United States v. Reidel

PETITIONER:United States
LOCATION:Charlotte-Mecklenburg School District

DECIDED BY: Burger Court (1970-1971)

CITATION: 402 US 351 (1971)
ARGUED: Jan 20, 1971
DECIDED: May 03, 1971

Facts of the case


Audio Transcription for Oral Argument – January 20, 1971 in United States v. Reidel

Warren E. Burger:

We’ll hear arguments next in number 534, United States against Reidel.

Mr. Solicitor General.

Erwin N. Griswold:

May it please the Court.

The issue in —

I’m looking 397 205 but doesn’t seem to be (Inaudible)

Erwin N. Griswold:


Yes, 205.

Byron R. White:

Yes the name is Gable.

Erwin N. Griswold:

Name is Gable against Jenkins.


Erwin N. Griswold:

Gable, I missed.

397 US 592.

Erwin N. Griswold:

I’m told this 397 US 592.

I don’t know why.

I just looked at it within the 15 minutes and thought I had carefully verified this citation.

The legal issue in this case is much like that in the preceding case except that the question arises under a different statute.

This is a criminal case.

It comes here on direct appeal from the singe-judge District Court for the Central to California which dismissed the indictment on the ground of the statute under which it was brought is unconstitutional.

The statutory provision here involved is Section 1461 of Title 18 of the United States Code which is set forth on pages 2 and 3 of our brief.

This makes guilty of a crime any person who knowingly uses the mail for sending non mailable matter and that term is defined to include every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.

The indictment charges a violation of Section 1461 in three counts.

Although the appendix contains some other material, particularly the text of an affidavit for a search warrant.

I believe that the only matters that are before the Court are these three counts of the indictment, very brief paragraphs and a motion to dismiss.

This motion was filed on the ground that Section 1461 is unconstitutional both on its face and as applied.

The government stipulated that the booklet which was the subject of count three had been ordered by a postal inspector who was an adult and that it had no evidence that the other two booklets had not been solicited by adults.

The court then indicated that this stipulation would be regarded as having been made as an amendment to the indictment in response to a Bill of Particulars to which counsel on both sides concurred and we believe that that brings the situation within this Court’s Fruehauf decision in 365 US.

The court then dismissed the indictment, relying on Stanley against Georgia which it interpreted as establishing a right to receive obscene material.

The court found that a necessary consequence of Stanley, that individuals cannot be restricted from distributing obscene material commercially through the mails to adults who solicit such material.

Despite the express disavow in Stanley of any intent to impair the holding in Roth against the United States which sustained a conviction under the very statute involved here.

The court dismissed the indictment as applied in this particular prosecution and this direct appeal followed under the Criminal Appeals Act as it the stood.

Erwin N. Griswold:

This case involves the power of Congress to prohibit use of the mails for commercial distribution of obscene matter.

Under the Constitution, Congress is given power to established post offices and post roads and also to regulate commerce with foreign nations and among the several states.

This Court has consistently upheld the power of Congress.

Acting under these powers to enact measures designed in the judgment of Congress to promote the public health morals and welfare.

It is nearly a hundred years since this Court upheld the validity of the statute which prohibited the sending of lottery tickets through the mails and in doing so the court like in that statute to the one then in effect, which prohibited the mailing of obscene matters.

Only 15 years ago in the Roth case, this Court held constitutional, the very statute which is challenged here, Section 1461 of Title 18.

Indeed the factual situation in the Roth case is extremely close to that involved here as two of the items in Roth had been mailed in response to an order from a postal inspector.

Nothing has happened since the Roth case to warrant the conclusion that this exercise of the postal power by Congress is no longer proper.

Indeed in the Stanley case, decided less than two years ago, the Court said, “Roth and the cases following that decision are not impaired by today’s holding.”

Despite this clear statement in Stanley the Court below held that the result of Stanley was that an exception had been made to Roth so that Section 1461 is unconstitutional as applied to this case.

It held that Stanley established the right to receive from which it concluded that there must be a right to send as long as the material was solicited by adults and not directed to children or to an unwilling public.

That’s in the appendix of page 13 in the District Court’s opinion.

Our argument on this question is the same as that already submitted in the case of the 37 Photographs in which the argument has just been concluded and in our brief and argument as amicus curiae in Byrne against Karalexis, number 83.

This case has nothing to do with an invasion of a man’s privacy in his own home.

The defendant did not have these materials for his own edification.

He is not charged with having them.

He is charged with mailing them.

He had them for a commercial purpose and it is not denied that he deposited them in the mails.

Did the statute dealt in terms of commercial distribution?

