Appendix — Central Magazine Sales, Ltd. v. United States

Supreme Court brief1967

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4 7 la

i APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE FOURTH -omourt

‘No. 10, 600.

Usem Sravas OF Axara, Appsiee,

versus

Claimant (Cunrnat, Macazorz Satas, Lav.) of 392 copies of °

a magazine entitled ‘‘Exclusive,’’ 3600 copies..of a _

magazine entitled ‘‘Review International,’’ Vol.:6, and x

1090 copies of a magazine entitled “International °

Nudist Sun,’’ Vol. 16, Appellant. ss:

"Appeal Prée the Unifed States District Court for ‘this Disteict

of Maryland, at Baltimore. Roszel C, Thomsen. District Judge.

. (Argued June 20, 1966. - Decided February 16, 1967)

Before Haynsworth, Chief Judge,’ and Sobeloff and ie

Boreman, Circuit Judges. . ) ws

Herald Price Fahringer (Robert Eugene Smith o on brief)

for Appellant, and Fred Kelly Grant, Assistant United |

States Attorney, (Thomas J. Kenney, United States Attor- —

ney, and Arthur G. Murphy, First Assistant United States

Attorney, on brief) for Appellee. - : eA

-Harnsworrs, Chief J Tadge: ole

The question for decision is the ssroietaty of the seizure

and destruction, under a judicial decree, of magazines con-

taining collections of picturesof undressed men and women.

‘The claimant, which sought to import the magasines, into

. this country, has appealed, contesting the constitutionality

of the governing statute, kA Bese Ue, ee 2a

_ of obscenity. We affirm, .

On February 8 1968, 9600 copise of Revue International

- » Vol. 6; were landed in Baltimore from D ‘the

same day 1000 copies of International Nudist Sum, Vol: 16,

eer er cceaategeatdetct pitas isigre ita

se cl

ary 8, 1966, 392 copies of Exclusive were landed in Balti- _ .

_ more, again, from Denmark. All were consigned to custom- |

house brokers on behalf of Central Magazine Sales, Ltd.,

On February 14, 1966, eleven days after the arrival of

_ ° Revwe International and International Nudist Sun and six :

, days after the arrival of Exchisive, all three magazines

__ ‘were referred by Customs to the United States Attorney for

the‘ District of Maryland. Libels were filed on February

_ 37,1966. "The cases were tried on March 9th and 10th, and

_ finally decided on April 4, 1966. While the District Court’s

opinion was in preparation, the Supreme Court decided

_ Mishkin, Gineburg? and Memoirs? which resulted in a

equest for permission to prepare and submit supplemental

~ ¢, Largely for the reasons stated by the District Court in

___ ite very comprehensive opinion in this case," we have today

held § 1305 to be constitutional as applied in thie context.'

; The entire interval between entry of the magazines and the

final decree of the District Court was sixty days, here, but

_ portant and novel questions of constitutional law. Earlier

Bar. the ressona tated by the District Court as supple-

Inented by.us in.Potomac News, we hold § 1305 constitu-

| ) and se applied in this o

5 , ae Sa 2 .% 7 . ‘ .

¢ DBAS 2 3 5 be tae ra ix - , AT fy ‘

v. New York, 383 U.S. 502.

} NERS a PO he EN

BASEN Sa ota TG ee

nebone:¥, United Btater, 968 US. 468,"

BOREAL: WF BERTON: CBN KT Tle ses

Ria ere tae ES lege RAEN: DRUG

eat ee Ta eee : .

“7S 4

AUC ERS

e..

\ Ba .

Revue International. and International Nudist Syn: are

_ collections of photographs of undressed niales.. These two

magazines are comparable in all respect to Hellenic Sum

Number Two, which we hold today in the Potomde News.

case to be obscene. Here, the late Dr. Manfred §,:Gntt-

- Macher testified for the Government, ashe did in the later

trial of. the Potomac News cease. The claimant in this case

also offered fig eeemeay of a psychiatrist, Dr, Jonas R.

