, Cong., (1959). 86th 1st Sess. postal laws, 74 Stat. 553. The codification of later in repealed (see 708, 729) Stat. 699 Stat. and not Stat. (74 655) repeats
but the new 4007 Stat. of 70 words Stat. 699. We not now governing provision. need decide which is the *30 Report
The Senate in 1956 had this: said recognizes present “The committee that even in its form the bill gives extraordinary summary powers the Postmaster General and impose penalty by impounding up person’s a substantial a mail for days any hearing any by advance of or review the courts. power directly contrary spirit Such is letter to the due normal by process, exemplified Act, the Administrative Procedure which requires hearing any penalty may a imposed. before be The Post Department legislation grounds Office has made its this case for on the temporary summary procedure required that a to deal with operators using fly-by-night peddle the por- mails to defraud toor nography, may go change who out of business—or the name of their legal procedures or their business business address —before normal brought operation. Department can be into The Post Office has not recommended, approve, nor does this committee use the of the tem- porary impounding procedure, this under bill as a substitute for the hearing practice bringing normal of an or the advance an indict- censorship consideration full Congress gave Tariff Act with the when it dealt material for provided laws the customs year, Prior to written of obscene from the United States exclusion instance to a Fed- in the first resort required but matter, matter’s for determination eral District Court bill, work on the course of their obscenity.27 In the language to added Ways and Means Committee House material, and also well as obscene seditious as exclude generally appli- with the procedure replaced judicial officers, customs entail- procedures seizure cable instance of a would-be only at the ing judicial review Sess., Rep. Cong., H. No. 71st 1st at 7, R. importer. See bill was in this form that the 244-245. It 160, 185, 190, reported by the Senate Com- passed House, and was 60; 71 Rep. Cong., No. 1st Sess. mittee, 37, see S. 71st Smoot), on Cong. of Senator but (remarks Rec. 4458 strong ran expressions against floor it into the Senate censorship: customs fears about administrative determi- in applying nations were enhanced felt difficulties legiti- involving ment for violation of the criminal code in all cases operations. mate and well-established business The committee would summary approve extraordinary procedure use of the under against legitimate publishers magazines, newspapers, bill might objection books in cases in which a Postmaster General take Rep. article, issue, Cong., to an an or a volume.” S. No. 84th 2d Sess. 2-3. Section 305 of the Tariff Act of banned Stat. matter, (c) provided: obscene and immoral but subsection any judge [may proper “That . . within . district . district . . upon probable cause, conformably Constitution], war- issue officer], directing . . rant directed marshal customs him to . [a [§305], thing . . mentioned in and to make seize . article or thereof, to the end that the be due and immediate return same by proceedings, destroyed which shall conducted condemned and *31 municipal proceedings in the same manner as other in the case seizure, right appeal writ And and with the same of error.” swpra, 6; supra, pp. n. see 505-506. material. Judicial proscriptions particular
statute’s thought insufficient, for that would leave the review person with sub- initiative for resort to the courts jected censorship: expense, inconvenience, public would, believed, embarrassment it was result generally unreviewed administrative exclusion. See Cong. 4432-4439; support Rec. 4445-4471. In the initial by idea decision should be made a court rather than a inspector, Cong. customs 5417-5423, Rec. Senator Walsh Montana said:
“Everybody right mind prevent wants to circulation such books as the Senator from Utah has in mind. That point is not the at all. Those immoral and obscene and indecent publications are printed country, this as well as abroad. . . . How do we reach the situation? make it a We crime to circulate those books this country, pun- and we ish that offense the same as punish we every other offense, by proper prosecution. Likewise, pro- we hibit the circulation of material that kind in the mails, and if anybody circulates init the mails he becomes liable prosecution. to indictment and That way is the we thing.” endeavor deal with that 72 Cong. id., Rec. 5419. See also at 5430. But compare the remarks of Senators Copeland, Cutting, and Fletcher, Cong. Rec., at 4435, 4450.
He then an offered impose amendment criminal sanctions for importing proscribed require and to matter, matter’s detention customs transmittal appropriate authorities to judicial commence forfei- Id., proceedings. ture However, at 5421. there were misgivings about the criminal sanction; thought it was jeopardize some to borderline activity too seriously. Id., at 5423-5431. passed a provision Senate cor- responding to Senator Walsh’s but without amendment,
516 5501-5520, and this Cong. 72 Rec. sanction,
a criminal Thus the House Committee’s into law. was enacted deter- judicial administrative attempt to revert was phase censorship in initial of customs minations emphatically rebuffed.
