United States v. Central Magazine Sales, Ltd.

• Decision Date: 07 July 1967
• Docket Number: 11226,No. 10897,11203,11275.,11225,10897
• Citation: 381 F.2d 821
• Parties: UNITED STATES of America, Appellant, v. CENTRAL MAGAZINE SALES, LTD., Claimant of a shipment of 25,000 magazines entitled "Revue," "Studio," "Play Girl," "Bazaar," "Charme," and "Lotus," Appellee. UNITED STATES of America, Appellant, v. RELIABLE SALES COMPANY, Claimant of 1,890 copies of Magazines, including 990 copies of the Magazine entitled: "Croquis" Nos. 73, 77, 78, 79, 80; 300 copies of Magazine entitled "Forms in Color Magazine" Nos. 1, 5 and 6; 200 copies of Magazine entitled "Bazaar" Nos. 6 and 14; 300 copies of Magazine entitled "Revue Magazine" Nos. 45, 46 and 59; and 100 copies of a Magazine entitled "Studio Magazine" No. 48, Appellee. UNITED STATES of America, Appellant, v. A shipment of 3,600 COPIES OF MAGAZINES ENTITLED "CHARME," ET AL., Appellee. UNITED STATES of America, Appellant, v. A shipment of 944 COPIES OF MAGAZINES ENTITLED "ALBUM TEENAGER NUDISTS," NO. 1, ET AL., Appellee. UNITED STATES of America, Appellant, v. 60,000 COPIES OF MAGAZINES, including 20,000 copies of a magazine ENTITLED "FORMS IN COLOR" VOL. 1, NO. 2, ET AL., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

381 F.2d 821 (1967)

UNITED STATES of America, Appellant, v. CENTRAL MAGAZINE SALES, LTD., Claimant of a shipment of 25,000 magazines entitled "Revue," "Studio," "Play Girl," "Bazaar," "Charme," and "Lotus," Appellee.

UNITED STATES of America, Appellant, v. RELIABLE SALES COMPANY, Claimant of 1,890 copies of Magazines, including 990 copies of the Magazine entitled: "Croquis" Nos. 73, 77, 78, 79, 80; 300 copies of Magazine entitled "Forms in Color Magazine" Nos. 1, 5 and 6; 200 copies of Magazine entitled "Bazaar" Nos. 6 and 14; 300 copies of Magazine entitled "Revue Magazine" Nos. 45, 46 and 59; and 100 copies of a Magazine entitled "Studio Magazine" No. 48, Appellee.

UNITED STATES of America, Appellant, v. A shipment of 3,600 COPIES OF MAGAZINES ENTITLED "CHARME," ET AL., Appellee.

UNITED STATES of America, Appellant, v. A shipment of 944 COPIES OF MAGAZINES ENTITLED "ALBUM TEENAGER NUDISTS," NO. 1, ET AL., Appellee.

UNITED STATES of America, Appellant, v. 60,000 COPIES OF MAGAZINES, including 20,000 copies of a magazine ENTITLED "FORMS IN COLOR" VOL. 1, NO. 2, ET AL., Appellee.

Nos. 10897, 11203, 11225, 11226, 11275.

United States Court of Appeals Fourth Circuit.

Argued May 1, 1967.

Decided July 7, 1967.

Thomas J. Kenney, U. S. Atty. (Arthur G. Murphy, First Asst. U. S. Atty., Clarence E. Goetz, Asst. U. S. Atty., and Fred Kelly Grant, former Asst. U. S. Atty., on brief), for appellant.

Norman N. Yankellow, Baltimore, Md. (Joseph Rosenthal, Baltimore, Md., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER and CRAVEN, Circuit Judges, sitting en banc.

PER CURIAM:

The United States has appealed from several orders of the District Court of Maryland finding a number of picture magazines not obscene.¹ The Government's position essentially is that any collection of photographs of nudes is obscene, if, in some of the pictures, the pubic area of the model is exposed. We think obscenity cannot be determined on such a per se basis, and we affirm the conclusion of the District Court that these magazines are not obscene.²

Affirmed.

ALBERT V. BRYAN, Circuit Judge, (dissenting):

The majority opinion decides these cases on the "Government's position", not on the evidence; it decides that the position is wrong, and so affirms. While its recitation of the Government's position is too restricted — for the United States relied on the "totality of the circumstances here surrounding these so-called magazines" to establish obscenity — the point is immaterial. Whether the Government's position is right or wrong is not the inquiry. The issue is obscenity and that alone.

We are obligated to answer this question independently of the parties' contentions and independently of the determination in the trial court. It is "one of particularized judgments which appellate courts must make for themselves". Harlan, J., concurring in Roth v. United States, 354 U.S. 476, 497, 77 S.Ct. 1304, 1316, 1 L.Ed.2d 1498 (1957); see, too, Jacobellis v. State of Ohio, 378 U.S. 184, 188, 84 S.Ct. 1676, 12 L.Ed.2d 793 with fn. 3 (1964). Facing up to this duty the first point is, as the District Judge noted, that none of the magazines has any "redeeming social value". This is the last of the "three federal constitutional criteria" under Justice Brennan's now classic test for obscenity, begun in Roth, supra, and completed in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966):

"`Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.\' 354 U.S. at 489, 77 S.Ct. 1304 at 131, 1 L.Ed.2d 1498. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

A general description of the literature before us is summarized by the District Judge in United States v. 25,000 Magazines Entitled "Revue", D.C., 254 F. Supp. 1014, 1016 (1966), appeal No. 10,897 here, as follows:

"The so-called magazines are really picture books, each containing * * photographs of nude or almost nude women. In practically all of the photographs the pubic area and breasts are fully exposed; in some of the photographs two or more women are shown; a few of the magazines contain one or two pictures of nude men, or of several women accompanied by men or by children. Many of the magazines contain no written material whatever except a brief statement of how similar magazines may be purchased; some include a title page * * * suggesting that the magazine is intended to be distributed to serious artists; some include a title page in German * * * suggesting that the magazine is the sunbathing and nature living monthly magazine; and a few carry a `blurb\' on the rear suggesting that the publication is an art magazine. All of these claims are spurious; the magazines involved in this case are designed for and intended to be distributed to

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