# Parmelee v. United States

> Court of Appeals for the D.C. Circuit · May 14, 1940 · 113 F.2d 729

URL: https://www.frixlaw.com/law-library/cases/9643798

## Case

- **Full name:** Parmelee v. United States
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** May 14, 1940
- **Citations:** 113 F.2d 729; 72 App. D.C. 203; 1940 U.S. App. LEXIS 4838
- **Precedential status:** Published
- **Opinion:** Dissent by Vinson
- **Judges:** Vinson, Groner, Miller
- **Cited by:** 53 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

VINSON, Associate Justice,
dissenting.
The libel of the instant book required the District Court to decide whether it fell within the purview of § 305 of the Tariff Act of 1930. 1 The court, sitting without a jury as a judge of both law and fact, found that it did. The only question presented by this appeal is whether the court followed correctly the mandate of Congress.
The relevant provisions of § 305 are-as follows:
“All persons are prohibited from importing into the United States from any foreign country * * * any obscene book, * * picture * * *: Provided further, That the Secretary of the Treasury may, in his discretion, admit the 'so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes.
“* * * Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section pro-, hibited, it shall be ordered destroyed and' shall be destroyed. * * *
“In any such proceeding any party in interest upon demand may have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the case of ordinary actions or suits.”
The book in the instant case was not admitted under special dispensation of the Secretary. Hence, if obscene within the meaning of the statute, it clearly is subject 1 ' to destruction.
In reviewing the District Court judgment we must first ascertain what connotation is to be given the term obscene as it appears in the statute prohibiting the importation of obscene books. It seems clear, contrary to implications in the majority opinion, that the purity of the author's motive and incidental claim the book may have to literary, scientific or educational value is not decisive. 2 Under an English statute prohibiting the sale of obscene *739 literature, Cockburn, C. J., stated in Regina v. Hicklin, 3 Q. B. 360, 371 that: “the test of obscenity is this: Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”. In this country we have several so-called federal obscenity statutes. In addition to the Tariff Act provision here invoked, Congress has provided criminal sanctions against importation, transportation by common carrier, or through the mails, of any “obscene, lewd, or lascivious” book. 3 With certain modifications the obscenity test of Regina v. Hicklin has been adopted by the Federal Courts in interpreting all of these statutes. 4 As modified by these decisions the test might be stated as follows: A book is obscene when in the aggregate sense of the community 5 the tendency of the objectionable matter, considered with the book as a whole, 6 is to arouse lustful thought. 7 That such a test of obscenity is required when the term' is associated in a criminal statute with lcwdness and lasciviousness does not, of course, mean that it is sufficiently broad for the term as it appears in the Tariff Act. Indeed, such a definition seems unduly restrictive of the normal meaning of the term and there is some judicial support for a broader, more inclusive definition. 8 Assuming, however, that the stated definition *740 is applicable, can we say that the District Court erred in holding this book obscene within the meaning of the statute?
Preliminarily it may be well to recall some of the fundamental principles respecting the function of an appellate court. First of all, it is settled that in ordinary actions an appeal is limited to matters of law. 9 In § 305 of the Tariff Act it is provided that “In any such proceeding [libel of an allegedly obscene book] any party in interest upon demand may have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the case of ordinary actions or suits”. 10 (Italics supplied) These proceedings partake, therefore, of the nature of ordinary actions at law.- In such actions the verdict of the jury on questions of fact is final and conclusive. 11 Where a jury is waived the finding of the court on factual issues is given the same conclusive weight. 12 There is in respect to every factual quéstion, however, a preliminary legal question — could reasonable men differ on the factual issue in the light of the proof. 13 If so, the question is one for the fact trier. It is settled that whether a book is obscene presents a question of fact, if reasonable men could differ on that question. 14 From this it follows that, where there has been a jury verdict (or a finding by the court where a jury is waived) that a book is obscene, an appellate court cannot disturb that determination unless it is prepared to say that no reasonable man could have found as did the jury (or court).
