The opinion
AINSWORTH, Circuit Judge, with whom GEWIN, BELL, COLEMAN, DYER, CLARK, INGRAHAM and RONEY, Circuit Judges,
join (concurring):
I do not agree with the original panel decision that the defendant’s conviction for using a common carrier in interstate commerce to transport obscene books must be reversed because the United States did not present expert testimony to support its ease.
The criminal statute enacted by Congress, under which defendant was convicted, makes it unlawful to use a’common carrier for carriage in interstate commerce of “any obscene, lewd, lascivious, or filthy books . . . .” ( 18 U.S.C. § 1462 .) The panel decision states:
“We have little trouble in finding the books involved in the instant case to be vile, filthy, disgusting, vulgar, and, on the whole, quite uninteresting. We do, however, have difficulty in equating these adjectives with the constitutional definition of obscenity.”
The panel demonstrates its frustration and seeming inability to give effect to the statute by its statement that “[w]e are completely incapable of applying the test in the instant case” and that “we find ourselves completely incapable of ruling on this issue.” No lack of desire to enforce the criminal statute pertaining to the interstate transportation of obscene, lewd, lascivious, or filthy books, is apparent in the panel view — only a stated inability to do so because a determination whether the material is obscene cannot be made here “in the absence of expert testimony.”
I cannot reconcile the panel’s conclusion with its explicit finding that the books involved are “vile, filthy, disgusting, vulgar.” So the books are, and the reviewing court’s finding to that effect requires that we affirm the jury’s finding 'of guilt in this case under the evidence presented.
Accurate guidelines for our use here, based on past decisions of the Supreme Court, are hard to find. Nevertheless, the test in Roth v. United States, 354 U.S. 476 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 (1957) is, as the panel (as well as the majority) points out, still the law in our highest court. See United States v. Reidel, 402 U.S. 351 , 91 S.Ct. 1410 , 28 L. Ed.2d 813 (1971).
The jury in this case was instructed by the trial court under the Roth standard and its finding of guilt carried with it the implicit finding that the books involved were obscene, lewd, lascivious, or filthy.
*587 So far as we have been able to determine, the Supreme Court has not yet said, in any case, that the lack of expert testimony in an obscenity case is fatal to a conviction. The panel, however, supports its view with citation of the Second Circuit’s holding in United States v. Klaw, 2 Cir., 1965, 350 F.2d 155 , and the California Supreme Court’s holding in In re Giannini, 1968, 69 Cal.2d 563 , 72 Cal.Rptr. 655 , 446 P.2d 535 . (The Second Circuit subsequently affirmed a conviction in which there was no expert testimony in United States v. Wild, 2 Cir., 1969, 422 F.2d 34 .)
I reject the reasoning in Klaw and Giannini and will not wring my hands in despair because of the difficulty of defining what is meant by the terms “obscene” or “obscenity.” It cannot be doubted “that contemporary American society rejects and will not tolerate the dissemination of hard-core pornography.” 1 The federal criminal statute here reflects that precept of our culture. Expert testimony to provide information to the fact finder may be helpful in obscenity cases but is not indispensable. At times it may confuse more than help. A swearing contest between opposing literary or social experts may well turn a ease involving criminal sanctions pertaining to obscenity into a farce. This is not to say that such testimony may not be received by the trier of fact, but only that it should not be required. The juror, as the so-called reasonable man or average man, can determine as well as most experts whether the involved material is obscene within the definition of Roth and its progeny. It is no more difficult for the fact finder to make such a determination than it is to apply such elusive concepts as negligence and proximate cause or in the area of antitrust such broad phrases as “restraint of trade” and “every contract, combination ... or conspiracy.” 2
I adhere to the views expressed by us previously in Kahm v. United States, 5 Cir., 1962, 300 F.2d 78 . In that case the appellant contended “that the Government made no case for the jury because no witnesses were called to testify or give their opinions as to whether the mailed material here in question would come within the definition of obscene material stated in Roth.” Id. at 84 . The Court responded to the argument by its holding that the jury “was fully capable of applying those standards” [i. e. those in Roth]. Finally, the Court said, “We think it may fairly be said that no amount of testimony by anthropologists, sociologists, psychologists or psychiatrists could add much to the ability of the jury to apply those tests of obscenity to the materials here present.” Id. at 84 . 3
To hold, in effect, that we must turn the application of the obscenity statutes over “to a collection of randomly chosen Ph.D.’s” as expert witnesses in such matters, is to require abdication of the judicial function of the judge or jury as triers of fact. 4 Under our system of law it is the trier of fact who is responsible for the legal determination whether the materials involved are obscene within the definition of that term as explicated in Roth . The jury which is drawn from a cross-section of the community embodies the average or reasonable man and that collective group is as capable as any other of making the critical determination necessary under proper instructions from the trial judge. With the materials involved in this case it *588 would be difficult, if not impossible, to find an expert whose testimony would be helpful to the average or reasonable men composing the jury. The views of such a witness would be subject to serious question and their probative value of little consequence. We can discern for ourselves in reviewing this case, as the jury did initially, that the materials involved are obscene within the definition of Roth . To seek an expert to reenforce our views would be to gild the lily. Such an expert would be no more suitable to draw a conclusion or furnish information in this regard than would judges and juries.
The panel unwittingly struck a blow in behalf of the peddler of obscene material whose motives are “those of cynical, commercial gimmickry,” 5 and made it more difficult for the Government to give effect to the will of Congress which enacted the obscenity statute involved here.
Believing the panel decision to be incorrect, as a matter of law, I would affirm the conviction.
. Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 112 (1960).
. See Stern, Toward a Rationale for the Use of Expert Testimony in Obscenity Litigation, 20 Case Western Reserve L.Rev. 527, 545 (1969). Application of obscenity statutes can only be made on a case-by-case basis and “courts must undertake to make law for each case as it is presented.” Id., supra, at 545.
. The panel quoted in full the paragraph from which we have excerpted these quotations from Kahm . It distinguished the present decision from Kahm on the facts, but we discern no substantial difference in principle.
. Cf. Stern supra, at 566-567.
. See views of Rabbi Raymond Apple in the Report of the Longford Committee Investigating Pornography, Coronet Books ed. p. 129 (1972).