Lumbard, Chief Judge, and Waterman and Moore, Circuit Judges. Waterman, Circuit Judge (concurring). Lumbard, Chief Judge (dissenting).
Appellant, Janus Films, Inc. (Janus), a major film distributor in the United States, sought to import a full-length feature Swedish film entitled "491" into the United States. The film arrived in New York City in October, 1964 and, thereafter, was seized under Section 305 of the Tariff Act of 1930, 19 U.S.C. § 1305,*fn1 by the Collector of Customs on the ground that it was obscene. The matter was referred to the United States Attorney for the Southern District of New York who instituted proceedings in the district court seeking forfeiture of the film. At trial Janus contended (a) that the confiscation of the film was improper for the reasons that Section 305 is unconstitutional on its face, as administered by the Customs Service, and as applied in this case, and (b) that "491" was not obscene. The district court rejected Janus' attack on the statute and the procedures employed to enforce it and held that the film was obscene. 247 F. Supp. 450.
"A society which is unable to endure '491' is a sick society; a society which is prepared to learn from it will become a sounder one." Thus wrote*fn2 a Swedish psychiatrist on January 12, 1964. Concerning the book "491," he said: "Lars Gorling's '491' is probably the best textbook on youth psychiatry ever to have appeared. * * * The book and the film complement each other. * * * Between them Lars Gorling [the author] and Wilgot Sjoman [the film director] have created something valuable."
The primary question upon this appeal is: does the film come within the prohibition of Section 305 -- in other words, is it "obscene"? The district court in an able and well-considered opinion found that the evidence presented by the Government established that "(a) To the average person applying contemporary community (national) standards, its [the film's] dominant theme as a whole appeals to the prurient interest. (b) It is characterized by patent offensiveness. (c) It goes substantially beyond the customary limits of candor in description and representation. (d) It is utterly without redeeming social importance." In reaching these conclusions (November 17, 1965), the district court did not have the benefit of the Supreme Court's trilogy of March 21, 1966, namely, A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1; Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31; and Mishkin v. State of New York, 383 U.S. 502, 86 S. Ct. 958, 16 L. Ed. 2d 56. Despite the fourteen opinions in these three cases, the "fog in which guides and landmarks appear only dimly and obscurely from time to time" (247 F. Supp. at 463) has not lifted appreciably. Accepting the Supreme Court's appraisal of the judicial burden, "I [too] do not see how this Court can escape the task of reviewing obscenity decisions on a case-by-case basis." [Mr. Justice Harlan, dissenting in Memoirs, supra, 383 U.S. at 460, 86 S. Ct. at 998; see also Jacobellis v. Ohio, 378 U.S. 184, 203-204, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964).]
The appellant, Janus Films, Inc. (Janus) is a producer, importer and distributor of motion picture films. It is a substantial company and has received three Academy Awards over the last seven or eight years. The film "491" was produced in Sweden by Svensk Filmindustri, said to be the oldest production company in the world still in existence. This company produced the first films of Greta Garbo and many of the films of the famous director, Ingmar Bergmann. The director of "491" was Sjoman, a protege of Bergmann. "491" first came to the attention of Janus during the Cannes (France) Film Festival (May 1964). Arrangements were then made for the importation by Janus of the film into this country. The sound track is in Swedish; English subtitles have been inserted. Such a pedigree cannot alter the character of the film, if obscene it be but it at least takes the film out of the category of the truly obscene films produced for exhibition on a Stag Nite at the local men's club. Nor does the Cannes showing sterilize the film of any virulent germs of obscenity but it should entitle the film to a fair appraisal of any serious or social message attempted to be depicted.
"We are judges, not literary experts or historians or philosophers. We are not competent to render an independent judgment as to the worth of this or any other book [film] except as in our capacity as private citizens. * * * If there is to be censorship, the wisdom of experts on such matters as literary merit and historical significance must be evaluated." (Mr. Justice Douglas, concurring in Memoirs, supra, 383 U.S. at 427, 86 S. Ct. at 982.) After a brief resume of the content of the film, the expert witnesses should present their views for evaluation and thus furnish guidelines to the court.
