The opinion of the court was delivered by: MCLEAN
This is an action pursuant to 19 U.S.C. § 1305 to forfeit and confiscate a motion picture made in Sweden which was seized by the customs authorities after its arrival in this country on the ground that it is obscene. The claimant, the importer of the film, moves for summary judgment.
Claimant first contends that the film is not obscene. In a series of recent decisions, the Supreme Court has defined that word. It has held that to be obscene a book, picture or film must be (1) utterly without social significance; (2) patently offensive; and (3) it must deal with sex in a manner appealing to prurient interest.
Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957)
Manual Enterprises v. Day, 370 U.S. 478, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (1962)
Jacobellis v. State of Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964)
As to the third factor, the test is:
"* * * whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."
Roth v. United States, 354 U.S. at 489, 77 S. Ct. at 1311.
The film was exhibited to me. It is a thoroughly nasty work. Sordid and brutal from beginning to end, it is highlighted by scenes of homosexuality, rape, prostitution and sodomy. If it has any social significance, as claimant says it has, that significance can only be the author's thesis that human beings are vile. I incline to the view that even this dreary message is merely a sham, and that it is the pornography upon which the maker and the importer rely to sell the picture. If this film were distributed commercially throughout the United States, as claimant says it desires to do, whether or not its showing is restricted to adults, it would, in my opinion, be an affront to the inherent decency of the American public.
Whether or not the film is obscene is a question of fact. Claimant asks me to hold as a matter of law that no reasonable trier of the fact could find this film to be obscene. This contention seems to me to be without merit. I believe that a reasonable trier of the fact could find this film to be obscene. Whether it is so found or not must await decision at the trial.
Very recently, the Court of Appeals has held in a criminal prosecution for mailing obscene pictures that the government does not make out a prima facie case sufficient to get to the jury merely by introducing the pictures themselves. Some further evidence is necessary to show that the pictures appeal to a prurient interest.
United States v. Klaw, 350 F.2d 155 (2d Cir., July 15, 1965)
Whether this rule applies to a condemnation proceeding such as this, the Court of Appeals had no occasion to decide. Even if it does, however, it has been complied with here, for in opposition to this motion the government has submitted affidavits from two customs officials who have had years of experience in screening obscene films and should be in a position to give expert opinion as to whether or not a film is obscene. In their opinion, this film is. These affidavits are sufficient to raise a question of fact. Moreover, more expert testimony may be adduced at the ...