United States v. B & H DIST. CORP.

• Decision Date: 24 November 1970
• Docket Number: No. 70-CR-67.,70-CR-67.
• Citation: 319 F. Supp. 1231
• Court: U.S. District Court — Western District of Wisconsin
• Parties: UNITED STATES of America, Plaintiff, v. B & H DIST. CORP., Bark Book Dist., Inc., R. Ford, H. Wasserman and Robert Barkow, Defendants.

319 F. Supp. 1231

UNITED STATES of America, Plaintiff, v. B & H DIST. CORP., Bark Book Dist., Inc., R. Ford, H. Wasserman and Robert Barkow, Defendants.

No. 70-CR-67.

United States District Court, W. D. Wisconsin.

November 24, 1970.

John O. Olson, U. S. Atty., Madison, Wis., for plaintiff.

James A. Walrath, Milwaukee, Wis., for defendants.

JAMES E. DOYLE, District Judge.

OPINION AND ORDER

Defendants have been indicted in three counts under 18 U.S.C. § 1462. The indictment charges that on three separate occasions 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." Defendants move to dismiss the indictment on the grounds that 18 U.S.C. § 1462¹ is overbroad in that it imposes criminal sanctions upon the interstate transportation of obscene material in violation of the First and Ninth Amendments to the United States Constitution.

The obscenity of the materials is not in issue. It is assumed that the magazines are obscene.

Defendants attack the constitutionality of 18 U.S.C. § 1462 on its face. Since this statute clearly involves the area of First Amendment rights and freedoms, defendants are not limited to a construction of the statute as applied to the facts in this case. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); N. A. A. C. P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Thus "in determining the validity of a statute in relation to the First Amendment, a court must determine what the statute can do. If the statute can violate freedom of speech and press, then it is invalid." United States v. Thirty-Seven (37) Photographs, 309 F.Supp. 36, 37 (C.D.Cal.1970) (three-judge court). See also Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).

Since the United States Supreme Court held in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), that obscenity was not within the area of constitutionally protected speech or press, numerous First Amendment attacks on statutes similar to 18 U.S.C. § 1462 have been summarily dismissed. But the Supreme Court recently has retreated from its absolute position in Roth by holding in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), that the First Amendment prohibits making private possession of obscene material a crime. Precisely what effect Stanley has on obscenity and First Amendment protection beyond private possession in a home is much debated.²

In Stanley the court specifically stated that "Roth and the cases following that decision are not impaired by today's holding," 394 U.S. at 568, 89 S.Ct. at 1249. Obviously, this cannot be taken to mean that obscenity in every context remains beyond the protection of the First Amendment. The court ruled otherwise. It declined to extend its holding beyond possession of obscene matter in the privacy of one's home. But Stanley's broader implication are inescapable.

A number of recent decisions applying Stanley have read it to distinguish between private uses or actions which are protected by the First Amendment and public (or commercial) uses or actions which are not. United States v. Lathe, 312 F.Supp. 421 (E.D.Cal.1970); Karalexis v. Byrne, 306 F.Supp. 1363 (D. Mass.1969) (three-judge court), prob. juris. note, 397 U.S. 985, 90 S.Ct. 1123, 25 L.Ed.2d 394, restored to calendar for reargument, 399 U.S. 922, 90 S.Ct. 2235, 26 L.Ed.2d 789 (1970); United States v. Articles of "Obscene" Merchandise, 315 F.Supp. 191 (S.D.N.Y.1970) (three-judge court); Stein v. Batchelor, 300 F. Supp. 602 (N.D.Tex.1969) (three-judge court), prob. juris. noted, 394 U.S. 954, 90 S.Ct. 428, 24 L.Ed.2d 419 (1969); United States v. Orito, No. 70-CR-20 (E.D.Wis., Oct. 28, 1970); United States v. Dellapia, 433 F.2d 1252 (2d Cir., Oct. 20, 1970). In Stanley the court acknowledged this distinction when it spoke of Roth: "But that case dealt with public distribution of obscene materials and such distribution is subject to different objections," 394 U.S. at 567, 89 S.Ct. at 1249 (emphasis added). This interpretation of Stanley appears in Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex. 1969) at 606:

"Although the narrow holding of Stanley is simply that `the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime', we think that the case also stands for a broader proposition. Since Stanley involved a direct review of a state conviction for possession of obscene matter, the narrow holding was sufficient to reverse the conviction; thus it was not necessary for the Court to base its decision on a broader ground. It is impossible, however, for this Court to ignore the broader implications of the opinion which appears to reject or significantly modify the proposition stated in Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) that `obscenity is not within the area of constitutionally protected speech or press'. * * *

"Stanley expressly holds that obscenity is protected in the context of mere private possession and in our opinion further suggests that obscenity is deprived of this protection only in the context of `public actions taken or intended to be taken with respect to obscene matter'."

This distinction is rooted in governmental goals or interests thought to be valid. In United States v. Lethe, 312 F. Supp. 421 (E.D.Cal.1970), the court succinctly set forth the possible governmental goals (at 424):

"There are basically only four goals which have been used to justify restrictions on dissemination of obscene material: (1) preventing crimes of sexual violence, (2) protecting the society's moral fabric, (3) protecting children from exposure to obscenity, and (4) preventing `assaults' on the sensibilities of an unwilling public."

The Lethe court then observed, and I agree, that in Stanley the Supreme Court rejected goals (1) and (2) as adequate justifications for anti-obscenity legislation. With respect to goal (2), the Supreme Court said:

"* * * Georgia asserts the right to protect the individual's mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person's thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. * * * Nor is it relevant that obscene materials in general, or the particular films before the Court, are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all. * * * Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." 394 U.S. at 565-566, 89 S.Ct. at 1248.

I note the words "public dissemination of ideas inimical to the public morality," and I will comment later herein on the definition of "public" which Stanley appears to require. With respect to goal (1), as stated in the Lethe opinion, the Supreme Court said in Stanley:

"Perhaps recognizing this, Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion. But more important, if the State is only concerned about printed or filmed materials inducing anti-social conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that `among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law * * *.' Whitney v. California, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). * * * Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits." 394 U.S. at 566-567, 89 S.Ct. at 1248-1249.

Again, I note the phrase "the context of private consumption of ideas and information," and I will comment in a moment upon the definition of "private" which Stanley appears to require.

The remaining two goals or interests catalogued in Lethe are: protecting children from exposure to obscenity, and preventing assaults on the sensibilities of an unwilling adult public. These two goals or interests have been recognized as justification for governmental prohibitions against obscenity, Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 145 (1968); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1956), but only these two goals or interests appear to have survived Stanley. Uses or conduct which are in conflict with these two goals or interests, it appears, do not enjoy the protection of the First Amendment and may be prohibited and punished by government. But uses or conduct which are not in conflict with these two goals or interests enjoy the protection of the First Amendment and may not be prohibited or punished. Stanley v. Georgia, supra; United States v. Lethe, 312 F.Supp. 421 (E.D.Cal.1970); Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex. 1969); Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass.1969); United States v. Orito, No. 70-CR-20 (E.D.Wis., Oct. 28, 1970).

I believe that the continued use of the terms "public" and "private" is confusing because the test of...