United States v. B & H DIST. CORP.
| Decision Date | 10 April 1974 |
| Docket Number | No. 70-CR-67.,70-CR-67. |
| Citation | 375 F. Supp. 136 |
| Parties | UNITED STATES of America, Plaintiff, v. B & H DIST. CORP., et al., Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
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John O. Olson, U. S. Atty., Madison, Wis., for plaintiff.
James A. Walrath, Shellow & Shellow, Milwaukee, Wis., for defendants.
Defendants have been indicted on three counts under 18 U.S.C. § 1462.1 The indictment charges that on three separate occasions in the fall of 1969 defendants "did knowingly and unlawfully transport and cause to be transported in interstate commerce by means of a common carrier from New York, State of New York to Wausau, Marathon County in the Western District of Wisconsin, certain obscene, lewd, lascivious and filthy magazines."
In an earlier order in this case, dated September 14, 1972, I held that § 1462 forbids one to carry obscene books for one's own use while traveling interstate in a common carrier, and by reason of this overbreadth, violates the First Amendment. The indictment was dismissed. On direct appeal to the United States Supreme Court, the judgment of this court was vacated and the case remanded for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U. S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); and Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973). United States v. Orito, supra, raised the identical constitutional issue decided in my previous opinion in this case. Orito upheld the proscription against carrying an obscene book for one's private, non-commercial use from one state to another in a common carrier. Thus, the present indictment cannot be dismissed for the reason for which I had earlier dismissed it.
Defendants have now moved to dismiss the indictment on the grounds (1) that § 1462 is unconstitutionally vague because it does not specifically describe sexual conduct as required by Miller v. California, supra, and that no federal court has authority to give a new, saving construction to the statute, and (2) that application to defendants of the more limited First Amendment protection for sexually oriented materials enunciated in Miller would violate the fair notice requirement of the Due Process Clause of the Fifth Amendment.
Defendants contend that § 1462 is void for vagueness in light of the revised constitutional limits on regulation of obscenity set forth in Miller. Miller held:
413 U.S. at 23-24, 93 S. Ct. at 2614.
Miller gave examples to illustrate the degree of specificity called for by the new standards.2 In a companion case to Miller, the Court ruled that the new standards apply equally to federal statutes. 12 200-ft. Reels, supra, 413 U.S. at 139, 93 S.Ct. 2665.
On its face, § 1462 contains no description of specific conduct as called for by Miller. Nor has it been authoritatively construed to include such description. In the Miller group of cases, however, the Supreme Court anticipated a vagueness challenge to § 1462 (413 U.S. at 24 n. 6, 93 S.Ct. at 2615):
In the footnote in 12 200-ft. Reels of Film referred to, the Court stated:
"We further note that, while we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes where `a serious doubt of constitutionality is raised . . .' and `a construction of the statute is fairly possible by which the question may be avoided.' citations omitted If and when such a `serious doubt' is raised as to the vagueness of the words `obscene,' `lewd,' `lascivious,' `filthy,' `indecent,' or `immoral' as used to describe regulated material in 19 U.S.C. § 1305(a) and 18 U.S.C. § 1462, see United States v. Orito, post, 413 U.S. at 140 no. 1, 93 S.Ct. 2674, 2676, we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific `hard-core' sexual conduct given as examples in Miller v. California, ante, 413 U.S. at 25, 93 S.Ct. 2607. citation omitted.
The intention of the Supreme Court has been expressed so forcefully that I feel bound so to construe § 1462. Therefore, § 1462 reaches dissemination of material only if the material depicts or describes:
§ 1462 remains subject to widely varying interpretations of such phrases as "patently offensive," "ultimate sexual acts," and "lewd exhibition of the genitals." But such vagueness is constitutionally permissible. Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).3
Defendants contend that neither this court nor the Supreme Court has authority to reconstrue § 1462 to satisfy the Miller standards. They argue that the definition of obscenity established in Roth and further elaborated in the plurality opinion in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L. Ed.2d 1 (1966), has become an integral part of § 1462; that Congress' failure to alter the Memoirs test constitutes Congressional adoption of it; that the power of the federal courts extends only to invalidating § 1462 and that a new construction of the statute consistent with Miller can be fashioned only by Congress.
Assuming the Memoirs definition was controlling Supreme Court authority, defendants' contention is not persuasive. The Supreme Court on other occasions has overruled its own prior statutory interpretations. See, e. g., Boys Market v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) (); James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961) (). Both Boys Market and James rejected contentions that congressional silence precluded the Court from overruling its prior holding (James v. United States, 366 U.S. 213, 220, 81 S. Ct. 1052, 1056 (1961) (Warren, C. J., concurring)):
"But the fact that Congress has remained silent or has re-enacted a statute which we have construed, or that congressional attempts to amend a rule announced by this Court have failed, does not necessarily debar us from re-examining and correcting the Court's own errors citations omitted.
I find no significance in the distinction that the new construction of § 1462 spelled out in Orito and adopted in this opinion results from a constitutional interpretation while the new constructions set down in James and Boys Market did not. I conclude that I am free to construe § 1462, and that as construed herein § 1462 is not unconstitutionally vague.
Defendants argue that the Miller definition of the limits on regulation of obscenity changes in several ways detrimental to them the prior authoritative definition set forth in Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) (plurality opinion).4 They maintain that application of the Miller definition to conduct alleged in the indictment to have taken place prior to the date of Miller would violate the fair notice requirement of due process. I infer from defendants' demand for dismissal that they urge that the Memoirs definition cannot be applied to them because it is no longer law; that the Miller definition cannot be applied to them because they would not have had fair notice of it; that there is no obscenity standard which may be applied to them and, therefore, the indictment must be dismissed.
The government responds that the Miller definition is consistent with the earlier definition in Roth; that the Memoirs definition was never controlling since it was never adopted by a majority of the Supreme Court; that the Miller elaboration of Roth can be applied to defendants without denying them due process.
Defendants discern three changes from Memoirs () in the Miller definition: (1) with respect to the question of appeal to prurient interest, national "contemporary community standards" have been replaced by state standards; (2) the determination whether portrayals of sexual matters are patently offensive is to be determined strictly by reference to specific conduct defined by law and no longer by reference to contemporary community standards; (3) First Amendment protection is now limited to works which have serious literary, artistic, political, or scientific value and need no longer be extended to every work with any redeeming social value.
I conclude that fair notice would not be violated even if state rather...
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