III. admin- long practiced has is the Post Office It clear that mailings gen- allegedly obscene censorship of istrative regulations prescribing formal erally. However, practice described new.28 The procedure are testifying Department when 1952 the Solicitor of the committee: congressional before far, procedure, so which, have an informal “[W]e court, in the so considered or tested out hasn’t been That is where a we have it so far. gotten with point matter at postmaster finds obscene and if he is post office, mail entry of the into he will send good as to whether it is bad doubt ruling. for a . . .” office it to the Solicitor’s said: He also if any on all of hearings those,
“If we had to hold
hearings also come
ever decide that those
court should
just
we are
Act,
under the Administrative Procedure
all;
just
we are
lost.
hopelessly sunk, that
“They may,
they
never taken us into
but
have
get by
it as
just hope
on it.
that we
with
court
We
29
can.”
long we
28
14.4,
(1962).
date
39
These
from 1957. See
CFR
§§
29 Wong Yang Sung McGrath,
33;
v.
S.
Riss &
See
339 U.
Co.
907;
Haderlein,
804;
States,
Cates v.
S.
v.
341 TJ. S.
U.
United
Popenoe,
App.
511;
D.
Door
Walker
S.
C.
149 F. 2d
v.
v.
U.
supra,
see,
Donaldson,
App. D.
And:
“[Sjometimes you can get people five together, you can give mail, them five and ask pieces them mark you get will them, results, five different because cases it is just things some one those *33 depends your personal that on own ideas and your bringing own up; depends strongly you how upon feel about things, and there are some types that you just material that get people agree can’t two on no matter how how reasonably objectively and they upon look just it. It is an honest difference opinion. experience We it all the we time, so have our conferences, and going we decide what is thing the best to do. . ..
“We have no prosecutions things trouble with on that are definitely but it is obscene, this material is way way that this and very is very, prosecute.” difficult Hearings before the Select Committee on Pornographic Current Materials, of Representatives, House on Investigation of Litera- Allegedly Containing ture Objectionable Material, 82d 2d Cong., (1952). Sess. 281,'282 It also is clear that this was not the first or last occasion on which practice Post Office brought has been congressional attention of a committee.30 the report But 30 g., See, Hearings e. before House Subcommittee No. 8 of the on Committee the Post Office and Post Roads on H. R. 74th Cong., (1935); Hearings, supra, 25; 1st Sess Rep. n. S. No. Cong., (1950); Rep. 81st 2d Cong., Sess. No. 84th S. (1955); Attorney 1st Sess. General’s Committee on Administrative Procedure, Department (1940); Post Op. Atty. Office 19 Gen. 667 (1890) (upholding allegedly exclusion from the mails of portions Sonata”); Atty. Op. Gen., 4 Tolstoi’s “Kreutzer Asst. Dept. (1908) (holding Post-Office 741 a civil as well § as a § which listed Committee, of the 1952 Select continuing dispel certainly did statute, criminal report And the that section. surrounding ambiguity said: problem this handling means of are other
“There means which can be censor, ban of the than freedom infringing on the danger without applied . .” . . press testimony committees, event, before But, do usurpation, administrative reports, committee suffice to establish singly collectively, not, either authorization.
IV.
