40 F. 636 | U.S. Circuit Court for the District of Northern Ohio | 1889
These demurrers present the disputed question whether or not a message or communication in writing from one person to another, of the ordinary and conventional form and style known in common speech as “a letter,” deposited in the mails, is within the inhibition of the Revised Statutes, § 3893, if it use language that is obscene within the meaning of that statute. The adjudicated cases being divided, the expressions of opinion are very conflicting, and a case is thought to be now pending in the supreme court requiring its decision of the question. The cases cited in the affirmative of the proposition, and sustaining the indictment, are U. S. v. Gaylord, 17 Fed. Rep. 438; U. S. v. Hanover, Id. 444; U. S. v. Britton, Id. 731; U. S. v. Morris, 18 Fed. Rep. 900; and U. S. v. Thomas, 27 Fed. Rep. 682. Those in the negative, and against the indictment, are U. S. v. Williams, 3 Fed. Rep. 484; U. S. v. Loftis, 12 Fed. Rep. 671; U. S. v. Comerford, 25 Fed. Rep. 902; and U. S. v. Mathias, 36 Fed. Rep. 892. No opinion was expressed in U. S. v. Chase, 27 Fed. Rep. 807, certified to the supreme court; and in U. S. v. Foote, 13 Blatchf. 418, the judgment proceeded upon a proper construction of the word “notice,” as used in this section as it stood prior to tiie amendment of 1876, and as it may be found in the original edition of the Revised Statutes or the italic print of the second edition. It was there held that under that clause of the statute it was quite immaterial whether the “notice” mailed should be in the form of a letter or some other form. Any “'notice” was especially interdicted. Standing so upon the authorities, it may well be held, as it plainly is, at least very doubtful bow this disputed question should be decided; and the defendants first insist that, where there is a reasonable doubt, the construction should .bo in their favor. 1 am not quite prepared to hold that this rule of reasonable doubt, by analogy to the well-known principle which governs a jury in trying the facts, should exempt the defendants from 'that penalty which they have incurred if the statute be against them, for this would be to abrogate by judicial action every dubious or doubtful enactment; and the elasticity of language is such, and the carelessness of legislation is so fruitful of ambiguity in drawing statutes, that it would be a dangerous doctrine to establish by that broad expression of it. Nor do I find that the supremo court of the United States has so expressed it in the cases cited for it in U. S. v. Whittier, 5 Dill. 35; U. S. v. Clayton, 2 Dill. 219, 226, 12 Myer, Fed. Dec. § 345; and U. S. v. Comerford, supra. That court has undoubtedly enforced the rule of a strict, though reasonable, construction of penal statutes, confines them within the clearly expressed or necessarily implied meaning of the language used, and refuses to enlarge the words to include other conduct of like, equal, or greater atrocity, simply because it may be within the same mischief to be remedied, when it is uot fairly included in the language
The notion that the intention ever was or is now to protect the mails and purify them, or to guard the postal oSicials from contamination, is, in my judgment, a barren sentimentality that deserves no place in the serious consideration of this statute. Postal officials are not supposed to examine or to appropriate to themselves the indulgences of reading that which goes into the mails in any form, but their duty is to handle and distribute it without doing that. They violate their duty when they so use any mail matter whatsoever, except for the purposes of such official inspection as may be authorized. Therefore it is that this sentiment seems a useless one. But the purpose was, as we have the authority of the supreme court for saying, to refuse the facilities of the postal establishment for the distribution of matter deemed injurious to the public morals. Ex parte Jackson, supra. At first, traders were not allowed to use the mails as an instrumentality for administering to depraved tastes, and now the prohibition has been likewise extended to include a purpose of refusing carriage of any message, even in a private letter, which in its language violates the common sense of decency.
