United States v. Reidel, No. 534

CourtUnited States Supreme Court
Writing for the CourtWHITE
PartiesUNITED STATES, Appellant, v. Norman George REIDEL
Decision Date03 May 1971
Docket NumberNo. 534

402 U.S. 351
91 S.Ct. 1410
28 L.Ed.2d 813
UNITED STATES, Appellant,

v.

Norman George REIDEL.

No. 534.
Argued Jan. 20, 1971.
Decided May 3, 1971.
Rehearing Denied June 14, 1971.

See 403 U.S. 924, 91 S.Ct. 2223.

Syllabus

Appellee, who had advertised in the newspaper the sale to persons over 21 years of age of a booklet entitled 'The True Facts about Imported Pornography,' was indicted for mailing copies of the booklet in violation of 18 U.S.C. § 1461, which prohibits the knowing use of the mails for the delivery of obscene matter. Appellee moved to dismiss the indictment, contending that the statute was unconstitutional. Assuming, arguendo, that the booklets were obscene, the trial judge granted the motion to dismiss on the ground that appellee made a constitutionally protected delivery and that § 1461 was unconstitutional as applied to him. Held: Section 1461 is not unconstitutional as applied to the distribution of obscene materials to willing recipients who state that they are adults. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, holding that a State's power to regulate obscenity does not extend to mere possession by an individual in the privacy of his own home, did not disturb Roth, supra. Pp. 353—356.

Reversed.

Solicitor Gen. Erwin N. Griswold, for appellant.

Sam Rosenwein, Studio City, Cal., for appellee.

Page 352

Mr. Justice WHITE delivered the opinion of the Court.

Section 1461 of Title 18, U.S.C., prohibits the knowing use of the mails for the delivery of obscene matter.1 The issue presented by the jurisdictional statement in this case is whether § 1461 is constitutional as applied to the distribution of obscene materials to willing recipients who state that they are adults. The District Court held that it was not.2 We disagree and reverse the judgment.

Page 353

I

On April 15, 1970, the appellee, Norman Reidel, was indicted on three counts, each count charging him with having mailed a single copy of an illustrated booklet entitled The True Facts About Imported Pornography. One of the copies had been mailed to a postal inspector stipulated to be over the age of 21, who had responded to a newspaper advertisement.3 The other two copies had been seized during a search of appellee's business premises; both of them had been deposited in the mail by Reidel but had been returned to him in their original mailing envelopes bearing the mark 'undelivered.' As to these two booklets, the Government conceded that it had no evidence as to the identity or age of the addressees or as to their willingness to receive the booklets. Nor does the record indicate why the booklets were returned undelivered.

Reidel moved in the District Court before trial to dismiss the indictment, contending, among other things, that § 1461 was unconstitutional. Assuming for the purpose of the motion that the booklets were obscene, the trial judge granted the motion to dismiss on the ground that Reidel had made a constitutionally protected delivery and hence that § 1461 was unconstitutional as applied to him. The Government's direct appeal is here under 18 U.S.C. § 3731.

II

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), Roth was convicted under § 1461 for mailing obscene circulars

Page 354

and advertising. 4 The Court affirmed the conviction, holding that 'obscenity is not within the area of constitutionally protected speech or press,' id., at 485, 77 S.Ct., at 1309, and that § 1461, 'applied according to the proper standard for judging obscenity, do(es) not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.' Id., at 492, 77 S.Ct., at 1313. Roth has not been overruled. It remains the law in this Court and governs this case. Reidel, like Roth, was charged with using the mails for the distribution of obscene material. His conviction, if it occurs and the materials are found in fact to be obscene, would be no more vulnerable than was Roth's.

Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), compels no different result. There, pornographic films were found in Stanley's home and he was convicted under Georgia statutes for possessing obscene material. This Court reversed the conviction, holding that the mere private possession of obscene matter cannot constitutionally be made a crime. But it neither overruled nor disturbed the holding in Roth. Indeed, in the Court's view, the constitutionality of proscribing private possession of obscenity was a matter of first impression in this Court, a question neither involved nor decided in Roth. The Court made its point expressly: 'Roth and the cases following that decision are not impaired by today's holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.' Id., at 568, 89 S.Ct., at 1249. Nothing in Stanley questioned the validity of Roth insofar as the distribution of obscene material was concerned. Clearly the Court had

Page 355

no thought of questioning the validity of § 1461 as applied to those who, like Reidel, are routinely disseminating obscenity through the mails and who have no claim, and could make none, about unwanted governmental intrusions into the privacy of their home. The Court considered this sufficiently clear to warrant summary affirmance of the judgment of the United States District Court for the Northern District of Georgia rejecting claims that under Stanley v. Georgia, Georgia's obscenity statute could not be applied to book sellers. Gable v. Jenkins, 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595 (1970).