sanctions of
criminal
sustained the
We have
the First
challenge
unconstitutionality
under
against
States,
We
Roth United
Congress constitutionally could authorize noncriminal process proceeding closely in the of a judicial nature under safeguards. suggestion procedural defined But the Congress may constitutionally any process authorize other fully gravest than a judicial immediately one raises the enough doubts. it is However, dispose this case that Congress has in not, authorized the Postmaster to employ any General process his own close the mails to which, view, matter his falls within the ban provisions that section. “The . . . would to be have explicit far more Congress us to assume that made such a departure radical from our traditions and under- took to clothe the Postmaster General with power supervise reading the tastes public country.” Hannegan Esquire, Inc., v. atS., I, therefore, concur in judgment of reversal. Clark,
Mr. Justice dissenting. While those the majority like ancient Gaul are split into parts, three holding the ultimate today, the Court despite congressional the clear mandate found in § requires the United States Post Office to be the world’s largest disseminator of and Grand smut Informer of the places names and where obscene material bemay obtained. The Judicial Officer the Post Office Department, District Court, and the of Appeals Court have all found magazines issue to be nonmailable on the alterna- grounds tive they are obscene and they contain information on where obscene material may be obtained. *35 The Court, however, says that magazines these go must through mails. the Brother writing for himself Harlan, and Brother finds that Stewart, magazines the them- unobjectionable selves are because § 1461 is not so nar- rowly drawn prohibit as to mailing the of material “that incites immoral sexual conduct,” and that presence the leading of information to obscene material does not taint were unaware publishers their because magazines the Brennan, Brother information. of this true nature the Douglas, finds Brother Justice by The Chief joined General the Postmaster authorize 1461 does not that § mails to mat- the process to close administrative through my in view Since proscriptions. its within ter included reject to required by § General the Postmaster on the I affirm judgment would the matter, nonmailable information magazines contain ground sole are obtained and thus material can be to where obscene question consider I, therefore, do not nonmailable. as such are obscene. magazines of whether the
I. briefly. can described The followed below be procedures Alexandria, in in deposited Petitioners the Post Office containing maga- Virginia, parcels copies six three they published. which parcels zines were directed agent Chicago in and marked as second class petitioners’ Being subject inspection,1 matter. unsealed appeared Postmaster noticed that the material regulations of obscene. the Post Office Under Department since Post- effect the Alexandria notified the the Post master General Counsel of Office Department Washington samples and submitted material; magazines General Counsel determined the § under 1461 and petitioners’ be nonmailable notified president. sought Petitioners injunctive against relief Department the District Court on grounds the magazines did not violate 1461 and procedure § used amounted to an parte unconstitutional “ex adminis- restraint,” prior trative suit but. dismissed for determination the issue at an hearing administrative Department’s regulations. provided After full II) (Supp. S. C. *36 dispute- congres- did hearing, petitioners at which for second reject parcels sional authorization the six the material mailings, class the Judicial Officer declared finding judi- nonmailable. Petitioners contested this cial Court, review the District where the action of the upheld. Judicial Officer I Brennan, indicated, as have has reached
Mr. Justice Congress originally the conclusion when the passed question years ago granted the Act in power some it no carry Post Office to refuse to receive matter declared the Act to be nonmailable. point Since this presented argued was neither nor here, below I do not believe properly be before us. Brother Brennan, however, concurring rests his opinion on it and for that reason I shall discuss the issue.2
Section explicitly provides that:
“Every obscene, lewd, lascivious, indecent, filthy or article, vile matter, thing, device, substance; or . . . [e]very printed card, written or letter, cir- cular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly,( where, or how, whom, or from or by any what means articles, of such matters, things may mentioned or be obtained .. . declared nonmailable mat- [i]s ter be conveyed and shall not in the or mails deliv- ered by any post letter carrier.” office (Emphasis supplied.) genesis
Its was in Section 16 of the Act March 3, 1865, Stat. which reported when in the Senate had two parts: book, pamphlet, picture, print,
“[N]o publication other of a vulgar and indecent character, shall be admitted into the mails of the United States; agree 2 1 with opinion conclusion petitioners’ con stitutional claim cannot be considered here. *37 in or deposited publications all such obscene
but mails, in the office, or discovered any post at received disposed otherwise destroyed, and be seized shall direct.” General shall Postmaster of, as the or cause deposit shall persons who “[A]ny person post office or branch any post in office deposited to be an mailing delivery, or for for States, of the United pub- other picture, print, or pamphlet, book, vulgar of a and the same to be lication, knowing of a guilty shall be deemed character, indecent Cong., 2d Globe, Cong. . . . .” 38th misdemeanor 661. Sess. it had the Senate that sponsor
