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United States v. Roth

decided: September 18, 1956.


Author: Clark

Before CLARK, Chief Judge, and FRANK and WATERMAN, Circuit Judges.

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,"*fn1 and makes the knowing deposit for mailing of such unmailable matter subject to a fine or 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 a public officer.*fn2 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 considerably 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.*fn3 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 great literature, and indeed the various foolish excesses involved in banning of notable books, without felling 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;*fn4 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.*fn5 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 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 jury*fn6 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, after the judge had granted all the specific additional requests he made, said that the judge had "fairly covered everything." Now he is not in a position to press this objection. Here we have more than a waiver by failure to object. We have in fact an instance of submission of issues to the jury on more than a single ground which might have been separated had the parties so desired. Since no request for separate verdicts or for withdrawal of this issue from the jury was made, the conviction must stand as supported by the clear evidence of obscenity. United States v. Mascuch, 2 Cir., 111 F.2d 602, certiorari denied Mascuch v. United States, 311 U.S. 650, 61 S. Ct. 14, 85 L. Ed. 416; United States v. Smith, 2 Cir., 112 F.2d 83, 86; United States v. Goldstein, 2 Cir., 168 F.2d 666, 672; Claassen v. United States, 142 U.S. 140, 147, 12 S. Ct. 169, 35 L. Ed. 966; Stevens v. United States, 6 Cir., 206 F.2d 64, 66; Todorow v. United States, 9 Cir., 173 F.2d 439, 445, certiorari denied 337 U.S. 925, 69 S. Ct. 1169, 93 L. Ed. 1733; United States v. Myers, D.C.N.D.Cal., 131 F.Supp. 525, 528.On either ground, therefore, this assignment of error must fail.

Our conclusion here settles the substantial issues on this appeal. As we have indicated, if the statute is to be upheld at all it must apply to a case of this kind where defendant is an old hand at publishing and surreptitiously mailing to those induced to order them such lurid pictures and material as he can find profitable. There was ample evidence for the jury, and the defendant had an unusual trial in that the judge allowed him to produce experts, including a psychologist who stated that he would find nothing obscene at the present time. Also various modern novels were submitted to the jury for the sake of comparison. Very likely the jury's moderate verdict on only a few of the many counts submitted by the government and supported by the testimony of those who had been led to send their orders through the mail was because of this wide scope given the defense. As the judge pointed out in imposing sentence, defendant has been convicted several times before under both state and federal law. Indeed this case and our discussions somewhat duplicate his earlier appearance in Roth v. Goldman, 2 Cir., 172 F.2d 788, certiorari, denied 337 U.S. 938, 69 S. Ct. 1514, 93 L. Ed. 1743.

Defendant claims error in entrapment because his advertisements were answered by government representatives. But this method of obtaining evidence was specifically approved in Rosen v. United States, supra, 161 U.S. 29, 42, 16 S. Ct. 434, 438, 480, and has been usual at least ever since. Ackley v. United States, 8 Cir., 200 F. 217, 222. In no event was there any improper entrapment. See United States v. Masciale, 2 Cir., 236 F.2d 601. The government's summation in the case was within the scope of the evidence, and the court's charge was concise and correct. But one other matter needs to engage our attention. That was the defendant's claim of error in that the court charged with respect to the statute as it was at the time of the offenses, although it had been amended on June 28, 1955, or before the trial. But this amendment was designed to stiffen the Act and arose because in Alpers v. United States, 9 Cir., 175 F.2d 137, a conviction for mailing obscene phonograph records was reversed on the ground that such records were not clearly embodied in the statutory language quoted above. Although this decision was reversed and the conviction reinstated in United States v. Alpers, supra, 338 U.S. 680, 70 S. Ct. 352, the Congress was so anxious that there be no loophole that it enacted an amendment making unmailable now "[every] obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance."*fn7 It would seem clear, therefore, that defendant has no ground of complaint because he was tried under the statute existing at the time of his offense; and in no event could have been harmed.

