United States v. One Obscene Book Entitled" Married Love"

• Citation: 48 F.2d 821
• Parties: UNITED STATES v. ONE OBSCENE BOOK ENTITLED "MARRIED LOVE." Claim of G. P. PUTNAM'S SONS.
• Decision Date: 06 April 1931
• Court: U.S. District Court — Southern District of New York

48 F.2d 821 (1931)

UNITED STATES v. ONE OBSCENE BOOK ENTITLED "MARRIED LOVE."

Claim of G. P. PUTNAM'S SONS.

District Court, S. D. New York.

April 6, 1931.

George Z. Medalie, U. S. Atty., of New York City (Morton Baum, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Greenbaum, Wolff & Ernst, of New York City (Morris L. Ernst and Alexander Lindey, both of New York City, of counsel), for claimant.

WOOLSEY, District Judge.

I dismiss the libel in this case.

I. The first point with which I shall deal is as to the contention that the section of the Tariff Act under which this libel was brought, title 19, U. S. C., § 1305 (19 USCA § 1305), is unconstitutional as impinging on the right of the freedom of the press. I think there is nothing in this contention. The section does not involve the suppression of a book before it is published, but the exclusion of an already published book which is sought to be brought into the United States.

After a book is published, its lot in the world is like that of anything else. It must conform to the law and, if it does not, must be subject to the penalties involved in its failure to do so. Laws which are thus disciplinary of publications, whether involving exclusion from the mails or from this country, do not interfere with freedom of the press.

II. Passing to the second point, I think that the matter here involved is res adjudicata by reason of the decision hereinafter mentioned.

This is a proceeding in rem against a book entitled "Married Love," written by Dr. Marie C. Stopes and sent from England by the London branch of G. P. Putnam's Sons to their New York office.

The libel was filed under the provisions of Title 19, U. S. C., § 1305 (19 USCA § 1305), which provides, so far as is here relevant, as follows:

"§ 1305. Immoral Articles — Importation Prohibited. (a) Prohibition of importation. All persons are prohibited from importing into the United States from any foreign country * * * any obscene book, pamphlet, paper, writing, advertisement, circular, print, pictures, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for the prevention of conception or for causing unlawful abortion. * * * No such articles, whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles * * * shall be subject to seizure and forfeiture as hereinafter provided: * * * Provided further, that the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes."

Then it goes on:

"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. * * * Upon the seizure of such book 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."

The book before me now has had stricken from it all matters dealing with contraceptive instruction and, hence, does not come now within the prohibition of the statute against imports for such purposes, even if a book dealing with such matters falls within the provisions of this section — which I think it probably does not — and the case falls to be dealt with entirely on the question of whether the book is obscene or immoral.

Another copy of this same book, without the excision of the passages dealing with contraceptive matters, was before Judge Kirkpatrick, United States District Judge for the Eastern District of Pennsylvania, on a forfeiture libel under the Tariff Act of 1922, and he ruled that the book was not obscene or immoral, and directed a verdict for the claimant.¹

Although the government took an exception to this ruling at the time of the trial, it did not mature this exception by an appeal, and the case therefore stands as a final decision of a coordinate court in a proceeding in rem involving the same book that we have here. The answer in this case is amended and pleads res adjudicata on the ground of the proceedings had before Judge Kirkpatrick which involved exactly the same question as...