United States v. 35 MM. MOTION PICTURE FILM, ETC., 902

• Decision Date: 14 September 1970
• Docket Number: No. 902,Docket 34963.,902
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 35 MM. MOTION PICTURE FILM Entitled "LANGUAGE OF LOVE," 12 Reels, 10342 Feet, English and Finnish Sound Tracks, Defendant, Unicorn Enterprises, Inc. and Swedish Film Production Investment AB, Claimants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

432 F.2d 705 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. 35 MM. MOTION PICTURE FILM Entitled "LANGUAGE OF LOVE," 12 Reels, 10342 Feet, English and Finnish Sound Tracks, Defendant Unicorn Enterprises, Inc. and Swedish Film Production Investment AB, Claimants-Appellants.

No. 902, Docket 34963.

United States Court of Appeals, Second Circuit.

Argued July 16, 1970.

Decided September 14, 1970.

Ephraim London, New York City (London, Buttenwieser & Chalif, Franklin S. Bonem, New York City, on the brief), for claimants-appellants.

Michael C. Silberberg, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, New York City, David Paget, Asst. U. S. Atty., on the brief), for plaintiff-appellee.

Before WATERMAN, MOORE and HAYS, Circuit Judges.

MOORE, Circuit Judge:

The film "Language of Love" in its present form arrived in New York on November 20, 1969 and was seized by the Commissioner of Customs on December 4, 1969. Thereafter a complaint was filed in the United States District Court for the Southern District of New York by the United States Attorney alleging that the film was "obscene and immoral" and seeking an order for confiscation and forfeiture pursuant to the provisions of The Tariff Act of 1930, § 305, 19 U.S.C. § 1305. Unicorn Enterprises, Inc. and Swedish Film Production Investment AB filed a joint notice of claim and joined issue with the complaint in an answer contending that the statute, on its face, as administered and as applied in this case is unconstitutional, and that the film cannot be held "obscene" by current Constitutional standards.

After trial before Judge Pollack and a jury, the district court found the film obscene and ordered confiscation and forfeiture. On appeal, claimants continue the arguments made below in addition to certain contentions with regard to the evidence and allegations of error in the trial court.

"Language of Love," a Swedish-made film, is a movie version of the "marriage manual" — that ubiquitous panacea (in the view of some) for all that ails modern man-woman relations. Assuming the Masters and Johnson¹ premise that the path to marital euphoria and social utopia lies in the perfection and practice of clinically correct and complete sexual technology, this film offers to light that path in a way the masses can understand. It purports to be a veritable primer of marital relations, or perhaps the Kama Sutra of electronic media, although the film is nowhere nearly as rich in the variety of its smorgasbord of delights as comparison with that ancient Hindu classic might suggest.² It may be the vulgate scripture, the Popular Mechanics, of interpersonal relations, the complete cure for the ailing marriage. Or so goes the theory of its sponsors.

"Language of Love" stars four of what are apparently leading Scandinavian sexual technocrats, with brilliant cameo roles for the functioning flesh of various unnamed actors. Four doctors, including the Secretary General of the Swedish Royal Commission for Sex Education (who testified at the trial), an established Swedish gynecologist and family counselor, and a popular husband-wife team of pedigreed sexologists-psychologists who teach and lecture widely and write a syndicated newspaper column on the subject at hand, prepared the script informally by discussing love and marriage in depth before the camera. The camera then conscientiously probes the physical accomplishment of certain athletics (predominantly sexual intercourse) prescribed by the doctors to overcome the ills diagnosed in discussion in relatively brief film sequences interspersed throughout the seemingly interminable discussion. Towards the end of the film, a gynecological examination and the emplacement by a doctor of contraceptive devices in two young women are portrayed. An important sideline in the making of this film is said to be the airing of unhealthy inhibitions and the dismantling of taboos which interfere with the normal realization of sexual harmony. We may observe that all Scandinavian filmmakers appear bent on exploding our myths and taboos as at least a minor premise of their endeavors. See United States v. A Motion Picture Film Entitled "I Am Curious (Yellow)", 2 Cir., 404 F.2d 196, 203 (Ch. J. Lumbard, dissenting).