The title "491" comes from the 18th chapter of the Gospel according to St. Matthew (18:21-22) wherein Peter asks Jesus, "* * * Lord, how oft shall my brother sin against me, and I forgive him? till seven times? Jesus saith unto him, I say not unto thee, Until seven times: but, Until seventy times seven." Despite a natural curiosity to ask what specific sin would be beyond maximum forgiveness or beyond the pale -- the four hundred and ninty-first sin suggested by the title -- those who look for meanings which the author may or may not have intended might better accept the answer as a Biblical way of expressing unlimited forgiveness.
The theme of the picture is a sociological experiment in Sweden, not unlike similar experiments in this country, wherein some six youthful delinquents who have been in difficulty with the law are placed in a private home instead of being institutionalized. Their house master or preceptor is a young bachelor named Krister -- the Biblical analogy being retained. The experiment is under the supervision of a social agency and its Supervisor is one of the characters in the film. The only price exacted for their freedom, their rooms and board, and a modest weekly allowance is the answering of questions on a wholly voluntary basis, the answers to which might enable the agency better to cope with the delinquency problems troubling Sweden. The ultimate goal of the experiment is, of course, the hoped-for salvage of these blighted lives by having an opportunity to live in an atmosphere of kindness and forgiveness for their every act, no matter how heinous.
The author, however, has no intention of letting this come to pass. He is determined to have the forces of Evil triumphant at all times. Undoubtedly in asking the questions which the picture poses, the author does not know the answer any better than the rest of us but this frailty should not condemn the Socratic approach. Possibly he is inveighing against the Swedish social agency system, possibly against overpermissive reform methods, and undoubtedly with not too Machiavellian subtlety, he is demonstrating a proposition scarcely original with him that even a Supervisor and a preceptor have their human weaknesses.
Instead of benefiting from their experimental treatment, the author depicts these delinquents as beyond redemption. They steal and sell the furniture and prized possessions of the preceptor, they wreck his personal quarters, they assault each other, they intentionally maim themselves, they indulge in acts with a prostitute of a nature which well might be expected from subnormal or abnormal delinquents, they put their well-intentioned preceptor in the position of accepting money from the prostitute (apparently a crime in Sweden) to buy back his own stolen furniture and they are ultimately the cause of his arrest and of the death by suicide of one of their number. The picture ends -- even as many a Greek tragedy -- by having Evil prevail and a leering delinquent saying, "But no one blamed me for his death."
IS "491" UTTERLY WITHOUT REDEEMING SOCIAL VALUE?
Mindful of the admonition that we are judges and not literary experts or philosophers, we turn to the witnesses for guidance in our own ultimate judgment.
The Government called the Assistant Deputy Commissioner of the Bureau of Customs of the Treasury Department, Irving Fishman, in Customs Bureau service for some 39 years. He conceded that the picture dealt with delinquency, a problem of some social significance. Although he recognized the "Good Samaritan" aspects of the film, he was concerned that "people of various ages who would see the film for the first time" would see "the objectionable part of the film rather than the material which was of social significance." Despite this, the Commissioner concluded that the objectionable aspects outweighed the film's social significance.
Dr. Max Levin, a physician specializing in psychiatry and neurology, believed that a motion picture could have a tendency to excite lustful thoughts and to stir sexual impulses in the viewer but he also believed that "A man walking down the street and seeing a pretty girl, that can stimulate his sexual fantasies or a man reading an item in the newspaper or hearing a remark or hearing a joke, there is almost no limit to the stimuli that can act on a person's sexual thinking and sexual fantasies." This physician-psychiatrist, however, thought that latent homosexuals "might easily be greatly disturbed by this incident [the homosexual scene between the Supervisor and one of the delinquents]," and that the sadistic treatment of the prostitute "would appeal to people who have a sadistic view of sex." On the other hand, he conceded that the overt or latent homosexual could be stimulated by seeing in a motion picture a fully-clothed, very handsome man or a well-built man in a bathing suit. Sadism and voyeurism he recognized abound in current literature and advertising.
