Hamling v. United States , 94 S. Ct. 2887 ( 1974 )

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join,

dissenting.

I

Whatever the constitutional power of government to regulate the distribution of sexually oriented materials, the First and Fourteenth Amendments, in my view, deny the Federal and State Governments power wholly to suppress their distribution. For I remain of the view that, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (Brennan, J., dissenting). Since amended 18 U. S. C. § 1461, as construed by the Court, aims at total suppression of distribution by mail of sexually oriented materials, it is, in my view, unconstitutionally overbroad and therefore invalid on its face. On that ground alone, I would reverse the judgment of the Court of Appeals and direct the dismissal of the indictment. Several' other reasons, however, also compel the conclusion that petitioners’ convictions should be set aside.

II

At least since 1962 the accepted construction of amended § 1461 has been that of Mr. Justice Harlan and Mr. Justice Stewart “that the proper test under this federal statute, [§ 1461,] reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency”; further, they said, “[t]he 1958 amendments . . . authorizing criminal prosecution at the place of delivery evince no purpose to make the standard less than national.” Manual Enterprises, Inc. v. Day, 370 U. S. 478, 488, and n. 10 (1962). The Court today overrules that construction and construes amended § 1461 to permit a juror to “draw on knowledge of the community or vicinage from which he comes in deciding what conclusion ‘the average person, applying contemporary community standards’ would reach in a given ease.” Ante, at 105. Apart from the questions whether the Court’s new construction trespasses upon the congressional prerogative, see Blount v. Rizzi, 400 U.S. 410, 419 (1971),¹ and whether constitutionally any “local” standard under amended § 1461 can properly be employed to delineate the area of expression protected by the First Amendment, see Pennekamp v. Florida, 328 U. S. 331, 335 (1946)— since “[i]t is, after all, a national Constitution we are expounding,” Jacobellis v. Ohio, 378 U. S. 184, 195 (1964) (opinion of Brennan, J.) — the construction that a “local” standard applies in § 1461 cases raises at least another serious First Amendment problem.

The 1958 amendments to § 1461 constituted the mailing of obscene matter a continuing offense under 18 U. S. C. § 3237.² The practical effect of this amendment — intentionally adopted by Congress for that express purpose — is to permit prosecution “in the Federal district in which [the disseminator] mailed the obscenity, in the Federal district in which the obscenity was received, or in any Federal district through which the obscenity passed while it was on its route through the mails.” 104 Cong. Rec. 15610-15611 (1958) (remarks of Rep. Hillings); see H. R. Rep. No. 2624, 85th Cong., 2d Sess. (1958); 104 Cong. Rec. 8991 (remarks of Rep. Keating); id., at 17832; id., at 8992 (remarks of Rep. Poff). Under today’s “local” standards construction, therefore, the guilt or innocence of distributors of identical materials mailed from the same locale can now turn on the chancy course of transit or place of delivery of the materials. See United States v. Palladino, 490 F. 2d 499, 503 (CA1 1974) (Coffin, C. J.). National distributors choosing to send their products in interstate travels will be forced to cope with the community standards of every hamlet into which their goods may wander. Because these variegated standards are impossible to discern, national distributors, fearful of risking the expense and difficulty of defending against prosecution in any of several remote communities, must inevitably be led to retreat to debilitating self-censorship that abridges the First Amendment rights of the people. For it “would tend to restrict the public’s access to forms [of sexually oriented materials] which the [United States] could not constitutionally suppress directly ... a censorship . . . hardly less virulent for being privately administered [, for] [t]hrough it, the distribution of all [sexually oriented materials], both obscene and not obscene, would be impeded.” Smith v. California, 361 U. S. 147, 154 (1959). Thus, the people of many communities will be “protected” far beyond gov-eminent’s constitutional power to deny them access to sexually oriented materials. A construction that has such consequences necessarily renders the constitutionality of amended § 1461 facially suspect under the First Amendment.

