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First Amendment Library:
Sam Rosenwein


391 U.S. 462 (1968) RABECK v. NEW YORK. No. 611. Supreme Court of United States. Decided May 27, 1968. APPEAL FROM THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. Stanley Fleishman, Osmond K. Fraenkel, and Sam Rosenwein for appellant. Isidore Dollinger and Daniel J. Sullivan for appellee. PER CURIAM. Appellant,… Read more


Appellant, the proprietor of a bookstore, was convicted in a California Municipal Court under a Los Angeles City ordinance which makes it unlawful "for any person to have in his possession any obscene or indecent writing. [or] book . . . [i]n any place of business where . . . books . . . are sold or kept for sale."[1] The offense was defined by the Municipal Court, and by the Appellate *149 Department of the Superior Court,[2] which affirmed the Municipal Court judgment imposing a jail sentence on appellant, as consisting solely of the possession, in the appellant's bookstore, of a certain book found upon judicial investigation to be obscene. The definition included no element of scienter—knowledge by appellant of the contents of the book—and thus the ordinance was construed as imposing a "strict" or "absolute" criminal liability.[3] The appellant made timely objection below that if the ordinance were so construed it would be in conflict with the Constitution of the United States. This contention, together with other contentions based on the Constitution,[4] was rejected, and the case comes here on appeal. 28 U. S. C. § 1257 (2); 358 U. S. 926.


Section 1461 of Title 18, U. S. C., prohibits the knowing use of the mails for the delivery of obscene matter.[1] The issue presented by the jurisdictional statement in this case is whether § 1461 is constitutional as applied to the distribution of obscene materials to willing recipients who state that they are adults. The District Court held that it was not.[2] We disagree and reverse the judgment.