From Cyrus I. Harvey, Jr., an officer of Janus, the Government elicited the information that Janus planned to "distribute it ["491"] widely throughout the United States, but would insist that it be shown for adults only." He then referred to many motion pictures, publicly and commercially exhibited, which contained scenes similar to and more obvious than the scenes characterized as obscene in "491."
The Rev. Dr. Dan M. Potter, Executive Director of the Protestant Council of Churches in New York City, felt that the film in its portrayal went "far beyond the general rules of candor" and that its impact would be offensive throughout the entire community.
John Fitzgerald, a free-lance writer and entertainment columnist for Our Sunday Visitor, a Catholic weekly, testified that the film lacked artistic integrity, was artistically poor and went beyond the customary national standards of candor but "portrays a social experiment."
David McIntyre, entertainment editor for the Evening Tribune (San Diego) and The Copley News Service, thought that the dramatic presentation of the picture was obscure, that the film went beyond the customary limits of candor and that "The theme is the lack of communication between people."
Janus produced witnesses covering an even broader range. Mr. Amos Vogel, Director of the Film Department at Lincoln Center (New York) said that in his opinion the picture was trying to show "the weakness of the social workers and the system of values which these social workers and psychologists and directors of this institution represent * * * [and] that the problems that these young people have are not so easily capable of resolution." The "method he [the producer] chooses to do that is by indicating how they [the delinquents] slowly degenerate and maybe at the end not so slowly into an almost paroxysm, * * * of evil." The Vogel conclusion was that from various points of view, including the religious and Biblical, "a very eminently respectable and serious theme" was portrayed.
To Mr. Nathan Hentoff, on the staff of the New Yorker Magazine, a writer for newspapers, including a journal for social workers, and on subjects dealing with the rehabilitation of delinquents, "the picture is saying, among other things, that there are increasingly in urbanized society youngsters who for various reasons -- societal familial -- a combination of them, have become so alienated from the prevailing values and mores of the society as to be potentially a danger to that society and to themselves." His conclusion might be summarized in his answer "in terms of social intent it is a very useful film."
Mr. Stanley Kauffmann, film critic of the New Republic, contributor in this field to many periodicals and university lecturer on film criticism, was of the opinion that the film had at least three "aspects," sociological, religious and human metaphysical. To him the film on the sociological score "is an examination and a criticism of the specific social techniques used in the film for helping juvenile delinquents," on the religious score "a criticism of the Christian doctrine" and on the metaphysical score "a dramatization of a bond being cemented between quite disparate members of society by a recognition of evil in all rather than an aspiration, a common aspiration towards good."
Mrs. Judith Crist, film critic and associate dramatic critic for the New York Herald Tribune, who also reviews movies for a network television show, and characterized by a Government witness "as one of the two most respected critics in the United States," after seeing "491" testified, "I found it was to me a powerful and engrossing film. I thought that it had a great deal to say. I thought it had great intellectual content. I thought it was an extremely moral movie." To Mrs. Crist "the theme is the battle between good and evil * * *. The struggle between good and evil, between the weak and the strong in our society carried through to the rather bitter truth that we know that too often the good is the weak and does not triumph, * * *." Instead of arousing adult "prurient appeal" or lustful desires, she believed the film to be "so completely anti-erotic that, if anything, it fills one with disgust for the very animal nature, for all the sexuality that is in large part there purely by the viewer's inference." Comparing "491" with great movies produced in this country and currently exhibited, "491" "is the embodiment of everything that is good and pure and unerotic compared with such great movies as we have had, such as [mentioning several]." After describing such movies having "references to every possible known perversion," "lesbianism," "obscene telephone calls," pornographic books, murder, ...