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Federal- Mailing Obscene Materials

Statute
18 USC1461. 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 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.

Jury Instruction
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

  1. That the Defendant knowingly used or caused the mails to be used for the conveyance or delivery of certain material, as charged;
  2. That the Defendant knew at the time of such mailing the general nature of the content of the material so mailed; and
  3. That the material so mailed was “obscene” as defined in these instructions.

While the Government must prove that the Defendant knew the general sexual nature of the material that was transported through the mails, the Government does not have to prove that the Defendant knew such material was legally obscene.

Therefore, if you find beyond a reasonable doubt that the Defendant transmitted the material in question through the mails and that the Defendant knew the sexual nature of the material—that the Defendant knew what the material actually was—and if you then find beyond a reasonable doubt that the material was 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.

To prove beyond a reasonable doubt that material is obscene, the Government must satisfy a three part test:

  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 scientific, literary, artistic, or political value.

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

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 as judged by an average person of the community as a whole.

Whether the material describes sexual conduct in a patently offensive way is to be judged by contemporary community standards which are those accepted in the community as a whole.

An item lacks serious literary, artistic, political or scientific value is judged by whether a reasonable person considering the material as a whole would find that it has or does not have serious literary, political, artistic, or scientific value.