Rappaport. Though the psychiatrists differed é méwhat

in their estimates of the proportion of the 37% of all adult

' males, who are estimated to have had at least one homo-

sexual contact after adolescence, for whom these magazines

would have a prurient appeal, they were in general agree-

ment that the magazines would have such an appeal for -

practicing male homosexuals. ‘The Court also found, and

the finding is supported by. the.record, that the magavines

_ would have a prurient appeal to many adolescent males and

to some females, though the proportion of women who

would be strongly stimulated by such erotica is small, while

- adolescent females would find the material shocking and

frightening. : shared Bio's

The Court’s finding that: these magazines wonld have a

prurient appeal to male homosexuals and were designed

primarily for the exploitation of that interest ie abundan tly

supported by the redord. * 6) is)! cate oy ny

. For the reasons stated by the District Court as supple-

mented by our. opinion in Potomac News, wé uphold the

finding that the two male nudist magazines are obscene: .

- We agree, also, that Exclusive is tee

Bacluswe is a collection of photographs of young women.

In moet of them, long-stoskings and garter belts are em-

ployed to frame the public area and to focus attentioniuponh ~

it. A suggestion of masochiem is sought by the:veed-in

many of the pictures of chains binding the: model’s wrists

' .~ the camera, have their knees and legs widespread in order |

to: reveal the: genital area in its ‘entirety. In one of the

oaly ‘in a framing black garter belt and black stockings is

chained ‘to a‘ chair upon which she is seated, facing” the

eespie Anears oné knee elevated amd both spread wide.

“We agree with the District Court that thase apparently

uliretouctied pictures of young women, posed as they are,

are ogee offensive oe that the — Exclusive is

obscene. :

Affirmed.

Judgment

| UNTTD STATES COURT OF APPRALS FOR THE FOURTH omourr,

| No. 10,600

' Uxmm Srares OF saul Appellee,

| die Veit adil an teh ed. poe

oe were States District Court for tho

Sirs AS Cty ¥

yf ~ituiesadams. timmoiee:ha:te: bean’ ot: the. record from: the

ree ce er ee net of Maryland,

/ si Votbamenl: Sila coin chive ordiced ond |

"nudged tia Goat tat he dg! of he aD .

x eee hm month be. and fhe, same

is henebo, elie

. ) al € is

Posh Fourth Cirowit

i ee Civil No. 17066.

ied ARR,”

FOR THEN DINTIOT OF COLTER

| Uxrrep Seurms oF AncaniA a

. sr

392 opie of a Magazine Entitled “Bowwatrn”

Civil No. 17065 .

_ Usrrap Stamis or Aacrizoi :

iy a ee as ane ; YG

3600 Copies of a pe Entitled agate

: Inrmawarionat,”, Nol. § 3 |

= sree Starms or Anema

- 1000 Copies ‘of a: Mages Entitled .‘ Ohermns anton Ai

3 Nopisr Sow”, Vol. 16

a | ;

Tn these consolidated. probdings under section 305 of

the Tariff Act of, 1930, 19 U.8.C.A. 1305," the government

seeks the forfeiture, confisestion and destruction of 392

copies of a magazine entitled Exclusive, 3600 copies of a

aubitled” Review International No. 6, and 1000

copies of a magasihe entitled International Nudist Sun No.