We come then to the question, can it be said that no reasonable man could find the book in question obscene within the meaning of the statute? In this connection it is important to recall that under the decisions a book is obscene if in the aggregate sense of the community the tendency of the questionable matter, considered with the book as a whole, is to arouse lustful .thought. That is to say — the book must be judged by reference to the “standard of the community”.
“Laws of this character 'aré made for society in the aggregate, and not in particular. So, while there may be individuals *741 and societies of men and women of peculiar notions or idiosyncrasies, whose moral sense would neither be depraved nor offended by the publication now under consideration, yet the exceptional sensibility, or want of sensibility, of such cannot be allowed as a standard by which its obscenity or indecency is to be tested. Rather is the test, what is the judgment of the aggregate sense of the community reached by it? What is its probable, reasonable effect on the sense of decency, purity, and chastity of society, extending to the family, made up of men and women, young boys and girls,' — •* * * Who is to deem, who is to judge, whether a given publication impinges upon the general sense of decency? * * * The answer to this is, that asserted violations of this statute, * * * must be left to the final arbiter under our system of government, — the courts. The jury, the legally constituted triers of the fact under the constitution, is to pass upon the question of fact. Under our institutions of government the panel of 12 are assumed to be the best and truest exponents of the public judgment of the common sense. Their selection and constitution proceed upon the theory that they most nearly .represent the average intelligence, the common experience and sense, of the vicinage; and these qualifications they are presumed to carry with them into the jury-box, and apply this average judgment to the law and the facts. Sitting as the court does in this case, in the stead of the jury, it may not apply to the facts its own method of analysis or process of reasoning as a judge, but should try to reflect in its findings the common experience, observation, and judgment of the jury of average intelligence.” 15
The majority opinion recognizes that the book in question must be judged by the “community standard” but it suggests in ascertaining “* * * the present critical point in the compromise between candor and shame at which the community may have arrived here and now” 16 that “the expert opinions of psychologists and sociologists would seem to be helpful if not necessary”. While such opinions might be helpful, none appear in the record. Furthermore, it must be remembered that social scientists do not alway reflect, or even intend to reflect, the sentiment of the community. Their opinions would seem relevant only if directed to the question of what the present community conscience is, in reference to a book of this character. It would seem clear that a sociologist’s opinion on the standards of foreign communities (set forth at some length in note 16 of the majority opinion) would be almost entirely irrelevant to determination of what the standard of the community is in this country.
The District Court was of the' view that the book with the pictures in question, was obscene within the meaning of the statute, i. e., that it offended the present community standard. From their opinion it seems clear that the majority of this court would agree that just a few years ago a book of this character containing the pictures in question would unquestionably have been regarded as obscene. Undoubtedly, thought changes in respect to what is obscene. The “judgments of Lord Eldon about one hundred years ago, proscribing the works of Byron and Southey” do not damn him as foolish so much as they support the thesis of the majority opinion that the content of the term “obscene” is geared to the clock. The majority have evidently concluded that the country-wide sense of decency has altered in the past few years to the extent that in the present day only a Rip Van Winkle could regard the book in question as obscene. That I cannot believe. Accepting the premise that “time marches on”, I am nevertheless unable to agree that we have here and now “progressed” to the point where a publication of this character is, beyond the possibility of reasonable difference of opinion, acceptable to the community. This publication, it must be repeated, is to be judged in the light of the present day standard, not that of the world of tomorrow. It is significant in this respect to note that when the governing provision was last re-enacted in 1930, Congress inserted for the first time a proviso indicating that it did not regard the “so-called classics or books of recognized and established literary or scientific merit” as ipso facto without the prohibition against the importation of obscene books. 17
I think it important to emphasize that decision of this case calls, not for the individual judge’s personal opinion, but, for a *742 gauging of the present community sentiment. 18 It seems obvious to me that a court should rarely attempt that task as a matter of law. Certainly, it seems difficult to conclude that no reasonable man could say that this book offends the community standard and, with a District Court finding that the book with its pictures is obscene, I am unable to understand how my brethren can stand on that proposition. I not only think reasonable men might differ on that question which in itself requires an affirmance, I approve the result reached by the District Court that the matter in question is within the prohibition of the statute. I must therefore dissent.
