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October 31, 1957

UNITED STATES of America, Libellant,
31 PHOTOGRAPHS 4 3/4' X 7' in size, and various pictures, books and other articles. Institute for Sex Research, Inc. at Indiana University, Claimant

The opinion of the court was delivered by: PALMIERI

The United States Attorney has filed a libel under the provisions of § 305(a) of the Tariff Act of 1930, *fn1" seeking the forfeiture, confiscation, and destruction of certain photographs, books, and other articles which the claimant, Institute for Sex Research, Inc., at Indiana University, seeks to import into the United States. The libel is based upon the allegation that the libelled material is 'obscene and immoral' *fn2" within the meaning of § 305(a). The claimant seeks the release of the material to it, maintaining that the attempted importation is not in violation of § 305(a) and that, if § 305(a) is interpreted so as to prohibit the importation of the libelled material, the section violates the provisions of certain articles of the Constitution of the United States. Since I believe that § 305(a) does not permit the exclusion of the material, I do not reach the latter contention. Thus, the question of 'academic freedom,' much bruited in the oral argument by claimant, does not arise in this case.

Both the Government and the claimant have moved for summary judgment. The Government's motion is supported by the protographs, books, and articles themselves. For the purposes of this decision, I assume that the libelled material is of such a nature that, 'to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' *fn3" The claimant's motion is supported by affidavits sworn to by the President of the Institute, the Institute's Director of Field Research, the President of Indiana University, and various physicians, psychologists, psychiatrists, penologists, and academicians. Among these is an affidavit sworn to by the Hon. James V. Bennett, Director of the Bureau of Prisons, United States Department of Justice. Mr. Bennett states in his affidavit that the Institute has made substantial contributions to the study of problems of sexual adjustment encountered among prison inmates. He also states that understanding of pathological sexuality and sexual offenders has been enhanced by the study of the erotic productions of these deviated persons. An affidavit has also been filed by claimant's attorney, setting forth certain prior proceedings in this matter. Finally, the Trustees of Indiana University have submitted a brief, amicus curiae, in support of claimant's position. The President of the University, in his affidavit, has described the Institute as 'in essence * * * for all practical purposes * * * a special research department of the university.' The Government has neither served affidavits setting forth any facts in opposition to those contained in the affidavits served by the claimant, *fn4" nor has it served an affidavit from which it would appear that it cannot 'present by affidavit facts essential to justify (its) opposition.' *fn5"

There is, therefore, no genuine issue as to the following facts, which are the only ones I find relevant to a decision of the issues before me:

 1. That the claimant seeks to import the libelled material 'for the sole purpose of furthering its study of human sexual behavior as manifested in varying forms of expression and activity and in different national cultures and historical periods.' *fn6"

 2. That the libelled material will not be available to members of the general public, but 'will be held under security conditions * * * for the sole use of the Institute staff members or of qualified scholars engaged in bona fide research * * *' *fn7"


 3. That, as to those who will have access to the material sought to be imported, there is no reasonable probability that it will appeal to their prurient interest. *fn8"

 In limine, it is well to set forth the posture of this case as I have it before me for decision. Claimant applied, in 1952, to the Secretary of the Treasury for permission to import the material under the second proviso of § 305(a). *fn9" The Secretary declined to exercise his discretion for this purpose. In a letter advising claimant's attorneys of this decision, the Acting Secretary of the Treasury stated that a limited exception to the prohibition of § 305(a) had been established by certain cases, but that the exception was 'limited to a narrow category of articles and * * * applicable to only a specialized practice of medicine.' The Acting Secretary stated that he did not feel that administrative extension of this exception would be justified and that the Department of Justice would be requested to bring forfeiture proceedings 'in order to resolve the pertinent questions of law and furnish judicial guidance for our future actions.' *fn10" The claimant has not, however, sought review of the Secretary's action, and my decision on the Government's libel implies nothing as to the correctness of his action.

