United States of America v. Dennis E. Pryba Appellant

44 Interstate Transportation Of Obscene Material (By Common Carrier) 18 USC § 1462

Title 18, United States Code, Section 1462, makes it a Federal crime or offense for anyone to use a common carrier to transmit obscene materials in interstate commerce. The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

First: That the Defendant knowingly used an express company or common carrier to transport certain articles in interstate commerce, as charged;

Second: That the Defendant knew, at the time of such transportation, the general nature of the content of the articles; and

Third: That the articles were "obscene" as hereafter defined. An "express company or other common carrier" includes any person or corporation engaged in the business of carting, hauling or transporting goods and commodities for members of the public for hire. The term "interstate commerce" includes any movement of goods or articles from one state into another state.

One of the specific facts that the Government must prove is that the Defendant knew the general nature of the contents of the articles that were transported in interstate commerce. The Government does not have to prove that the Defendant knew that such articles were in fact legally obscene, only that the Defendant knew what they were.

Therefore, if you find beyond a reasonable doubt that the Defendant transported by common carrier in interstate commerce the articles in question, and that the Defendant knew the general nature of the articles, and if you then find beyond a reasonable doubt that the articles were in fact "obscene" within the meaning of these instructions, you may then find that the Defendant had the requisite knowledge, or scienter as we call it in the law.

Freedom of expression is fundamental to our system, and has contributed much to the development and well being of our free society. In the exercise of the constitutional right to free expression that all of us enjoy, sex may be portrayed and the subject of sex may be discussed, freely and publicly. Material is not to be condemned merely because it contains passages or sequences that are descriptive of sexual activity. However, the constitutional right to free expression does not extend to that which is "obscene."

For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find:

(1) that the work appeals predominantly to "prurient" interest;

(2) that it depicts or describes sexual conduct in a patently offensive way; and

(3) that it lacks serious literary, artistic, political or scientific value.

An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.

The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole [or the prurient interest of members of a deviant sexual group, as the case might be].

The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences.

Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment that must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex.

Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.

[In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if you find, beyond a reasonable doubt, that the material was intended to appeal to the prurient interest of such a group as, for example, homosexuals.]

An appeal to the prurient interest, as stated before, is an appeal to a morbid, degrading and unhealthy interest in sex as distinguished from a candid interest in sex.

The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals.

In making that judgment, however, you must not condemn by your own standards, if you believe them to be stricter than those generally held. Rather, you must measure whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of candor as to be clearly offensive.

Contemporary community standards, as stated before, are those established by what is generally accepted in the community as a whole; that is to say, by society at large or people in general, and not by what some groups of persons may believe the community as a whole ought to accept or refuse to accept.

It is a matter of common knowledge that customs change and that the community as a whole may from time to time find acceptable that which was formerly unacceptable.

The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct, and it is for you to say whether the material in this case has such value.

All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met the material would not be obscene within the meaning of the law.

ANNOTATIONS AND COMMENTS

18 USC § 1462 provides:

Whoever knowingly uses any express company or other common carrier for carriage in interstate commerce - -(a) any obscene book, pamphlet, picture [or] motion-picture film [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine. The scienter requirement for this offense is the same as for 18 USC § 1861: It is not necessary to prove that the Defendant knew the material was obscene under legal standards.