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TRANSCRIPT OF RECORD Supreme Court of the United States No. 582 SAMUEL ROTH, PETITIONER, ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS SUPREME COURT OF THE UNITED STATES No. 582 SAMUEL ROTH, PETITIONER, ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS INDEX [fol. 1] IN UNITED STATES COURT OF APPEALS FOR THE UNITED STATES OF AMERICA, Appellee v. SAMUEL ROTH, Appellant STATEMENT PURSUANT TO RULE 15(b) This proceeding was instituted by the filing of a twenty–six count indictment on July 20, 1955. The defendant–appellant pleaded not guilty on July 25, 1955. Trial by jury commenced on January 3, 1956 before the Honorable John M. Cashin, and was concluded on January 12, 1956. Counts 12, 25 and 26 were dismissed during trial. The jury found the defendant–appellant guilty of Counts 10, 13, 17 and 24 and acquitted him of the remaining counts. The judgment of the Court, sentencing the defendant–appellant to concurrent five year terms of imprisonment on each of the four counts, and a fine of $5,000 on Count 10, and fines of $1 each on Counts 13, 17 and 24 which last fines were remitted, was entered on February 7, 1956. Notice of appeal was filed on February 7, 1956. [fol. 2] IN UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. JUDGMENT AND COMMITMENT—February 7, 1956 On this 7th day of February, 1956 came the attorney for the government and the defendant appeared in person and by counsel IT IS ADJUDGED that the defendant has been convicted upon his plea of not guilty and a verdict of guilty by a Jury of the offense of unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters, to wit, printed circulars, letters, advertisements, writings, pictures and notices and a book [*2] entitled “American Aphrodite” which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character T 18 Sec. 2 and 1461 USC as charged in counts 10–13–17–24 and the court having asked the defendant whether he has anything to say why judgment should not be pronounced, and no sufficient cause to the contrary being shown or appearing to the Court, IT IS ADJUDGED that the defendant is guilty as charged and convicted. IT IS ADJUDGED that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of Count Ten—Five Years and fined $5000. Defendant to stand committed until fine is paid or he is otherwise discharged according to law. [fol. 3] Count Thirteen—Five Years and fined $1.00. Fine Remitted. Count Seventeen—Five Years and fined $1.00. Fine Remitted. Count Twenty–four—Five Years and fined $1.00. Fine Remitted. Prison sentence on each of counts 10–13–17–24 to run concurrently with each other. Motion for Bail pending Appeal is denied. It is ordered that the Clerk deliver a certified copy of this judgment and commitment to the United States Marshal or other qualified officer and that the copy serve as the commitment of the defendant. (S.) John M. Cashin, United States District Judge. [fol. 4] IN UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK INDICTMENT—Filed July 20, 1955 The Grand Jury charges: 1. On or about the 15th day of February, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited [*3] and caused to be deposited for mailing and delivery certain matters, to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom, and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including, among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 5] Count II The Grand Jury further charges: 1. On or about the 18th day of February, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to: [*4] which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 6] Count III The Grand Jury further charges: 1. On or about the 16th day of March, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things: [*5] 2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 7] Count IV The Grand Jury further charges: 1. On or about the 16th day of February, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [*6][fol. 8] Count V The Grand Jury further charges: 1. On or about the 25th day of May, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 9] Count VI The Grand Jury further charges: 1. On or about the 26th day of May, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to: [*7] which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 10] Count VII The Grand Jury further charges: 1. On or about the 28th day of June, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things: [*8] 2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 11] Count VIII The Grand Jury further charges: 1. On or about the 28th day of April, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [*9][fol. 12] Count IX The Grand Jury further charges: 1. On or about the 24th day of May, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures, and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 13] Count X The Grand Jury further charges: 1. On or about the 10th day of December, 1954, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to: [*10] which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 14] Count XI The Grand Jury further charges: 1. On or about the 3rd day of January, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things: [*11] 2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 15] Count XII The Grand Jury further charges: 1. On or about the 24th day of December, 1954, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [*12][fol. 16] Count XIII The Grand Jury further charges: 1. On or abount the 9th day of November, 1954, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 17] Count XIV The Grand Jury further charges: 1. On or about the 18th day of April, 1955, at the Southern District of New York, Samuel Roth, the defendant, herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to: [*13] which matters were nonmailable in that they were obscene, lewd lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 18] Count XV The Grand Jury further charges: 1. On or about the 15th day of April, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things: [*14] 2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 19] Count XVI The Grand Jury further charges: 1. On or about the 20th day of July, 1953, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were nonmailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and in that they gave information directly and indirectly where, how, from whom and by what means other matters, articles and things of an obscene, lewd, lascivious, filthy and indecent character might be obtained, including among other articles and things:
2. The aforesaid nonmailable matters, articles and things are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 20] Count XVII The Grand Jury further charges: 1. On or about the 19th day of February, 1954, at the Southern District of New York, Samuel Roth, the defend– [*15] ant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters, to wit, printed circulars, letters, advertisements, writings, pictures and notices addressed to:
which matters were non–mailable in that they were obscene, lewd, lascivious, filthy and of an indecent character, and which matters are further described as having advertised, among other things, “American Aphrodite Number Thirteen” and “Good Times, Vol. 1 No. 5”. 2. The aforesaid non–mailable matters are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) Count XVIII The Grand Jury further charges: 1. On or about the 21st day of March, 1955 at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain [fol. 21] matters, to wit, “Stereoptice Nude Show” and “Wallet Nudes”, addressed to:
which matters were non–mailable in that they were obscene, lewd, lascivious, filthy and of an indecent character. 2. The aforesaid non–mailable matters are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [*16]Count XIX The Grand Jury further charges: 1. On or about the 18th day of March, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matter, to wit, a book of Photographs, entitled “NUS”, addressed to:
