431 U.S. 291 (1977), 75-1439, Smith v. United States

Docket Nº:No. 75-1439
Citation:431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324
Party Name:Smith v. United States
Case Date:May 23, 1977
Court:United States Supreme Court

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431 U.S. 291 (1977)

97 S.Ct. 1756, 52 L.Ed.2d 324



United States

No. 75-1439

United States Supreme Court

May 23, 1977

Argued December 8, 1976




Petitioner, who had been indicted in the Southern District of Iowa for mailing obscene materials in violation of 18 U.S.C. § 1461, unavailingly sought to propound [97 S.Ct. 1759] questions to the jury panel on voir dire relating to the panel members' knowledge of the contemporary community standards in that District with regard to the depiction of sex and nudity. The case proceeded to trial and at the close of the Government's case and later, petitioner unsuccessfully moved for a directed verdict of acquittal on the grounds, inter alia, that the Iowa obscenity statute in effect at the time of petitioner's conduct, which proscribed only the dissemination of obscene materials to minors, set forth the applicable community standard, and that the prosecution had not proved that the materials at issue had offended that standard. Petitioner was convicted. The Court of Appeals affirmed, concluding (1) that petitioner's proposed community standards questions were impermissible, since they concerned the ultimate question of guilt or innocence, rather than juror qualifications, and (2) that the issue of offense to contemporary community standards was a federal question, and was not to be determined on the basis of the state obscenity law.


1. State law cannot define the contemporary community standards for appeal to the prurient interest and patent offensiveness that under Miller v. California, 413 U.S. 15, are applied in determining whether or not material is obscene, and the Iowa obscenity statute is therefore not conclusive as to those standards. In federal prosecutions, such as this for violation of § 1461, those issues are fact questions for the jury, to be judged in light of its understanding of contemporary community standards. Pp. 299-308.

(a) Though state legislatures are not completely foreclosed from setting substantive limitations for obscenity cases, they cannot declare what community standards shall be, any more than they could undertake to define "reasonableness." Cf. Hamling v. United States, 418 U.S. 87, 104-105. Pp. 301-303.

(b) The community standards aspects of § 1461 implicate federal, not state, law. It is not material that the mailings here were solely intrastate, since § 1461 was enacted under Congress' constitutional postal power, not the commerce power. Pp. 303-305.

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(c) Obscenity convictions remain reviewable on various grounds. Pp. 305-306.

(d) This Court's holding that the Iowa statute (which was properly admitted into evidence) is not conclusive on the issue of contemporary community standards does not nullify state law, but a State's right not to regulate in the obscenity field cannot correlatively compel the Federal Government to allow the mails to be used to send obscene materials into that State. Pp. 306-307.

2. The District Court did not abuse its discretion in refusing to ask the questions tendered by petitioner for voir dire about the jurors' understanding of community standards, which were no more appropriate than a request for a description of the meaning of "reasonableness" would have been. P. 308.

3. Section 1461 is not unconstitutionally vague as applied here, since the type of conduct covered by the statute can be ascertained with sufficient ease to avoid due process pitfalls. Cf. Hamling v. United States, supra. pp. 30309.


BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 309. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 310. STEVENS, J., filed a dissenting opinion, post, p. 311.

BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

In Miller v. California, 413 U.S. 15 (1973), this Court rejected a plea for a uniform national standard as to what

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appeals to the prurient interest and as to what is patently offensive; the Court held, instead, that these [97 S.Ct. 1760] essentially were questions of fact to be measured by contemporary standards of the community. Id. at 30-34. The instant case presents the issue of the constitutional effect of state law that leaves unregulated the distribution of obscene material to adults, on the determination of contemporary community standards in a prosecution under 18 U.S.C. § 1461 for a mailing that is wholly intrastate. The case also raises the question whether § 1461 is unconstitutionally vague as applied in these circumstances, and the question whether the trial court, during the voir dire of prospective jurors, correctly refused to ask proffered questions relating to community standards.


