*1 McLAUGHLIN, KALODNER Before STALEY, Judges. Circuit PER CURIAM. appeal judgment for This from a is an Agricultural penalties

civil under the amended,

Adjustment 1938, Act of seq. et

U.S.C. 1281 § Appellant’s sole contention is this, In line with

Act unconstitutional. argues Filburn, 1942, she Wickard v. L.Ed. 317 U.S. constitutionality upheld the

Act and cases followed that including decision, our Blattner own Cir., 1955, erroneously. were all decided We disagree with that view. judgment court will district

be affirmed.

UNITED America, STATES of Appellee, ROTH, Appellant.

Samuel

No. Docket 24030.

United States Appeals Court of Second Circuit.

Argued June Sept. 18,

Decided

Writ of Certiorari Granted Jan.

See 77 S.Ct. 361. *2 1872, 302, revising, 8, con- June 17 Stat. solidating, amending re- and statutes lating Department, and to the Post Office 3893, thence derived from Rev.Stat. § “[e]very ob-

herein declares unmailable book, scene, lewd, filthy lascivious, or writing, pamphlet, letter, picture, paper, print, publication or other indecent an knowing character,” de- and makes mailing posit for unmailable mat- of such subject $5,- ter to a of not more than fine imprisonment not 000 or more than years, five or both. In States Rebhuhn, City Wittenberg, cer- Philip York New States, Carrington tiorari denied Rebhuhn v. United (Wittenberg, & Farnsworth 1399, 629, 976, Irving City, 310 U.S. Like, York on and New Judge dealing Hand, Learned brief), appellant. unconstitutionality, pointed claim George Leisure, Jr., U. S. S. Asst. had in Rosen out that been overruled City Atty., Y., (Paul D. New York S. N. 29, v. United 161 U.S. 16 S.Ct. Williams, City, Atty., York W. U. S. New 480, many 434, 606, indict- L.Ed. “and brief), appellee. on found, many been and ments since CLARK, Judge, Before Chief * * * persons tried and convicted. WATERMAN, FRANK Circuit reopened question Su- If to be Judges. open preme it.” Since that Court must acknowl- decision more cases have Judge. CLARK, Chief constitutionality statute, edged appeal by This is an Samuel Roth from part so that feel it not the so much we his violation 18 U.S.C. conviction for judicial responsible administration for 1461. The indictment twen- § contained ours, court inferior such as whatever an charging ty-six mailing counts personal opinions, initiate new our books, periodicals, (and photographs uncharted course overturn of a advertising them) some circulars al- long regarded thus of vital so- leged “obscene, lascivious, lewd, to be importance public policy of and a cial filthy and indecent character.” general easy, support. in mat- wide Throe counts were dismissed. After a touching arts, condescend ters jury guilty trial found defendant poor enforcement offi- troubled counts, guilty four on nine- ; carry do will us meas- cials but judge teen. The trial sentenced defend- urably generally permanent nearer a years’ imprisonment ant to five and to continuing acceptable solution of a social pay $5,000 count, a fine on one while problem. gave on each other three counts background Against this im- we are imprisonment, term of a like run con- year pressed decision of a currently, and a fine remitted in each $1 great Books, Kingsley court Brown v. appeal, On this case. defendant claims 641, Inc., 1 N.Y.2d 151 N.Y.S.2d trial, error conduct where, accept- 134 N.E.2d again constitutionality attacks the once ing general leg- constitutionality of such governing statute. islation, ground the decision breaks new statute, This upholding U.S.C. preventive § authorization of passed originally by way injunction the act of § relief the suit of quoted pointed below, As out word after the commission of the of- expanded by Congress ing was somewhat here fenses involved. Judge community public opinion, and shame at which the officer.2 controlling law con- have arrived here and now?” and Fuld summarizes' regulatory must, clearly : tinued “If like other kinds letters thus: drawn “That *3 conduct, subject legislation protect public the social sense from of right, of that a what seem evils in the dissemination it would inherent by applicar- jury matter, should in each establish the case obscene at least neg- they sanctions, barred much in standard as do cases tion of criminal ligence.” guarantees quoting approval, by speech In with this the free recognized recently Amendment, Ninth Circuit has said: “We has First been Judge by [citing by think Learned Hand was in cases] both court and this [citing happy Supreme in his use best of famous form States Court United Besig States, Among of words.” v. United 9 York New cases from cases].” Doubleday 142, Cir., People & 208 F.2d v. he cites 687, 6, Co., 297 77 affirmed N.Y. N.E.2d. important problem, So this social 848, equally court, 335 U.S. an divided English which has come from down to us among 79, 398, 69 93 L.Ed. while S.Ct. law and which has led to statutes of á Supreme in the United States cases generally similar in almost nature all upon United Court are he relies jurisdictions country, the other in this 680, Alpers, 70 338 S.Ct. States v. U.S. Books, Kingsley Inc., supra, Brown v. see 457; 352, People of 94 L.Ed. Winters v. 177, 639, 1 151 N.Y.S.2d 134 N.Y.2d 510, 507, York, of New 333 U.S. State 461; Note, N.E.2d 22 U. Chi.L.Rev. 840; 665, 518, 520, 92 68 L.Ed. and S.Ct. 216, general judicial has resulted Limehouse, 424, 285 U.S. United v. States unanimity supporting prosecu goes 412, 52 76 L.Ed. 843. He S.Ct. body There is a tions. considerable though say: “Imprecise be—its precedents beyond additional cited being largely ‘vague subject-matter’ ‘left above, Supreme both Court of the general gradual development to the juris States United and in other federal (per L. about is decent’ notions what dictions, examples of which various are Kennerley, Hand, J., United States v. given in the footnote.3 will not todo 119, 121) concept D.C., 209 F. of ob —the distinguish sug these cases dicta or accepted scenity heretofore been gest that have not considered mod adequate standard.” case last an problems. They too ern and 121], cited, Judge F. Hand asked [209 piece much of a too to allow intermedi “ * * * ‘obscene’ should not the word to malee an inference of ate court doubt indicate critical be allowed to circumstances. We can in the under compromise point censorship between candor all difficulties of stand against paper-cov- 765; Dunlop injunction States, sale of v. United 165 Ed. “indisputably 486, pornographic, 375, 799; 41 17 L.Ed. ered booklets S.Ct. U.S. filthy” Coyne, indisputably Clearing obscene House Public v. 194 U.S. —the Judge Fuld’s, 177, 508, 497, 789, 1092; 1 151 24 N.Y.2d S.Ct. 48 L.Ed. words are 639, 461, 640, Baldwin, 275, 281, 462— 134 N.E.2d v. U.S. Robertson 165 N.Y.S.2d statute, 715; granted 326, 41 under 1941 N.Y. S.Ct. Near was 17 L.Ed. v. 22-a, Olson, Minnesota on suit the Cor- ex rel. § Code Cr.Proc. of. State 283 697, 716, poration City 625, 1357; New 51 75 Counsel S.Ct. L.Ed. Hampshire, U.S. Chaplinsky the court unanimous v. State of was New York. While , holding 568, 571-572, the statute constitutional U.S. 62 S.Ct. 315 86 766 1031; injunction People proper, there two were Beauharnais v. L.Ed. analysis legal opinions Illinois, detailed 343 U.S. State —a 919; by Judge 725, Fuld, background concurred in 72 S.Ct. 96 L.Ed. Schindler v. judges, States, Cir., 9 and a brief and more 221 F.2d two other United cer by Judge Desmond, 310; con- denied 350 76 formal statement tiorari U.S. S.Ct. judges. Cir., Hornick, two other States 3 curred United 120, affirming D.C.E.D.Pa., F.Supp. 131 parte Jackson, 603; Goldman, See, g., Ex 96 Roth v. e. U.S. F.2d 877; Swearingen 727, 24 L.Ed. certiorari denied U.S. S. L. Ct. judge great literature, “‘Filthy’ various indeed the was said this: as used banning here must also relate to sexual matters. excesses involved in the foolish justified distinguishable feeling It is books, ‘ob- term without notable prose- casting scene,’ upon promote criminal doubt which tends in cutions, lust federal, impure thoughts. ‘Filthy’ pertains of com- both state prob- obscenity. A serious sort of mercialized treatment of sexual matters vulgar way, is cen- when real literature such a lem does arise indecent sored; feeling issues but in case no such this that it tends arouse a dis- gust arise, and revulsion.” seems to since the record shows should But long-standing judicial pornography. us line had def- But even we salable *4 impulse to initions of the “and follow term. The words more freedom to an every legislation prem- filthy” were such inserted in statute strike down the ises, pause the of time of we should need to because the enactment of the Penal knowledge lack of social our own Code in 1909. And in United States v. bearing problem, consequences Limehouse, supra, 426, of this 424, 285 52 U.S. act;4 hardly justi- 412, 1932, and we are S.Ct. in Mr. Brandéis Justice rejecting strongly pointed fied in out hand the for the Court out the obvious competence of those in held views with intent to “a add new class of unmailable premises very filthy.” definitely the as to the connec- direct matter —the As he development this tion of traffic with the pointed out, plainly this covered sexual conclude, juvenile delinquency.5 We matters; Court, said, and the so he had therefore, that the attack on constitution- filthy no occasion to consider whether' ality of this statute fail. must here matter of a different character also fell prohibition. within the see We do not Defendant, spe however, takes how can be this case read other as than exception judge’s cial the treatment support interpretation asserting the charge “filthy,” made of word the validity opposed the court below and for the this term to other that he parts statute, interpreted. Moreover, Act as as to render ear- vague indefinite. What the lier it had been ruled the Sixth Cir- Huid, J., Kingsley Books, greatly continuing in Brown 4. See v. will contribute in tlie 639, 641, 177, struggle juvenile Inc., delinquency N.Y.2d 151 1 N.Y.S.2d to combat 461, 3, corruption public 134 is N.E.2d 463: note- note “It and the 2 morals.” worthy Cong. p. are for 1955, that studies the first time & U.S.Code Adm.News made, through being such scientific skills exist, concerning impact of Vanderbilt, See also Chief Justice Im- obscene, writings passes Justice, mass other 1.1956] Wash.U.L.Q. media, men, 267, “(4) greatest on the mind and behavior of 302: Our concern (See, g., oncoming generation, submit, and children. women e. Jahoda with the perversion young of Research Center for Human Staff relates to the minds Relations, University [1954], through movies, New York mass media of the Impact Psychologi- radio, television, press, especial- of Literature: A and the Assumptions ly Wertham, cal Discussion Some so-called comics. Seduc- Censorship Debate.)” (1954). tion of the Innocent See also Regulation Feder, (Univ. Book Comic Sen.Rep. 113, Cong., Sess., 1955). No. 84th 1st Bureau of Pub. Calif. Admin. supporting problem beginning 1955 amendment § to receive below, say: 1461 discussed has this to its the consideration seriousness for. calls “The subcommittee the Committee on Hero is a field which the law schools Judiciary investigating juvenile equipped leadership delin- are well to furnish quency reports controversy in the United States in a where rare discrimina- courage required.” traffic in the nationwide obscene matter is tion increasing year by year large Perhaps scholarly may suggest research being part have; traffic is channeled in- statutes than' we better help hands of sug- to the That children. can subcom- doubtful if gestions be found in such implementation legislation mittee recommended the inclusion in prevent enticing invitation, statute so as “For Adults using trafficking Only.” the mails in Seagle, of all & Ernst To Cf. the Pure passage (1928). matter. The obscene S. 600 277 800 Cir., Tyomies 83, 86; Co. v. United 2 Pub. 112

cuit F.2d States United 1914, States, 385, 390, 672; Goldstein, Cir., 666, F. v. 2 6 211 judge properly submitted that the trial Claassen 142 United U.S. jury 966; to the as whether S.Ct. 35 L.Ed. issue Stevens filthy explana 66; picture States, Cir., v. United was F.2d “ ‘By “filthy” States, Cir., meant Todorow v. F. tion : term United signifies;' commonly ordinarily 2d certiorari what it denied vulgar, 925, 69 dirty, 1733; nasty, inde that which is sense, cent, Myers, mor D.C.N.D.Cal., offensive the moral F. States Supp. 525, ” debasing.’ ally depraving ground, This is there On either Judge charged' assignment fore; this in substance what Cashin of error must fail. v. David here. See also United States Our conclusion here settles the sub 535; son, D.C.N.D.N.Y.,244 F. appeal. stantial issues on this As we Summerfield, Sunshine Book Co. v. D.C. indicated, up if the statute is to be D.C., F.Supp. apply held at all it must a case of kind where defendant is an old hand at Judge Hence, having in mind *5 publishing surreptitiously mailing Hand’s admonition United States v. those induced to order them such lurid Kennerley, supra, D.C.S.D.N.Y., 209 F. pictures prof and material as he can find jury finally apply that the must ample itable. There was evidence for indicated, the standard thus we think jury, the and the an un defendant had nothing objectionable there was judge usual trial in that the allowed him judge’s, jury. instructions to the Cer produce experts, including psychol against tainly, “filthy” background, this ogist who stated that Would'find noth he easily is as clear arid as understandable ing obscene at the 'time. Also by jury6 the as the terms “obscene” and various modern novels were'submitted to already “lewd” committed care. to its jury comparison. the for the sake of Possibly might some different nuances Very likely jury’s the moderate verdict on given though have been we are the term— a few of the Counts submitted what,-nor given sugges not sure are we government by supported the the and. cannot the tions—but we believe that testimony of those who'had been led to jury helped. would have been Nor did through send their orders the mail was anything the defendant at the time find given scope' because of this wide- charge; question counsel, his judge pointed defense. As the out in im judge granted spe after the had all the sentence, posing defendant has been con requests made, cific additional said victed several times under before both judge “fairly every that the had covered state and law. federal Indeed this case thing.” position Now he is not duplicate and our discussions somewhat objection. press this we more Here have appearance his earlier in Roth v. Gold object. than a waiver failure to We man, Cir., 788, 2 certiorari de have fact an instance of submission of 938, 1514, 337 nied U.S. 69 S.Ct. L. 93 single jury issues to than more Ed. 1743. ground might separated have been parties had the so desired. Since no re Defendant error claims in en quest separate for verdicts for with trapment his advertisements .because jury drawal of this issue from-'the was by government represen were answered made, sup conviction must stand as obtaining tatives. But this method of ported obscenity. evidence of clear specifically approved evidence was Rosen Mascuch, Cir., United v. 2 States 111 F. States, supra, 29, . v United 161 U.S. 602, 2d certiorari denied Mascuch v. 42, 434, 438, 480, 16 S.Ct. and has been States, 650, 311 United U.S. 61 Ackley usual at least ever since: v. Unit 416; 14, Smith, States, Cir., United States v. ed F. no by Judge colleagues; supra