16, imported from ‘Denmark, ‘on the, ground that they are

‘obecene ‘material, the importation of which is prohibited

by section 1306, eiainnehoemtendh tei Op material jo not

i”

eh thn antennae

‘* All persons are prohibited from a into the United ©

‘States from. any NEA i * any obscene book,

pamphlet, paper, writing, ent, circular, print, pie

e¢¢ No euch. whether imported separately or con-

tained in packages with other goods entitled to entry, shall be

admitted oes

mar rh Sea we

we : eh Mite ttt a ‘ 3, |

5S ; £F on. 4 RSET YS og be a sth

\r t

: . or cee

tie

° re. ae

consiati ively. of. 3¢

. Review International No, and 1000 copi

Nudist Sue No. 16, imported from Denmark and:

to custom house brokers on behalf of claima;

“g)- From the time of the

lications there ‘has Ro

tiona or. ad “to @ their |

St Me Mer ee

fas siti: Selon} DAd:; were: brought from the ship +6 the

Aipbilicbe?etes ts Batisiore after tho bile of acing bad

been delivered to toms officials by the brokers for clear-

atice through omnis. Entry numbers were assigned on

the ‘same day. On February 8, 392 copies of Exalusive

larly imported and eritered. * The shipments were

axaminéd’ promptly by ti® line examiner to determine

whether any’ duty was payable, and whether any of the

thnterial was inadmissible for a variety of statutory rea-

sons, ‘inclading obscenity and violation of copyright.‘

The line examiner-thought that the magazines were prob-

race. ayn egneahece lterviae’

with os procedures. The appraiser likewise

felt felt dhat the. material.should be considered fer possible

' forfeiture and referred the matter to the Obscene Literature

- Corhmittes, e:group.of Customs officials in Baltimore, again

in accordance with established procedures.

‘Thorsafter, if the Committee aleo believed the material

ne, ‘it_would ordinarily have been seized or

nding further administrative proceedings under

4 ‘before it was referred to the United

orney fm. five. tnatipation, at forfeiture proceed- -

spate

apparen 3 bleak men See Sat poss Raa “f

oe yoy: han i

asec po Soetaltay duly ecoeied, Gt akthe eats ae

_ Reape tnt needed for ofl an the en ad My

<eee SS 8haT ATs Pe Tee ”

(a) If the important Wy ahedms a Shouts a

feiture of the articles’ other than those mentioned in'Phragraph 7

(2) of this section and’ fails to subuiit;-withia'9'daye after -

: Sang ei al bhai ete Be

iY .

only — te consignee. ae Sah Tie ts Ayaepacthaey

. } etre Sede wee ear. Sif Sets AKON cor Ww aS et

ood FRNA aaeis hari}: adele; sesbtntind “Wopeitashteni

+ Partioal i to of Rorain: XD. :

‘

ins

auc ce Wiity 9; Aa wen': send by |

"representatives of the Departmerit of Justice,’ the Bureau

sy _* * of Customs and the Post: Office. sprees discuss

__ povsibio changes in the procedure for handling material

beti¢ved to be obscene. | At At that miceting it was decided to

a ‘a new- procedure, intended to expedite the proceed-

bg tage dad to oleate ths question whether 19-0.F-B. 12.40 ©

seconde with.19 U:8.C1A. 1305° See also"19 U.8.C.A. 1603

_ and 1604. ' It. ‘was aleo decided to institute forfeiture

ying ° Te onamaens fa

} fora "snatnding an Amitent United! States Atiomey from Maryland.

— a ‘ . “®See fn. 7.to: United States v. One Book ‘Entitled “The Adven-

| «9 tures of Father Silas”, ot hy 8D. N.Y, 249 F. owe oi, at 914

7 : es jes ee |

ie UC: 1609: ees /

collector’s reports

atm

ee.

proceedings against Kael ive, to seek a prompt disposition

of that case, and to adopt new regulations shortly there-

"after. ‘The following day it was decided. that forfeiture .

| - proceedings should also be instituted against International

io Nudist Sum No. 16 and Review International No. 6. A copy

of each of the.magavines was, therefore, Teferred to: the. °

United States Attorney in accordance with 19 USC.

.’ On Friday, February 11, ‘a libel ‘was filed against’ the

- shipment of Exclusive, and the attachment’ and monition’

were posted by the United States Marshal on ‘Tuesday,

___-February 15.’ Also on Febraary 16, libels ¥ re filed against

the shipments of the other two niagazines. ‘The attachments

and monitions ds to them were posted on February 16.

