Essentially the motion to dismiss is built around three contentions: (1) that 18 U.S.C. § 1461 is unconstitutional; (2) that no pre-arrest hearing was held to determine the issue of obscenity vel non ; and (3) that the articles in question are not obscene as a matter of law.
Each count involves a separate mailing of particular articles to individuals in numerous locations around the country. Most of the counts involve the mailing of illustrated advertisements telling how, where and by what means certain publications and/or photographs might be obtained. A detailed examination of the material follows in the discussion of defendant's third ground for dismissal.
I. Constitutionality of 18 U.S.C. § 1461
Defendant alleges 18 U.S.C. § 1461 to be unconstitutionally violative of the First, Fourth, Fifth and Sixth Amendments. Relying on Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), defendant contends he has an implied right to use the mails for transmission of potentially obscene material. Stanley clearly recognized an individual's constitutional right to own, possess and read obscene material in the privacy of one's home. The Stanley decision, according to defendant, carries the clearly implied correlative right to acquire and transport such material.
Subsequent to receipt of defendant's motion to dismiss the Supreme Court upheld the constitutionality of 18 U.S.C. § 1461 in United States v. Reidel, 402 U.S. 351, 91 S. Ct. 1410, 28 L. Ed. 2d 813 (1971). Ironically, the defendant had relied on the lower court's ruling in United States v. Reidel, C.D. Cal., Criminal No. 8458-HP. There the district court concluded that absent an unsolicited mailing to minors, 18 U.S.C. § 1461 was invalid. The Supreme Court reversed, expressly upholding the constitutionality of the statute even as it relates to a solicited mailing to adults.
Prior to Reidel the Supreme Court had rejected an attack on the constitutionality of 18 U.S.C. § 1461. Roth v. United States, 354 U.S. 476, 493, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). In Roth the Court affirmed the statute's constitutionality, but without explanation. Reidel was an apparent attempt to clarify the constitutionality of § 1461 as it relates to consenting adults. For the purposes of the appeal, the Court in Reidel assumed, arguendo, that the material was obscene. Likewise, the Court accepted the premise that the recipients were adults who had solicited the material (402 U.S. at 353, 91 S. Ct. 1410).
Since Roth the Supreme Court has expressly found obscenity to be outside the scope of first amendment protection. The Court in Roth concluded that "obscenity is not within the area of constitutionally protected speech or press" (354 U.S. at 485, 77 S. Ct. at 1309), cited with approval in Reidel (402 U.S. at 354, 91 S. Ct. 1410). With obscenity unprotected by the first amendment, the Court's ruling in Reidel clearly goes to the essence of defendant's attack on the statute itself.
Similarly, defendant inappropriately relies on United States v. Thirty-Seven (37) Photographs, 309 F. Supp. 36 (C.D. Cal. 1970). The Supreme Court, on the same day as the Reidel ruling, expressly reversed the lower court, United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971). The applicability of Thirty-Seven (37) Photographs as cited by defendant has therefore been rendered moot. A further discussion of defendant's contention is unnecessary. This court, therefore, rejects defendant's attack on the constitutionality of 18 U.S.C. § 1461.
Defendant alleges two further grounds for dismissal of the indictment: (II) that no adversary hearing was held prior to arrest on the issue of obscenity vel non ; and (III) the material allegedly distributed in violation of § 1461 is not obscene as a matter of law. The matter of a pre-arrest obscenity hearing is a complex and unsettled one and a consideration of its merits should precede any determination of the obscenity of the material here in question.
II. Pre-Arrest Obscenity Hearing
The defendant sets before this court countless cases in support of its proposition that a pre-arrest hearing must be held on the issue of obscenity vel non. Although few of defendant's cases are tied to § 1461, defendant contends their logic compelling by analogy. Many of the cases can be readily distinguished because they involve forcible seizure of the material from the defendant's place of business. For example, defendant cited Delta Book Distributors, Inc. v. Cronvich, 304 F. Supp. 662 (E.D. La. 1969). There the books in question were seized under a state statute from defendant's newsstand and the stand itself was closed.
The facts here are readily distinguishable -- especially in that the defendant's allegedly obscene material was not seized but rather secured by the postal authorities after defendant had voluntarily parted with it. In United States v. Lethe, 312 F. Supp. 421, 423 (E.D. Cal. 1970), the court expressly faced the seizure question in 18 U.S.C. § 1461. In the same opinion, however, the court ruled § 1461 to be unconstitutional where it involved consenting adults. That ruling has obviously been rendered meaningless by Reidel. Nevertheless, this court finds the logic of the Lethe court persuasive as it regards pre-arrest hearings:
"Defendant's suggested procedure would require in effect two trials. The only purpose to be served would be to give defendant a preview of the government's case * * * Whenever there is a forcible seizure there is a danger of governmental suppression of all copies before a judicial determination of the constitutional status of the material seized * * * However, where a defendant has voluntarily parted with literature or films, as in the instant case, he cannot complain of suppression when he is later prosecuted." United States v. Lethe, 312 F. Supp. 421, 423 (1970). See also United States v. Levy, 331 F. Supp. 712, 713 (D. Conn. 1971).
Even more persuasive is Bazzell v. Gibbens, 306 F. Supp. 1057 (E.D. La. 1969). That case involved a seizure of a single copy of a film from a store under color of a state statute. The Bazzell court, the same court that handed down the Delta Book ruling, rejected the prearrest hearing argument. That court, sitting with a different judge, noted Delta Book, but concluded:
"But where, as here, a single copy of a film is seized for the sole purpose of preserving it as evidence to be used in a criminal action to be brought pursuant to a State statute already held, in all respects pertinent hereto, to be constitutional on its face . . . such a seizure cannot be said to be violative of the First Amendment's guarantees albeit a side effect of such a seizure coincidentally prevents that one particular copy of the film from being further disseminated pending the outcome of the criminal proceedings (Citing cases)." Bazzell v. Gibbens, 306 F. Supp. 1057, 1059 (E.D. La. 1969); accord Miller v. United States, 431 F.2d 655 (9th Cir. 1970); United States v. Wild, 422 F.2d 34, 38 (2d Cir. 1969).