The opinion of the court was delivered by: POLLACK
The government has seized a motion picture film produced in Sweden titled "Language of Love" sought to be imported and sues to be allowed to confiscate it as transgressing Section 305 of the Tariff Act of 1930, 19 U.S.C.A. § 1305. That statute prohibits importation of obscene or immoral articles.
The owners of the film ("claimants" hereafter) have appeared in the suit and have moved under the Federal Rules of Civil Procedure, alternatively, (i), for summary judgment in their favor dismissing the complaint under Rule 56 or, (ii), for a preliminary injunction under Rule 65(a) directing the government to release the film for public exhibition pendente lite.
Contending that the film is an educational vehicle, claimants assert that the motion picture is not obscene as a matter of law; and that the claimants have been denied constitutional due process by arbitrary confiscation of the film and unreasonable delay of the government and of the Court in acting with respect to the film. Claimants contend further that Section 305 is unconstitutional on its face because it effects a prior restraint on materials protected by the First Amendment, because it fails to give assurance of prompt administrative or judicial determinations, and because its provision affording the Secretary of the Treasury discretion in admitting noncommercial classics and works of established merit arbitrarily discriminates against commercial works in the same category.
Claimants' application for a preliminary injunction is grounded primarily on the contentions that seizure of the film has caused them substantial revenue losses and that the film, being of current interest, will depreciate in value with the passage of time due to the competition of other sexually explicit films.
"Language of Love" first arrived at the Port of New York from Sweden on September 16, 1969, as 11 reels and a separate sound tape. It was seized by the Regional Commissioner of Customs for Region 2 on October 2, 1969, and the United States Attorney for the Southern District of New York commenced an action for its forfeiture, 69 Civ. 4490, on October 14, 1969. The owners of the film, Unicorn Enterprises, Inc. and Swedish Film Productions filed a notice of claim to the film on October 28, 1969, and a verified answer on November 10, 1969. The claimants then requested that the film be returned to Sweden; they had determined that the separate sound tape was defective and decided to import a different print and sound track. Accordingly, on November 18, 1969, an order of dicontinuance was entered on the consent of the parties, providing that the film and tape be exported to Sweden without prejudice to the importation of a new print.
The second print, consisting of 12 reels with English and Finnish sound tracks, arrived on November 20, 1969 in New York and was seized by the Commissioner on December 4, 1969. The United States Attorney commenced the instant action on December 9, 1969; Unicorn Enterprises, Inc. and Swedish Film Productions filed a notice of claim on December 22, 1969 and filed their answer on January 5, 1970. The claimants brought on their instant applications by an order to show cause, which was signed on January 15 and heard on January 23, 1970. At the hearing, the government contended that there were triable issues of fact concerning the existence of redeeming social value in the film as well as concerning the intent of the presentation and dissemination of "Language of Love." See Ginzburg v. United States, 383 U.S. 463, 470, 86 S. Ct. 942, 16 L. Ed. 2d 31 (1966); Milky Way Productions, Inc. v. Leary, 305 F. Supp. 288 (three-judge court S.D.N.Y. 1969), aff'd, 397 U.S. 98, 90 S. Ct. 817, 25 L. Ed. 2d 78 (1970). The government's request for time to examine witnesses and documents was granted. The discovery mandated by the Court has proceeded reasonably and expeditiously. On several occasions the parties have sought rulings which were made promptly by the Court. On March 20, 1970, the government advised the Court by letter that it had concluded its discovery. The Court has viewed the accused film. The government has demanded that the facts at issue be determined by a jury.
Even assuming an intent to produce and disseminate an educational film, occasional scenes have been infused into the work which to say the least raise a question of fact as to the overall purposes and effect of the film. Licensed education may not be perverted with interstitial obscenity.
This Court has said the following in a similar case where the issue of obscenity has been brought forward on a motion for summary judgment:
Before a film can be held obscene, three elements must coalesce: "it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413, 418, 86 S. Ct. 975, 977, 16 L. Ed. 2d 1 (1966).
As a general rule, the presence or absence of such elements pose fact questions to be submitted to a jury. However, the Supreme Court has held that the question of obscenity is ultimately a constitutional question and therefore the jury's findings do not have their usual conclusive effect. See Jacobellis v. Ohio, 378 U.S. 184, 188, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964); [United States v. A Motion Picture Film Entitled] "I Am Curious-Yellow", 404 F.2d 196, at 200 (2d Cir. 1968). The judge to whom a summary judgment motion is addressed, should, consequently, dismiss the complaint if no triable issue of fact is raised on the question of obscenity.
Where the Court is of the view that the accused film possesses a modicum of social value, summary judgment must be granted to the claimant. See "I am Curious-Yellow", supra ; U.S. v. One * * * Film Entitled "491", 367 F.2d 889 (2d Cir. 1966). If on the other hand, issues of material fact are raised in respect of each of the three elements of obscenity, summary judgment on affidavits and exhibits is inappropriate and a trial of the issues is requisite.
United States v. A Motion Picture Film Entitled "Pattern of Evil", 304 F. Supp. ...