Between February and October, 1974, petitioner, Jerry Lee Smith, knowingly caused to be mailed various materials from Des Moines, Iowa, to post office box addresses in Mount Ayr and Guthrie Center, two communities in southern Iowa. This was done at the written request of postal inspectors using fictitious names. The materials so mailed were delivered through the United States postal system to the respective postmasters serving the addresses. The mailings consisted of (1) issues of "Intrigue" magazine, depicting nude males and females engaged in masturbation, fellatio, cunnilingus, and sexual intercourse; (2) a film entitled "Lovelace," depicting a nude male and a nude female engaged in masturbation and simulated acts of fellatio, cunnilingus, and sexual intercourse; and (3) a film entitled "Terrorized Virgin," depicting two nude males and a nude female engaged in fellatio, cunnilingus, and sexual intercourse.


For many years prior to 1974, the statutes of Iowa made it a misdemeanor to sell or offer to sell or to give away "any obscene, lewd, indecent, lascivious, or filthy book, pamphlet,

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paper, . . . picture, photograph, writing . . ." or to deposit in any post office within Iowa any article of that kind. Iowa Code §§ 725.5 and 725.6 (1973).

In 1973, however, the Supreme Court of Iowa, in response to the standards enunciated in Miller v. California, supra, unanimously held that a related and companion Iowa statute, § 725.3 of the 1973 Code, prohibiting the presentation of any obscene or immoral drama, play, exhibition, or entertainment, was unconstitutionally vague and overbroad. State v. Wedelstedt, 213 N.W.2d 652.1 Wedelstedt, at least by implication -- and we so assume -- invalidated §§ 725.5 and 725.6 as well.

On July 1, 1974, Laws of Iowa 1974, cc. 1267 and 1268, became effective. These specifically repealed §§ 725.3, 725.5, and 725.6 of the 1973 Code. In addition, however, c. 1267 (thereafter codified as the first 10 sections of c. 725 of the 1975 Iowa Code) defined, among other things, "obscene material," and made it "a public offense" to disseminate obscene material to minors (defined as persons "under the age of eighteen"). Dissemination of obscene material to adults was not made criminal or even proscribed. Section 92 Of c. 1267 (now § 725.9 of the 1975 Code) insured that the law would be applied uniformly throughout the State, and that no lesser

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governmental unit would impose more stringent regulations on obscene material.

[97 S.Ct. 1761] In 1976, the Iowa Legislature enacted a "complete revision" of the State's "substantive criminal laws." This is entitled the "Iowa Criminal Code," and is generally effective January 1, 1978. The existing definition of "obscene material" remains unchanged, but a new provision, § 2804 of the Criminal Code, Iowa Code Ann. (Spec. Pamphlet 1977), although limited in scope, applies by its terms to adults. It reads:

Any person who knowingly sells or offers for sale material depicting a sex act involving sadomasochistic abuse, excretory functions, a child, or bestiality which the average adult taking the material as a whole in applying contemporary community standards would find that it appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political or artistic value shall, upon conviction be guilty of a simple misdemeanor.

In summary, therefore, we have in Iowa (1) until 1973 state statutes that proscribed generally the dissemination of obscene writings and pictures; (2) the judicial nullification of some of those statutory provisions in that year for reasons of overbreadth and vagueness; (3) the enactment, effective July 1, 1974, of replacement obscenity statutes restricted in their application to dissemination to minors; and (4) the enactment in 1976 of a new Code, effective in 1978 with obscenity provisions, somewhat limited in scope, but not restricted in application to dissemination to minors.

Petitioner's mailings, described above and forming the basis of his federal prosecution, took place in 1974, after the theretofore existing Iowa statutes relating to obscene material had been nullified by Wedelstedt, but obviously before the 1976 legislation imposing misdemeanor liability with respect to certain transactions with adults becomes effective. Because

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there is no contention that the materials petitioner mailed went to any minor, the 1974 legislation has no application to his case. And the 1976 legislation, of course, has no effect on petitioner's criminal liability. Cf. Marks v. United States, 430 U.S. 188 (1977).

Thus, what petitioner did clearly was not a violation of state law at the time he did it. It is to be observed, also, that there is no suggestion that petitioner's mailings went to any nonconsenting adult or that they were interstate.


Petitioner was indicted on seven counts of violating 18 U.S.C. § 1461, which prohibits the mailing of...

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