US v. Various Articles of Obscene Merchandise, 81 Civ. 5295 (RWS).
| Decision Date | 29 September 1982 |
| Docket Number | No. 81 Civ. 5295 (RWS).,81 Civ. 5295 (RWS). |
| Parties | UNITED STATES of America, Plaintiff, v. VARIOUS ARTICLES OF OBSCENE MERCHANDISE, SCHEDULE NO. 2102, Defendant. |
| Court | U.S. District Court — Southern District of New York |
John S. Martin, Jr., U.S. Atty., S.D.N.Y., New York City, for U.S.; Jonathan A. Lindsey, Asst. U.S. Atty., New York City, of counsel.
In an opinion dated November 3, 1981, I dismissed the Government's complaint which sought the forfeiture and condemnation of various articles of allegedly obscene merchandise pursuant to 19 U.S.C. § 1305(a) and held that the materials are not patently offensive to the average person in this community. One factor in this determination of contemporary community standards was my conclusion that an element of the standard included a community belief that the right to "free expression ought not to be compromised by government restrictions." United States v. Various Articles of Obscene Merchandise, 81 Civ. 5295, slip op. at 16 (S.D.N.Y.) (November 3, 1981), reversed and remanded, 678 F.2d 433 (2d Cir.1982). Upon appeal the Court of Appeals reversed on the ground that "community tolerance of section 1305 is irrelevant to the determination of obscenity," at 434, and remanded the case for this court "to determine whether each of the articles listed in Schedule 2102 is in fact `patently offensive' under contemporary community standards." At 435.
Delineating the contemporary community standards is a hazardous undertaking in the absence of any evidence and when the normal adversarial process is lacking. In the majority of the forfeiture proceedings of this nature, the Government is unopposed, but determination by default has been held to be inappropriate. United States v. Various Articles of Obscene Merchandise, 600 F.2d 394 (2d Cir.1979). However, the Government is not required to and did not offer any evidence of the community standard. Id. at 398-400. The District Judge is therefore unaided in discerning the shifts in the community standard. Although the Court could subpoena an expert witness, there is no authority to fund such testimony or to conduct the sort of opinion study that might provide some objective evidence of community standards as well as a statistical analysis to assist in reconciling the obvious diversity extant in this District.
The survey of reports on pornography described in this court's prior opinion, slip op. at 5-8, indicates widespread community acceptance. In addition to the articles in the Congressional Quarterly, The New York Times, Newsweek, Fortune and other journals, the findings of the Report of the National Commission on Obscenity and Pornography (September 1970), support the conclusion that under...
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