Jacobson v. United States, 503 U.S. 540 (1992), is a case decided by the United States Supreme Court regarding the criminal procedure topic of entrapment. A narrowly divided court overturned the conviction of a Nebraska man for receiving child pornography through the mail, ruling that postal inspectors had implanted a desire to do so through repeated written entreaties.
It was the first time the court had considered an entrapment case from outside the realm of controlled-substance enforcement, or one involving conduct that had only recently been criminalized. By relying exclusively on whether the defendant had a predisposition to commit the crime, the court appeared to have finally resolved a lingering issue in its previous decisions on the subject.
The decision was seen as a rare triumph for defendants before a conservative court that frequently sided with prosecutors. Guidelines for federal law enforcement agents were changed in its wake, and it was described as having brought entrapment "back from the dead."
Background of the case
US anti-child pornography legislation and early cases
Until the late 1970s, there were no federal laws specifically addressing the production, distribution or possession of child pornography, and it was readily available to those who sought it. While some was imported from European countries where it was produced, there was also a domestic industry.
Media exposés and popular outrage led Congress to pass by unanimous vote the Sexual Exploitation of Children Act of 1977, which criminalized the production and sale of child pornography. This act was signed into law by President Jimmy Carter on February 6, 1978. The legislation was supported by a unanimous decision of the Supreme Court in New York v. Ferber, , that images of children need not meet legal definitions of obscenity to be prohibited by the government, since the state's interest in protecting children from harm trumped First Amendment rights in this instance.
Shortly thereafter, an update to the SEOC Act, the Child Protection Act of 1984, made it illegal to purchase pornographic materials depicting minors through the mail, or possess them, on the grounds that it encouraged child sexual abuse. While popular with voters, civil liberties advocates warned that the expanded scope of these laws could result in prosecutions of entirely innocent people who had little or nothing to do with the child-porn industry, such as parents taking photos or videos of their children in the nude. Nevertheless, investigators forged ahead and had, by the mid-1980s, shut down almost all domestic child-porn production. The government itself was thereafter the biggest marketer, in the form of materials it created to tempt buyers.
Investigation and arrest of Keith Jacobson
In January 1985 inspectors for the United States Postal Service (USPS) in the Great Plains states began "Project Looking Glass", a sting operation under the newly enacted Child Protection Act of 1984, which made it illegal to send pictures of nude minors through the mail, even for noncommercial purposes (previously, only those who intended to resell them could be prosecuted). Ray Mack, the inspector in charge, meant it to be primarily an intelligence-gathering operation, a way to keep tabs on producers and distributors. It sent mail to those it had known to have ordered such materials while they were legal. Among them were Keith Jacobson, a bachelor 56-year-old U.S. Army retiree turned farmer living with his elderly parents in Newman Grove, Nebraska, who would later describe himself as bisexual although he said he had never had relations with men. Jacobson had, the previous year, ordered two magazines entitled Bare Boys I and Bare Boys II from Electric Moon, an adult bookstore in San Diego, California, that had been raided and shut down.
USPS investigators decided to send him a letter from a fictitious organization, the "American Hedonist Society", which supposedly sought to lobby for "the right to read what we desire, the right to discuss similar interests with those who share our philosophy, and finally that we have the right to seek pleasure without restrictions being placed on us by outdated puritan morality." Included was a questionnaire attempting to gauge the respondent's interest in various paraphilias, including pedophilia and ephebophilia. Jacobson indicated an "above average" interest in the latter, especially between males, but also stated he was opposed to the former. The USPS decided he was not a promising target and left him alone.