Judgment affirmed.


As a judge of an inferior court, I am constrained by opinions of the Supreme Court concerning the obscenity statute to hold that legislation valid. Since, however, I think (as indicated in the foregoing) that none of those opinions has carefully canvassed the problem in the light of the Supreme Court's interpretation of the First Amendment, especially as expressed by the Court in recent years, I deem it not improper to set forth, in the following, factors which I think deserve consideration in passing on the constitutionality of that statute.

1. Benjamin Franklin, in 1776 unanimously designated Postmaster General by the First Continental Congress, is appropriately known as the "father of the Post Office." Among his published writings are two*fn1a - Letter of Advice to Young Men on the Proper Choosing of a Mistress and The Speech of Polly Baker - which a jury could reasonably find "obscene," according to the judge's instructions in the case at bar. On that basis, if tomorrow a man were to send those works of Franklin through the mails, he would be subject to prosecution and (if the jury found him guilty) to punishment under the federal obscenity statute.*fn2a

That fact would surely have astonished Jefferson, who extolled Franklin as an American genius,*fn3a called him "venerable and beloved" of his countrymen,*fn4a and wrote approvingly of Franklin's Polly Baker.*fn5a No less would it have astonished Madison, also an admirer of Franklin (whom he described as a man whose "genius" was "an ornament of human nature")*fn5b and himself given to telling "Rabelaisian anecdotes."*fn6a Nor was the taste of these men unique in the American Colonies: "Many a library of a colonial planter in Virginia or a colonial intellectual in New England boasted copies of Tom Jones, Tristram Shandy, Ovid's Art of Love, and Rabelais. * * *"*fn7a

As, with Jefferson's encouragement, Madison, in the first session of Congress, introduced what became the First Amendment, it seems doubtful that the constitutional guaranty of free speech and free press could have been intended to allow Congress validity to enact the "obscenity" Act. That doubt receives reinforcement from the following:

In 1799, eight years after the adoption of the First Amendment, Madison, in an Address to the General Assembly of Virginia,*fn8 said that the "truth of opinion" ought not to be subject to "imprisonment, to be inflicted by those of a different opinion"; he there also asserted that it would subvert the First Amendment*fn9 to make a "distinction between the freedom and the licentiousness of the press." Previously, in 1792, he wrote that "a man has property in his opinions and free communication of them," and that a government which "violates the property which individuals have in their opinion * * * is not a pattern for the United States."*fn10 Jefferson's proposed Constitution for Virginia (1776), provided: "Printing presses shall be free, except so far as by commission of private injury cause may be given of private action."*fn11 In his Second Inaugural Address (1805), he said: "No inference is here intended that the laws provided by the State against false and defamatory publications should not be enforced * * * The press, confined to truth, needs no other restraint * * *; and no other definite line can be drawn between the inestimable liberty of the press and demoralizing licentiousness. If there still be improprieties which this rule would not restrain, its supplement must be sought in the censorship of public opinion."

The broad phrase in the First Amendment, prohibiting legislation abridging "freedom of speech, or of the press", includes the right to speak and write freely for the public concerning any subject. As the Amendment specifically refers to "the free exercise [of religion]" and to the right "of the people * * * to assemble" and to "petition the Government for a redress of grievances", it specifically includes the right freely to speak to and write for the public concerning government and religion; but it does not limit this right to those topics. Accordingly, the views of Jefferson and Madison about the freedom to speak and write concerning religion are relevant to a consideration of the constitutional freedom in respect of all other subjects. Consider, then, what those men said about freedom of religious discussion: Madison, in 1799, denouncing the distinction "between the freedom and the licentiousness of the press" said, "By its help, the judge as to what is licentious may escape through anyconstitutional restriction," and added, "Under it, Congress might denominate a religion to be heretical and licentious, and proceed to its suppression * * * Remember * * * that it is to the press mankind are indebted for having dispelled the clouds which long encompassed religion * * *"*fn12 Jefferson, in 1798, quoting the First Amendment, said it guarded "in the same sentence, and under the same words, the freedom of religion, of speech, and of the press; insomuch, that whatever violates either, throws down the sanctuary which covers the others."*fn13 In 1814, he wrote in a letter, "I am really mortified to be told that in the United States of America, a fact like this (the sale of a book) can become a subject of inquiry, and of criminal inquiry too, as an offense against religion; that (such) a question can be carried before the civil magistrate. Is this then our freedom of religion? And are we to have a censor whose imprimatur shall say what books may be sold and what we may buy? * * * Whose foot is to be the measure to which ours are all to be cut or stretched?"*fn14

