1. Obscene phonograph records are within the prohibition of §
245 of the Criminal Code, which forbids the interstate shipment of
any obscene "book, pamphlet, picture, motion picture film, paper,
letter, writing, print, or other matter of indecent character." Pp.
338 U. S.
680-685.
2. The rule of
ejusdem generis may not be applied when
to do so would defeat the obvious purpose of the legislation. Pp.
338 U. S.
682-683.
175 F.2d 137 reversed.
Respondent was convicted in the District Court of violating §
245 of the Criminal Code. The Court of Appeals reversed. 175 F.2d
137. This Court granted certiorari. 338 U.S. 813. Reversed, p.
338 U. S.
685.
MR. JUSTICE MINTON delivered the opinion of the Court.
The question in this case is whether the shipment of obscene
phonograph records in interstate commerce is prohibited by § 245 of
the Criminal Code, which makes illegal the interstate shipment of
any "obscene . . . book, pamphlet, picture, motion picture film,
paper, letter, writing, print, or other matter of indecent
character."
Page 338 U. S. 681
Respondent was charged by an information in three counts with
knowingly depositing with an express company for carriage in
interstate commerce packages
"containing certain matter of an indecent character, to-wit:
phonograph records impressed with recordings of obscene, lewd,
lascivious, and filthy language and obscene, lewd, lascivious, and
filthy stories."
Respondent, having waived jury trial, was found guilty by the
District Court on two counts, and was assessed a fine on each. The
Court of Appeals reversed, 175 F.2d 137. We granted certiorari to
examine the applicability of § 245 of the Criminal Code to the
facts of this case. 338 U.S. 813.
The pertinent provisions of the statute are as follows:
"Whoever shall . . . knowingly deposit or cause to be deposited
with any express company or other common carrier [for carriage in
interstate commerce] any obscene, lewd, or lascivious, or any
filthy book, pamphlet, picture, motion picture film, paper, letter,
writing, print, or other matter of indecent character . . . shall
be fined not more than $5,000 or imprisoned not more than five
years, or both."
41 Stat. 1060, 18 U.S.C. § 396, now 18 U.S.C. § 1462.
It is conceded that the phonograph records were obscene and
indecent. The only question is whether they come within the
prohibition of the statute.
We are aware that this is a criminal statute and must be
strictly construed. This means that no offense may be created
except by the words of Congress used in their usual and ordinary
sense. There are no constructive offenses.
United States v.
Resnick, 299 U. S. 207,
299 U. S. 210.
The most important thing to be determined is the intent of
Congress. The language of the statute may not be distorted under
the guise of construction, or so limited by construction as to
defeat the manifest intent
Page 338 U. S. 682
of Congress.
United States v. Raynor, 302 U.
S. 540,
302 U. S. 552.
[
Footnote 1]
In interpreting the statute as applied to this case, the Court
of Appeals invoked the rule of
ejusdem generis. Since the
words "book, pamphlet, picture, motion picture film, paper, letter,
writing, print" appearing in the statute refer to objects
comprehensible by sight only, the court construed the general words
"other matter of indecent character" to be limited to matter of the
same genus. The Court of Appeals held phonograph records without
the statute, so interpreted, since phonograph records are
comprehended by the sense of hearing.
When properly applied, the rule of
ejusdem generis is a
useful canon of construction. But it is to be resorted to not to
obscure and defeat the intent and purpose of Congress, but to
elucidate its words and effectuate its intent. It cannot be
employed to render general words meaningless.
Mason v. United
States, 260 U. S. 545,
260 U. S. 554.
What is or is not a proper case for application of the rule was
discussed in
Gooch v. United States, 297 U.
S. 124. In that case, a bandit and a companion had
kidnaped two police officers for the purpose of avoiding arrest,
and had transported them across a state line. The defendant was
convicted of kidnaping under a federal statute which made it an
offense to transport across state lines any person who had been
kidnaped "and held for ransom or reward or otherwise." The police
officers had been held not for ransom or reward, but for
protection, and it was contended that the words "or otherwise" did
not cover the defendant's conduct, since, under the rule of
ejusdem generis, the general phrase was limited in meaning
to some kind of monetary reward. This Court rejected such limiting
application of the rule, saying:
Page 338 U. S. 683
"The rule of
ejusdem generis, while firmly established,
is only an instrumentality for ascertaining the correct meaning of
words when there is uncertainty. Ordinarily, it limits general
terms which follow specific ones to matters similar to those
specified; but it may not be used to defeat the obvious purpose of
legislation. And, while penal statutes are narrowly construed, this
does not require rejection of that sense of the words which best
harmonizes with the context and the end in view."
297 U.S. at
297 U. S.
128.