Ill

But even on the assumption that amended § 1461 is invulnerable to constitutional attack, the Court’s affirmance of these convictions is a patently indefensible denial to these petitioners of due process of law. The trial judge followed Manual Enterprise’s construction of amended § 1461 that required a determination of guilt upon the basis of a “national” standard of decency. The Court holds that under today’s new “local” standards construction, this was error. Yet, says the Court, the error in effect was harmless because the references in the instructions to “national” standards could not have “materially affected [the jurors’] deliberations . . . .” Ante, at 108. The trial transcript lays bare the utter fallacy of that conclusion.

First, the Court appraises the trial court’s references to “national” standards as “isolated,” and cites Boyd v. United States, 271 U. S. 104, 107 (1926), ante, at 107-108, where the Court held that an ambiguous statement in a charge in a criminal case, which, interpreted one way, would be erroneous, but which considered with the charge as a whole, probably was understood by the jurors in a harmless sense, is not a ground for reversal. But to represent the references to “national” standards in the court’s instructions as “isolated,” and probably understood by the jury in a harmless sense, is completely to misread the instructions. The emphasis on “national” standards is the very core of the instructions, because the trial judge made “national” standards the central criterion of the determination of the obscenity of the brochure. He referred to “national” standards in his instructions no less than 18 times, 14 of them within the space of four transcript pages.³ Indeed, his emphasis made such an impression upon the jurors’ minds that they returned from the jury room and requested that the trial judge reread them this portion of the instructions. See Tr. 4989-4990.⁴

Of at least as much — if not more — significance, the trial judge’s refusal to permit the defense to offer proof of “local” standards evidences how utterly mistaken is the Court’s surmise that the emphasis upon “national” standards in the instructions could not have “materially affected” the deliberations of the jurors. Virginia Carlsen was offered as a defense witness. Trial was in the Southern District of California which covers San Diego and Imperial Counties. Miss Carlsen testified that, under the supervision of a professor at San Diego State University, she polled San Diego residents to ascertain their reaction to the brochure. The trial judge refused to admit the results of her survey in evidence, despite a side-bar offer of proof that it would demonstrate that a substantial majority of the 718 persons interviewed had expressed the view that the brochure should be generally available to the public. Significantly, the survey was excluded by the trial judge solely on the ground that “[y]ou can’t use a piece of a standard as the standard,” thus emphasizing that guilt was to be predicated on violation of a national standard, or not at all. The colloquy at side bar was as follows:

“MR. KATZ. . . . The questions on the survey I think are self-explanatory. She showed people the Illustrated Report; she showed people the survey — I mean the advertisement in the questionnaire, and recorded their responses and calculated them on the basis of sex and on the basis of age, and I think the jury should be entitled, your Honor, to use this as one of the tests they use in deciding what is [sic] community standards and what weight should be given to it is a question for the jury.

“THE COURT. Well, I don’t agree with you, Mr. Katz, at all.

“I think you have a national standard here. You are going to have to stay with your national standard.

“I think it does,go to the admissibility. You can’t use a piece of a standard as the standard. If that were true, you would defeat the entire general standard.

“So I am not going to permit you to go any further with this witness with respect to this.” Tr. 3932-3933 (emphasis supplied).

“MR. FLEISHMAN.... I think whatever limitations your Honor would put on it would be correct, but I think it would be and should be admitted for whatever weight it has.

“THE COURT. No. It is a national standard and I don’t think this is the proper way to go about determining the national standard.” Id., at 3937 (emphasis supplied).

The affirmance of petitioners’ convictions in these circumstances plainly denies petitioners due process of law in violation of the principle of Saunders v. Shaw, 244 U. S. 317 (1917). There, the plaintiff sought to enjoin collection of a drainage tax. At trial, the trial judge ruled inadmissible plaintiff’s evidence that his land would not benefit from certain drainage improvements. Defendant therefore offered no proof that the plaintiff’s lands would benefit and prevailed at trial. The State Supreme Court reversed and granted a permanent injunction against the tax upon finding from the answer and testimony before it that the land had not been, and could not be, benefited. We reversed, holding that it was a violation of due process of law for a State Supreme Court to reverse a case and render judgment absolute, against a defendant who succeeded in the trial court, upon a proposition of fact that was ruled to be immaterial at the trial and concerning which the defendant had therefore no occasion and no proper opportunity to introduce rebuttal evidence.

