United States v. Articles of" Obscene" Merchandise

• Decision Date: 08 June 1970
• Docket Number: No. 68-Civ.-2972.,68-Civ.-2972.
• Parties: UNITED STATES of America et al., Plaintiffs, v. Various ARTICLES OF "OBSCENE" MERCHANDISE More Fully Described in Schedule No. 494 of 1965-1970, Series, Defendants and Counterclaimants.
• Court: U.S. District Court — Southern District of New York

315 F. Supp. 191

UNITED STATES of America et al., Plaintiffs, v. Various ARTICLES OF "OBSCENE" MERCHANDISE More Fully Described in Schedule No. 494 of 1965-1970, Series, Defendants and Counterclaimants.

No. 68-Civ.-2972.

United States District Court, S. D. New York.

June 8, 1970.

Fred Cherry, Santurce, Puerto Rico, pro se.

Peter Alan Herbert, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, Richard S. Toder, Asst. U. S. Atty., New York City, of counsel), for plaintiffs.

Melvin L. Wulf and Joel M. Gora, for the American Civil Liberties Union and the New York Civil Liberties Union, respectively, as amici curiae.

Before MOORE, Circuit Judge and CANNELLA and FRANKEL, District Judges.

MOORE, Circuit Judge.

This is an action brought by the United States pursuant to section 305 of the Tariff Act of 1930, 19 U.S.C. § 1305, for the forfeiture of certain obscene material addressed to Fred Cherry (claimant) and seized by the government upon its entry into the United States at the port of New York. On the motion of Mr. Cherry and with the consent of the government, this three-judge court was convened for the purpose of considering the constitutional challenges by the claimant, raised by counterclaim, to the provisions of § 305 of the Tariff Act. Claimant seeks a declaration that the statute is unconstitutional, and further seeks injunctive relief against the United States restraining its agents from enforcing § 305 against him.

For purposes of decision upon this counterclaim, it was stipulated by the parties that the articles sought to be imported are obscene, that claimant imports such articles (magazine, books and advertising material) for his own private use and not for resale or commercial display, that claimant has from time to time exchanged such articles with other adults well known to him without the payment of money or utilization of advertising, and that the retail value of the articles imported by claimant on any single occasion has never exceeded the sum of $10. The provisions of § 305, the statute claimed to be unconstitutional, insofar as relevant to this decision, are set out in the margin.¹

The counterclaim alleges unconstitutionality of the statute in the following respects:

(1) the statute prohibits importation of obscene material by "all persons" whether or not for commercial dissemination and thereby infringes rights guaranteed to him by the First Amendment to receive such material for his own private use;

(2) the statute imposes unreasonable burdens on the exercise of his First Amendment rights as a noncommercial importer by virtue of the costly and time-consuming procedures through which he must assert such rights, and because the effect of the venue provisions is such that he cannot challenge the censor's determination of obscenity except by judicial proceedings at a considerable distance from his home; and

(3) section 305 fails to assure the prompt and speedy administrative determinations and final judicial decisions which are required by the First and Fifth Amendments.

We agree with the first contention for the reasons which follow.

I. Background

The focus of claimant's major attack on the constitutionality of § 305 is the Supreme Court's decision last year in Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L.Ed.2d 542 (1969). In Stanley, the Court invalidated a Georgia obscenity statute which allowed the state to punish the mere possession of obscene matter because it violated the individual's First Amendment rights and the right of privacy.

