Appeal from a judgment of the District Court for the Southern District of New York, Robert W. Sweet, Judge, holding that various articles of merchandise seized by the United States Customs Service were not obscene within the meaning of 19 U.S.C. § 1305(a) (1976 & Supp. V 1981).
Mansfield, Meskill and Newman, Circuit Judges. Meskill, Circuit Judge, concurring in the result. Judge Meskill concurs in a separate opinion.
MANSFIELD, Circuit Judge:
The government appeals from a judgment of the Southern District of New York, entered by Judge Robert W. Sweet after a hearing,*fn1 upon his opinion holding that various "hard-core" pornographic articles of merchandise (video cassettes and magazines)*fn2 seized by the government were not "patently offensive" under contemporary community standards and hence not "obscene" within the meaning of 19 U.S.C. § 1305(a) (1976 & Supp. V 1981) and dismissing the government's complaint under that statute for forfeiture of the merchandise.*fn3 565 F. Supp. 7. An earlier opinion by the district court reaching the same result had been remanded because of use of an incorrect legal standard for determining obscenity. United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 678 F.2d 433 (2d Cir. 1982) (per curiam). We affirm.
No purpose would be served by describing in detail the seized articles except to say that they unquestionably are examples of hard-core pornography, describing and depicting a wide range of scenes of explicit sex on the part of adults, singly and in groups, including detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation. The magazines and representative samples of the most pornographic portions of the challenged videotapes were exhibited to the district court and later to ourselves.
In his first dismissal of the complaint the trial judge relied in part on his view that the community standard included a community belief that the right to "free expression ought not to be compromised by government restrictions" such as 19 U.S.C. § 1305. We reversed on the ground that "community tolerance of section 1305 is irrelevant to the determination of obscenity."
On remand, Judge Sweet again found that the articles were not obscene and dismissed the complaint. Relying on a survey of reports described in his prior opinion indicating widespread community availability of and hence community acceptance of pornographic materials, the district judge found that under "contemporary community standards, the movie 'Deep Throat ' and the remaining video cassettes and magazines in Schedule 2102, each of which is comparable to 'Deep Throat, ' are not patently offensive under contemporary community standards."
In addition, the district court noted that the behavioral psychologist, B. F. Skinner, had recently cited with approval the theologian Paul Tillich for his defense of pornography as "extending sexuality into old age." The remarks of Skinner and Tillich, the judge determined, served to modify the court's prior conclusion that the challenged materials lacked serious literary, artistic, political and scientific value.
Although the constitutionality of 19 U.S.C. § 1305 has been upheld, United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 37 L. Ed. 2d 500, 93 S. Ct. 2665 (1973), determination of what material falls within the term "obscene" does not lend itself easily to the judicial process. Much of the difficulty stems from the vagueness of the concepts involved, the wide variation in moral attitudes within a heterogeneous population, and the unsuitability of conventional procedures, which rest on "findings of fact" and "conclusions of law," to the task of determining obscenity. Faced with these hurdles the Supreme Court has set forth the standards for determining whether pornographic material is "obscene," as that term is used in § 1305, in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973) and its progeny. United States v. Various Articles of Obscene Merchandise, Schedule No. 2127, 705 F.2d 41, slip op. at 2909 (2d Cir. 1983).
Before a work can be adjudged obscene, the trier of fact must find that (a) " 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest;" (b) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;" and (c) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller, supra, 413 U.S. at 24 (citations omitted). Sexually-oriented work is not obscene unless all three elements of the Miller test are satisfied. Thus a work, though a valueless piece appealing to the prurient interest, will not be deemed obscene unless it is patently offensive according to contemporary community standards, i.e., in the judgment of the "average person in the community, rather than the most prudish or the most tolerant," Smith v. United States, 431 U.S. 291, 304, 52 L. Ed. 2d 324, 97 S. Ct. 1756 (1977). See Jenkins v. Georgia, 418 U.S. 153, 161, 41 L. Ed. 2d 642, 94 S. Ct. 2750 (1974); Miller v. California, supra, 413 U.S. at 27; Lentz, Comparison Evidence in Obscenity Trials, 15 U. Mich. J.L. Ref. 41, 47-48 & n.9 (1981).
A determination of patent offensiveness requires a two-step inquiry that focuses first on the substantive content of the materials to see whether they depict or describe "hard core" types of sexual conduct that the trier of fact could constitutionally label "patently offensive" according to contemporary community standards, i.e., whether it qualifies as possibly obscene. Smith v. United States, supra, 431 U.S. at 301. If not, that ends the inquiry. Once this threshold "substantive component" or condition is satisfied, the trier must then determine whether, as a matter of fact, the materials are patently offensive to the average person in the community. United States v. Various Articles of Obscene Merchandise, Schedule No. 1769, 600 F.2d 394, 406 (2d Cir. 1979).
The government bears the burden of proving all three elements of obscenity to the satisfaction of the trier of fact, United States v. 2,200 Paper Back Books, 565 F.2d 566, 570 (9th Cir. 1977), but it is not constitutionally required to introduce evidence of community standards. Hamling v. United States, 418 U.S. 87, 104, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974). The materials, if "hard core," may speak for themselves, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 & n.6, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973). While the materials provide the best evidence of their substantive content, they do not supply any information about the community standards by which they are to be judged. United States v. 2,200 Paper Back Books, supra, 565 F.2d at 570. The trier is free to decide that the government has failed to sustain its burden of proving that the materials, although unprotected by virtue of their "hard core" content, are patently offensive to the average member of the community. In order to make that determination he may utilize his own sense of the views of the hypothetical "average person in the community," a flexible concept that requires taking into account such variables as the characteristics of the community,*fn4 the differing attitudes within it, the extent to which persons reveal their true opinions, and the nature of the "hard core" material under attack. To arrive at a measure of community tolerance of pornographic material the trial judge may rely upon his own experience in the community and decide as best he can what most people seem to think about such materials. If, on the other hand, he has little or no knowledge of their views, he may turn to opinion proof and, if the government fails to offer such proof, he may be relegated to finding that it has failed to sustain its burden. See, e.g., United States v. 2,200 Paper Back Books, supra, 565 F.2d at 570.
The parties may introduce relevant evidence of the prevailing community standard. Miller, supra, 413 U.S. at 31 n.12; Hamling v. United States, supra, 418 U.S. at 106. But even if such evidence is adduced, the trier may nonetheless disregard it and rely exclusively on his own knowledge of the views of the average person in the community in making the required determination. Smith v. United States, supra, 431 U.S. at 301-02; Hamling v. United States, supra, 418 U.S. at 104; United States v. One Reel of 35mm Color Motion Picture Film Entitled "Sinderella," 491 F.2d 956, 959 (2d Cir. 1974). Although appellate courts are required to exercise de novo review as to the preliminary substantive requirement that the material be "hard core" pornographic in nature, Jenkins v. Georgia, supra, 418 U.S. at 160-61, the trier's finding that the material is non-obscene is virtually shielded from appellate scrutiny, at least absent evidence that it is so clearly unreasonable as to amount to abuse of discretion. The principal reason for this posture on appeal is that under Miller the trier of fact is at liberty to identify and apply community standards as he sees them, unchecked by any definition of the relevant community (except that it may not extend to the entire nation) or by any more precise benchmarks. To this must be ...