Appellee, who had advertised in the newspaper the sale to
persons over 21 years of age of a booklet entitled The True Facts
About Imported Pornography, was indicted for mailing copies of the
booklet in violation of 18 U.S.C. § 1461, which prohibits the
knowing use of the mails for the delivery of obscene matter.
Appellee moved to dismiss the indictment, contending that the
statute was unconstitutional. Assuming, arguendo,
booklets were obscene, the trial judge granted the motion to
dismiss on the ground that appellee made a constitutionally
protected delivery and that § 1461 was unconstitutional as applied
Section 1461 is not unconstitutional as applied
to the distribution of obscene materials to willing recipients who
state that they are adults. Roth v. United States,
354 U. S. 476
decision in Stanley v. Georgia, 394 U.
, holding that a State's power to regulate
obscenity does not extend to mere possession by an individual in
the privacy of his own home, did not disturb Roth, supra.
Pp. 402 U. S.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and HARLAN, BRENNAN, STEWART, and BLACKMUN, JJ., joined.
HARLAN, J., filed a concurring opinion, post,
402 U. S. 357
MARSHALL, J., filed an opinion concurring in the judgment,
p. 402 U. S. 360
BLACK, J., filed a dissenting opinion, in which DOUGLAS, J.,
p. 402 U. S.
Page 402 U. S. 352
MR. JUSTICE WHITE delivered the opinion of the Court.
Section 1461 of Title 18, U.S.C. prohibits the knowing use of
the mails for the delivery of obscene matter. [Footnote 1
] The issue presented by the
jurisdictional statement in this case is whether § 1461 is
constitutional as applied to the distribution of obscene materials
to willing recipients who state that they are adults. The District
Court held that it was not. [Footnote 2
] We disagree and reverse the judgment.
Page 402 U. S. 353
On April 15, 1970, the appellee, Norman Reidel, was indicted on
three counts, each count charging him with having mailed a single
copy of an illustrated booklet entitled The True Facts About
Imported Pornography. One of the copies had been mailed to a postal
inspector stipulated to be over the age of 21, who had responded to
a newspaper advertisement. [Footnote 3
] The other two copies had been seized during a
search of appellee's business premises; both of them had been
deposited in the mail by Reidel, but had been returned to him in
their original mailing envelopes bearing the mark "undelivered." As
to these two booklets, the Government conceded that it had no
evidence as to the identity or age of the addressees or as to their
willingness to receive the booklets. Nor does the record indicate
why the booklets were returned undelivered.
Reidel moved in the District Court before trial to dismiss the
indictment, contending, among other things, that § 1461 was
unconstitutional. Assuming for the purpose of the motion that the
booklets were obscene, the trial judge granted the motion to
dismiss on the ground that Reidel had made a constitutionally
protected delivery, and hence that § 1461 was unconstitutional as
applied to him. The Government's direct appeal is here under 18
U.S.C. § 3731.
In Roth v. United States, 354 U.
(1957), Roth was convicted under § 1461 for
mailing obscene circulars
Page 402 U. S. 354
and advertising. [Footnote
] The Court affirmed the conviction, holding that "obscenity
is not within the area of constitutionally protected speech or
tit. 485, and that § 1461,
"applied according to the proper standard for judging obscenity,
do[es] not offend constitutional safeguards against convictions
based upon protected material, or fail to give men in acting
adequate notice of what is prohibited."
at 354 U. S. 492
Roth has not been overruled. It remains the law in this Court and
governs this case. Reidel, like Roth, was charged with using the
mails for the distribution of obscene material. His conviction, if
it occurs and the materials are found in fact, to be obscene, would
be no more vulnerable than was Roth's.
Stanley v. Georgia, 394 U. S. 557
(1969), compels no different result. There, pornographic films were
found in Stanley's home and he was convicted under Georgia statutes
for possessing obscene material. This Court reversed the
conviction, holding that the mere private possession of obscene
matter cannot constitutionally be made a crime. But it neither
overruled nor disturbed the holding in Roth.
the Court's view, the constitutionality of proscribing private
possession of obscenity was a matter of first impression in this
Court, a question neither involved nor decided in Roth.
