United States v. One Reel of Film, Civ. A. No. MC 73-54.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtJohn J. Crowley, Jr., Boston, Mass., for claimant
Citation360 F. Supp. 1067
PartiesUNITED STATES v. ONE REEL OF FILM.
Decision Date15 May 1973
Docket NumberCiv. A. No. MC 73-54.

360 F. Supp. 1067

UNITED STATES
v.
ONE REEL OF FILM.

Civ. A. No. MC 73-54.

United States District Court, D. Massachusetts.

May 15, 1973.


Frederic R. Kellogg, Asst. U. S. Atty., for plaintiff.

John J. Crowley, Jr., Boston, Mass., for claimant.

MEMORANDUM

FRANK J. MURRAY, District Judge.

This case came on to be heard by the court sitting without jury on the complaint filed by the United States Attorney for this district alleging that the film "Deep Throat" is obscene and immoral, and seeking an order for forfeiture of the film and its container pursuant to the provisions of 19 U.S.C. § 1305(a).1

360 F. Supp. 1068

The film in the form viewed by the witnesses and the court, and its container, arrived at Logan Airport, Boston, on March 13, 1973, having been imported into the United States from Canada by Sack Theatres Corp., a corporation with its place of business in Boston. On March 16 the film and container were seized by authorized officers of the United States Customs Service, and this complaint was filed thereafter. Gerard Damiano Film Productions, Inc., a corporation with its usual place of business in New York City, filed a notice of claim as owner of the film, and has defended against the complaint and the forfeiture sought thereby.

This is a civil proceeding against the film itself, not a criminal prosecution, and the court has jurisdiction under 28 U.S.C. § 1355 and 19 U.S.C. § 1305. Forfeiture pursuant to section 1305(a) would suppress the film entirely, and this the First Amendment forbids unless "Deep Throat" is found proscribably obscene. See United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1970). Since the film was imported for commercial use only, the court's inquiry will be limited to intended exhibition of "Deep Throat" to audiences of adults in a public theatre where entertainment films are shown for an admission price. No evidence of any advertisement or intended promotion of "Deep Throat" was offered, hence, the question of pandering is not involved.

I

At the trial it was stipulated that "Deep Throat" is a 35-millimeter film, runs for approximately sixty (60) minutes, and is in color with a sound track. During the argument the claimant represented that the film was imported for commercial use in public theatres where entertainment films are shown for an admission price. Expert witnesses were called by each party and gave testimony. The film and its container were received in evidence, and are incorporated herein by reference and made part hereof.

"Deep Throat" contains scenes of explicit heterosexual intercourse, including group sex, and emphasizes various scenes of explicit penetration, fellatio, cunnilingus, female masturbation, anal sodomy, and seminal ejaculation. None of the scenes of sexual activity is simulated. One scene, referred to at the trial by counsel as the "Coca-cola scene", involved behavior of extraordinary, unbelievable and bizarre character on the part of the female star and a male. No attempt was made to count or tabulate the various scenes of sexual activity. But they dominate the film in depiction and running time to such extent that, following the opening innocuous few minutes (probably not more than eight) until "The End" flashes on the

360 F. Supp. 1069
screen, scenes of sexual acts cascade one upon the next with minor interruptions. All these are accompanied by musical sounds and some dialogue, and enlivened on two occasions with bells ringing, bombs and rockets bursting. Camera angles and close-ups give maximum emphasis in time and dimensions to the genitalia during the sexual exhibitions

In its explicitness "Deep Throat" goes beyond any film which has been examined by the courts, and probably beyond anything thus far exhibited in public theatres in this country. See People of State of New York v. Mature Enterprises, Inc., Criminal Court of City of New York, 1973, 343 N.Y.S.2d 911. The explicit sexual activity displayed is hardly comparable to other films considered by the federal courts and found to be non-obscene. Compare Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (one explicit love scene on last reel of film); United States v. 35 MM. Motion Picture Film Entitled "Language of Love", 432 F.2d 705 (2d Cir. 1970) (explicit sexual scenes, a close-up of a gynecological examination done by bona-fide Swedish physicians, and an explicit sequence of female masturbation); United States v. One Motion Picture Film Entitled "I Am Curious Yellow", 404 F.2d 196 (2d Cir. 1968) (explicit sexual scene taking 10 minutes of a total of 120); United States v. One Carton Positive Motion Picture Film Entitled "491", 367 F.2d 889 (2d Cir. 1960) (act of sodomy, homosexuality, self-mutilation, prostitution); United States v. One Carton Positive Motion Picture Film Entitled "Technique of Physical Love", 314 F. Supp. 1334 (E.D.La.1970) (demonstration by models of various positions of sexual intercourse, no explicit sexual activity).

