§ 1461. — Mailing obscene or crimeinciting matter.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC1461]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 71--OBSCENITY
Sec. 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 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.
(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.
Section Referred to in Other Sections
This section is referred to in section 1961 of this title; title 19
section 1583; title 39 sections 3001, 3011.
