Before CLARK, MOORE and KAUFMAN, Circuit Judges.
Defendant mailed to a married woman of his acquaintance a letter wherein he discussed more frankly than fastidiously his and her personal relations with her husband, including homosexual practices described baldly in four- and three-letter words. Her complaint to the postal authorities, on receipt of the letter, set the inevitable wheels of justice in motion, to result in his conviction of violation of 18 U.S.C. § 1461, a six months' prison term suspended, and an order for probation for two years.
There is no dispute as to the facts as found by the judge on waiver of trial by jury, and we can find no escape from holding the letter at least "filthy" under current precedents culminating in Roth v. United States, 354 U.S. 476, 492, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, affirming United States v. Roth, 2 Cir., 237 F.2d 796, 797-799, 799-800. This is a result which we cannot view with satisfaction, since a private communication only brought to light by the addressee would hardly seem to merit criminal prosecution, particularly when it involves merely use of coarse language for which the writer could have substituted more refined phraseology, had he been so minded. But as the Roth case and other authorities, such as Congressional hearings, show, this statute is an important part of deeply cherished legislation, Congress having passed 20 obscenity laws from 1942 to 1956, with similar laws in force in practically all the states and supported by international agreements of over 50 nations. It is not appropriate for a constitutionally "inferior" federal court to set itself against legislation so strongly buttressed as this now is, however distasteful enforcement may be in a particular instance.
LEONARD P. MOORE, Circuit Judge (dissenting).
Within the framework of this rather simple state of facts, I find disturbing consequences. Summarized briefly, the problem is this: Citizen A, not thinking too well of Citizen B, decides to write B (a married lady) a letter. A writes the letter, seals it, entrusts it to the United States mails and, in due course, it is received by Mrs. B, whom A knows apparently quite well. The defendant addresses Mrs. B as "Dear Lovely Becky" and, after saying, "Bob [Mr. B] said he told you everything * * *", states the purpose of the letter, i.e., "This is just to make sure he did tell you." The letter relates largely to the marital and extramarital affairs of Mr. and Mrs. B and to a divorce and then a return. There is a reference to the fact that B had told A of Mrs. B's affairs and of some "couple switching" before the divorce and return. A then feels impelled to reveal that B has told him that he prefers homosexual relations with A to the more orthodox relations with Mrs. B. The purpose of the letter is informational; the primary subject matter, homosexuality. The general character and tone of the letter is not elevated by the use of two words, quite Chaucerian in character, which are employed to describe rather specifically the areas of these anatomical preferences. Probably had the defendant added parenthetically "in the words of Chaucer", all would have been well, but probably neither writer nor addressee had taken a course in Chaucer. Had A, now the defendant, employed the physiological or anatomical terms to be found in Gray's "Anatomy", he undoubtedly would not have found himself in the toils of the law. The defendant says (and with complete plausibility) that had he used such words, the addressee would not have understood them. It must be remembered that there is a substantial segment of our society whose speech consists in good part of participial adjectives with four-letter or Chaucerian words as roots. To be sure, this vast collection of words and phrases has not yet qualified for Webster's Dictionary, but this deficiency has been recently remedied by an entire dictionary of such words and phrases, available at the better bookstores and entitled, "The Dictionary of American Slang", in the pages of which are to be found a wide assortment of four-letter words and their varied usages. In using these two words says the defendant, he chose words the addressee would understand. These are the identical words used dozens of times in "Lady Chatterley's Lover"*fn1 and in any war-story best seller containing dialogue between members of the armed forces of various nations. And their use was not because Lady Constance would not have understood more refined terms. Yet I am convinced that the use of these words may well have been the cause of the book's enormous sale rather than because of a passionate desire on the part of the American public to become schooled in the art of becoming successful gamekeepers on a British estate.*fn2 In addition, the letter contains references to other homosexual possibilities in the B household and to a statement attributed to Mr. B that he would not mind if A sent some of his Navy friends to visit Mrs. B.
When Mrs. B received the letter, she was, needless to say, not pleased. She took the letter to her local minister, from thence to the postal authorities, from thence to the United States Attorney, and from thence to the courts which, because of the practical necessity for interpretation of the words of the statute and for final decision, have been forced to sit as a body of censors. The very nature of the problem calls for an produces decisions virtually on an ad hoc basis.
The trial judge pronounced his judgment of conviction at the close of the testimony. This result I find quite in conflict with the decisions of the Supreme Court of the United States and New York's highest court. I am opposed to criminal sanctions*fn3 for the writing of private letters dealing with homosexuality and containing four-letter words,*fn4 anatomical or scatological, even though used in a letter dealing with matters not altogether parlor conversation. After all, the defendant only used one once. As for the three-letter word (also used but once) referred to by the majority, I seriously doubt that "contemporary community standards" call for jail sentences because of its use to indicate the anal area. I had rather thought that every discerning first grade grammar school teacher had by now faced the duality of meaning between the patient beast of burden and the nether anatomical regions and by an initial understanding of such duality with the students at the opening of school avoided countless titters from the class for the remainder of the term.*fn5
Certainly this young man should not be convicted of a crime for the use of these two words. What remains? Merely the news announcement of the homosexual practices of Mr. B. It, therefore, is my conclusion that this single, non-commercial, private letter does not, and should not, come either within the intendment or the wording of Section 1461. To justify this conclusion, several of the recent decisions must be examined.