Erwin N. Griswold:

No Mr. Justice I think it would not make any difference whether it was commercial or private.

It is the policy of the Department of Justice not to persecute in cases where there is purely private transmission of matter which might be regarded as obscene as in that case which was decided in several years ago, where a man took the pictures, sent them to the photographic place for development and they were returned and it is the policy not to persecute in such cases.

Whether that policy is required by any constitutional provision, I don’t know.

It seems to me to be a reasonable construction of the statute.

I can imagine situations where though it is private, it is done on a fairly extensive scale let us say from one club to another where the position there taken wouldn’t apply and where our argument would be that the statute should apply.

Stanley, we submit, did not give any special status to obscene material nor any general protection to such material.

The protection there was given to Stanley and in the privacy of his own home.

In referring to First Amendment rights, the opinion in Stanley was careful to associate those rights with Mr. Stanley.

There was no suggestion that any First Amendment protection was given to the material itself.

Indeed, the specific statement that Roth and the cases following it are not impaired, can have significance, only as recognizing that the materials themselves are not subject to protection and as I mentioned in my argument in the 37 Photographs case this was recognized as recently as last Thursday in this Court’s decision in the Mailbox case where the Court referred to the line which separates obscenity from constitutionally protect to the expression.

For the purposes of the motion to dismiss in this case, it has been conceded that the materials involved here are indeed obscene and thus under Roth not entitled to the First Amendment protection.

Erwin N. Griswold:

Stanley holds that the state cannot inquire into the contents of a man’s library.

For that inevitably involves supervision of the morality of his own individual thoughts, but this does not require it to condone the distribution of the materials which it legislatively deems inimical to the public welfare.

The latter is a judgment which should be left to Congress, as in the case of delusive mails to defraud or for the transportation of lottery tickets.

Our submission is that Stanley protects Mr. Stanley, but not materials and not purveyors of materials.

Stanley himself — itself affirms that it does not impair Roth and the Roth decision clearly requires reversal of the judgment below.

So far I have argued these cases in what might be called the traditional way, but I would like it add a further word.

One of the problems in this area is the general lowering of standards, the impairment of public taste which has resulted from an inescapable application of a sort of literary aggressions of law to get shots we must go further and further.

That off itself would be a matter to work on, but to say that it is required by the Constitution is hard to find in the language of the Constitution and still harder to find in this background history and commonly accepted purpose.

I suggest that there is not in reality an affinity between Tom Payne, and Sam Adams, and John Adams and Thomas Jefferson and the materials involved in this case.

The decisions of the courts do not open up the gates.

They give an aura of the legitimacy to the process.

It is commonly understood that “I am curious yellow” was approved by the United States courts.

The materials involved in this case and others like it are delivered by the United States post office by a man in a blue uniform with the government seal on his shoulder.

It is one thing as far as public standards and taste are concerned to have this traffic going on.

It is quite another to have it come with the full sanction and imprimatur of the nation’s courts.

Just last evening, I was reading the current issue of the Saturday review.

It has an editorial by Norman Cousins, entitled “See everything, do everything, feel nothing.”

He says, one of the busiest through fares in the United States, New York’s 42nd Street, the final step beyond total nudity has now been taken.

To many it is a travesty that these result has been achieved in the name of the great principle of the First Amendment.

Mr. Cousins go on to observe that defenders of the new trend argue that questions of morality are relative and that any of adult should be allowed to see and do whatever his curiosity or needs demand and he continues.

It is a serious error to suppose that the deep personalization of sex is unrelated to other things that are happening to the society.

What is most damaging of all is that the process itself obscures what is happening so that our highest responses are being blunted without our knowing it.

The First Amendment is one of the great elements in our constitutional structure.

Like other parts of the Constitution it is not simple in its construction or operation.

Like other written text, other problems in the law we will probably keep on searching for its essential meaning and will inevitably proceed by pricking out points and by revising those points through the process of trial and error.

In recent years, we have gone rather far down the road of equating obscenity with freedom of expression in its political and pamphleteering fields with which the founding fathers were concerned.

Perhaps the answer in this difficult area may become clear and more intellectually satisfying if we give up the urge for an absolute construction of the First Amendment and look again at its origin and basically political function.

For these reasons we think that the judgment below should be reversed.

Warren E. Burger:

Mr. Rosenwine.

Sam Rosenwein:

Mr. Chief Justice and may it please the Court.

