dissenting.
Petitioner has been sentenced to prison for violating a federal statute enacted in 1873.1 In response to a request, he mailed certain pictures and writings from one place in Iowa to another. The transaction itself offended no one 2 and violated no Iowa law. Nevertheless, because the materials proved "offensive” to third parties who were not intended to see them, a federal crime was committed.
Although the Court’s affirmance of this conviction represents a logical extension of recent developments in this area of the law, it sharply points up the need for a principled re-examination of the premises on which it rests. Because so much has already been written in this area, I shall merely endeavor to identify certain weaknesses in the Court’s “offensiveness” touchstone3 and then to explain why I believe *312criminal prosecutions are an unacceptable method of abating a public nuisance which is entitled to at least a modicum of First Amendment protection.
I
A federal statute defining a criminal offense should prescribe a uniform standard applicable throughout the country. This proposition is so obvious that it was not even questioned during the first 90 years of enforcement of the Comstock Act under which petitioner was prosecuted.4 When the reach of the statute is limited by a constitutional provision, it is even more certain that national uniformity is appropriate.5 Nevertheless, in 1963, when Mr. Chief Justice Warren concluded that *313a national standard for judging obscenity was not provable, he suggested the substitution of community standards as an acceptable alternative.6 He thereby planted the seed which eventually blossomed into holdings such as Miller,'7 Hamling,8 and today’s pronouncement that the relevant standard “is not one than can be defined legislatively.” Ante, at 303.
The conclusion that a uniformly administered national standard is incapable of definition or administration is an insufficient reason for authorizing the federal courts to engage in ad hoc adjudication of criminal cases. Quite the contrary, it is a reason for questioning the suitability of criminal prosecution as the mechanism for regulating the distribution of erotic material.
The most significant reasons for the failure to define a national standard for obscenity apply with equal force to the use of local standards. Even the most articulate craftsman finds it easier to rely on subjective reaction rather than concrete descriptive criteria as a primary definitional source.9 The diversity within the Nation which makes a single standard of offensiveness impossible to identify is also present within each of the so-called local communities in which litigation of this *314kind is prosecuted.10 Indeed, in Miller itself, the jury was asked to apply the contemporary community standard of California. A more culturally diverse State of the Union hardly can exist, and yet its standard for judging obscenity was assumed to be more readily ascertainable than a national standard.
Indeed, in some ways the community standard concept is even more objectionable than a national standard. As we have seen in prior cases, the geographic boundaries of the relevant community are not easily defined, and sometimes appear to be subject to elastic adjustment to suit the needs of the *315prosecutor.11 Moreover, although a substantial body of evidence and decisional law concerning the content of a national standard could have evolved through its consistent use, the derivation of the relevant community standard for each of our countless communities is necessarily dependent on the perceptions of the individuals who happen to compose the jury in a given case.
The question of offensiveness to community standards, whether national or local, is not one that the average juror can be expected to answer with evenhanded consistency. The average juror may well have one reaction to sexually oriented materials in a completely private setting and an entirely different reaction in a social context. Studies have shown that an opinion held by a large majority of a group concerning a neutral and objective subject has a significant impact in distorting the perceptions of group members who would normally take a different position.12 Since obscenity is by no means a neutral subject, and since the ascertainment of a community standard is such a subjective task, the expression of individual jurors’ sentiments will inevitably influence the perceptions of other jurors, particularly those who would normally be in the minority.13 Moreover, because the record *316never discloses the obscenity standards which the jurors actually apply, their decisions in these cases are effectively unreviewable by an appellate court.14 In the final analysis, the guilt or innocence of a criminal defendant in an obscenity trial is determined primarily by individual jurors’ subjective reactions to the materials in question rather than by the predictable application of rules of law.
This conclusion is especially troubling because the same image — whether created by words, sounds, or pictures — may produce such a wide variety of reactions. As Mr. Justice Harlan noted: “[It is] often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because government officials [or jurors] cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” Cohen v. California, 403 U. S. 15, 25. In my judgment, the line between communications which “offend” and those which do not is too blurred to identify criminal conduct. It is also too blurred to delimit the protections of the First Amendment.