 The question which is before me for decision, therefore, is whether § 305(a) of the Tariff Act of 1930, in prohibiting the importation of 'obscene' material prohibits the importation of material which may be assumed to appeal to the prurient interest of the 'average person,' if the only persons who will have access to the material will study it for the purposes of scientific research, and if, as to those who alone will have access to the material, there is no reasonable probability that it will appeal to their prurient interest. In short, the question presented for decision is the meaning of the word 'obscene' in § 305(a) of the Tariff Act of 1930. *fn11"

 Material is obscene if it makes a certain appeal to the viewer. It is not sufficient that the material be 'merely coarse, vulgar, or indecent in the popular sense of those terms.' United States v. Males, D.C.D.Ind.1892, 51 F. 41, 43. *fn12" Its appeal must be to 'prurient interest.' 'Obscene material is material which deals with sex in a manner appealing to prurient interest.' Roth v. United States, 1957, 354 U.S. 476, 487, 77 S. Ct. 1304, 1310, 1 L. Ed. 2d 1498.

 But the search for a definition does not end there. *fn13" To whose prurient interest must the work appeal? While the rule is often stated in terms of the appeal of the material to the 'average person,' Roth v. United States, 1957, 354 U.S. 476, 489, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, *fn14" it must be borne in mind that the cases applying the standard in this manner do so in regard to material which is to be distributed to the public at large. I believe, however, that the more inclusive statement of the definition is that which judges the material by its appeal to 'all those whom it is likely to reach.' United States v. Levine, 2 Cir., 1936, 83 F.2d 156, 157. *fn15" Viewed in this light, the 'average man' test is but a particular application of the rule, often found in the cases only because the cases often deal with material which is distributed to the public at large.

 Of course, this rule cuts both ways. Material distributed to the public at large may not be judged by its appeal to the most sophisticated, *fn16" nor by its appeal to the most susceptible. *fn17" And I believe that the cases establish that material whose use will be restricted to those in whose hands it will not have a prurient appeal is not to be judged by its appeal to the populace at large.

 In Commonwealth v. Landis, Q.S.1870, 8 Phila., Pa., 453, defendant had been convicted of publishing an obscene libel. *fn18" The court approved a charge to the jury in which it was stated that the publication would be justified if 'made for a legitimate and useful purpose, and * * * not made from any motive of mere gain or with a corrupt desire to debauch society.' Q.S.1870, 8 Phila., Pa., 453, 454. While scientific and medical publications 'in proper hands for useful purposes' may contain illustrations exhibiting the human form, the court held that such publications would be obscene libels 'if wantonly exposed in the open markets, with a wanton and wicked desire to create a demand for them.' Id. at pages 454-455. Finally, the court held that the human body might be exhibited before a medical class for purposes of instruction, 'but that if the same human body were exposed in front of one of our medical colleges to the public indiscriminately, even for the purpose of operation, such an exhibition would be held to be indecent and obscene.' Id. at page 455. *fn19"

 In United States v. Chesman, C.C.E.D.Mo.1881, 19 F. 497, the court found offensive, matter which was taken from books upon medicine and surgery. The court held that such matter 'would be proper enough for the general use of members and students of the profession.' But, the court continued, 'there are many things contained in the standard works upon these subjects which, if printed in pamphlet form and spread broadcast among the community, being sent through the mail to persons of all classes, including boys and girls, would be highly indecent and obscene.' C.C.E.D.Mo.1881, 19 F. 497-8. *fn20"

 And in United States v. Clarke, D.C.E.D.Mo.1889, 38 F. 500, it is said that 'Even an obscene book, or one that, in view of its subject-matter, would ordinarily be classed as such, may be sent through the mail, or published, to certain persons, for certain purposes.' D.C.E.D.Mo.1889, 38 F. 500, 502. *fn21"

 In United States v. Smith, D.C.E.D.Wis.1891, 45 F. 476, the court stated that a determination of obscenity depended upon circumstance. 'The public exposure of the person is most obscene, yet the necessary exhibition of the person to a physician is not only innocent, but is a proper act, dictated by positive duty. Instruction touching the organs of the body, under proper circumstances, is not reprehensible; but such instruction to a mixed assemblage of the youth of both sexes might be most demoralizing.' D.C.E.D.Wis.1891, 45 F. 476, 478.

 In upholding the exclusion from evidence of testimony tending to show that the book in issue was intended for doctors and married couples, the Court of Appeals for the Eighth Circuit has said: 'The book itself was in evidence. It was not a communication from a doctor to his patient, nor a work designed for the use of medical practitioners only.' Burton v. United States, 8 Cir., 1906, 142 F. 57, 63.

