United States v. New Orleans Book Mart, Inc.
| Decision Date | 10 February 1971 |
| Docket Number | 32188.,32225,32226,Crim. A. No. 32093,32216,32215 |
| Citation | 328 F. Supp. 136 |
| Parties | UNITED STATES of America v. NEW ORLEANS BOOK MART, INC. and Fred Lund. UNITED STATES of America v. PEACHTREE NEWS COMPANY, Inc., New Orleans Book Mart, Inc., Robert Mitchum, and Frederic Eno-Mayhew Lund. UNITED STATES of America v. GRAVIER STREET BOOK MART, Michael G. Thevis, John C. Martin, and Peachtree News Company, Inc. UNITED STATES of America v. Michael George THEVIS, Peachtree News Company, Inc., Frederic E. Lund, and New Orleans Book Mart, Inc. (two cases). UNITED STATES of America v. Steve SCOTT. |
| Court | U.S. District Court — Eastern District of Louisiana |
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Michael Ellis, Asst. U. S. Atty., for plaintiff.
Jack Peebles, Metairie, La., for defendants.
Defendants, indicted for transporting obscene materials in interstate commerce, in violation of 18 U.S.C. §§ 1462 and 1465, assert that the materials cannot be considered obscene under the First Amendment, and, that the statutes are unconstitutional for a variety of reasons. An abundant record has been made. Those materials contended to be obscene are seventeen paper cover, magazine type, printed publications featuring photographs of nude persons and two movies.
Some of the publications deal principally with females, some with males, and others are heterosexual. Those featuring females have some photographs of single females, but each also has photographs of several females together or of females and males together in poses that depict sexual activity or suggest it in terms so explicit that nothing is left to the imagination.1
A few of the publications featured photographs of nude males, frequently adolescent boys, sometimes displaying penile erections. Only one publication, however, had photographs of one person alone. This was called "Auto Fellatio and Masturbation", and featured photographs of men engaged in practicing fellatio on themselves, or in the apparent act of masturbation.
Each party presented witnesses expert in psychology and psychiatry. None of the witnesses indicated that the publications would be without effect on the viewer. However the defense witnesses thought the effect would be sexual arousal of short duration. They noted no inconsistency between considering the effect of these photographs transient and without impact on the viewer's future intellectual and social life and the conventional age old supposition that we learn from what we see and read, and that ideas thus imparted can become a permanent part of one's intellect and produce a lasting effect on his life. The defense witnesses indicated that, accompanied with proper treatment, the publications could have a permanent beneficial effect on married couples with sexual problems.2
In sum, the defense witnesses testified that they did not consider the publications obscene;3 to the extent the photographs influenced conduct in any lasting way, the influence was beneficent; and they did not consider that any of the publications would stimulate the viewer to commit a sex crime. A few persons might be shocked by seeing these pictures, but, with therapy from the witnesses, this would produce no lasting ill effects.
However, the defense witness whose testimony was most persuasive, a practicing psychiatrist, thought that some viewers might be encouraged to perform sexual acts they would otherwise not attempt as a result of seeing such photographs. Being allowed to purchase and see photographs of this kind would imply to some persons, this witness said, societal sanction for a type of conduct the individual might otherwise consider forbidden.
The prosecution witnesses found some of the photographs in each publication obscene. They thought the photographs might stimulate persons who had latent sexual problems to "act out" their desires in a manner that would be criminal. They did not think that seeing the photographs would cause a normal person to commit a criminal act.