which matter was non–mailable in that it was obscene, lewd, lascivious, filthy and of an indecent character. 2. The aforesaid non–mailable matter is of such vile, obscene, lewd and lascivious character that a further de– [fol. 22] scriptoion thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) Count XX The Grand Jury further charges: 1. On or about the 14th day of April, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters, to wit, eight magazines entitled “Good Times”, described further as Vol. 1 No. 7, Vol. 1 No. 8, Vol. 1 No. 9, Vol. 1, No. 10, Vol. 1, No. 11, Vol. 1, No. 12, Vol. 2, No. 13, and Vol 2 No. 14, addressed to:
which matters were non–mailable in that they were obscene, lewd, lascivious, filthy and of an indecent character. 2. The aforesaid non–mailable matters are of such vile, obscene, lewd and lascivious character that a further de– [*17] scription thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 1 and 1461.) [fol. 23] Count XXI The Grand Jury further charges: 1. On or about the 30th day of June, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters, to wit, a quantity of magazines entitled “Good Times”, described further as Vol. 2 No. 15, addressed to:
which matters were non–mailable in that they were obscene, lewd, lascivious, filthy and of an indecent character. 2. The aforesaid non–mailable matters are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) Count XXII The Grand Jury further charges: 1. On or about the 10th day of June, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters, to wit, a quantity of magazines entitled “Good Times”, described further as Vol. 2 No. 14, addressed to: [fol. 24] Bell Block News Store which matters were non–mailable in that they were obscene, lewd, lascivious, filthy and of an indecent character. 2. The aforesaid non–mailable matters are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) Count XXIII The Grand Jury further charges: 1. In or about April, 1955, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matters, to wit, “Stereoptic Nude Show”, “Wallet Nudes”, and “2 Undraped Stars”, addressed to:
which matters were non–mailable in that they were obscene, lewd, lascivious, filthy and of an indecent character. 2. The aforesaid non–mailable matters are of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [fol. 25] Count XXIV The Grand Jury further charges: 1. On or about the 10th day of March, 1953, at the Southern District of New York, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain [*19] matter, to wit, a book entitled “American Aphrodite”, described further as Vol. 1 No. 3, addressed to:
which matter was non–mailable in that it was obscene, lewd, lascivious, filthy and of an indecent character. 2. The aforesaid non–mailable matter is of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) Count XXV The Grand Jury further charges: 1. On or about the 29th day of December, 1954, at the Southern District of New York, Samuel Roth, the defend–and herein, unlawfully, wilfully and knowingly deposited and caused to be deposited for mailing and delivery certain matter, to wit, a book of photographs entitled “Photo and Body No. 4”, addressed to: [fol. 26] Whispering Pines TRCT which matter was non–mailable in that it was obscene, lewd, lascivious, filthy and of an indecent character. 2. The aforesaid non–mailable matter is of such vile, obscene, lewd and lascivious character that a further description thereof would defile the records of this Court, and therefore such further description is not set forth in this indictment. (Title 18, United States Code, Sections 2 and 1461.) [*20]Count XXVI The Grand Jury further charges: 1. That from in or about March, 1951, and continuously thereafter up to and including the date of the filing of this indictment, in the Southern District of New York and elsewhere, Samuel Roth, the defendant herein, unlawfully, wilfully and knowingly did combine, conspire, confederate and agree with Chief Miller, G. I. Distributors, Inc., Morris Sorkin, Philip S. Foner, Remainder Book Company, Abraham Lieberman, Book Sales, Inc., and divers other persons to the Grand Jury unknown, to commit offenses against the United States in violation of Title 18, United States Code, Section 1461. 2. It was part of said conspiracy that said defendant and co–conspirators would publish, print, distribute, deposit and cause to be deposited for mailing and delivery obscene, lewd, lascivious and filthy books, pamphlets, pictures, papers, letters, writings, prints, packets, packages, articles and other publications and things of an indecent character. [fol. 27] Overt Acts In pursuance of said conspiracy and to effect the objects thereof, in the Southern District of New York: 1. On or about the 3rd day of April, 1953, defendant Samuel Roth and co–conspirator Chief Miller affixed their signatures to a document commencing with the words “Agreement between Chief Miller, acting for G. I. Distributors, Inc., and Samuel Roth, acting for Seven Sirens Press Inc., for the distribution of a monthly magazine entitled “Good Times: A Review of the World of Pleasure”. 2. On or about the 10th day of June, 1955, co–conspirator Book Sales, Inc. deposited and caused to be deposited for mailing and delivery a package addressed to: [*21] 3. On or about the 18th day of April, 1955, co–conspirator Remainder Book Company deposited and caused to be deposited for mailing and delivery a package addressed to:
4. On or about the 9th day of May, 1955, co–conspirator G. I. Distributors, Inc., deposited and caused to be deposited a package addressed to:
(Title 18, United States Code, Section 371.)
[fol. 28] IN UNITED STATES DISTRICT COURT The Court: Ladies and gentlemen of the jury: The time has now arrived in this case when it becomes my duty to charge you as members of this jury and to give you the law in reference to this particular case, and then you apply that law to the facts as you find them from the testimony of witnesses and from the exhibits. The United States of America here charges the defendant, Samuel Roth, with twenty–three different violations of Section 1461 of the United States Code, Title 18, which in part defines as a crime the depositing or causing to be deposited for mailing obsence, lewd, lascivious or filthy matter. The defendant pleads not guilty to those charges. That plea is a denial by the defendant of each and every material allegation made against him by the United States of America. A grand jury heretofore indicted the defendant for the crime here charged. This indictment is no proof of guilt. That is the law. The indictment is simply an accusation [*22] and proves nothing. It is a cardinal principle of our system of justice that every person accused of crime is presumed to be innocent until guilt is established by proof sufficient in law. That presumption protects the defendant here at every stage of this trial. That presumption follows this case as it now goes to you. That presumption may be repelled or overthrown only by your verdict. Thus, the United States of America, who are the complainants in this case, have the burden of proof. The defendant, as I have said, denies each and every material allegation the United States of America makes against him. He may not be found guilty by you unless his guilt of each and every essential element of the crimes charged against him is established by the United States of America and by the character and quality of proof required by law. [fol. 29] It is our theory of trial by jury that a jury’s verdict should represent a concurrence or agreement of the individual judgments of twelve reasonable persons. I do not suggest that any of you are to refuse to consider or discuss the opinions of his fellow jurors, but I do charge you that each of you individually must be convinced of the guilt of the defendant by legally satisfactory evidence before you can return a verdict of guilty against him. Such verdict must be unanimous. In this case the United States of America charges Samuel Roth with twenty–three different crimes. The burden of establishing these crimes is, I repeat, upon the United States of America, and that burden the United States of America must sustain by the character, quality and degree of proof, which shall satisfy you of the guilt of this