Since 1957 when Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), was decided, the arousal of "prurient interest" has rather been the keynote of the decisions following it. This term, certainly not self-defining, was said by Mr. Justice Harlan to mean "material having a tendency to excite lustful thoughts". Even this definition requires further specificity because one must interpolate - lust for what? Obviously for sex. But the highest court recognizes that "sex and obscenity are not synonymous" (Roth, p. 487, 1310 of 77 S. Ct.). Therefore, to meet with disapproval, it must be impure or perverted sex. Yet homosexuality is not regarded in this to-be-banned category because the Supreme Court straightway after Roth did not wish to deter the United States mails from disseminating throughout the country a magazine especially intended for homosexuals. One, Inc. v. Oleson, 355 U.S. 371, 78 S. Ct. 364, 2 L. Ed. 2d 352 ("The Homosexual Magazine"). Shortly thereafter "Lady Chatterley's Lover" was given valuable publicity by the courts although Mellors' use of words for the anatomical parts involved would make our defendant here appear to be quite a restrained prude.
Most recently the Supreme Court had before it another magazine admittedly designed and published for the homosexual trade. Manual Enterprises, Inc. et al. v. Day, 370 U.S. 478, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (1962), revg., 110 U.S.App.D.C. 78, 289 F.2d 455 (D.C.Cir., 1961). There the trial judge and a unanimous court of appeals had found the magazine to offend section 1461. But the Supreme Court reversed despite administrative findings, which the Supreme Court accepted, that the magazine was composed primarily for homosexuals, had no literary or scientific merit, would appeal to the "prurient interest" of sexual deviates, that it would be read almost entirely by homosexuals and that the ordinary male adult would not buy it. Mr. Justice Harlan created a new and essential ingredient which he called "patent offensiveness" - a term connoting an affront to "current community standards of decency". Because the homosexual magazine did not have this essential quality but only frequently untouched pictures of naked male models in assorted poses and appropriately written material for those interested in further pursuit of the subject, it became unnecessary to consider the "prurient interest" aspect or "the question of the proper 'audience' by which their 'prurient interest' appeal should be judged" (Id. p. 482, 82 S. Ct. p. 1434). "Obscenity under the federal statute thus requires proof of two distinct elements: (1) patent offensiveness; and (2) 'prurient interest' appeal" (Id. p. 486, 82 S. Ct. p. 1436). The Court was less specific as to how these elements were to be determined - and by whom. Almost all appellate courts are convinced (as am I) that the final decision should rest not with a postal inspector, the Postmaster General or even with a trial judge. The dangers of potential quixotic censorship are apparent. Even courts of appeal must yield and properly so because if the test under the statute "is a national standard of decency" (Id. p. 488, 82 S. Ct. p. 1437), the Supreme Court is far more able to set this standard than the more regional courts. That Court has shown no hesitation in substituting its judgment for that of lower courts.*fn6 Certainly it should assume this responsibility because it can see pictures and read writings without the aid of a factfinding interpreter in the guise of a lower court.*fn7 In Manual Enterprises the spectre of censorship guided three justices to their conclusion that Section 1461 does not authorize the Postmaster General to close the mails to matter which, in his view, falls within the ban of that section. Id. pp. 495-519, 82 S. Ct. p. 1441.
Turning now to the "letter" cases, a somewhat anomalous situation is found to exist. Congress, when enacting protective laws, in theory, should act for the protection of the public on a national basis. Therefore, one would think that the dissemination of homosexual material to the country at large would call for stricter judicial censure than a mere factual statement of such practices between two individuals in a private letter, albeit there are such wide factual differences between the situations presented in the cases now to be reviewed and the situation here that these cases (two of which are relied on by the majority) should not be regarded as controlling.
In United States v. Limehouse, 285 U.S. 424, 52 S. Ct. 412, 76 L. Ed. 843 (1932), the defendant had sent out thirty letters containing "foul language", charging the addressees with "sexual immorality" and in some cases with "miscegenation and similar practices" (p. 425, 52 S. Ct. p. 412). The Court was satisfied that filthy letters which related to sexual matters came within the interdiction of the statute. Verner v. United States, 183 F.2d 184, 9th Cir., 1950, dealt with two letters sent to two persons, strangers to the writer. The contents were not disclosed in the opinion because of a natural reluctance by the courts not to reveal to the public that which the statute endeavors to discourage. However, an attack was made therein on the chastity of a former paramour and a lewd suggestion made concerning her to the addressee. The test stated by the court was, "The letters were nonmailable material if they had a tendency to deprave or corrupt the morals of those who would receive them." However, for some reason, evidence that the recipients would not have been affected by the contents was excluded. On appeal this exclusion was held to have been proper because the effect "on the minds and conduct of the recipients" was immaterial (p. 185). In Cain v. United States, 274 F.2d 598, 5th Cir., 1960, the court found the language (not disclosed in the opinion) to be shocking and disgusting "fit for use only in gutters, brothels, and like places" and that the letters "villified, defamed, and * * * sought to debase and defile the woman to whom they were addressed." The letters, said the court, accomplished the purpose "of assaulting the sensibilities, and disturbing the peace of mind, of the recipient, his intended victim" (p. 600). But quaere, whether the statute was enacted to protect the "peace of mind" and the "sensibilities" of womanhood? This question is not intended to convey the thought that I am opposed to chivalry but I seriously doubt that this quality is best achieved by jail threats. Usually, the fair sex inspire it without Congressional assistance.
In Ackerman v. United States, 293 F.2d 449, 9th Cir. (1961), the defendant sent five letters to another gentleman which the court found to be "filled with wildly erotic, filthy, prurient comments and inquiries concerning the details of the addressee's private parts, which could have no conceivable worth for artistic, literary, scientific or serious research" couched "in the form of vulgar, sordid, provocative, erotic imagery and evident prurient appeal * * *" (pp. 451-452). Pictures also were enclosed with the letters. Again, reasons of delicacy prompted the court not to reveal the language but little imagination is necessary to surmise that the letters fall within that category of ...