The magazines had been. formally seized by: Customs, see

' note, 5 above, on February 11 at about the time the first.

libel was filed. Court orders directing that the Marshal, in

addition to his monition in rem; publish motice of the’

seizures-and of the forfeiture proceedings were signed on

February 16 in the case of Faclusive and on February 17

-.in the case of ‘the other two Magazines, |

Meanwhile, Customs had given notice’ of the libels to

claimant, and claimant filed answers to all three libels on

‘February 28. A meeting with the Court held on March

4, a trial date was set, and the trial be non March 9.

Pestimony and other evidence were offered by both sides, . '

and the casé has been fully briefed and. Me

__ Discussion of Procedure. ‘Section 1305 of\ Title 19,

US.C.A., is set out in note 1, above. The predecessors of —

Unless, upon inquiry and examination, ‘such. United ‘States

attorney decides that such Proceedings “not probably be:

cstainnd oF tht teen ot paste to nt equire that -

| report the facts to the Searetaty of the Treasury. for dice

_, tion in the premises’? 8

12a

dinii:insasieled ynve pesnite ‘the Oodé foe & long time One .

which was substantially the same as the present section

“was held: conétitutional in United States v. One Obscene

- Book’ Entitled ‘‘Married Love’’, 8.D. N.Y,, 48 F. 2d 821

(1981): The ‘present section was held unconstitutional, in _

United Statas:v. 18 Packages of Magaeines, N.D. Cal., 238

P. Supp. 846 (1964), but that decision: was rendered before

Freedman v. Maryland, 380 U.S. 51 (1965), wherein the

_ Sapreme ‘Court stated that ‘‘a noncriminal process. which

3 requires’ the prior submission of a film.to a censor ‘avoids

: mal infirmity only if it takes place under pro-

a eT Cs Wat” ci ta the Oo of a

: 7 380 U.S. at 58. The Court then.

ccabaried the necessary safeguards, as follows: (1) The

aida df petra ast on the-ooncor (2) no valid final

restraint may be imposed except by judicial determination,”

and atty restraint ‘prior ‘to such determination must be

desigiiéd to ‘preserve the ‘status quo; and (3) a prompt

_ judicial determination must be assured. 380 U.S. at 58-59.

Inthe year sinve Freedman, ‘judges in the Southern District

of Néw ‘York ‘have’ thrice refused to hold section 1305

eo, but have reqnired that it be

3 3 tests. set out in Freedman.

- See Twited Staten v. One’ Positive Film, (McLean,

- J,),248 F, Sapp. 373 (1965), and (Graven, J.) 247 F. Supp.

., 450 41965), United States v. One Book entitled “The

| Adgentures of Father Silas”, (Frankel, J.) 249 F. Supp.

911 (1966), .. This Court agrees with the decision in each

crear se

ee Fe @. e-s

“i of aligaie 20, 24d 210 § 28,5 Stat. 666; Act of March —

, 185 ‘Stat.-168 of ; ‘8; 1883, c. 121, §§ 2491-

ae eee

134

cussion’ of the: legislative history: in Section Hof. Judge

Frankel’s opinion, © © is 601) W\atatamse offen, af

' Judicial proceedings are begun. Since if appears that.those -

procedures result in unreasonable delays in many cases,

the governmental agencies involved have wisely attempted

‘

The proposed new procedure, which was followed in these

ae fo oe

og tease] eda S betequed stn sider edaay -

“A line examiner muat keep in mind.over fifty: possible ques-

tions in connection. with each shipment for which ¢learance is -

See generally " naeheg ehape..3.qnd.4; aid 19 OF BR,

Ce | poe:

