Hermann v. United States

• Decision Date: 02 December 1969
• Docket Number: No. 4861.,No. 4860.,4860.,4861.
• Citation: 259 A.2d 347
• Parties: Friedrich HERMANN, Appellant, v. UNITED STATES, Appellee. Olaf FENNEKOHL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 347

259 A.2d 347

Friedrich HERMANN, Appellant, v. UNITED STATES, Appellee.

Olaf FENNEKOHL, Appellant, v. UNITED STATES, Appellee.

No. 4860.

No. 4861.

District of Columbia Court of Appeals.

Argued June 3, 1969.

Decided December 2, 1969.

James Hamilton, Washington, D. C., with whom John H. Schafer and Ralph J. Temple, Washington, D. C., were on the brief, for appellants.

Charles F. Scarlata, Atty., Dept. of Justice, with whom David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before CAYTON, Chief Judge, Retired, and QUINN and MYERS, Associate Judges, Retired.

CAYTON, Judge.

The two appellants were convicted of knowingly presenting an obscene motion picture in a theater in the District of Columbia. D.C.Code 1967, § 22-2001(a) (1969 Supp.). A jail sentence of 60 days plus a fine was imposed on one appellant, and the other was ordered to pay a fine or in lieu thereof to serve 30 days in jail. The judge also ordered the film condemned.

Bringing the case here for review, appellants contend that the Government failed to prove the essential elements of obscenity with respect to the film: that it appeals to the prurient interest of the audience; that it affronts national community standards; and that it is utterly without redeeming social importance.

They also contend that the Government failed to prove the element of scienter necessary for conviction in that the defendants had no knowledge, or means of knowledge that the showing of the film would constitute criminal conduct. Appellants also attack the constitutionality of the statute under which the prosecution was brought contending that it is void for vagueness, overbroad in its potential application, and violative of First Amendment freedoms.

Titled "Threes, Menage a Trois" the film runs for about an hour, has very little plot or story line and is narrated by a female "voice over", the actors themselves not being heard. There is a succession of more or less disconnected scenes portraying or suggesting sexual activities including repetitive self-fondling of female nipples, lesbian-like stroking, some displays of female genital areas and pubic hair, and poses suggestive of cunnilingus between a fully dressed man and a partly dressed woman. There are also scenes of the principal female character strolling fully dressed along the seashore, philosophizing on her sexual and romantic situation.

To support its charge the Government presented as "experts" a psychiatrist and a local newspaper writer and art critic. They reviewed the film with reference to the elements of legal obscenity. It was stipulated that appellants had viewed enough of the film prior to its presentation to have acquired a general knowledge of its content.

The defense presented three "expert" witnesses. One was a writer, critic and film distributor; one was a writer and instructor of English at a local university; and one was a psychiatrist. They broadly contradicted the Government's witnesses. It is not considered necessary to set out the conflicting views of the witnesses as to the artistic value of the film or its impact from the standpoint of prurience. Appellants also testified, and reference will later be made to their testimony.

This court is committed to the proposition that where the material involved is not patently obscene, it is to be tested by national rather than local community standards. Hudson v. United States, D.C. App., 234 A.2d 903 (1967). As to what the national standards are, there has been confusion aplenty, not only among the many "experts" who have been called to testify in various jurisdictions but also among recent decisions of some of our highest courts. This is due in part to the "dim and uncertain line" that often separates obscenity from constitutionally protected expression. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). But in past few years there has emerged a more permissive — many say a more realistic — approach than that followed in decisions made in earlier decades.

Among the most recent of such cases is the 1968 decision of the Second Circuit in United States v. A Motion Picture Film Entitled "I Am Curious (Yellow)", 404 F.2d 196, and the 1967 decision of the Supreme Court in Schackman v. California, 388 U. S. 454, 87 S.Ct. 2107, 18 L.Ed.2d 1316. The Schackman case involved three films which had been considered in a related case by the United States District Court, in Schackman v. Arnebergh, 258 F.Supp. 983 (C.D.Cal.1966). In its decision the District Court set out a full description of the moving pictures which are strikingly and essentially similar in makeup, subject treatment and content to the one we are here considering. Their presentation led to the conviction of Schackman under a California obscenity statute. The Supreme Court reversed the conviction without opinion, citing Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967).

Earlier, in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) the Supreme Court had held among other things that the test is whether the dominant theme of the material taken as a whole appeals to prurient interest. This holding was cited in a Book named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) Where it was also said:

" * * * [i]t 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." 383 U.S. at 418, 86 S.Ct. at 977.

The film here involved contains nude, near-nude and erotic scenes and has very little literary, pictorial, musical, or other artistic value reflecting any real redeeming social importance. It may correctly be described as trash — and tiresome trash at that. But that is not the same as saying that it should be condemned as obscene as a matter of law. It is not "patently obscene" or "hard-core" in nature. Compared with such films as that in the Schackman and "I Am Curious" cases it is at worst of a borderline nature.

We should not lose sight of the fact that appellants were not on trial for presenting a tasteless, cheap or off-color film, but an obscene one. That appellants were in the business of presenting films which were "dismally unpleasant, uncouth, and tawdry" is probably not open to question, but we must affirm their right to do so, Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962), so long as they do not transcend the bounds of decency or the tests stated above.

The evidence did not establish a disregard of standards of community acceptability, but fairly indicated that appellants' policy was marked by caution which took cognizance of prevailing standards. Based on our view of the film and our consideration of the applicable rules of law, we have concluded that the evidence was insufficient to sustain the convictions.

Reversed with instructions to enter judgments of acquittal.

MYERS, Associate Judge, Retired (dissenting):

The last paragraph of the majority opinion, with which I am in disagreement, states that the appellants' convictions in the trial court for knowingly presenting an obscene motion picture in violation of D.C. Code 1967, § 22-2001(a) (1969 Supp.) must be reversed because —

"Based on our view of the film and our consideration of the applicable rules of law, we have concluded that the evidence was insufficient to sustain the convictions." (Emphasis supplied.)

No effort was made to detail from the record of the trial with its transcript of testimony of all witnesses, exactly why the evidence was legally "insufficient" to sustain the charges against appellants, although it was stated that the Government presented the expert testimony of two witnesses — a psychiatrist (of national reputation in his field with broad experience in and knowledge of obscenity cases) and a well-known local newspaper writer and art critic — who were "broadly contradicted by two defense witnesses" — "a writer and...