389 F.2d 200 (8th Cir. 1968), 18707, Luros v. United States

Docket Nº:18707-18711.
Citation:389 F.2d 200
Party Name:Milton LUROS, Appellant, v. UNITED STATES of America, Appellee. SUN ERA, INC., Appellant, v. UNITED STATES of America, Appellee. AMERICAN ART AGENCY, INC., Appellant, v. UNITED STATES of America, Appellee. PARLIAMENT NEWS, INC., Appellant, v. UNITED STATES of America, Appellee. LONDON PRESS, INC., Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 07, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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389 F.2d 200 (8th Cir. 1968)

Milton LUROS, Appellant,


UNITED STATES of America, Appellee.

SUN ERA, INC., Appellant,


UNITED STATES of America, Appellee.



UNITED STATES of America, Appellee.



UNITED STATES of America, Appellee.

LONDON PRESS, INC., Appellant,


UNITED STATES of America, Appellee.

Nos. 18707-18711.

United States Court of Appeals, Eighth Circuit.

February 7, 1968

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Stanley Fleishman, Hollywood, Cal., for appellant; Sam Rosenwein, Studio City, Cal., and Percy Foreman, Houston, Tex., on the brief.

Gene S. Anderson, Atty., Criminal Div., dept. of Justice, Washington, D.C., and former United States Atty. Donald E. O'Brien for the Northern District of Iowa, for appellee; Stephen M. Turner, U.S. Atty., Sioux City, Iowa, and Theodore Kleinman, Atty., Criminal Div., Dept. of Justice, Washington, D.C., were on the brief.

Before VOGEL, Chief Judge, and GIBSON and LAY, Circuit Judges.

LAY, Circuit Judge.

The recurring problem of obscenity vel non is presented. The appeal arises from a criminal prosecution under 18 U.S.C. §§ 1461 and 1462, as amended (1964), for mailing and transporting 'obscene' literature. Appellants are four corporations and their sole stockholder, Milton Luros. A jury trial was held in the Northern District of Iowa, Western Division, under the venue provision applicable to the above statutes, 18 U.S.C. § 3237 (1964). 1 After a finding of guilty the trial court sentenced appellants Luros, Parliament News, Inc. and London Press, Inc. on eighteen counts; Sun Era, Inc. on eleven counts; and American Art Agency on six counts.

Appellants posit their appeal upon three basic contentions: (1) that the books and magazines involved were not proven 'obscene' and therefore protected under the First Amendment; (2) that the court erred in its instruction concerning the kind of scienter or knowledge required to sustain a conviction; and (3) that the venue statute permitting the government to pick the forum for prosecution in Iowa renders the conviction unconstitutional under the First, Fifth and Sixth Amendments of the United States Constitution. 2

In view of our decision that the material is protected under the First Amendment, we need not discuss the latter two issues.

'Obscene' literature is not within the protection of the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). However, concern over self-censorship and encroachment upon the protected areas of the First Amendment brought forth these words of caution:

'The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress

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or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.' Id. at 488, 77 S.Ct. at 1311.

Subsequent interpretations of Roth have clearly demonstrated the Court's own 'vigilance' as to these principles. Although definition of 'obscenity' is not without difficulty, 3 we submit that sufficient standards now exist which compel reversal of the present convictions.

In Redrup v. State of New York, 386 U.S. 767, 770, 87 S.Ct. 1414, 1416, 18 L.Ed.2d 515 (1967), a per curiam opinion summarized the Court's views:

'Two members of the Court have consistently adhered to the view that a State is utterly without power to suppress, control or punish the distribution of any writings or pictures upon the ground of their 'obscenity.' A third has held to the opinion that a State's power in this area is narrowly limited to a distinct and clearly identifiable class of material. Others have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene unless '(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,' emphasizing that the 'three elements must coalesce,' and that no such material can 'be proscribed unless it is found to be utterly without redeeming social value.' Memoirs (A Book Named 'John Cleland's Memoirs of a Woman of Pleasure') v. (Attorney General of Com. of) Massachusetts, 383 U.S. 413, 418-419 (86 S.Ct. 975, 977-978, 16 L.Ed.2d 1). Another Justice has not viewed the 'social value' element as an independent factor in the judgment of obscenity.' (Emphasis ours.) 4

