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UNITED STATES v. VARIOUS ARTICLES OF OBSCENE MERCH

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT NEW YORK.


August 25, 1976.

UNITED STATES of America, Plaintiff,
v.
VARIOUS ARTICLES OF OBSCENE MERCHANDISE, SCHEDULE NO. 1303, Defendant.

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

For 135 years, Congress has forbidden penetration of our shores by obscene materials. *fn1" The enactment currently performing that protective function is § 305 of the Tariff Act of 1930, 19 U.S.C. § 1305(a) (1970). *fn2" Customs personnel at our various ports staff this bulwark. They spend their time opening mail and packages, having evidently learned what to suspect. Materials believed to be of the forbidden kind are turned over to the United States Attorney for the district in which the port lies.

 In this district, the Customs Service makes a weekly bundle of the allegedly obscene items, which are then listed on a schedule and proceeded against by the United States Attorney's complaint in rem. The addressees receive notice that their mail has been opened and potentially condemned, and that they are entitled to claim it. Most ignore the notices, and their things are consigned by default to be destroyed.

 If a claim is filed, it is set down to be "heard." On the day noticed for the hearing, a judge of the court turns up to preside. There is present an Assistant United States Attorney, an expert from customs just in case, and usually no one else. (In over 10 years on this court, this incumbent has seen two exceptions before the instant case.) *fn3" With nobody present to quarrel, the judge solemnly inspects the "claimed" postal cards, photos, brochures, and the like, intones a finding, inter alia, that each "work, taken as a whole, appeals to the prurient interest," Miller v. California, 413 U.S. 15, 24, 93 S. Ct. 2607, 2615, 37 L. Ed. 2d 419 (1973), and sustains the Government's complaint.

 In the extraordinary case now before the court, for reasons that may include at least some suited to our Bicentennial Year, the 29-year-old claimant hied himself here from Lancaster, Pennsylvania, on the appointed day and demanded delivery of the magazine intercepted on its way to him from a friend in Germay. Appearing pro se and waiving a jury, he presented the few undisputed facts which are now found to raise issues of some consequence. At the court's suggestion, he thereafter procured some assistance from an attorney in Lancaster for the writing of a brief. The proceedings became prolonged, mostly because of delays incurred in plaintiff's and the court's work, government counsel having been diligent, prompt, and helpful throughout. Because both sides were interested in a reasonably deliberate decision, the usual requirement of speed in such matters was waived. *fn4"

 I

 Claimant attacks at the threshold the opening by Customs agents of his "first-class mail" *fn5" without prior judicial approval. Government counsel duly informs us that the Court of Appeals for the District of Columbia Circuit has lately issued a powerful opinion, though over a dissent, outlawing warrantless searches by Customs agents of letter-class mail arriving from abroad. United States v. Ramsey, 176 U.S.App.D.C. 67, 538 F.2d 415 (1976). As that Court observes, especially tellingly in the climate of our times, the values of both the First and the Fourth Amendments are implicated in troublesome fashion by the unchecked practice of border agents in opening letters as well as packages mailed here from overseas.

 On the other hand, until that recent decision, a substantial body of federal authority stood for a contrary view. The courts considering the issue had held that the standard, if it could be called that, for opening foreign mail is that of a border search. See, e.g., United States v. Doe, 472 F.2d 982 (2d Cir.), cert. denied, 411 U.S. 969, 93 S. Ct. 2160, 36 L. Ed. 2d 691 (1973); United States v. Beckley, 335 F.2d 86 (6th Cir. 1964), cert. denied, 380 U.S. 922, 85 S. Ct. 921, 13 L. Ed. 2d 807 (1965); Hogan v. Nebraska, 402 F. Supp. 812 (D.Neb.1975); United States v. Various Articles of Obscene Merchandise, Schedule No. 896, 363 F. Supp. 165 (S.D.N.Y.1973).That view has been applied to letters coming from abroad. United States v. Bolin, 514 F.2d 554 (7th Cir. 1975); United States v. Barclift, 514 F.2d 1073 (9th Cir.), cert. denied, 423 U.S. 842, 96 S. Ct. 76, 46 L. Ed. 2d 63 (1975). Although our Circuit has not specifically applied this holding to letter-class foreign mail, there has been dictum at the Circuit level and a holding of this court in line with the weight of precedent. See United States v. Doe, supra, at 984-985; United States v. Swede, 326 F. Supp. 533 (S.D.N.Y.1971).