Sam Rosenwein:

May I say at the very offset in the light of the last remarks of the Solicitor General that I too perhaps with less indulgence of the Court conclude with a few general remarks that are not exactly related to the record in any specific manner, but I should probably take as my angle of vision, the rights of adult citizens in the United States to choose for themselves what they want to see, what they want to read and how they want to live and I shall probably also refer to the fact that Mr. Cousins has not yet qualified either as a expert in constitutional law nor a member of this Court with respect to the freedoms guaranteed to us by the First Amendment.

I would like to say that some of the remarks of Mr. Cousins bordered to me on the — well I won’t say that.

To the merits of this proceeding, we deal here with a situation involving only an adult citizen who has requested that explicit sexual material be sent to him.

That is the only issue here and the question is whether or not Congress has the power to forbid the mailing to such an adult citizen expression, explicit sexual material that he has requested and that he wants to pay for it, that is —

Warren E. Burger:

The only thing Mr. Rosenwein that if you make that same argument, if he were requesting from a pharmaceutical house a forbidden drug like narcotics on the ground that he was going to use it just for himself, wouldn’t possibly hurt anybody else.

Sam Rosenwein:

Well, I think the difference would be that we’re dealing in one case with the First Amendment application, implication and the other with something that falls outside First Amendment protection.

Warren E. Burger:

Well, I was taking your rather sweeping phrase about people doing what they want to do?

Sam Rosenwein:

In the light of First Amendment protection let me add that first.

Now I —

William J. Brennan, Jr.:

May I ask Mr. Rosenwein, am I correct in my recollection that the Roth indictments grew out of a similar situation that is a postal inspectors writing Roth, it was the same —

Sam Rosenwein:

I think the Solicitor General has proper dimension.

William J. Brennan, Jr.:

So I gather your submission would require overruling Roth, is it not?

Sam Rosenwein:

It would in one sense require overruling Roth, but not on the narrow ground that Your Honor is putting it for this reason.

Obviously in Roth, that issue was not presented to this Court nor any of the court in Roth.

No one focused on the recipient.

What was involved simply was whether or not the person who had disseminated the material was liable to prosecution.

We have since Roth gone through 14 years of decision.

It seems to me when one seeks the meaning of a decision that one can’t look at it statically as does Roth mean what it meant in 1957.

No Roth means something now different in 1971.

It has the impress of 14 years of decisions Mr. Fleishman has developed that and now we deal with the situation which Stanley brought — Stanley against Georgia brought into focus, what about the right of a citizen.

After all he is the one that we are dealing with.

Now, I am not going again to repeat all of the arguments that were by Mr. Fleishman.

I associate myself with him.

I adopt his arguments with respect to the interpretation of Stanley.

I agree with him that Stanley stands for the proposition that one has the right to receive explicit sexual materials which may in the opinion of some people have no ideas at all.

In other words, people have the right to have ideas, information entertainment which may seem have no value to anybody, they have the right to receive that in their home and they have that right under the First Amendment.

I interpret Stanley as saying again and again that under the First Amendment one has that right.

If one has that right, if obscene material therefore has that protection when Mr. Stanley can read it etcetera I would assume that a traditional First Amendment principles apply.

Under what respects can that right to read to be limited?

Now, the only justifications that we can see for a limitation on that right would be if those materials were distributed to the children.

Sam Rosenwein:

The another limitation were if they were obtrusively forced upon other persons, but in all other respects Mr. Stanley has the right to read and if that First Amendment Right means anything it must mean right to acquire it.

Thurgood Marshall:

Does it mean the right to somebody to use the mails to mail it to him?

Sam Rosenwein:

Yes, exactly the point.

Thurgood Marshall:

Where did Stanley said that?

Sam Rosenwein:

Well, Stanley says —

Thurgood Marshall:

Where did Stanley said that?

Sam Rosenwein:

Specific Language obviously, nothing is mentioned of that because we’re not at that moment —

Thurgood Marshall:

(Inaudible) Under Stanley, he could have gone out in the street bought it, maybe that was alright.

Somebody could have brought it to him physically, maybe that was alright, but by any stretch of imagination (Inaudible) anything to do with the right of United States Government to control and regulate its —

Sam Rosenwein:

Well, that is the point that I’m dealing first.

Thurgood Marshall:

The recipient of this material is not here in this case, right?

Sam Rosenwein:


Thurgood Marshall:

It’s only the right of the mailing it.

Sam Rosenwein:


Thurgood Marshall:

You say because a person has the right to read something in his home, anybody has the right to use the mail to send the material too, is that where you are?

Sam Rosenwein:

Yes, that’s exactly the position I take.

Thurgood Marshall:

Correct me if I’m wrong.

