1. In § 211 of the Criminal Code, which declares unmailable
"every obscene, lewd, or lascivious, and every filthy" book,
letter, etc., "or other publication of an indecent character," and
punishes the mailing of such things, the words "and every filthy"
add a new class to the matter included when this Court construed
the prohibition (R.S. 3893) as confined to matter "calculated to
corrupt and debauch the minds and morals of those into whose hands
it might fall" and to induce sex immorality.
Swearingen v.
United States, 161 U. S. 446. P.
285 U. S.
426.
2. The section is
held applicable to letters that
contained much foul language and that charged the addressees, or
persons associated with them, with sex immorality.
Id.
58 F.2d 395 reversed.
Appeal under the amended Criminal Appeals Act from an order
quashing,an indictment on demurrer.
Page 285 U. S. 425
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Section 211 of the Criminal Code (18 U.S.C.A § 334) declares
unmailable "every obscene, lewd, or lascivious, and every filthy
book, pamphlet, picture, paper, letter, writing, print, or other
publication of an indecent character," and provides that "whoever
shall knowingly deposit, or cause to be deposited, for mailing or
delivery" any such unmailable matter "shall be fined not more than
$5,000, or imprisoned not more than five years, or both."
Under this statute, Limehouse was indicted in the federal court
for Eastern South Carolina. The indictment contained thirty counts,
each charging the unlawful deposit of "a certain filthy letter and
writing in a certain post office." Each set forth
verbatim
a separate letter. The letters contained much foul language;
charged the addressees or persons associated with them with sexual
immorality, and in some cases charged miscegenation and similar
practices. They were coarse, vulgar, disgusting, indecent, and
unquestionably filthy within the popular meaning of that term. On
the ground that no letter was obscene, lewd, or lascivious within
the meaning given to those terms in
Swearingen v. United
States, 161 U. S. 446, the
District Court sustained a demurrer and quashed the indictment. The
case is here by direct appeal under the Criminal Appeals Act, as
amended. [
Footnote 1] We are of
opinion that the judgment should be reversed.
Page 285 U. S. 426
In
Swearingen v. United States, decided in 1896, the
indictment was under Revised Statutes, § 3893, which made
unmailable only "obscene, lewd, or lascivious" matter. This Court,
being of opinion that those words should be given the meaning
attributed to them at common law in prosecutions for criminal
libel, directed that the judgment of conviction be reversed because
the language used was not "calculated to corrupt and debauch the
minds and morals of those into whose hands it might fall" and
induce sexual immorality. 161 U.S. at
161 U. S. 451. The
indictment here under review contains no reference to "obscene,
lewd, or lascivious." The charge is of depositing "a certain filthy
letter." It is brought under the amendment to § 3893 of the Revised
Statutes made by § 211 of the Criminal Code, Act of March 4, 1909,
c. 321, 35 Stat. 1088, 1129, which inserted the words, "and every
filthy." Now the clause reads "every obscene, lewd, or lascivious,
and every filthy, book, . . . letter."
The lower court failed to recognize that the amendment
introduced not merely a word, but a phrase. Disregarding the
collocation of the words, it treated the amended clause as if it
had read "obscene, lewd, lascivious, or filthy," and then, applying
the doctrine of
noscitur a sociis, gave to "filthy" the
meaning attributed in the
Swearingen case to the words
"obscene, lewd, or lascivious." Thus, the court emptied the
amendment of all meaning. We think that it is a more natural
reading of the clause to hold that, by the amendment, Congress
added a new class of unmailable matter -- the filthy. [
Footnote 2] The letters
Page 285 U. S. 427
here in question plainly relate to sexual matters. We have no
occasion to consider whether filthy letters of a different
character fall within the prohibition of the Act.
Reversed.
MR. JUSTICE McREYNOLDS thinks the judgment should be
affirmed.
MR. JUSTICE CARDOZO took no part in the consideration or
decision of this case.
[
Footnote 1]
See Acts of March 2, 1907, c. 2564, 34 Stat. 1246;
February 13, 1925, c. 229, 43 Stat. 936, 938; January 31, 1928, c.
14, 45 Stat. 54, and April 26, 1928, c. 440, 45 Stat. 466.
[
Footnote 2]
For the legislative history of the amendment,
see
Senate Doc. No. 68, pt. 2, p. XVI, Cong. Docs. 4227, 4228, 57 Cong.
1st Sess., Senate Docs. vols. 9, 10; House Report No. 2, pt. 1, p.
2, 60th Cong., 1st Sess., Cong. Doc. 5225; Final Report, 1906, U.S.
Commission to Revise the Laws, vol. 1, p. 107 under § 8845, vol. 2
(proposed bill), p. 1813; Senate Report No. 10, pt. 1, p. 22, pt.
2, p. 230, "Sec. 212," 60th Cong., 1st Sess., Cong. Doc. 5220;
House Report No. 2, pt. 1, p. 22, 60th Cong., 1st Sess., Cong. Doc.
5225; 42 Cong.Rec. pt. 1, pp. 539-542, 564, 995-999;
id.,
pt. 3, pp. 2391-2392; vol. 43, pt. 1, pp. 283-284, 2649;
id., part 4, pp. 3217, 3218.