defendant beyond a reasonable doubt. What do I mean by the words “reasonable doubt”? There are no plainer words than the words “reasonable doubt.” The term defines itself. You may, however, be aided by the idea of what a reasonable doubt is not. A reasonable doubt is not a mere possible doubt; not a vague nor fanciful doubt. In this case a reasonable doubt of the defendant’s guilt of the crime charged by the United States of America is such a doubt thereof as a rational man or woman would consider well–founded after full and fair deliberation upon all the credible and trustworthy evi– [*23] dence in the case, or, as has been stated, a doubt for which a reason can be given. Such a doubt in this case entitles the defendant to a verdict of not guilty. In consequence, the law is such that in a criminal case it is enough if proved that the defendant’s guilt be established beyond a reasonable doubt, not beyond all possible doubt. [fol. 30] You are the exclusive, the sole judges of the questions of fact in this case, and those questions of fact must be decided by you upon your own responsibility and by you alone. You are bound, nevertheless, to receive as law what is laid down as such by the Court. You are instructed of course that a defendant is not obligated to prove that he is innocent of the charges made against him. On the contrary, the burden of proving his guilt beyond a reasonable doubt is upon the Government and remains with the Government throughout the trial. If the Government has failed to satisfy you beyond a reasonable doubt that the defendant is guilty, you must acquit such defendant. The burden of proving guilt beyond a reasonable doubt, as I have explained to you, applies to each and every essential element which is part of the offense charged, and which elements I shall call your attention to shortly. The failure of any defendant to take the witness stand to testify in his own behalf does not create any presumption against him, and you must not permit that fact to weigh in the slightest degree against him, nor should this fact enter into your deliberations or discussions in any manner. It is important in a government such as ours that its laws be enforced, not only for the maintenance of the government, but also for the protection of each of us, in our security, property, safety and rights. On the other hand, there is no dearer right belonging to all of us than to be protected in our liberty if we have done nothing to curtail or to deserve, rather, the curtailment. In your determination, therefore, you are not to be guided or governed in any way by passion, prejudice, public opinion or sympathy. Both the public and the defendant have the right to demand that you will carefully and dispassionately weigh and consider the evidence and the law of the case and give each your conscientious judgment. [*24] [fol. 31] It is, as you know, only the testimony from the witness stand and the exhibits that constitute evidence, Statements of counsel or any statements contained in any questions asked of a witness by counsel are not evidence. The indictment alleges that the defendant, Samuel Roth, knowingly deposited for mailing or caused to be deposited for mailing obscene, lewd, lascivious and filthy matter. In particular, the indictment charges the defendant in the first seventeen counts, excluding the twelfth, which has been withdrawn from your consideration, with mailing obscene circulars and advertising which are obscene, one, on their face, and, two, in that they give information where and how obscene matter may be obtained, to the sixteen different persons who testified here as receiving them. In counts 18 to 24 the indictment charges the defendant with mailing certain obscene publications and pictures, which were advertised in one or more of those circulars. The publications were described as Stereoptic Nude Show and Wallet Nudes in count 18; a book of photographs entitled Nus in count 19; eight magazines entitled Good Times in count 20; a quantity of magazines entitled Good Times, Vol II, No. 15 in count 21; a quantity of magazines entitled Good Times, Vol. II, No. 14 in count 22; Stereoptic Nude Show, Wallet Nudes and 2 Undraped Stars in Count 23; the book American Aphrodite in count 24. As I have already said, the crimes charged here are defined by the statute, Title 18, Section 1461 of the U. S. Code, which insofar as applicable herein provides as follows: [*25] The essential elements of the offense are, one, that the defendant knowingly deposited or caused to be deposited in the United States mails the offending printed matter or the advertising information as to where, when, how or from whom such matter could be obtained; and, two, that in fact that matter was obsence, lewd, lascivious or filthy. Before you find the defendant guilty you must find beyond a reasonable doubt that the Government has established each essential element. If not, your verdict must be not guilty. Of course, if you do find that they have established all the essential elements of the crimes as charged, then of course your verdict must be guilty. As to the first element, that is, the mailing, you should have little if any difficulty in reaching a conclusion. The defendant, through his counsel, has conceded the mailing or the causing to be mailed all the matter referred to in the various counts of the indictment. This concession is the equivalent of testimony of a witness and must be accepted by you with the same force and effect. However, you are still required to decide upon all the evidence beyond a reasonable doubt that the mailings by the defendant or under his direction, as charged in the indictment, did in fact occur, and as I have already said, there should be little difficulty in deciding this issue. The real disputed issue is the second element of the offense—the nature and character of the circulars, book, pictures and publications. Who determines that issue? [fol. 33] You, as members of the jury, are the sole and exclusive judges of the facts, and it is for you to decide, as you decide all questions of fact. What is meant by “obscene, lewd, lascivious and filthy” and what standards do you apply in reaching a determination whether the pictures, circulars or book are of that character? The words “obscene, lewd and lascivious” as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts. The matter must be calculated to corrupt and debauch the minds and morals of those into whose hands it may fall. It must tend to stir sexual impulses and lead to sexually impure thoughts. The test is not whether it [*26] would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so–called worldly–wise and sophisticated indifferent and unmoved. “Filthy” as used here must also relate to sexual matters. It is distinguishable from the term “obsence,” 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. The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by [fol. 34] present–day standards of the community. You may ask yourselves does it offend the common conscience of the community by present–day standards. The defendant here has called certain expert witnesses. Their testimony has been admitted for the purpose of showing you what the common conscience of the community is today. You are not bound by it. You are at liberty to accept or reject, in whole or in part, such testimony, accepting only that portion which commends itself to your judgment. These witnesses gave their opinions as to the impact this literature would have on the general public. Whether or not these pictures and publications are of such a character as to stir sexual impulses or arouse lustful passions or are revulsive or disgusting must be determined by you and you alone, according to the standards I have given you. The testimony of an expert witness is treated no differently than that of any other witness. You weigh his or her interest in the case, possible bias or prejudice, manner of testifying, and in general evaluate the testimony in ac– [*27] cordance with your good, sound common sense and what appeals to your reason. The defendant also introduced in evidence certain books, bestsellers, and excerpts