Those utterances high-light this fact: Freedom to speak publicly and to publish has, as its inevitable and important correlative, the private rights to hear, to read, and to think and to feel about what one hears and reads. The First Amendment protects those private rights of hearers and readers.

We should not forget that, prompted by Jefferson,*fn15 Madison (who at one time had doubted the wisdom of a Bill of Rights)*fn16 when he urged in Congress the enactment of what became the first ten Amendments, declared, "If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardian of those rights; they will be an impenetrable barrier against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights."*fn17 In short, the Bill of Rights, including the First Amendment, was not designed merely as a set of admonitions to the legislature and the executive; its provisions were to be enforced by the courts.

Judicial enforcement necessarily entails judicial interpretation. The question therefore arises whether the courts, in enforcing the First Amendment, should interpret it in accord with the views prevalent among those who sponsored and adopted it or in accord with subsequently developed views which would sanction legislation more restrictive of free speech and free press.

So the following becomes pertinent: Some of those who in the 20th Century endorse legislation suppressing "obscene" literature have an attitude towards freedom of expression which does not match that of the framers of the First Amendment (adopted at the end of the 18th Century) but does stem from an attitude, towards writings dealing with sex, which arose decades later, in the mid-19th Century, and is therefore labelled - doubtless too sweepingly - "Victorian." It was a dogma of "Victorian morality" that sexual misbehavior would be encouraged if one were to "acknowledge its existence or at any rate to present it vividly enough to form a life-like image of it in the reader's mind"; this morality rested on a "faith that you could best conquer evil by shutting your eyes to its existence,"*fn18 and on a kind of word magic.*fn19 The demands at that time for "decency" in published words did not comport with the actual sexual conduct of many of those who made those demands: "The Victorians, as a general rule, managed to conceal the 'coarser' side of their lives so thoroughly under a mask of respectability that we often fail to realize how 'coarse' it really was * * * Could we have recourse to the vast unwritten literature of bawdry, we should be able to form a more veracious notion of life as it (then) really was." The respectables of those days often, "with unblushing license," held "high revels" in "night houses."*fn20 Thanks to them, Mrs. Warren's profession flourished, but it was considered sinful to talk about it in books.*fn21 Such a prudish and purely verbal moral code, at odds (more or less hypocritically) with the actual conduct of its adherents*fn22 was (as we have seen) not the moral code of those who framed the First Amendment.*fn23 One would suppose, then, that the courts should interpret and enforce that Amendment according to the views of those framers, not according to the later "Victorian" code.*fn24

The "founding fathers" did not accept the common law concerning freedom of expression

It has been argued that the federal obscenity statute is valid because obscenity was a common law crime at the time of the adoption of the First Amendment. Quite aside from the fact that, previous to the Amendment, there had been scant recognition of this crime, the short answer seems to be that the framers of the Amendment knowingly and deliberately intended to depart from the English common law as to freedom of speech and freedom of the press.See Grosjean v. American Press Co., 297 U.S. 233, 248-249, 56 S. Ct. 444, 80 L. Ed. 660; Bridges v. State of California, 314 U.S. 252, 264-265, 62 S. Ct. 190, 86 L. Ed. 192;*fn24a Patterson, Free Speech and a Free Press (1939) 101-102, 124-125, 128; Schofield, 2 Constitutional Law and Equity (1921) 521-525.

