United States v. Roth, No. 387
Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Writing for the Court | CLARK, , and FRANK and WATERMAN, Circuit |
Citation | 237 F.2d 796 |
Parties | UNITED STATES of America, Appellee, v. Samuel ROTH, Appellant. |
Docket Number | No. 387,Docket 24030. |
Decision Date | 18 September 1956 |
237 F.2d 796 (1956)
UNITED STATES of America, Appellee,
v.
Samuel ROTH, Appellant.
No. 387, Docket 24030.
United States Court of Appeals Second Circuit.
Argued June 6, 1956.
Decided September 18, 1956.
Writ of Certiorari Granted January 14, 1957.
Philip Wittenberg, New York City (Wittenberg, Carrington & Farnsworth and Irving Like, New York City, on the brief), for appellant.
George S. Leisure, Jr., Asst. U. S. Atty., S. D. N. Y., New York City (Paul W. Williams, U. S. Atty., New York City, on the brief), for appellee.
Before CLARK, Chief Judge, and FRANK and WATERMAN, Circuit Judges.
Writ of Certiorari Granted January 14, 1957. See 77 S.Ct. 361.
CLARK, Chief Judge.
This is an appeal by Samuel Roth from his conviction for violation of 18 U.S.C. § 1461. The indictment contained twenty-six counts charging the mailing of books, periodicals, and photographs (and circulars advertising some of them) alleged to be "obscene, lewd, lascivious, filthy and of an indecent character." Three counts were dismissed. After a trial the jury found defendant guilty on four counts, and not guilty on nineteen. The trial judge sentenced defendant to five years' imprisonment and to pay a fine of $5,000 on one count, while on each of the other three counts he gave a like term of imprisonment, to run concurrently, and a $1 fine remitted in each case. On this appeal, defendant claims error in the conduct of the trial, but once again attacks the constitutionality of the governing statute.
This statute, 18 U.S.C. § 1461, originally passed as § 148 of the act of June 8, 1872, 17 Stat. 302, revising, consolidating, and amending the statutes relating to the Post Office Department, and thence derived from Rev.Stat. § 3893, herein declares unmailable "every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character,"1 and makes the knowing deposit for mailing of such unmailable matter subject to a fine of not more than $5,000 or imprisonment of not more than five years, or both. In United States v. Rebhuhn, 2 Cir., 109 F.2d 512, 514, certiorari denied Rebhuhn v. United States, 310 U.S. 629, 60 S.Ct. 976, 84 L.Ed. 1399, Judge Learned Hand, in dealing with a claim of unconstitutionality, pointed out that it had been overruled in Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606, "and many indictments have since been found, and many persons tried and convicted. * * * If the question is to be reopened the Supreme Court must open it." Since that decision many more cases have acknowledged the constitutionality of the statute, so much so that we feel it is not the part of responsible judicial administration for an inferior court such as ours, whatever our personal opinions, to initiate a new and uncharted course of overturn of a statute thus long regarded of vital social importance and a public policy of wide general support. It is easy, in matters touching the arts, to condescend to the poor troubled enforcement officials; but so to do will not carry us measurably nearer a permanent and generally acceptable solution of a continuing social problem.
Against this background we are impressed by the decision this year of a great court in Brown v. Kingsley Books, Inc., 1 N.Y.2d 177, 151 N.Y.S.2d 639, 641, 642, 134 N.E.2d 461, 463, where, accepting general constitutionality of such legislation, the decision breaks new ground in upholding authorization of preventive relief by way of injunction at the suit of
So this important social problem, which has come down to us from English law and which has led to statutes of a generally similar nature in almost all of the other jurisdictions in this country, see Brown v. Kingsley Books, Inc., supra, 1 N.Y.2d 177, 151 N.Y.S.2d 639, 134 N.E.2d 461; Note, 22 U. of Chi.L.Rev. 216, has resulted in a general judicial unanimity in supporting such prosecutions. There is a considerable body of additional precedents beyond those cited above, both in the Supreme Court of the United States and in other federal jurisdictions, of which various examples are given in the footnote.3 It will not do to distinguish these cases as dicta or suggest that they have not considered modern problems. They are too many and too much of a piece to allow an intermediate court to make an inference of doubt in the circumstances. We can understand all the difficulties of censorship of