therefrom, as some evidence of the current reading habits of the public. I instruct you what weight if any you give to this evidence rests with you. I caution you you are not required to limit yourselves to a consideration of one or all of the books introduced by the defendant as examples of present–day standards of literary taste. You may consider and compare the number of people who read these books with the number of people who make up our community, and it may be your judgment that some or all of the books introduced by the defendant are obscene themselves, in accordance with the standard I have given you. [fol. 35] In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious—men, women and children. Insofar as you are concerned, this indictment consists of twenty–three counts. You are not to concern yourselves with counts 12, 25 and 26, as they have been removed from your consideration. You are to consider each count separately, in accordance with the rules I have given you. I repeat, in considering counts 1 to 17, excepting 12, which have to do with the circulars, you must consider whether they are obscene on their face; that is one, or, two, if they give information where and how obscene matter may be obtained. If you find that a circular was not obscene on its face, you must consider it in the light of those pictures and publications advertised in that particular circular, and which have been introduced in evidence before you. If you also find those pictures and publications not obscene, then your verdict must be not guilty on that particular count. It follows, of course, if you were to find the defendant not guilty on all of the first seventeen counts, you would have to find him not guilty on the remaining counts. I have sought to avoid any comments which might sug– [*28] gest my personal view as to conclusions to be drawn by you from the evidence. You are not to assume that I have any view as to the guilt or innocence of the defendant. The determination of that question is your sole and exclusive responsibility. If in the course of these instructions I have made reference to any evidence which does not accord with your recollection, you are to disregard that statement by me. It is your recollection of the evidence and not the state– [fol. 36] ments of the Court or the statements of counsel which govern. The actions of the Court during the trial in ruling upon motions or overruling objections or in sustaining objections are not to be taken by you as any indication of the guilt or innocence of the defendant. They are matters of procedure and of law, with which you, the jury, have no concern. Also, as I previously instructed you during the course of this trial, you are to disregard any testimony I have stricken from the record, and it is not to be considered in your deliberations on the issues in this case. Under your oaths as jurors, you cannot allow consideration of punishment which might be inflicted upon a convicted defendant to influence your verdict in any way or in any sense to enter into your deliberations. The duty of imposing sentence in the event of conviction rests exclusively upon the Court. Your function is solely to determine the guilt or innocence of the defendant upon the basis of the evidence. If the Government has established the guilt of the defendant under the law beyond a reasonable doubt, as I have defined it to you, you should find him guilty. If the [fol. 37] Government has not so established his guilt, you should find him not guilty. It would be a great injustice to convict the defendant if there is a reasonable doubt of his guilt on the evidence under the law. It would be a mockery of justice to acquit him if his guilt has been established under the law beyond a reasonable doubt. [*29]IN UNITED STATES DISTRICT COURT REQUESTS TO CHARGE AND COLLOQUY Any exceptions to the charge, Mr. Atlas? Mr. Atlas: Well, my only exception, your Honor, is that you haven’t charged certain of my requests in haec verba, but I think you have generally included them. The Court: Well, except as charged, I am not passing upon any of the requests except as charged, and I will deny any further requests, except if you have any specific one that you request of me to charge. Mr. Atlas: Your Honor has my sheet, but I think I can remember it. I would like your Honor to charge that “coarse,” in and of itself is not obscene. The Court: I didn’t get that. Mr. Atlas: That the word “coarse,” c–o–a–r–s–e, is not obscene. The Court: I so charge. Mr. Atlas: I will ask your Honor to charge that the nude in and of itself is not obscene. The Court: I so charge. I covered that in my main charge. Mr. Atlas: I think my only objection is that it wasn’t done in haec verba. May I see that sheet? The Court: Yes, you may. Mr. Atlas: If you please. And I ask your Honor to charge that the Court is not a censor. The Court: Oh, I charge that. Mr. Atlas: Yes, sir. [fol. 38] The Court: It never sets itself up to be one. Mr. Atlas: I don’t mean your Honor. I mean the whole— The Court: I thought you said the Court. Mr. Atlas: The whole system, the whole Court is not a censor. The Court: I so charge. Mr. Atlas: I think, beyond that, your Honor has fairly covered everything, and I have no other exceptions. [*30]The Court: Any requests from the Government? Mr. Leisure: Nothing further, your Honor. The Court: All right. Now at this time I will discharge the two alternate jurors. You are discharged from any further participation in this case. The Court wants to extend to both of you its thanks for your careful attention that you have given, even though you were alternates, and I will request that you express no opinion about the case until after the jury returns with its verdict. You are excused with the thanks of the Court. (Alternates excused.) The Court: Will you swear the officers, please? (Marshals sworn.) The Court: I think, if it is agreeable to counsel, in this particular case the indictment should go with the jury and also the exhibits, even if they don’t request it. Mr. Atlas: I won’t have any objection if the clerk writes across the face of the counts that have been dismissed, “Dismissed”. The Court: Oh, yes. That is 12, 25 and 26. Mr. Atlas: That’s right, sir. I have no objection to them seeing all the exhibits and everything. The Court: I am going to direct at this time—now you jurors are going to like what I am going to say—I am going to direct, before you start your deliberations, that the Gov– [fol. 39] ernment take you out and buy you lunch. Start your deliberations after lunch. Is that all right? Is that satisfactory? I thought that would be good. They don’t need to take these things with them now. When you come back, you can send in for a copy of the indictment and the exhibits, and by consent of counsel you can have them. All right, the jury may retire. (The jury retired at 12:30 P.M.) The Court: This court will recess, awaiting the verdict of the jury. [*31]Mr. Atlas: I trust that your Honor is continuing the defendant’s bail during deliberations and so forth. The Court: Of course. Mr. Atlas: I am very grateful to you, sir. The Court: Announce a recess of this court, pending a verdict of the jury, Mrs. Clerk. (Recess.) (At 2:50 P. M., the following took place in the robing room:) The Court: The Court received a note from the jury, which reads as follows:
It appears that that chart was not introduced in evidence. However, have you any objection to the chart going to the jury, Mr. Leisure? Mr. Leisure: No, I don’t have at all. The Court: Have you, Mr. Roth? Mr. Roth: None at all. The Court: Have you, Mr. Atlas? [fol. 40] Mr. Atlas: No, sir. The Court: All right. Then upon consent of both counsel and the defendant the Court will turn a copy of the chart over to the marshal for delivery to the jury. Mr. Atlas: Thank you, Judge. (The following took place at 6:07 P. M. in the robing room:) The Court: I have another note from the jury, gentlemen. It says:
Mr. Leisure: May I make this request, your Honor, at this time? The charge as it was put was in a negative [*32] form, that is, “If you do not convict on the first seventeen, you cannot convict on the others.” I think, in the Government’s interest, I should request that you further charge that if they find that the exhibits are obscene, they must find that the circulars which advertised those exhibits are also obscene. I think that that would be a fair charge. It would be both negative and positive, and I think it would clarify it for them. The Court: Do you have any objection to that, Mr. Atlas? Mr. Atlas: I would like to think about it for a minute. Well, if you do that, you would have to say that if they find that the exhibits, meaning the publications themselves, are not obscene, then the circulars are not obscene. Mr. Leisure: That isn’t necessarily so. The circular can be obscene on its face. [fol. 41] Mr. Atlas: You have made that point, but I think— Mr. Leisure: I think it is the law to say that if the exhibit, the publication, is obscene, that then any circular that advertises it is obscene. That certainly is not a mis–statement of the law. Mr. Atlas: That would be so, if the circular advertises it, but I think that it is probably a mistake to connect the two, Judge, because the question indicates that they are unable to reason about it the way the legal mind will reason about it. Mr. Leisure: The question indicates that they don’t understand it, and I think it is a fair thing to charge them both ways, and I think it would clarify it for them. Mr. Atlas: Wouldn’t it be simpler to say to them that if they find that the exhibits are not obscene, they then go back and find out whether the circulars are of themselves as publications obscene? Mr. Leisure: I have no objection to that at all. The only thing is, I want the affirmative side charged too, and that is why I think it is a fair statement to say that if the exhibits are obscene, the publications are obscene, then any circular that advertises them is obscene, because the law is that any circular that advertises an obscene publication, even if it is just a typewritten page, is obscene. Mr. Atlas: You are running into some difficulty there because the circulars which you are complaining of do not [*33] in every instance refer to American Aphrodite, No. 3. They may be referring to another issue of American Aphrodite. That is the first thing. And they do not necessarily advertise the issues of Good Times which are involved. That makes it very difficult. Mr. Leisure: But it still is clear that if the exhibit is obscene, any circular that advertises it is obscene. That is perfectly clear. Mr. Atlas: That is true, but then you have to tell them that the only issues of these magazines that are involved [fol. 42] are the issues of the exhibits, and that advertising another issue of the same magazine doesn’t give them the privilege of saying the circular is obscene. Mr. Leisure: That is the law. If they are going to have to split it, they will have to decide on it that way. Mr. Atlas: I am afraid we are not helping the Judge. Mr. Leisure: I have made my point. I won’t argue further. The Court: I am not going to have you make any requests out in open court, either one of you. I won’t go for that. I got you in here to see whether we can agree on what I could tell them, so that there would be no question about it, but I am not going to have either one of you make a request that I further charge. I can’t go for that. Mr. Leisure: I won’t do that. Mr. Atlas: What was the question that they are asking, the second part? The Court: “Did you say if the defendant is ‘Not Guilty’ on counts 17, to we must find him ‘Not Guilty’ on the remainder, and why?” Mr. Leisure: I think you can explain to them that a circular is obscene in either one of two ways: It can be obscene on its face, or if it advertises something that is obscene, then it is also obscene, so that they must look to the publication and see if the material advertised is obscene. In other words, it is possible in this type of case to have a typewritten page which says, “Send $5 for American Aphrodite”, and that is obscene if American Aphrodite is obscene. Mr. Atlas: May I say this. Would it be best, Judge, [*34] and wouldn’t everybody be best served if you were to answer that second part of the question saying that if they find that the circulars are not obscene, then they will have to find that any of the exhibits mentioned in them are also not obscene? [fol. 43] Mr. Leisure: I would like them to know why, the reason. Mr. Atlas: I haven’t finished. Mr. Leisure: I am sorry. Mr. Atlas: The reason being that such a circular could not be deemed to have been advertising where you could get obscene literature. Mr. Leisure: I object to it only because it is summation. The Court: You can’t charge it both ways. There is only one way you can do it, and you can’t do it without some danger. Mr. Leisure: No, you can charge that if the publication is obscene, then the circular has to be obscene. Mr. Atlas: If it advertises the publication. Mr. Leisure: Yes. I think that is not unfair. I think it is a fair statement of the law. Mr. Atlas: We are in your hands, Judge, I guess. The Court: Well, supposing you go out. I want to give it a little thought. Mr. Leisure: All right. The Court: I will call you back when I get something worked out. (Both counsel left the robing room and were later recalled.) The Court: I am going to have the stenographer read my charge, starting in with “Insofar as you are concerned this indictment consists of twenty–three counts. You are not to concern yourselves with counts 12, 25 and 26, as they have been removed from your consideration. You are to consider each count separately in accordance with the rules I have given you. I repeat, in considering counts 1 to 17, excepting 12, which have to do with the circulars, you must consider whether they are obscene on their face, that is one, or two, if they give information where and how ob– [*35] scene matter may be obtained. If you find that a circular was not obscene on its face, you must consider it in the [fol. 44] light of those pictures and publications advertised in that circular and which have been introduced in evidence before you.” So that is in there. “If you also find these pictures and publications not obscene, then your verdict must be not guilty on that particular count.” “It follows, of course, if you were to find the defendant not guilty on all of the first to seventeen counts, you would have to find him not guilty on the remaining counts.” Now I am going to ask them a question: do they have any question? And I will answer the question which I know I am going to get, this way: “Or if they give information where and how obscene matter may be obtained; that if they gave information where and how obscene matter may be obtained, they can take into consideration in determining that question whether the exhibits introduced on the last seven counts are obscene.” Mr. Atlas: I just wanted to call your attention that the defendant hasn’t been in here these couple of times. The Court: He doesn’t have to be in here. Mr. Atlas: I wanted to make sure. The Court: No, he is out there when the jury comes in and the whole thing will be done there. He doesn’t have to be here. (The following took place in the courtroom at 6.25 P. M., the jury being in the box:) The Court: Now, the Court is in receipt of a communication from the jury which he will now read: [*36] I am going to have the stenographer read back to you now that portion of my charge which deals with those questions which you asked, and I would ask, as you have done all along, that you pay strict and particular attention to what the stenographer is about to read. (Portion of charge as indicated in chambers read.) The Court: After listening to that, does that help any? Or do you have any specific question in addition to that that you want to ask the Court? Juror No. 10: I think that answers the question that we had, as far as I am aware. That was the only question, and that answers it fully. Juror No. 2: May I ask a question, your Honor? I just noticed something in the reading of your charge, that you state there are counts up to 23, and especially 24, which includes Aphrodite, is omitted in that charge. It is only