It was evident that, while these witnesses for both defense and prosecution testified as experts, many of them viewed their roles as advocates. All but one or two had a priori convictions concerning the undesirability or desirability of legislation in this area, and their primary interest was either in attacking or defending it. "Having in most cases chosen their sides as moralists," as Murray Kempton said in reviewing the Report of the Presidential Commission on Obscenity, "they seemed to feel the need to present themselves as utilitarians and to give weight to dubious research which, as practical men, they would be embarrassed to claim as the basis for sound principle."4
The Report of the Commission on Obscenity and Pornography ("The Report") was introduced and commented on by various witnesses. The findings of a majority of the Commission, as Mr. Kempton notes, "permit and indeed encourage the inference that," as the defense witnesses testified, "pornography, if it can be said to have an effect at all, tends to be good for you." Ibid.5
Considering the Report and all of the testimony, there is at this time no convincing scientific proof that pornography is or isn't harmful. Indeed, the dissenters on the Commission thought that it is "doubtful that we will ever" have such proof "because of the extreme complexity of the problem and the uniqueness of the human experience. * * *" Report, p. 489.
When, in 1873, under the influence of Anthony Comstock, see dissent of Mr. Justice Douglas, in Ginsberg v. N. Y., at 390 U.S. 629 at 654, 88 S.Ct. 1274, 20 L.Ed.2d 195, Congress enacted the statute under which the defendants were indicted, it had none of this evidence before it. It acted on the basis, presumably, of an intuitive judgment much like Nietzsche's, "He who gazes on monsters should beware lest he become a monster himself."
There can be no doubt that the statute is moralistic; it is predicated on the hypothesis that chastity and conventionality in sexual relations are desirable, that viewing photographs or reading materials that encourage sexuality are undesirable, and that the law ought to punish things that might encourage deviation from conventional sexual behavior. In terms it identifies an obscene publication by labeling it lewd and filthy; it equates such a publication with other matter of an indecent character.
The Report considered that legislation in this area ought to be narrowly restricted. But this court may not concern itself with whether the statute is wise; the only questions are whether the Constitution prevents the court from finding these materials obscene or if it does not, whether it forbids Congress to enact this law. This decision must turn on the First Amendment, not merely on questions of logical relevance to the end sought and other issues that might be considered were we concerned only with due process.
Despite the plethora of obscenity cases that have inundated the Supreme Court since the premier decision in Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, a majority of the Justices have never agreed on a definition of obscenity or on criteria that enable a court to determine what is obscene. However, some of the justices have indicated that, before material can constitutionally be classified as obscene, it must be submitted to every one of three tests: First, the dominant theme of the material taken as a whole must appeal to a prurient interest in sex. Second, the material must be patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. Third, the material must be utterly without redeeming social value. A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 1966, 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1.
In applying these tests, the court is obliged to make an independent constitutional judgment as to whether the material involved is constitutionally protected. Jacobellis v. Ohio, 1964, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793.
In oral findings of fact at the conclusion of the hearing, I commented on each of the publications at length. It would be redundant to repeat those comments here. However, a few more general observations may be pertinent.
The defense witnesses think that none of the photographs in any of the seventeen publications appeal to a prurient interest. They define "prurient appeal" as a morbid or sick appeal; they say that the pictures do not appeal to a sick interest but to normal sexual curiosity. These witnesses considered that human curiosity about seeing the portrayal of sex acts, however deviant or morbid the act itself might be, is a normal emotion. Of course, if it is normal to be curious about aberrational conduct, nothing could appeal to "prurient interest." Some of the defense witnesses testified that the pictures would have a morbid appeal only to people who are themselves emotionally diseased. Persons whose psychosexual lives are warped would find a morbid appeal in some of these photographs but this would not harm even these emotional cripples; the photographs would be a crutch in their hermitic sex lives.
The word "prurient" was defined in footnote 20 to the opinion in Roth v. United States, 1957, 354 U.S. 476, 487, 77 S.Ct. 1304, 1 L.Ed.2d 1498, to lack "significant difference" from the definition in the A.L.I. Model Penal Code, § 207.0(2) (Tent.Draft No. 6, 1957): "a shameful or morbid interest in nudity, sex or excretion." These definitional terms are all pejoratives: "shameful" is defined by the dictionary as "disgraceful or indecent", "morbid" means "psychologically unhealthy." Each definition in turn invites another, subjective and invidious.
The word "prurient" itself implies a value judgment. Like many other words used in law to express social worth or lack of...
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