In Grimm v. United States, 156 U.S. 604 (1895), the Supreme Court upheld on statutory grounds a conviction for using the mail to convey information about where to purchase pornographic pictures. Despite the obvious implications for freedom of expression, the Court did not specifically mention the First Amendment in its opinion.
Grimm sent letter saying where pornography could be purchased
William Grimm had been indicted under an 1888 revision of the Comstock Act of 1873. Using an assumed name, a postal inspector had written to Grimm, a photographer and owner of an art studio, for lewd pictures, and he had responded by affirming that he had such pictures for sale.
His case is one of what Jack B. Harrison (1993) calls the Decoy Letters Cases. The others are Goode v. United States (1895), Andrew v. United States (1896), Rosen v. United States (1896), and Price v. United States (1897).
Court said letter itself was not obscene
Writing for a unanimous court, Justice David J. Brewer noted that the law did not penalize “the possession of obscene, lewd, or lascivious pictures” and that the letter Grimm had mailed was not itself obscene.
He rejected Grimm’s argument that the indictment should have described the obscene materials in greater detail. He observed that even in cases where the offense is that of sending obscene materials through the mail, the Court had ruled that “it is unnecessary to spread the obscene matter in all its filthiness upon the record; it is enough to so far describe it that its obnoxious character may be discerned.”
Court denied entrappment and upheld conviction
Brewer further denied that Grimm had been entrapped. Although Robert W. McAffee, the person who had written to Grimm under assumed names, was a post office inspector and an agent of the Western Society for the Suppression of Vice, his purpose had not been “to induce or solicit the commission of a crime” but “to ascertain whether the defendant was engaged in an unlawful business.” Brewer cited precedents related to illegal gaming and the purchase of lottery tickets to buttress his arguments. He concluded that the defendant violated the law when “he placed letters in the post office which conveyed information as to whether obscene matter could be obtained” regardless of the recipient.
By contrast, in Jacobson v. United States (1992), the Supreme Court ruled that the government had entrapped a defendant to whom it sent repeated mailings advertising materials whose purchase would violate the Child Protection Act of 1984. United States v. Williams (2008) addresses a similar issue, albeit involving charges of “pandering” of child pornography on the Internet.