The Court made its point expressly:
and the cases following that decision are not
impaired by today's holding. As we have said, the States retain
broad power to regulate obscenity; that power simply does not
extend to mere possession by the individual in the privacy of his
at 394 U. S. 568
Nothing in Stanley
questioned the validity of
insofar as the distribution of obscene material was
concerned. Clearly the Court had
Page 402 U. S. 355
no thought of questioning the validity of § 1461 as applied to
those who, like Reidel, are routinely disseminating obscenity
through the mails and who have no claim, and could make none, about
unwanted governmental intrusions into the privacy of their home.
The Court considered this sufficiently clear to warrant summary
affirmance of the judgment of the United States District Court for
the Northern District of Georgia rejecting claims that under
Stanley v. Georgia,
Georgia's obscenity statute could not
be applied to book sellers. Gable v. Jenkins, 397 U.
The District Court ignored both Roth
and the express
limitations on the reach of the Stanley
on the statement in Stanley
that "the Constitution
protects the right to receive information and ideas . . .
regardless of their social worth," 394 U.S. at 394 U. S. 564
the trial judge reasoned that "if a person has the right to receive
and possess this material, then someone must have the right to
deliver it to him." He concluded that § 1461 could not be validly
"where obscene material is not directed at children, or it is
not directed at an unwilling public, where the material such as in
this case is solicited by adults. . . ."
The District Court gave Stanley
too wide a sweep. To
extrapolate from Stanley's right to have and peruse obscene
material in the privacy of his own home a First Amendment right in
Reidel to sell it to him would effectively scuttle Roth,
the precise result that the Stanley
Whatever the scope of the "right to receive" referred to in
Stanley, it is not so broad as to immunize the dealings in
obscenity in which Reidel engaged here -- dealings that
held unprotected by the First Amendment.
The right Stanley asserted was "the right to read or observe
what he pleases -- the right to satisfy his intellectual and
emotional needs in the privacy of his own home."
Page 402 U. S. 356
394 U.S. at 394 U. S. 565
The Court's response was that
"a State has no business telling a man, sitting alone in his own
house, what books he may read or what films he may watch. Our whole
constitutional heritage rebels at the thought of giving government
the power to control men's minds."
The focus of this language was on freedom of mind
and thought and on the privacy of one's home. It does not require
that we fashion or recognize a constitutional right in people like
Reidel to distribute or sell obscene materials. The personal
constitutional rights of those like Stanley to possess and read
obscenity in their homes and their freedom of mind and thought do
not depend on whether the materials are obscene or whether
obscenity is constitutionally protected. Their rights to have and
view that material in private are independently saved by the
Reidel is in a wholly different position. He has no complaints
about governmental violations of his private thoughts or fantasies,
but stands squarely on a claimed First Amendment right to do
business in obscenity and use the mails in the process. But
has squarely placed obscenity and its distribution
outside the reach of the First Amendment, and they remain there
did not overrule Roth,
decline to do so now.
A postscript is appropriate. Roth
and like cases have
interpreted the First Amendment not to insulate obscenity from
statutory regulation. But the Amendment itself neither proscribes
dealings in obscenity nor directs or suggests legislative oversight
in this area. The relevant constitutional issues have arisen in the
courts only because lawmakers having the exclusive legislative
power have consistently insisted on making the distribution
Page 402 U. S. 357
of obscenity a crime or otherwise regulating such materials, and
because the laws they pass are challenged as unconstitutional
invasions of free speech and press.
It is urged that there is developing sentiment that adults
should have complete freedom to produce, deal in, possess, and
consume whatever communicative materials may appeal to them, and
that the law's involvement with obscenity should be limited to
those situations where children are involved or where it is
necessary to prevent imposition on unwilling recipients of whatever
age. The concepts involved are said to be so elusive, and the laws
so inherently unenforceable without extravagant expenditures of
time and effort by enforcement officers and the courts, that basic
reassessment is not only wise, but essential. This may prove to be
the desirable and eventual legislative course. But if it is, the
task of restructuring the obscenity laws lies with those who pass,
repeal, and amend statutes and ordinances. Roth
cases pose no obstacle to such developments.
The judgment of the District Court is reversed.
[For dissenting opinion of MR. JUSTICE BLACK, see post,
p. 402 U. S.
