United States v. Two Obscene Books

• Decision Date: 17 September 1951
• Docket Number: No. 25449.,25449.
• Citation: 99 F. Supp. 760
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. TWO OBSCENE BOOKS.

99 F. Supp. 760

UNITED STATES v. TWO OBSCENE BOOKS.

No. 25449.

United States District Court N. D. California, S. D.

September 17, 1951.

Chauncey Tramutolo, U. S. Atty., Reynold H. Colvin, Asst. U. S. Atty., San Francisco, Cal., for libelant.

George Olshausen, San Francisco, Cal., for claimant.

GOODMAN, District Judge.

The question presented in this case is whether or not two books authored by one Henry Miller and entitled "Tropic of Cancer" and "Tropic of Capricorn" should be excluded from the United States pursuant to Section 305 of the Tariff Act of 1930, 19 U.S.C.A. § 1305, which prohibits the importation into the United States, inter alia, of obscene books.

The two books in question were seized in the Port and Collection District of San Francisco by the Collector of Customs pursuant to 19 U.S.C.A. § 1305.

The United States filed a libel of information charging that the two books were imported into the United States in violation of the statute and prayed for their forfeiture and destruction. An answer to the libel was filed by one Ernest Besig, Director of the American Civil Liberties Union of Northern California, as Claimant. He prayed for the return of the books to him. Thus there is raised the issue whether the books are obscene.

After issue, the Claimant moved for a commission to issue to take the depositions of nineteen alleged literary critics throughout the United States and foreign countries. The two books were stipulated to be appended to the motion and to be considered by the Court in determining the motion.

The Court denied the motion upon the ground that the issuance of the commission was unnecessary inasmuch as obscenity, being a question of fact, could be determined by reading the books. U. S. v. Two Obscene Books, D.C.1950, 92 F.Supp. 934.

Upon the trial of the case¹ the two books were offered and received in evidence. As well, the Claimant submitted eighteen published reviews of the works of Henry Miller and fifteen letters and two affidavits of critics giving their opinion as to the two books. The United States submitted a book review and a letter from a University Professor of English Literature.

I adhere to the view expressed in 92 F.Supp. 934, supra, that, since obscenity is a question of fact to be determined by the Court, or jury under appropriate instructions, opinions of so-called experts or critics are immaterial. Nevertheless the Court has given consideration to the book reviews and statements of the critics.

I find and conclude that "Tropic of Cancer" and "Tropic of Capricorn" are obscene. The prayer of libelant must therefore be granted.

There has been considerable judicial writing not only since the effective date of the Tariff Act of 1930 but also in connection with proceedings under 18 U.S.C.A. § 1461, formerly 18 U.S.C.A. § 334, having to do with mailing of obscene matter, concerning the standards by which obscenity is to be determined. In the Federal field in modern times, starting with Judge Woolsey's famous opinion in United States v. One Book Called "Ulysses," D.C.S.D.N.Y. 1933, 5 F.Supp. 182, there have been a number of decisions on the subject.²

There is a tendency, as indicated in the decisions of the Court of Appeals of the 2nd Circuit and the District of Columbia, (footnote 2), to "liberalize" the definition of obscenity as it has come to us from the English Courts.³

The Claimant here, as well as some of the critics and reviewers who speak in his behalf, have presented a species of "confession and avoidance" defense of Henry Miller. The many long filthy descriptions of sexual experiences, practices and organs are of themselves admitted to be lewd. They are sought to be justified by the claim that the books as a whole have an artistic pattern, into which the obscene and scatological portions fit as part of a whole literary mosaic. But I must conclude that this is mere sophistry. The filthy scatological portions are written in a bluntly different and distinct style from the pretentious metaphysical reflective manner of writing otherwise. Thus the conclusion is justified that either the alleged literary ability of the author deserted him or that he had his eye on "the box office."

It may be that the modern trend towards frankness in sexual matters has influenced the viewpoint of claimant and the critics who espouse the cause of Miller. Certainly, the theatre, the moving pictures, other similar media and Mr. Kinsey⁴ may have affected our attitude as to such matters. It is sufficient to say, however, that the many obscene passages in the books have such an evil stench that to include them here in footnotes⁵ would make this opinion pornographic. For example, there are several passages where the female sexual organ and its function are described...