United States v. One Carton Positive Motion Picture Film

• Decision Date: 17 November 1965
• Citation: 247 F. Supp. 450
• 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

247 F. Supp. 450

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.

November 17, 1965.

COPYRIGHT MATERIAL OMITTED

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

Ephraim London, New York City, (of Brennan, London & Buttenwieser), New York City, for claimant, Janus Films, Inc.

GRAVEN, Senior District Judge (by assignment).

1. In this proceeding the Government seeks the forfeiture of an imported motion picture film on the ground that it constitutes obscene material the import of which is prohibited by Section 305 of the Tariff Act (Sec. 1305, Title 19 U.S. C.A.).

2. Section 305 of the Tariff Act (Sec. 1305, Title 19 U.S.C.A.) lists a number of items the import of which is prohibited. Among those items is "obscene" matter. That Section further provides:

"Upon the appearance of any such * * * 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; * * *. Upon the seizure of such * * * matter the collector shall transmit information thereof to the district attorney * * * who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the * * * matter seized. Upon the adjudication that such * * * 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. * * *"

Under that Section, any party in interest may upon demand have the facts or issues determined by a jury and any party may have an appeal or right of review as in the case of ordinary actions or suits. In the present case no demand for a jury was made. Where the Government seeks to forfeit material the importation of which is alleged to be prohibited by Section 305, it proceeds by way of a libel action, which action is conducted under the Admiralty Rules.

The film which is the subject matter of this action was produced in Sweden by an organization known as Svensk Film Industri. It consisted of five double reels of black and white positive, 35mm. motion picture film totalling 9610 feet. It was sought to be imported in this country by Janus Films, Inc., the Claimant herein, a New York corporation which is engaged in the commercial distribution and licensing of motion picture films throughout the country. The dialogue in the film is in Swedish but there are English subtitles. It is what is known and referred to as a feature film.

3. There are a number of issues in this case. The Government contends that the film in question is obscene and hence is not a permissible import under Section 305 of the Tariff Act. The Claimant contends to the contrary. The Claimant challenges the constitutionality of the procedures provided for and followed in connection with the importation of feature films. It also challenges the constitutionality of the provision of Section 305 prohibiting the importation of "obscene" material.

4. This latter challenge will be first considered. The Claimant contends that the word "obscene" is so vague as to violate due process. In the case of Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the United States Supreme Court upheld a state criminal obscenity statute against a similar attack.

It is the contention of the Claimant that that holding is not determinative of the question as to the constitutional adequacy of the word "obscene" as used in Section 305 because that Section provides for pre-exhibition restraint rather than post-exhibition sanctions provided by criminal statutes. The proceedings in connection with an imported film under Section 305 do operate as a pre-exhibition restraint. The proceedings are in rem rather than in personam and are civil rather than criminal in nature.

It would not seem that the United States Supreme Court would regard the word "obscene" as constitutionally sufficient in a criminal proceeding, yet constitutionally inadequate in a civil proceeding involving obscene matter. If that Court should hold that that word was constitutionally inadequate in connection with criminal proceedings, a different situation would be present. While some writers are of the view that the decision of that Court in the Roth case has been somewhat eroded, yet up to now it has not been eroded to the extent that it is no longer authority as to the constitutional adequacy of the word "obscene." It is the view and holding of the Court that Section 305 is not constitutionally inadequate because of the use of the word "obscene."

5. The Claimant makes a contention relating to the quantum of proof in a proceeding to condemn material on the ground of its obscenity. In criminal proceedings under obscenity statutes, the guilt of the party or parties charged must, of course, be established beyond a reasonable doubt. Although the present proceeding is civil in character, it is the contention of the Claimant that because of the constitutional principles involved the Government has the burden of establishing beyond a reasonable doubt the obscenity of the film involved.

In libel proceedings for the condemnation of property allegedly used for illegal purposes, it is not necessary that the Government establish the allegations of the libel beyond a reasonable doubt; it is sufficient if it establishes those allegations by a preponderance of the evidence. D'Agostino v. United States (9th Cir. 1958), 261 F.2d 154, 157, certiorari denied (1959), 359 U.S. 953, 79 S.Ct. 739, 3 L.Ed.2d 760; United States v. One 1955 Mercury Sedan (4th Cir. 1957), 242 F.2d 429; Utley Wholesale Company v. United States (5th Cir. 1962), 308 F.2d 157. The cases cited did not involve the condemnation of allegedly obscene material. Apparently there are no decisions involving the nature of the proof in civil proceedings for the condemnation of material alleged to be obscene. While the United States Supreme Court has adopted a very strict attitude as to proof of obscenity, it has not as yet indicated that in a libel proceeding for the condemnation of material alleged to be obscene it would require that the obscenity of the material be established beyond a reasonable doubt. Apparently it would require that the obscenity of the material sought to be condemned must be clearly established by a preponderance of the evidence. This Court in the present action will follow that apparent rule.

6. The constitutional challenge of the Claimant to the procedures provided for and followed in connection with the importation of feature films requires consideration of certain of those procedures. It appears that ninety per cent of all feature films imported into the United States come to the Port of New York. The procedures hereinafter referred to are the procedures at that port. A motion picture film being imported is accompanied by the usual entry documents prepared by the importer. Upon the arrival of the film it is placed under Customs seal. It is then sent to the projector room of the Collector in New York City. When the sealed package of film arrives at the projector room it is opened and the contents are checked against the documents to determine whether the estimated duty paid is correct, and it is then screened by a Customs' film reviewer. Film reviewers receive periodic instructions concerning the statutes relating to the importation of obscene matter and the court decisions having to do with the matter of obscenity. Following the screening of the film by the reviewer, the reviewer prepares a report. If the reviewer is of the view that the entry of the film is permissible, it is immediately released to the importer. There is no review of such a release. If the reviewer is of the view that the importation of the film might constitute a violation of Section 305, the film is viewed by an Administrative Aide. If the Administrative Aide is of the view that its importation would not be in violation of Section 305, the film is immediately released to the importer. There is no review of such a release. In the event that the Administrative Aide is of the view that it unquestionably appears that the film is not importable under Section 305, the film is transmitted to the United States District Attorney for the Southern District of New York for the institution of libel proceedings. In the event that the Administrative Aide is of the view that it does not unquestionably appear that the film is not importable under Section 305, it is transmitted to the Assistant Deputy Commissioner of Customs at Washington, D. C. That Assistant Deputy Commissioner views the film. If he is of the view that its importation would not constitute a violation of Section 305, it is released to the importer. There is no review of such a release. If the Assistant Deputy Commissioner is of the view that the film might not be importable under Section 305, it is then transmitted to the Customs Office at the Port of New York and by that Office transmitted to the United States District Attorney for the Southern District of New York for the institution of libel proceedings against it. Where a film is detained because of question as to its importability under Section 305, the importer is immediately notified that the film is being temporarily detained. Upon being so notified the importer has several options. It may consent to the forfeiture of the film; it may export the film; it may also take no action and let the Government proceed against it. The choice is solely that of the importer. In some cases where a film is being detained because of question as to its importability, the importer sometimes seeks an informal conference with the Assistant...