The opinion of the court was delivered by: GRAVEN
GRAVEN, Senior District Judge (by assignment).
1. In this proceeding the Government seeks the forfeiture of an imported motion picture film on the ground that it constitutes obscene material the import of which is prohibited by Section 305 of the Tariff Act (Sec. 1305, Title 19 U.S.C.A.).
2. Section 305 of the Tariff Act (Sec. 1305, Title 19 U.S.C.A.) lists a number of items the import of which is prohibited. Among those items is "obscene" matter. That Section further provides:
"Upon the appearance of any such * * * matter at any customs office, the same shall be seized and held by the collector to await the judgment of the district court as hereinafter provided; * * *. Upon the seizure of such * * * matter the collector shall transmit information thereof to the district attorney * * * who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the * * * matter seized. Upon the adjudication that such * * * matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. * * *"
Under that Section, any party in interest may upon demand have the facts or issues determined by a jury and any party may have an appeal or right of review as in the case of ordinary actions or suits. In the present case no demand for a jury was made. Where the Government seeks to forfeit material the importation of which is alleged to be prohibited by Section 305, it proceeds by way of a libel action, which action is conducted under the Admiralty Rules.
The film which is the subject matter of this action was produced in Sweden by an organization known as Svensk Film Industri. It consisted of five double reels of black and white positive, 35mm. motion picture film totalling 9610 feet. It was sought to be imported in this country by Janus Films, Inc., the Claimant herein, a New York corporation which is engaged in the commercial distribution and licensing of motion picture films throughout the country. The dialogue in the film is in Swedish but there are English subtitles. It is what is known and referred to as a feature film.
3. There are a number of issues in this case. The Government contends that the film in question is obscene and hence is not a permissible import under Section 305 of the Tariff Act. The Claimant contends to the contrary. The Claimant challenges the constitutionality of the procedures provided for and followed in connection with the importation of feature films. It also challenges the constitutionality of the provision of Section 305 prohibiting the importation of "obscene" material.
4. This latter challenge will be first considered. The Claimant contends that the word "obscene" is so vague as to violate due process. In the case of Roth v. United States (1957), 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, the United States Supreme Court upheld a state criminal obscenity statute against a similar attack.
It is the contention of the Claimant that that holding is not determinative of the question as to the constitutional adequacy of the word "obscene" as used in Section 305 because that Section provides for pre-exhibition restraint rather than post-exhibition sanctions provided by criminal statutes. The proceedings in connection with an imported film under Section 305 do operate as a pre-exhibition restraint. The proceedings are in rem rather than in personam and are civil rather than criminal in nature.
It would not seem that the United States Supreme Court would regard the word "obscene" as constitutionally sufficient in a criminal proceeding, yet constitutionally inadequate in a civil proceeding involving obscene matter. If that Court should hold that that word was constitutionally inadequate in connection with criminal proceedings, a different situation would be present. While some writers are of the view that the decision of that Court in the Roth case has been somewhat eroded, yet up to now it has not been eroded to the extent that it is no longer authority as to the constitutional adequacy of the word "obscene." It is the view and holding of the Court that Section 305 is not constitutionally inadequate because of the use of the word "obscene."
5. The Claimant makes a contention relating to the quantum of proof in a proceeding to condemn material on the ground of its obscenity. In criminal proceedings under obscenity statutes, the guilt of the party or parties charged must, of course, be established beyond a reasonable doubt. Although the present proceeding is civil in character, it is the contention of the Claimant that because of the constitutional principles involved the Government has the burden of establishing beyond a reasonable doubt the obscenity of the film involved.
In libel proceedings for the condemnation of property allegedly used for illegal purposes, it is not necessary that the Government establish the allegations of the libel beyond a reasonable doubt; it is sufficient if it establishes those allegations by a preponderance of the evidence. D'Agostino v. United States (9th Cir. 1958), 261 F.2d 154, 157, certiorari denied (1959), 359 U.S. 953, 79 S. Ct. 739, 3 L. Ed. 2d 760; United States v. One 1955 Mercury Sedan (4th Cir. 1957), 242 F.2d 429; Utley Wholesale Company v. United States (5th Cir. 1962), 308 F.2d 157. The cases cited did not involve the condemnation of allegedly obscene material. Apparently there are no decisions involving the nature of the proof in civil proceedings for the condemnation of material alleged to be obscene. While the United States Supreme Court has adopted a very strict attitude as to proof of obscenity, it has not as yet indicated that in a libel proceeding for the condemnation of material alleged to be obscene it would require that the obscenity of the material be established beyond a reasonable doubt. Apparently it would require that the obscenity of the material sought to be condemned must be clearly established by a preponderance of the evidence. This Court in the present action will follow that apparent rule.