sa anh ticieennniine release of the material. with

reasonable promptness after entry if either the line exam-

iner or the appraiser passes 1 it. Even if the material is re-

ferred to the Obscene Literature Committee, its decision

'. is usually rendered within two days. If the Committee de-

- cides to go ) forwar matter must be faken up at’ once

with the United States Attorney, who is required by statute

ingt re into the facte ‘and forthwith to in-

stitute - ceedings | in the district court unléss he decides

that the procee ly could not be sustained or

that the ends "at fustion do not require that they should be

instituted and prosecuted. 19 U.S.C.A. 1604. ' See ‘note 10,

Meanwhile, the material will have been seized and

held by Custon to await the judgment of the district court,

19. U8.C.A. 1306, and the importer or his broker. will have

deen notified of ‘the seimare: and libel. ‘The seizure by

Customs isin the nature of a ‘detention of questionable

. material pending: a judicial adjudication. - Such restraint

; by détention is designed simply to preserve the status quo,

Le. to prevent entrance tranee‘of the -suspect material until the

a —_ Bees: has’ er gps ‘Megotistions | with sero or the

Tinea nb Wink ia nai“ examines’ -

the material the same day it is delivered to the Appraisers’ Stores;

é but that since the liné-examiner in Baltimore who examines books

and magazines also has other items in his line, there aes cer-

tain oosasions be delay ‘of one or two days.

1H United States v. One Corton Positive Motion Picture Film,

948 F.Supp, 10-7 Fudge. MeLesn said: |

ae ees b agg Bo’ oars, tekie bifdal etarmninstion by’ the cus

+ itoime offline is meceeeary a to ‘which works are to be held for

neha Sadicial: détetmination, “But this is inevitable. ‘The

“Wibas ehandlw« prest ma, ‘Bat it is the court

_ prepared, and counsel for claimant requested -an oppor-

tunity to file a supplemental brief. In ‘appropriate cases

the material may be released pendente lite in avcordance

with the provisions of 19 O.F.R, 23.22, See also cases in.

19 U.B.C.A. 1605, .n. 2 and n. 3. oid as Sipiaape

- Conclusion re. Procedure. This Court concludes that

— section 1305 of Title 19, U.8.C.A., is not unconstitutional on ,

its face and has not been applied unconstitutionally in these-—_

inagasine”’ ‘Exclusive is

$4 pictures: of mude or

aaah poke the: breasts: and

hi ‘some of the pictures

| =: sod” a alae ay in ay ee

ny Se Riek Bladoentra of Oopeniagen."*

Tntes na ‘Nudist Sus No. 16 and ‘Raviow Interna-

aonal 7 6 each contain 20 posed pictures ‘of well-developed

nude men, with the focus in most, instances on ‘the penis,

"Although posed in ontdoor

settings, in few of the pictures are the models engaging in

any normal outdoor activities. The articles in both mag-

.azines.are. innocuous, dreary and puorile, shd bear little |

The aa: eye ee

308 addb-mahoehiatio opéal of any‘ of the pictures in

Ret sh aceon ‘be thay ior on any of ‘the quee-

in this case. ‘In other cases such sppeal may be of importaiice

the authorities cited in the various. dpinions in Mishkin, 383

See

me mee 888 1.8. 463> -United States v.

son ewer Gap: 049, 952-055 (1951), i iustrates the

such material.

™ tre pots sic | a

The er " i: ee | aeiat fiom.

' 17a

relation to the illustrations.” No reference is’ made to

__ the illustrations in any of the articles. > 5 peeled

caiscussion. On the issue’ of obscenity fhe ‘controling

. case is Roth v. United States, H4 U.S. 476 (1957), as

elaborated and in one respect “‘adjusted” by Mishkin v.

New York, 383 U.S. 502 (1966) ; 4 Book Named *' John

Cleland’s Memoirs of A Woman of Pleasure’? et. ali ve

Attorney General of Massachusetts (the Fanny Hill case),

383 U.S. 413 (1966); Gineburg vy. United States, 383 US.

463 (1966); Manual Enterprises, Inc. v. Day, 370 U.S, 478

(1962) ; and Jacobellis v.. Ohio, 378 U.S, 184 (1964).

