United States v. A Motion Picture Film, No. 569

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLUMBARD, , and FRIENDLY and HAYS, Circuit
Citation404 F.2d 196
PartiesUNITED STATES of America, Plaintiff-Appellee, v. A MOTION PICTURE FILM ENTITLED "I AM CURIOUS-YELLOW" ("Jar Ar Nyfigen-Gul") (35 mm., Black and White 6 Double Reels, 11,746 ft., Swedish soundtrack with English subtitles), Grove Press, Inc., Claimant-Appellant.
Decision Date26 November 1968
Docket NumberNo. 569,Docket 32448.

404 F.2d 196 (1968)

UNITED STATES of America, Plaintiff-Appellee,
v.
A MOTION PICTURE FILM ENTITLED "I AM CURIOUS-YELLOW" ("Jar Ar Nyfigen-Gul") (35 mm., Black and White 6 Double Reels, 11,746 ft., Swedish soundtrack with English subtitles), Grove Press, Inc., Claimant-Appellant.

No. 569, Docket 32448.

United States Court of Appeals Second Circuit.

Argued July 22, 1968.

Decided November 26, 1968.


404 F.2d 197

Edward de Grazia, New York City (Richard T. Gallen, New York City, on the brief), for appellant.

Lawrence W. Schilling, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York and David Paget, Asst. U. S. Atty., on the brief), for appellee.

Before LUMBARD, Chief Judge, and FRIENDLY and HAYS, Circuit Judges.

HAYS, Circuit Judge:

This is an appeal from a judgment of the district court, after a jury trial, ordering the forfeiture and confiscation under Section 305 of the Tariff Act of 1930, 19 U.S.C. § 1305 (1964)1 of the motion picture entitled "I Am Curious-Yellow." We reverse the judgment on

404 F.2d 198
the ground that under standards established by the Supreme Court the showing of the picture cannot be inhibited

"I Am Curious-Yellow" was produced in Sweden and the dialogue is in Swedish; English subtitles have been added. As with many other contemporary artistic productions there can be a difference of opinion as to what the picture is "about."2 It would perhaps not be demonstrably wrong to say that it is concerned with that subject which has become such a commonplace in contemporary fiction and drama, the search for identity. It is the story of a young girl who is trying to work out her relationship to such political, social, and economic problems as the possibility of a classless society, the acceptance of the Franco regime, and the policy and practice of nonviolence. At one point the girl experiments with oriental religious ritual and meditation. The girl's inter-personal relationships are also pictured, including particularly her relation to her father, presented as an idealist who has become disillusioned and has given up meaningful activity. A fairly large portion of the film is devoted to the relations between the girl and her young lover.

A number of different techniques are employed in the production of the film. For example much of the early part is in terms of "cinema verité," showing the girl asking questions on subjects of public importance of the ordinary man or woman in the street. The problem of the nature of reality is suggested by passages representing the girl's fantasies and by the injection into the story of material concerning the making of the picture itself, such as the director's relations with the leading actress.

There are a number of scenes which show the young girl and her lover nude. Several scenes depict sexual intercourse under varying circumstances, some of them quite unusual. There are scenes of oral-genital activity.

It seems to be conceded that the sexual content of the film is presented with greater explicitness than has been seen in any other film produced for general viewing. The question for decision is whether, going farther in this direction than any previous production, the film exceeds the limits established by the courts.

The government argues with considerable cogency that the standards by which motion pictures are to be judged may be different from those that are used in the case of books. It points out that a motion picture reproduces actual conduct so that it can be seen and heard. Books are read by individuals in private, whereas motion pictures are viewed in public. Nudity and sexual activity in motion pictures, it is argued, bear a close resemblance to nudity and sexual activity in a public place. Obviously conduct of this type may be forbidden.