6. And Fuld and Ms see note 2. therefore, clear, defend entrap would seem improper there event was ground complaint Masciale, because 2 ant has no v. United States ment. See existing government’s he was tried under the statute Cir., F.2d 601. offense; and time of in no within was in the case summation could he been evidence, event harmed. court’s scope But one charge correct. Judgment concise and was affirmed. engage atten our needs to other matter claim defendant’s was the Judge tion. That FRANK, (concurring). Circuit charged with re the court in that error Judge opinion Clark’s The reference in time spect it was at statute as to the juvenile might delinquency lead the although offenses, been had that, suppose under the casual reader to or before on June amended statute, of what constitutes ob- the test designed was amendment trial. this But minors, scenity is its effect on and that- arose because the Act and to stiffen defendant, Roth, has been convicted F.2d Alpers mailing (or writings for obscene mailing obscene a conviction to) court, however, in sale children. This on the reversed phonograph records was Levine, Cir., 83 F.2d United States v. clearly ground records were not held test that the correct language statutory embodied in thoughts desires, effect on the sexual Although quoted decision above. “young” “immature,” reinstat conviction and the was reversed average, normal, persons. The adult supra, Alpers, in United States ed jury.1 judge trial here instructed the Congress was 70 S.Ct. test, jury On the basis of that could *6 loophole no that be so anxious that there found, reasonably beyond a reason making it unmail an amendment enacted doubt, books, pe of the able “[ejvery obscene, lewd, las able now riodicals, pamphlets pictures which civious, indecent, filthy article, or vile defendant mailed were obscene. Accord thing, matter, device, ingly, or substance.” It I concur.2 para- “disgusting.” the former fifth also eliminated sexual desires renders For graph superfluous. argument legis See the if sound the now Senate the be Keport supra provide pun constitutionally note 5. cited lature because, ishment the anti obscene 1. lie “The is not whether it said: test by socially, it sexual desires mak arouses sexually would arouse sexual desires or ing attractive, follows that sex then it impure thoughts compi-ising those socially disgusting is makes sex whatever segment particular community, the the subject the beneficial—-and thus young, highly pru- the or the immature legislation punishes the valid which mail * * words, you dish. In other “filthy” ing matter. To avoid this impact upon aver- must determine its age the inconsistency, seeming the statute should person community.” in the interpreted mailing follows: be as The mailing “filthy” The statute condemns the matter is crime if that matter only by recipient the of “obscene” matter also tends to induce acts but “filthy” probably matter. Parts of the indictment to cause breaches of will peace. tend the mailing charged interpretation here the defendant with This line with “filthy” publications. judge Limehouse, The trial told States jury they convict defend- There could L.Ed. 843. S.Ct. mailing “filthy” publication, ant for if conviction Court affirmed the of a defend- they per- found that it “sexual mat- treated had mailed letters to divers ant who way vulgar which, language,” ters in such a and indecent “foul sons accused feeling immorality. so it arouse tends to of sexual Those letters them disgust following category “fighting or con- aversion.” thus were within the might urged: e., insulting tention words or words”—i. argument very may constitutionally advanced to sus- be made like—which validity, precisely tain statute’s it far as con- tend criminal provoke because obscene, goes peace. Where, in- demns the show breaches of the validity language however, appears “filthy” of the con- statute so far as it in a “filth,” book, picture, demns “filth” no means and involves insults “ (cid:127) although difficulty I danger’ do'so I have much terms of a ”. ‘clear and reconciling validity However, meaning statute of that phrase, of that opinions Supreme Court, with ut- has been somewhat watered down twenty-five years,3 past tered within the Dennis United 341 U.S. the; ap- First Amendment as The test relative.to “ plied legislation. probability; other The now kinds-of involves ‘In case each expressed opinions, (courts) ”, doctrine I in those as must ask’ said Chief Justice “ briefly it, may Dennis, gravity understand Vinson be summarized ‘whether the gov- Any authorizing “evil,” improb follows: statute discounted its ' (whether by ability, justifies ernmental interference such invasion of free “prior speech punishment) necessary restraint” or with as is dan to avoid the ” speech" ger.’ press free suggested or free counter to runs It has been Amendment, except the. First when the test now is this: “The more serious and government evil, can show that threatened the lower the re; likely degree quired strikes at incite words which are probability.”6 It would peace,4 to a breach of with suffi- seem to follow that the less clear the dan probability ger, cient to the over- tend either the more At imminent must be. government illegal any rate, throw of means it would seem that the .dan ger or to (i. e., some other overt anti-social con- or evil must be clear identifi able) duct.5 substantial, (2) that, since punishable, the statute renders words aspect The troublesome federal tend, is invalid unless those’words with a try statute —as shall ex- high fairly degree probability, to in plain Appendix opinion— to this cite to Obviously overt conduct which .is (a) that, is that no one can now show For, harmful. ment, under any Amend First probability with publications reasonable obscene lawless anti-social “acts tend to have effects on thing. Speech main punishable is not normal, average adults, the behavior of sake, for its own (b) judi- statute, because of its that under that (cid:127) * * * cially connection interpreted, punishment appar- act's * * * ently provoking, But inflicted for more than a remote con *7 * * * ”7 adults, thoughts, necessary undesirable nection is See) sexual feel- ings, dangerous g., or desires—not overt e. American Ass’n, Communication’s conduct, prob- anti-social either Douds, actual C.I.O. v. 382, 398, 339 U.S. 70 S. able. 674, 683, Ct. 925, 94 L.Ed. as to “the right public Often protected the discussion of of the First Amend to be exceptions ment conduct, has been though couched evils even the First particular persons, straint, there be no such (1955) will 20 E. Cont. Problems &. ' consequences. 648, 652. interpretation If this were the correct See, g., Chaplinsky e. 4. v. State of ew N “filthy,” part then-that of the statute Hampshire, 315 U.S. 62 S.Ct. condemning “filthy” apply the would not 766, 86 L.Ed. 1031 . here, to the acts the defendant judge’s judicial “filthy” private' the instructions 5. The re enforcement of would some n rights suits, g., defamation, have been erroneous. for e. —as injury business, .fraud, I think' But we need not here Consider or invasion of interpretation agree my privacy exception..'. since I with within the —comes colleagues, that, the reasons McClure, Obscenity 6. Lockhart state, assuming error, there was the de- Minn.L.Rey. Constitution, (1954) the acquiescence fendant’s deliberate 295, 357; Kalven, cf. Law of Defama .The' - judge’s prevents. ‘instructions him from Amendment, (Uni ' tion and the First. asserting. now so ..... versity Chicago) Conference on the Arts, Publishing and the 3, .Law' nearly years adop-. after its “For ' ' n ’ ' ' tion, the First Amendment scant received 'Supreme th,e Court”; Blessings Chafee, Liberty from;.. attention , (cid:127) .Doctrinq.- Emerson, The of Prior Re-' 1896, groups States, Swearingen rights persons or v. United Amendment 765, infringed”. 562, 446, 40 L.Ed. thereby U.S. 16 S.Ct. in some manner added.) (Emphasis the under Court a conviction reversed obscenity statute; not consider it did opin- Supreme As I read Court’s constitutionality. its defending ions, government, constitutionality States, 1896, 165 Dunlop curbs U.S. of a statute v. United rely 486, page 501, 375, page expression, may usual at at free “presumption not validity.” 380, 799, No matter L.Ed. did not discuss the reasoning, constitutionality statute; more of the how one articulate the legis- that, over, opinion accepted when is now doctrine shows it dealt press, speech soliciting improper or free lation affects free sex advertisements legis- government conduct, relations, e., probable show that must ual i. with exceptions thoughts lation comes within one of the not with mere desires. See, g., v. e. Dennis described above. Clearing Coyne, In Public House v. 857, 494, 71 S.Ct. 341 U.S. 1904, 497, page 508, 194 U.S. 24 S.Ct. at 1137; Burstyn, Inc., Joseph 95 L.Ed. Wilson, 789, 793, 1092, page L.Ed. 777, 72 S.Ct. validity did not involve scenity Act, ob- legisla- Moreover, 96 L.Ed. 1098. when passing the Court said in expression, void-for- tion affects vagueness free constitutionality its never “has been impor- peculiar doctrine has a attacked.” tance; obscenity is ex- and the Limehouse, 1932, In United States v. vague. Appendix, quisitely (See the 285 U.S. 52 S.Ct. 9.) point interpreta- the Court decided the correct True, Supreme Court has said sev- “filthy” statute, tion of the word eral times that the federal stat- question not of con- did consider the statute) (or such state is con- ute stitutionality. Moreover, de- there the has di- stitutional. But the Court attacking fendant mailed letters had decided; rectly so it has so sub done might recipients characters who statute, applying silentio in the federal well have been moved to conduct constitutionality or has referred to peace. breach legislation in dicta. The Court has People New In Winters State thoroughly problem canvassed York, 1948, 665, 92 333 U.S. 68 S.Ct. any opinion, applied nor doctrine it the vague- L.Ed. held void the Court (summarized above) concerning the making it a state statute a crime ness First Amendment which the Court consisting publications princi- distribute years. evolved in recent base that *8 pally of news or stories of criminal deeds following analysis on statement of bloodshed or lust massed as to be- the cases: inciting vehicles for violent and come Jackson, 727, parte 1877, Ex In 96 U.S. depraved pass- said in The Court page 510, crimes. 877, 24 L.Ed. the Court held valid a stat- ing, 68 333 U.S. at S.Ct. at relating mailing letters, ute to the legislation subjecting 667, page ob- concerning circulars, lotteries. Such let- governmental publications to con- scéne might ters or circulars well induce the is valid. trol engage in addressees overt conduct engaging Court, only People Doubleday in lotteries. & v. In Co. of State passing, York, 1948, 848, obscenity 335 referred to the of 79, U.S. 69 New S.Ct. it, too, 398, Court, evenly and said 93 L.Ed. was valid. vote, opinion without divided affirmed a States, 1896, v. In Rosen United 161 sustaining decision state court a state 29, 434, 480, 606, U.S. 16 S.Ct. 40 L.Ed. obscenity statute. solely sufficiency issue was of an Alpers, obscenity statute, 1950, 338 indictment v. .under In United States 352, validity legislation, 680, 457, 94 70 L.Ed. not the of that U.S. S.Ct. amended, validity. not its construed the statute as the Court did discuss Court