Defendant, however, takes special exception to the judge's treatment in his charge of the word "filthy," asserting that he opposed this term to the other parts of the statute, so as to render the statute vague and indefinite. What the judge said was this: "`Filthy' as used here must also relate to sexual matters. It is distinguishable from the term `obscene,' which tends to promote lust and impure thoughts. `Filthy' pertains to that sort of treatment of sexual matters in such a vulgar and indecent way, so that it tends to arouse a feeling of disgust and revulsion." But this seems to us in line with long-standing judicial definitions of the term. The words "and every filthy" were inserted in the statute at the time of the enactment of the Penal Code in 1909. And in United States v. Limehouse, supra, 285 U.S. 424, 426, 52 S.Ct. 412, in 1932, Mr. Justice Brandeis for the Court pointed out the obvious intent to add "a new class of unmailable matter — the filthy." As he definitely pointed out, this plainly covered sexual matters; and the Court, so he said, had no occasion to consider whether filthy matter of a different character also fell within the prohibition. We do not see how this case can be read other than as support for the interpretation made by the court below and for the validity of the Act as interpreted. Moreover, earlier it had been ruled by the Sixth Circuit
Hence, having in mind Judge Hand's admonition in United States v. Kennerley, supra, D.C.S.D.N.Y., 209 F. 119, 121, that the jury must finally apply the standard thus indicated, we think there was nothing objectionable in the judge's instructions to the jury. Certainly, against this background, "filthy" is as clear and as easily understandable by the jury6 as the terms "obscene" and "lewd" already committed to its care. Possibly some different nuances might have been given the term — though we are not sure what, nor are we given suggestions — but we cannot believe that the jury would have been helped. Nor did the defendant at the time find anything to question in the charge; his counsel,...
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In re A.P., No. 2019-246
...of morality, the "indelicacy of the subject" forbade describing sexual acts in precise terms. Id.; see also United States v. Roth, 237 F.2d 796, 808 (2d Cir. 1956) (Frank, J., concurring) (describing "dogma of 'Victorian morality' " that demanded " 'decency' in published words"). For that r......
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In re A.P., No. 19-246
...of morality, the "indelicacy of the subject" forbade describing sexual acts in precise terms. Id. ; see also United States v. Roth, 237 F.2d 796, 808 (2d Cir. 1956) (Frank, J., concurring) (describing "dogma of ‘Victorian morality’ " that demanded " ‘decency’ in published words"). For that ......
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Stanley v. Georgia, No. 293
...of Some Assumptions in the Censorship Debate (1954), summarized in the concurring opinion of Judge Frank in United States v. Roth, 237 F.2d 796, 814—816 (C.A.2d Cir. 1956). 10. The Model Penal Code provisions dealing with obscene materials are limited to cases of commercial dissemination. M......
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McGrew v. City of Jackson, Mississippi, Civ. A. No. 4384.
...629, 60 S.Ct. 976, 84 L.Ed. 1399; Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606; United States v. Roth, 2 Cir., 237 F.2d 796, affirmed Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed......
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In re A.P., No. 2019-246
...of morality, the "indelicacy of the subject" forbade describing sexual acts in precise terms. Id.; see also United States v. Roth, 237 F.2d 796, 808 (2d Cir. 1956) (Frank, J., concurring) (describing "dogma of 'Victorian morality' " that demanded " 'decency' in published words"). For that r......
-
In re A.P., No. 19-246
...of morality, the "indelicacy of the subject" forbade describing sexual acts in precise terms. Id. ; see also United States v. Roth, 237 F.2d 796, 808 (2d Cir. 1956) (Frank, J., concurring) (describing "dogma of ‘Victorian morality’ " that demanded " ‘decency’ in published words"). For that ......
-
Stanley v. Georgia, No. 293
...of Some Assumptions in the Censorship Debate (1954), summarized in the concurring opinion of Judge Frank in United States v. Roth, 237 F.2d 796, 814—816 (C.A.2d Cir. 1956). 10. The Model Penal Code provisions dealing with obscene materials are limited to cases of commercial dissemination. M......
-
McGrew v. City of Jackson, Mississippi, Civ. A. No. 4384.
...629, 60 S.Ct. 976, 84 L.Ed. 1399; Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606; United States v. Roth, 2 Cir., 237 F.2d 796, affirmed Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed......
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Pornography and Politics: the Court, the Constitution, and the Commission
...Rev. 302 (1967); Note, 52 Ky. L. J. 429(1964); Note, 34 Ford. L. Rev. 692 (1966); Note, 55 Cal. L. Rev. 926 (1967).See also U.S. v. Roth, 237 F.2d 796, 812-17 (C.A.2d Cir. 1956) (Frank, J.,concurring). But see Gaylin, Book Review, 77 Yale L. J. 579, 591-95 (1968).46 See Kalven, Book Review,......