We think that to apply the rule of
ejusdem generis to
the present case would be "to defeat the obvious purpose of
legislation." The obvious purpose of the legislation under
consideration was to prevent the channels of interstate commerce
from being used to disseminate any matter that, in its essential
nature, communicates obscene, lewd, lascivious, or filthy ideas.
The statute is more fully set out in the margin. [
Footnote 2] It will be noted that Congress
legislated with respect to a number of evils in addition to
Page 338 U. S. 684
those proscribed by the portion of the statute under which
respondent was charged. Statutes are construed in their entire
context. This is a comprehensive statute, which should not be
constricted by a mechanical rule of construction.
We find nothing in the statute or its history to indicate that
Congress intended to limit the applicable portion of the statute to
such indecent matter as is comprehended through the sense of sight.
True, this statute was amended in 1920 to include "motion picture
film." We are not persuaded that Congress, by adding motion picture
film to the specific provisions of the statute, evidenced an intent
that obscene matter not specifically added was without the
prohibition of the statute; nor do we think that Congress intended
that only visual obscene matter was within the prohibition of the
statute. The First World War gave considerable impetus to the
making and distribution of motion picture films. And, in 1920, the
public was considerably alarmed at the indecency of many of the
films. [
Footnote 3] It thus
appears that, with respect to this amendment, Congress was
preoccupied with making doubly sure that motion picture film was
within the Act, and was concerned with nothing more or less.
[
Footnote 4]
Upon this record, we could not hold, nor do we wish to be
understood to hold, that the applicable portion of the statute is
all-inclusive. As we have pointed out, the same statute contains
other provisions relating to objects intended for an indecent or
immoral use. But the portion of the statute here in issue does
proscribe the dissemination of matter which, in its essential
nature, communicates
Page 338 U. S. 685
obscene ideas. We are clear, therefore, that obscene phonograph
records are within the meaning of the Act. The judgment of the
Court of Appeals is reversed, and the judgment of the District
Court is affirmed.
Reversed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
See Horack, The Disintegration of Statutory
Construction, 24 Ind.L.J. 335, 343-344 (1949).
[
Footnote 2]
"Whoever shall bring or cause to be brought into the United
States, or any place subject to the jurisdiction thereof, from any
foreign country, or shall therein knowingly deposit or cause to be
deposited with any express company or other common carrier [for
carriage in interstate or foreign commerce] any obscene, lewd, or
lascivious, or any filthy book, pamphlet, picture, motion-picture
film, paper, letter, writing, print, or other matter of indecent
character, or any drug, medicine, article, or thing designed,
adapted, or intended for preventing conception, or producing
abortion, or for any indecent or immoral use; or any written or
printed card, letter, circular, book, pamphlet, advertisement, or
notice of any kind giving information, directly or indirectly,
where, how, or of whom, or by what means any of the hereinbefore
mentioned articles, matters, or things may be obtained or made; or
whoever shall knowingly take or cause to be taken from such express
company or other common carrier any matter or thing the depositing
of which for carriage is herein made unlawful, shall be fined not
more than $5,000, or imprisoned not more than five years, or
both."
18 U.S.C. § 396, now 18 U.S.C. § 1462.
[
Footnote 3]
See The Motion Picture Industry, 254 Annals of the
American Academy of Political and Social Science, pp. 7-9, 140,
155, 157 (1947).
[
Footnote 4]
H.R.Rep. No.580, 66th Cong., 2d Sess. (1920); S.Rep. No.528,
66th Cong., 2d Sess. (1920); 59 Cong.Rec. 2178-2179, 7162, 7297,
8280, 8334 (1920).
MR. JUSTICE BLACK, with whom MR. JUSTICE FRANKFURTER and MR.
JUSTICE JACKSON concur, dissenting.
I am unable to agree that the conduct of this respondent was
made an offense by the language of the statutory provision on which
his conviction rests. That provision forbids deposit with an
express company, for interstate carriage, of
"any obscene, lewd, or lascivious, or any filthy book, pamphlet,
picture, motion picture film, paper, letter, writing, print, or
other matter of indecent character. . . ."
18 U.S.C. § 396 (1946 Ed.), now § 1462 (1948 Rev). The crime
with which respondent was charged involved phonograph records,
which do not come under any specific category listed in the
statute. Consequently the information against respondent could only
charge violation of the provision's general language barring
shipment of "other matter of indecent character." The Court
sustains the conviction here by reasoning the a phonograph record
is "matter" within the meaning of this congressional
prohibition.
Our system of justice is based on the principle that criminal
statutes shall be couched in language sufficiently clear to apprise
people of the precise conduct that is prohibited. Judicial
interpretation deviates from this salutary principle when statutory
language is expanded to include conduct that Congress might have
barred, but
Page 338 U. S. 686
did not, by the language it used. [
Footnote 2/1]
Compare United States v. Weitzel,
246 U. S. 533,
246 U. S. 543,
with United States v. Sullivan, 332 U.