804 thereunder, nothing; happen and affirmed I a conviction not to be interest- constitutionality. “pornography”; did not ed consider so-called and I its. think defendant’s obnoxious. motives following cases, valid where invalid, But if the statute were the merit involved, ity obscenity'statute of no was publications of those would be irrelevant. Court, passing, the legislation referred to People York, Winters v. State of New Bald v. valid: Robertson 507, 510, 665, 333 U.S. 68 92 L.Ed. S.Ct. win, 1897, 275, 281, 17 S.Ct. U.S. So, too, as to defendant’s motives: 326, 715; 41 L.Ed. Near State of v. “Although may, the defendant be the Minnesota, 1931, 51 S. U.S. * * rights worst of men City 625, 1357; Ct. Lovell v. 75 L.Ed. the best of men are secure as the 451, Griffin, 1938, 444, 303 U.S. 58 S.Ct. rights of the vilest and most abhorrent 666, 949; Chaplinsky v. State of L.Ed. protected.”8 Hampshire, 1942, 568, New 315 U.S. 571- 572, 1031; 766, (b) (as explained Beauh S.Ct. It is most doubtful Illinois, People Appendix) arnais anyone of State of in the whether can 250, 725, reading 96 now U.S. 72 S.Ct. demonstrate children’s looking prob- L.Ed. 919. at obscene matter has a (cid:127) able causal relation to the children’s anti- agree colleagues that, my I since If, however, prob- social conduct.9 such a court, ours is an inferior should we shown, able causal relation could there superior hold which our invalid statute doubt, think, could be little I of the valid- (al- has thus often said is constitutional ity (if of a statute so worded as to avoid discussion). beit I without full Yet ambiguity) specifically'pro- undue improper forth, think it not I to set hibits the distribution mail of obscene Appendix, do in the con- considerations publications young people. for sale to cerning validity statute’s legislation But discussion of such is here which, up now, with preme I Su- think the irrelevant, since, existing repeat, any of Court has not dealt in its federal statute is not thus restricted. opinions. suggest I do the inevitabil- ity of conclusion that that statute Congress (c) undoubtedly has wide suggest I it is unconstitutional. do power protect public morals. But the ap- conclusion, hard to avoid that if one severely First Amendment limits that legislation reasoning plies to power speech in the area of free and free Supreme applied Court has to other sorts press. ’ legislation. Perhaps overlook- (d) argued anti-obscenity argu- compelling contrary ed conceivable legislation because, is valid time at the maybe my Appendix ments. If so, will adoption Amendment; “ the First evoke them. obscenity was a common law Re crime. preclude misunderstanding my To Bridges lying alia) (inter v. State of stirring- purpose in doubts about' this California, 252, 264-265, 314 U.S. 62 S. statute, I think well add the fol- to. Grosjean 86 L.Ed. 192 Ct. lowing : Co., American Press 248- (a) publications As mail- L.Ed. I have my personal taste, Appendix ed defendant offend tried gument. to answer that ar *9 I would not cross a street to obtain them Judge dissenting justification 8. Cuthbert Pound in Peo is no the thesis that a ple Gitlow, N.Y. N.E. demonstrable causal relation exists be- reading seeing tween or the obscene and conduct, children, anti-social even of Appendix contains a discussion of proponent op- that the chief of the writings by Judge of those the described posite respect view with to the effect on persons competence “with Olark in children’s conduct does not maintain the premises”. to the tries show same as to adult conduct. overwhelming majority persons the competence with such assert there warned

thoughts read to mental control what adult appear censorship ble, path courts. constitutionality political they may stimulate, at a time when First Amendment detail frivolous to raise Milton, far different dominant future.11 non-governmental by government.10 ting true lic That basic ocratically lic structing, ute guarding group essence of does not herents keep (f) (e) influence opinion opinion less respect, obscene democracy purpose At The First in the some will (including any at first constitutional Thomas governmental But more serious dominant easily evaded, first prevent any private become embodied any has far more eminent exercised others not about not prevent struggle public opinion principle experience think (for legislature seeking glance may religious writings, (or Appendix) —leaves apparently glance: democratic Jefferson, Amendment, any question reasons means of problems public opinion undesirable; public other) thinkers of First the formation alive, censorship to it indispensable to read reading control of Church) incessant implications seemingly graver teaches that obscenity persuade, provision than deems undesira- reading. unhampered merely potency, We have been stated Amendment opinion reader, is of the governmental James mild molding confront citizens publications. process. seem almost censorship or distrib- legislation which, fully about literature from struggle body in more because govern- permit- and, adult’s —safe- course, sexual its Madi- John than dem- easy very pub- pub- ad- in- or A tionality punitive without I little doubt about the constitutional nevertheless year, will make in the feature, islatures publications 66 Pa.Dist. ports thoughts der it ute Goldman, Cir., tended to straint Court has transform themselves into anti-social confine attention to official havior, why whether thoughts, power best.” moment, gardless able adopt attitude arouse sor pointed keeps grown-up ianship son, voiced (g) ^[*] political aims dangerous in Commonwealth J. S. Mill and ^[*] them Assuming, towards constitutional. If by of obscene to censor out that sexual concurring »12 because thought of photographs, ? puzzlement that, it citizens enervates said, government advertisements any & Co. R. may should be asked good purpose its tending immature, administrative legislation thoughts censorship much, government altogether desirability “The thoughts, deeds? religious government causal not the any paternalistic arguendo, general, “Papa statute. ark leads citizens and books. opinion publications about validity to stimulate sexual may good in our 101, Judge of our covenant. Tocqueville have As the relation all too tend serious break it And even if we government publications stimulate cannot be ex- desirable Gordon, regardless sought and true censorship of possesses the constitu- does not But an insidious why, that a their in Roth v. officers daily probably thoughts of a promote prior then had Supreme ready the next purely Curtis at guard- knows press, spirit, which prob- stat ren end, cen- leg any un the re- be- re- re- to to by influencing opinion, pressure social Public at- The results of the current opinion may always titudes, may convention, public happy. create with no governmental democracy accepts postulate it, “sanction” behind far our But that, long struggle run, more coercive than statute. Of. Arrangement public opinion Holmes, produce sway and The Codes will *10 Law, (1870) 4, policies. further the 2 Am.L.Kev. 5. wisest For discussion of Appendix. theme, the see Notably this true of conventions as Barre, Obscenity; Case, Bailey obscenity; La An Labor Tax to Child The 12. Anthropological Co., Appraisal, 20 L. & Con. Drexel Furniture (1955) 533. 66 L.Ed. 817. Problems ings Bok,’ 'reflective most two1 2—Letter to one of America’s Advice of- validity Young Proper Choosing judges', directly on the Men the a attacked - The-Speech legislation-. Polly Mistress ány punitive Baker His bril- such jury reasonably opinion, —which liant could find “ob arguments which states scene,” (so know) according judge’s been to far as I the instruc have never skeptical nudged basis, answered, tions in me into the case at bar. On the opinion and the tomorrow a man views contained in this were to send those Appendix. mails, through works of Franklin Post propriately mously designated foregoing) however, on the pecially pretation of cent set to hold that constrained Court think deserve As a 1. forth, light carefully Office.” years, Benjamin concerning First Continental constitutionality of that statute. judge I expressed known as the that none of by opinions think I deem not .the Among of an inferior canvassed the legislation valid. Appendix consideration Franklin, following, Supreme Court’s inter- First (as Postmaster General his indicated Amendment, Congress, published writ “father of the in 1776 unani factors improper Court court, problem Supreme opinions passing in Since, in re- I am ap es- can Colonies: Jefferson, who extolled Franklin as an American wrote under the federal would be Ovid’s copies intellectual ure”)5a nius” was “an “Rabelaisian anecdotes.”6 Nor ^[*] colonial taste of these men Madison, also an admirer and beloved” of his Baker.5 No less would it have astonished (whom That fact would jury *>>7 of Tom approvingly he described as a man whose planter Art found him and himself subject genius,3 Jones, ornament New “Many obscenity Love, surely Virginia called him “venerable guilty) unique of Franklin’s prosecution Tristram countrymen,4 England given have astonished in the Ameri library statute.2 or a colonial punishment human nat Rabelais. Franklin was Shandy, boasted telling. Polly “ge (if Benjamin Brant, Doren, Madison, Frankli 1. See James Van Father n 150-151, (1938) (1950) 309; April Annals, Constitution 22, 153-154. Aeademy to The Franklin’s Letter 1790. (see Doren, 151-152) might Brussells Van Padover, Complete 6. The Madison “filthy.” be considered 8-9. 2. 1461. §. U.S.C. George Washington, who knew Frank- well, gold-headed lin treasured by cane Jefferson, Virginia on the *11 encouragement, press”, As, speech, in of “freedom the with Jefferson’s Congress, right freely Madison, speak cludes the write to and in the first session subject. public concerning any First for the introduced what became Amendment, specifically the As the Amendment refers to it seems doubtful religion]” speech guaranty to “the free and [of of free exercise constitutional * * * right people “of to as press intended been free could have and “petition Congress validity and enact the semble” to the Government to allow to grievances”, specifical for a redress of it “obscenity” receives re- Act. doubt That right ly freely speak following: includes the to from the inforcement concerning gov public for and write the religion; adoption 1799, eight years In after and not ernment but it does Amendment, Madison, in an of the First right topics. limit this to those Ac Assembly Vir- General Address cordingly, and the views Jefferson ginia,8 opinion” “truth said that the speak Madison about the freedom to ought “imprisonment, subject to be not concerning religion write are relevant to of a different be inflicted those free a consideration of the constitutional opinion”; it there also asserted that he respect subjects. dom in Consider, other Amendment9 would the First subvert then, men what said the freedom “distinction between make a religious about freedom discussion: press.” the licentiousness and Previously, 1799, denouncing Madison, in dis “a he wrote that tinction “between the freedom and opinions property in man has “By press” said, licentiousness of the them,” a and that free communication judge help, its as to what licentious government property which “violates the through may escape any constitutional opinion which individuals have their * * (cid:127) restriction,” it, added, “Under pattern Unit- Congress might religion denominate a proposed Con- ed States.”10 Jefferson’s pro licentious, to be heretical and Virginia (1776), provided: stitution “Printing * * * suppression ceed to its Re free, except presses shall be * ** press member is to private injury far commission having mankind indebted for dis given private be action.”11 cause pelled long encompassed the clouds which Inaugural (1805), In his Second Address * * *”12 religion Jefferson, in “No inference here intended he said: quoting Amendment, said First provided by the laws State guarded sentence, “in the same defamatory against publica- false * * words, under the same religion, freedom tions should not be enforced speech, press; in and of the truth, press, The confined to needs no * * either, somuch, that whatever violates *; other restraint and no other sanctuary throws down the which covers line definite can be drawn between the others.”13 wrote in liberty press inestimable and de- really letter, moralizing “I mortified to be told am If licentiousness. there still America, improprieties in the States of this rule would be restrain, supplement (the book) its must like sale of a be fact can sought censorship public opin- inquiry, subject in the crim and of become against too, ion.” inquiry offense inal religion; (such) question can phrase The broad First Amend magistrate. legislation ment, abridging the civil Is prohibiting before carried Complete Padover, Padover, Complete The Jefferson See The Madison 11. 8. (1953) (1943) 295-296. Madison, Address the General referred to “Third As- Madison Amend- 1799; -Padover, Virginia, ment,” sembly of see but the context shows he meant Complete Madison First. The Complete Padover, Complete Padover, Jefferson 10. See Madison 13. See (1943) 130. 268-269. *12 religion? prevalent this among then our freedom of And spon- views those who impri are we to adopted have a censor whose sored and inor accord with say subsequently matur shall what books be sold developed views which * * may buy? legislation what we would sanction more restric- Whose foot to speech is to be measure which tive press. of free and free ours are all to ?”14 stretched cut following So pertinent: becomes high-light Those fact: utterances this Century Some of those who in 20th speak publish publicly Freedom to and to legislation suppressing endorse “obscene” has, important cor- its inevitable literature have an attitude towards free- relative, private rights hear, expression dom of which does not match read, and to feel about what think that of the framers of the First Amend- one First Amend- hears and reads. The (adopted ment at the end of the 18th rights protects private ment those Century) attitude, but does stem from an hearers and readers. writings dealing sex, towards with forget that, prompted We later, should arose decades in the Cen- mid-19th by Jefferson,15 (who tury, time Madison one and is therefore labelled—doubt- had doubted Rights)16 wisdom Bill sweepingly of a less too It was —“Victorian.” urged Congress dogma when he morality” of “Victorian the enactment of what the first became encouraged sexual misbehavior would be Amendments, declared, they “If ten “acknowledge if one were to its existence incorporated Constitution, into inde- vividly enough or at rate to pendent justice will image tribunals consider to form a life-like of it in the peculiar mind”; themselves in a manner morality reader’s rested on guardian rights; they of those you will be conquer a “faith that could best evil against every impenetrable by shutting your an barrier as- eyes existence,”18 to its Legislative sumption power magic.19 in the a kind of word de- The Executive; naturally will be led “decency” mands at time for rights every upon resist expressly stipulated encroachment published comport words did not the Constitu- many the actual sexual conduct of rights.”17 In' tion the declaration of who those made those demands: “The including short, Rights, the Bill general Victorians, managed rule, aas Amendment, designed First merely was not conceal the ‘coarser’ side their lives aas set of admonitions to the thoroughly respect- under a mask of legislature executive; pro- and the its ability that we often fail to realize how * * * by the visions were to be enforced courts. really ‘coarse’ it was Could necessarily have recourse to we the Vast unwritten Judicial enforcement en- judicial bawdry, interpretation. ques- tails The literature of we should be able courts, tion whether therefore arises to form a more veracious notion of life enforcing Amendment, (then) really the First respect- as it was.” The interpret days often, it in should accord with the ables of “with unblush- Complete Padover, Amendment, 14. See The Jefferson First Yale L.J. (1943) (1956) 889. 468. (1789); Letter Madison 15. Jefferson’s Wingfield-Stratford, Those Earnest Vic- Complete Padover, (1943) Jefferson (1930) 151. torians n Brant, See also Madi- 123-125. son, James Kaplan, ODseenity (1950) 19. See as an Esthetic the Constitution Father of Contemp. Category, & 20 Law. Problems (1955) 544, cultures, 550: “In ob- 84; Cahn, No. 16. The Federalist scenity important part magical Amendment, First Firstness magical own, In our its rituals. character L.J. Yale betrayed puritan’s supposition- Madison, Writings (Hunt ed.) V, 385; evil, alone can work that words and that Liberty Against Corwin, Government will be 9yil averted the words 58-59; Cahn, The Firstness are not uttered.”

