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.

237 F.2d 797

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

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a public officer.² In his opinion, Judge Fuld summarizes the controlling law thus: "That clearly drawn regulatory legislation to protect the public from the evils inherent in the dissemination of obscene matter, at least by the application of criminal sanctions, is not barred by the free speech guarantees of the First Amendment, has been recognized both by this court citing cases and by the United States Supreme Court citing cases." Among cases from New York which he cites is People v. Doubleday & Co., 297 N.Y. 687, 77 N.E.2d 6, affirmed by an equally divided court, 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398, while among the cases in the United States Supreme Court upon which he relies are United States v. Alpers, 338 U.S. 680, 70 S.Ct. 352, 94 L.Ed. 457; Winters v. People of State of New York, 333 U.S. 507, 510, 518, 520, 68 S.Ct. 665, 92 L.Ed. 840; and United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843. He goes on to say: "Imprecise though it be — its `vague subject-matter' being largely `left to the gradual development of general notions about what is decent' (per L. Hand, J., United States v. Kennerley, D.C., 209 F. 119, 121) — the concept of obscenity has heretofore been accepted as an adequate standard." In the case last cited, Judge Hand asked 209 F. 121, "* * * should not the word `obscene' be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now?" and continued: "If letters must, like other kinds of conduct, be subject to the social sense of what is right, it would seem that a jury should in each case establish the standard much as they do in cases of negligence." In quoting this with approval, the Ninth Circuit has recently said: "We think Judge Learned Hand was in the best of his famous form in his happy use of words." Besig v. United States, 9 Cir., 208 F.2d 142, 147

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

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great literature, and indeed the various foolish excesses involved in the banning of notable books, without feeling justified in casting doubt upon all criminal prosecutions, both state and federal, of commercialized obscenity. A serious problem does arise when real literature is censored; but in this case no such issues should arise, since the record shows only salable pornography. But even if we had more freedom to follow an impulse to strike down such legislation in the premises, we should need to pause because of our own lack of knowledge of the social bearing of this problem, or consequences of such an act;⁴ and we are hardly justified in rejecting out of hand the strongly held views of those with competence in the premises as to the very direct connection of this traffic with the development of juvenile delinquency.⁵ We conclude, therefore, that the attack on constitutionality of this statute must here fail

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

237 F.2d 800

in Tyomies Pub. Co. v. United States, 6 Cir., 211 F. 385, 390, in 1914, that the trial judge properly submitted the issue to the jury as to whether or not a picture was filthy with the explanation: "`By the term "filthy" is meant what it commonly or ordinarily signifies; that which is nasty, dirty, vulgar, indecent, offensive to the moral sense, morally depraving and debasing.'" This is in substance what Judge Cashin charged here. See also United States v. Davidson, D.C.N.D.N.Y., 244 F. 523, 534, 535; Sunshine Book Co. v. Summerfield, D.C. D.C., 128 F.Supp. 564

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,...