Redrup points up three other areas where prosecution might succeed: (1) where the statute relates to a limited state concern for juveniles, 5 (2) where there is an obtrusive 'assault' by pornography upon an unwilling individual and (3) where 'pandering' exists as found in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966).

In the present case, convictions rest upon two distinct groups of material mailed or transported by appellants: 6 (1) nudist magazines and (2) paperbacked

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'pocket book' publications dealing with fictional lesbian and heterosexual exploits.

I. (2) It is clearly established that 'nudist' magazines are not obscene per se. Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352 (1958); Mounce v. United States, 355 U.S. 180, 78 S.Ct. 267, 2 L.Ed.2d 187 (1957); Rosenbloom v. Virginia, 388 U.S. 450, 87 S.Ct. 2095, 18 L.Ed.2d 1312 (1967); cf. United States v. Central Magazines Sales, Ltd., 381 F.2d 821 (4 Cir. 1967). The government acknowledges this, but contends the defendants are guilty under a 'pandering' or conduct theory. 7

The government's argument can be summarized as follows: that appellant Luros and his corporations publish nudist magazines simply to make money; that many of the nudist models, although signing complete 'releases' for the photographs, nevertheless did not contemplate national publication; that paid professional models, who were not nudists, posed for the magazines; that the magazines falsely represent that the models are nudists; that the magazines picture 'staged' scenes outside nudist camps depicting activities such as cooking, boating, hiking, etc., which nudists do not normally do in the nude; that appellant Luros continually sought legal advice as to whether his magazines were 'defensible'; that appellant Luros instructed his editors that they could now use photographs showing the male genitalia in the foreground; that appellant Luros bought a nudist camp for the sole purpose of taking pictures; that their own editors described the magazines as 'crap plus one' and that 'zetz' was required to make them sell. In summary, the government urges appellants' sale of the nudist material is nothing more than 'commercial exploitation' on the basis of prurient appeal.

We deem such evidence relevant to the issue of conduct since Ginzburg speaks of publications being 'created' as well as 'exploited' on a prurient basis. 383 U.S. at 474, 86 S.Ct. 942. However, there is no claim that these magazines were advertised or exploited as 'erotica' as in Ginzburg. 8 The contention is that whatever social value the nudist magazines may have becomes lost in the background of the production and sale by appellants premised solely upon their prurient appeal. See A. Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 420, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).

The basic fallacy of this argument, in the context of the nudist publications involved, is the false premise that 'commercial exploitation of nudism' is equated with prurience. The different pictures taken and published show both men and women, as well as children, in various poses and activities. We would agree that young female models or subjects dominate most pictures. Yet there is no magazine in evidence where men and women are shown embracing or in any alleged provocative or suggestive pose that smacks of a prurient appeal.

There is no question but that appellant and his corporations make a profit in the business of selling nudist magazines. 9 Yet there is nothing within the creation or production of the magazine itself that can be said to focus on the prurient

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unless it can be said that the production of the nude picture depicting male or female pubic hair and genitalia qualifies by itself. 10 Clearly, where such pictures are innocuous in their setting, even though they may be offensive to many, and even if some viewers' sexual curiousity or appetite may be whetted, the law does not consider them 'obscene.' As stated in Roth v. United States, 354 U.S. at 487, 77 S.Ct. at 1310: 'Sex and obscenity are not synonymous. Obscene material * * * deals with sex in a manner appealing to prurient interest.' And the Court relates:

'We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent. Draft No. 6, 1957), viz.:

"* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters * * *" Id. at 487, n. 20, 77...

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