*317II
Although the variable nature of a standard dependent on local community attitudes is critically defective when used to define a federal crime, that very flexibility is a desirable feature of a civil rule designed to protect the individual’s right to select the kind of environment in which he wants to live.
In his dissent in Jacobellis v. Ohio, 378 U. S. 184, Mr. Chief Justice Warren reminded us that obscene material “may be proscribed in a number of ways,” id., at 201, and that a lesser standard of review is required in civil cases than in criminal. Moreover, he identified a third dimension in the obscenity determination that is ignored in the Court’s current formulation of the standard:
“In my opinion, the use to which various materials are put — not just the words and pictures themselves — must be considered in determining whether or not the materials are obscene. A technical or legal treatise on pornography may well be inoffensive under most circumstances but, at the same time, ‘obscene’ in the extreme when sold or displayed to children.” Ibid, (footnote omitted).
The standard now applied by the Court focuses its attention on the content of the materials and their impact on the average person in the community. But that impact is not a constant; it may vary widely with the use to which the materials are put. As Mr. Justice Sutherland wrote in a different context, a “nuisance may be merely a right thing in the wrong place,' — like a pig in the parlor instead of the barnyard.” 15 Whether a pig or a picture is offensive is a question that cannot be answered in the abstract.
In Roth v. United States, 354 U. S. 476, 485, the Court held “that obscenity is not within the area of constitutionally protected speech or press.” That holding rests, in part, on *318the assumed premise that all communications within the protected area are equally immune from governmental restraint, whereas those outside that area are utterly without social value and, hence, deserving of no protection. Last Term the Court expressly rejected that premise. Young v. American Mini Theatres, Inc., 427 U. S. 50, 66-71; Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U. S. 748, 771-773. The fact that speech is protected by the First Amendment does not mean that it is wholly immune from state regulation. Although offensive or misleading statements in a political oration cannot be censored, offensive language in a courtroom 16 or misleading representations in a securities prospectus may surely be regulated. Nuisances such as sound trucks17 and erotic displays in a residential area may be abated under appropriately flexible civil standards even though the First Amendment provides a shield against criminal prosecution.
As long as the government does not totally suppress protected speech and is faithful to its paramount obligation of complete neutrality with respect to the point of view expressed in a protected communication, I see no reason why regulation of certain types of communication may not take into account obvious differences in subject matter. See Lehman v. City of Shaker Heights, 418 U. S. 298. It seems to me ridiculous to assume that no regulation of the display of sexually oriented material is permissible unless the same regula*319tion could be applied to political comment.18 On the other hand, I am not prepared to rely on either the average citizen’s understanding of an amorphous community standard or on my fellow judges’ appraisal of what has serious artistic merit as a basis for deciding what one citizen may communicate to another by appropriate means.19
I do not know whether the ugly20 pictures in this record have any beneficial value. The fact that there is a large demand for comparable materials indicates that they do pro*320vide amusement or information, or at least satisfy the curiosity of interested persons.21 Moreover, there are serious well-intentioned people who are persuaded that they serve a worthwhile purpose.22 Others believe they arouse passions that lead to the commission of crimes; if that be true, surely there is a mountain of material just within the protected zone that is equally capable of motivating comparable conduct.23 Moreover, the dire predictions about the baneful effects of these *321materials are disturbingly reminiscent of arguments formerly made about the availability of what are now valued as works of art. In the end, I believe we must rely on the capacity of the free marketplace of ideas to distinguish that which is useful or beautiful from that which is ugly or worthless.24
In this case the petitioner’s communications were intended to offend no one. He could hardly anticipate that they would offend the person who requested them. And delivery in sealed envelopes prevented any offense to unwilling third parties. Since his acts did not even constitute a nuisance, it necessarily follows, in my opinion, that they cannot provide the basis for a criminal prosecution.
I respectfully dissent.
17 Stat. 598, 18 U. S. C. § 1461. The statute “was passed with less than an hour of Congressional debate, and there was no objection to its enactment in either the House or the Senate. Reflecting its origin, the law is still known as the Comstock Act.” F. Schauer, The Law of Obscenity 13 (1976).
It is, of course, possible that the postal inspectors, who had used fictitious names to request the materials, were offended by them. There was, however, no such testimony. Moreover, persons examining materials of this kind as a part of their routine duties must surely develop an insensitivity to them.