809 night scenity ing “high license,” revels” in was held law crime at the common them, adoption Mrs. War- time of the houses.”20 Thanks the First Amend- to of Quite that, profession flourished, but it was ment. ren’s aside from the fact previous Amendment, it considered to talk about to had sinful the there recognition purely Crime, prudish ver- been scant the books.21 Such a and of this (more code, or less bal moral at odds short answer seems the fram- to be hypocritically) knowingly of ers of the with the actual conduct and de- Amendment seen) liberately (as depart its was we have to the adherents intended English code of not the moral of who framed common law to freedom sup- speech press. the One would and First Amendment.23 freedom of the See pose, Grosjean then, Co., courts should inter- 297 U. the American Press 233, 248-249, pret and S. enforce that Amendment accord- 80 L.Ed. S.Ct. ing 660; Bridges framers, California, to views the of those v. State of according 252, 264-265, code.24 U.S. the later “Victorian” 192;24a Patterson, Speech Free and a “founding did not ac- 124-125, (1939) 101-102, Free Press fathers” cept concerning the common law 128; Schofield, 2 Constitutional Law and expression Equity (1921) freedom of 521-525. argued has It legislature been the federal course, Of the wide has obscenity statute is valid power protect because ob- public what it considers Wingfield-Stratford, cit., loc. 296-297. liberty speech lish common law on of press.’ Schofield, and Freedom Paradoxically, apparently this attitude of the Press the United 9 Pub- obscenity. tends to “create” For Amer.Sociol.Soc., 67, lications More foundation of seems to be secre- specifically, forget is to the environ- cy and shame: secret “The becomes ment which the First Amendment was secrecy.” Kap- shameful because of its presenting proposals ratified. In lan, Obscenity Category, As An Esthetic which were later embodied in Bill Contemp. Law & Problems Eights, Madison, .Tames the leader 544, 556. preparation of the First Amendment society sure, every “pretend- 22. To be ‘Although said: know whenever (moral legal) pub- rules” great rights, which it jury, the trial freedom licly Indeed, voices but does not press, liberty conscience, enforce. gap necessarily exists question body between a so- (Parlia- come ment), in that ciety’s ideals, exalted, all and its the invasion of them is resisted practices. gap But Magna the extent advocates, yet of the able their Charta significant. See, g., Frank, e. any provision Lawless- does security contain one for the Encyc. (1932); ness. rights, Soc. Sciences respecting of those Frank, Kahn, cf. people Preface A Court for America are most alarmed. (1953). press Children rights The freedom of the conscience, privileges those choicest 23. It is of interest that not until the Tar- unguarded people, in the British Congress any iff Act of 1824 did enact Congress Constitution.’ Annals of legislation obscenity. relative to 1789-1790, And Madison elsewhere * * * press wrote that ‘the state of the suggestion 24. For discussion of the * * * law, under the common cannot provisions provide constitutional be the standard of its freedom in the merely safeguards may minimum Writings United States.’ VI of James properly enlarged diminished —to —not 1790-1802, Madison 387. There are no newly emerging policies, meet needs contrary implications any part Supreme Supremo see Court Law history period in which the First (Cakn 1954) ed. 59-64. adopted. was framed Amendment Bridges California, 24a. ratifying purpose Rights State No Bill of 252, 264-265, securing 62 S.Ct. was clearer than that for people Court said: “In event it need not of the United States much us, English detain greater religion, expression, assume that freedom assembly, common petition law in people this field became ours is than deny generally accepted enjoyed. historical Britain had ever Great can- objects denied, example, belief that ‘one of the not be ligious the re- get Eng- upon Revolution was to rid of the test oath the restrictions Although vis the morals. se- First But Amendment First Amendment.26 (and

verely power required circumscribes that still be true that more legislative justify legislation powers) “preven other area providing speech press. “punitive” censorship,27 tive” and free than substantially distinction has been eroded. Subsequent punishment as, practi- *14 See, g., States, e. U. 341 Dennis v. United prior cally, restraint 494, 1137; 857, 95 S. 71 S.Ct. L.Ed. - long time, For a much was made 47, Schenck States, v. United 249 U.S. calling the distinction between Jonge 247, 470; 39 S.Ct. v. 63 L.Ed. De “prior providing restraint” and one Oregon, 353, State of 299 U.S. 57 S.Ct. subsequent punishment;25 the criminal 255, 278; 81 L.Ed. said, Thornhill v. State alone, former it raised was once constitutionality any question Alabama, 88, 97-98, vis-á 60 310 U.S. S.Ct. assembl'y prevalent England 454-457, Clarke, 441, would 12 L.Ed. in v. 5 How. then 226; regarded Alabama, supra, have been as measures Powell v. State pages 55, prohibited 45, 60-65, the the American 287 Constitution U.S. 53 S.Ct. Congress passing. light the since from And 77 L.Ed. 158. In the unequivocal language said, used same now been it evident the press, signi- respect English the re- to freedom of restricted rules of the law in concept enlargement spect press of that fies a similar of the freedom the adopted while the well. as Ratified as was force when the Constitution was memory English oppressive accepted by re- were never the American ** liberties strictions on the enumerated colonists fresh, can- still the First Amendment was Blackstone, influentially, 25. most made this prev- approving reasonably as be taken distinction; Commentary, Blackstone, 4 English con- the Practices. On alent punishment 151-162. His condonation of by supported trary, only conclusion the patron, reflected the views of his Lord unqualified prohibi- history who, opponent Mansfield, an of a free in- framers were tions laid down part press, punishing took active press, liberty give as to tended to published government. criticism of the scope liberties, the broadest to other But like men Jefferson and James Wil orderly in an be countenanced could Tory political son abhorred views of society.” Mansfield, both of Blackstone whom Co., Grosjean 297 v. American Press high opposition ranked had to 444, 448, 248-249, 233, 56 S.Ct. Jefferson American Colonists. wrote to said; 660, “It is im Court Madison of “the horrid Mansfieldism of possible words concede that many young which had Blackstone caused press’ the framers ‘freedom lawyers Toryism.” American to slide into merely adopt intended amendment “republican applauded Jefferson Tucker’s by the law of reflected narrow view then published ized” edition Blackstone England freedom consisted that such Frank, See A Sketch of An In 1803. censorship; previous immunity fluence, Interpretations in the volume permanently dis had then abuse Philosophers Legal (1947) 189, Modern ** practice. English appeared from especially 231; 191, 196-198, also see range Undoubtedly, of a constitutional 205, 210, 207, 215-217. For James Wil phrased provision common in terms the by politi Blackstone’s son’s denunciation of recourse be fixed sometimes law attitudes, see, g., opinion Wilson’s e. cal applicable of that law. But rules . Georgia, 419, v. State of 2 Dall. Chisholm recourse, justifies such doctrine 453, 458, 462, 1 L.Ed. 440. construction, must canons of other like compelling yield reasons when more Holmes, J. in Patterson 26. See State of Continental Illinois exist. Cf. ever 1907, Colorado, 454, 205 U.S. 27 S.Ct. Chicago v. & Trust Co. of Bank Nat. citing 556, 51 879 L.Ed. Blackstone. But Co., Ry. 648, Chicago, & P. 294 U.S. R. I. subsequent compare dissenting opin his 595, 688-669, 79 S.Ct. L.Ed. 55 States, in Abrams v. United ion subject quali obviously, And, to the it is 624, 40 S.Ct. 250 U.S. L. 63 common-law rule invoked rejected fication 1173, which abandons Ed. Blackstone’s our ancestors be one shall dichotomy. political their civil con unsuited phrases, Lasswell, Murray’s see For these Lessee v. Cen- Den ex ditions. rel. Co., sorship, Ency. (1930) 290, Improvement of Soc. Sc. Land & Hoboken ; Waring 272, 276-277, 15 L.Ed. 372 How. 1093; Chaplinsky 156, 157; State 83 F.2d Parmelee v. L.Ed. Hampshire, App.D.G. 203, of New 315 U.S. See 729. Note 86 L.Ed. 1031. Yet the courts still define Through average Hale, normal also Law terms Freedom assumed 257-265; Emerson, thoughts The Doctrine adult reader’s sexual or desires Contemp. impulses, Restraint, re- Prior 20 Law & without reference thought-stirring (a “subjective” Problems lation reac- between those Kalven, problem); loc. subsequent discussion of the tions conduct. 8-10, judicial (For opinions key phrases cit. at further discussion use thoughts infra.) theme, “suggesting of this see .this: ex- lewd citing desires;”28 sensual “arouse statute, judicially interpreted, *15 as “ salacity reader,”29 ‘allowing of the or inducing punishment authorizes for * * * implanting obscene, lewd, or thoughts, feelings, mere de- or thoughts ”,30 lascivious or desires’ sires judge’s “arouse sexual desires”.30a The adopted time, For a American courts charge in the instant case reads accord- obscenity 1868 the test in contrived ingly: “It tend to sexual im- must stir Queen Hicklin, Cockburn, L.J., in v. pulses sexually impure lead Q.B. L.R. 3 ob- “I test of 360: think the thoughts.” statute, Thus the as scenity tendency this, whether the it, appears provide courts construe charged to de- the matter punishment inducing criminal for no prave corrupt those minds whose thoughts, feelings, more than desires. open influences, to such immoral into adequate knowledge No is available con- publication sort whose hands a of this cerning the on the conduct effects might fall.” added book He that * * normal reading adults see- or suggest question there in thoughts “would ing the “obscene” impure of a most and libidinous Suppose assume, we arguendo, character.” that thoughts sexual feelings, stirred The test in most federal courts “obscene,” probably will often issue changed: They speak not now do into overt conduct. Still it does not at thoughts open whose “those minds are * * * all follow that that conduct will be anti- but, immoral influences” social. For person no sane can believe thoughts average instead, of adult socially harmful if sexual desires lead determining women, normal men and normal, anti-social, and not sexual be- thoughts are, by proof what these since, behavior, havior without such trial, by the at the standard of “the disappear.31 human race would soon average time,” of cur conscience right.” See, Doubtless, Congress what validly pro- rent “social sense of could g., D.C., Kennerley, v. e. United States punishment mailing any publi- vide 119, 121; Levine, F. United 209 States v. if there moderately cations were some Dennett, Cir., frequent contemplation 2 28. United States 39 young F. the. la- 2d 76 A.L.R. 1092. bathing dies dresses must tend to the corruption community. moral On Levine, Cir., United States v. contrary, ubiquitous these exhibitions 156, 158. have so diminished what was left of the 30. Burstein mystery they might of womanhood that F.2d easily upon ground condemned be another City American Liberties public policy, Civil Union v. 30a. that tended to Chicago, 3 Ill.2d N.E.2d destroy the natural fascination female, attention of the male population thoughts was diverted from opinion Mr. Justice Cf. the Codd marriage cricket, darts, Integrated motor-bi- Press v. The Postmaster Gen- dq occupations cycling reported eral, and other Herbert, Codd’s Last nothing-to pop- arrest 16: “Nor the decline is the Case Court impressed by the much contention ulation.” showing points definitely precisely substantial reliable data direction reading seeing prob- publications opposite assumption. those to that ably seriously conducesto harmful sexual Alpert reports33 that, when, part conduct on hu- of normal adult 1920s, college graduates 409 women were beings. man we no such data. But things writing asked to state what sexually, they .stimulated them answered Suppose argued ex- whatever books; “Man”; thus: 218 said 95 said longings might possibly pro- cites sexual drama; dancing; said .40 said cannot duce sexual That misconduct. pictures; said Of said music. Notoriously, perfumes some- suffice: replied who “that of. their sex the source aphrodisiacs, yet one no will times act as books, information came from not one Congress may suggest con- therefore specified ‘dirty’ book In- as the source. stitutionally legislate punishment Bible, stead, the books listed were: among mailing perfumes. may be that dictionary, encyclopedia, novels conduct, irregular sexual the stimuli to Henry James, circulars Dickens to women, al- men normal diseases, books, about venereal medical anything most of carnations odor —the Motley’s Repub- Rise of the Dutch sight cheese, of cane or a candle replying Macaulay, lic.” to advocates *16 gunny- shoe, or a touch of or a the silk suppression books, the of said: obscene knows, anyone stimuli For now sack. “We in a find to believe that difficult may provocative far of that sort be more this, any temptations full world so of reading obscene of such misconduct than gentleman life have been whose would seeing pictures. Said books or obscene Aristophanes if virtuous had read he per- Milton, “Evil manners are