The statute in pertinent part provides:
"Every obscene, lewd, lascivious, indecent, filthy or vile
article, matter, thing, device, or substance; and --"
"* * * *"
"Every written or printed card, letter, circular, book,
pamphlet, advertisement, or notice of any kind giving information,
directly or indirectly, where, or how, or from whom, or by what
means any of such mentioned matters, articles, or things may be
obtained or made, or where or by whom any act or operation of any
kind for the procuring or producing of abortion will be done or
performed, or how or by what means conception may be prevented or
abortion produced, whether sealed or unsealed. . . ."
"* * * *"
"Is declared to be nonmailable matter and shall not be conveyed
in the mails or delivered from any post office or by any letter
"Whoever knowingly uses the mails for the mailing, carriage in
the mails, or delivery of anything declared by this section to be
nonmailable, or knowingly causes to be delivered by mail according
to the direction thereon, or at the place at which it is directed
to be delivered by the person to whom it is addressed, or knowingly
takes any such thing from the mails for the purpose of circulating
or disposing thereof, or of aiding in the circulation or
disposition thereof, shall be fined not more than $5,000 or
imprisoned not more than five years, or both, for the first such
offense, and shall be fined not more than $10,000 or imprisoned not
more than ten years, or both, for each such offense
The trial judge did not issue a written opinion, but ruled
orally from the bench.
The advertisement was as follows:
"IMPORTED PORNOGRAPHY -- learn the true facts before sending
money abroad. Send $1.00 for our fully illustrated booklet. You
must be 21 years of age and so state. Normax Press, P. O. Box 989,
Fontana, California, 92335."
Roth v. United States
was heard and decided with
Alberts v. California,
in which the Court upheld the
obscenity provisions of the California Penal Code.
MR. JUSTICE HARLAN, concurring.
I join the opinion of the Court which, as I understand it, holds
that the Federal Government may prohibit the use of the mails for
commercial distribution of materials properly classifiable as
The Court today
correctly rejects the contention that the recognition in
Page 402 U. S. 358
v. Georgia, 394 U. S. 557
(1969), that private possession of obscene materials is
constitutionally privileged under the First Amendment carries with
it a "right to receive" such materials through any modes of
distribution as long as adequate precautions are taken to prevent
the dissemination to unconsenting adults and children. Appellee
here contends, in effect, that the Stanley
receive" language, 394 U.S. at 394 U. S.
-565, constituted recognition that obscenity was
constitutionally protected for its content. Governmental efforts to
proscribe obscenity as such would, on this interpretation, not be
constitutional; rather, the power of both the State and Federal
Governments would now be restricted to the regulation of the
constitutionally protected right to engage in this category of
"speech" in light of otherwise permissible state interests, such as
the protection of privacy or the protection of children.
That interpretation of Stanley,
however, is flatly
inconsistent with the square holding of Roth v. United
States, 354 U. S. 476
354 U. S. 485
"We hold that obscenity is not within the area of
constitutionally protected speech or press."
Either Roth means that government may proscribe obscenity as
such rather than merely regulate it with reference to other state
interests, or Roth
means nothing at all. And
far from overruling Roth,
did not even
purport to limit that case to its facts:
"We hold that the First and Fourteenth Amendments prohibit
making mere private possession of obscene material a crime.
and the cases following that decision are not
impaired by today's holding. . . ."
394 U.S. at 394 U. S.
In view of Stanley's
explicit reaffirmance of
I do not read the former case as limiting
Page 402 U. S. 359
to deal with obscenity to modes of regulation geared to public
interests to be judicially assessed as legitimate or illegitimate
in light of the nature of obscenity as a special category of
constitutionally protected speech. Rather, I understand
to rest in relevant part on the proposition that
the power which Roth
recognized in both State and Federal
Governments to proscribe obscenity as constitutionally unprotected
cannot be exercised to the exclusion of other constitutionally
protected interests of the individual. That treatment of
is consistent with the Court's approach to the
problem of prior restraints in the obscenity area; if government
chooses a system of prior restraints as an aid to its goal of
proscribing obscenity, the system must be designed to minimize
impact on speech which is constitutionally protected. Blount v.
Rizzi, 400 U. S. 410
400 U. S. 416
(1971); Marcus v. Search Warrant, 367 U.