Petitioners’ situation in this case is identical with that of the defendant in Saunders. Petitioners, too, were denied at trial admission of evidence upon a proposition of fact that was ruled immaterial and concerning which they therefore had no proper opportunity to introduce their proof. Had petitioners been aware that the proper criterion was the “local” standard, not only were they prepared to offer proof of the “local” standard, but obviously the strategy of their defense would have been completely different. To affirm their convictions without affording them opportunity to try the case on the “local” standards basis is a clear denial of due process. Saunders was, of course, a civil case. But the principle there announced surely has even greater application where, as here, criminal convictions carrying long prison sentences are involved.

“The right to present evidence is, of course, essential to the fair hearing required by the Due Process Clause. . . . And . . . this right becomes particularly fundamental when the proceeding allegedly results in a finding that a particular individual was guilty of a crime.” Jenkins v. McKeithen, 395 U. S. 411, 429 (1969) (opinion of Marshall, J.).

But in addition to the palpable absurdity of the Court’s surmises that introduction of the San Diego study could not have affected the jurors’ deliberations, and that petitioners would not have introduced additional evidence or done anything materially different had they known the jurors would be instructed on local standards, the Court’s assertion that the jurors could not have ruled differently if instructed to apply local, not national, standards evinces a claim of omniscience hardly mortal. It is the more remarkable in light of the contrary supposition of Miller v. California, 413 U. S. 15 (1973), that a jury instructed to apply national standards could indeed reach a different conclusion from what it might if instructed to apply local standards:

“It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. . . . People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.” Id., at 32-33.

Indeed, Miller rejected the “national” standards test on the ground, inter alia, that a “local” standard would allow a given community to apply a more permissive test:

“The use of 'national’ standards . . . necessarily implies that materials found tolerable in some places, but not under the 'national’ criteria, will nevertheless be unavailable where they are acceptable.” Id., at 32 n. 13.

Yet for the purpose of affirming these convictions the Court holds in effect that the local standards of jurors drawn from the Southern District of California could not possibly be more permissive than those of the Nation as a whole/⁵

The Court’s affirmance, in addition to denying due process in its refusal to apply the Saunders principle, also denies petitioners due process in another way. It is abundantly clear that petitioners’ convictions are sustained upon a charge wholly different from that upon which they were tried. They were tried upon a charge of violating “national” standards and their convictions are affirmed as if they were tried for violating “local” standards. Under the law long settled by our cases, treating a conviction as a conviction upon a charge not made is a denial of due process of law. Cole v. Arkansas, 333 U. S. 196 (1948); Eaton v. Tulsa, 415 U. S. 697 (1974). A distaste, however strong, for commercial vendors of alleged pornography is no justification for denying petitioners the application of the principle imposed upon the courts of Arkansas and Oklahoma in those cases. Ours may be the final voice, but that is the greater reason for meticulous discharge of our responsibility to dispense evenhanded justice. The least to which petitioners are entitled is vacation of their convictions and a remand for a new trial.

1 The Court is, of course, obliged to strain to construe congressional enactments to avoid constitutional attacks. It cannot, however, emasculate a statute to avoid a perceived constitutional difficulty, see Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964); George Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933). The legislative history of § 1461 gives not the slightest indication that the application of local standards was contemplated. Indeed, the remarks of an early sponsor of the provision indicate that application of a national standard was intended:

“If there be a trial in this country or anywhere else of an obscene character — of that character that a report of it would corrupt the morals of the youth and the morals of the country generally — then

I do not think the United States should provide the means to circulate that kind of literature in whatever paper or in whatever book it may be published.” 4 Cong. Rec. 696 (1876) (remarks of Rep. Cannon) (emphasis added).