46 Stat. 688 , 19 U.S.C.A. § 1305 .
The author’s motive is of no consequence. United States v. One Book Entitled Ulysses, 2 Cir., 72 F.2d 705, 708 ; United States v. Dennett, 2 Cir., 39 F.2d 564 , 76 A.L.R. 1092 . Likewise, it seems clear under the statute that incidental claim to literary, scientific or educational merit will not save a book otherwise, obscene. The statutory prohibition is absolute — forbidding importation of “any” obscene book. Moreover, there is a proviso that “the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classios or books only when imported for noncommercial purposes”. Under elementary canons of statutory- construction, it seems clear that, apart from this exception not here involved, the prohibition of the statute against the importation of “any obscene book” is not subject to relaxation by reason of the latter’s claim to literary, scientific or education *739 al merit. Cf. United States v. Chesman, C.C., E.D.Mo., 19 F. 497 ; United States v. Smith, D.C., E.D.Wis., 45 F. 476 . This does not mean, of course, that the character of a publication does not enter into a determination of whether it is obscene. It is believed that United States v. Ulysses, supra, recognizes the general rule, merely emphasizing this last proposition. But cf. United States v. Levine, 2 Cir., 83 F.2d 156, 158 . It may be observed that permitting importation of this particular book can do little to advance the cause of science and education — it appears from the record that a,domestic edition of the same book is being freely sold.
35 Stat. 1138 , amended 41 Stat. 1060 , 18 U.S.C.A. § 396 (importing and transporting obscene books); 36 Stat. 1339 , 18 U.S.C.A. § 334 (mailing obscene matter).
See Note 76 A.L.R. 1099 .
It is believed that the cases establish that the “standard of the community” has been substituted for the “standard of the weak and susceptible”, at least where there is no evidence of sales to the latter. See United States v. Harmon, D.C.Kan., 45 F. 414, 417 ; United States v. Kennerley, D.C.N.Y., 209 F. 119, 121 ; United States v. Dennett, 2 Cir., 39 F.2d 564 , 76 A.L.R. 1092 ; United States v. One Book Called “Ulysses”, D.C., 5 F.Supp. 182, 184 ; Id., 2 Cir., 72 F.2d 705 ; United States v. Levine, 2 Cir., 83 F.2d 156, 158 .
Clark v. United States, 8 Cir., 211 F. 916 . See also cases cited supra note 5.
“The word ‘obscene’ ordinarily means something that is offensive to chastity, something that is foul or filthy, and for that reason is offensive to pure-minded persons. That is the meaning of the word in the concrete. But when used, as in the statute under which this indictment is framed, to describe the character of a book, pamphlet, or paper, it means a book, pamphlet, or paper containing immodest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall whose minds are open to such immoral influences”. United States v. Clarke, D.C., E.D.Mo., 38 F. 732, 733 . It seems settled that the term obscene as used in the statutes proscribing obscene books refers to lust rather than to immodesty or indelicacy. See cases cited in Note 76 A.L.R. 1099 . See also Anonymous, 1 Fed.Cas. 1024, No. 470; United States v. Three Cases of Toys, 28 Fed.Cas. 112, No. 16,499. It is stated in some of the cases that the term is to be given the same meaning it had in common law actions for obscene libel. Swearingen v. United States, 161 U.S. 446, 451 , 16 S.Ct. 562 , 40 L.Ed. 765 ; Knowles v. United States, 8 Cir., 170 F. 409, 412 ; United States v. Males, D.C., 51 F. 41, 42 .
United States v. One Obscene Book Entitled “Married Love”, D.C., S.D.N.Y., 48 F.2d 821, 823 , Woolsey, J.:
“In Murray’s Oxford English Dictionary the word ‘obscene’ is defined as follows :
“ ‘Obscene — 1. Offensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome. Now somewhat arch.
