United States v. Pellegrino

• Decision Date: 24 August 1972
• Docket Number: No. 71-1694.,71-1694.
• Citation: 467 F.2d 41
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas C. PELLEGRINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

467 F.2d 41 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Thomas C. PELLEGRINO, Defendant-Appellant.

No. 71-1694.

United States Court of Appeals, Ninth Circuit.

August 24, 1972.

J. Brin Schulman (argued), Beverly Hills, Cal., for defendant-appellant.

Larry S. Flax, Asst. U. S. Atty. (argued), David R. Nissen, Asst. U. S. Atty., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before HAMLEY, MERRILL and BROWNING, Circuit Judges.

MERRILL, Circuit Judge:

Appellant was indicted in fifteen counts for knowingly depositing, and causing to be deposited, for mailing envelopes containing obscene, lewd, indecent, lascivious and filthy advertisements in violation of 18 U.S.C. § 1461.¹ Thirteen of the fifteen counts were either dismissed prior to trial upon the Government's motion or received judgments of acquittal from the trial court. Two counts went to the jury. Upon both appellant was convicted. The determinative question presented by this appeal is whether the material mailed was not, as a matter of constitutional law,² obscene. We conclude that it was not obscene and that judgment must be reversed.

The material in question consisted of advertisements for two books. The books themselves are not accused. It is the content of the advertisements alone with which we are concerned.

The first book was entitled "Sex Tools for Erotic Pleasure." The advertisement was a small, negligibly illustrated sheet. It promised much to the reader of the book and the purchaser of the "tools," but itself revealed little. The Government informed the jury in closing argument that it would not urge the obscenity of this flyer "in and of itself."³ And we have no hesitation in holding that, in itself, it was nonobscene.

It is the second advertisement that presents discussable problems. The advertised book was entitled "Woman: Her Sexual Variations and Functions." It was represented to be over two hundred pages profusely illustrated in a deluxe vinyl edition, selling only by mail order at $14.95.

It was purportedly edited by a doctor of medicine and was described as "a complete photo-guide of female sex response." The advertisement was a brochure in color, folded to provide twelve pages of photographic and printed matter. It contained several explicit color photographs of female genitalia taken from the book itself.⁴ These illustrations, however, are not presented as the "feast-your-eyes-on" type of pornographic entertainment that this court encountered and described in Miller v. United States, 431 F.2d 655 (9th Cir.1970), cert. pending, No. 70-43.⁵ Rather they are presented as illustrating various aspects of the book's claimed contributions to general knowledge respecting the functions and characteristics of female sexual organs.

Viewing the material in light of the decisions in Bloss v. Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (1970), rev'g 17 Mich. App. 318, 169 N.W.2d 367 (1969); Central Magazine Sales, Ltd. v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49 (1967), rev'g 373 F.2d 633 (4th Cir. 1967); Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46 (1967), rev'g 373 F.2d 635 (4th Cir. 1967); and United States v. Arno, 463 F.2d 731 (9th Cir. 1972); cf. Pinkus v. Pitchess, 429 F.2d 416 (9th Cir.), aff'd sub nom., California v. Pinkus, 400 U.S. 922, 91 S.Ct. 185, 27 L.Ed.2d 183 (1970), we are satisfied that it is not obscene under the standards of A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).⁶

For several reasons the Government contends that less stringent standards should apply here.

It points out that the two counts upon which appellant was convicted involved mailings addressed to minors, and more generally that the distributions were accomplished by unsolicited mass mailings. It emphasizes that the mailed material consisted of advertisements. It contends that where problems of child protection or intrusion upon an unsoliciting public are involved, or where the material mailed consists of commercial advertising, the standards should be less severe than those applying in the case of distribution to consenting or willing adults.

We cannot agree.