The District Court ignored both Roth and the express limitations on the reach of the Stanley decision. Relying on the statement in Stanley that 'the Constitution protects the right to receive information and ideas * * * regardless of their social worth.' 394 U.S., at 564, 89 S.Ct., at 1247, the trial judge reasoned that 'if a person has the right to receive and possess this material, then someone must have the right to deliver it to him.' He concluded that § 1461 could not be validly applied 'where obscene material is not directed at children, or it is not directed at an unwilling public, where the material such as in this case is solicited by adults * * *.'

The District Court gave Stanley too wide a sweep. To extrapolate from Stanley's right to have and peruse obscene material in the privacy of his own home a First Amendment right in Reidel to sell it to him would effectively scuttle Roth, the precise result that the Stanley opinion abjured. Whatever the scope of the 'right to receive' referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here—dealings that Roth held unprotected by the First Amendment.

The right Stanley asserted was 'the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home.'

Page 356

394 U.S., at 565, 89 S.Ct., at 1248. The Court's response was that 'a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the though of giving government the power to control men's minds.' Ibid. The focus of this language was on freedom of mind and thought and on the privacy of one's home. It does not require that we fashion or recognize a constitutional right in people like Reidel to distribute or sell obscene materials. The personal constitutional rights of those like Stanley to possess and read obscenity in their homes and their...

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430 practice notes
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • 27 Julio 1973
    ...press under the first and fourteenth amendments to the United States Constitution. Roth v. United States, Supra; United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971); Miller v. California, Supra. On the other hand, if it falls outside the Roth-Miller standard it is no......
  • U.S. v. Whorley, No. 06-4288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 18 Diciembre 2008
    ...of obscene materials within the home, there exists a correlative "right to receive" obscene materials. See United States v. Reidel, 402 U.S. 351, 354-55, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971) (explicitly rejecting the notion that Stanley's recognition of the defendant's right to possess obsc......
  • Doe v. City of Lafayette, Ind., No. 01-3624.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 30 Julio 2004
    ...Court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct."); Reidel, 402 U.S. at 356, 91 S.Ct. 1410 (private thoughts or fantasies are protected by the First Amendment, but selling or buying obscenity in the mail is not protected activity and ......
  • Osborne v. Ohio, No. 88-5986
    • United States
    • United States Supreme Court
    • 18 Abril 1990
    ...Their rights to have and view that material in private are independently saved by Page 141 the Constitution." United States v. Reidel, 402 U.S. 351, 356, 91 S.Ct. 1410, 1412, 28 L.Ed.2d 813 (1971). The Court today finds Stanley inapposite on the ground that "the interests underlying child p......
  • Request a trial to view additional results
428 cases
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • 27 Julio 1973
    ...press under the first and fourteenth amendments to the United States Constitution. Roth v. United States, Supra; United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971); Miller v. California, Supra. On the other hand, if it falls outside the Roth-Miller standard it is no......
  • U.S. v. Whorley, No. 06-4288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 18 Diciembre 2008
    ...of obscene materials within the home, there exists a correlative "right to receive" obscene materials. See United States v. Reidel, 402 U.S. 351, 354-55, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971) (explicitly rejecting the notion that Stanley's recognition of the defendant's right to possess obsc......
  • Doe v. City of Lafayette, Ind., No. 01-3624.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 30 Julio 2004
    ...Court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct."); Reidel, 402 U.S. at 356, 91 S.Ct. 1410 (private thoughts or fantasies are protected by the First Amendment, but selling or buying obscenity in the mail is not protected activity and ......
  • Osborne v. Ohio, No. 88-5986
    • United States
    • United States Supreme Court
    • 18 Abril 1990
    ...Their rights to have and view that material in private are independently saved by Page 141 the Constitution." United States v. Reidel, 402 U.S. 351, 356, 91 S.Ct. 1410, 1412, 28 L.Ed.2d 813 (1971). The Court today finds Stanley inapposite on the ground that "the interests underlying child p......
  • Request a trial to view additional results
2 books & journal articles
  • Rethinking Democracy
    • United States
    • Political Research Quarterly Nbr. 63-1, March 2010
    • 1 Marzo 2010
    ...States, 249 U.S. 47 (1919).Stanley v. Georgia, 394 U.S. 557 (1969).United States v. Orito, 413 U.S. 139 (1973).United States v. Reidel, 402 U.S. 351 (1971).United States v. Thirty-Seven (37) Photographs, 402 U.S. 363 (1971).Village Books et al. v. City of Bellingham, C88-1470D (W.D. Wash., ......
  • The Supreme Court of the United States, 1970-1971
    • United States
    • Political Research Quarterly Nbr. 24-4, December 1971
    • 1 Diciembre 1971
    ...and is loyal to such government. Justice Stewart wasobviously the &dquo;swing&dquo; man in these two cases. In United States v. Reidel (402 U.S. 351; 91 S. Ct. 1410) a federal prohibiting knowing use of the mails for the delivery of obscene matter was upheld.In an opinion by Justice White (......

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