The the bill advised if such part provides effect: first of it twofold “The publications postmasters are the mails the [obscene] penalty part provides them and the latter out; take put and a those who into punishment them explanation sponsor enough mails.” This of the to seems undermine Brother Brennan’s but there is contention, Maryland apparently even more. Johnson of Senator matter might feared that obscene be mailed in sealed envelopes postmaster that “the . . . will break the seal.” part He moved strike first bill. to out the Senator Sherman, however, objected, saying “the legislative prohibition against carrying such when matter it is known to the be postmasters Probably should left. clause him allowing second mail open matter should out.” struck Ibid. (Emphasis supplied.) Senator acquiesced Johnson in this suggestion, and thus the bill as finally passed clearly permitted postmasters to refuse which by matters were known them to be obscene, so long seals were broken.3 magazines here involved were second class matter and thus subject inspection. were unsealed and (Supp. II) 39 U. C. S. 4058. § power this regulations reflected postal
The 1873 as have all suc- mails,4 matter exclude obscene ceeding Regulations (1893 ed.) ones, g., e. Postal Laws substantially In 335. 1876 the Act was amended only form. 19 It not declared cer- present its Stat. tain material “to be non-mailable matter” but added that conveyed mails, such “shall not be nor delivered from any post-office nor A single letter-carrier.” comment the bill’s sponsor the House reflects understanding that this section, both before and after amendment, authorized exclusion: proposed bill in changes no wise the law as it
“[T]he *38 now except provide to a penalty is for the circula- tion of By obscene literature. an oversight in draft- ing original penalty section the applies only to the disposition of articles circulated or sold for pur- pose procuring of abortion or preventing conception. Already this obscene spoken class matter in the other portion the section prohibited is passing from mails, through the but penalty no is provided. . . . in no way changes the [I]t section as it now is. It makes nothing non-mailable that is not now non- mailable. It merely provides a penalty. ...” Cong. Rec. (1876). (Emphasis supplied.) Regulations establishing the procedure now used Department questions determine of mailability were adopted in 1902. in And 1960 in a recodification the Congress included § 1461 within its provi- collection of sions which designate matter as nonmailable. 39 U. S. C. (Supp. II) § 4001 (a). books, pamphlets, “All circulars, prints, &c., obscene, of an vulgar,
or indecent character . .. must be vnthdravm the mails postmasters at either the mailing office of or the delivery.” office Regulations Postal (1873 Laws and ed.) (Emphasis supplied.) legislative statutes, language of the light
In consistent and the recodification subsequent history, my stretches it interpretation, administrative history of could conclude how one to understand imagination Department Office the Post not authorize Congress did Brandéis Justice material. As nonmailable exclude Burleson, S. 255 U. Publishing Co. v. in Milwaukee said (dissenting opinion): (1921) 407, 418, 421 alleged Postmaster General’s scope of the “The the reason the same whether authority confessedly in for of the matter inserted quality nonmailable Act, or is that violates the newspaper Espionage copyright laws, part or that it is scheme or is lotteries, indecent, or concerns or is defraud, Congress respect other matter which has declared shall not be admitted to the mails.
“As a matter of administration the Gen- Postmaster eral, through rejects his offered subordinates, matter mailing, mail, matter already removes judgment which in his is unmailable. The existence in the Postmaster power do this General cannot be only question doubted. The which can arise is whether the individual has power *39 case the illegally been exercised.”
H-< Let us now turn to opinion the Brother Harlan and first up question take magazines whether which indisputably contain information on where obscene mate- rial may be obtained can be considered apart nonmailable from the sender’s scienter. Giving regard to wording § the interests involved, and the nature of the sanction I imposed, fail to see how the sender’s scienter is anywise material to a determination of nonmailability. very explicitly that no information Section 1461 demands conveyed post mails or from any “be delivered office by any if or letter carrier” it tells how obscene fact can running material be obtained. This command charged those with postal system the administration by upon is not conditioned the words of the statute or any remotely sender’s scienter similar consideration. inject requirement, When it wants to scienter the Con use, gress knows well the words to evidenced very next sentence in establishing the criminal § sanctions: “Whoever knowingly uses the mails for the mailing, carriage mails, delivery anything in the or declared this section to . . be nonmailable . shall be fined not more than $5,000 imprisoned not than more years, five . . or both . .” (Emphasis supplied.) Con gress could not have it made more clear that sender’s knowledge of the material to be mailed did determine not its mailability only but responsibility his mailing it. is any why Nor there reason Congress a civil action— —in should have wanted way. other The sender’s knowledge sought of the matter to be mailed is immaterial harm public by caused to the its dissemination. Finally, interpreting says § to mean what it would give rise to the question” “serious constitutional envisioned. This fear premised entirely on Smith v. California, 361 S. 147 (1959), which was a criminal Surely prerequisites case. to criminal responsibility quite are from the different tests for the use of the mails. The present determination of nonmailability bulk packages of magazines to newsstands rains no sanctions upon incriminations the publishers of maga these zines nor does it confiscate or impound magazines. For these I reasons, the only possible believe interpreta tion 1461 is sender’s scienter is immaterial in determining the mailability of information on where obscene material can be obtained. *40 requirement a might noted that be passing,
In
For
interesting problems.