 The Court of Appeals for this Circuit, in holding that proof of those to whom the pamphlet was sold is part of the Government's case, said: 'In other words, a publication might be distributed among doctors or nurses or adults in cases where the distribution among small children could not be justified. The fact that the latter might obtain it accidently or surreptitiously, as they might see some medical books which would not be desirable for them to read, would hardly be sufficient to bar a publication otherwise proper. * * * Even the court in Regina v. Hicklin, L.R. 3 Q.B. at p. 367 * * * said that 'the circumstances of the publication' may determine whether the statute has been violated.' United States v. Dennett, 2 Cir., 1930, 39 F.2d 564, 568, 76 A.L.R. 1092.

 Finally, a situation very similar to the one at bar was decided in United States v. One Unbound Volume, etc., D.C.D.Md.1955, 1955, 128 F.Supp. 280. Claimant had attempted to import a collection of prints which depicted statues, vases, lamps, and other antique artifacts which were decorated with or displayed erotic activities, features, or symbols, and which portrayed acts of sodomy and other forms of perverted sexual practice. While finding that the study of erotica in ancient times was a recognized field of archeology, the court, after referring to the fact that the claimant was a microchemist and, at best, an amateur archeologist, significantly added: 'I do not believe the present state of the taste and morals of the community would approve the public exhibition of a collection of objects similar to those shown on the prints, nor the public exhibition or sale of the prints themselves, although in my opinion most normal men and women in this country would approve the ownership of such a publication by a museum, library, college or other educational institution, where its use could be controlled.' D.C.D.Md.1955, 128 F.Supp. 280, 282. *fn22"

 The cases upholding importation of contraceptives and books dealing with contraception when sought to be brought into the country for purposes of scientific and medical research *fn23" are further indications that the statute is to be interpreted as excluding or permitting material depending on the conditions of its use. *fn24" It is true that these cases held, on analogy to what is now 18 U.S.C. § 1461 (Supp. IV) that only contraceptives intended for 'unlawful' use were banned. *fn25" The circumstances of the use were thus held relevant. But 'contraception' is a word describing a physical act, devoid of normative connotations until modified by an adjective such as 'unlawful.' 'Obscene,' on the other hand, describes that quality of an article which causes it to have a certain appeal to the interests of the beholder.

 The intent of the importer, therefore, relevant to the contraceptive cases only because 'unlawful' use alone was proscribed, is relevant in an obscenity case *fn26" because of the very nature of the determination (as to the appeal of the material to the viewer) which must be made before the article may be deemed 'obscene.'

 The customs barrier which is ought to be imposed by this suit must be viewed in the light of the great variety of goods permitted to enter our ports. For instance, despite the legitimate concern of the community with the distribution and sale of narcotic drugs, their importation is not completely prevented. *fn27" It is carefully regulated so as to insure their confinement to appropriate channels. *fn28" Viruses, serums, and toxins are another example. Their potential harm would be incalculable if they were placed in unknowing or mischievous hands. But proposed importations of bacilli of dangerous and highly contagious diseases do not lead us to shut our ports in panic. Rather, we place our faith in the competence of those who are entrusted with their proper use. *fn29" So, here, while the material would not be importable for general circulation, its closely regulated use by an unimpugned institution of learning and research removes it from the ban of the statute. The successive judicial interpretations of the statute here involved point as clearly to this result as does the express Congressional permission for the importation of potentially harmful biologic products. The work of serious scholars need find no impediment in this law.

 The Government, in certain portions of its Memorandum of Law, talks of, and I find two cases *fn30" which have described material as being 'obscene per se.' But I cannot understand this to mean that the material was held to have a prurient appeal without reference to any beholder. I take it to mean that in the cases under decision there was not shown to be anyone to whom the appeal would be other than prurient, or that in a case of widespread distribution the material was of such a nature that its appeal to the average person must be held, as a matter of law, to be prurient. *fn31" It should be obvious that obscenity must be judged by the material's appeal to somebody. For what is obscenity to one person is but a subject of scientific inquiry to another. And, of course, the substitution, required by Roth, *fn32" of the 'average person' test (in cases of widespread distribution) for the test according to the effect upon one of particular susceptibility, is a matter of determining the person according to whom the appeal of the material is to be judged. Once it is admitted that the material's appeal to some person, or group of persons, must be used as the standard by which to gauge obscenity, I believe that the cases teach that, in a case such as this, the appeal to be probed is that to the people for whom, and for whom alone, the material will be available.