2 Prior to the amendment §1461 read, “[w]hoever knowingly deposits for mailing or delivery . . .” (emphasis added). This was changed to read “[w]hoever knowingly uses the mails The amendment overruled United States v. Ross, 205 F. 2d 619 (CA10 1953), which held that the unlawful act proscribed in § 1461 was “the deposit for mailing and not a use of the mails which may follow such deposit,” id., at 621, and thus brought § 1461 within 18 U. S. C. § 3237, which provides in relevant part that “[a]ny offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves.” See generally Note, Venue: Its Impact on Obscenity, 11 S. D. L. Rev. 363 (1966).

3 The portion of the instructions containing the 14 references is as follows:

“Now, as to the second test, another requirement to be applied in determining whether the material in evidence is obscene, is whether the material is patently offensive in that it goes substantially beyond what is reasonably accepted according to the contemporary standards of the community as a whole, the national community as a whole. In applying this test you must consider each book or advertisement as a whole and not part by part. You must measure the material by contemporary or current national community standards and determine whether the material so exceeds the customary limits of candor in the descriptions and representations of sex and nudity which are reasonably acceptable in the national community, that they are patently offensive.

“Contemporary community standards means the standards generally held throughout this country concerning sex and matters pertaining to sex. The phrase means, as it has been aptly stated, the average conscience of the time, and the present critical point in the compromise between candor and shame, at which the community may have arrived here and now.

“You are the sole judges of the contemporary community standards of this country. In arriving at and applying your judgment, however, you are not to consider your own standards. That is, of what is good or what is bad. You are not to condemn by your own standards, if you know and believe them to be stricter than those generally held, and you are not to exculpate or excuse by your own standards, if you know and believe them to be more tolerant than those that are generally held. You are not to limit yourself to what you have learned while residing in your present locality or what you have learned or observed from and about people residing in your present locality. Rather, you are to call upon everything you have learned, seen, read, and observed from both the evidence presented at the trial and the experience you have gained from your own observations and experience in your affairs of life.

“If you find the materials in evidence to substantially exceed the limits of candor in the descriptions and representations of sex which are acceptable in the national community, then you may find the material to be patently offensive.

“You will note that the book and advertisement here involved cannot be found to be obscene unless the evidence shows beyond a reasonable doubt that these materials substantially exceed customary limits of candor in the nation as a whole in the description and representation of sex and nudity.

“The word 'substantially’ has been defined as greatly or considerably, or largely. The contemporary community standards of the nation, are set by what is, in fact, reasonably accepted by the national community as a whole. That is to say, by society at large or people in general throughout the nation, and not by what some persons or groups of persons may believe the national community as a whole ought to accept or refuse to accept. It is a matter of common knowledge of which the Court takes judicial notice, that the customs change and that the national community as a whole may, from time to time, find acceptable that which was formerly unacceptable.

“Now, in determining and applying contemporary national community standards, you must consider what appears generally in magazines, books, newspapers, television, burlesque, night clubs, novels, motion pictures, the stage, and other media of communications in the nation as a whole, insofar as social value is concerned.” Tr. 4948-4951; App. 241-243 (emphasis supplied).

Four additional references to national standards appear at pages 4945,4953, and 4960 of the trial transcript.

4 Petitioners’ failure to object to the national-standards instructions ean hardly be used to shift to their shoulders any burden of demonstrating prejudice. See O’Connor v. Ohio, 385 U. S. 92 (1966). The Court’s reliance upon Namet v. United States, 373 U. S. 179, 190-191 (1963), and Lopez v. United States, 373 U. S. 427, 436 (1963), cases in which defendants failed to object to instructions which were erroneous at the time the jury was instructed and in which the defendants were therefore required to demonstrate that the instructions constituted “plain error,” are thus inapt.

5 It may be that the Court’s unarticulated assumption is that jurors instructed to apply “national” standards will inevitably apply the standards of their local community, because national standards are simply “unaseertainable.” But to say that it may be difficult or even impossible to determine national standards is a far cry from saying that the jurors — instructed that it is their solemn duty to apply the law as pronounced by the Court — would not attempt to do so; or, indeed, that they would not reach a conclusion that the national standards differed- from those of their local community.