CITE

    18 USC Sec. 1461                                            01/05/2009

EXPCITE

    TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
    PART I - CRIMES
    CHAPTER 71 - OBSCENITY

HEAD

    Sec. 1461. Mailing obscene or crime-inciting matter

STATUTE

      Every obscene, lewd, lascivious, indecent, filthy or vile
    article, matter, thing, device, or substance; and -
      Every article or thing designed, adapted, or intended for
    producing abortion, or for any indecent or immoral use; and
      Every article, instrument, substance, drug, medicine, or thing
    which is advertised or described in a manner calculated to lead
    another to use or apply it for producing abortion, or for any
    indecent or immoral purpose; and
      Every written or printed card, letter, circular, book, pamphlet,
    advertisement, or notice of any kind giving information, directly
    or indirectly, where, or how, or from whom, or by what means any of
    such mentioned matters, articles, or things may be obtained or
    made, or where or by whom any act or operation of any kind for the
    procuring or producing of abortion will be done or performed, or
    how or by what means abortion may be produced, whether sealed or
    unsealed; and
      Every paper, writing, advertisement, or representation that any
    article, instrument, substance, drug, medicine, or thing may, or
    can, be used or applied for producing abortion, or for any indecent
    or immoral purpose; and
      Every description calculated to induce or incite a person to so
    use or apply any such article, instrument, substance, drug,
    medicine, or thing -
      Is declared to be nonmailable matter and shall not be conveyed in
    the mails or delivered from any post office or by any letter
    carrier.
      Whoever knowingly uses the mails for the mailing, carriage in the
    mails, or delivery of anything declared by this section or section
    3001(e) of title 39 to be nonmailable, or knowingly causes to be
    delivered by mail according to the direction thereon, or at the
    place at which it is directed to be delivered by the person to whom
    it is addressed, or knowingly takes any such thing from the mails
    for the purpose of circulating or disposing thereof, or of aiding
    in the circulation or disposition thereof, shall be fined under
    this title or imprisoned not more than five years, or both, for the
    first such offense, and shall be fined under this title or
    imprisoned not more than ten years, or both, for each such offense
    thereafter.
      The term "indecent", as used in this section includes matter of a
    character tending to incite arson, murder, or assassination.

SOURCE

    (June 25, 1948, ch. 645, 62 Stat. 768; June 28, 1955, ch. 190,
    Secs. 1, 2, 69 Stat. 183; Pub. L. 85-796, Sec. 1, Aug. 28, 1958, 72
    Stat. 962; Pub. L. 91-662, Secs. 3, 5(b), 6(3), Jan. 8, 1971, 84
    Stat. 1973, 1974; Pub. L. 103-322, title XXXIII, Sec. 330016(1)(K),
    (L), Sept. 13, 1994, 108 Stat. 2147.)