 The broad question may be destined for resolution soon by the Supreme Court; the Government is seeking certiorari in United States v. Ramsey, supra. As with other issues in the instant case, the claimant's limited resources have afforded less than the intensive briefing the court would desire on this one. Our factual record is sketchy and far from ideal. This court is not prepared, in all candor, to add to the pertinent learning in the decisions of higher courts. In the circumstances, and since the claimant is hereinafter held to prevail on the more central and specific questions of this case relating to the receipt of allegedly obscene materials, the general propriety of opening letter-class mail from abroad may be bypassed at this level for present purposes.

 II.

 We come to the question of the applicable standard for determining obscenity, and whether the Government has sustained its burden of proof in this aspect.

 In a forfeiture proceeding under 19 U.S.C. § 1305(a), it is the Government's burden to prove by a preponderance of the evidence that the detained material is obscene. See United States v. One Reel of 35mm Color Motion Picture Film Entitled "Sinderella," Sherpix, Inc., 369 F. Supp. 1082, 1084 (E.D.N.Y.1972), aff'd, 491 F.2d 956 (2d Cir. 1974); United States v. One Carton Positive Motion Picture Film Entitled "Technique of Physical Love," 314 F. Supp. 1334, 1335 (E.D.La.1970). While that burden remains undischarged, the matter is presumptively embraced by the First Amendment. Before deciding whether the Government has satisfied its burden here, two threshold issues must be resolved: (A) which community's standards are to be applied in making the obscenity determination, and (B) if the applicable standards are not those prevailing in this judicial district, whether this court or a jury drawn from this district should make the requisite finding.

 A. Applicable Community Standard

 The claimant, among his other interesting attributes, was once a member of the Lancaster Mayor's Committee on Community Standards on Pornography. Whatever New Yorkers may prefer to believe, secretly or otherwise, he presented substantial (and uncontradicted) evidence that the community standard defining obscenity in Lancaster is far more stringent, i.e., libertarian, than that in New York. Under Lancaster's standards, it seems that nothing is to be outlawed as obscene that is (1) viewed by an adult in private and (2) not offered or purveyed to children. *fn6" Thus, while this court - bound in time and place and person - might conclude that no American jury could find the material in question other than obscene, that is scarcely a permissible mode of disposition under the precedents. The question of obscenity vel non, once the constitutional threshold is passed, *fn7" is one of fact, to be answered by local community standards. *fn8" See Miller v. California, 413 U.S. 15, 30, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973); Jenkins v. Georgia, 418 U.S. 153, 159, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974). The diverse and far-flung communities of the United States may set standards within constitutional limits for defining obscenity. But they are free to be less inhibited and inhibiting than the Constitution would allow. See, e.g., Paris Adult Theatre I v. Slaton, supra, 413 U.S. at 64, 93 S. Ct. 2628; Roth v. United States, 354 U.S. 476, 505-06, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) (Harlan, J., dissenting).

 Although Miller and its progeny make local standards controlling, they do not tell us which community's standards are to be applied. See, e.g., United States v. Friedman, 488 F.2d 1141 (10th Cir. 1973); Schauer, Obscenity and Conflict of Laws, 77 W.Va.L.Rev. 377 (1975); Comment, Government Seizures of Imported Obscene Matter: Section 305 of the Tariff Act of 1930 and Recent Supreme Court Obscenity Decisions, 13 Colum.J. of Trans.L. 114 (1974). We do know that they may not be national standards, even when a federal statute is involved. See Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590(1974). We also know that juries may be instructed to "apply 'community standards' without specifying what 'community,'" Jenkins v. Georgia, 418 U.S. 153, 157, 94 S. Ct. 2750, 2753, 41 L. Ed. 2d 642 (1974), or instructed more pointedly to apply a statewide or other, narrower geographical standard. Id. Finally, we have been told that the Constitution allows a single judge to make the community judgment, see Alexander v. Virginia, 413 U.S. 836, 93 S. Ct. 2803, 37 L. Ed. 2d 993 (1973), even though a jury "represents a cross-section of the community and has a special aptitude for reflecting the view of the average person." McKinney v. Alabama, 424 U.S. 669, 96 S. Ct. 1189, 1199, 47 L. Ed. 2d 387 (1976) (Brennan, J., concurring), quoting Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1957) (Brennan, J., dissenting). See United States v. One Reel of 35mm Color Motion Picture Entitled "Sinderella," Sherpix, Inc., 491 F.2d 956, 958(2d Cir. 1974).

