The decision in this case was announced on the same day as the decision in United States v. Thirty-seven (37) Photographs (1971). Both cases emerged from challenges to federal laws based on the decision in Stanley v. Georgia (1969) that the Constitution protects the ‘‘private possession of obscene material’’ and that it also ‘‘protects the right to receive information and ideas...regardless of their social worth.’’ Did Stanley mean, therefore, that federal laws prohibiting the mailing or importation of obscene material is unconstitutional when only willing adults are involved?
Reidal operated a publishing firm and mailed a booklet, ‘‘The True Facts about Imported Pornography,’’ to an adult older than twenty-one who, unbeknownst to Reidel, was a postal inspector responding to an advertisement Reidel placed in a newspaper. A search of Reidel’s business uncovered other mailed copies that had been returned as ‘‘undelivered’’ with no indication of the identities, ages, or willingness of the potential recipients to accept the booklet.
Reidel was indicted on three counts of violating the same federal law that had been at the center of the Roth decision. A federal district court judge struck down the law as infringing on Reidel’s constitutionally protected right to deliver the booklet as outlined in Stanley v. Georgia. In a seven-to-two decision, the Supreme Court reversed the lower court. White wrote the majority opinion.
White declared the district court ignored Roth and the ‘‘express limitations’’ on Stanley’s reach. The decision was too sweeping: ‘‘To extrapolate from Stanley’s right to 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 opinion abjured.’’ The ‘‘right to receive’’ in Stanley did not immunize the distribution of obscenity that Roth held was unprotected by the First Amendment. According to White, Roth ‘‘squarely placed obscenity and its distribution outside the reach of the First Amendment, and they remain there today.’’ Stanley, he emphasized, did not overrule Roth, and ‘‘we decline to do so now.’’
Marshall’s concurrence seeks to correct the ‘‘disingenuous’’ contention that Stanley’s conviction was overturned only because his residence was searched. In fact, the justice states, the case pivoted on the whether the material in Stanley’s possession was publicly displayed or intended to be distributed. As Marshall’s opinion in Stanley states, ‘‘States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.’’ Marshall stresses that Stanley was an assessment of state interests used to legitimate government regulation of obscenity. The possibility of antisocial behavior and its consequences was rejected as one reason for these laws, whereas those that protect children or unwilling adults from being exposed to obscene material were permissible.
Marshall thus supports reversing the lower court in this case, because Reidel mailed or attempted to mail obscene material even though it could end up in the hands of underage youths or children. Despite his declared intentions not to do so and the absence of any evidence that children had received the booklets, Marshall thought Reidel had not taken sufficient precautions to prevent this occurrence from happening. From Marshall’s perspective, this was an important distinction compared with the companion case, United States v. Thirty-Seven (37) Photographs.
ROY B. FLEMMING
References and Further Reading
Cases and Statutes Cited