The opinion of the court was delivered by: CORCORAN
The above numbered actions were consolidated since they raise identical constitutional issues for decision by a three-judge panel convened pursuant to 28 U.S.C. §§ 2282-2284.
In each case the plaintiffs originally sought the convocation of a three-judge court to secure injunctive and declaratory relief on grounds that a 1958 amendment to the venue provisions of the Federal Obscenity Statutes violated their constitutional rights.
In each instance the District Judge to whom application for a three-judge court was made denied the application on jurisdictional grounds. The convocation of this three-judge court followed successful appeals by the petitioners to the Court of Appeals. See Reed Enterprises v. Corcoran (Luros v. Sirica), 122 U.S.App.D.C. 387, 354 F.2d 519 (1965).
The precise issue before the Court is the constitutionality of the venue provision of the Federal Obscenity Statutes
as amended in 1958.
Title 18 § 1461 defines as nonmailable:
"Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; * * *"
Prior to 1958 it further provided:
"Whoever knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both."
In 1958 for reasons hereinafter recited
the immediately foregoing language of § 1461 was amended by deleting "deposits for mailing or delivery" and substituting the phrase "uses the mails" so that the statute now reads in pertinent part:
"Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable * * *."
Shall be guilty of a violation of the statute.
The intended effect of the 1958 amendment was to place the venue for obscenity prosecution within the purview of Title 18 U.S.C. § 3237 which read:
"Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves."
thus making the use of the mails for the dissemination of obscene matter a continuing offense from the time of deposit to the time of delivery and throughout transit.
The plaintiffs are distributors and publishers of books and magazines which, when considered in the light of the obscenity statute, have been characterized as "borderline or marginal material."
Subsequent to convening this special court the parties stipulated to the pertinent facts underlying this dispute and a hearing was held at which oral argument was presented on cross motions for summary judgment and an alternative motion to dismiss for lack of jurisdiction pressed by the defendant.
In support of their motion for summary judgment the plaintiffs substantially narrowed the constitutional issue before the Court to whether the provisions of 18 U.S.C. §§ 1461 and 1462 as amended in 1958 are unconstitutional on their face.
The reason for this position is clear. The plaintiffs can allege only a potential threat of prosecution in multiple districts and a potential objective of depriving them of their constitutional rights where no such activity is shown to exist now nor to have existed in the past since the 1958 amendment. This conclusion is borne out by the stipulated facts which show a total of seven corporations and fifteen individuals, parties plaintiff; and that since 1958 such plaintiffs have been subjected to only four criminal trials under the Federal Obscenity Statute. One case was prosecuted in the home state of the defendant; another originated in Houston, Texas, but was later removed to California,
the domicile of the defendant; a third case was conducted in Fort Dodge, Iowa; and the fourth case was tried in Grand Rapids, Michigan in May 1960. On motion by the accused in the Grand Rapids case for a change of venue the District Court upheld the constitutionality of 18 U.S.C. §§ 1461 and 1462.
A verdict of guilty and the District Court's ruling on venue were sustained by the Sixth Circuit Court of Appeals.
This historical record would seemingly justify a court in refusing to consider a challenge to the constitutionality of a statute as it might apply to a hypothetical situation. Virginian Ry. Co. v. System Federation, 300 U.S. 515, 57 S. Ct. 592, 81 L. Ed. 789 (1937); Blackmer v. United States, 284 U.S. 421, 442, 52 S. Ct. 252, 76 L. Ed. 375 (1932); Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576, ...