 It is possible, instead of holding that the material is not obscene in the hands of the persons who will have access to it, to speak of a conditional privilege in favor of scientists and scholars, to import material which would be obscene in the hands of the average person. *fn33" I find it unnecessary to choose between these theories. In the first place, under either theory the material may not be excluded in this case. Moreover, I believe that the two theories are but opposite sides of one coin. For it is the importer's scientific interest in the material which leads to the conditional privilege, and it is this same interest which requires the holding that the appeal of the material to the scientist is not to his prurient interest and that, therefore, the material is not obscene as to him. *fn34"

 There remain to be mentioned two objections which the Government raises to the course of decision I follow today. The first is that the second proviso of § 305(a) of the Tariff Act of 1930 *fn35" provides the sole means by which this material may be imported. Of course, under the theory that the nature of the material is to be judged by its appeal to those who will see it, the libelled material is simply not obscene and the second proviso has no application, providing, as it does, for a method by which certain obscene matter may be imported. *fn36" And if the correct theory be that there is a conditional privilege in favor of scientists and scholars to import material, for their study alone, which would be obscene in the hands of the general public, I am not convinced that Congress, by enacting the second proviso to § 305(a) in 1930 *fn37" intended to establish the Secretary's discretion as the sole means by which scientists could import such materials. Indeed, the cases decided since 1930 have not so held. *fn38"

 The Government also raises a concursus horribilium, maintaining that there are no workable criteria by which the section may be administered if it is interpreted as I do today. It is probably sufficient unto this case to point out that there is no dispute in this proceeding as to the fact that there is no reasonable likelihood that the material will appeal to the prurient interest of those who will see it. But I will add that I fail to see why it should be more difficult to determine the appeal of libelled matter to a known group of persons than it is to determine its appeal to an hypothetical 'average man.' *fn39" The question is not whether the materials are necessary, or merely desirable for a particular research project. The question is not whether the fruits of the research will be valuable to society. *fn40" The Tariff Act of 1930 provides no warrant for either customs officials or this court to sit in review of the decisions of scholars as to the bypaths of learning upon which they shall tread. The question is solely whether, as to those persons who will see the libelled material, there is a reasonable probability that it will appeal to their prurient interest. *fn41"

 For those who would seek to pander materials such as those libelled in this case, I need hardly express my contempt. Nor need I add that the theory of this decision, reightly interpreted, affords no comfort to those who would import materials such as these for public sale or private indulgence. The cry against the circulation of obscenity raised by the law-abiding community is a legitimate one; and one with which Congress, the State legislatures, and the courts have been seriously concerned. *fn42" When that case arises in which the Government determines that it should go to trial upon the facts, a showing that multiple copies of a particular piece of matter are sought to be imported by the same person should raise an extremely strong inference against any claim that the material is sought for allegedly scientific purposes. And, while I express no definitive opinion on this point, since it is unnecessary to the decision before me, it would seem that any individual, not connected with an institution recognized to be conducting bona fide research into these matters, will not easily establish that he seeks importation for a reason other than gratification of his prurient interest. See United States v. One Unbound Volume, etc., D.C.D.Md.1955, 128 F.Supp. 280.

 Nor do I envision the establishment of myriad and spurious 'Institutes for Sex Research' as screens for the importation of pornographic material for public sale. In addition to what has already been said, ti should be pointed out that the bona fides of any such Institute and of the research or study to which it claims to be dedicated will be a threshold inquiry in each case. The accumulation of an inventory, as I mentioned above, will tend to engate the assertion of a legitimate interest. And those whose business it is to pander such material will be unlikely to convince anyone that they are serious candidates for the mantle of scientific researcher.

 There being no dispute in this case as to the fact that there is no reasonable probability that the libelled material will appeal to the prurient interest of those who will see it, it is proper that the motion of the libellant for an order that the libelled material be forfeited, confiscated and destroyed, be denied; and that the motion of the claimant for summary judgment dismissing the libel and releasing the libelled material to it, be granted.

 Settle order on notice.

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