John Juvenal, by reading will be vicious books, learnt, fectly thousand a without Echoing “Jimmy” Macaulay, them.” stopped.” ways that be other cannot Walker heard remarked that had never by New of á woman seduced a book. “obscenity” adult on conduct Effect of obscenity Mexico has had an stat- never exist, think, I no thor- date there To .ute; that, no in that there evidence is by persons competent ough-going studies state,- proportionate- sexual misconduct is normal justify that conclusion greater ly elsewhere. than reading seeing of the “obscene” adults' young people on conduct Effect of probably conduct. induces anti-social (as noted) federal courts competent as have been Most above studies Such obscenity complex and now hold that the test of is do conclude that made average on effect the “mind” of the of vice sexual are the causes numerous any being adult, impossible normal that with effect deter assert it is that “average “obscenity” represents mined time,” a conscience that assurance ponderable sexually devi- the current is “sense what factor causal “Although right”; whole and that the statute does not behavior. ant adult hinges censorship obscenity intend “to reduce our treatment of sex subject of library assumption ‘ob- standard of a upon unproved that child’s significant few”; supposed interest of factor salacious is scene’literature Kennerley, D.C., 209 causing United States v. F. from the com- deviation sexual standard, report 120, 121. munity be found no can genuine single research effort However, pressure there is much singling assumption out as designed legislation, prevent test juvenile study single effect of sex litera- delinquency, factor which will chil- out dren, e., upon prohibit young What lit- behavior.”32 sexual i. will the sale to ture done, “obscenity” desig- persons competent has been research other tle Obscenity Alpert, McClure, Censorship Judicial 33. See Lockhart Contemp.P. Press, (1955) Courts, & The Harv.L.Rev. L. The 587, 595. problem on the juvenile does nated matter. That treatment and causes of here, delinquency, recently published since the federal itself ten-year study The trial results of a statute is not thus limited. of its causes. charge They judge exhaustively case approximately instant studied jury might told the that the “test” under factors and influences that lead explain juvenile delinquency; to or mailed is effect of the statute not the gave comprising particular the Gluecks matter on “those no consideration to segment community”, “young” type reading material, were immature”; is, see United delinquents. or “the read This 156, 157. course, finding Levine, F.2d States their consistent delinquents very little. read When those a chil- Therefore a discussion problem who know so much about the protective irrelevant dren’s among very delinquency youth Judge —the But, dis- since Clark does here. group about whom the of cen- advocates linkage alleged cuss the sorship are most concerned —conclude delinquency, juvenile and since delinquents that what read has so little thought perhaps that it bear- has some upon their effect conduct that it is not ing question of ob- on of the effect investigating worth in an exhaustive conduct, scenity shall dis- adult too good study causes, there reason for it. cuss concerning hy- serious doubts the basic following summary is a recent pothesis obscenity censorship on which subject “(1) :33a studies Scien- dependent. other influenc- 33b juvenile delinquency studies of tific society stimulate desire sexual es get into demonstrate who frequent are so much in- more their trouble, greatest and are the concern *17 potent fluence and much more in their censorship, the advocates of far less are reading is effect influence of to do not inclined than those who read insignifi- most, relatively likely, at to be delinquent. delinquents are become The composite in the of forces cant that lead generally type, the adventurous who have deviating individual an into conduct from reading and little use for other nonactive * ** community sex standards. assuming Thus, even entertainment. demonstrating studies And the that sex reading sometimes adverse has an knowledge reading from seldom results upon behavior, is effect moral the effect unimportance of relative indicates likely substantial, to be for those thoughts in sexual and be- literature susceptible who are seldom read. compared with other in Glueck, havior factors Sheldon Eleanor and who are among society.”34 country’s leading authorities 33b. 33a. V. a new quency York Law of “scientific” our progressive “In the See, more summary report, (1955) 8. Noviek, Superintendent Perhaps I, Lockhart Minn.L.Rev. programs, e. Training cautious phenomenon. discussed g., Frank, Obscenity public one, alternately some education, society and deplore and other bit summary, applied School for eye McClure, Literature, infra. and The too 4 J. of Public Law today * * * the use of the word Bach the direct horror sweeping. to social studies. reasoning see pet peeves juvenile Girls, of generation Constitution, 385-386. This comics, the New result writes: Jahoda of this For a is not delin- T. of dren he manifested Integrating munity, delinquency ways censorship ficient restrictive prevent adults ing is no Shakespeare) for strain, an which adults havior Charles scapegoat effect its risen would has been concerned about to note that of and the era have delinquency. delinquency. They merely upon Lamb exception its Fed.Probation, measures of during periods will cure the children always had no belief reading Delinquent which (whose be manner in expressed.” ^[*] * in his delinquency problem. such as At sought and has which we matter concern place the same ^[*] of in Tales From Neither do stress and looked which His Com- with chil- It is suf- * * panacea Noviek, has al- the be- (1956). blame * ** time, have un- liv- for * (cid:127) “the; Censorship Judge however, Some'Assumptions Clark, speaks in the compe-- (1954).35 strongly report Debate I held have read this views .those with very (which survey premises in direct- tence as to the is a available careful theories). obscenity, psychological I de- the- studies and connection" of “with He; expresses quite, velopment juvenile delinquency.” con an .of attitude think-it by opinion trary quotes Judge to that- Clark. a recent indicated cites an; my any possible Appeals In order to avoid bias N.ew Court of York in, thought interpretation Judge Vanderbilt-, report, article-.by I which of that writings persons turiy thus- own cité the well to ask Dr. Jahoda to write her with-, summary which, by Judge it, permis. "those Clark as described her so, sion, (In doing premises.”,- quote. competence of the. I shall I am in.the .One Dr,. following writings example report, Jahoda Mr. Justice is a cited of, who, Impact associates, Commis in Federal Trade entitled Jackson Psychological Co., Discussion A v. Ruberoid Literáture: sion open reading sunlight, In his- be choice made censored harmed-children: apt Essays education more than when made shadow of Elia wrote Bridget, tumbled on the of honorable cousin “She was fall side behavior.” of his similarly: good early spacious in- old closet of Watson writes “What into a English reading”' (which Eliza- most sterile nocent children need is not a included and 18th from which all evidence and Restoration dramas environment bethan * * * * * removed, century novels) lust selection been “without much help interpreting upon prohibition will evil browsed at Honie, pasturage. inescapable part Had is an that fair and wholesome life. brought up cooperate twenty they girls, should school- church should be I exactly to create artificial hot-house this fashion.” insula-. Bok,. perhaps Judge. but to chil- . tion life’s realities enable Curtis .--remember- yes! “Ah, publica- respond, ing remarks, I under- Lamb’s said dren class !” children middle him Commonwealth v. stand Most tions before parents spells Gordon, 1949, alarm their Pa.Dist. 101: homes & Co.R. violence, imaginative care overdo whether one -would “It will asked worry death, listening daughter talk, young read sex cowboy about one’s comics, reading suppose programs, inane time these books. stories, exchanging dirty enough and most of wish them is old to read biologic she *18 time, in or without adult coun- facts them with will have learned she way go through sel, will work arid that with them. their to bet- of life the words something seriously wrong at' ter standards of taste. Protection There is censorship might leave met such children been home those facts not -susceptible; by then; and more some of faced sorted it is Weaker and and interests, measles, parents childhood like that should these much children of to a later life im- our I should contribute concern about this. useful receive munity.” Watson, daughters my prefer on meet Some Effects Cen- that own three upon Society, Meaning sors,hip in 5 Social the literature of facts of life and. neigh- Legal Concepts (1953) library my in than behind a of 83-85. world (cid:127) adversary “They barn, are Milton: not skilful face the Said for I can bor’s things, imagine young directly. of human who are considerers If the ladies there appalled removing they they read, remove sin the matter of to what can' page' A sinner renowned that he the bottom of sin.” declared the book close everything temptation.” further, they one; if-they but resist will learn “could read js people,' and in in "its vyo.rld what Kingsley passage Brown v. Cited parents have 'been discern- no and’ who Books, Inc., 1 N.Y.2d 151 N.Y.S. ing theii; need fear the out-' with children quoted by Judge 639, 134 N.E.2d 2d they back, hql,d ,for it can come. Nor Judge quotes and cites from Clark Clark. a,series minor life is little battles opinion only in connection with his this issues,- on and the burden...of choice is judicial “lack knowl our statement edge all, every day, and old. Our ypung us bearing prob of the social this daughters in¡the de-, live world and must quotation However, from that lem”. they be, women are to what sort opinion cide York cites Jahoda re New their, willing prefer to Judge port, we should be I-therefore assume that of decen- to include Jahoda deliberate informed '.choice -Dr. intended Clark among than, competence cy that rather an innocence “those with con-: ignorance. thai; spring premises”. , to If tinues releasing trigger acknowl- could serve 72 S.Ct. edged function unpublished provide the criminal act or it for a he relied on “an could that aggression treatise”, to e., not available substitute fan- i. one outlet of tasy, dispensing proper, I parties. practice is with need for crim- If quote empirical an au- inal similarly proper action. There no- evi- think to unpublished interpretation aof dence in either direction. thor’s treatise.) sum- published Dr. Jahoda’s regard impact “4. With to lit- mary reads as follows: reader, on erature the mind of the it must argue cen- for increased “Persons who pointed out that there is a vast over- operate printed sorship matter often lap in content between all of mass media reading assumption that about on the daily press, communication. The televi- violence and about sexual matters or sion, radio, movies, books and comics actions, par- brutality to anti-social leads present their share of ‘bad’ ma- so-called ticularly delinquency. An ex- juvenile to terial, great reports some with realism as pertinent psychological amination events, clearly of actual some fiction- following con- to the literature has led virtually impossible alized form. It is to : clusions impact isolate of one of media these population exposed research evidence on a “1. There exists no to all of them. disprove suggests prove particu- as- Some evidence either sumption definitively. lar communications which arrest at- good part tention of an individual proof “2. absence of scientific rule, people matter choice. As a do approach psychological lines of two expose everything themselves to assumption are examination the possible: offered, agrees to what (a) is known a review what their inclinations. juvenile delinquency; on the causes (b) is known about review what “Children, yet crys- who have often not effect of literature on the mind preferences their tallized unspecific curiosity have more reader. many adults, than perhaps open are therefore acci- on more vast research literature “3. In the juvenile delinquency influences from This dental literature. there the causes danger youngsters justify assumption may who is no evidence maladjusted reading are insecure reading (of who find about matters sexual delinquent ‘bad’ books as well leads to acts. violence about ‘good’ reality agree books) escape- juvenile delinquency Experts from’ single do not face. Needs no cause. Most of dare regard early events, which are not met in the real world are childhood them gratified reading fantasy likely, age, world. precede the as a nec- *19 though fully demonstrated, essary delinquency. not that ex- condition for later reading age, personal in- of comic books will later the nature of cessive aAt tensify qualities great- in children those which is assumed have much relations determining comic power delinquent drove them to the book world to er begin inability experiences with: an to face the the vicarious career than world, apathy, reading belief that the individual provided Juvenile matter. hopelessly impotent group less, is and driven un- delinquents as a read and less and, hence, accept- forces easily, non-delinquents. controllable Individual than brutality in reported violence and ance of the real in which so-called instances are allegedly ‘good’ world. influenced a de- books linquent in the manner in which ‘bad’ be noted that “It should insofar as him. are assumed to influence books sequence1 implied, insecurity is and causal maladjustment experiences precede in a child must and “Where sub- childhood exposure written to the word sequent or have combined to this events make potential likely, lead to these effects. delinquency psychologically der to Un read- fortunately, perhaps, reading ing of effects: have one two could young Shakespeare’s tragedies points millions of Wertham to the of Anderson’s books; might a frac- readers of such fairy and Grimm’s do much tales delinquents. tion of these readers become the same.” Many gum, drink latter also chew Most of the current discussion coca-cola, shoes. and wear soft-soled reading and relation between children’s says Moreover, specifically Dr. Wertham juvenile delinquency so- has to do with (p. 298) with is little concerned center on vio- called “comic books” which designed allegedly publications obscene (sometimes sex) coupled rath- lence reading by adults, (pp. Judge obscenity. Vander- than mere er 348) legislation advo- which he Judge bilt, Clark in an article from which cates do no forbid the would more than Regula- quotes, Feder, Book cites Comic display sale or to mi- of “comic books” California, (University Bureau tion- previously noted, nors.- As the federal Legislative Administration, Public obscenity statute so restricted. not 2).36 “It No. Feder writes: Problems definitely enough Maybe day we never been determined some will n reliable data portraying to show obscene books vio- whether or comics pictures lence, chil- do tend influence crime horror are a cause delinquency.” adversely.

