United States v. 4200 Copies International Journal

• Decision Date: 05 October 1955
• Docket Number: No. 1286.,1286.
• Citation: 134 F. Supp. 490
• Parties: UNITED STATES of America, Libelant, v. 4200 COPIES INTERNATIONAL JOURNAL, Nos. 5 and 11; 500 copies Afrodite, No. 1; 300 bound volumes Helios, issues Nos. 1 to 12, 1953; 500 volumes Tidlosa, No. 1, January, 1955; 2000 copies Sun and Health, International Edition, No. 26, May, 1955; 1500 copies Helios, No. 23, May, 1955; 700 copies Modelstudier, No. 41; 200 copies Paradies, No. 52; and 100 copies Licht Und Schonheit, Heft 11, Jahrang 5, 1954.
• Court: U.S. District Court — District of Washington

134 F. Supp. 490

UNITED STATES of America, Libelant, v. 4200 COPIES INTERNATIONAL JOURNAL, Nos. 5 and 11; 500 copies Afrodite, No. 1; 300 bound volumes Helios, issues Nos. 1 to 12, 1953; 500 volumes Tidlosa, No. 1, January, 1955; 2000 copies Sun and Health, International Edition, No. 26, May, 1955; 1500 copies Helios, No. 23, May, 1955; 700 copies Modelstudier, No. 41; 200 copies Paradies, No. 52; and 100 copies Licht Und Schonheit, Heft 11, Jahrang 5, 1954.

No. 1286.

United States District Court E. D. Washington, N. D.

October 5, 1955.

COPYRIGHT MATERIAL OMITTED

William B. Bantz, U. S. Atty., William M. Tugman, Asst. U. S. Atty., Spokane, Wash., for libelant.

C. C. Rowan, Spokane, Wash., for claimant.

DRIVER, Chief Judge.

This is a libel action brought by the United States against a large number of imported publications. The basic question presented is, whether such publications are obscene and, as such, subject to forfeiture, confiscation and destruction under the provisions of Section 1305 of Title 19, U.S.C.A. That section, in part, provides that all persons are prohibited from importing into the United States "any obscene book, pamphlet, paper, writing, * * * print, picture, * * *." It authorizes seizure of prohibited publications by the collector of customs and outlines the procedure for their condemnation in the United States District Court. The section further provides that, "No such articles, whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the collector that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained, shall be subject to seizure and forfeiture as hereinafter provided: * * *."

Attached to the libel of information in this case as Exhibits A, B, and C, are three reports of seizure by the United States Customs Service. Exhibit A shows that on May 3, 1955, two cases of paper bound books were seized, consisting of 300 volumes of Helios and 500 volumes of Tidlosa. The report does not indicate whether the two publications were mixed in the two cases, or all the Helios was in one case and all the Tidlosa in the other. Exhibit B shows seizure on May 11, 1955, of one case of paper bound books containing 4200 copies of International Journal, and 500 copies of Afrodite. Exhibit C shows seizure on May 11, 1955, of one case of paper bound books containing 2000 copies of Sun & Health, 1500 copies of Helios, 700 copies Modelstudier, 200 copies of Paradies, and 100 copies of Licht & Sconheit sic. It thus appears that there were 300 volumes of Helios in the seizure Exhibit A, and 1500 copies of the same publication in seizure Exhibit C, but what particular books or periodical issues were in each of the seizures does not clearly appear. Moreover, the "cases" mentioned in the customs reports do not appear to have been kept intact. The United States Marshal's return which is in the file, sets forth a straight listing of the publications taken over by him, with the number of copies of each, without any mention of cases or packages. In this situation it seems impracticable for me to attempt to apply the provision of the statute concerning condemnation of the entire contents of a package if it is found to contain one or more obscene items. I shall, therefore, separately pass upon each publication involved as plaintiff's (libelant's)¹ Exhibits 1-27, inclusive.

Plaintiff contends that the publications are obscene by reason of the photographs of nude men and women with which they are illustrated. The word "obscene" is not capable of exact definition for the reason that its meaning depends upon prevailing mores at different times and in different places.² However, in what may be termed the modern cases, the courts are fairly well agreed upon the general principles which should govern in the application of the statute under consideration and comparable enactments which forbid transmission through the United States mails of obscene publications.³

Nudity is not per se obscene. It may properly be employed in works of art and medical and scientific treatises. A publication is not to be judged by one or two isolated illustrations or passages but is to be regarded as a whole. An effort should be made to ascertain and evaluate the dominant effect, and such dominant effect or tone determines its entire character. The effect upon children or upon persons of extraordinary susceptibility to evil influences is not decisive. The standard to be applied is the judgment of the average, normal, reasonable, prudent person of the community in which the publication is circulated. If, at the time of such circulation, considered as a whole it offends the sense of propriety, morality, and decency of such average person, it is within the bar of the statute....