The opinion
THORNBERRY, Circuit Judge, with whom BROWN, Chief Judge, WISDOM, GOLDBERG, GODBOLD, SIMPSON and MORGAN, Circuit Judges,
join (dissenting):
With all the deference that is due my brothers of the majority, I cannot subscribe to the views they have expressed here. By committing the determination of obscenity to a jury’s unguided perusal of allegedly obscene material, a majority of this Court today permits claims of First Amendment protection to be foreclosed through a process akin to res ipsa loquitur. What is worse, this novel treatment of constitutional liberties appears to me to rest on a misunderstanding, shared by seven members of the majority, of the accepted test for determining whether material is obscene in the constitutional sense.
Some six months after the panel opinion in the instant case was published, the Supreme Court reversed a state obscenity conviction in a per curiam opinion. Kois v. Wisconsin, 408 U.S. 229 , 92 S.Ct. 2245 , 33 L.Ed.2d 312 (1972). In the course of holding that the material before it was not obscene, the Court remarked that “[mjaterial may be considered obscene when ‘to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest’,” quoting Roth v. United States, 354 U.S. 476, 489 , 77 S. Ct. 1304, 1311 , 1 L.Ed.2d 1498 (1957). Because the elements of “redeeming social importance” and “patent offensiveness” are not expressly alluded to in this quoted language from Roth and Kois , seven Judges conclude that these elements are not presently part of the recognized test for obscenity — indeed, that they have never been part of the test. In my opinion, this conclusion finds no support in either Roth or Kois .
In holding that obscenity was outside the protection of the First Amendment, Justice Brennan, writing for a majority of five in Roth , observed that obscene utterances had been traditionally denied the protection of the law precisely because obscenity as a mode of expression was utterly without redeeming social importance :
All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties [of the First Amendment], unless excludable because they encroach upon the limited area of more important interests. [Footnote omitted.] But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. .
354 U.S. at 484 , 77 S.Ct. at 1309 (emphasis added). 1
*590 Thus, far from being merely a formulation by individual Justices that has never commanded a majority, the utter lack of redeeming social value was, in the eyes of the Roth majority, the sine qua non of obscene, and therefore unprotected, expression. And the vitality of this element continued undiminished in the most recent Supreme Court obscenity case, Kois , in which some of the material in question was declared not to be obscene precisely because it bore “the earmarks of an attempt at serious art.” 92 S.Ct. at 2247 .
Likewise unsupported by a reading of Roth is the claim that “patent offensiveness” is but a “variant” of the Roth test advanced by only two Justices in Manual Enterprises v. Day, 370 U.S. 478 , 82 S. Ct. 1432 , 8 L.Ed.2d 639 (1962). Footnote 20 of the Roth majority opinion clearly answers such a contention:
We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I. Model Penal Code, § 207.10(2) (Tent. Draft No. 6; 1957), viz.:
“ . . . A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest: i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters "
354 U.S. at 487 , 77 S.Ct. at 1310 n. 20 (emphasis added). Since the Kois Court relied heavily on Roth , it can hardly be said that Kois suggests a rejection of an element so clearly present in the Roth test.
Thus, seven Judges misconstrue Roth and read too much into Kois . Those decisions make it clear that the panel’s formulation of the three-pronged test for obscenity is correct. But the question facing our court in this case is not so much which test to apply, as it is how the jury, and a reviewing court, are to apply the standard. Simply stated, are First Amendments rights to turn on the prejudices of jurors and appellate judges or are they to be governed by proof which the jury, concededly, may overlook but which can supply an objective basis for decision by a reviewing court? The considerations favoring the panel’s answer to this question are adequately stated in the panel opinion and need not be reiterated here. But it is hardly any answer to say, as do the majority in summarily dismissing appellant’s substantial claim that the material in the instant case is not obscene as a matter of law, that it is “easy” to hold the materials obscene because we find them “vile, filthy, disgusting, vulgar, and on the whole, quite uninteresting.” To confound these epithets with “obscenity” in the constitutional sense is to risk falling victim to the same confusion that both the Roth and Kois Courts warned against when they held that “sex and obscenity are not synonymous.” 354 U. S. at 457 , 77 S.Ct. at 1310 ; 92 S.Ct. at 2246-2247 . 2
*591 As to the contention that the jury is to apply “local,” rather than “national,” standards in determining prurient appeal, it is well to recall that in the instant case we are asked to interpret a federal statute (not a state statute as was involved in Kois) and a National Constitution. Allowing the meaning of obscenity, and thus the boundaries of protected expression, to fluctuate county by county or district by district would hardly ameliorate the confusion that characterizes this area of the law. And to argue that the “community standards” to be applied are those existing only in the relatively confined area from which federal juries are to be chosen, is to ignore the fact that appellant could have been tried in, and his jury selected from, either the district from which the materials were shipped (the Southern District of California), the district where they came to rest (the Northern District of Texas), or any district through which they passed en route. 18 U.S.C. § 3237 (offenses begun in one district and completed in another). I had thought that constitutional rights do not depend on the Government’s choice of forum; but such an anomaly may well be the result of permitting juries to apply diverse parochial standards to material said to be obscene.
Of course, as Judge Clark’s concurring opinion recognizes, the debate between “national” and “local” community standards will remain academic until the Supreme Court decides several cases now pending before it, including Kaplan v. California, No. 71-1422, 41 U.S.L.W. 3157 (Oct. 3, 1972). But whatever the outcome of that controversy, the problems inherent in applying the “redeeming social value” 'element of the obscenity test will still require the introduction of extrinsic evidence in obscenity prosecutions. As the First Circuit said recently in a decision requiring the introduction of such evidence:
[I]f we are to prevent the obscenity law’s unusual provision for judgment of a publication’s value from becoming the passing majority’s tool for repressing expression it finds distasteful, unusual, discomforting, or simply threatening, we must have witnesses, with psychological sociological, medical, historical, or literary expertise, to explain objectively the total absence of redeeming social value.
United States v. Palladino, 475 F.2d 65 (1st Cir., 1973).
For these reasons, I respectfully dissent.
. Admittedly, the formulation of the Roth test upon which the majority relies so heavily and which was quoted in Kois refers expressly only to the element of prurient appeal. Roth, 354 U.S. at 489 , 77 S.Ct. at 1311 . But to say that this formulation necessarily excludes the other *590 two elements of the panel's three-faceted test is to ignore the context in which the formulation occurred. That context was Justice Brennan’s discussion of the “early leading standard of obscenity,” which “allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons.” 354 U.S. at 488-89 , 77 S.Ct. at 1311 . When the “standard” quoted in Kois is thus considered in context, it is apparent that the thrust of the statement is that the effect of the material as a whole (rather than of isolated excerpts, as under the early standard) on the average person (rather than on “particularly susceptible individuals”) is controlling. Taken in context, the quoted formulation of the Roth “test” sheds absolutely no light on the question whether redeeming social value or patent offensiveness are relevant in determining whether material is obscene.
. In this regard, I am compelled to point to another error in the opinion of the en lane Court. Noting that in Ginzburg v. United States, 383 U.S. 465 , 86 S.Ct. 942, 944 , 16 L.Ed.2d 31 (1966), the Court stated that materials had always been *591 regarded “as sufficient in themselves for the determination of the question” of obscenity, this Court’s opinion suggests that the Supreme Court has previously held that no extrinsic evidence is required in obscenity cases. This is erroneous, because the context in which the quoted excerpt from Ginzburg occurred was a discussion of the question whether factors such as the manner of advertising the materials were relevant to the determination of obscenity. This question is not before us in the instant case; the issue is how the jury is to evaluate “the materials themselves.”