Of course, the legislature has wide power to protect which it considers public morals. But the First Amendment severely circumscribes that power (and all other legislative powers) in the area of speech and free press.

Subsequent punishment as, practically, prior restraint

For a long time, much was made of the distinction between a statute calling for "prior restraint" and one providing subsequent criminal punishment;*fn25 the former alone, it was once said, raised any question of constitutionality vis-a-vis the First Amendment.*fn26 Although it may still be true that more is required to justify legislation providing "preventive" than "punitive" censorship,*fn27 this distinction has been substantially eroded. See, e.g., Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137; Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470; De Jonge v. State of Oregon, 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278; Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S. Ct. 736, 84 L. Ed. 1093; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, Note 3, 62 S. Ct. 766, 86 L. Ed. 1031. See also Hale, Freedom Through Law (1952) 257-265; Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Problems (1955) 648 (a thought-stirring discussion of the problem); Kalven, loc. cit. at 8-10, 13. (For further discussion of this them, see infra.)

The statute, as judicially interpreted, authorizes punishment for inducing mere thoughts, and feelings, or desires

For a time, American courts adopted the test of obscenity contrived in 1868 by Cockburn, L.J., in Queen v. Hicklin, L.R. 3 Q.B. 360: "I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort might fall." He added that the book there in question "would suggest * * * thoughts of a most impure and libidinous character."

The test in most federal courts has changed: They do not now speak of the thoughts of "those whose minds are open to * * * immoral influences" but, instead, of the thoughts of average adult normal men and women, determining what these thoughts are, not by proof at the trial, but by the standard of "the average conscience of the time," the current "social sense of what is right." See, e.g., United States v. Kennerley, D.C., 209 F. 119, 121; United States v. Levine, 2 Cir., 83 F.2d 156, 157; Parmelee v. United States, 72 App.D.C. 203, 113 F.2d 729. Yet the courts still define obscenity in terms of the assumed average normal adult reader's sexual thoughts or desires or impulses, without reference to any relation between those "subjective" reactions and his subsequent conduct. The judicial opinions use such key phrases as this: "suggesting lewd thoughts and exciting sensual desires;"*fn28 "arouse the salacity of the reader,"*fn29 "'allowing or implanting * * * obscene, lewd, or lascivious thoughts or desires'",*fn30 "arouse sexual desires".*fn30a The judge's charge in the instant case reads accordingly: "It must tend to stir sexual impluses and lead to sexually impure thoughts." Thus the statute, as the courts construe it, appears to provide criminal punishment for inducing no more than thoughts, fellings, desires.

No adequate knowledge is available concerning the effects on the conduct of normal adults of reading or seeing the "obscene"

Suppose we assume, arguendo, that sexual thoughts or feelings, stirred by the "obscene," probably will often issue into overt conduct. Still it does not at all follow that the conduct will be antisocial. For no sane person can believe it socially harmful if sexual desires lead to normal, and not anti-social, sexual behavior since, without such behavior, the human race would soon disappear.*fn31

Doubtless, Congress could validly provide punishment for mailing any publications if there were some moderately substantial reliable data showing that reading or seeing those publications probably conduces to seriously harmful sexual conduct on the part of normal adult human beings. But we have no such data.

Suppose it argued that whatever excites sexual logings might possibly produce sexual misconduct. That cannot suffice: Notoriously, perfumes sometimes act as aphrodisiacs, yet no one will suggest that therefore Congress may constitutionally legislate punishment for mailing perfumes. It may be that among the stimuli to rregular sexual conduct, by normal men and women, may be almost anything - the odor of carnations or cheese, the sight of a cane or a candle or a shoe, the touch of silk or a gunnysack. For all anyone now knows, stimuli of that sort may be far more provocative of such misconduct than reading obscene books or seeing obscene pictures.Said John Milton, "Evil manners are as perfectly learnt, without books, a thousand other ways that cannot be stopped."

