Ackerman v. United States, 17252.

• Decision Date: 18 August 1961
• Docket Number: No. 17252.,17252.
• Citation: 293 F.2d 449
• Parties: Forest James ACKERMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

293 F.2d 449 (1961)

Forest James ACKERMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 17252.

United States Court of Appeals Ninth Circuit.

August 18, 1961.

Ziskind & Ross by David Ziskind, of Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, Edward M. Medvene, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and KOELSCH, Circuit Judges, and SWEIGERT, District Judge.

SWEIGERT, District Judge.

On March 16, 1960, the Grand Jury for the Southern District of California returned a five-count indictment against the appellant, charging in counts 1 through 5, respectively, that appellant on five separate occasions mailed letters which were obscene, lewd, indecent, lascivious and filthy in violation of Title 18, United States Code, Section 1461.

Upon plea of not guilty, appellant waived trial by jury and requested the Court to decide the issues involved upon the basis of a stipulation of facts.

The Court on October 4, 1960, upon the stipulated facts and the briefs of both parties, found appellant guilty as charged and subsequently imposed a fine of $50 on each count of the indictment.

The jurisdiction of the District Court was based upon Title 18, United States Code, Section 3231 and Title 18, United States Code, Section 1461. Appellant filed a timely notice of appeal and jurisdiction of this Court is predicated upon Title 28, United States Code, Sections 1291 and 1294.

The Stipulation of Facts sets forth that from May through October, 1958, appellant Ackerman sent five letters to one R. W. Hearn; that, if called as a witness, said R. W. Hearn would testify that he received said letters; that if called as a witness, defendant Ackerman would testify under oath that he is 43 years of age and is engaged in the occupation of writer and literary agent; that he was at one time a literary agent for over one hundred authors; that his own fiction and non-fiction articles and stories have appeared in over 150 internationally distributed periodicals and magazines; that during the year 1958, he embarked on a project involving research in the field of lesbianism and homosexuality for the purpose of providing background material for a publication on the subject of lesbianism; that defendant Ackerman would further testify under oath that said R. W. Hearn at all times represented to Ackerman that said R. W. Hearn was a lesbian and that Ackerman believed that the said Hearn was, in fact, a lesbian; that said R. W. Hearn was in fact a man aged 38, married and the father of two children; that said Hearn had, previous to the commencement of the correspondence, been in correspondence with other people on the subject of lesbianism and had been receiving and sending correspondence similar to that hereinabove referred to, and that said Hearn had accumulated a sizable collection of such material; that, if called as a witness, defendant would testify that he received no pecuniary advantage or remuneration by reason of the correspondence; that if called as witnesses, six named persons would testify with respect to the character and reputation of the defendant as set forth in their respective letters.

The stipulation further recited that the defendant did not admit that any of the letters were obscene, lewd, indecent, lascivious or filthy, reserving all questions of law relating thereto; and, further, that the government did not waive its objection to the materiality of Stipulations Nos. 10 and 13.

The letters contained certain pictures which, according to oral stipulation at the hearing, defendant would testify were received by him from R. W. Hearn and were being returned to Hearn.

Title 18, U.S.C. Sec. 1461 provides in pertinent part as follows:

"Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance * * * is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

"Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, * * *"

Appellant contends:

1. That if the statute be construed as prohibiting an exchange of non-commercial private letters between a serious writer and another adult person, dealing with abnormal sex, a subject of redeeming social importance for research purposes, then the statute would be invalid as an infringment of the First Amendment — right of free speech.

2. That the average person standard for determining obscenity, as declared in Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, does not encompass such material under such circumstances.

3. That the potential social evil, which the statute was intended to prevent, is absent in such a case.

4. That the evidence in the pending case is insufficient to establish the essential element of appeal to prurient interest.

5. That it is insufficient to establish the essential element of scienter.

In Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the Supreme Court recognized that sex and obscenity are not synonymous, that the portrayal of sex in art, literature and scientific works is not itself sufficient to deny material the constitutional protection of freedom of speech and press, and that the standards for determining obscenity must safeguard the publication of material which does not treat sex in a manner appealing to prurient interest.

Further, the Courts have recognized that the writings of serious authors on subjects of public concern are not to be judged merely by selected words or phrases but according to whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole, appeals to prurient interest. Roth v. United States, supra; United States v. Dennett, 2 Cir., 1930, 39 F.2d 564, 76 A.L.R. 1092; Grove Press v. Christenberry, 2 Cir., 1960, 276 F.2d 433; Walker v. Popenoe, 80 U.S.App.D.C. 129, 149 F.2d 511 (D.C.Cir., 1945); United States v. One Book Entitled Ulysses, 2 Cir., 1934, 72 F.2d 705.

Although a court of review retains responsibility for rendering the ultimate judgment upon Constitutional infringement, the question (whether the dominant theme of material taken as a whole, would be to the average person applying contemporary standards, an appeal to prurient interest) is primarily one of fact for the jury or trial judge sitting without a jury, to decide.

In the pending case, the trial judge, upon the stipulation of facts, including the letters and pictures themselves, impliedly found beyond a reasonable doubt that the material would be such an appeal to prurient interest and that it was, therefore, obscene within the meaning of the statute.

That this judgment was amply supported, and that the standard of obscenity laid down by Roth v. United States, supra, has been met by the proof, is in our opinion beyond question.

The letters, themselves (Ex. 1 through 5) do not purport, either by their content or their form, to be artistic, literary, scientific or any other kind of serious expression upon the subject of sex. On the contrary, they are filled with wildly erotic, filthy, prurient comments and inquiries concerning the details of the addressee's private parts, which could have no conceivable worth for artistic, literary, scientific or serious research. Further, they are couched, not in the restrained form of serious inquiry and comment, or even in the form of customary candor on the subject of sex, but in the form of vulgar, sordid, provocative, erotic imagery and evident prurient appeal — so much so that we deem it improper and unnecessary to quote from them.

The pictures, which were enclosed and referred to in the letters, are likewise without artistic, scientific or other redeeming value and their form and content fall into the same category as the letters which refer to them. They are obviously useless — except for purpose of a highly provocative sexual arousement and prurient appeal.

In the light of the dominant theme of the letters and pictures themselves, the trial judge would have been justified in treating the stipulated testimony of the defendant,...