United States v. Alpers/Dissent Black

by Hugo Black

United States Supreme Court

338 U.S. 680

United States  v.  Alpers

 Argued: and Submitted Dec. 4, 1949. --- Decided: Feb 6, 1950

Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice JACKSON concur, dissenting.

I am unable to agree that the conduct of this respondent was made an offense by the language of the statutory provision on which his conviction rests. That provision forbids deposit with an express company, for interstate carriage, of 'any obscene, lewd, or lascivious, or any filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character * * *.' 18 U.S.C. § 396 (1946 Ed.), now § 1462 (1948 Rev), 18 U.S.C.A. § 1462. The crime with which respondent was charged involved phonograph records, which do not come under any specific category listed in the statute. Consequently the information against respondent could only charge violation of the provision's general language barring shipment of 'other matter of indecent character.' The Court sustains the conviction here by reasoning the a phonograph record is 'matter' within the meaning of this congressional prohibition.

Our system of justice is based on the principle that criminal statutes shall be couched in language sufficiently clear to apprise people of the precise conduct that is prohibited. Judicial interpretation deviates from this salutary principle when statutory language is expanded to include conduct that Congress might have barred, but did not, by the language it used. ^[1] Compare United States v. Weitzel, 246 U.S. 533, 543, 38 S.Ct. 381, 382, 62 L.Ed. 872, with United States v. Sullivan, 332 U.S. 689, 693-694, 68 S.Ct. 331, 334, 92 L.Ed. 297.

The reluctance of courts to expand the coverage of criminal statutes is particularly important where, as here, the statute results in censorship. According to dictionary definitions, 'matter' undeniably includes phonograph records and the substances of which they are made. Indeed, dictionaries tell us that 'matter' encompasses all tangibles and many intangibles, including material treated or to be treated in a book, speech, legal action or the like; matter for discussion, argument, exposition, etc.; and material treated in the medieval metrical romances. The many meanings of 'matter' are warning signals against giving the word the broad construction adopted by the Court.

History is not lacking in proof that statutes like this may readily be converted into instruments for dangerous abridgments of freedom of expression. People of varied temperaments and beliefs have always differed among themselves concerning what is 'indecent.' Sculpture, paintings and literature, ranked among the classics by some, deeply offend the religious and moral sensibilities of others. ^[2] And those which offend, however priceless or irreplaceable, have often been destroyed by honest zealots convinced that such destruction was necessary to preserve morality as they saw it.

Of course there is a tremendous difference between cultural treasures and the phonograph records here involved. But our decision cannot be based on that difference. Involved in this case is the vital question of whether courts should give the most expansive construction to general terms in legislation providing for censorship of publications or pictures found to be 'indecent,' 'obscene,' etc. Censorship in any field may so readily encroach on constitutionally protected liberties that courts should not add to the list of items banned by Congress. ^[3]

In the provision relied on, as well as elsewhere in the Act, Congress used language carefully describing a number of 'indecent' articles and forbade their shipment in interstate commerce. This specific list applied censorship only to articles that people could read or see; the Court now adds to it articles capable of use to produce sounds that people can hear. ^[4] The judicial addition here may itself be small. But it is accomplished by a technique of broad interpretation which too often may be successfully invoked by the many people who want the law to proscribe what other people may say, write, hear, see, or read. I cannot agree to any departure from the sound practice of narrowly construing statutes which by censorship restrict liberty of communication.

Since Congress did not specifically ban the shipment of phonograph records, ^[5] this Court should not do so.

Notes

1. The Government points to the legislative history of this and related statutes as proof that Congress intended its language to be most broadly construed. Particularly it relies on the argument that Anthony Comstock, a supporter and promoter of the first federal statutes in this field, had a reputation for 'thoroughness in his pursuit of immorality.' This may be conceded, but we cannot construe this statute on the theory that Mr. Comstock's zeal as a reformer of morals must be considered as determinative legislative history. That zeal was undoubtedly great, so great that if accepted as a criterion of construction the Court could expand the punishment along with the coverage of the Act.
2. See Hannegan v. Esquire, Inc., 327 U.S. 146, 157-158, 66 S.Ct. 456, 461-462, 90 L.Ed. 586; Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-252, 23 S.Ct. 298, 300, 47 L.Ed. 460.
3. See discussion in 1 Chafee, Government and Mass Communications 200-366.
4. In a second provision of the Act, Congress barred shipment of 'any drug, medicine, article, or thing designed, adapted, or intended for preventing conception, or producing abortion, or for any indecent or immoral use * * *.'
5. Since the decision below, a bill has been introduced in the House of Representatives at the request of the Department of Justice to amend the statute so as to prohibit the transportation of obscene phonograph records in interstate commerce. H.R. 6622, 81st Cong., 2d Sess. In requesting this amendment, the Assistant to the Attorney General stated that whether or not the present statute applied to phonograph records was 'questionable,' particularly in the light of the decision below. Recalling the 1920 amendment to bring motion-picture film within the coverage of the statute, he urged that 'Apparently, the time has now arrived for a further amendment to bring obscene phonograph records clearly within the scope of the present section.' This proposed bill is still pending in the House Committee on the Judiciary.