Although appeal to the “prurient” interest and “patently offensive” character are identified as separate parts of the legal standard for determining whether materials are obscene, the two concepts overlap to some extent. But whether or not the two standards are different, sexually *312oriented material is constitutionally protected if it is not patently offensive.
In 1962, Mr. Justice Harlan wrote:
“There must first be decided the relevant 'community’ in terms of whose standards of decency the issue must be judged. We think that the proper test under this federal statute, reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency. We need not decide whether Congress could constitutionally prescribe a lesser geographical framework for judging this issue which would not have the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency.” Manual Enterprises, Inc. v. Day, 370 U. S. 478, 488 (footnote omitted).
As Mr. Justice Brennan has written:
“It is true that local communities throughout the land are in fact diverse, and that in cases such as this one the Court is confronted with the task of reconciling the rights of such communities with the rights of individuals. Communities vary, however, in many respects other than their toleration of alleged obscenity, and such variances have never been considered to require or justify a varying standard for application of the Federal Constitution. The Court has regularly been compelled, in reviewing criminal convictions challenged under the Due Process Clause of the Fourteenth Amendment, to reconcile the conflicting rights of the local community which brought the prosecution and of the individual defendant. Such a task is admittedly difficult and delicate, but it is inherent in the Court’s duty of determining whether a particular conviction worked *313a deprivation of rights guaranteed by the Federal Constitution. The Court has not shrunk from discharging that duty in other areas, and we see no reason why it should do so here. The Court has explicitly refused to tolerate a result whereby 'the constioutional limits of free expression in the Nation would vary with state lines,' Pennekamp v. Florida, supra, 328 U. S., at 335; we see even less justification for allowing such limits to vary with town or county lines. We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding.” Jacobellis v. Ohio, 378 U. S. 184, 194-195 (footnote omitted).
Id., at 200-201 (dissenting opinion).
Miller v. California, 413 U. S. 15.
Hamling v. United States, 418 U. S. 87.
Mr. Justice Stewart, concurring in Jacobellis v. Ohio, supra, at 197, wrote that criminal prosecution in the obscenity area is constitution*314ally limited to prosecution of “hard-core pornography.” He went on to note:
“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
The opinion in Miller, supra, at 30-31, assumes that jurors could more easily “draw on the standards of their community” than some “hypothetical and unascertainable 'national standard].’” Yet, that assumption can only relate to isolated communities where jurors are well enough acquainted with members of their community to know their private tastes and values. The assumption does not apply to most segments of our diverse, mobile, metropolitan society. For surely, the standard for a metropolitan area is just as “hypothetical and unascertainable” as any national standard. For a juror, it would be almost as hard to determine the community standard for any large urban area as it would be to determine a national standard. Metropolitan areas typicaHy contain some commercial districts devoted to the exploitation of sex, in bookshops, adult theaters, nightclubs, or burlesque houses; a juror might have seen respectable citizens frequenting the entertainments of such areas and therefore conclude that the community standard was one of “anything goes.” Another juror might predicate his standard on residential enclaves which include nothing even closely resembling an adult bookstore, and decide that such an area reflects the proper standard. Under that test, the juror would probably conclude that any magazine sold from under the local drugstore counter must be obscene because its presence on the magazine rack might offend customers. A third juror might try to apply a hybrid standard.
See Hamling v. United States, supra, at 142-145 (Brennan, J., dissenting); United States v. McManus, 535 F. 2d 460 (CA8 1976), cert. denied, 429 U. S. 1052. Edelstein & Mott, Collateral Problems in Obscenity Regulation: A Uniform Approach to Prior Restraints, Community Standards and Judgment Preclusion, 7 Seton Hall L. Rev. 543, 566-571 (1976).
Rosenblatt & Rosenblatt, Six Member Juries in Criminal Cases: Legal and Psychological Considerations, 47 St. John’s L. Rev. 615, 631-632 (1973); Asch, Effects of Group Pressure upon the Modification and Distortion of Judgments, reprinted in D. Cartwright, Group Dynamics 189-200 (1960).
