208 F.2d 142 (9th Cir. 1953), 13227, Besig v. United States

Docket Nº:13227.
Citation:208 F.2d 142
Case Date:October 23, 1953
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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208 F.2d 142 (9th Cir. 1953)




No. 13227.

United States Court of Appeals, Ninth Circuit.

October 23, 1953

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George Olshausen, San Francisco, Cal., for appellant.

Lloyd H. Burke, U.S. Atty., Charles Elmer Collett, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before STEPHENS, ORR and POPE, Circuit Judges.

STEPHENS, Circuit Judge.

Two books entitled respectively 'Tropic of Cancer' and 'Tropic of Capricorn', which were written by Henry Miller and were printed in Paris, were intercepted at an American port of entry and libeled

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under Section 1305(a) of Title 19 U.S.C.A. 1 as obscene. The district court found them to be obscene and ordered them destroyed. Besig, owner of the books, is here appealing upon the ground that neither of the two books, which are commonly referred to together as 'The Tropics', is obscene.

Since all of the evidence is in writing, we review and weigh the evidence, though with due regard to the conclusions of the trial court. 2

We note in the margin 3 the Funk & Wagnalls New Standard Dictionary and Webster's New International Dictionary definitions of the word 'obscene'.

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The word 'obscene' is not uncommon and is used in English and American speech and writings as the word symbol for indecent, smutty, lewd or salacious reference to parts of the human or animal body or to their functions or to the excrement therefrom. Each of The Tropics is written in the composite style of a novel-autobiography, and the author as a character in the book carries the reader as though he himself is living in disgrace, degradation, poverty, mean crime, and prostitution of mind and body. The vehicle of description is the unprintable word of the debased and morally bankrupt. Practically everything that the world loosely regards as sin is detailed in the vivid, lurid, salacious language of smut, prostitution, and dirt. And all of it is related without the slightest expressed idea of its abandon. Consistent with the general tenor of the books, even human excrement is dwelt upon in the dirtiest words available. The author conducts the reader through sex orgies and perversions of the sex organs, and always in the debased language of the bawdy house. Nothing has the grace of purity or goodness. These words of the language of smut, and the disgraceful scenes, are so heavily larded throughout the books that those portions which are deemed to be of literary merit do not lift the reader's mind clear of their sticky slime. And it is safe to say that the 'literary merit' of the books carries the reader deeper into it. For this reason, The Tropics are far more dangerous than 'confessions of a Prostitute' which was the subject of our opinion in Burstein v. United States, 9 Cir., 1949, 178 F.2d 665. There, the scenes depicted are obscene because of the scene itself which in its stark ugliness might well repel many. The Tropics lure on with the cleverness of scene, skillfulness of recital, and the use of worse than gutter words. All of this is sought to be justified through the sophistry, as the trial judge, Honorable Louis E. Goodman, put it, of 'confession and avoidance'. 4 It is claimed that they truthfully describe a base status of society in the language of its own iniquities. And that, since we live in an age of realism, obscene language depicting obscenity in action ceases to be obscenity.

Whether the moral conventions should be flaunted in the cause of frankness, art, or realism, we have no occasion to decide. That question is for the policy branches of the government. Nor do we understand that we have the legal power to hold that the statute authorizing the seizure of obscene books is inapplicable to books in which obscenity is an integral part of a literary work. So that obscenity, though a part of a composition of high literary merit, is not excepted from operation of the statute, whether written in the style of the realists, surrealists, or plain shock writers. The civilization of our times holds to the premise that dirt in stark nakedness is not generally and at all times acceptable. And the great mass of the people still believe there is such a thing as decency. Indecency is easily recognizable. Such is the premise of the statute. The Congress has chosen to enact a censorship which would not have been possible except for the self-styled prophets of truth who offend so grievously.

It is of course true that the ears of some may be so accustomed to words which are ordinarily regarded as obscene that they take no offense at them, but the law is not tempered to the hardened minority of society. The statute forbidding the importation of obscene books is not designed to fit the normal concept of morality of society's dregs, nor of the different concepts of morality throughout the world, nor for all time past and future, but is designed to fit the normal American concept in the age in which we live. It is no legitimate argument that because there are social groups composed of moral delinquents in this or in other countries, that their language shall

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be received as legal tender along with the speech of the great masses who trade ideas and information in the honest money of decency.

Adequate provision is made in the statute in the interests of classics and the technical, by the following proviso:

'Provided further, That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes.' Title 19 U.S.C.A. § 1305(a).

No action under this proviso has been taken by the Secretary of the Treasury, nor has appellant requested any action under or pursuant to it.

It is claimed that these books (The Tropics) are not for the immature of mind, and that adults read them for their literary and informative merits, but, whether true or untrue, we cannot measure their importability by such a yardstick. The Congress probably saw the impracticability of preventing the use of the books by the young and the pure. And of course they knew that salacious print in the hands of adults, even in the hands of those whose sun is near the western horizon, may well incite to disgusting practices and to hideous crime.

We agree that the book as a book must be obscene to justify its libel and destruction,...

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