113 F.2d 729 (D.D.C. 1940), 7332, Parmelee v. United States

Docket Nº:7332.
Citation:113 F.2d 729
Case Date:May 14, 1940
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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113 F.2d 729 (D.D.C. 1940)




No. 7332.

United States Court of Appeals, District of Columbia.

May 14, 1940

Rehearing Denied May 12, 1940.

Edmund D. Campbell, of Washington, D.C., for appellant.

David A. Pine, U.S. Atty., and H. L. Underwood and John L. Laskey, Asst. U.

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S. Attys., all of Washington, D.C., for appellee.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate justices.

MILLER, Associate Justice.

The Collector of Customs at the Port of Washington, in the District of Columbia, seized six books, entitled 'Nudism in Modern Life,' which had been imported by Maurice Parmelee via the mails, from England. The United States Attorney filed a libel in the court below seeking the confiscation and destruction of the books. The court determined that they were properly subject to libel and should be destroyed. The applicable statute, 1 so far as pertinent, reads as follows: 'All persons are prohibited from importing into the United States from any foreign country * * * any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material * * * . ' The lower court found as follows:

'4. Upon examination of the book the Court finds nothing in the written text thereof which could be considered obscene or immoral. The case of the Government is predicated upon photographic illustrations which appear at various places in the book.

'5. The illustrations which are asserted to be obscene apparently have no relevancy to the written text at the place in which each of said photographic illustrations is set in the book. The said photographs or illustrations, upon examination, are obscene and within the condemnation of the statute under the authority of which seizure was made and the libel filed.'

On argument, it was conceded by the government that the text of the books and most of the photographs are unobjectionable. All that remains in dispute, therefore, is whether the books are objectionable, within the meaning of the statute, because of the presence therein of three or four photographs in which appear full front views of nude female figures, and two photographs in which nude male and female figures appear together. The photographs complained of are uncolored and apparently unretouched and are approximately 2 1/4 x 3 1/4 inches is size. The human figures which appear therein are approximately 1 1/2 inches in height.

Our decision of the case requires no expression of opinion, judicial or otherwise, concerning the merits or demerits of nudity as it may be practiced or professed. The only question before us is whether the book 'Nudism in Modern Life' is obscene, in the light of the applicable standard intended to be established by the statute. But obscenity is not a technical term of the law and is not susceptible of exact definition. 2 Although the word has been variously defined, 3 the test applied in many of the earlier cases was that laid down by

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Lord Chief Justice Cockburn in Regina v. Hicklin, 4 as follows: ' * * * whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. ' 5 And the rule was applied to those portions of the book charged to be obscene rather than to the book as a whole. 6 But more recently this standard has been repudiated, and for it has been substituted the test a book must be considered as a whole, in its effect, not upon any particular class, but upon all those whom it is likely to reach. 7 Thus considered, obscenity is, as Judge Learned Hand has said, 'a function of many variables, and the verdict of the jury is not the conclusion of a syllogism of which they are to find only the minor premises, but really a small bit of legislation ad hoc, like the standard of care. ' 8 But in every case it is a question of law for the court to determine, in the first instance, whether the challenged publication can have the tendency attributed to it by the government, and it is only when that determination has been made in the affirmative that the jury is called upon to decide whether it has such a tendency in fact. [8a] In our opinion, the book 'Nudism in Modern Life' cannot reasonably be said to fall within the prohibition of the statute.

Probably the fundamental reason why the word obscene is not susceptible of exact definition is that such intangible moral concepts as it purports to connote, vary in meaning from one period to another. 9 It

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is customary to see, now, in the daily newspapers and in the magazines, pictures of modeled male and female underwear which might have been shocking to readers of an earlier era. An age accustomed to the elaborate bathing costumes of forty years ago might have considered obscene the present-day beach costume of halters and trunks. But it is also true that the present age might regard those of 1900 as even more obscene. 10

With such considerations in mind, perhaps the most useful definition of obscene is that suggested in the case of United States v. Kennerley, 11 i.e., that it indicates 'the present critical point in the compromise between candor and shame at which the community may have arrived here and now. ' But when we attempt to locate that critical point in the situation of the present case, we find nothing in the record to guide us except the book itself. The question is a difficult one, as to which the expert opinions of psychologists and sociologists would seem to be helpful if not necessary. Assumptions to the contrary which appear in some of the earlier cases, 12 reveal the profound ignorance of psychology and sociology 13 which prevailed generally, when those opinions were written. More recently, in the cases and textbooks, the desirability and pertinence of such evidence has been suggested. 14 Lacking such assistance in the present case, we can compensate for it in some measure by noticing, judicially, evidence which is thus available to us.

It cannot be assumed that nudity is obscene per se and under all circumstances. Even the application of the narrowest rule would not justify such an assumption. And, from the teachings of psychology 15 and sociology, 16 we know that the contrary

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view is held by social scientists. 17

Nudity in art has long been recognized as the reverse of obscene. 18 Art galleries and art catalogues contain many nudes, ancient and modern. Even such a conservative source book as Encyclopaedia Britannica, contains nudes, full front view, male and female, and nude males and females pictured together and physical contact. 19

The use of nude figures and photographs in medical treatises and textbooks is also commonly practiced today. It was conceded on argument that this, also, constitutes an exception to the earlier prohibition. But this was not always true. In the earlier periods of medical history, censorship of scientific investigation was so restrictive that anatomical drawings alleged to represent the human body were made from studies of animals or upon a basis of pure hypotheses. 20 Later, as indicated by such

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cases as Regina v. Hicklin (1868), 21 and People v. Miller (1884), 22 the old censorship was relaxed to permit the use of such figures and photographs, provided the textbooks and treatises in which they appeared were restricted to use among practitioners and students. 23 No reasonable person at the present time would suggest even that limitation upon the circulation and use of medical texts, treatises and journals. In many homes such books can be found today; in fact standard dictionaries, generally, contain anatomical illustration. It is apparent, therefore, that civilization has advanced far enough, at last, to permit picturization of the human body for scientific and educational purposes. That fact is decisive of the present case. The picturization here challenged has been used in the libeled book to accompany an honest, sincere, scientific and educational study and exposition of a sociological phenomenon and is, in our opinion, clearly permitted by present-day concepts of propriety. 24 There is, perhaps, as great or greater need for freedom of scientific research and exposition in this field as in any other. 25 And, at this point, it may be well to repeat that the

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question is not whether nudity in practice is justifiable or desirable. All would agree that cancer, leprosy, and syphilis are highly undesirable; still, it is recognized, generally, by normal, intelligent persons, that there is need for scientific study, exposition and picturization of their manifestations. 26

The statute involved in the present case was interpreted in United States v. One Book Entitled Ulysses, 27 and the decision in that case is equally applicable here. 'it is settled,' says the court in the Ulysses case, 'that works of physiology, medicine, science, and sex instruction are not within the statute, though to some extent and among some persons they may tend to promote lustful thought. ' It should be equally true of works of sociology, as of physiology, medicine and other sciences-- say nothing of general literature and the arts-- that 'where the presentation, when viewed objectively, is sincere, and the erotic matter is not introduced to promote lust and does not furnish the dominant note of the publication', the same immunity should apply. 28 Cases relied upon by the government, in which publication and distribution were 'wholly for the purpose of profitably pandering to the lewd and lascivious' have no relevancy to the present case. 29

As it is conceded that the entire

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text of 'Nudism in Modern Life' is inoffensive, and that only a few of the twenty-three illustrations are questionable, it is obvious that the latter do not furnish...

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