S. 689,
332 U. S.
693-694.
The reluctance of courts to expand the coverage of criminal
statutes is particularly important where, as here, the statute
results in censorship. According to dictionary definitions,
"matter" undeniably includes phonograph records and the substances
of which they are made. Indeed, dictionaries tell us that "matter"
encompasses all tangibles and many intangibles, including material
treated or to be treated in a book, speech, legal action, or the
like; matter for discussion, argument, exposition, etc., and
material treated in the medieval metrical romances. The many
meanings of "matter" are warning signals against giving the word
the broad construction adopted by the Court.
History is not lacking in proof that statutes like this may
readily be converted into instruments for dangerous abridgments of
freedom of expression. People of varied temperaments and beliefs
have always differed among themselves concerning what is
"indecent." Sculpture, paintings, and literature ranked among the
classics by some deeply offend the religious and moral
sensibilities of others. [
Footnote
2/2] And those which offend, however priceless or
Page 338 U. S. 687
irreplaceable, have often been destroyed by honest zealots
convinced that such destruction was necessary to preserve morality
as they saw it.
Of course, there is a tremendous difference between cultural
treasures and the phonograph records here involved. But our
decision cannot be based on that difference. Involved in this case
is the vital question of whether courts should give the most
expansive construction to general terms in legislation providing
for censorship of publications or pictures found to be "indecent,"
"obscene," etc. Censorship in any field may so readily encroach on
constitutionally protected liberties that courts should not add to
the list of items banned by Congress. [
Footnote 2/3]
In the provision relied on, as well as elsewhere in the Act,
Congress used language carefully describing a number of "indecent"
articles, and forbade their shipment in interstate commerce. This
specific list applied censorship only to articles that people could
read or see; the Court now adds to it articles capable of use to
produce sounds that people can hear. [
Footnote 2/4] The judicial addition
Page 338 U. S. 668
here may itself be small. But it is accomplished by a technique
of broad interpretation which too often may be successfully invoked
by the many people who want the law to proscribe what other people
may say, write, hear, see, or read. I cannot agree to any departure
from the sound practice of narrowly construing statutes which by
censorship restrict liberty of communication.
Since Congress did not specifically ban the shipment of
phonograph records, [
Footnote 2/5]
this Court should not do so.
[
Footnote 2/1]
The Government points to the legislative history of this and
related statutes as proof that Congress intended its language to be
most broadly construed. Particularly it relies on the argument that
Anthony Comstock, a supporter and promoter of the first federal
statutes in this field, had a reputation for "thoroughness in his
pursuit of immorality." This may be conceded, but we cannot
construe this statute on the theory that Mr. Comstock's zeal as a
reformer of morals must be considered as determinative legislative
history. That zeal was undoubtedly great, so great that, if
accepted as a criterion of construction, the Court could expand the
punishment along with the coverage of the Act.
[
Footnote 2/2]
See Hannegan v. Esquire, Inc., 327 U.
S. 146,
327 U. S.
157-158;
Bleistein v. Donaldson Lithographing
Co., 188 U. S. 239,
188 U. S.
251-252.
[
Footnote 2/3]
See discussion in 1 Chafee, Government and Mass
Communications 200-366.
[
Footnote 2/4]
In a second provision of the Act, Congress barred shipment
of
"any drug, medicine, article, or thing designed, adapted, or
intended for preventing conception, or producing abortion, or for
any indecent or immoral use. . . ."
A New York statute, Penal Law, Consol.Laws c. 40, § 1141,
contains two provisions closely resembling these two provisions in
the federal statute. The New York Court of Appeals refused to
sustain a conviction for selling phonograph records based on an
information charging violation of the first provision of the state
act, which was substantially equivalent to the federal provision
here involved, except that the word "matter" was modified by the
phrase "written or printed." The state court did not find it
necessary to determine whether a prosecution could have been based
on the second provision, which covers "any article or instrument of
indecent or immoral use."
New York v. Strassner, 299 N.Y.
325, 87 N.E.2d 280.
[
Footnote 2/5]
Since the decision below, a bill has been introduced in the
House of Representatives at the request of the Department of
Justice to amend the statute so as to prohibit the transportation
of obscene phonograph records in interstate commerce. H.R. 6622,
81st Cong., 2d Sess. In requesting this amendment, the Assistant to
the Attorney General stated that whether or not the present statute
applied to phonograph records was "questionable," particularly in
the light of the decision below. Recalling the 1920 amendment to
bring motion picture film within the coverage of the statute, he
urged that,
"Apparently, the time has now arrived for a further amendment to
bring obscene phonograph records clearly within the scope of the
present section."
This proposed bill is still pending in the House Committee on
the Judiciary.