Where material is intended for, and particularly disseminated to, a particular group (e.g., children or certain deviates) upon which the effect of the material could be different from its effect upon the general public, the material may be judged in terms of its appeal to the prurient interest in sex of the special group. See Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966). Here, however, as the Government recognizes, the material was intended for the average person.⁷

In such a case, in our view, there can be but one constitutional standard for obscenity under a general obscenity statute such as § 1461: that applying to the public in general.⁸ The standard should be that deemed appropriate for mailings to willing adult recipients.⁹ Otherwise the adult population could be reduced to reading only what is fit for children, Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed. 2d 412 (1957), or for public display upon billboards.

This is not to say that in cases of distribution or exposure to juveniles or of intrusion upon unwilling or unsoliciting adults the First Amendment protects distribution of all nonobscene materials. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), holds to the contrary that certain nonobscene (under general constitutional standards) material deemed harmful to youth is subject to regulation. The same surely applies to undue intrusion. See Rowan v. United States Post Office Dep't, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); Rabe v. State of Washington, 405 U.S. 313, 317, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972) (Burger, C. J., concurring). The point is that in these areas special regulation is necessary to meet these special problems.¹⁰

The same holds true for commercial advertising. We cannot agree with the Government that advertising is devoid of literary, artistic or other social value and accordingly is necessarily less deserving of First Amendment protection than the substance of that which is advertised.¹¹ Advertising performs an important First Amendment function in aid of communication. The cases on which the Government relies are cases upholding special regulation of advertising.¹² In the case of advertising, the danger of undue intrusion is implicit. The solution, however, lies in regulation appropriately directed to the problem.¹³

To read such kinds of regulation into a general obscenity statute such as § 1461 is, in our judgment, precluded by Rabe v. State of Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972). Such statutes do not give fair notice that criminal liability may depend upon the special need for regulatory protection of those whom the material may reach.

Finally, the Government contends that the advertising constitutes pandering under Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), and, in this context, is obscene.

We cannot agree.

Ginzburg draws its definition of pandering from Chief Justice Warren's opinion concurring in Roth v. United States, 354 U.S. 476, 495-496, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957): "The business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of the customer." 383 U.S. 463 at 467, 86 S.Ct. 942 at 945. See also United States v. Baranov, 418 F.2d 1051, 1053 (9th Cir. 1969). Further, Ginzburg refines the definition: "Commercial exploitation of erotica solely for the sake of their prurient appeal." 383 U.S. at 466, 86 S.Ct. at 945. The Court explained the relevance of pandering evidence in ascertaining the fact of obscenity by stating that such evidence can serve to "resolve all ambiguity and doubt." Id. at 470, 86 S.Ct. 942. See also United States v. Baranov, supra. It is relevant in "determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality— whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes." 383 U.S. at 470, 86 S.Ct. at 947. The nature of the pandering in which Ginzburg engaged is explained: "EROS was created, represented and sold solely as a claimed instrument of the sexual stimulation it would bring." Id. at 471, 86 S.Ct. at 947. "They proclaimed its obscenity; and we cannot conclude that the court below erred in taking their own evaluation at its face value * * *." Id. at 472, 86 S.Ct. at 948.

Appellant contends that pandering in the Ginzburg sense is never relevant to the question of whether advertising in itself is obscene, since advertising does not "pander" itself. Ginzburg, it is argued, did not make pandering a distinct offense. The Court there was considering the obscenity of the advertised works themselves in the context of their promotion. Here the question, appellant asserts, is whether the advertising, standing alone, is obscene. The only "context" is the material itself which speaks for itself. There is no occasion to give consideration to other material for the light it can shed on the nature of the material in question.

We agree that in the case of advertising the fact that such material constitutes or includes pandering does not serve the purpose of enlightenment served in Ginzburg. We cannot say, however, that the question of pandering is wholly irrelevant. Pandering advertising may well forfeit an otherwise available claim of redeeming social value. Further it may cast light on the question whether the dominant theme of the advertising brochure itself is an appeal to a prurient interest in sex.

However, we do not regard this brochure as pandering as that term is defined or used in Ginzburg. The brochure does not proclaim the book to be obscene. In a chaste and...