Notes on 18 U.S.C. § 1461 : US Code - Notes

Search Notes on 18 U.S.C. § 1461 : US Code - Notes

(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.