Waterman, Moore and Kaufman, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
For ninety-seven years the Comstock Act, named after one of the nineteenth century's most vigorous moral evangelists,*fn1 has barred from the mails all matter "obscene, lewd, lascivious, indecent, filthy or vile."*fn2 This appeal requires us to reinterpret the Act in the light of constitutional doctrine which never illuminated the problems of obscenity legislation with glaring brightness but which now appears to be shifting as well. In particular, the Supreme Court's recent decision in Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), sheds light on the area from a new perspective.
In early 1967 Earl Eugene Gerard, of Westminster, California, and his fiancee Miss Priscilla Yabarra, placed a small advertisement in a magazine known as Swinger's Life. This notice -- like others they had placed in similar periodicals -- announced their desire to hear from "other photo-collectors and liberal-minded couples." The issue carrying their advertisement reached the news stands that summer, and on October 26 appellant Frank Dellapia, then a civilian Navy employee living in New York City, responded. He wrote that he was a "collector of exotica," including "real stag films * * * definitely not to be shown to minors." "Let me know if you are interested," his letter concluded, "and tell me of your experiences." Gerard replied that he and his fiancee were indeed interested in the films. Dellapia then sent a handwritten list of thirty-three movies that he had available, including such colorful titles as "Zorro's Girls," "Willing and Able," and "Young Blood -- Parts 1 and 2." During the next several weeks, Gerard asked for and received several films; Dellapia in turn was enthusiastic in his praise for several pornographic photographs and stories mailed to him by Gerard.*fn3 In late February 1968, Gerard wrote Dellapia enclosing the names of fifteen films he would like to see, and postal money orders totaling $150. On February 27, Dellapia deposited the package containing Gerard's requested films in the mails at Bush Terminal Station in Brooklyn. That very day, however, a United States Marshal and two Postal Inspectors arrested Gerard at his home for sending obscene matter through the mail in violation of the Comstock Act.*fn4 The officials also discovered Gerard's sizable private collection of sex films.
The officers also learned that Gerard was soon to receive another batch of films from Dellapia. When the films arrived two days later, Gerard took the package to his attorney's office, where it remained unopened for some three months, until the day scheduled for Gerard's trial, June 11. On that day Gerard opened the package in the presence of his attorney and one of the Postal Inspectors who had participated in Gerard's arrest. Shortly thereafter, Gerard changed his plea to guilty and received a three-year suspended sentence. The package of films he had asked Dellapia to send him was promptly forwarded to postal authorities in New York City.
Dellapia's one-count indictment and jury trial for violating the Comstock Act followed. At the conclusion of the government's case, Dellapia moved for a judgment of acquittal on the ground that his mailing was "private correspondence" between Gerard and himself and therefore protected by the first amendment. The motion was denied.
We would willingly avoid the profound and perplexing issues suggested by Dellapia's asserted right of privacy could we find the films otherwise protected by the first amendment. But after viewing three films stipulated by the parties as fairly representative of the lot, we have no doubt at all that the films are obscene in the constitutional sense.*fn5 Until quite recently this finding would have ended at least an unprophetic analysis of these facts, presenting as they do no procedural, jurisdictional, or other questions peripheral to the first amendment defense. "Obscenity is not within the area of constitutionally protected speech or press." Roth v. United States, 354 U.S. 476, 485, 77 S. Ct. 1304, 1309, 1 L. Ed. 2d 1498 (1957).*fn6
Roth's instruction that the harmfulness of obscenity need not be demonstrated before it is banned created an enclave outside the first amendment for "obscene" speech. It is not surprising that the battle lines were quickly transferred to the definitional question of what was "obscene." The difficulties of mediating on that front have become all too apparent in the succeeding fourteen years. The saga of a badly-divided Court*fn7 struggling to shape a comprehensive and comprehensible definition of obscenity has been told often and well enough elsewhere to excuse non-repetition here.*fn8
A new chapter was written in Stanley, when the Court announced that the "mere private possession of obscene matter * * * cannot constitutionally be made a crime." 394 U.S. at 559, 89 S. Ct. at 1245, 22 L. Ed. 2d 542. The Court did not question that there is "a valid governmental interest in dealing with the problem of obscenity." Id. at 563, 89 S. Ct. at 1246-1247. Justice Marshall spoke for six members of the Court*fn9 in finding that the Georgia statute punishing mere possession of obscenity unjustifiably infringed Stanley's first amendment rights "to receive information and ideas" regardless of their social worth and "to be free, except in very limited circumstances, from unwanted governmental intrusions into [his] privacy." Id. at 564, 89 S. Ct. at 1247-1248.
We would be putting a gloss over Stanley were we to reject out of hand Dellapia's claim to its protection by noting in wooden fashion that he was not prosecuted for mere possession. Where does Stanley locate the boundary between the government's right to control obscene matter deemed inimical to public order or the public morality and the right of individuals to keep to themselves? Is there a first amendment privilege to exchange and enjoy in private, letters, stories, books, movies -- or spoken words -- however sordid? After Stanley, we do not see that we can answer these questions other than by a case by case accommodation of legitimate, competing interests.*fn10
Especially pertinent to this analysis is certain language that the Court used in Stanley to reconcile earlier decisions and describe hypothetical situations that would fall outside the Court's holding.The right to privacy of thought does not extend, we were told, to " public distribution or dissemination" of obscene matter, 394 U.S. at 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (emphasis added). Similar language appears twice elsewhere in the majority opinion. Id. at 563, 89 S. Ct. 1243 ("commercial distribution"), 566, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 ("public dissemination"). We believe that these words were not used inadvertently. Clearly, the Court did not intend that one forfeit the shelter of Stanley merely by sharing his private collection of obscenity with another for his private use. As we shall see, Dellapia was neither indicted nor convicted for "public" distribution within the meaning of Stanley.*fn11 Since the government has shown no special circumstances that would justify its prosecution of Dellapia in the face of Stanley, his conviction must be reversed.
In so deciding, we need not question the doctrine that under Roth obscenity remains unprotected by the first amendment.*fn12 Indeed, the protected sphere indicated by Stanley was anticipated by Justices Stewart and Harlan as early as 1961,*fn13 ...