HISTORICAL AND REVISION NOTES

      Based on title 18, U.S.C., 1940 ed., Sec. 334 (Mar. 4, 1909, ch.
    321, Sec. 211, 35 Stat. 1429 [1129]; Mar. 4, 1911, ch. 241, Sec. 2,
    36 Stat. 1339).
      The attention of Congress is invited to the following decisions
    of the Federal courts construing this section and section 1462 of
    this title.
      In Youngs Rubber Corporation, Inc. v. C. I. Lee & Co., Inc.,
    C.C.A. 1930, 45 F. 2d 103, it was said that the word "adapted" as
    used in this section and in section 1462 of this title, the latter
    relating to importation and transportation of obscene matter, is
    not to be construed literally, the more reasonable interpretation
    being to construe the whole phrase "designed, adapted or intended"
    as requiring "an intent on the part of the sender that the article
    mailed or shipped by common carrier be used for illegal
    contraception or abortion or for indecent or immoral purposes." The
    court pointed out that, taken literally, the language of these
    sections would seem to forbid the transportation by mail or common
    carrier of anything "adapted," in the sense of being suitable or
    fitted, for preventing conception or for any indecent or immoral
    purpose, "even though the article might also be capable of
    legitimate uses and the sender in good faith supposed that it would
    be used only legitimately. Such a construction would prevent
    mailing to or by a physician of any drug or mechanical device
    'adapted' for contraceptive or abortifacient uses, although the
    physician desired to use or to prescribe it for proper medical
    purposes. The intention to prevent a proper medical use of drugs or
    other articles merely because they are capable of illegal uses is
    not lightly to be ascribed to Congress. Section 334 [this section]
    forbids also the mailing of obscene books and writings; yet it has
    never been thought to bar from the mails medical writings sent to
    or by physicians for proper purposes, though of a character which
    would render them highly indecent if sent broadcast to all classes
    of persons." In United States v. Nicholas, C.C.A. 1938, 97 F. 2d
    510, ruling directly on this point, it was held that the
    importation or sending through the mails of contraceptive articles
    or publications is not forbidden absolutely, but only when such
    articles or publications are unlawfully employed. The same rule was
    followed in Davis v. United States, C.C.A. 1933, 62 F. 2d 473,
    quoting the obiter opinion from Youngs Rubber Corporation v. C. I.
    Lee & Co., supra, and holding that the intent of the person mailing
    a circular conveying information for preventing conception that the
    article described therein should be used for condemned purposes was
    necessary for a conviction; also that this section must be given a
    reasonable construction. (See also United States v. One Package,
    C.C.A. 1936, 86 F. 2d 737.)
      Reference to persons causing or procuring was omitted as
    unnecessary in view of definition of "principal" in section 2 of
    this title.
      Minor changes in phraseology were made.
                                AMENDMENTS
      1994 - Pub. L. 103-322, in eighth par., substituted "fined under
    this title" for "fined not more than $5,000" after "thereof, shall
    be" and for "fined not more than $10,000" after "offense, and shall
    be".
      1971 - Pub. L. 91-662, Sec. 3(1), in second par., struck out
    "preventing conception or" before "producing abortion".
      Pub. L. 91-662, Sec. 3(1), in third par., struck out "preventing
    conception or" after "apply it for".
      Pub. L. 91-662, Sec. 3(2), (3), in fourth par., substituted
    "means abortion may be produced" for "means conception may be
    prevented or abortion produced".
      Pub. L. 91-662, Sec. 3(1), in fifth par., struck out "preventing
    conception or" after "applied for".
      Pub. L. 91-662, Sec. 6(3), in eighth par., inserted "or section
    3001(e) of title 39" after "this section". Section 5(b) of Pub. L.
    91-662 inserted reference to section 4001(d) of Title 39, The
    Postal Service, which reflected provisions of Title 39 prior to the
    effective date of Title 39, Postal Service, as enacted by the
    Postal Reorganization Act. Said section 4001(d) was repealed by
    section 6(2) of Pub. L. 91-662, effective on the date that the
    Board of Governors of the Postal Service establish as the effective
    date for section 3001 of Title 39, Postal Service.
      1958 - Pub. L. 85-796 provided in eighth par. for continuing
    offenses by use of the mails instead of by deposits for mailing and
    for punishment for subsequent offenses.
      1955 - Act June 28, 1955, Sec. 1, in first par., substituted
    "indecent, filthy or vile article, matter, thing, device or
    substance" for "or filthy book, pamphlet, picture paper, letter,
    writing, print, or other publication of an indecent character".
      Act June 28, 1955, Sec. 2, struck out fifth par., which read as
    follows: "Every letter, packet, or package, or other mail matter
    containing any filthy, vile, or indecent thing, device or
    substance; and".
                     EFFECTIVE DATE OF 1971 AMENDMENT
      Amendment by sections 3 and 5(b) of Pub. L. 91-662 effective Jan.
    9, 1971, see section 7 of Pub. L. 91-662, set out as a note under
    section 552 of this title.
      Section 6 of Pub. L. 91-662 provided that the amendment made by
    that section is effective on date that Board of Governors of United
    States Postal Service establishes as the effective date for section
    3001 of title 39 of the United States Code, as enacted by the
    Postal Reorganization Act.
                  COMMISSION ON OBSCENITY AND PORNOGRAPHY
      Pub. L. 90-100, Oct. 3, 1967, 81 Stat. 253, as amended by Pub. L.
    90-350, title V, Sec. 502, June 19, 1968, 82 Stat. 197; Pub. L. 91-
    74, title V, Sec. 503, Sept. 29, 1969, 83 Stat. 123, provided for
    establishment of Commission on Obscenity and Pornography, its
    membership, compensation of members, powers, functions, and duties
    of Commission, required Commission to report to President and to
    Congress its findings and recommendations no later than Sept. 30,
    1970, and provided for its termination ten days following
    submission of report.