The Supreme Court: Naked in Nashville

Is it a crime for a married couple to receive nude photographs of themselves in the U.S. mail? Last week that question got the Supreme Court involved in one of its oddest obscenity decisions yet.

In Nashville, Tenn., in 1964, William and Dorothy Redmond read a magazine ad for a North Carolina correspondence club called "Identification" that appealed to "broadminded persons." Curious to find out whether they filled the bill, the Redmonds answered the ad and learned that the club's services included developing films of nude members and introducing like-minded couples. The Redmonds photographed each other, took shots of their genitalia, shipped the undeveloped film to North Carolina, and got back eleven assorted prints and negatives.

Personal Use. Soon after the pictures arrived, U.S. postal inspectors raided Identification and seized the club's membership lists. The Redmonds were arrested and charged with having tainted the mails, in violation of a federal anti-obscenity statute that carries a maximum rap of five years and $5,000 for the first offense. Found guilty, William was sentenced to nine months in prison, Dorothy to six.

After a U.S. appeals court upheld their convictions last January, the Redmonds appealed to the Supreme Court on the ground that "receipt of obscenity for personal use" has never before been labeled a crime under the socalled Comstock Statute (Title 18, Section 1461, U.S. Code), which is now 94 years old. That statute, argued the Redmonds' lawyers, was "directed solely at those engaged in the dissemination of obscenity to others." To apply it to private recipients, who "obviously outnumber disseminators many times over," would involve the Government in enormous enforcement problems.

Private Correspondence. The Justice Department was well aware of that danger. Prior to 1964, the Post Office had successfully prosecuted people for mailing obscene personal letters. Unhappy with such censorship, the Justice Department ordered all U.S. attorneys to forget about private correspondence except in "aggravated" obscenity cases involving repeated offenders.

Since the Redmonds were definitely not repeaters, Solicitor General Thurgood Marshall asked the Supreme Court to reverse their convictions "in the interests of justice." Last week the court assented in a brief, unsigned order. In a curt note, Justices Potter Stewart, Hugo Black and William O. Douglas added that they "would reverse this conviction, not because it violates the policy of the Justice Department, but because it violates the Constitution."