juvenile Then dren's conduct sexual which federal statute could be enacted Judge Vanderbilt, in the article from would au- avoid defects constitutional Judge quotes, Clark also cites Wer- thorizing using punishment mails tham, Seduction the Innocent shipments in the sale interstate proponent Dr. Wertham' is the foremost pictures books to children.38 view that “comic books” do con- however, juvenile delinquency. is, Ja- at that chil- all clear to. tribute Report ignorant, consider- hoda takes issue with Dr. Wer- would be dren measure, obscenity, tham, variety able if no obscene who relies much on a variety go-propter-hoc post-hoc-er publications of ar- came hands. ever into their Youngsters get e., youths gument, a vast of education i. who had “comic deal read argu- delinquents. companions their became smut from books” sexual ment, best, age.39 proves report Dr. A of con- too much-: own verbatim Vanderbilt, Impasse Justice, 36. about sex was more or less limited Wash. age (1956), 267, had U.L.Q. what their friends of their own ‘contemporaries’ told them. After Ibid. youth’s home, source Such,a long ago suggested. importance school, was next from Seagle, percent young peo See Ernst and To the Pure about ple they reported had received most of few, information. about 4 their sex A Dennett, 39. Cf. United States v. reported percent, owed most A.L.R. 1092. books, percent asserted while less than Alpert (loc. 74) writes cit. at acquired they had most their in study Youth American Commission Exactly formation movies. young people and attitudes of conditions specified proportion church as same ages Maryland between of sixteen information. of their sex chief source reported twenty-four, 1938: offered These statistical results are not Maryland study was “For deliberate *20 conclusive; they more that do as picked ‘typical’ ly state, and, a ac upon assertion that than cast doubt the cording Commission, 13,528 to the the books, deprave corrupt and ‘immoral’ people personally young interviewed statistical re be admitted. These must speak Maryland can for the two hundred against placed in the sults scale young people fifty Mary thousand and upon weight dogma law of the twenty millions and land - counterpane high. lift the Add is founded ‘The chief source of sex States. “edu-. easily that ‘evil manners’ are ac this: youth ages for of-all and all cation” books; quired groups without books as with that religious found to was be the slums, contemporaries.’ labor, Sixty-six per machine barren crowded youth’s boys emotions, unreasoning forty percent lives, starved and cent , reported they girls -dangerous that far what knew minds are more to morals boys edge teen-age they at among have created cultural young a versations mosphere homes) which, at a average will for children (from respectable trifling maximum, only amazing proficiency addi ob- most their disclose imputed tional effect to children’s other can be language, learned scene perusal argument mailed of matter boys.40 Replying kind young protect the defendant. censorship need regulate all the "Who shall Milton said: obscenity The statute and the * * * youth of our conversation appoint newspapers * * * discussed what shall be many contrary * * Because of the views of reject judges *?” Most who competent scep- persons, one well be long youth past and have view are probably their How- tical about Dr. Wertham’s thesis. forgotten the conversational ever, what, logically, let cru- us see ways period life: “I remember of that daily press: sade After would do to the Dooley, boy,” Mr. when I was a little said referring repeatedly descriptions, to the little I don’t how was a “but remember books” me- “comic and other “mass boy.” dia,” of violence combined with sadistic and the behavior, The descriptions he sexual press. reputable says juvenile delinquency, contribute to writes, delinquency reflects “Juvenile assumed, Let it for the sake society. the social values current in a pub argument, contemplation of Both adults and children absorb so- these dealing a lished matter with sex * * * lives, daily cial values their significant impact conduct. on children’s and also in communications assumption, On we overlook cannot * * * through the mass media Ju- reputable news the fact that papers most our delinquency up venile mirror holds a carry periodicals advertise * * * society self-understood displaying photographs women ments and pattern a that such in a mass medium alluring decidedly sexually in what are * * nothing not come from does postures,41 emphasizing the and at times disease, they Comic books are not the are importance appeal.” of “sex That women * * * only symptom a so- same scantily clad, increases are there shown cial make forces that made comic books mystery bodies “the allure evils, other social and the same social psy hidden,” writes eminent an keep keep forces that comic crime books leg “A silk chiatrist. ing stock covered way they are.” the other social evils the a naked is much more attractive than added.) (Emphasis one; pushed shape into bosom daily newspapers, alluring especially pendant Now the brassiere is more than the circulations, Either, then, those with immense consti stat rea lities.”42 important part sternly of the “mass me applied prevent tute ute must be mailing ; newspaper copy newspapers sells reputable dia” and each containing Vir less than “comic book.” periodicals for much such ads tually descriptions, all the sorts sex photographs, must acknowl or else we Myerson, Speaking of Man obscene literature. than so-called chapter tangential, True, also the well known but a See attack is Penguin involved, problem in Anatole France’s Is- clothes and the is here approach social weight land. should be felt.” of this discussing books,” “comic Dr. Wertham Id. much of the advertisements makes ads,” carry. speaks He of their “breast slightly expurgated report, 40. For such a up “glamour playing also of their readers, Cleckley, see adult “sexy,” girls,” their their stress on Sanity (1950) Mask of 135-137. *21 “secondary emphasis sexual women’s on descrip- Larrabee, Is not this also characteristics.” The Cultural Context Cf. pe- Contemp.Prob. Censorship, in our “best 20 11. & tive advertisements Sex 672, ? riodicals” 818 mingled violence, principally against relatively which Werth in- Dr. enforced books,” conspicuous am finds in “cómic can men defendant here. like the gruesome found, accompanied by often n Da Capo: wholly Available data seem journals.

photographs, daily in those to obscen- show that the insufficient newspaper, Even a considered which is ity-statutes any excep- come within unusually published promi respectable, tion to the First Amendment. nently August 26, page, on first its on 1956, story decomposed “badly true repeat I that, because is that statute body” year a 24 school old woman not publications restricted to obscene . teacher, clump The found in trees. validity minors, mailed for sale to its story reported quoted police that had should be ef- tested in terms evil year saying “he old salesman as reading fects obscenity of adult on drove to the with the school teach area” adult conduct.43 lack With the er, that “the two relations on had publications probably evidence that got argument,” ground, and later into an effects, govern- have such how can the after which her times he “struck three discharge ment its burden of demonstrat- and, rock, on the back of the head with a ing sufficiently that the statute is with- away.” leaving there, Al her drove exceptions scope in the narrow to though today one prove, no can one the First Amendment? would think One may suspect such sex and stories possibility that the mere re- of a causal daily press im violence in pact have more ought surely lation to misconduct not be young on readers than do those - enough. books,” daily press the “comic since the Congress express Even if an made had reports reality books” while “comic legislative finding probable evil .the largely fic to avowed confine themselves influence, conduct, on adult of adult read Wertham, fantasy.42a Yet tion or Dr. ing seeing publications,43a obscene legislation propose who and most others courts would not be bound that find books” to chil of “comic curb the sale to ing, justified See, if it were not fact. dren, propose not extend that it should g., Corp. Sinclair, e. Chastleton v. Why newspapers.42b not? to 841, U.S. question reference is relevant (per Holmes, J.) where the Court said application stat- (declaring of a statute existence ready prose- prosecutors ute : Are our emergency) an liberty that “a is at Court not publishers newspaper un- reputable cute eyes its shut obvious mis not. do Act? I not think der that take, validity when the de the law suggest urge prosecutions. I do such upon pends the truth is of what declar validity of that statute has that ed.” And the Court there and elsewhere challenged vigorously because it has been judiciary may ju has held that the use important applied persons like ascertaining, not been dicial notice in- truth but, instead, legislative publishers has been .such a declaration.4 arguable pub- Levine, the fact that 42a. 43. See States ' regarded reader lication F.2d effect the. that “what impact “pornography” effect, upon' any par- influences its counts is its data, however, upon class, reliable No relevant him. ticular whom all those likely is available. to reach'.” Congress finding. 43a. no made ask one would dare of a news- 42b. “No Report There is such in the Senate none paper it observe the same restraints (supporting the 1955 amendment of Sec- constantly being demanded of 1461) quoted by Judge tion Clark in his ** Larrabee, the comic book.” footnote'5. Censorship, Context Sex Cultural Contemp.Problems' (1955) 673, Rumely, Law 44. Cf. United States n ‘ 543, 97 73 S.Ct. L.Ed.

819 Montaigne's valid,.why Essay on in this case with If punish- Virgil Congress provide validly Some Lines of or with Chaucer. many pictures mailing will Or consider nude books which ment for through provoke thoughts unde- which the defendant transmitted considers reproduc- mails, politics? and then turn to religion or sirable about painting and in the articles tions sculpture valid, then, If consider- the statute is Encyclopedia Britannica in the ing foregoing, that its seem it would (14th edition) latter are :45 Some of the ground: validity Con- rest on must led to “obscene” than those no less constitutionally gress, by statute, may En- Yet these the defendants’ conviction. mailing provide punishment for the readily cyclopedia accessible volumes are feelings thoughts evoking or books mere old, and, everyone, young without or sex, Congress so- them about considers frequently hindrance, mailed or are let cially dangerous, in the absence even Catalogues, country. parts of the any satisfactory evidence museums, equally almost famous art bring thoughts feelings or will tend mailed, contain and also often accessible reproductions socially that be If about correct, harmful deeds. sculpture, paintings why, it is to understand hard great masters, no “obscene.”46 less Congress similarly, may not constitution- ally provide punishment for such distri- argument (and To the that such books thoughts evoking mere bution books reproductions paintings famous religion politics, feelings, or about sculpture) and works of statutory ban, fall within Congress socially dan- considers the courts answered gerous, satis- even absence they “classics,” of “liter- that ary are —books thoughts factory evidence that those works which distinction” or have “an bring socially feelings will about tend to including, accepted place arts,” dangerous deeds. held, Art of court has Ovid’s Love so this