A juror might well find certain materials appealing and yet be unwilling to say so. He may assume, without necessarily being correct, that his reaction is aberrant and at odds with the prevailing community view, *316especially if the first members of the jury to speak indicate that they consider the material offensive. Perhaps one reason that the Comstock Act was passed unanimously, see n. 1, supra, is that it is much more popular to be against sin than to be tolerant of it.
The introduction of evidence on the question of contemporary community standards will rarely enable an appellate judge to differentiate between the jurors’ own reactions to the materials in question and the reactions of the average resident of the community. For instance, in the present case, the defendant entered into evidence as exhibits materials which were freely and lawfully available at stores in Iowa. These exhibits were more salacious, lewd, and open in their treatment of sex than were the materials upon which the defendants were convicted. Yet a reviewing court could not use this evidence to overturn a jury verdict, for the jury’s view may quite correctly have been that these materials, although freely available, were appreciated only by a deviant minority of the community and did not conform to the community standard. Testimony of experts would have to be similarly discounted.
Euclid v. Ambler Realty Co., 272 U. S. 365, 388.
In deciding what comments on litigation may be punished, the content of the comment, whether it is uttered inside or outside the courtroom, and whether it concerns pending litigation, all have relevance. See In re Little, 404 U. S. 553; Pennekamp v. Florida, 328 U. S. 331; Bridges v. California, 314 U. S. 252. See also In re Dellinger, 502 F. 2d 813, 815 (CA7 1974), cert. denied sub nom. Dellinger v. United States, 420 U. S. 990; Theriault v. United States, 481 F. 2d 1193, 1196 (CA5 1973), cert. denied, 414 U. S. 1114. Such factors are always relevant in applying the clear-and-present-danger test: Only the combination of content (the word “fire”) and place (a crowded theater) allows prohibition in Mr. Justice Holmes’ famous example, Schenck v. United States, 249 U. S. 47, 52.
See Saia v. New York, 334 U. S. 558: Kovacs v. Cooper, 336 U. S. 77.
This assumption must underlie the suggestion in Miller that a national standard would require that “the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” 413 U. S., at 32 (footnote omitted). That suggestion misreads the First Amendment in at least two ways. The constitutional protection of the speaker’s right to communicate does not deprive the local community of all authority to regulate the time, place, and manner of communication; Nevada’s approval of public displays would not necessarily require Maine or Mississippi to approve use of identical means of expression. More fundamentally, the constitutional inquiry is not confined to the question of what an unwilling recipient must accept; rather, the critical First Amendment question in this kind of case involves the interested individual’s right of access to materials he desires. See the passage from Kleindienst v. Mandel, 408 U. S. 753, 762-763, quoted in Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U. S. 748, 757, which recognizes that the First Amendment necessarily protects the right to “receive information and ideas.”
As Mr. Justice Douglas once noted: “The First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democracy.” Dennis v. United States, 341 U. S. 494, 590 (dissenting opinion).
if First Amendment protection is properly denied to materials that are “patently offensive” to the average citizen, I question whether the element of erotic appeal is of critical importance. For the average person may find some portrayals of violence, of disease, or of intimate bodily functions (such as the birth of a child) equally offensive — at least when they are viewed for the first time. It is noteworthy that one of the examples of an unprotected representation identified by the Court, ante, at 301 n. 8, surely would have no erotic appeal to the average person.
As Mr. Justice Harlan wrote in Cohen v. California, 403 U. S. 15, 25-26:
“Additionally, we cannot overlook the fact . . . that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.”
To a similar effect, this Court wrote in Winters v. New York, 333 U. S. 507, 510:
“We do not accede to appellee’s suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.”
See the Final Report of the President’s Commission on Obscenity and Pornography (1970).
Anthony Comstock, who is given credit for the enactment of the statute involved in this case, understood this point. He wrote: “ ‘No embellishment of art can rob lust of its power for evil upon the human nature,’” J. Kilpatrick, The Smut Peddlers 42 (1960). According to Professor Schauer “[a]mong the objects of Comstock’s scorn were light literature, pool halls, lotteries, gambling dens, popular magazines, and weekly newspapers. Artistic motive was irrelevant.” The Law of Obscenity 12 n. 51 (1976).
Mr. Justice Holmes has written:
“[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” Abrams v. United States, 250 U. S. 616, 630 (dissenting opinion).