6. The constitutional challenge of the Claimant to the procedures provided for and followed in connection with the importation of feature films requires consideration of certain of those procedures. It appears that ninety per cent of all feature films imported into the United States come to the Port of New York. The procedures hereinafter referred to are the procedures at that port. A motion picture film being imported is accompanied by the usual entry documents prepared by the importer. Upon the arrival of the film it is placed under Customs seal. It is then sent to the projector room of the Collector in New York City. When the sealed package of film arrives at the projector room it is opened and the contents are checked against the documents to determine whether the estimated duty paid is correct, and it is then screened by a Customs' film reviewer. Film reviewers receive periodic instructions concerning the statutes relating to the importation of obscene matter and the court decisions having to do with the matter of obscenity. Following the screening of the film by the reviewer, the reviewer prepares a report. If the reviewer is of the view that the entry of the film is permissible, it is immediately released to the importer. There is no review of such a release. If the reviewer is of the view that the importation of the film might constitute a violation of Section 305, the film is viewed by an Administrative Aide. If the Administrative Aide is of the view that its importation would not be in violation of Section 305, the film is immediately released to the importer. There is no review of such a release. In the event that the Administrative Aide is of the view that it unquestionably appears that the film is not importable under Section 305, the film is transmitted to the United States District Attorney for the Southern District of New York for the institution of libel proceedings. In the event that the Administrative Aide is of the view that it does not unquestionably appear that the film is not importable under Section 305, it is transmitted to the Assistant Deputy Commissioner of Customs at Washington, D.C. That Assistant Deputy Commissioner views the film. If he is of the view that its importation would not constitute a violation of Section 305, it is released to the importer. There is no review of such a release. If the Assistant Deputy Commissioner is of the view that the film might not be importable under Section 305, it is then transmitted to the Customs Office at the Port of New York and by that Office transmitted to the United States District Attorney for the Southern District of New York for the institution of libel proceedings against it. Where a film is detained because of question as to its importability under Section 305, the importer is immediately notified that the film is being temporarily detained. Upon being so notified the importer has several options. It may consent to the forfeiture of the film; it may export the film; it may also take no action and let the Government proceed against it. The choice is solely that of the importer. In some cases where a film is being detained because of question as to its importability, the importer sometimes seeks an informal conference with the Assistant Deputy Commissioner of Customs to ascertain what portion or portions of the film have given rise to question of its importability. If following such a conference it would appear that the doubt as to the importability of the film was not well founded, the film is released to the importer. There is no review of such a release.
In some cases an importer before conferring with the Assistant Deputy Commissioner of Customs will secure permission to have access to the film for the purpose of deleting certain portions of it. In other cases the deletions will be made after conferring with the Assistant Deputy Commissioner of Customs. The portions deleted would ordinarily be those portions which the importer has reason to believe might have given rise to the question of importability.
The importer has the right to export the entire film and then make a new importation of the film as deleted. In some instances an informal procedure is followed under which the importer consents to the forfeiture of the deleted portions of the film and the Assistant Deputy Commissioner of Customs will then release the film as deleted.
Where it appears that there is such a serious question as to the importability of a film as to require its transmission to the United States District Attorney for possible court proceedings, a seizure of it is then made for such purpose.
7. It was heretofore noted that the Claimant contends that the procedures provided for and followed in connection with imported feature films are constitutionally inadequate. In that connection the Claimant contends that the procedural provisions contained in Section 305 are on their face constitutionally inadequate. The Claimant further contends that the procedures under Section 305 as carried out in practice in relation to feature films in general manifest their constitutional inadequacy. The Claimant further contends that the procedures followed in the case of the particular film in question were such as to deny it constitutional due process. The constitutional questions raised by the Claimant require consideration of a number of decisions. In the case of Times Film Corp. v. City of Chicago, (1961), 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d 403, it was held that an ordinance of the City of Chicago providing for pre-exhibition examination of motion picture films was not unconstitutional on its face. The Court did not reach the question as to the validity of the standards set out in the ordinance. In the case of Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469, it was held that a New York statute which provided for a limited injunctive remedy against the sale and distribution of obscene written and printed matter was constitutional. The cases referred to were followed by the cases of Freedman v. State of Maryland, (1965), 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649, and Marcus v. Search Warrant of Property (1961), 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127. The case of Freedman v. State of Maryland, supra, involved a Maryland statute which prohibited the exhibition of a film without first submitting it to the State Board of Censors. An exhibitor challenged the constitutionality of the statute by refusing to submit a particular film to that Board. The film, if submitted, would have met the statutory standards and would have been licensed for exhibition. The Court held that the statute was constitutionally inadequate. In that case the Court stated (p. 55 U.S., 85 S. Ct. p. 737): "Under the statute, the exhibitor is required to submit the film to the Board for examination, but no time limit is imposed for completion of Board action, § 17." The Court, in referring to the statute, further stated (p. 55 U.S., 85 S. Ct. p. 737):
"Thus there is no statutory provision for judicial participation in the procedure which bars a film, nor even assurance of prompt judicial review. Risk of delay is built into the Maryland procedure, as is borne out by experience; in the only reported case indicating the length of time required to complete an appeal, the initial judicial determination has taken four months and final vindication of the film on appellate review, six months. * * *"
In the concurring opinion of Justice Douglas in that case the following statement is made (pp. 61-62 U.S., 85 S. Ct. p. 740):
"The Court today holds that a system of movie censorship must contain at least three procedural safeguards if it is not to run afoul of the First Amendment: (1) the censor must have the burden of instituting judicial proceedings; (2) any restraint prior to judicial review can be imposed only briefly in order to preserve the status quo; and (3) a prompt judicial determination of obscenity must be assured. * * *"
In the majority opinion it is stated (p. 59 U.S., 85 S. Ct. p. 739) "the procedure must also assure a prompt final judicial decision * * *."
