The opinion of the court was delivered by: POLLACK
Claimant is moving to dismiss the complaint in a forfeiture proceeding brought by the United States against the film "Pattern of Evil" under § 305 of the Tariff Act, 19 U.S.C. § 1305 (1964). The claimant seeks dismissal on several grounds, inter alia :
1. Section 305 is unconstitutional on its face in that the terms "obscene" and "immoral" are vague; the statute effects a prior restraint on materials protected by the first amendment; there is no specified time period for the actions of customs officials, or for expeditious action by the courts; the statute is not limited to proscribing sales to minors, pandering, etc.; mere possession of obscene material is made unlawful in contravention of a recent Supreme Court ruling.
2. Section 305 has been unconstitutionally applied in the case at bar because the confiscation proceedings have been delayed an "inordinate" amount of time.
3. "Pattern of Evil" is not obscene as a matter of law because it has redeeming social value; does not appeal to a prurient interest in sex; and does not exceed customary limits of candor.
Claimant has demanded an adversary hearing on the above issues and the Government demanded a jury. The parties requested time to submit affidavits which were filed on September 23, 1969 and requested an opportunity for final argument which was made on September 25, 1969. The Court has viewed the accused film, and has, at the request of claimant, viewed a motion picture entitled "I Am Curious-Yellow".
The matter is before the Court in the posture of a motion for summary judgment. Fed.R.Civ.P. 12(b).
The Constitutionality of § 305 on Its Face
The majority of the grounds on which claimant contends that § 305 is unconstitutional on its face are without merit and have been so held. United States v. One Carton Positive Motion Picture Film Entitled "491", 367 F.2d 889 (2d Cir. 1966) (hereinafter cited as "491"); United States v. A Motion Picture Film Entitled "I Am Curious-Yellow", 285 F. Supp. 465 (S.D.N.Y.1968), rev'd on other grounds, 404 F.2d 196 (2d Cir. 1968) (hereinafter cited as "I Am Curious").
There are only three claims raised by claimant which were not raised in the cases cited above.
The first, is plaintiff's contention that Redrup v. New York, 386 U.S. 767, 87 S. Ct. 1414, 18 L. Ed. 2d 515 (1967) has changed the rule of Roth and its progeny with the effect that nothing obscene can be banned unless there are elements of pandering, in connection with the sale of the material; the material is sold without restriction to minors; or it is impossible for an unwilling individual to avoid exposure to the material.
Claimant has misread Redrup. In that case, the Supreme Court upon reviewing the record below found that the materials in issue were not obscene, and that therefore they could not be regulated by the state unless the state statutory scheme was limited to proscribing pandering, sales to juveniles or unwanted exposure of the material to the public. See Ginsberg v. New York, 390 U.S. 629, 634 n. 3, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968). The statute in question was not so limited and the conviction for selling obscene material was reversed. Redrup does not change the Roth rule that the distribution of obscenity can be prohibited. The issue in the case at bar is whether "Pattern of Evil" is obscene, and upon a judicial determination that it is obscene there is no doubt that its importation can be prevented.
Claimant's second contention is that § 305 is fatally defective in that a brief time period is not specified within which customs officials must act, or in which the courts must render a decision on obscenity. In " 491 " the Court of Appeals faced with the same contention, held that § 305 complied with the standards set up by the Supreme Court in Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). The Supreme Court in Freedman held that "* * * a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under ...