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er hah, MR hagte Tose wa ee TH tage ge . a oy ety NY OR. USWA A asp ER The Government, in certain portions of its Memo- randum of Law, talks of, and I find two cases?” which have described material as being "obscene per se." But I cannot understand this to mean that the material was held to have & prurient appeal without reference to any beholder. I take it to mean that in the cases under decision there was not shown 39 gnited states v. Rebhuhn, 109 F.2d 522 (24 Cir.), cert. denie Se ; United States v. Newman, ° 2d Cir. 1944). But the court in Re also paid:"Most of the books could lawfully have passe the mails, if directed to those who would be likely to use them for the purposes for which they were written, though that was not true of one or two; for example, of that entitled, *Sex Life in England', which was a collection of short and condensed erotic bits, culled from various sources, and plainly put together as pornography .... (Wie will assume ... t the works themselves had a place, though a limited one, in anthro- pology and in psychotherapy. They might also have been law- fully sold to laymen who wished seriously to study the sexual practices of savage or barbarous peoples, or sexual aberrations; in other words, most of them were not obscene per se. In several decisions we have held that the statute does not in all circumstances forbid the dissemination of such publications, and that in the trial of an indictment the prosecution must prove that the accused has abused a conditional privilege, which’ the law gives him. [Citing Dennett, Wysees, and Levine. | However, in the case at bar, the prosecution succeeded upon that issue, when it showed that the defendants had indiscrimi-~ nately flooded the mails with advertisements, plainly designed merely to catch the prurient, though uncer the guise of dis- tributing works of scientific or literary merit. We do not mean that the distributor of such works is charged with a duty to insure that they shall reach only proper hands, nor need we easy What care he must use, for these defendants exceeded any Possible limits; the circulars were no more than appeals to the Salaciously disposed, and no sensible jury could have failed to pierce the fragile screen, set up to cover that purpose." | 109 F.2d 512, 514-5 (2a Cir. 1940). . - 19 -