United States v. One Carton Positive Motion Picture Film

• Decision Date: 05 August 1965
• Citation: 248 F. Supp. 373
• Parties: UNITED STATES of America, Libellant, v. ONE CARTON POSITIVE MOTION PICTURE FILM ENTITLED "491" (35 mm. Black & White, 5 Double Reels, 9610 feet, Swedish Soundtrack with English Subtitles), Janus Films, Inc., Claimant.
• Court: U.S. District Court — Southern District of New York

248 F. Supp. 373

UNITED STATES of America, Libellant, v. ONE CARTON POSITIVE MOTION PICTURE FILM ENTITLED "491" (35 mm. Black & White, 5 Double Reels, 9610 feet, Swedish Soundtrack with English Subtitles), Janus Films, Inc., Claimant.

United States District Court S. D. New York.

August 5, 1965.

Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, for libellant, Arthur S. Olick, Asst. U. S. Atty., of counsel.

Brennan, London & Buttenwieser, New York City, for claimant, Ephraim London, New York City, of counsel.

McLEAN, District Judge.

This is an action pursuant to 19 U.S.C. § 1305 to forfeit and confiscate a motion picture made in Sweden which was seized by the customs authorities after its arrival in this country on the ground that it is obscene. The claimant, the importer of the film, moves for summary judgment.

Claimant first contends that the film is not obscene. In a series of recent decisions, the Supreme Court has defined that word. It has held that to be obscene a book, picture or film must be (1) utterly without social significance; (2) patently offensive; and (3) it must deal with sex in a manner appealing to prurient interest.

Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)

Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.E.2d 639 (1962)

Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964)

As to the third factor, the test is:

"* * * whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."

Roth v. United States, 354 U.S. at 489, 77 S.Ct. at 1311.

The film was exhibited to me. It is a thoroughly nasty work. Sordid and brutal from beginning to end, it is highlighted by scenes of homosexuality, rape, prostitution and sodomy. If it has any social significance, as claimant says it has, that significance can only be the author's thesis that human beings are vile. I incline to the view that even this dreary message is merely a sham, and that it is the pornography upon which the maker and the importer rely to sell the picture. If this film were distributed commercially throughout the United States, as claimant says it desires to do, whether or not its showing is restricted to adults, it would, in my opinion, be an affront to the inherent decency of the American public.

Whether or not the film is obscene is a question of fact. Claimant asks me to hold as a matter of law that no reasonable trier of the fact could find this film to be obscene. This contention seems to me to be without merit. I believe that a reasonable trier of the fact could find this film to be obscene. Whether it is so found or not must await decision at the trial.

Very recently, the Court of Appeals has held in a criminal prosecution for mailing obscene pictures that the government does not make out a prima facie case sufficient to get to the jury merely by introducing the pictures themselves. Some further evidence is necessary to show that the pictures appeal to a prurient interest.

United States v. Klaw, 350 F.2d 155 (2d Cir., July 15, 1965)

Whether this rule applies to a condemnation proceeding such as this, the Court of Appeals had no occasion to decide. Even if it does, however, it has been complied with here, for in opposition to this motion the government has submitted affidavits from two customs officials who have had years of experience in screening obscene films and should be in a position to give expert opinion as to whether or not a film is obscene. In their opinion, this film is. These affidavits are sufficient to raise a question of fact. Moreover, more expert testimony may be adduced at the trial, subject to the test of cross-examination. Where expert testimony is necessary to resolve an issue of fact, summary judgment is inappropriate.

Cf. Vacheron & Constantin-Le Coultre Watches, Inc. v. Benrus Watch Company, Inc., 260 F.2d 637 (2d Cir. 1958)

As far as the issue of obscenity goes, therefore, claimant is not entitled to summary judgment.

Claimant next contends that 19 U.S.C. § 1305 is unconstitutional. That section provides, in pertinent part, that "All persons are prohibited from importing into the United States from any foreign country * * * any obscene book * * * print, picture * * * or other representation * * *." It provides further that "No such articles * * * shall be admitted to entry" and that "all such articles * * * shall be subject to seizure and forfeiture as hereinafter provided * * *."

The statute goes on to provide that:

"Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the collector to await the judgment of the district court as hereinafter provided; and no protest shall be taken to the United States Customs Court from the decision of the collector. Upon the seizure of such boook or matter the collector shall transmit information thereof to the district attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section.

In any such proceeding any party in interest may upon demand have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the case of ordinary actions or suits."

Claimant says that the word "obscene" is too vague. I am not impressed by this contention. As heretofore pointed out, the Supreme Court has recently taken some pains to define this word as it appears in other statutes, federal and state. I see no reason why the word should have any different meaning in this statute, or why customs officials and this court in a proceeding under this statute should be unable to apply the Supreme Court's definition to the facts of the particular case. In Roth, the Supreme Court expressly held that the word obscene is not too vague and imprecise to violate due process (354 U.S. at 491-492, 77 S.Ct. 1304). That conclusion applies here.

Claimant further attacks the constitutionality of Section 1305 on the ground that it provides for administrative "censorship" without adequate provision for judicial review, and because it does not afford procedural safeguards to assure that non-obscene matter will not be seized. On the first branch of this argument, claimant relies on Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), in which the Supreme Court invalidated a state film censorship statute. On the second branch of its argument, claimant relies upon a series of...