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UNITED STATES v. 31 PHOTOGRAPHS

October 31, 1957

UNITED STATES of America, Libellant,
v.
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"

 and

 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, ...


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