gives rise
some
scienter
fixed at
permanently
Is
scienter
the sender’s
instance:
for
unsuccessfully offered
time
material
is first
when the
or
re-evaluated
mailing,
is his scienter
equi-
How are
mailing?
again
is
offered
material
“clean hands” and “he who
such as
principles
table
proceeding
in a
equity
squared
must do
equity”
seeks
an
an
order with
administrative
non-mailable
enjoin
has
shown to
mailing
on
material which
been
insistence
leading
contain information
to obscene material?
assuming
knowledge
of the sender is
However,
maga-
mailability
in
of these
determining
material
compel
findings
I
and
zines,
undisputed
submit
facts
petitioners
a matter of law
knew
as
the conclusion that
informed their
published
magazines
that materials
their
might
To say
readers where obscene matter
be obtained.
least,
findings
such that this Court
these facts
are
ought
up
to set itself
as
fact-finder but should
by
remand
case for
determination
who have
those
initially with this responsibility.5
been entrusted
magazines
The content
direction of the
themselves
tip-off
are a
to the
as
nature of
those who
the business of
solicit through
magazines
them.
have
social,
no
edu
cational, or
qualities
are designed solely
entertainment
but
as sex stimulants for
They
homosexuals.
“consist almost
entirely of photographs
young
prac
or
men
nude
tically nude
poses handled
such a manner
to focus
genitals
attention on their
buttocks
to emphasize
express rejection
If
petitioners’ pro
the Judicial Officer of
posed finding
they
personal knowledge
had “no
of the material
sold
finding
contrary,
advertisers”
taken as a
then
this
course
is entitled to the deference accorded administrative
findings, cf.,
g.,
Mfg. Co.,
e.
Labor Board v. Walton
minds than in those of the purchasers. solicited To illus captioned trate: some a picture of a nude or scantily attired young man legend with the “perfectly propor tioned, handsome, models, age male 18-26.” Others fea tured photograph a nude male with the area around privates obviously retouched so as to geni cover the part tals and pubic hair and offered to furnish an “original print of photo.” this Finally, magazine each specifically endorsed its listed photographers requested its readers to support them purchasing their products.
In addition, three of magazines the four involved expressly represented they were familiar with the work of the photographers listed in publications.6 their
Turning to Womack, the president and directing force of all corporate three publishers, is even clearer that we are not dealing here with a “Jack and Jill” opera- tion. Mr. Womack admitted that the magazines were planned for homosexuals, designed to appeal to and stim- magazines were offered in bundles, apparently six copies with magazines of each of the intermingled four among the bundles. he effect, on this improve To interests. erotic
ulate their pic- type photographers suggestions made one of informed example, he For he wanted. tures fans want “physique in his publications studios listed showered, up, already cleaned types’ driver their 'truck absolutely essential it is . . for bed . ready [and] and a personality faces pretty models have *42 had also Womack appeal.” sex unrelated to totally exchange cus- they photographers suggested list a master hope compiling names with the tomer of sell- convicted himself had been He homosexuals. Womack v. the mails. via ing photographs obscene 2dF. States, D. United App. S. C. by guilty rea- recently has not (1961). pleaded More he Washington Post, Feb. insanity charges. son of to like March, warned in Furthermore, D-3. he was 1962, p. photographer of his July of 1959 that number April, and being mailing for prosecuted were advertisers law in might violating the trans- matter and that he be How- mitting through mails advertisements. their to disseminate such information ever, he continued from his removing lists through mails, photographers through another only they Finally, as were convicted. involved, orders corporation controlled not here he filled of his one of his sent the readers advertisers magazines. This material was found to be obscene and all and findings like facts it is above contested here. corporate chargeable are petitioners with the they of what well as
knowledge do, knowledge president and fail their leader. How one can to see my is beyond comprehension. obvious in this record In “0 dark, the words of Milton: dark dark, amid blaze For one conclude undisputed noon.” that the above findings required facts and are insufficient to show the scienter, stringently may however defined, effect repeal provisions the advertising of § 1461. To con- nonmailability dition proof on actually sender being saw the material sold his portray advertisers tois the Congress as the “mother” in the jingle, “Mother, goI out to swim? Yes, my darling daughter. Hang your hickory clothes on a go limb and don’t near the water.”
For these reasons I affirm would the decision below.