Duncan v. United States

• Citation: 48 F.2d 128
• Decision Date: 09 March 1931
• Docket Number: No. 6338.,6338.
• Parties: DUNCAN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

48 F.2d 128 (1931)

DUNCAN v. UNITED STATES.^*

No. 6338.

Circuit Court of Appeals, Ninth Circuit.

March 9, 1931.

John A. Jeffrey, of Portland, Or., for appellant.

George Neuner, U. S. Atty., and J. W. McCulloch, Asst. U. S. Atty., both of Portland, Or.

Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.

WILBUR, Circuit Judge.

The appellant was indicted and convicted for a violation of section 29 of the Radio Act of February 23, 1927, 44 Stat. 1172 (47 US CA ž 109), and penalty was imposed upon him in pursuance of section 33 of the same act (44 Stat. 1173 47 USCA ž 113). As the defendant was acquitted on all the counts of the indictment except count 3, it is only necessary to consider the indictment upon that count.

The appellant was accused in that count of knowingly, unlawfully, willfully, and feloniously uttering obscene, indecent, and profane language by means of radio communication and by interstate radio transmission from his radio broadcasting station known as KVEP situated in Portland, within the state and district of Oregon. It is alleged that this broadcasting extended beyond the limits of the state of Oregon and reached other states within the United States. The language alleged to have been used is set up in hŠc verba in the indictment and occupies over six pages of the transcript. Although the main question in the case, in our view, is as to whether or not this language was obscene or indecent or profane, we think that the question may be disposed of without setting out the highly objectionable language set forth in the indictment. It is undesirable to set forth this language if it can be avoided because of the fact that it charges various crimes against individuals specified which should not be embodied in the published reports.

Preliminarily we must dispose of two points which are urged by the appellant. The appellant's first point is that the act of Congress does not purport to provide a penalty for the use of obscene, indecent, or profane language in a broadcast. Section 29 of the Radio Act provides as follows: "Nothing in this chapter shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication."

Section 33 of the same act provides: "Any person, firm, company, or corporation who shall violate any provision of this chapter, * * * upon conviction thereof in any court of competent jurisdiction shall be punished by a fine of not more than $5,000 or by imprisonment for a term of not more than five years or both for each and every such offense."

In view of the fact that the statute expressly prohibits the use of such language in radio broadcasting and expressly imposes a penalty for violation of the law, we see no ground for appellant's contention made for the first time upon the argument. The statute plainly imposes a punishment for broadcasting obscene, indecent, and profane language.

Appellant's next proposition is that Congress has no power to impose a penalty for the use of such language in broadcasting. It is conceded by the appellant, as it must be, that the conveyance of ideas across the boundaries of the state of origin to other states in the United States is interstate commerce and is analogous to the transmission of such ideas by telephone or telegraph. This, we think, is too plain under well-established principles to require citation of authorities, particularly in view of the concession of the appellant. However, in this connection we call attention to the following decisions without further comment: Pensacola T. Co. v. W. U., 96 U. S. 1, 24 L. Ed. 708; Western Union Teleg. Co. v. Pendleton, 122 U. S. 347, 7 S. Ct. 1126, 30 L. Ed. 1187; International Text-Book Co. v. Pigg, 217 U. S. 91, 30 S. Ct. 481, 54 L. Ed. 678, 27 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103; Railroad Commission of State of Wisconsin v. C., B. & Q., 257 U. S. 563, 42 S. Ct. 232, 66 L. Ed. 371, 22 A. L. R. 1086; Whitehurst v. Grimes (D. C.) 21 F.(2d) 787; U. S. v. American B. & M. Co. (D. C.) 31 F.(2d) 448, 452; Gen. Elec. Co. v. Fed. Radio Comm., 58 App. D. C. 386, 31 F.(2d) 630; Technical Laboratory v. Fed. Radio Comm., 36 F.(2d) 111, 112, 66 A. L. R. 1355; City of N. Y. v. Fed. Radio Comm. (App. D. C.) 36 F.(2d) 115. The appellant does not dispute the right of Congress to regulate interstate communication by radio, but his claim is that the prohibition of the use of obscene language over the radio in such interstate commerce is not a regulation of that commerce; that the remedy for such evils is an appeal to the law of the state in which the broadcasting station is situated; that the use of such language is one properly punishable under the police power of the state, and that under the Tenth Amendment to the Constitution of the United States such powers are reserved to the State from the United States. In support of this proposition appellant cites Linder v. U. S., 268 U. S. 5, 45 S. Ct. 446, 69 L. Ed. 819, 39 A. L. R. 229; Daly v. Elton, 195 U. S. 242, 25 S. Ct. 22, 49 L. Ed. 177; U. S. v. De Witt, 9 Wall. 41, 19 L. Ed. 593; U. S. v. Reese, 92 U. S. 214, 23 L. Ed. 563; Barbier v. Connolly, 113 U. S. 27, 5 S. Ct. 357, 28 L. Ed. 923; Des Moines v. Oil Co., 193 Iowa, 1096, 184 N. W. 823, 188 N. W. 921, 23 A. L. R. 1322; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23; Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205; Coppage v. Kansas, 236 U. S. 1, 35 S. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960.