“ ‘ 2. Offensive to modesty or decency; expressing or suggesting unchaste or lustful ideas; impure, indecent, lewd.’
* * *
“The book ‘Married Love’ does not, in my opinion, fall within these definitions of the words ‘obscene’ * * * in any respect.”
For other definitions of the term obscene see note 3 of the majority opinion. See also United States v. Harmon, D.C., 45 F. 414, 417 ; Holcombe v. State, *740 5 Ga.App. 47, 50 , 62 S.E. 647 (in the federal mails statute the term “obscene” is. deprived of its usual broad meaning by reason of its association with the other terms “lewd or lascivious”). It is significant to note that the statute prohibiting use of the mails for obscene books, as originally enacted, read as does the present provision in the Tariff Act, “no obscene book”. Act of July 8, 1872, 17 Stat. 302 . Later the mails statute was amended to read “no obscene, lewd or lascivious” book. Act of March 3, 1873, 17 Stat. 599 . See United States v. Loftis, D.C.Or., 12 F. 671, 672 . It sfeems clear that the provision of the Tariff Act against the importation of “any obscene book” might be given a broader application than the mails statute.
Rev.Stat. § 1011, 28 U.S.C.A. § 879 , as amended by 45 Stat. 54 , 28 U.S.C.A. §§ 861a, 861b. Bengoechea Macias v. De La Torre & Ramirez, 1 Cir., 84 F.2d 894, 895 ; Salt Bayou Drainage Dist. v. Futrall, 8 Cir., 72 F.2d 940, 942 ; Security Nat. Bank v. Old Nat. Bank, 8 Cir., 241 F. 1, 6 ; United States ex rel. Smith v. Stewart, 55 App.D.C. 134, 135 , 2 F.2d 936 ; Barbour v. Moore, 10 App.D.C. 30, 50 .
46 Stat. 688 , 19 U.S.C.A. § 1305 .
Columbia Aid Ass’n v. Sprague, 50 App.D.C. 307 , 271 F. 381 ; O’Dea v. Clark, 46 App.D.C. 274 .
In ordinary actions this court has stated that, where trial by jury has been waived, the finding of the District Court on questions of fact cannot be reviewed. Neely Electric Construction & Supply Co. v. Browning, 25 App.D.C. 84, 87 ; Shelley v. Wescott, 23 App.D.C. 135, 140 . It is axiomatic that the findings of the court where a jury is waived are given the weight attached to a verdict. See 28 U.S.C.A. § 773 . Whether there is substantial evidence to support the finding presents, of course, a legal question. Even in equity practice the rule is settled in this jurisdiction that the findings of the trial court on matters of fact cannot be disturbed unless clearly wrong. Russell v. Wallace, 58 App.D.C. 357 , 30 F.2d 981 (reasonable time a question of fact); Hazen v. Hawley, 66 App.D.C. 266, 271 , 88 F.2d 217 .
Gunning v. Cooley, 281 U.S. 90, 94 , 50 S.Ct. 231 , 74 L.Ed. 720 ; Chicago G. W. Ry. Co. v. Price, 8 Cir., 97 F. 423, 427 .
United States v. One Obscene Book Entitled “Married Love”, D.C., S.D.N.Y., 48 F.2d 821, 824 ; United States v. Dennett, 2 Cir., 39 F.2d 564 , 76 A.L.R. 1092 ; United States v. Levine, 2 Cir., 83 F.2d 156 ; United States v. Smith, D.C., E.D.Wis., 45 F. 476, 477 ; Knowles v. United States, 8 Cir., 170 F. 409, 410 ; United States v. Kennerley, D.C., S.D.N.Y., 209 F. 119, 120 . Cf. Dreiser v. John Lane Co., 183 App.Div. 773 , 171 N.Y.S. 605 .
United States v. Harmon, D.C., 45 F. 414, 417 .
United States v. Kennerley, D.C., 209 F. 119, 121 .
See note 2 supra.
See note 5 supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9643798. Public record. Not legal advice.