18 U.S.C. § 1461 — Mailing obscene or crime-inciting matter

Page 381 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1461 1 Section catchline amended by Pub. L. 109–248 without cor- responding amendment of chapter analysis. Sec. 1463. Mailing indecent matter on wrappers or enve- lopes. 1464. Broadcasting obscene language. 1465. Transportation of obscene matters for sale or distribution.1 1466. Engaging in the business of selling or trans- ferring obscene matter. 1466A. Obscene visual representations of the sexual abuse of children. 1467. Criminal forfeiture. 1468. Distributing obscene material by cable or subscription television. 1469. Presumptions. 1470. Transfer of obscene material to minors. Editorial Notes AMENDMENTS 2003—Pub. L. 108–21, title V, § 504(b), Apr. 30, 2003, 117 Stat. 682, added item 1466A. 1998—Pub. L. 105–314, title IV, § 401(b), Oct. 30, 1998, 112 Stat. 2979, added item 1470. 1988—Pub. L. 100–690, title VII, §§ 7521(b), (f)[(e)], 7523(b), 7526(b), Nov. 18, 1988, 102 Stat. 4489, 4490, 4502, 4503, added items 1460 and 1466 to 1469. 1955—Act June 28, 1955, ch. 190, § 4, 69 Stat. 184, added item 1465. 1950—Act May 27, 1950, ch. 214, § 2, 64 Stat. 194, sub- stituted ‘‘matters’’ for ‘‘literature’’ in item 1462. § 1460. Possession with intent to sell, and sale, of obscene matter on Federal property (a) Whoever, either— (1) in the special maritime and territorial ju- risdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Govern- ment of the United States; or (2) in the Indian country as defined in sec- tion 1151 of this title, knowingly sells or possesses with intent to sell an obscene visual depiction shall be punished by a fine in accordance with the provisions of this title or imprisoned for not more than 2 years, or both. (b) For the purposes of this section, the term ‘‘visual depiction’’ includes undeveloped film and videotape but does not include mere words. (Added Pub. L. 100–690, title VII, § 7526(a), Nov. 18, 1988, 102 Stat. 4503; amended Pub. L. 101–647, title III, § 323(c), Nov. 29, 1990, 104 Stat. 4819.) Editorial Notes AMENDMENTS 1990—Subsec. (a). Pub. L. 101–647, § 323(c)(1), struck out ‘‘or a visual depiction of a minor engaging in or as- sisting another person to engage in sexually explicit conduct,’’ after ‘‘visual depiction’’ in concluding provi- sions. Subsec. (b). Pub. L. 101–647, § 323(c)(2), amended sub- sec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘For the purposes of this section— ‘‘(1) the term ‘visual depiction’ includes undevel- oped film and videotape but does not include mere words; and ‘‘(2) the terms ‘minor’ and ‘sexually explicit con- duct’ have the meaning given those terms in chapter 110 of this title.’’ § 1461. Mailing obscene or crime-inciting matter Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and— Every article or thing designed, adapted, or in- tended for producing abortion, or for any inde- cent or immoral use; and Every article, instrument, substance, drug, medicine, or thing which is advertised or de- scribed 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 rep- resentation that any article, instrument, sub- stance, 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 in- cite 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 know- ingly 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 cir- culating 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 of- fense thereafter. The term ‘‘indecent’’, as used in this section includes matter of a character tending to incite arson, murder, or assassination. (June 25, 1948, ch. 645, 62 Stat. 768; June 28, 1955, ch. 190, §§ 1, 2, 69 Stat. 183; Pub. L. 85–796, § 1, Aug. 28, 1958, 72 Stat. 962; Pub. L. 91–662, §§ 3, 5(b), 6(3), Jan. 8, 1971, 84 Stat. 1973, 1974; Pub. L. 103–322, title XXXIII, § 330016(1)(K), (L), Sept. 13, 1994, 108 Stat. 2147.) HISTORICAL AND REVISION NOTES Based on title 18, U.S.C., 1940 ed., § 334 (Mar. 4, 1909, ch. 321, § 211, 35 Stat. 1429 [1129]; Mar. 4, 1911, ch. 241, § 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 Page 382 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1462 1 See References in Text note below. this title, the latter relating to importation and trans- portation of obscene matter, is not to be construed lit- erally, the more reasonable interpretation being to construe the whole phrase ‘‘designed, adapted or in- tended’’ as requiring ‘‘an intent on the part of the send- er that the article mailed or shipped by common car- rier 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 be- cause they are capable of illegal uses is not lightly to be ascribed to Congress. Section 334 [this section] for- bids also the mailing of obscene books and writings; yet it has never been thought to bar from the mails med- ical writings sent to or by physicians for proper pur- poses, though of a character which would render them highly indecent if sent broadcast to all classes of per- sons.’’ 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 contracep- tive articles or publications is not forbidden abso- lutely, 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 there- in should be used for condemned purposes was nec- essary 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 omit- ted as unnecessary in view of definition of ‘‘principal’’ in section 2 of this title. Minor changes in phraseology were made. Editorial Notes 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, § 3(1), in second par., struck out ‘‘preventing conception or’’ before ‘‘producing abor- tion’’. Pub. L. 91–662, § 3(1), in third par., struck out ‘‘pre- venting conception or’’ after ‘‘apply it for’’. Pub. L. 91–662, § 3(2), (3), in fourth par., substituted ‘‘means abortion may be produced’’ for ‘‘means concep- tion may be prevented or abortion produced’’. Pub. L. 91–662, § 3(1), in fifth par., struck out ‘‘pre- venting conception or’’ after ‘‘applied for’’. Pub. L. 91–662, § 6(3), in eighth par., inserted ‘‘or sec- tion 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 Gov- ernors 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 con- tinuing offenses by use of the mails instead of by depos- its for mailing and for punishment for subsequent of- fenses. 1955—Act June 28, 1955, § 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, § 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’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1971 AMENDMENT Amendment by sections 3 and 5(b) of Pub. L. 91–662 ef- fective Jan. 9, 1971, see section 7 of Pub. L. 91–662, set out as a note under section 552 of this title. Pub. L. 91–662, § 6, Jan. 8, 1971, 84 Stat. 1974, provided that the amendment made by that section is effective on date that Board of Governors of United States Post- al 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, § 502, June 19, 1968, 82 Stat. 197; Pub. L. 91–74, title V, § 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 Con- gress its findings and recommendations no later than Sept. 30, 1970, and provided for its termination ten days following submission of report. § 1462. Importation or transportation of obscene matters Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service (as defined in section 230(e)(2) 1 of the Commu- nications Act of 1934), for carriage in interstate or foreign commerce— (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or (b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical tran- scription, or other article or thing capable of producing sound; or (c) any drug, medicine, article, or thing de- signed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indi- rectly, where, how, or of whom, or by what means any of such mentioned articles, mat- ters, or things may be obtained or made; or Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service (as defined in section 230(e)(2) 1 of the Communications Act of 1934) any matter or thing the carriage or impor- tation of which is herein made unlawful— 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.