Volanski v. United States, 12968.

• Decision Date: 07 June 1957
• Docket Number: No. 12968.,12968.
• Citation: 246 F.2d 842
• Parties: Steve VOLANSKI, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

246 F.2d 842 (1957)

Steve VOLANSKI, Appellant, v. UNITED STATES of America, Appellee.

No. 12968.

United States Court of Appeals Sixth Circuit.

June 7, 1957.

Michael A. Picciano and Alan Meltzer, Cleveland, Ohio, for appellant.

James Carroll, Cleveland, Ohio (Sumner Canary, Cleveland, Ohio, on the brief), for appellee.

Before MARTIN, MILLER and STEWART, Circuit Judges.

STEWART, Circuit Judge.

This is an appeal from a judgment of conviction and sentence of appellant to three years' imprisonment under an indictment charging that he knowingly took, accepted and received from an express company in Cleveland, Ohio, a shipment from Baltimore, Maryland, of three cartons containing numerous twelve-set, lewd, obscene and lascivious pictures in violation of Section 1462, Title 18 U.S.C.A. The case was tried to the district judge without intervention of a jury.

Each set of the pictures in question consists of twelve photographs of a young woman in various poses and various stages of undress. In none of the frontal views is the subject totally unclothed below her waist. In some of the posterior views she is. The photographs are without even tenuous pretensions to artistic or scientific merit. They are unaccompanied by any text. Although some of the poses are rather bizarre, no subject is shown engaged in any indecent or immoral activity.

Despite the objection of appellant's counsel a psychiatrist was permitted at the trial to state his opinion as to the effect that the pictures would have upon sadists, masochists, and other types of sexual deviates, and also to state his expert opinion that the pictures would have an undesirable effect upon juveniles. That the court's decision was based in large part on this evidence is revealed by the trial judge's oral opinion.¹

The admission of this evidence was prejudicial error. Obscenity is not to be measured by the reactions of any particular class or group of the population, but by the standard of the community as a whole. Perhaps the best known American decision in this field of law is United States v. One Book Entitled "Ulysses," 2 Cir., 1934, 72 F.2d 705, affirming D.C.S.D.N.Y., 1933, 5 F. Supp. 182. District Judge Woolsey's opinion in that case admirably states the correct test of obscenity. What must be measured is "its effect on a person with average sex instincts — what the French would call l'homme moyen sensuel — who plays, in this branch of legal inquiry, the same role of hypothetical reagent as does the `reasonable man' in the law of torts and `the man learned in the art' on questions of invention in patent law." 5 F.Supp. 184. "It is only with the normal person that the law is concerned." 5 F.Supp. 185.

This now generally accepted test seems to have been first advanced by Learned Hand, then a district judge, when he said, "To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy." United States v. Kennerley, D.C.S.D.N.Y., 1913, 209 F. 119, 121.

In recent years other courts have postulated this standard in a variety of verbal forms. "`The test is not whether it would arouse sexual desires or sexually impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish. * * * In other words, you must determine its impact upon the average person in the community.'" United States v. Roth, 2 Cir., 1956, 237 F.2d 796, 801, footnote 1 (quoting the trial court's instructions to the jury). "Social standards are fixed by and for the great majority and not by or for a hardened or weakened minority." One, Incorporated v. Olesen, 9 Cir., 1957, 241 F.2d 772, 777. "A picture is not to be banned as obscene because of its possible effect, not upon the average citizen but only upon the irresponsible, the immature, or the sensually minded." Maryland State Board of Motion Picture Censors v. Times Film Corp., 1957, 212 Md. 454, 129 A.2d 833, 837. "It is believed that the cases establish that the `standard of the community' has been substituted for the `standard of the weak and susceptible', at least where there is no evidence of sales to the latter." Parmelee v. United States, 1940, 72 App. D.C. 203, 113 F.2d 729, 739, footnote 5, dissenting opinion by Vinson, J. "The law is not tempered to the hardened minority of society." Besig v. United States, 9 Cir., 1953, 208 F.2d 142, 145. See, also, United States v. Levine, 2 Cir., 1936, 83 F.2d 156; Burstein v. United States, 9 Cir., 1949, 178 F.2d 665.

The danger of a standard that would measure what is obscene by its effect upon abnormal people is illustrated by the testimony of the psychiatrist in the present case. He testified that some people "gain particular stimuli" by looking at the female foot, and that others, "may get aroused sexual desires" by seeing an article of women's clothing in the window of a department store.

Without question the pictures in this case are at best vulgar trash. Without question the appellant's motives in purveying them were ignoble. This court is aware that the availability to juveniles of publications and pictures thought to contribute to delinquent conduct is a matter of deep concern to many. If the causal effect of such material upon juvenile delinquency is demonstrable, it may be assumed that an unambiguous statute specifically prohibiting its distribution by interstate commerce to juveniles would be a valid exercise of Congressional power. But Congress has not enacted that kind of a law.

Under the existing statute with which we are here concerned, to measure what is obscene by its effect upon juveniles would encounter a formidable Constitutional barrier. In Butler v. State of Michigan, 1957, 352 U.S. 380, 77 S.Ct. 524, 526, 1 L.Ed.2d 412, the Supreme Court held unconstitutional a state law forbidding the general sale or distribution of publications containing obscene language or pictures that tended to incite minors to immoral acts or to corrupt them. The Court said: "We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society."

For the reasons stated the judgment of conviction must be set aside. A majority of the court, unable to hold as a matter of law that by the proper test the pictures are not obscene, believe the case should be remanded to the district court for a new trial. 28 U.S. C.A. § 2106; Bryan v. United States, 1950, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335.

The question in our opinion is peculiarly one best left for nisi prius determination,...