No doubt the standards by which motion pictures are to be judged differ in some particulars from those to be applied to books, see Freedman v. Maryland, 380 U.S. 51, 60-61, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); United States v. One Carton Positive Motion Picture Film Entitled "491," 367 F.2d 889, 907 (2d Cir.1966)

404 F.2d 199
(Lumbard, Ch. J., dissenting); but see Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). Nevertheless the comparison urged by the government between nudity and sexual activity in a public place and the same matters as portrayed in a motion picture such as "I Am Curious" is far fetched. In the motion picture the material is a part of an artistic whole and is united with and related to the story and the characters which are presented. This is vastly different from a sudden unrelated episode taking place in public. The exhibition in a motion picture of an isolated instance of sexual intercourse or of irrelevant nudity, which would indeed be equivalent to public display, could be halted under the established standards, just as could similar material if it appeared in print

Whatever differences there may be in the application of obscenity standards, a motion picture, like a book, is clearly entitled to the protection of the first amendment. Joseph Burstyn, Inc. v. Wilson, supra; Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968). And the test of whether a motion picture is to be condemned is the three-fold test stated in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Atty. Gen. of Com. of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966):

"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."

The issue of the obscenity of "I Am Curious" was submitted to the jury under this three-fold test and the jury found the picture obscene. However, in our view obscenity vel non is not an issue of fact with respect to which the jury's finding has its usual conclusive effect. It is rather an issue of constitutional law that must eventually be decided by the court. As Mr. Justice Harlan said in Roth v. United States, 354 U.S. 476, 497-98, 77 S.Ct. 1304, 1316, 1 L. Ed.2d 1498 (1957) (concurring and dissenting):

"If `obscenity\' is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind. Many juries might find that Joyce\'s `Ulysses\' or Boccaccio\'s `Decameron\' was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are `utterly without redeeming social importance.\'" (Emphasis in original.)

See also the remarks of Mr. Justice Brennan in Jacobellis v. Ohio, supra, 378 U.S. at 187-90, 84 S.Ct. 1676.

Applying the Memoirs standards we find that the picture cannot be classified as obscene on at least two of the three grounds comprising the test.

Although sexual conduct is undeniably an important aspect of the picture and may be thought of as constituting one of its principal themes, it cannot be said that "the dominant theme of the material taken as a whole appeals to a prurient interest in sex." Whatever the dominant theme may be said to be (see footnote 2 supra) it is certainly not sex. Moreover, not only is the sexual theme subordinate, but it is handled in such a way as to make it at least extremely doubtful that interest in it should be characterized as "prurient."

It is even more clear that "I Am Curious" is not utterly without redeeming social value. Whatever weight we may attach to the opinions of the "experts" who testified to the picture's social importance, and whether or not we ourselves

404 F.2d 200
consider the ideas of the picture particularly interesting or the production artistically successful, it is quite certain that "I Am Curious" does present ideas and does strive to present these ideas artistically. It falls within the ambit of intellectual effort that the first amendment was designed to protect

On the issue of whether the picture is "patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters," the jury's verdict may carry more weight. (But see Jacobellis v. Ohio, supra, 378 U.S. at 192-95, 84 S.Ct. at 1680; cf. United States v. Klaw, 350 F.2d 155 (2d Cir. 1965); see also Ginzburg v. United States, 383 U.S. 463, 479-80, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966) (Black, J., dissenting)). However, it is unnecessary for us to pass upon this third test, since the picture is not obscene under the other two of the Supreme Court's standards.

We hold, therefore, that the picture cannot be condemned under Section 305.

FRIENDLY, Circuit Judge (concurring):

This court's responsibility here is limited. We are not, as Chief Judge Lumbard's dissent seems to assume, writing on what is largely a clean slate, but rather on one already well covered by our superiors. Our duty as an inferior federal court is to apply, as best we can, the standards the Supreme Court has decreed with regard to obscenity. That task, to be sure, is not altogether easy in light of the divergence of views within the Court and the consequent multiplicity of opinions; a scholarly article has deduced from the spate of decisions in 1966 no less than "five separate and contradictory tests." Magrath, The Obscenity Cases: Grapes of Roth, 1966 Sup. Court Rev. 7, 56-57.1

If the governing rule were still what Mr. Justice Brennan stated in Roth v. United States, 354 U.S. 476, 489, 77 S. Ct. 1304, 1 L.Ed.2d 1498...