up to 23. Is there any reason for that, may I ask? The Court: No, that isn’t so. I say, “In considering counts 1 to 17, excepting 12, of course”, and then I say “It follows, of course, if you were to find the defendant not guilty on all of the first 17 counts, you would have to find him not guilty on the remaining counts”. I don’t mention anything about 23 or anything that you say about it. What the Court said in that charge is that in determining counts 1 to 17, you are to consider whether they are obscene on their face, that is one. Or, if they give information where and how obscene matter may be obtained. If you find that the circular was not obscene on its face, you must consider it in the light of those pictures and publications advertised in that particular circular, and which have been introduced in evidence before you. In other words, what the Court [fol. 46] says is that in determining the second question, if they are not obscene on their face, if they give information where and how obscene matter may be obtained, in determining that question you have a right to take into consideration the exhibits which are introduced under the last seven counts which are now before you in the indictment, in determining whether or not they advertise, if they give information where and how obscene matter may be obtained. Does that answer your question? Does that clear it up? [*37](Jury nodded assent.) The Court: All right. Now, ladies and gentlemen of the jury, would you like to get your dinner, have dinner before you go back for your deliberations? Juror No. 11: It would give us a little rest. The Foreman: I think it would be better. The Court: Well, the reason I ask you is because it is a little bit hard to have to do it, and we will have a little trouble finding a place to eat downtown if we do it a little later, so I am going to direct that the jury be taken to dinner and come back after dinner and resume your deliberations. Juror No. 5: I would just like to suggest, your Honor, that we be given just about three minutes together before we go to dinner, to make sure we have a meeting of the minds on what you have just told us. The Court: All right, go ahead. When you get ready, rap on the door and I will send a marshal in. The Foreman: Your Honor, would it be possible for the stenographer to transcribe that portion of the charge, have it right there? The Court: I can’t do that. I don’t think I have any right to give you the charge. If it isn’t clear to you, I will have him read it again. The Foreman: I think we understand. * * * * * * * [fol. 47] IN UNITED STATES DISTRICT COURT EXCERPTS FROM THE SUMMATION OF THE ASSISTANT UNITED STATES ATTORNEY Mr. Leisure: * * * we have called you here today to show you what has been sent through the mails, and to ask you to help the United States Government to enforce the law that has already been passed. * * * * * * * * * * The rest of the counts were proved by the people who actually received them and they all came here, and [*38] some came from quite some distance, and some came at quite some inconvenience to themselves, in order to stand up for what they thought is right. * * * * * * * There was Mr. Feldhouse, who comes from Parma, Ohio; a mother, who said her son had received this stuff in the mails. There was Mrs. Klovski, who came all the way from Dearborn, Michigan, here, to tell you about it. There was the Rev. L. W. Rockwell, who came here. He was a man, he told you, who is in charge of 88 delinquent children. Can you imagine the audacity of that man, mailing that envelope to the Uhlich Children’s Home? That wasn’t even addressed to an adult there. You have seen it, and I don’t want to review the evidence in this case because I think you have certainly had a good dose of it. And that woman who worked for Mr. Roth took the stand and she testified that this was typewritten; this wasn’t a stencil. Somebody in that organization sat down and typed that out, “Uhlich Children’s Home,” and that is what they sent them. Then there was Mr. Bissler, and there has been an awful lot of wisecracks in the case about Alliance, Ohio. Well, he is a plumber, and if you have lost a little bit of faith in mankind throughout this trial, just let me remind you that a plumber had the nerve not only to complain about this [fol. 48] but come all the way here to New York and testify and take the stand; and it isn’t any fun to get up and be cross–examined and be asked whether or not your children are encouraged to read the Bible. * * * * * * * Well, those people have come in here and they have done everything that they can do; and I will say to you that they reminded me of you people, they reminded me a lot of you people and I don’t think I have to stretch my imagination very far to think that if this kind of thing had been pouring into your homes, every one of you, or addressed to your children, that you would have been on the witness stand yourself, standing up for what you think is right. Now those people have done everything they can do, and [*39] they are interested in this case; they are interested to see what you are going to do now. You are in a much stronger position than any one of those people, because you hold in your hands the power to make a final determination of this. * * * * * * * Well, putting in those counts and those exhibits gave you a chance to see your post office employees in action. Do you remember the tall man from Georgia that came all the way up from Cordele, and the gentleman from Newfoundland who came all the way down from Canada, and the soft–spoken Mr. Nelson, who came up from Washington to testify? And there is Mr. Carr here, who sat throughout this case with me and who has worked months and months on this case before we ever came to trial. I get a chance to stand up here now and do all the talking, but those men have done a tremendous job on this, and in [fol. 49] order to get it into court so that we can do something about this kind of thing. I think you can be proud of them. They are first–class public servants, and the defense would have you believe that something is wrong in the way they proceeded here on this test letter situation. They have enough respect for their own rules and regulations in the post office so that they won’t open a firstclass letter. But it will be a sad day for the administration of justice when our hands are tied just became somebody uses the firstclass mail in order to distribute this kind of thing. So we went to all that kind of trouble to set that thing up in Georgia, and in Dover, and remote places like that, because we wanted to do it right, and because the courts of law have held that that is the proper way to proceed. We called those people from a great distance and at a great inconvenience because we want to do it right, not because we wanted to do it wrong. * * * * * * * I told you in my opening statement that there are many people who are watching this, because there is money in this; this stuff will sell. They are going to be interested to see whether you are going to make it legal or not. Let [*40] me say this: if you want me and these post office inspectors to continue to work and fight to stop this kind of thing, you can tell us that by bringing back a verdict as quickly as you possibly can, convicting him on every count in this indictment, and we will do it. And if you don’t care, or if you want to continue it, then acquit him, and I can assure you that the sewers will open. * * * * * * * [fol. 50] IN UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT—October Term, 1955 No. 387 (Argued June 6, 1956 Docket No. 24030) UNITED STATES OF AMERICA, Appellee v. SAMUEL ROTH, Appellant Before: CLARK, Chief Judge, and FRANK and WATERMAN, Circuit Judges. Appeal from the United States District Court for the Southern District of New York, John M. Cashin, Judge. Samuel Roth appeals from his conviction for mailing obscene matter in violation of 18 U. S. C. § 1461. Affirmed. GEORGE S. LEISURE, JR., Asst. U. S. Atty., S. D. N. Y., New York City (Paul W. Williams, U. S. Atty., New York City, on the brief), for appellee. PHILLIP WITTENBERG, New York City (Wittenberg, Carrington & Farnsworth and Irving Like, New York City, on the brief), for appellant. [fol. 51] OPINION—September 18, 1956 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) [*41] 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 satutes relating to the Post Office Department, and thence derived from Rev. State. § 3893, herein declares unmailable “[e]very obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character,”1 and makes the knowing deposit for mailing of such unmailable matter subject to a fine of 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, 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, “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 [fol. 52] 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. [*42]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, 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.2 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, [fol. 53] while among the cases in the United States Supreme Court upon which he relies are United States v. Alpers, 338 U. S. 680; Winters v. People of State of New York, 333 U. S. 507, 510, 518, 520; and United States v. Limehouse, 285 U. S. 424. 