The opinion of the court was delivered by: MASTERSON
MASTERSON, District Judge.
Defendant is charged in a twelve count indictment with using the mails to send certain unsolicited "obscene, lewd, lascivious and filthy" commercial advertisements, in violation of 18 U.S.C. § 1461. Defendant has moved to dismiss the indictment on the ground that the materials referred to therein are not obscene, and that the application of the Postal Obscenity Law to the materials would be violative of the First Amendment to the United States Constitution. Counsel for the Government and the defendant have entered into a stipulation attaching two examples of the advertising brochures which are agreed to be representative of all the materials in this indictment. After carefully reviewing these materials, the authorities cited in defendant's briefs, and the prevailing law in the obscenity area, we have decided that the motion to dismiss must be granted.
I. THE MATERIALS INVOLVED
The first brochure, relating to Counts I-IV, is entitled, "NOW FINALLY SEX EDUCATION WITHOUT CENSORSHIP!" The first page does not include pictures (except of the books advertised). The bold type tells the reader that this is "The First Authoritative Series of Uncensored Sex Instruction & Sex Information Books Ever Published In America." The text goes on to note that due to recent Federal Court decisions, "we can at last offer to you, as an adult over the age of 21 years, these valuable educational books: Sex and Censorship do not mix! You can't make love with all your clothes on and neither can a book offer complete instruction and information by omitting or avoiding the proper photos or information! To do less would be to deny each individual the right to read, look, ponder, evaluate and reach his own conclusions on which path to follow to happiness. This is a right Americans have and are fighting and dying for! The right to read, learn and think is ours! Let those who wish to . . . exercise this right!" The books are then described as "A MAJOR BREAKTHROUGH IN SEX EDUCATION."
The remainder of this brochure contains descriptive text and small black and white photographs from books which are offered for sale. All these books purport to be educational in nature: Sex In Marriage, Decision in Denmark, Oral Sex & The Law, The Ways Homosexuals Make Love, Sex Pornography & The Law and Sex Freedom. Since the Government contends that the advertisements themselves are obscene, we assume this allegation stems from the illustrative photographs which show adults in various positions of sexual intercourse and other sexual activities. The accompanying text is totally descriptive of what the offered book contains and could not be said to be offensive in itself.
The second brochure, relating to the last six counts, advertises a magazine entitled Sexual Freedom. It is different from the first only in that its photographs are in color, and pictures of a baby being born and various diagrams of sexual organs are included.
Since the indictment charges that the advertisements, in addition to being obscene in themselves, give information as to where obscene materials may be obtained, we have asked to examine the underlying publications which are offered for sale. The Government has supplied us with Volume Two of Sex In Marriage, agreed to be representative of the books offered for sale in the first brochure, and Sexual Freedom, the magazine offered in the second. Sex in Marriage written by Wendell M. Koble, M.D., is a paperbound book. Its 179 pages are mostly textual, with black and white and color photographs of a man and a woman in various positions of sexual intercourse, numbered and carefully tied in with the text. The book is complete with anatomical diagrams, a glossary, a bibliography and an index.
Sexual Freedom is a book based on the motion picture "Sexual Freedom In Denmark." Accompanying its graphic photographs of sexual activity are biblical passages, a "Credo," a legal discussion of obscenity, a segment of ancient Japanese drawings, and discussions of sex education, overpopulation, birth control, venereal disease, frigidity and the future of sex, all with photographic illustrations.
It has also been stipulated that each advertising brochure was contained in a sealed inner mailing envelope which bore the following warning notice on each side:
"NOTICE -- READ BEFORE OPENING
This envelope contains unsolicited sexually oriented, illustrated literature and brochures. The enclosed brochures may photographically or pictorially illustrate pictures of nude women and/or nude men together or separately in erotic situations, sexual embrace or intercourse and may include pertinent text.
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