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87 practice notes
  • Cine-Com Theatres Eastern States, Inc. v. Lordi, Civ. A. No. 911-72.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 20 Noviembre 1972
    ...92 S.Ct. 993, 31 L.Ed.2d 258 (1972) and has been adopted as well by Circuit Courts. See e. g., United States, v. A Motion Picture Film, 404 F.2d 196 (2d Cir. 14 See page 47 supra. 15 Since this is not a class action, neither injunctive nor declaratory relief will apply to persons other than......
  • Crownover v. Musick
    • United States
    • United States State Supreme Court (California)
    • 1 Mayo 1973
    ...v. Ohio (1964) 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 ('Les Amants'); United States v. A Motion Picture Film (2d Cir. 1968) 404 F.2d 196 ('I Am The reach of the First Amendment does not depend upon the recordation of a performance on film; the live theatre is a medium of social express......
  • In re Martinez, A134400
    • United States
    • California Court of Appeals
    • 18 Junio 2013
    ...rescued by inclusion of a few verses from the Psalms.” (United States v. A Motion Picture Film Entitled I Am Curious–Yellow (2d Cir.1968) 404 F.2d 196, 201 (conc. opn. of Friendly, J.).) And obscene videos do not have “serious” social value simply because the participants wear condoms and t......
  • U.S. v. Various Articles of Obscene Merchandise, Schedule No. 1769., No. 685
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 25 Mayo 1979
    ...United States v. A Motion Picture Film Entitled "I am Curious (Yellow)," 285 F.Supp. 465, 467-68 (S.D.N.Y.), Rev'd on other grounds, 404 F.2d 196 (2d Cir. 1968); United States v. One Carton Positive Motion Picture Film Entitled "491," 248 F.Supp. 373, 376-77 (S.D.N.Y.1965) and 247 F.Supp. 4......
  • Request a trial to view additional results
87 cases
  • Cine-Com Theatres Eastern States, Inc. v. Lordi, Civ. A. No. 911-72.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 20 Noviembre 1972
    ...92 S.Ct. 993, 31 L.Ed.2d 258 (1972) and has been adopted as well by Circuit Courts. See e. g., United States, v. A Motion Picture Film, 404 F.2d 196 (2d Cir. 14 See page 47 supra. 15 Since this is not a class action, neither injunctive nor declaratory relief will apply to persons other than......
  • Crownover v. Musick
    • United States
    • United States State Supreme Court (California)
    • 1 Mayo 1973
    ...v. Ohio (1964) 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 ('Les Amants'); United States v. A Motion Picture Film (2d Cir. 1968) 404 F.2d 196 ('I Am The reach of the First Amendment does not depend upon the recordation of a performance on film; the live theatre is a medium of social express......
  • In re Martinez, A134400
    • United States
    • California Court of Appeals
    • 18 Junio 2013
    ...rescued by inclusion of a few verses from the Psalms.” (United States v. A Motion Picture Film Entitled I Am Curious–Yellow (2d Cir.1968) 404 F.2d 196, 201 (conc. opn. of Friendly, J.).) And obscene videos do not have “serious” social value simply because the participants wear condoms and t......
  • U.S. v. Various Articles of Obscene Merchandise, Schedule No. 1769., No. 685
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 25 Mayo 1979
    ...United States v. A Motion Picture Film Entitled "I am Curious (Yellow)," 285 F.Supp. 465, 467-68 (S.D.N.Y.), Rev'd on other grounds, 404 F.2d 196 (2d Cir. 1968); United States v. One Carton Positive Motion Picture Film Entitled "491," 248 F.Supp. 373, 376-77 (S.D.N.Y.1965) and 247 F.Supp. 4......
  • Request a trial to view additional results

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