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, “* * * 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: [*43] “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; Note, 22 U. of Chi. L. Rev. 216, has resulted in a general judicial unanimity in supporting such prosecutions. There is a considerable 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.3 It will not do to distinguish these [fol. 54] cases as dieta 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 the banning of notable books, without feeling 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 im– [*44] pulse 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;4 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.5 We conclude, therefore, that the attack on constitutionality of this statute must here fail. [*45][fol. 55] 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 arose 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, 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, [fol. 56] 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. [*46]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 jury6 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 [fol. 57] 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; 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; 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; 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 [*47] 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 [fol. 58] in Roth v. Goldman, 2 Cir., 172 F. 2d 788, certiorai denied 337 U. S. 938. 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, 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., Aug. 22, 1956. 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, 333 U. S. 680, the Congress was so anxious that there be no loophole that it enacted an amendment making unmailable now “[e]very obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.”7 It would seem clear, there– [*48] fore, 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 he have been harmed. Judgment affirmed. [fol. 59] FRANK, Circuit Judge, concurring: The reference in Judge Clark’s opinion to juvenile delinquency, might lead the casual reader to suppose that, under the statute, the test of what constitutes obscenity is its effect on minors, and that the defendant, Roth, has been convicted for mailing obscene writings to (or for sale to) children. This court, however, in U. S. v. Levine, 83 F. 2d 156 (C. A. 2), has held that the correct test is the effect on the sexeual thoughts and desires, not of the “young” or “immature,” but of average, normal, adult persons. The trial judge here so instructed the jury.* On the basis of that test, the jury could reasonably have found, beyond a reasonable doubt, that many of the books, periodicals, pamphlets and pictures which defendant mailed were obscene. Accordingly, I concur.** [*49][fol. 60] I do so although I have much difficulty in reconciling the validity of that statute with opinions of the Supreme Court, uttered within the past twenty–five years,* relative to the First Amendment as applied to other kinds of legislation. The doctrine expressed in those opinions, as [*50] I understand it, may be summarized briefly as follows: Any statute authorizing governmental interference (whether by “prior restraint” or punishment) with free speech or free press runs counter to the First Amendment, except when the government can show that the statute strikes at words which are likely to incite to a breach of the peace,** or with sufficient probability tend either to the over–throw of the government by illegal means or to some other overt anti–social conduct.† [fol. 61] The troublesome aspect of the federal obscenity statute—as I shall try to explain in the Appendix to this opinion—is that (a) no one can now show that, with any reasonable probability obscene publications tend to have any effects on the behavior of normal, average adults, and (b) that under that statute, as judicially interpreted, punishment is apparently inflicted for provoking, in such adults, undesirable sexual thoughts, feelings, or desires—not overt dangerous or anti–social conduct, either actual or probable. Often the discussion of First Amendment exceptions has been couched in terms of a “clear and present danger.” However, the meaning of that phrase has been somewhat watered down by Dennis v. U. S., 341 U. S. 494. The test now involves probability: “In each case (courts) must ask,” said Chief Justice Vinson in Dennis, “whether the gravity of the ‘evil’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” It has been suggested that the test now is this: “The more serious and threatened the evil, the lower the required degree of probability.”* It would seem to follow that the less clear the danger, the more imminent must it be. At any [*51] rate, it would seem that (1) the danger or evil must be clear (i.e., identifiable) and substantial, and (2) that, since the statute renders words punishable, it is invalid unless those words tend, with a fairly high degree of probability, to incite to overt conduct which is obviously harmful. For, under the First Amendment, lawless or anti–social “acts are the main thing. Speech is not punishable for its own sake, but only because of its connection with those * * * acts * * * But more than a remote connection is neces– [fol. 62] sary * * *”* See, e.g., Communications Ass’n v. Douds, 339 U. S. 382, 398, as to “the right of the public to be protected from evils of conduct, even though the First Amendment rights of persons or groups are thereby in some manner infringed.” (Emphasis added.) As I read the Supreme Court’s opinions, the government, in defending the constitutionality of a statute which curbs free expression, may not rely on the usual “presumption of validity.” No matter how one may articulate the reasoning, it is now accepted doctrine that, when legislation affects free speech or free press, the government must show that the legislation comes within one of the exceptions described above. See, e.g., Dennis v. U. S., 341 U. S. 494; Joseph Burstyn Inc. v. Wilson, 343 U. S. 495, 503. Moreover, when legislation affects free expression, the void–for–vagueness doctrine has a peculiar importance; and the obscenity statute is exquisitely vague. (See the Appendix, point 9.) True, the Supreme Court has said several times that the federal obscenity statute (or any such state statute) is constitutional. But the Court has not directly so decided; it has done so sub silentio in applying the federal statute, or has referred to the constitutionality of such legislation in dicta. The Court has not thoroughly canvassed the problem in any opinion, nor applied to it the doctrine (summarized above) concerning the First Amendment which the Court has evolved in recent years. I base that statement on the following analysis of the cases:
I agree with my colleagues that, since ours is an inferior court, we should not hold invalid a statute which our superior has thus often said is constitutional (albeit without any full discussion). Yet I think it not improper to set forth, as I do in the Appendix, considerations concerning the obscenity statute’s validity which, up to now, I think the Supreme Court has not discussed in any of its opinions. I do not suggest the inevitability of the conclusion that that statute is unconstitutional. I do suggest that it is hard to avoid that conclusion, if one applies to that legislation the reasoning the Supreme Court has applied to other sorts of legislation. Perhaps I have overlooked conceivable compelling contrary arguments. If so, maybe my Appendix will evoke them. To preclude misunderstanding of my purpose in stirring doubts about this statute, I think it well to add the following: (a) As many of the publications mailed by defendant offend my personal taste, I would not cross a street to obtain them for nothing; I happen not to be interested in [fol. 65] so–called “pornography”; and I think defendant’s motives obnoxious. But if the statute were invalid, the merit of those publications would be irrelevant. Winters v. New York, 333 U. S. 507, 510. So, too, as to defendant’s motives: “Although the defendant may be the worst of men * * * the rights of the best of men are secure only as the right of the vilest and most abhorrent are protected.”* [*54](b) It is most doubtful (as explained in the Appendix) whether anyone can now demonstrate that children’s reading or looking at obscene matter has a probable causal relation to the children’s anti–social conduct.** If, however, such a probable causal relation could be shown, there could be little doubt, I think, of the validity of a statute (if so worded as to avoid undue ambiguity) which specifically prohibits the distribution by mail of obscene publications for sale to young people. But discussion of such legislation is here irrelevant, since, to repeat, the existing federal statute is not thus restricted. (c) Congress undoubtedly has wide power to protect public morals. But the First Amendment severely limits that power in the area of free speech and free press. (d) It is argued that anti–obscenity legislation is valid because, at the time of the adoption of the First Amendment, obscenity as a common law crime. Relying (inter alia) on Bridges v. California, 341 U. S. 252, 264–265 and [fol. 66] Grosjean v. American Press, 297 U. S. 233, 248–249, I have tried in the Appendix to answer that argument. (e) The First Amendment, of course, does not prevent any private body or group (including any Church) from instructing, or seeking to persuade, its adherents or others not to read or distribute obscene (or other) publications. That constitutional provision—safeguarding a principle indispensable in a true democracy—leaves unhampered all non–governmental means of molding public opinion about not reading literature which some think undesirable; and, in that respect, experience teaches that democratically exercised censorship by public opinion has far more potency, and is far less easily evaded, than censorship by govern– [*55] ment.* The incessant struggle to influence public opinion is of the very essence of the democratic process. A basic purpose of the First Amendment is to keep that struggle alive, by not permitting the dominant public opinion of the present to become embodied in legislation which will prevent the formation of a different dominant public opinion in the future.** (f) At first glance it may seem almost frivolous to raise any question about the constitutionality of the obscenity statute at a time when many seemingly graver First Amendment problems confront the courts. But (for reasons stated in more detail in the Appendix) governmental [fol. 67] censorship of writings, merely because they may stimulate, in the reader, sexual thoughts the legislature deems undesirable, has more serious implications than appear at first glance: We have been warned by eminent thinkers, of the easy path from any apparently mild governmental control of what adult citizens may read to governmental control of adult’s political and religious reading. John Milton, Thomas Jefferson, James Madison, J. S. Mill and Tocqueville have pointed out that any paternalistic guardianship by government of the thoughts of grown–up citizens enervates their spirit, keeps them immature, all too ready to adopt towards government officers the attitude that, in general, “Papa knows best.” If the government possesses the power to censor publications which arouse [*56] sexual thoughts, regardless of whether those thoughts tend probably to transform themselves into anti–social behavior, why may not the government censor political and religious publications regardless of any causal relation to probable dangerous deeds? And even if we confine attention to official censorship of publications tending to stimulate sexual thoughts, it should be asked why, at any moment, that censorship cannot be extended to advertisements and true reports or photographs, in our daily press, which, fully as much, may stimulate such thoughts? (g) Assuming, arguendo, that a statute aims at an altogether desirable end, nevertheless its desirability does not render it constitutional. As the Supreme Court has said, “The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislatures of good purpose to promote it without thought of the serious break it will make in the ark of our covenant. * * *”* In a concurring opinion in Roth v. Goldman, 172 F. 2d 788, 790 (1948), I voiced puzzlement about the constitution–[fol. 68] ality of administrative prior restraint of obscene books. I then had little doubt about the validity of a purely punitive obscenity statute. But the next year, in Commonwealth v. Gordon, 6 Pa. C & D 101 (1949), Judge Curtis Bok, one of America’s most reflective judges, directly attacked the validity of any such punitive legislation. His brilliant opinion, which states arguments that (so far as I know) have never been answered, nudged me into the skeptical views contained in this opinion and the Appendix. [fol. 69] APPENDIX 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, [*57] 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 two1—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.2 That fact would surely have astonished Jefferson, who extolled Franklin as an American genius,3 called him “venerable and beloved” of his countrymen,4 and wrote approv– [fol. 70] ingly of Franklin’s Polly Baker.5 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”)5a and himself given to telling [*58] “Rabelaisian anecdotes.”6 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. * * *”7 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 [fol. 71] to allow Congress validly 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,8 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 sub– [*59] vert the First Amendment9 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.”10 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.”11 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 [fol. 72] 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 licen– [*60] tious may escape through any constitutional 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 * * *”12 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.”13 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 [fol. 73] foot is to be the measure to which ours are all to be cut or stretched?”14 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,15 Madison (who at one time had doubted the wisdom of a Bill of Rights)16 when he urged in Congress the enactment of what became the first ten Amendments, declared, “If they are incorporated into the Constitution, independent [*61] 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.”17 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 enfroced 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 [fol. 74] 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,”18 and on a kind word of magic.19 The demands at that time for [*62] “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’ cide 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 “wi |