 Predictably, there has been no consensus among the lower federal courts as to which community's standards Miller meant to tap. There is growing support for the view that a federal court may invoke the community standards of the district in which it sits and from which it draws a jury. See United States v. Marks, 520 F.2d 913, 919 (6th Cir. 1975), cert. granted, 424 U.S. 942, 96 S. Ct. 1408, 47 L. Ed. 2d 347 (1976). United States v. Various Articles of Obscene Merchandise, Schedule No. 896, 363 F. Supp. 165, 167 (S.D.N.Y.1973); United States v. Miscellaneous Pornographic Magazines, 400 F. Supp. 353, 354 (N.D.Ill.1975). Cf. United States v. One Reel of 35mm Color Motion Picture Entitled "Sinderella," Sherpix, Inc., supra, 491 F.2d at 958. It is clear, however, that evidence of community standards outside the judicial district may also be considered. See, e.g., Hamling v. United States, supra, 418 U.S. at 106, 94 S. Ct. 2887; United States v. Marks, supra, 520 F.2d at 919. Finally, there is precedent and scholarly support for the proposition that the standard should be selected according to the nature of the alleged violation. Thus, if a defendant is charged under 18 U.S.C. § 1461 with mailing allegedly obscene material into a given district, "the contemporary standards, as to obscenity * * * [should be those of] the area of the distribution of material * * *." United States v. Elkins, 396 F. Supp. 314, 316 (C.D.Cal.1975). See also United States v. Slepicoff, 524 F.2d 1244, 1249 (5th Cir. 1975); Schauer, supra, at 398. This latter view would seem to achieve the aim of Miller to allow the States to adopt varying standards as to the nature of material they will allow within their borders.

 Since the States are free to "follow * * * a 'laissez-faire' policy and drop all controls on commercialized obscenity, if that is what they prefer," Paris Adult Theatre I v. Slaton, 413 U.S. 49, 64, 93 S. Ct. 2628, 2639, 37 L. Ed. 2d 446 (1973), and since individuals are allowed to possess even patently obscene materials in their own homes, see Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542(1969), *fn9" it is anomalous to allow a few port of entry community standards to dictate what citizens of other communities may read and see. There is no federal standard of obscenity; there are only local community standards. The question is one of local morality, of variegated community attitudes; it touches aspects of thought and feeling in which free people are expected to be diverse, to experiment, and to choose for themselves. Roth v. United States, 354 U.S. 476, 503-506, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) (Harlan, J., dissenting). The several purposes served by our customs laws are not thought to include the imposition of a "blanket ban" or a "deadening uniformity," id. at 506, 77 S. Ct. 1304, upon the whole Nation by allowing a happenstantial port of entry to become the arbiter of taste and decency for recipients of mail everywhere. If such an oppression were deemed to have been intended by the Congress, it would raise momentous questions under the First Amendment. But it does not appear - it is surely not necessary to conclude - that this was purposed.

 For reasons touched thus far, and upon related grounds to be addressed, the sensible reading of § 1305(a), avoiding constitutional doubts, is to promote and allow determinations of obscenity under the standards of the community to which the questioned mail is addressed. *fn10"

 B. The Appropriate Fact-Finder

 Compelled to come to New York to demand his mail, the claimant could have demanded a jury. But it would have been a New York jury. Conceivably, it, like the court, could have tried to understand and apply the standards of Lancaster, Pennsylvania. But that would be at best a dubious enterprise. The central point of the local community standard is that it is capable of fully effective application only by a person from the community who "is entitled to draw on his own knowledge of the views of the average person in the community or vicinage * * *." Hamling v. United States, 418 U.S. 87, 104, 94 S. Ct. 2887, 2901, 41 L. Ed. 2d 590 (1974). See also United States v. Elkins, 396 F. Supp. 314, 318 (C.D.Cal.1975). It contradicts the basic premise of this standard to have people from one community purport to go by the sentiments of another.