Also, I think that in the discussion of this subject too much stress has been laid upon the sanctity of that sealing of mail matter, especially letters, which the postal laws guard so sedulously, as a guide to the proper interpretation of the statute. Judge DiujMMONd effectually disposes of that argument in his opinion by showing that the sealing and paying of letter postage on those articles confessedly inhibited does not remove the inhibition or protect the culprit. It may delay detection, but it does not make the matter mailable; but it does not follow from this that a letter sealed or unsealed is within this statute. No doubt, that from the time when postal facilities were first provided in the world, and the governments were first charged with the duty of establishing them, tliis scaling of letters and documents carried in the mails was protected as a right of the highest importance, without which the postal establishments would become mere freighters; but the consideration of that matter in its relation to the subject we have in hand is fully covered by the suggestion already referred to, of a reluctance on the part of congress to restrict freedom of speech in private correspondence by .letters; and except so far as this sanctity of the seal is included in that principle of freedom of private speech I do not deem it of much importance in interpreting this statute, and think it should not be exaggerated, as there is some danger of doing. It might not bean impossible construction of the statute, in my view of it, that a letter, or, as I prefer to express the idea, a written or printed message or communication in the form of epistolary private correspondence, containing obscene thoughts in language which happens to be expressed upon a sheet of paper displaying some obscene “pictures,” — no matter in what style of the aft of making pictures, the “letter” and the “picture”having no bearing one upon the other or any other relation, near or remote, except the hare juxtaposition of the two, — I say it might not bo impossible that such a “letter,”
Once more, in this process of limiting, if not discarding, some of the seemingly misleading arguments which have gathered about this question, and that may be somewhat beside it, there appears to me at least to be but little of importance in the notion that the grievance of the addressee, whose sense of indignation is aroused, and whose feelings are injured, by such letters, is to be redressed by this statute. Perhaps it is not within the competency of congress to redress such grievances, but certainly I think it was not its intention to redress them even by these latest-acts that do include letters within the prohibitions of the legislation. It may be that, until congress, exercising its power of postal regulation, takes another step in advance, and authorizes seals of letters to be broken, and contents inspected at the will or upon the suspicion'of postal officials, this grievance of the addressee furnishes the only method of detection, accusation, and punishment, and the only guaranty for the enforcement of the statute; but non constat that congress intended by this legislation to provide a redress for such grievances, or that we should so view this statute in construing it.
The simple question is: What, upon a proper legal construction of this section, has been denied carriage in the mails; the denial being enforced by a penalty for the non-observance of the postal regulation? Or, more nearly to this case: Has this letter been excluded by the language of the act? A latitudinarian construction that shall include it because it is as hurtful to morals as other things that are excluded is denied to us by the supreme court, as already shown. The conclusive fact against including it is that from the beginning of the legislation to the recent acts, which do specifically include “letters,” they have never been mentioned as such in the list of prohibited mail matter, nor referred to in the statute, except in a phrase which by fair implication shows that they were designedly left out of that list when congress says that there shall be included “every letter upon the envelope of which” — and it may be conceded that this means upon the outside surface of which — the obscene language, etc., appears. Now, from the earliest appearance in our civilization of postal carriage, whether by private or public establishment, the “letters” have been that class of “mail matter” with which and about which there has been most concern; so much so, that the idea of “a letter” and postal carriage are quite inseparable, when we have in mind the postal service and its regulation. It has become, in that relation, a technical word, a superior word, a word to represent a class of mail matter that is in every possible sense of so high a grade that all else becomes inferior in classification and in enumeration to it. It stands first in pos
I have not thought that the word “publication,” as used in this statute, had the least reference to that term as we use it in legal parlance, in the law of slander and libel, for instance, or when we say a deposition is to be “published” or the like, but solely in the sense we use it when we speak of “publishing” books, pamphlets, circulars, papers, etc. And the insertion of the word “'writing” by the amendment of 1876 does not necessarily apply the term “other publication” so as to limit the class of “writings” to those in some sense “published,” as already intimated; but while this may be conceded, wo need not concede, and I do not think it should be admitted as a proper construction, that the term “writing” should be extended to include all writings of every kind, including private letters, sealed or unsealed. Dubious words ought to betaken most strongly against the law-makers. U. S. v. Heth, 3 Cranch, 399, 413. One has only to examine the legislative proceedings attending the passage of the recent acts of congress to see that that body did not consider letters within the former statute. The act of June 18, Í888, c. 394, did not include them, while obviously prohibiting the display of offensive matter upon the envelopes and wrappers, including injurious reflections upon one:s character, instigated as we all know by the use of the mails by money collecting agencies to compel by such threats, designs, and offensive epithets delinquent debtors to pay their delayed debts. It was not until September 26,1888, (chapter 1039,) that congrqss reached the state of mind necessary to place within this legislation private letters. So considered, the existence of these recent acts shows that congress had not interpreted the former acts to include letters. U. S. v. Freeman, 3 How. 556.
The district attorney, in his brief, refers to the fact that some of the opinions are by circuit judges, and are said to have been approved by circuit justices, though they have no reported decisions on the subject,
On this class of questions, altogether and absolutely within the federal jurisdiction, such a rule of judgment would be valuable, and I consider that in this case, substantially, we are following that rule, and that this, judgment is fairly in the line of precedent. Demurrer sustained.