Sam Rosenwein:

Well, I’m getting by Roth by that and I’m getting — I am making my argument built on Roth and all the cases including Redrup and Stanley thereafter for this reason Your Honor.

If there is a First Amendment right to possess it, to read it, as was stated in Stanley, there are dozens of cases, some of them were cited in Stanley which says that one has the right to acquire it, one has the right to send, to communicate to that man.

Of course, in fact Your Honor, it was —

Thurgood Marshall:

To send through the mail?

Sam Rosenwein:

Yes, to send through the mails because you have said —

Thurgood Marshall:

There are other ways of getting it to him without using the mail?

Sam Rosenwein:

Well, Your Honor as far as that is concerned the Court has said on the number of occasions that on today’s situation not to send through the mails which is a form of communication that is most often used in an organized society today and of course the government’s position cuts broader than Your Honor’s inquiry because they would say that you can’t disseminate in any form from which its follows.

Thurgood Marshall:

There is nothing to follow Stanley that used mail because right happenstance the case involved a bookshelf in Atlanta, Georgia which was selling the same stuff, but in no con — in no way you can get out at the Stanley case that he got it through mail, there is no way?

Sam Rosenwein:

That is true Your Honor.

Stanley did not specifically deal with the mailing situation, but all I’m arguing for in this case is that if you have that right to possess it then surely there must be a right to both acquire it, to receive it and to communicate.

Now, as a matter of fact in Byrne against Karalexis, you will find a concession by the government that of course if there is a right to receive, there is obviously a right to communicate, there is a right to disseminate, that is conceded and as a matter of fact we have here another a concession from the government.

They say well we have a policy that you could use the mails and to send obscene material to Mr. Stanley, if you didn’t charge or force.

Now, so far as the Federal Government’s interest in this, take that for example, the attenuated interest in obscenity that Justice Harlan has referred to, here you have a concession from government, well of course you can mail pornography, and of course Mr. — he has the right to receive it.

Thurgood Marshall:

The case the Solicitor General referred to was the case where a man and wife have pictures of each other and that’s all they were and is this, the petitioner here, respondent different from that?

Sam Rosenwein:

Well he’s only different in the sense that the material is different, but he is sending at the request of somebody who wants it, that’s all.

Thurgood Marshall:

It is not a one shot deal, is it?

Sam Rosenwein:

Well, I don’t know.

Thurgood Marshall:

Nobody saw any pictures but the man and —

Sam Rosenwein:

We have three solicitations here and three adult citizens asked for it and received the material.

Thurgood Marshall:

Well, judging from the material I think you printed more than three of them?

Sam Rosenwein:

Well, there was some material seized, yes, but Your Honor this started with an advertisement and adults answered an advertisement, three adults answered the advertisement and it was sent to those three of those.

Now, what is the right of those citizens?

Can anyone be prosecuted for sending that material at an adult’s request?

What right has Mr. Stanley got under the today’s situation when you build a wall around him and say look Mr. Stanley, you can have that in your library and by the way he only got his library through the mail, I mean, he didn’t manufacture that library.

Thurgood Marshall:

Who Stanley?

Sam Rosenwein:


My only point is that you get libraries through the mail.

Thurgood Marshall:

(Voice Overlap) Library was in the desk drawer, the desk in his bedroom.

Sam Rosenwein:

But there was a reference to the library in the (Inaudible) opinion.

There was a reference to the library.

Thurgood Marshall:

No, that’s the (Inaudible)

Sam Rosenwein:

But now my only point is that and I‘m only quoting — I quote here from Blount against Rizzi, Mr. Fleishman has handed me the opinion.

The United States may give up the post office when it sees fit, but while it carries on the use of the mail, it is almost as much a part of free speech as the right to use our tongues.

Now —

Warren E. Burger:

Mr. Rosenwein, you were speaking before about a point that I would like to have you clarify.

If I understood you correctly, you suggested that there were limitations on even First Amendment rights in dealing with ideas, if the presentation was obtrusive?

Sam Rosenwein:


Warren E. Burger:

Now where do you find any constitutional limitation to exercise your First Amendments rights in a particular way as distinguished from exercising it?

Sam Rosenwein:

Well, in generally speaking, in broad terms, there have been so called, imitations of what we call time, place and manner.

So for example while you have the right to speak freely and the right to assemble freely, one could not do that at 5 o’ clock on the main street when the traffic is going.

Now, in the same fashion, in this area, we have accepted for present purposes that the two compelling considerations that we think the state properly might point to and limiting the distribution of obscene material.