and Boccacio’s Decameron.47 There is exception 2. Judicial “curious this an- dilemma” involved “only “classics” condemns swer the statute merit,” without books which are dull and said, I As I have have no doubt the ap- in no will statute be- event reasonably find, beyond jury a rea- could “classics,” e., plied i. “of books lit- doubt, publica- sonable 48 erary distinction.” The courts have by defendant were obscene tions mailed explained escape how that dilem- judicial the current definition of within ma, gone but instead seem to have explained by judge the trial term as sleep (although uncomfortably) rather charge so, too-, jury. But to the in his horns. o-nits recognized a multitude works.of Compare, public up libraries. This dilemma would seem show art found instance, which are basic constitutional flaw stat- books exhibits 17, p. 36, See, g., g., Levine, See, Plate e. e. Vol. No. 47. United States v. 156, 157; 4, reproducing Cir., “Birth of Ve 83 F.2d United States v. Botticelli’s 2, reproduc Cir., ; p. 38, VIII, Ulysses, Book Plate No. One Entitled nus” 705; Couch”; Goldman, ing Cir., on a F.2d “Woman Vol. Roth Titian’s V, reproducing 20, p. 202, Plate No. F.2d 788. Satyr”; “Nymph p. 204, Clodion’s Goldman, 48. See Roth v. reproducing VI, Rodin’s “The Plate Kiss.” argue straight No one can face App. v. United Parmelee See reading (1) that an obscene “classic” F.2d 734 and note 19. D.C. library less harmful effects published Masterpieces that, See, g., Painting “classics” often are e. as the volumes, Gallery expensive they usually National affect of Art From large 1944) 68, 72, 114; only persons incomes, (Cairns ed. who have and Walker right Catalogue persons’ pecul- Pictures to read is Collected Yale that such iarly privileged. Alumni *23 currently attempt ute: accepted No one can reconcile the to control what our citizens see, im- test of with the read and First Amend violates.the munity g., of such rationally justify “classics” as e. Aristo- ment. For no one can phanes’ Lysistratra, judge-made Canter- Chaucer’s exception. The conten bury Tales, Gargantua scarcely pass Rabelais’ tion would as rational Pantagruel, Shakespeare’s solely Venus and the “classics” will be read or seen Adonis, Fielding’s Jones, elite; for, Balzac’s Tom an intellectual or artistic ignoring snobbish, Droll Stories. For writ- such “obscene” even undemo ings, just greater cratic, contention, because of artis- their nature of this there try charm, presumably far is will have no evidence that that elite a moral greater (an immunity dull in- fortitude influence readers than from moral cor writings. ruption) superior artistic exception, “masses.” And if the to make It will not do differentiate “clas- rational, meaning it contemporary were taken as that a sic,” ground published past, on the exempt book is if average comported that it mor- with the equates “literary distinction” with the place al of its attitudes at the time “classics,” amazing: the result would be original publication. Often this was not Judges literary would have serve as instance, true, true. It was critics; merge jurisprudence would Stories,49 Droll Balzac’s a “classic” now aesthetics; publishers authors and would freely by many public circulated libra- legal digests legal-artistic consult the precedents; ries, been therefore must have day we would some transported by (or mail in interstate Legal Restatement of Lit the Canons of commerce). point, if the More to erary Taste. the Amer- issue is whether a book meets ican common time, conscience exception The of the “classics” “average” question is how Consequently, therefore irrational. regard book, how now Americans interpret would seem that we should regarded published, it was when first rationally e., statute ex- without that —i. age Why here or abroad. should the ception. If, however, exception, as an relevant? After “obscene” book be exception, irrational, ap- then it would many years how 50 or 100—does that, pear valid, render the státute —25 writing qualify ? such a as a “classic” applied standard to the “classics” should applied pictures. be to all books The truth is that the courts have ex- that, result would be stitutional, in order to be con- cepted the “classics” from the federal ob- wholly statute must be scenity statute, since otherwise most inefficacious. deprived Americans would be of access to many masterpieces of literature and the censorship 3. How under the stat- arts, pictorial yielding and a statute actually operates: ute deprivation only laughably would not (a) Prosecutors, actually squarely censors, oppose absurd but would in- prior tention of the men exercise restraint. cultivated who framed adopted the First Amendment. punishment power Fear serves aas exception This to be found publication, —nowhere ful restraint on and fear judge-made in the statute 50—is a device punishment means, practically, often fear absurdity. invented avoid that prosecution. For most men in dread judges fact that sity have felt the neces publicity prosecution; dictment and seeking avoidance, serves to terrifies, alone and to defend a criminal suggest forcibly statute, that the in its expensive. action If the definition Goldman, in Roth recognized See discussion classics books and estab- page F.2d * * literary merit,” lished “imported importation if for noncommercial relating 50. The to ob purposes”; so, Secretary scenity, does § U.S.C.A. make an explicit exception Treasury “so-called has discretion to admit them. *24 fairly power, without Postmaster obscenity well General the limited and a had might any standard, re deter to close the scope, reference fear that known any publication happened only. But mails to he publications sorts of stricted prosecutor, vague Yet, judi a extremely federal of the on account dislike.55 statute, ap person under a federal of the cial definition obscene,51 proximates position: Within wide mails prosecution if he with threatened limits, (on Post he com can advice in interstate (or otherwise sends advice) master no merce) any which deals General on one’s 52 book almost threat, unorthodox, censorship unconventional, a manner exercise such an that, trial, any judicial apprehend su may without a without well with sex,53 arbitrarily. out, capriciously pervision, he will and carried threat should be Having special qualifications result, prosecu for that no punished. a each As be can, large (i. nevertheless, e., task, literary meas dicta he censor a tor becomes ure, power, a his will what tor) determine unbridled immense may A read on sexual virtually within district his uncontrolled discretion.54 gave way, In that the statute which be invalid statute would subjects.56 appeal; Books, Inc., infra, Bantam point discus on for further modified 51. See N.J.Super. 292, Melko, 96 vagueness. 25 A.2d of that sion 14 103 256. modified N.J. A.2d transportation, see 18 interstate 52. As to prosecutor If, however, confines substan- which contains U.S.C. § prosecution, a threat himself to mere provisions tially as 18 U.S.O. same to restrain reluctance traditional 1461. i very probably prosecutions will criminal injunc to obtain such make difficult Obscenity Kaplan, An Esthetic 53. See McCaffrey, Co. Book tion. Sunshine Sup., Contemp.Problems Category, 20 Law & 476; see also U. 112 N.Y.S.2d (1955) as to “conventional 551-552 ; Chicago (1954) 216 Harv. L.Rev. obscenity,” he as “the defines (1955) L.Rev. 489. quality any sexual which attacks work may particularly with re true This be essence, practices. patterns it is In and prosecutor. spect federal See Mr. Jus to a heterodoxy, presentation of a sexual Prosecutor, Jackson, The Federal tice accepted rejection of standards of sexual (feder 18: “The Am.Jud.Soc. J. of Zola, provide Shaw Ibsen and behavior. life, al) prosecutor has more control over surprises examples. no one familiar any liberty, reputation than other of Nana wrote author also J’Ac- person His discretion tre in America. Ghosts, Enemy cuse; Peo- An He can have citizens investi mendous. Profession, ple; Mrs. Saint Warren’s gated and, person, if he is that kind of Joan.” pub done to can have this the tune also, McClure, See Lockhart Ob- or unveiled in statements veiled lic scenity Contemp. Courts, 20 Law & prosecutor may Or the choose timations. 596-597 as to Problems simply a more subtle course have a “ideological obscenity”; note that prose: interviewed. The friends citizen’s generally (at refrained the courts have arrests, order cases to cutor can basing explicitly) their deci- least grand jury session, in secret and on pre- rulings literally may sions presentation basis of his one-sided guard against change in scribed to cepted ac- facts, the citizen can cause to be standards, moral “because held for trial. He dis indicted and ruling fly squarely would in the face trial, the ease before which ease miss very purpose guaranteeing for free- defense never has a chance to be expression and would dom of thus raise heard.” questions.” constitutional serious Joseph See, g., Burstyn, Inc., e. v. Wil- court, publisher, at the suit of a One son, 72 S.Ct. L.Ed. enjoined police chief of went be —who prosecution yond threat of ordered therefore, is, whether, to sell doubtful booksellers certain books— 56. It 656-; ground suggested (loe. Emerson on the the officer ex cit. at had calling punishment powers; 660), his ceeded brary New American Li in very Allen, arbitrary much of World Literature v. less D.C. volves conduct F.Supp. very censorship Ohio, much In another simi less than one calling prior case, prosecutor fact, restraint. lar where was actual en injunction joined, prosecution, prose order was much threats brings spite lawyers prior about añ restraint the “obscene’’ tales fre actual lacking another, speech- quently press free strik tell and free one data lawyers ingly :group as a become sin Amendment.57 flouts the First gularly depraved addicted sexual con (b) Judges as censors. duct, judges should not that “ob conclude prosecution When a and a is instituted *25 scenity” importantly does not contribute begins, censorship power trial passes much misconduct, to such and. that therefore judge: with- the trial If he sits the statute is unconstitutional ? jury, aout he book must decide a whether ' (c) by then, jury, is obscene. If trial Jurors as cetísons. obscene, plainly not thinks the book jury case; judge If in a the trial does or, he directs a for verdict the accused judgment not direct a verdict or enter a judg- guilt, after of enters a a'verdict acquittal, jury of exercises the cen- acquittal. judge ment of How does the power. sorship Courts said determine a whether book obscene? jury peculiar aptitude has a as a cen- by way Not of evidence at the introduced obscenity, since, representing sor of trial, way by judicial some of of sort community, cross-section of the it knows . judicial notice. Whence come notice peculiarly well.the “common conscience” data inform him? of the time. Yet no statistician would conceivably accept jury— the views of a judges Those whose views most know persons, twelve at chosen random—as Judges lawyers. best are other can and - sample community fair of attitudes judicial that, many should take gatherings notice at subject obscenity. particu- such a as A lawyers of at Bar Association jury may lar voice “moral senti- leading schools,58 or of alumni our law generation ago, ments” of a not of the fully tales are told as “obscene” as present time. by men, of those distributed like defend ant, jury convicted for Each violation of the ob verdict in an case scenity judges, sagely “really statute. Should then has been called a small bit legislation they jury set aside such If convictions? do ad hoc”.59 So each a'tiny they legislature. not, arrogantly constitutes are not somewhat autonomous concluding lawyers. exempt Any tiny legislature, that. an such expe- are one elite, by teaches, unharmed what will rience other, harm well differ from legislating obscenity. of other Americans? thus multitude If law as to yers then, since, And, may ask, purpose such elite are not an one was ' prior startling “prosecutor exercise cutor does restraint. For instan'ees therefore, censorship” Much, says Blanshard, Right that Emerson see The by prior ap 190; 184-186, authorized restraint Read ofU. Chi- censorship plies through cago well'as to á L.Rev. prosecution: prosecutor’s threats The Goldman, Cir., Roth v. See 172 F.2d safeguards “procedural built around crim page (concurring opinion) : at stronger prosecution” (the inal burden lyrics sung many “One thinks proof, evidence, stricter rules gatherings respected certain procedufe) tighter ab likewise faculty and- conservative member of the single The “decision sent. rests with a great óf law-school which it- considers ' Official, functionary,”' rather than distinguished the most self and which is prosecutor, The courts. with the many judges sitting the Alma Mater of accomplishes prosecution, pri-. threats of n ; ©,nupper courts.” . screen; of infor .'“behind .a restraint -Lives, Aubrey’s ’¡containing, many “sa- mality partial concealment delights tales, great- lacious” some of our opportunity, pub curtails seriously - - ¡ judges. est entailing