In its broadest sense, claimant's argument is premised on the notion that in Stanley the Supreme Court completed a process, hinted at in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) of shifting the ground for decision in obscenity cases away from the doctrine announced in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) that "obscenity" is excepted from the First Amendment protection of free speech and press, to a more traditional balancing-of-interest² approach. In the Roth majority opinion, five members of the Court held "that obscenity is not within the area of constitutionally protected speech or press." 354 U.S. at 485, 77 S.Ct. at 1309. Since that decision, beleaguered courts, both state and federal, have joined the struggle to determine just what manner of material could invoke the suspension of First Amendment freedom guarantees by virtue of being "obscene". Because "obscenity" could not enjoy the protection of the First Amendment—an important foundation stone of fundamental liberty in our constitutional system—the definition of that term became the central battleground. The Supreme Court was understandably reluctant to provoke unwise incursions by government into the areas of free speech and thought, and every justice sitting on that Court since 1957 has individually endeavored to set restrictions on the scope of the new exception.³ Success in the area of definitions has been elusive and confusion has reigned supreme.⁴

Traditional First Amendment analysis⁵ has been applied, however, in those cases subsequent to Roth in which the initial definitional determination produced the conclusion that the material under consideration, although offensive, did not fit within the prevailing definition of "obscenity". E. g., Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). Thus in Redrup v. New York, supra, the Court pointed to three legitimate concerns of the government which may simply outweigh the individual's First Amendment considerations when something akin to "obscene" material is at issue.

The opinion in Redrup incorporated the decision of three cases arising in three different states. Two of the cases involved criminal prosecutions for public sale of two books—"Lust Pool" and "Shame Agent"—and two magazines— "High Heels" and "Spree". The third case involved civil forfeiture upon a judicial declaration that several issues of a number of men's magazines were obscene. The short per curiam opinion⁶ first observed that

in none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; cf. Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. Alexandria, 341 U.S. 662, 71 S.Ct. 920, 95 L.Ed. 1233; Public Utilities Comm'n v. Pollack, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. And in none was there evidence of the sort of "pandering" which the court found significant in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31.

386 U.S. at 769, 87 S.Ct. at 1416. Part I of the Redrup opinion ended there. Part II began with the Court's conclusion "that the cases can and should be decided upon a common and controlling fundamental constitutional basis * * * We have concluded, in short, that the distribution of the publications in each of these cases is protected by the First and Fourteenth Amendments from governmental suppression, whether criminal or civil, in personam or in rem. footnote omitted." The opinion for seven of the justices ended after two short paragraphs following that statement. The first of those paragraphs sketched the four different approaches to the "obscenity" question favored by the nine members of the Court then sitting. There followed a final, somewhat cryptic paragraph:

Whichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand. Accordingly, the judgment in each case is reversed.

Thus—ostensibly at least—"Lust Pool" and "Shame Agent" could not even be considered "hard-core pornography" under the "But know it when I see it" approach of Justice Stewart.⁷ No analysis was offered to distinguish "Lust Pool", for example from similarly transparent pornographic titles which had frequently been held to sustain obscenity convictions and forfeitures in the lower courts. The Court did not in so many words, declare these books "not obscene". Instead it held simply that "the judgments cannot stand." The thought occurs that one may conclude from Redrup that, although obscenity is not protected by the First Amendment, possibly nothing is really obscene. In the two succeeding Supreme Court terms, 21 obscenity judgments were reversed on the authority of Redrup, most without opinion.⁸

Aside from the possible implications of a perhaps strained reading of Redrup, the most reasonable inference to be drawn from that case is that it was meant to serve as a simple summary of the Court's past teaching in the general area of obscenity; i. e., that obscenity could claim no protection from the First and Fourteenth Amendments, and that borderline or "soft-core" material could be regulated, but only insofar as a valid state interest outweighed First Amendment considerations under the traditional balancing approach. However, Stanley v. Georgia now instructs that truly obscene material can invoke constitutional protection, at least in certain situations. Moreover, Stanley referred to Redrup only for the proposition that certain public interests may justify governmental interference with the public distribution of "obscene material." 394 U.S. at 567, 89 S.Ct. 1243. The clear implication is that orthodox First Amendment considerations are once again of paramount importance, Roth notwithstanding, even where the publications in issue are concededly "obscene".

II. Public versus Private Uses of Obscene Matter

The narrow holding of the Stanley decision was "that the First and Fourteenth Amendments prohibit making mere private...