A narrowly divided court overturned the conviction of a Nebraska man for receiving child sexual abuse material through the mail, ruling that postal inspectors had implanted a desire to do so through repeated written entreaties.

[4] Until the late 1970s, there were no federal laws specifically addressing the production, distribution or possession of child sexual abuse material (CSAM), and it was readily available to those who sought it.

Media exposés and popular outrage caused Congress to pass by unanimous vote the Protection of Children Against Sexual Exploitation Act of 1977 (SEOC), which criminalized the production and sale of child pornography.

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.

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[10] although he said he had never had relations with men.

In May 1986, they sent him mail from another fictitious organization, "Midlands Data Research", which was for those who "believe in the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite [sic] age".

Those were renewed in March 1987 when the United States Customs Service sent similar exploratory material, supposedly from Canada, to Jacobson and others on the USPS's list, and he responded, placing an order that was never filled.

He had to sell his share of the family farm to his sister to pay his legal bills, and was dismissed from his job driving a school bus in Newman Grove even though there was no evidence he had ever approached children sexually.

[18] Judge George G. Fagg said in dissent that his colleagues had "declared war on the government's power to initiate undercover investigations" and that reasonable suspicion need not be present for such operations to occur.

[19] He would be successful after federal prosecutors appealed for an en banc rehearing by the entire court, reiterating that point for an eight-judge majority and saying that unless Jacobson could demonstrate that a specifically protected right had been violated by the investigation, the conviction should stand.

[21] John Paul Stevens, Associate Justice of the Supreme Court supposedly picked Jacobson's case out of a pile of "hopeless" certiorari petitions.

The Sorrells court grounded the entrapment defense in what has since been termed the "subjective" test, in which the prosecution must overcome it by showing the defendant had a "predisposition" to commit the crime in any event.

Civil liberties advocates including the ACLU supported him, worried about what they considered as dangerous growth of government police powers during the administrations of Reagan and Bush, when law enforcement were alleged to have cracked down on drugs as well as pornography distribution at the behest of the Religious Right.

A group of conservative Republicans in both houses of Congress, including Newt Gingrich, Dick Armey, Henry Hyde and Rick Santorum, and the National Center for Missing and Exploited Children both argued for affirming the conviction, indicating the invaluable nature of undercover investigations in fighting CSAM, worrying that requiring reasonable suspicion beforehand could make such operations impossible.

In his brief and at oral argument, he said that a mere stated interest in sex among young men did not rise to a level of proving predisposition, that the government should have had evidence in hand that Jacobson was actually willing to violate the law to do so.

(Kenneth Starr, then Solicitor General, had maintained in the government's brief opposing certiorari that his prior purchase of the Bare Boys magazines was all the proof it needed, even if the action were legal at the time.

[30]) Pressed on other undercover investigative techniques, he admitted that a government-run pawn shop would be a permissible way to apprehend thieves despite a lack of evidence of predisposition because the crimes might well have occurred prior to any contact with the government or its operatives.

During oral argument, Justice Antonin Scalia responded to this by suggesting that some interests a person might express, such as recreational drugs, signified a willingness to violate social norms regardless of whether the behavior was illegal or not.

At one point, trying to argue that Jacobson did not have access to the defense of entrapment by estoppel (where the government persuades an actor that it is legal to do something, only to prosecute them for it), Scalia told Larkin he'd lost him.

It has been suggested that Thomas, who later established a reputation for allowing wide latitude to law enforcement similar to other contemporary Republican appointees, was especially sensitive at that time to Jacobson's situation due to the sexual harassment allegations raised by Anita Hill during his own recent confirmation hearings.

[32] Justice David Souter later provided the swing vote, and opinions that White and Sandra Day O'Connor had already begun drafting had to be rewritten to represent the changed outcome of the case.

The evidence that petitioner was ready and willing to commit the offense came only after the Government had devoted 21⁄2 years to convincing him that he had or should have the right to engage in the very behavior proscribed by law.White also dismissed the notion that his responses to the surveys he was sent proved he was willing to order child porn illegally, saying they only indicated "a predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations ... petitioner's responses hardly support an inference that he would commit the crime of receiving child pornography through the mails".

[36] "When the Government's quest for convictions", he concluded, "leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene.

"[38] O'Connor made two arguments for the dissenting justices: that predisposition was proven by the fact that Jacobson had ordered materials both times he was actually solicited, and that the Court had usurped the jury's rightful role in deciding whether he was entrapped.

In short, the Court's opinion could be read to prohibit the Government from advertising the seductions of criminal activity as part of its sting operation, for fear of creating a predisposition in its suspects.She scoffed at White's claim that the calls to activism were possibly instrumental in creating a predisposition to offend: "The most one finds is letters advocating legislative action to liberalize obscenity laws, letters which could easily be ignored or thrown away ...

[2] Editorialists at newspapers around the country – the Times,[43] the Chicago Tribune,[44] and the Washington Post[45] – praised the court's decision, as did Jacobson's hometown paper, the Omaha World-Herald.

[46] Columnists on both sides of the political spectrum, from Clarence Page[47] to William Safire[48] joined in celebrating his victory and criticizing the excessive zeal of the postal inspectors.

"... (W)hen the State gets behind a moral panic, no one is safe," wrote Bob Chatelle of the political issues committee of the National Writers' Union, indicating other zealous prosecutions of people with no demonstrable interest in CSAM who had nevertheless fallen afoul of newer laws by taking or possessing pictures of naked children with no apparent sexual content.

Like Jacobson, his name had been on the mailing list of a pornography distributor, and despite neither having a criminal record nor any interest in CSAM he was relentlessly solicited, including letters from the same "Carl Long".

Later versions of the Attorney General's Guidelines on FBI Undercover Operations, much emulated by other federal agencies, show some changes in language from those published before Jacobson.