This film, as did I Am Curious (Yellow), contains scenes of oral-genital contact and other heterosexual activity that no actor or actress would ever have confessed knowledge of in bygone days of the silver screen. Nevertheless, the movie-going public has been confronted with all of this before in recent times.

This film may be characterized by greater explicitness, quantitatively and qualitatively, than other films of this genre, although at least eight are currently playing or have recently played in New York without government interference, all of which could be said to have maximal explicitness and which enable that segment of the public interested in observing sexual activity in the quiet darkness of a movie theatre to do so. The government offers a comparison with I Am Curious (Yellow), which we held not to be obscene, representing that the scenes of sexual activity in "Language of Love" are far more numerous and "shockingly explicit" than those in the former film. Whether that be true or not, and we note that certain types of sexual activity depicted in Curious (Yellow) are not present in this film, we do not intend to tally the instances and methods of sexual accomplishment and compare score sheets in dealing with these films. Here, as in the former case, our duty is to consider the manner in which sex is presented, not its frequency, variety or explicitness per se. 404 F.2d at 199.

"Language of Love" had apparently been scheduled for a premiere showing at a commercial theater in midtown Manhattan, and the record discloses no interest elicited or solicited from our medical institutions or universities. In fact, any documentary classification is expressly disavowed. The government introduced, over objection, an advertisement published in the trade magazine "Variety" offering for hire to film promoters "Language of Love" along with other films promising at least a modicum of redeeming sexual impact for the operators of commercial movie houses. It is most unlikely that this film will be viewed primarily by marriage counselors and their patients in a professional setting. There is no evidence, however, of the manner in which the film will actually be promoted to the public except that the distributor has contracted to insure that no persons under 18 years of age will become privy to its dark secrets. It is described by its makers as a sex education film, produced for the edification of those members of the general public who experience a need for instruction in that sensitive area of their private lives. Presumably those who feel that they have been cheated can always seek a refund of the admission price.

The claimants presented a noted film critic, a principal researcher and author for the Kinsey Institute treatises on sexual behavior in both genders of the human species, a protestant minister and a former New York State chief film censor among its expert witnesses. All agreed that the film has social importance, and that it does not appeal to "prurient interest" in their understanding of that much-debated term. All likewise agreed that the film's explicitness falls within the customary limits of candor tolerated by the national community in view of the currently available competition for the movie-goers' dollars.

The government presented very little evidence beyond the film itself for assistance in determining the obscenity vel non of the film. The jury retired for deliberation with instruction to find in special verdict form whether or not the film, taken as a whole, was (1) in its dominant theme an appeal to prurient interest, (2) patently offensive, and (3) utterly without social value.³ After 40 minutes of deliberation, the jury sent the judge a note asking: "If a vote on questions No. 1 and No. 2 are yes, and question 3 is no, will this picture be shown and the government case lost?" The court returned an answer in the affirmative, to the formulation of which claimants' counsel consented and that exchange is not appealed. Three more hours of deliberation produced a "yes" answer to all three questions. The trial court denied claimants' motion for a directed verdict and entered judgment for the government, ordering forfeiture and confiscation of the film.

Although other constitutional and evidentiary questions are presented on appeal from the judgment, we heard oral argument only on the issue of obscenity vel non, and we reverse on that basis. Claimants' position is that "Language of Love" cannot constitutionally be excluded from the country as "obscene" because its dominant appeal is not to prurient interest but to sexual enlightenment, and because of the little controverted evidence of social importance. We have examined the record and viewed the film in its tedious entirety, and we hold that "Language of Love" is not proscribably obscene within the meaning of at least two of the Memoirs v. Massachusetts⁴ coalescing trilogy of factors.

Who is to decide?

At the outset we confront the fact that our judgment differs from that of the jury on questions which were put to them specifically and on which they rendered unanimous verdicts. What weight should the jury's verdict carry? Who is to decide that a work is of such quality as to be ineligible for constitutional protection? These questions have been the subject of extended consideration by the Justices of the Supreme Court and at least at the present time have been resolved, although not without dissent. Mr. Justice Harlan in Roth said:

"On this basis the constitutional question before us simply becomes, as the Court says, whether `obscenity\', as an abstraction, is protected by the First and

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