United States v. William Jack Fesenmeyer

William Jack Fesenmeyer was convicted of transporting in interstate commerce obscene matter for sale and distribution ( 18 U.S.C. § 1465 ). On this appeal he argues that since, as the Supreme Court held in Stanley v. Georgia, 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (1969), a person enjoys a right to receive and possess obscene material, he necessarily “holds a correlative right to make [such material] available” and hence the federal statute is likewise constitutionally infirm.

Such a reading gives Stanley “too wide a sweep.” United States v. Reidel, 402 U.S. 351, 355 , 91 S.Ct. 1410, 1412 , 28 L.Ed.2d 813 (1971), reh. denied, 403 U.S. 924 , 91 S.Ct. 2223 , 29 L.Ed.2d 703 . As the Court explained in Reidel , a decision rendered at approximately the time that Fesenmeyer was convicted, “[w]hatever the scope of the ‘right to receive’ referred to in Stanley , it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here — dealings which Roth [Roth v. United States, 354 U.S. 476 ( 77 S.Ct. 1304 , 1 L.Ed.2d 1498 ) (1957)] held unprotected by the First Amendment.” Id.

Judgment affirmed.