Smith v. United States

431 U.S. 291, 97 S. Ct. 1756, 52 L. Ed. 2d 324, 1977 U.S. LEXIS 92, 2 Media L. Rep. (BNA) 1833
Supreme Court of the United States·Decided May 23, 1977·No. 75-1439·Published·Cited by 285 cases

Opinions

Me. Justice Blackmun

delivered the opinion of the Court. In Miller v. California, 413 U. S. 15 (1973), this Court rejected a plea for a uniform national standard as to what [293] appeals to the prurient interest and as to what is patently offensive; the Court held, instead, that these essentially were questions of fact to be measured by contemporary standards of the community. Id., at 30-34. The instant case presents the issue of the constitutional effect of state law that leaves unregulated the distribution of obscene material to adults, on the determination of contemporary community standards in a prosecution under 18 U. S. C. § 1461 for a mailing that is wholly intrastate. The case also raises the question whether § 1461 is unconstitutionally vague as applied in these circumstances, and the question whether the trial court, during the voir dire of prospective jurors, correctly refused to ask proffered questions relating to community standards.

I

Between February and October 1974 petitioner, Jerry Lee Smith, knowingly caused to be mailed various materials from Des Moines, Iowa, to post office box addresses in Mount Ayr and Guthrie Center, two communities in southern Iowa. This was done at the written request of postal inspectors using fictitious names. The materials so mailed were delivered through the United States postal system to the respective postmasters serving the addresses. The mailings consisted of (1) issues of “Intrigue” magazine, depicting nude males and females engaged in masturbation, fellatio, cunnilingus, and sexual intercourse; (2) a film entitled “Lovelace,” depicting a nude male and a nude female engaged in masturbation and simulated acts of fellatio, cunnilingus, and sexual intercourse ; and (3) a film entitled “Terrorized Virgin,” depicting two nude males and a nude female engaged in fellatio, cunnilingus, and sexual intercourse.

II

For many years prior to 1974 the statutes of Iowa made it a misdemeanor to sell or offer to sell or to give away “any obscene, lewd, indecent, lascivious, or filthy book, pamphlet, [294] paper, . . . picture, photograph, writing . . .” or to deposit in any post office within Iowa any article of that kind. Iowa Code §§ 725.5 and 725.6 (1973).

In 1973, however, the Supreme Court of Iowa, in response to the standards enunciated in Miller v. California, supra, unanimously held that a related and companion Iowa statute, § 725.3 of the 1973 Code, prohibiting the presentation of any obscene or immoral drama, play, exhibition, or entertainment, was unconstitutionally vague and overbroad. State v. Wedelstedt, 213 N. W. 2d 652.1 Wedelstedt, at least by implication — and we so assume — invalidated §§ 725.5 and 725.6 as well.

On July 1, 1974, Laws of Iowa 1974, cc. 1267 and 1268, became effective. These specifically repealed §§ 725.3, 725.5, and 725.6 of the 1973 Code. In addition, however, c. 1267 (thereafter codified as the first 10 sections of c. 725 of the 1975 Iowa Code) defined, among other things, “obscene material,” and made it “a public offense” to disseminate obscene material to minors (defined as persons “under the age of eighteen”). Dissemination of obscene material to adults was not made criminal or even proscribed. Section 92 of c. 1267 (now § 725.9 of the 1975 Code) insured that the law would be applied uniformly throughout the State, and that no lesser [295] governmental unit would impose more stringent regulations on obscene material.

In 1976, the Iowa Legislature enacted a “complete revision” of the State’s “substantive criminal laws.” This is entitled the “Iowa Criminal Code” and is generally effective January 1, 1978. The existing definition of “obscene mate-' rial” remains unchanged, but a new provision, § 2804 of the Criminal Code, Iowa Code Ann. (Spec. Pamphlet 1977), although limited in scope, applies by its terms to adults. It reads:

“Any person who knowingly sells or offers for sale material depicting a sex act involving sado-masochistic abuse, excretory functions, a child, or bestiality which the average adult taking the material as a whole in applying contemporary community standards would find that it appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value shall, upon conviction be guilty of a simple misdemeanor.”

In summary, therefore, we have in Iowa (1) until 1973 state statutes that proscribed generally the dissemination of obscene writings and pictures; (2) the judicial nullification of some of those statutory provisions in that year for reasons of overbreadth and vagueness; (3) the enactment, effective July 1, 1974, of replacement obscenity statutes restricted in their application to dissemination to minors; and (4) the enactment in 1976 of a new Code, effective in 1978, with obscenity provisions, somewhat limited in scope, but not restricted in application to dissemination to minors.

Petitioner’s mailings, described above and forming the basis of his federal prosecution, took place in 1974, after the theretofore existing Iowa statutes relating to obscene material had been nullified by Wedelstedt, but obviously before the 1976 legislation imposing misdemeanor liability with respect to certain transactions with adults becomes effective. Because [296] there is no contention that the materials petitioner mailed went to any minor, the 1974 legislation has no application to his case. And the 1976 legislation, of course, has no effect on petitioner’s criminal liability. Cf. Marks v. United States, 430 U. S. 188 (1977).

Thus, what petitioner did clearly was not a violation of state law at the time he did it. It is to be observed, also, that there is no suggestion that petitioner’s mailings went to any nonconsenting adult or that they were interstate.

Ill

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Smith v. United States, 431 U.S. 291, 97 S. Ct. 1756, 52 L. Ed. 2d 324, 1977 U.S. LEXIS 92, 2 Media L. Rep. (BNA) 1833 (1977).

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