United States v. 25,000 Magazines, Entitled" Revue", Civ. No. 17187.

• Decision Date: 03 June 1966
• Docket Number: Civ. No. 17187.
• Citation: 254 F. Supp. 1014
• Parties: UNITED STATES of America v. A Shipment of 25,000 MAGAZINES, ENTITLED "REVUE", "Studio", "Play Girl", "Bazaar", "Charme", and "Lotus".
• Court: U.S. District Court — District of Maryland

254 F. Supp. 1014

UNITED STATES of America v. A Shipment of 25,000 MAGAZINES, ENTITLED "REVUE", "Studio", "Play Girl", "Bazaar", "Charme", and "Lotus".

Civ. No. 17187.

United States District Court D. Maryland.

June 3, 1966.

Thomas J. Kenney, U. S. Atty., Arthur G. Murphy and Fred K. Grant, Asst. U. S. Attys., Baltimore, Md., for libelant.

Joseph Rosenthal and Norman N. Yankellow, Baltimore, Md., for Central Magazine Sales, Ltd., claimant.

THOMSEN, Chief Judge.

In this proceeding under section 305 of the Tariff Act of 1930, 19 U.S.C.A. § 1305,¹ the government seeks forfeiture on grounds of obscenity of 25,000 magazines imported from Denmark through the Port of Entry at Baltimore on March 18, 1966. The shipment comprised 43 different issues or numbers of six magazines published by the same concern. The only point raised by the importer is that the material is not obscene.²

The facts have been presented in the form of a stipulation, supplemented by the 43 magazines in question and one exhibit, showing in greater detail the entry and the action taken by the customs officials. Each of the 43 numbers had been previously imported through the Port of Entry at Baltimore during December 1965 and January 1966.³

The so-called magazines⁴ are really picture books, each containing thirty-odd 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 similar to the title page in Exclusive, see 253 F.Supp. 485, 492, n. 17, suggesting that the magazine is intended to be distributed to serious artists; some include a title page in German similar to the title page in Hellenic Sun, see 253 F.Supp. 498, 503 n. 10, 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 adolescent and adult males who may have a natural or prurient interest in pictures of nude women.

The applicable law was discussed by this court in the Exclusive case, 253 F. Supp. 485 (1966), the Hellenic Sun case, 253 F.Supp. 498 (1966), and the Solis case, U. S. v. 1,000 Copies of Magazine Entitled "Solis", 254 F.Supp. 595 (1966). The court adheres to the views expressed in those opinions. The discussions with respect to the magazines Exclusive and Solis 84 are particularly applicable here. It is well, however, to keep in mind the basic rules, summarized by Mr. Justice Brennan in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts (the Fanny Hill case), 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966) as follows:

"We defined obscenity in Roth Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 in the following terms: `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. at 1311. 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. * * * Each of the three federal constitutional criteria is to be applied independently."⁵

In this case the third element requires one brief finding of facts: none of the 43 magazines in question has any redeeming social value.

The first two elements present more difficult problems for the customs officials and the courts. It is not easy for customs officials and others charged with enforcing the laws against obscenity to determine whether such magazines as are involved in this case appeal to a prurient interest in sex, and go so far beyond contemporary community (national) standards relating to the representation of sexual matters as to be patently offensive. If the enforcement of the laws is not to be chaotic and capricious, the courts must make an effort to spell out in greater detail the principles which should guide such officials.

This court has, therefore, undertaken to state the principles which it believes should be applied to such "magazines" as are involved in this case. The stated principles are not intended to apply to books, cartoons or other drawings, moving...