LOCATION:U.S. District Court
DOCKET NO.: 73-507
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 418 US 87 (1974)
ARGUED: Apr 15, 1974
DECIDED: Jun 24, 1974
Allan A. Tuttle – for respondent
Stanley Fleishman – for petitioners Hamling and others
Sam Rosenwein – for petitioners Kemp and others
Media for Hamling v. United States
- Opinion Announcement – June 24, 1974
- Oral Argument – April 15, 1974 (Part 1)
- Oral Argument – April 15, 1974 (Part 2)
Audio Transcription for Opinion Announcement – June 24, 1974 in Hamling v. United States
William H. Rehnquist:
In Hamling versus the United States, the petitioners were convicted of mailing and conspiring to mail an obscene advertising brochure with sexually explicit photographic material relating to their illustrated version of an official report on obscenity in violation of provisions of the United States Criminal Code.
The indictment under Section 1461 charged petitioners in the language of the statute which prohibits the act whoever knowingly uses the mails for the mailing of anything declared by this Section to be non-mailable.
The jury was unable to reach a verdict on the counts charging the mailing of the allegedly obscene Illustrated Report itself, but it did find petitioners guilty of violations of statute in circulating the brochure through the mails.
Following affirmance of the convictions by the Court of Appeals for the Ninth Circuit, this Court decided Miller versus California last June and in the companion cases.
The Court of Appeals thereafter denied a petition for rehearing based on its consideration of those cases.
We granted petitioner’s petition for a writ of certiorari.
Petitioners challenge their convictions based upon the pre-Miller obscenity test in Memoirs versus Massachusetts and also because they claim it fails to meet the standards laid down in the Miller cases last year.
They also challenge various procedural and evidentiary rulings of the District Court and certain of its instructions.
In a 50-page opinion filed today which I will only summarize, we affirm the decision of the Court of Appeals.
We hold first that 1461 was not unconstitutionally vague as applied to petitioner’s pre-Miller conduct.
The jury’s determination that the brochure was obscene was supported by the evidence and was consistent with the Memoirs obscenity formulation.
In addition, we hold that the standards of obscenity established in the Miller cases are to be applied to petitioner’s pre-Miller conduct, that in applying these standards, we hold they do not require the reversal of petitioner’s convictions.
We similarly reject petitioner’s contentions directed at various procedural and evidentiary rulings of the District Court.
Mr. Justice Douglas has filed a dissenting opinion.
Mr. Justice Brennan has filed a dissenting opinion in which Mr. Justice Stewart and Mr. Justice Marshall joined.