# United States v. Alpers/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Black
United States Supreme Court
338 U.S. 680
United States v. Alpers
Argued: and Submitted Dec. 4, 1949. --- Decided: Feb 6, 1950
The question in this case is whether the shipment of obscene phonograph records in interstate commerce is prohibited by § 245 of the Criminal Code, which makes illegal the interstate shipment of any 'obscene * * * book, pamphlet, picture, motionpicture film, paper, letter, writing, print, or other matter of indecent character.' Respondent was charged by an information in three counts with knowingly depositing with an express company for carriage in interstate commerce packages 'containing certain matter of an indecent character, to-wit: phonograph records impressed with recordings of obscene, lewd, lascivious and filthy language and obscene, lewd, lascivious and filthy stories.' Respondent, having waived jury trial, was found guilty by the District Court on two counts and was assessed a fine on each. The Court of Appeals reversed, 9 Cir., 175 F.2d 137. We granted certiorari to examine the applicability of § 245 of the Criminal Code to the facts of this case. 338 U.S. 813, 70 S.Ct. 75.
The pertinent provisions of the statute are as follows: 'Whoever shall * * * knowingly deposit or cause to be deposited with any express company or other common carrier (for carriage in interstate commerce) any obscene, lewd, or lascivious, or any filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both.' 41 Stat. 1060, 18 U.S.C. § 396, now 18 U.S.C. § 1462, 18 U.S.C.A. § 1462.
It is conceded that the phonograph records were obscene and indecent. The only question is whether they come within the prohibition of the statute.
We are aware that this is a criminal statute and must be strictly construed. This means that no offense may be created except by the words of Congress used in their usual and ordinary sense. There are no constructive offenses. United States v. Resnick, 299 U.S. 207, 210, 57 S.Ct. 126, 127, 81 L.Ed. 127. The most important thing to be determined is the intent of Congress. The language of the statute may not be distorted under the guise of construction, or so limited by construction as to defeat the manifest intent of Congress. United States v. Raynor, 302 U.S. 540, 552, 58 S.Ct. 353, 358, 82 L.Ed. 413.
In interpreting the statute as applied to this case the Court of Appeals invoked the rule of ejusdem generis. Since the words 'book, pamphlet, picture, motion-picture film, paper, letter, writing, print' appearing in the statute refer to objects comprehensible by sight only, the court construed the general words 'other matter of indecent character' to be limited to matter of the same genus. The Court of Appeals held phonograph records without the statute, so interpreted, since phonograph records are comprehended by the sense of hearing.
When properly applied, the rule of ejusdem generis is a useful canon of construction. But it is to be resorted to not to obscure and defeat the intent and purpose of Congress, but to elucidate its words and effectuate its intent. It cannot be employed to render general words meaningless. Mason v. United States, 260 U.S. 545, 554, 43 S.Ct. 200, 202, 67 L.Ed. 396. What is or is not a proper case for application of the rule was discussed in Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 396, 80 L.Ed. 522. In that case a bandit and a companion had kidnaped two police officers for the purpose of avoiding arrest and had transported them across a state line. The defendant was convicted of kidnaping under a federal statute which made it an offense to transport across state lines any person who had been kidnaped 'and held for ransom or reward or otherwise.' The police officers had been held not for ransom or reward but for protection, and it was contended that the words 'or otherwise' did not cover the defendant's conduct, since under the rule of ejusdem generis, the general phrase was limited in meaning to some kind of monetary reward. This Court rejected such limiting application of the rule, saying: 'The rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified; but it may not be used to defeat the obvious purpose of legislation. And, while penal statutes are narrowly construed, this does not require rejection of that sense of the words which best harmonizes with the context and the end in view.' 297 U.S. at page 128, 56 S.Ct. at page 397.
We think that to apply the rule of ejusdem generis to the present case would be 'to defeat the obvious purpose of legislation.' The obvious purpose of the legislation under consideration was to prevent the channels of interstate commerce from being used to disseminate any matter that, in its essential nature, communicates obscene, lewd, lascivious or filthy ideas. The statute is more fully set out in the margin. It will be noted that Congress legislated with respect to a number of evils in addition to those proscribed by the portion of the statute under which respondent was charged. Statutes are construed in their entire context. This is a comprehensive statute, which should not be constricted by a mechanical rule of construction.
We find nothing in the statute or its history to indicate that Congress intended to limit the applicable portion of the statute to such indecent matter as is comprehended through the sense of sight. True, this statute was amended in 1920 to include 'motion-picture film.' We are not persuaded that Congress, by adding motion-picture film to the specific provisions of the statute, evidenced an intent that obscene matter not specifically added was without the prohibition of the statute; nor do we think that Congress intended that only visual obscene matter was within the prohibition of the statute. The First World War gave considerable impetus to the making and distribution of motion-picture films. And in 1920 the public was considerably alarmed at the indecency of many of the films. It thus appears that with respect to this amendment, Congress was preoccupied with making doubly sure that motion-picture film was within the Act, and was concerned with nothing more or less.
Upon this record we could not hold, nor do we wish to be understood to hold, that the applicable portion of the statute is all-inclusive. As we have pointed out, the same statute contains other provisions relating to objects intended for an indecent or immoral use. But the portion of the statute here in issue does proscribe the dissemination of matter which, in its essential nature, communicates obscene ideas. We are clear therefore that obscene phonograph records are within the meaning of the Act. The judgment of the Court of Appeals is reversed, and the judgment of the District Court is affirmed.
Reversed.
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice JACKSON concur, dissenting.

## Notes

* ↑ See Horack, The Disintegration of Statutory Construction, 24 Ind.L.J. 335, 343-344 (1949).
* ↑ 'Whoever shall bring or cause to be brought into the United States, or any place subject to the jurisdiction thereof, from any foreign country, or shall therein knowingly deposit or cause to be deposited with any express company or other common carrier (for carriage in interstate or foreign commerce) any obscene, lewd, or lascivious, or any filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character, or any drug, medicine, article, or thing designed, adapted, or intended for preventing conception, or producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of the hereinbefore mentioned articles, matters, or things may be obtained or made; or whoever shall knowingly take or cause to be taken from such express company or other common carrier any matter or thing the depositing of which for carriage is herein made unlawful, shall be fined not more than $5,000 or imprisoned not more than five years, or both.' 18 U.S.C. § 396, now 18 U.S.C. § 1462, 18 U.S.C.A. § 1462.
* ↑ See The Motion Picture Industry, 254 Annals of the American Academy of Political and Social Science, pp. 7-9, 140, 155, 157 (1947).
* ↑ H.R.Rep.No.580, 66th Cong., 2d Sess. (1920); S.Rep.No.528, 66th Cong., 2d Sess. (1920); 59 Cong.Rec. 2178-2179, 7162, 7297, 8280, 8334 (1920).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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