The fact that in regulating interstate commerce Congress may exercise police power, which in the absence of delegation of power to the federal government would be exclusively within the police power of the state, is not determinative of the question. The determinative point is whether or not the Constitution does delegate to the United States police power which in the absence of such delegation could only be exercised by the states. It has uniformly been held that the delegation of power to Congress to establish post offices and post roads (Const. art. 1, ž 8, cl. 7) authorized Congress to exclude objectionable matter from United States mail. In a discussion of this question the Supreme Court considered the extent of this grant to the Congress of the United States in Re Jackson, 96 U. S. 727, 736, 24 L. Ed. 877. In the opinion upholding the power of Congress, written by Mr. Justice Field, it is said:

"In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals. Thus, by the Act of March 3, 1873 17 Stat. 599, ž 2, Congress declared `that no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement, or notice of any kind, giving information, directly or indirectly, where, or how, or of whom, or by what means, either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any of the hereinbefore mentioned articles or things, * * * shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every offence, be fined not less than $100, nor more than $5,000, or imprisonment at hard labor not less than one year nor more than ten years, or both, in the discretion of the judge.'

"All that Congress meant by this act was, that the mail should not be used to transport such corrupting publications and articles, and that any one who attempted to use it for that purpose should be punished. The same inhibition has been extended to circulars concerning lotteries, ÔÇö institutions which are supposed to have a demoralizing influence upon the people."

Later this matter was again considered by the Supreme Court in Re Rapier, 143 U. S. 110, 12 S. Ct. 374, 36 L. Ed. 93, and the power of Congress to exclude lottery matter from the mails was upheld.

The force of these decisions is recognized by the appellant, but he attempts to avoid these authorities by the suggestion that power over the Postoffice Department of the government is greater than the power to regulate interstate commerce in the respects involved in this matter (see Const. art. 1, ž 8, cl. 3). It may be conceded that by reason of the fact that Congress has developed a policy of government operation of the mails that the question as to the transportation of obscene matter in the mails is not identical with that involved in the transmission of obscene matter in interstate commerce. We can see no distinction in principle.

The power of Congress under the constitutional grant to regulate commerce between the states has been considered in connection with the so-called White Slave Traffic Act, or Mann Act (36 Stat. 825, c. 395 18 USCA ž 397 et seq.), prohibiting the transportation of women and girls for immoral purposes in interstate and foreign commerce. This law was sustained by the Supreme Court in Hoke v. U. S., 227 U. S. 308, 33 S. Ct. 281, 283, 57 L. Ed. 523, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905, and in sustaining this law Judge McKenna, speaking for the...