II

The sole disputed issue at the trial was whether "Deep Throat" is obscene and therefore not protected by the First Amendment. Evidence offered by the parties related to the Roth-Memoirs2 tests, so called, on the question of obscenity of the film, tests which have been the subject of extended consideration by the members of the Supreme Court. In the recent case of United States v. Palladino, 475 F.2d 65 (1st Cir. 1973), these tests were stated as follows:

The three-fold test of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), is semantically clear: (1) do the materials, taken as a whole, appeal primarily to prurient interests of the average adult or, if directed to deviants, to the prurient interests of the intended group, Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966)?; (2) are the materials patently offensive because they affront contemporary community standards relating to sexual matters?;2 and (3) are the materials utterly without redeeming social value?.
2 We have previously held that in federal prosecutions the referent for such standards is the nation. Excellent Publications, Inc. v. United States, 309 F.2d 362, 365 (1st Cir. 1962). . . .

Id. at 69.

To meet its burden of proof under the Roth-Memoirs tests the Government presented the testimony of three expert witnesses.3 The claimant also offered

360 F. Supp. 1070
testimony of three experts.4 Aside from the possible exposure of the court to "perhaps much testimonial nonsense" (see United States v. Palladino,
360 F. Supp. 1071
at 72), the court was thus "exposed to opinions and made to think about whether the `dominant' theme is an appeal to `prurient interests' and, if so, to what groups; whether material is `patently offensive' because it affronts `contemporary' and national standards relating to the description of sexual matters; and whether the material is `utterly without redeeming social value?'" Id. With such fixations paramount, the court thus by-passes the "I know it when I see it" test referred to by Justice Stewart, concurring in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). Adverting to the foregoing, however, it must also be said that the testimony of experts is not to displace the court in determining the ultimate question of obscenity of the film. See Smith v. California, 361 U.S. 147, 165, 80 S.Ct. 215, 4 L.Ed.2d 205 (1964) (Frankfurter, J., concurring)

As to the first test (appeal to prurient interest), the Court said in Roth that "obscene material is material which deals with sex in a manner appealing

360 F. Supp. 1072
to prurient interest". 354 U.S. at 487, 77 S.Ct. at 1310. Prurience in the portrayal of sex is equated with "material having a tendency to excite lustful thoughts", "lascivious desire or thought". Id. at 487, n.20, 77 S.Ct. at 1310. The material is to be adjudged obscene if "to the average person . . . the dominant theme of the material taken as a whole appeals to prurient interest". Id. at 489, 77 S.Ct. at 1311

The "patently offensive" criterion depends upon the national community standards. In Palladino Judge Coffin noted that "national standards are, to say the least, elusive beasts. A determination of whether a document exceeds the national level of tolerance requires some exposure not just to publications of national or broad regional scope, but also to the views, attitudes, habits and tastes of other communities with different climates, cultures, and histories". 475 F. 2d at 73.

It is pointed out in Memoirs v. Massachusetts, 383 U.S. 413 at 419, 86 S.Ct. 975 at 978, 16 L.Ed.2d 1 (1966) that "the social value of the material can neither be weighed against nor canceled by its prurient appeal or patent offensiveness", but is to be applied independently. Justice Brennan said in Jacobellis v. Ohio, 378 U.S. 184 at 191, 84 S.Ct. 1676 at 1680, 12 L.Ed.2d 793: ". . . material dealing with sex in a manner that advocates ideas . . . or that has literary or scentific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection". In determining whether the treatment and portrayal of sex in any materials has social value...

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