 The test of obscenity under Miller is essentially a question of fact to be determined by "the average person, applying community standards." 413 U.S. at 30, 93 S. Ct. at 2618. National standards were rejected, inter alia, because "it would be unrealistic to require that the answer be based on some abstract formulation * * *. To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility." Id. The futility is more vivid if we posit, as the Supreme Court commands, uniquely felt local attitudes, and then expect these to be assimilated and applied by people from other places, with other feelings and attitudes.

 There is no need now to doubt that the Government may discharge its burden to prove obscenity under the applicable local standards in an uncontested case by merely offering up the seized materials for inspection by "foreign" fact-finders. The case is wholly altered when, as here, a claimant comes forward with undisputed evidence that his mail would not be branded obscene by his own community. The principled solution for all concerned is to refer disputes of this nature to the district of the claimant's residence. *fn11" This would at the same time serve the end of elementary procedural fairness, a point that merits separate treatment.

 III.

 The schedule of items libeled in this case lists very few recipients who live near or in this district. Most of this mail was destined for such faraway places as Rigby, Idaho, Honolulu, Hawaii, Daisy, Tennessee, Big Spring, Texas, Newport Beach, California, and Anchorage, Alaska. The things seized are characteristically of trivial monetary value. The burden and expense of coming here to press a claim are altogether disproportionate, as is illustrated by the case of the one claimant now before the court.

 Any freedom is by definition impaired when its exercise is made costly and troublesome. The relevance of this proposition to First Amendment freedoms is familiar and obvious. See, e.g., Freedman v. Maryland, 380 U.S. 51, 59, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). Any system of prior restraint, such as that permitted by 19 U.S.C. § 1305(a), "comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 639, 9 L. Ed. 2d 584 (1963). "Because the line between unconditionally guaranteed speech and speech that may be legitimately regulated is a close one," Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 561, 95 S. Ct. 1239, 1248, 43 L. Ed. 2d 448 (1975), the system of restraint "cannot be administered in a manner which would lend an effect of finality to the censor's determination * * *." Freedman v. Maryland, supra, 380 U.S. at 58, 85 S. Ct. at 739. Without appropriate procedural "safeguards, it may prove too burdensome to seek review of the censor's determination." Id. at 59, 85 S. Ct. at 739. See also Speiser v. Randall, 357 U.S. 513, 521-526, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958). The quoted principles have plain application here. If it needs empirical demonstration, the experience of this court (undoubtedly typical) supplies it. Almost nobody shoulders the burden of a contest when his mail is opened, kept, and placed upon one of the condemning schedules.

 Again, the vice in the procedure is curable, or at least mitigated, by referring contested claims to the district of the claimant's residence, or at least giving the claimant the option of having the matter heard there.

 IV.

 This case has made vivid and concrete some problems under 19 U.S.C. § 1305(a) which do not appear, in the reported decisions of which the court is aware, to have been squarely considered before. *fn12" Upon the record and the legal doctrines outlined above, the procedure under the statute is found to offend against the First Amendment both in (a) depriving claimants and their local communities of the freedom to read and see things in accordance with their own standards of what is or is not obscene, and (b) failing to afford a less onerous and expensive procedure for the vindication of First Amendment claims to items seized. The invalidity of the procedure could have been eliminated, and can be in the future, by stating in the notice to potential claimants that they have a right to have the issues heard in the district of their residence or of the destination of the mail matter. Because the claimant was not given this choice, or, of course, any notice of such a choice, his claim should be sustained without reaching the merits of the issue of obscenity. See, e.g., Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 562, 95 S. Ct. 1239; Freedman v. Maryland, supra, 380 U.S. at 60, 85 S. Ct. 734; United States v. One Book Entitled "The Adventures of Father Silas," 249 F. Supp. 911 (1966).

 Alternatively, the claimant would prevail because the Government has failed to sustain the burden of proving the material obscene within the local community standard of Lancaster, Pennsylvania.

 The complaint is dismissed as against this claimant. The magazine he demands should be delivered to him within 30 days unless the Government before then files a notice of appeal, in which event, subject to the orders of the Court of Appeals, this order is stayed pending expeditious prosecution of such an appeal.

 It is so ordered.


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