The case of Marcus v. Search Warrants, supra, involved proceedings under a Missouri statute relating to the seizure and forfeiture of obscene publications. The Court held that the statute lacked proper constitutional safeguards. In that case the Court referred to and discussed the procedures provided by a New York statute relating to such publications which were upheld in the case of Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469. The Court stated (p. 737 of 367 U.S., 81 S. Ct. p. 1719), Marcus v. Search Warrants, supra:
"* * * Finally, a subdivision of the New York statute in Kingsley Books required that a judicial decision on the merits of obscenity be made within two days of trial, which in turn was required to be within one day of the joinder of issue on the request for an injunction. In contrast, the Missouri statutory scheme drawn in question here has no limitation on the time within which decision must be made, only a provision for rapid trial of the issue of obscenity. And in fact over two months elapsed between seizure and decision. * * *"
It appears from the recent case of Trans-Lux Distributing Corp. v. Board of Censors, Md., Sept. 27, 1965, 240 Md. 98, 213 A.2d 235, that following the decision of the United States Supreme Court in Freedman v. State of Maryland, supra, the Maryland statute relating to the censorship of film by the State Board of Censors was amended to provide that any film submitted to that Board must be reviewed within five days; that in the event of disapproval of a film by that Board it was required to make an application to the Circuit Court within three days for a judicial determination as to obscenity; that the Circuit Court was required to hold a hearing within five days and enter its determination within two days after the hearing; and that in the event of an adverse decision the exhibitor might appeal to the Maryland Court of Appeals which "shall advance such case upon its hearing calendar to the earliest practicable date."
At the present time it appears from the decisions of the United States Supreme Court that under proper constitutional safeguards there may be a limited pre-exhibition restraint of motion picture films. It is the contention of the Claimant herein that the procedures provided for and followed in connection with imported feature films do not afford the specified and required constitutional safeguards. Some of the other features related to and connected with the import of feature films will next be referred to. Under the Tariff Act the Customs Service is charged with the duty of examining imports for the purpose of ascertaining their duty status. That Service also has the duty to ascertain, or to cause to be ascertained, the permissibility of such imports under the Tariff Act. In order to carry out that latter duty in connection with imported feature films, it is manifestly necessary that the Customs Service view such films. Where such films upon viewing give rise to no question as to their importability, they are then cleared through Customs. If, however, it would appear upon viewing that a particular feature film might not be importable under Section 305, the Customs Service refers the film to the United States District Attorney for the purpose of securing a judicial determination of its importability.
The Customs Service does not have censorship power as to imported films nor act as a censor of them. In substance, it brings to the attention of the United States District Attorney for his consideration and action those films the importation of which would constitute a possible violation of Section 305 of the Tariff Act. The action brought by the United States District Attorney following the reference of a particular film to him does not constitute a review of any preceding administrative action or decision. It is an original proceeding in which a judicial determination is made as to whether the film in question is or is not obscene within the purview of Section 305.
It appears, as heretofore noted, that around ninety per cent of the films imported into the United States come to the Customs Office of the Port of New York. The processing of imported feature films was heretofore described. During the calendar year of 1963 there were received at the Port of New York 4,259 shipments of film totalling 31,641,824 feet for examination under the Tariff Act. A substantial number of the films received at that Port are obviously of such a character as not to require screening. All feature films are screened. During 1963 a total of 2,174 shipments of feature film totalling 7,997,348 feet were screened. During 1964 a total of 3,735 shipments of feature film totalling 8,149,874 feet were screened.
It appears that of all the films imported through all the ports of entry each year around 100 of them give rise to some doubt as to their importability under that portion of Section 305 relating to obscene matter. It further appears that in general as to around 70 of such films the doubt is resolved in favor of the importer and the films released forthwith. The remaining 30 are seized and transmitted to the United States District Attorney for further proceedings. The overwhelming number of films so seized are not feature ...