## Facts

- Lew Rosen, a New York publisher, was charged with knowingly depositing in the U.S. mails a periodical alleged to be “obscene, lewd, and lascivious,” mailed in a wrapper from New York to an addressee in New Jersey.
- The prosecution proceeded under Rev. Stat. § 3893, which treated specified obscene publications as nonmailable and criminalized knowingly depositing such matter for mailing.
- The indictment identified the publication by title and issue (“Tenderloin Number, Broadway”) and alleged it contained obscene and indecent matter, but did not reproduce the content in the charging document.
- Rosen went to trial without filing a pretrial demurrer or motion to quash challenging the indictment’s specificity.
- A jury convicted Rosen; post-trial motions for a new trial and in arrest of judgment (including claims that scienter was not properly charged) were denied.
- Rosen was sentenced to 13 months’ imprisonment at hard labor and a $1 fine and sought Supreme Court review by writ of error.

## Issues

1. Whether the indictment satisfied the Sixth Amendment requirement that the accused be informed of the nature and cause of the accusation when it did not set out the allegedly obscene content verbatim.
2. Whether the indictment was defective for failing expressly to allege Rosen’s knowledge of the contents of the mailed publication.
3. Whether liability under Rev. Stat. § 3893 required proof that the defendant subjectively believed the material was obscene.
4. Whether the trial court improperly invaded the jury’s role in its instructions concerning the character of the publication and the obscenity determination.

## Decision

- The Supreme Court affirmed the conviction.
- The Court held the indictment constitutionally sufficient because it described the offense with reasonable certainty, enabling defense preparation and protection against double jeopardy, even though it omitted the obscene text.
- The Court held the indictment adequately charged scienter by alleging Rosen “unlawfully, willfully, and knowingly” deposited the identified publication and by treating knowledge of contents as implied by the pleading.
- The Court held the offense is complete if the material is in fact obscene and is knowingly mailed by one who knew or had notice of its contents; the defendant’s personal view of obscenity is not determinative.
- The Court found no reversible error in the jury instructions where the evidence was clear and uncontradicted and the court instructed on the legal consequences of the facts.

## Legal Principles

- The Sixth Amendment notice requirement is satisfied if an indictment states the crime with reasonable certainty sufficient to permit a defense and to bar a second prosecution for the same offense; verbatim inclusion of obscene matter is not required when its inclusion would be improper for court records.
- Where greater detail is needed to prepare a defense in an obscenity mailing prosecution, the defendant may seek a bill of particulars before trial, subject to the trial court’s discretion.
- Under Rev. Stat. § 3893, culpability turns on (1) the objective obscene character of the material and (2) the defendant’s knowledge or notice of the material’s contents at the time of mailing; subjective belief about whether the material is obscene does not negate liability.
- Obscenity may be evaluated under a tendency-to-corrupt standard associated with the then-prevailing Hicklin formulation.
- A trial court may instruct the jury on applicable legal principles without usurping the jury’s function when the evidence on a point is clear and uncontradicted and the remaining question is one of law.

## Conclusion

The Court upheld Rosen’s conviction for mailing obscene matter, ruling that the Constitution does not require an indictment to reproduce obscene content if the charge is otherwise stated with reasonable certainty, and that the statute is violated when objectively obscene material is knowingly mailed by someone aware of its contents, regardless of the sender’s personal belief about obscenity.


Rosen v. United States, 161 U.S. 29 (1896)