United States v. ONE CARTON POS. MPFE," T. OF PL", Civ. A. No. 68-1941-C.

• Decision Date: 24 April 1970
• Docket Number: Civ. A. No. 68-1941-C.
• Citation: 314 F. Supp. 1334
• Parties: UNITED STATES of America, Libellant, v. ONE CARTON POSITIVE MOTION PICTURE FILM ENTITLED, "TECHNIQUE OF PHYSICAL LOVE" (35 mm. Eastman Color, Four (4) Double Reels, 7200 Feet, German Soundtrack), Claimant.
• Court: U.S. District Court — Eastern District of Louisiana

314 F. Supp. 1334

UNITED STATES of America, Libellant, v. ONE CARTON POSITIVE MOTION PICTURE FILM ENTITLED, "TECHNIQUE OF PHYSICAL LOVE" (35 mm. Eastman Color, Four (4) Double Reels, 7200 Feet, German Soundtrack), Claimant.

Civ. A. No. 68-1941-C.

United States District Court, E. D. Louisiana, New Orleans Division.

April 24, 1970.

James D. Carriere, Asst. U. S. Atty., for libellant.

Charles M. Lanier, New Orleans, La., for claimant.

RUBIN, District Judge.

The United States seeks forfeiture and destruction of a motion picture entitled "Technique of Physical Love" (Technique) pursuant to 19 U.S.C. § 1305 on the ground it is obscene. The film was imported through the Port of New Orleans from Berlin, West Germany for the purpose of general commercial distribution and public display. Shortly thereafter, the District Director of Customs for the Port of New Orleans seized it.

The United States offered as evidence only the film itself and the opinion of a well-qualified psychiatrist. As in any civil forfeiture matter, the United States has the burden of proving by a preponderance of the evidence that the article is obscene. Utley Wholesale Company v. United States, 5 Cir. 1962, 308 F.2d 157. Since the evidence offered by the United States is not sufficient to establish the obscenity of the film, it is not necessary to consider the constitutional issues urged by the owner of the film.

Whether or not a particular work is obscene is "a question of constitutional judgment of the most sensitive and delicate kind." Roth v. United States, 1957, 354 U.S. 476, 498, 77 S.Ct. 1304, 1316, 1 L.Ed.2d 1498 (Harlan, concurring) (Emphasis in original). The First Amendment guarantee of freedom of speech protects against charges of obscenity unless "(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." A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Comm. of Mass., 1966, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1. See also, Ginzburg v. United States, 1966, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31; Mishkin v. State of New York, 1966, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56.

Technique is a four reel, color film with a German sound track. When viewed by the court, it was accompanied by an informal, tape-recorded translation prepared by the Department of Justice.

It opens with a commentator who decries the average person's inadequate knowledge and understanding of the characteristics and functions of the human sex organs and erogenous zones. He further laments that the average person is unmindful of the various possible positions of intercourse, including the relative advantages and disadvantages of each, as well as preliminary techniques of deriving greater mutual satisfaction and pleasure from intercourse.

The scene switches to a moderator clad in medical garb, and a standing, nude man and woman. The moderator, utilizing a tongue depressor, points out the male and female sex organs exhibited by his models. He then discusses the various erogenous zones as the models demonstrate the proper technique for stimulating those zones. The moderator then describes some twenty or so positions of intercourse. First, he demonstrates each position by manipulating articulated mannequins that lack genitalia. Then the live models assume the position and the moderator describes its advantages and disadvantages. When the position is shown from an angle that would emphasize the genitals on the live models, the...