One that it not be distributed to minors, this under a specific statute and they — we have now in about 35 to 40 states, specific statutes to deal with distribution to minors and the other is obtrusive forcing.

You dealt with that in Rowan to some degree.

Sam Rosenwein:

Now, I myself confessed that as far as obtrusiveness and the front is concerned, there will have to be some further thinking in cases as to what that means because obviously I’m not talking of the kind of a front that sometimes comes when we have to listen to speakers we don’t like.

This Court has never held at that justified limitations, but I think I’m talking about a front that virtually invades the privacy of someone that really forces itself upon him.

That kind of situation, but this is the situation in which the adult citizen is merely asking that he — can it be — you — when Your Honor wrote in Rowan, you pointed out that Congress has permitted citizens to build the wall around their homes so that obtrusive material cannot be forced upon them, Can it be now that the government has a right to put a wall around Mr. Stanley, when Mr. Stanley wants to go out and get a book, he wants to get some explicit material for himself?

Can it be that he cannot write and say to someone who has put an ad in the paper, yes I would like to have that material?

If our country needs anything, the right of people to choose, I would think that this is fundamental.

Certainly, this is perhaps some part of my answer to the Solicitor General, it’s a little different from contemporaneous offense in other parts of the world, in Czechoslovakia or Russia.

This country lets individuals choose.

Would you say to a man who’s getting a social security at 65, look here to your money, but don’t spend it for this event.

No, we give the money to the individual and we have confidence that he will use it.

The government does not concern itself with what amend choose as to do with his money.

Can you say to a man, you can read this or you cannot read this for his own intellectual nourishment and can it be argued that a political speech or as was held in Kingsley, the advocacy of a adultery as a permissible way of life which was held to be constitutionally protecting is alright for a citizen to look at it.

It’s a 100% protected, but the explicit sexual materials which might deal with the very same subject in a little more detail, that citizen cannot read.

Warren E. Burger:

Would you agree that the Rowan holding must be read as a having placed limits on the use of the mails in a way that had not been done before?

Sam Rosenwein:

Yes I think that’s – and to some degree that’s true and that congressional decision has been upheld.

Now, on the question that congressional action I think of the congressional action is quite appropriate.

We should have congressional action in this area and the reason we should have congressional action in this area is this.

Now this 100-year so called venerable statute which is called the Comstock Act and I don’t believe that Mr. Comstock was venerable, not in my opinion, then it would seem to me that in the light of what has happened, it is time for Congress to do what it is doing, begin to go over all of these statutes were obviously overbroad.

The point that we are asking this Court is only to perform a judicial function to declare the statute unconstitutional because it covers consenting adults as well as others.

It covers people who really want it.

Congress has indicated that it can act and it has done that, it has done its part.

It has now provided that if an adult and his minors included a rather old minor, but in any event minors included, can even not — it doesn’t have to be subject to even one mailing.

He can put his name on the list now and get no mailings of sexually oriented material and Congress has provided both civil and penal sanctions for that.

So, we have carefully edged out those upon whom material is obtrusively forced ought minus.

What Congress cannot do under the Constitution, we submit, is forbid the mailing of obscene material to an individual, an adult citizen who has requested it and I think that the Court below properly concluded that the indictment should be dismissed because the failure to allege the essential allegations, but again like Mr. Fleishman, I think the Court here might properly say that this Comstock Act is too broad and therefore it cannot stand compatible with the First Amendment.

It is true as the Solicitor General says that two or three decisions that are dealt with Stanley have limited, saying, well it deals only with privacy, but 17 District Judges from California, Massachusetts, Oregon, Minnesota some of the most eminent jurists have read Stanley and have understood in the light of everything that’s gone up to this point and so far as a consenting adult is concerned, he should have his freedom and the man who mails to him should certainly as his steward, as the man who will furnish him this communication to certainly be protected from criminal prosecution.

And I might say if the Court reads those opinions that we have added to our brief, you will find implicit in it, a great sigh of relief from all the judges because we are clogged and our calendars are clogged with cases that really don’t belong there.

And some of the members of the squad maybe too young to remember the probation days, but the fact to the matter is that we are reaching about the same kind of disrespect for the law in those aspects, the enforceability of it.

I recall myself coming into the Eastern District in New York and Chief Judge saying well, this is bogging day.

Everybody $10 fine and pharmacists and bootleggers and everybody is marching up.

Shall we return to bootleggers and a First Amendment material, I think not.

Sam Rosenwein:

Thank you.

Warren E. Burger:

Mr. Solicitor General?

Erwin N. Griswold:


Warren E. Burger:

Very well.

Thank you gentleman.

The case is submitted.