Effect of "obscenity" an adult conduct

To date there exist, I think, no thorough-going studies by competent persons which justify the conclusion that normal adults' reading or seeing of the "obscene" probably induces anti-social conduct. Such competent studies as have been made do conclude that so complex and numerous are the causes of sexual vice that it is impossible to assert with any assurance that "obscenity" represents a ponderable causal factor in sexually deviant adult behavior. "Although the whole subject of obscenity censorship hinges upon the unproved assumption that 'obscene' literature is a significant factor in causing sexual deviation from the community standard, no report can be found of a single effort at ginuine research to test this assumption by singling out as a factor for study the effect of sex literature upon sexual behavior."*fn32 What little competent research has been done, points definitely in a direction precisely opposite to that assumption.

Alpert reports*fn33 that, when, in the 1920s, 409 women college graduates were asked to state in writing what things stimulated them sexually, they answered thus: 218 said "Man"; 95 said books; 40 said drama; 29 said dancing; 18 said pictures; 9 said music. Of those who replied "that the source of their sex information came from books, not one specified a 'dirty' book as the source. Instead, the books listed were: The Bible, the dictionary, the encyclopedia, novels from Dickens to Henry James, circulars about venereal diseases, medical books, and Motley's Rise of the Dutch Republic." Macaulay, replying to advocates of the suppression of obscene books, said: "We find it difficult to believe that in a world so full of temptations as this, any gentleman whose life would have been virtuous if he had not read Aristophanes or Juvenal, will be vicious by reading them." Echoing Macaulay, "Jimmy" Walker remarked that he had never heard of a woman seduced by a book. New Mexico has never had an obscenity statute; there is no evidence that, in that state, sexual misconduct is proportionately greater than elsewhere.

Effect on conduct of young people

Most federal courts (as above noted) now hold that the test of obscenity is the effect on the "mind" of the average normal adult, that effect being determined by the "average conscience of the time," the current "sense of what is right"; and that the statute does not intend "to reduce our treatment of sex to the standard of a child's library in the supposed interest of a salacious few"; United States v. Kennerley, D.C., 209 F. 120, 121.

However, there is much pressure for legislation, designed to prevent juvenile delinquency, which will single out children, i.e., will prohibit the sale to young persons of "obscenity" or other designated matter. That problem does not present itself here, since the federal statute is not thus limited. The trial judge in his charge in the instant case told the jury that the "test" under that statute is not the effect of the mailed matter on "those comprising a particular segment of the community", the "young" or "the immature"; and see United States v. Levine, 2 Cir., 83 F.2d 156, 157.

Therefore a discussion of such a children's protective statute is irrelevant here. But, since Judge Clark does discuss the alleged linkage of obscenity to juvenile delinquency, and since it may perhaps be thought that it has some bearing on the question of the effect of obscenity on adult conduct, I too shall discuss it.

The following is a recent summary of studies of that subject:*fn33a "(1) Scientific*fn33b studies of juvenile delinquency demonstrate that those who get into trouble, and are the greatest concern of the advocates of censorship, are far less inclined to read than those who do not become delinquent. The delinquents are generally the adventurous type, who have little use for reading and other nonactive entertainment. Thus, even assuming that reading sometimes has an adverse effect upon moral behavior, the effect is not likely to be substantial, for those who are susceptible seldom read. (2) Sheldon and Eleanor Glueck, who are among the country's leading authorities on the treatment and causes of juvenile delinquency, have recently published the results of a ten-year study of its causes. They exhaustively studied approximately 90 factors and influences that might lead to or explain juvenile delinquency; but the Gluecks gave no consideration to the type of reading material, if any were read by the delinquents. This is, of course, consistent with their finding that delinquents read very little. When those who know so much about the problem of delinquency among youth - the very group about whom the advocates of censorship are most concerned - conclude that what delinquents read has so little effect upon their conduct that it is not worth investigating in an exhaustive study of causes, there is good reason for serious doubts concerning the basic hypothesis on which obscenity censorship is dependent.(3) The many other influences in society that stimulate sexual desire are so much more frequent in their influence and so much more potent in ...

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