, 367 U. S. 731
(1961). See Freedman v. Maryland, 380 U. S.
The analogous constitutionally protected interest in the
situation which restricts governmental efforts to
proscribe obscenity is the First Amendment right of the individual
to be free from governmental programs of thought control, however
such programs might be justified in terms of permissible state
objectives. For me, at least, Stanley
rests on the
proposition that freedom from governmental manipulation of the
content of a man's mind necessitates a ban on punishment for the
mere possession of the memorabilia of a man's thoughts and dreams,
unless that punishment can be related to a state interest of a
stronger nature than the simple desire to proscribe obscenity as
such. In other words, the "right to receive" recognized in
is not a right to the existence of modes of
distribution of obscenity which the State could destroy without
serious risk of infringing on the privacy of a man's thoughts;
Page 402 U. S. 360
is a right to a protective zone ensuring the freedom of a man's
inner life, be it rich or sordid. Cf. West Virginia State Board
of Education v. Barnette, 319 U. S. 624
319 U. S. 642
* Of course, the obscenity vel non
of the materials is
not presented at this juncture of the case.
MR. JUSTICE MARSHALL, dissenting in No. 133, post,
402 U. S. 363
concurring in the judgment in No. 534.
Only two years ago, in Stanley v. Georgia, 394 U.
(1969), the Court fully canvassed. the range of
state interests that might possibly justify regulation of
obscenity. That decision refused to legitimize the argument that
obscene materials could be outlawed because the materials might
somehow encourage antisocial conduct, and unequivocally rejected
the outlandish notion that the State may police the thoughts of its
citizenry. The Court did, however, approve the validity of
regulatory action taken to protect children and unwilling adults
from exposure to materials deemed to be obscene. The need for such
protection, of course, arises when obscenity is distributed or
displayed publicly; and the Court reaffirmed the principles of
Roth v. United States, 354 U. S. 476
(1957), Redrup v. New York, 386 U.
(1967), and other decisions that involved the
commercial distribution of obscene materials. Thus,
turned on an assessment of which state interests
may legitimately underpin governmental action, and it is
disingenuous to contend that Stanley's
reversed because his home, rather than his person or luggage, was
the locus of a search.
I would employ a similar adjudicative approach in deciding the
cases presently before the Court. In No. 133 the material in
question was seized from claimant's luggage upon his return to the
United States from a European trip. Although claimant stipulated
that he intended to use some of the photographs to illustrate a
book which would be later distributed commercially,
Page 402 U. S. 361
the seized items were then in his purely private possession and
threatened neither children nor anyone else. In my view, the
Government has ample opportunity to protect its valid interests if
and when commercial distribution should take place. Since threats
to these interests arise in the context of public or commercial
distribution, the magnitude of the threats can best be assessed
when distribution actually occurs; and it is always possible that
claimant might include only some of the photographs in the final
commercial product or might later abandon his intention to use any
of them.* I find particularly troubling the plurality's suggestion
that there is no need to scrutinize the Government's behavior
because a "border search" is involved. While necessity may dictate
some diminution of traditional constitutional safeguards at our
Nation's borders, I should have thought that any such reduction
would heighten the need jealously to protect those liberties that
remain rather than justify the suspension of any and all
No. 534 presents a different situation in which allegedly
obscene materials were distributed through the mails. Plainly, any
such mail order distribution poses the danger that obscenity will
be sent to children, and although the appellee in No. 534 indicated
his intent to sell only to adults who requested his wares, the sole
safeguard designed to prevent the receipt of his merchandise by
minors was his requirement that buyers declare their age. While the
record does not reveal that any children actually received
appellee's materials, I believe that distributors of purportedly
obscene merchandise may be required to take more stringent steps to
Page 402 U. S. 362
against possible receipt by minors. This case comes to us
without the benefit of a full trial, and, on this sparse record, I
am not prepared to find that appellee's conduct was not within a
constitutionally valid construction of the federal statute.
Accordingly, I dissent in No. 133 and concur in the judgment in
* Moreover, the items seized in this case were only a component
of a product which might ultimately be distributed, and viewing
them in isolation is inconsistent with the principle that
determinations of obscenity should focus on an entire work,
see, e.g., Roth v. United States, 354 U.
, 354 U. S. 489