lic “chance’' appraisal” the. n was Mr. Holmes a constant Justice. and other of discrimination “policies abuse.”' “naughty reader of French novels.” See actions”, prosecutor, Bent, (1932) 16, Justice O. W.- Holmes censorship by prosecu-i threats n (cid:127) , * :'- -134. . tiOn, “likely pub: to" known are not . debated; liely study 2 Cir., Levine, material and-: 59 United States * n . 7 “readily criticism”' a're: available.” 5 1 guardianship repugnant to the mental Amendment, hun- authorize First According democracy: with basic tenet of our jury-legislatures, of divers dreds ideals, are self- citizens our our adult beliefs, whether to guardians, discrepant to decide fathers, own act as their statutes divers hundreds to enact not interfering self-dependent.61 When expression? and thus become freedom governmental act towards our infra, difference note, officials the vast (I shall “Papa juries of our citizens on the thesis applications between you,” good “ob- knows best what’s standard man” “reasonable To spirit citizens: standard.) enervate scenity” grown is to make men infants treat like dangerously nature infectious infantile; dependent, immature. them censorship books governmental *26 per- sagacious ideas or of men insisted. control So often have Governmental democracy. Milton, Areopagitica, preferences to is alien in his denounced sonal governmental yearning paternalism: use to censure them for And “We n censorship unguided giddy, people, in is infectious. of kind and vicious Commencing insidiously. (a) may spread of faith such sick and weak state obscene, it suppression as of books with and discretion toas be able to take down develop unlikely nothing through lust official into pipe is not to of a licen- thought-control power people sor.” both for the “We consider the as religion, politics, children,” Dupont elsewhere. our areas wrote Jefferson “licensing of books Nemours, you observed Milton * * “but in- de them as .love along necessarily pulls you whom with- fants afraid to trust licensing." J. S. freely nurses, kinds other and I as out adults whom of what self-government.” “bounds Tocqueville Mill noted leave to may easily police” sagely moral be called remarked: “No form combina- yet most policy encroaches on the extend “until it tion social has been devised liberty legitimate energetic of the unquestionably people an make a commu- nity should pusillanimous We beware individual.” citi- and enfeebled “Man,” Goethe, doc- of the undemocratic recrudescence zens.” ily “is eas- warned century by 17th slavery uttered trine accustomed and learns Virginia: Berkeley, “Thank quickly Governor obedient when his freedom preach- are no free schools Becker, God there from taken him.” Carl Said learning brought ing, “Self-government, spirit disobedi- has and the of free- world, printing it, ence into dom that sustains can be maintained (cid:127)divulged keep God us both." them. people intelli- sufficient gence honesty self-guardians: to maintain them with people censor- The legal compulsion. by public This ship opinion, a minimum heavy responsibility government price is the of free- “great art,” according dom.” The Plato, democracy, pro- who detested Milton, “lies discern in what the law is poets; posed and his rulers to banish punishment, “guardians” to bid restraint and and in peo- to serve were things persuasion only good, vig- telling people’s what to work.” ple, lies for the writings back, more, orously suppressing once these So we come to Jeffer- dangerous.60 thought guardians only completely Govem- The advice: demo- son’s blueprint Story ; Catlin, (1934) “an ideal Plato furnished The 60. Political society”; Chroust, 52, 58, 65-66; Philosophers (1939) Book totalitarian Fal- Rev., (1956) Aspects Law len, Censorship, 1 Natural Forum Ethical Open Popper, Through The So- also See Morals Public Protection (1950); Frank, ciety Censorship (1953) Enemies and Its 53-54. (1949) 146-147, Trial Courts 350, Frank, Guardianship Self 61. .See 405-406; Frank, Fate Democracy, (1947) 16 Am.Scholar (1949) note Freedom Responsibility Becker, Angels 10; Frank, Freedom and Men If Were note Way Legend 192; Fite, of Life The Platonic the American way publications charge discipline cratic to control to be in their feelings thoughts energies mere arouse own and ardors. The conditions through non-governmental censorship by for'demoeracy and for art are one public opinion. liberty politics same. What we call re- sults in freedom of arts.” The con- seeming paradox of the 5. The verse is also true. Amendment. First when, perforce, In our industrial era para- apparent Here we encounter pursuits be, increasingly, economic must judicially Amendment, dox: The First governmentally regulated, especially it is enforced, public opinion when curbs important that the realm of art —the non- translated into restricts free, economic realm —should remain un- (except expression that which freedom of regimented, the domain of free enter- probably con- will undesirable induce prise, unhampered competition at its duct). paradox is unreal: maximum.65 An individual’s taste is his public opinion Amendment ensures that' own, private, gustibus concern. De non —the “common the time” conscience of disputandum represents a valued demo- leg- through —shall commit suicide cratic maxim. today islation which choices free off *27 expression may minority though views which .Milton wrote: “For a licenser opinion public happen majority judicious become the should to be more than * * * ordinary, yet very tomorrow. office enjoins pass nothing him to let but what may validly persons groups, Private vulgarly already.” asked, is received He opinion. public try to influence conformity “What a fine would starch obviously has The First Amendment * * * * * us all into? We fall nothing way persons do with the. ” * * gross conformity into stupidly government, groups, part of in- not Mill, In essay J. S. in his on Liber- public opinion as what consti- fluence ty, conformity maintained that in taste is “obscenity.” “decency” or tutes not a virtue danger,” but a vice. “The Church, example, Catholic has a con- wrote, “is not the excess but the de- right persuade stitutional or instruct ficiency impulses personal prefer- designated its adherents read By following ences. dint of not their books or kinds of books. (men) own nature have no nature fol- 6. The fine arts are within * the First * low spontaneity Individual is protection. Amendment’s * * * entitled to free exercise That “The framers the First Amend- so few men dare to be eccentric marks ment,” Chafee, writes “must danger have had the chief of the time.” Pressed mind, literature and art our because conformity, the demand for people first subject national statement on the degenerate deep into “the slumber of a press,’ ‘freedom of the address opinion,” yield decided a “dull and tor- Congress of the Continental to the inhab- pid consent” to the accustomed. “Men- Quebec, declared, itants import- ‘The despotism” tal ensues. For “whatever (freedom ance press) of this con- individuality despotism crushes sists, * * * truth, beside the advancement of whatever name it be called science, morality general, and arts in in. by wearing is not down into uniform- its diffusion of liberal sentiments on the ity all themselves, individual government.” administration by cultivating it, calling years later, President Franklin Roosevelt forth, imposed within the limits said, “The arts except cannot thrive rights and others, interests of that hu- where men are free to be themselves beings and man become a noble and beautiful Chafee, 63. Government and Mass Com- Art, May Museum of Modern York New munication 53. 8, 1939. Message dedicating 64. exercises of the Frank, Fate and Freedom 194- object contemplation; the au- and as The motive or intention thor, publisher partake who cannot be works the character those or distributor them, by process life human the test. do the same diversified, rich, also and ani- becomes Some courts motive once held that the * * * mating proportion author, painter, pub- or intention of the individuality, development each of his lisher or test distributor constituted himself, person becomes more valuable to obscenity. test, the courts have That being capable and is therefore more abandoned: That a man who mails greater to others. is a valuable There picture entirely “pure” book or believes it existence, fullness of life his own about is no defense finds it obscene. court in the units and when there is more life United States v. Ulysses, Book Entitled One com- there is more in mass which is Nor, 708.68 posed of them.” conversely, criminally will he be liable mailing “pure” publication- prosecu- —Ste- To vest a few fallible men— venson’s Child’s Garden of Verses or a tors, judges, jurors powers of vast —with simple Washington photograph of the literary censorship, or artistic to convert mistakenly ob- Monument—he believes them into J. Mill what S. called a “moral scene. “ob- Most courts now look to the police,” despotic them arbiters to make jective” intention, can mean literary day products. they If one ban the effect book or who read the day obscene, mediocre books as another picture;69 see the of the mail- motive genius. may do likewise to a work er is cannot affect irrelevant because it Originality, plentiful, too should be that effect. cherished, not An im- stifled. author’s agination may cramped if he must Judge Bok’s decision as to the *28 eye prosecutors write with or one on causal relation to anti-social juries; cope publish- authors must conduct. who, judgments ers fearful about the Gordon, 1949, In Commonwealth v. 66 governmental may censors, ac- refuse to 101, Judge Pa.Dist. & Co.R. Bok said: cept manuscripts contemporary book, sexually impure “A however Shelleys or Mark Twains or Whitmans.66 * * * pornographic cannot be a fight danger stubbornly Some few men for the unless its reader closes right publish it, lays aside, to write or or distribute and transmutes its erotic great majority books which the at the allurement into overt action. That such jail inevitably time consider few, If loathsome. we action must follow as a direct community reading may appear consequence to have the book does nothing. appearance analysis, gen- suffered The is de nor is bear it borne out ceptive. punish experience; For the conviction and human too much can in- eral terrify ment of these few will writers tervene and too diversions take * * * eager sensitive, only place pres- who are more less for a clear and * * * fight. What, result, danger satisfy as a do not ent that will * * * * * * might major literary write have been the Constitution “Suppression,” Spinoza contributions.67 commission or the imminence of the said, paring “is down the state till it of criminal commission behavior result- reading ing too small to harbor men of talent.” of a book. Publica- Blessings States, Chafee, 29, Liberty 68. Rosen v. United 161 U.S. 67. Cf. 41-42, 16 S.Ct. 40 L.Ed. 606. great the “sense” Milton said of a 66. Milton remarked that “not to count may posterity man “to be lost for the print him mind fit to a without tutor presumptuous fearfulness, or the rash- * * * examiner, drop or lest he should perfunctory licenser.” ness of a something corruption, greatest is the * * * indignity Levine, Cir., 2 free and know States v. United ing spirit put upon 156; App. that can be Parmelee v. United him.” 72 203, 113 F.2d 729. D.C. 826 tion alone can automatic courts held a work if it would "have no such obscene operation probably thoughts or improper effect.” The stimulate constitutional' Judge continued, statute,” thus persons; “the Bok desires in most1 abnormal now * * ground only impact I “rests on courts narrow consider the assumed (the thoughts statute) hold constitution- or adult desires of the * * ally average being. applied where “normal” or A human judges- there standard so is a reasonable demonstrable difficult our ablest crime-, interpret hardly misde- cause to believe has that a one which meaning meaning, meanor been committed is about “well-settled” suffi adequately perceptible result cient be committed as man whether advise a publication committing is or is not if he and distribution a crime any- picture. g.,

writing question: See, In 'opinion mails a book or e. tendency one exists ternational v. thereto Harvester America Co. of Kentucky, insufficient U.S. such a result is Commonwealth 216, 234 self-evident is 853, 1284; connection 34 and irrelevant. S.Ct. 58 The causal L.Ed Grocery Co., criminal be- v. U.S. between the book States L. Cohen 255 Connally 81, 298, 516; appear beyond 41 a reasonable S.Ct. 65 havior must L.Ed. Co., 385, v. doubt.” General U.S. Construction 269 126, 322; 46 S.Ct. 70 v. L.Ed. Cline agree with I I confess that incline Dairy Co., 445, Frink 274 47 U.S. S.Ct. Judge opinion. Bok’s I think But Refining 681, 1146; Champlin 71 L.Ed. (a)' respects: should be modified a few Corporation Commission, v. 286 U.S. Co. opinion Supreme Court’s Because 210, 1062; 559, 52 S.Ct. Lan 76 L.Ed. 494, case, 1951, 341 U.S. Dennis Jersey, v. U.S. zetta State of L.Ed; New 1137, 857, 95 since S.Ct. decided 888; Musser S.Ct. L.Ed. Judge Bok-wrote,.I ele would stress the Utah, v. State 333 U.S. speaking of probability ment of 562; People Winters danger danger.” - (b) think the “clear York, 507, 68 S. State of New 333 U.S. inducing probably be need not be that 840; Ct. L.Ed. States cf. United already made havior which has been Cardiff, 73 S.Ct. statute, -by criminal at common -law or L.Ed. 200. inducing any probably se rather of but riously *29 e., (i. conduct anti-social conduct generally accept If we as correct the which, by statute, validly made be could judicial obscenity— current standard crime), (c) I think a state federal or “average conscience of the time”— not be causal need be that the relation markedly standard still un- remains par and a such anti-social tween conduct guide jurors— judges certain a trial, on book in the case ticular involved to a and therefore contem- citizen who and, between conduct a but rather such mailing plates picture. To be book type kind of the involved book sure, juries we trust use their common . case.70 applying sense “reasonable man” (cid:127) argument. void-for-vagueness prosecutions 9. The standard for criminal negligence (or like); man has to doubting- There is another reason for jury the-, take chances verdict in such obscenity, constitutionality of case, certainty jury no with that a will exquisite vagueness of the statute. although jury him convict another “obscenity” not may acquit apparent from the word map on the way the-judicial qf same evi- definition that word another shifting: nothing (as saw) But that kept standard dence.71 has Once we n According States, Judge Bok, obscenity 373, United Nash v. 229 U.S. 780, 1232; validly 377, 57 L.Ed. enforced 33 S.Ct. when a,-causal be-, Wurzbach, proof - 396, 399, ;of 280 U.S. relation States v. there particular 167, 508; book and S.Ct. 74 L.Ed. United States tween undesirable 50 - ' proof Ragen, 513, 523, surely; conduct, Almost- can- 314 62 v. U.S. S.Ct. .3 case,, 374, in'stánt évet be addticéd. In the 86 L.Ed. 38 not proof. government offer such did not

827 resembling remotely the’looseness UNITED STATES of ex America rel. “obscenity” standard. LANGER, Appellant, Reinhold against stronger argument There is a v. analogy man” test: “reasonable Joseph RAGEN, Warden, E. Illinois State obscenity would Even standard Penitentiary, Joliet, Illinois, were freedom sufficient definiteness Appellee. expression involved, it would seem No. 11789. vague justify for an basis far too as a Appeals United States Court of exception See First Amendment. to the Seventh Circuit. Stromberg People of of Cali v. State 1, Nov. 532, fornia, 359, 75 L. 283 U.S. 51 S.Ct. 1117; Lowry, U.S. Ed. 301 Herndon v. 1066; 242, 732, Win 81 L.Ed. S.Ct. York, People New ters v. of State of 840; L.Ed. S.Ct. York, People Kunz v. of New State 280; L.Ed. 71 S.Ct. U.S. Burstyn, Inc., Wilson, 343 U.S. 1098; Callings, Con L.Q. Uncertainty, stitutional 40 Cornell

(1955) 194, 214-218. Rebhuhn, Cir.,

In United States 512, 514, tersely re- the court

jected contention that citing vague, relying statute is too

on Rosen v. United 161 U.S.

16 S.Ct. 40 L.Ed. 606. How- ever the Rosen case did deal with subject merely suf- ficiency wording of an indictment

under that statute. WATERMAN, Judge (concur- Circuit

ring) . colleagues my I concur with affirm *30 ing judgment below. I dis would

pose in one sentence of the claim ad applicable statute,

vanced that unconstitutional, U.S.C.A. § constitutionality

I believe the of such legislation is well settled that: “If the

question reopened Supreme is to be open Tyomies Publishing

Court must it.

Company v. United 211 F. quoting .Hand, J., Learned C. 385”— Rebhuhn, Cir., 1940,

United States v. page F.2d certiorari de 310 U.S.

nied L.Ed. Judge with Chief concur Clark disposition remaining

in his is

sues. 3. Notes State of given Padover, him See Franklin. The 1781-1785), VI; Query Padover, See Papers Washington (1955) 112. Complete Jefferson 567 at . Judge Bok, See in Commonwealth v. 612 Gordon, 66 Pa.Dist. & R. 120- Co. Jefferson, Autobiography (1821); 4. See “One need 121: recall Padover, cit., loc. post office, Benjamin' father of the Frank- lin, presumably wrote his mailed Jefferson, (1818); Anecdotes of Franklin Young letter of Advice to Men on the Padover, cit., loc. 892 at 893. see * * * Proper Choosing Mistress; of a death, Franklin’s Madison 5a. On offered adultery that Alexander Hamilton’s while following resolution which the House holding public great officecreated no scan- unanimously adopted: Representatives ”* * * dal being informed “The House of the de- Benjamin Franklin, Seagle, (1928)' cease a citizen Ernst and To The Pure genius was not more of an whose orna-' Everyone obscenity legis- human nature than his ment of various interestéd science, deep many writings been óf it have éxértions debt to lation owes country, resolve, subject by and to his freedom do Morris Ernst. For memory, acknowledgment, Acknowledg- mark of veneration due to a- see customary Right Blanshard, members wear ments to Read badge mourning (1955). for one month.”