In the Fanny Hill case Mr. Justice Brennan said:

“We defined obscenity in Roth in the following

terms: ‘Whether to the average person, applying con-

temporary community standerds, the dominant theme

- Of the material taken as a whole appeals to prurient

interest.’ 364-U6., at 489. Under this definition, as

elaborated in subsequent cases, three elements must.

coalesce: it must be established that (a) the dominant —

‘theme of the material taken ag a whole appeals to a

‘ _° prurient interest in sex; (b) the material is patently

Physical Health; Learn to Relax and Stay Young; Masculine

:. Hygiene; If You Must Wear Clothes; and Shivers and |

‘‘Nadist -Para dise*? i; : 7 ~ cer as

"News of nudists: (sic); Odds and ends; J

(sic) nudism; and Spoil yourself. -

one-half of the pages of the two

“

18a

(a) Many books, magazinés silk ate

Prin Ap general public, but some are de-

cain Sell dulahakroues, wecks on vhales, tenialee, chibiven,

Soran aa edlojescent females; up asain and

said:

“Where the. material i is designed ‘i and sidney

. disseminated to a “clearly defined deviant ‘sexual group,

rather than the public at large, the ‘prurient-appeal

‘Yequirement of the Roth test is satisfied if the domi-

nant theme of the material taken as a'whole appeals:to ~

the prurient’ interest in sex -of the members of that _

up. The reference to. the ‘average’ or ‘normal’

_ pergon in Roth, 354 U.S., at 489-490, does not foreclose

as mimeie - Ta regard to the prurient-appeal re-

eye

FBe0 Manual Enterprise, Inc. Vv. Dewy, 370 US. 478, 482

(opinion of Harland, J.).; Lockhart and McClure, Censorship

of Obscenity : The Developing Constitutional Standards, 45,

Minn. L. Rev. 5, 72-73 (1960). |

““Tt.is trae that some seme off the material in Alberta ¥. Calsfor-

wie, oties. eee one velving the oben ofthe mat

volved here. vo e obscenity of the mate-

| pial was before us in ane 804 US, at 481, n- 8. The

free nice nnt wn nee was whether the publication

and sale of obscenity Scouts ait: seehl. de. etieninelly

ce oon oe eel Our dis-

cussion of definition was not to develop all the

nuances of 8 definition required by be constitutional

oe gn

5. ~

~ 7

vy 4

G Ds :

- J , ye vd

ra ‘.

x a.

a. 3

"ie > =

* s ne

. : 3

er Mr. Jastice Brennan, epnking for the Dears, 7

19a

quirement, the concept .of the ‘average’ or “normal?

person was employed in Roth- to: serve the essentially .

_ prurient-appeal requirement to social realities by per-

mitting the appeal of this type of material to be as-

~ sessed in terms of the. sexual interests of its intended

* and probable recipient group; and since our holding

_ Tequires that the recipient group be defined with more

specificity. than in terms of sexually immature per- —

sons,** it also avoids the inadequacy of the most-

susceptiblé-person facet of the Hicklin test.’’ 383 U.S.

at 508-509. PR IN ey gs Had *

**“‘See generally, 1 American Handbook’ of Psychiatry

(Arieti ed. 1959) 59, , for a deseription of the pertinent

types of deviant sexual groups.’’ .

court agrees that expert testimony. is ‘desirable, if not

‘Necessary, to show what reaction deviates would have to

almost any type of stimulus. Whether expert testimony.

_ is necessary to prove the probable reaction of ‘the average

' man to various stimuli depends upon the nature of the

material. Some may be" so esoteric as to require expert —

testimony; other ‘stimuli, like the pictures of the women’ "

__.’ in the “magazine’? Faclusive, are 80 elemental that the

' ordinary judge or juror should be ‘able to recognize the |

nature of their appeal to the average man.

Jn the ingtant oase both the government and the claimant

offered expert' testimony with respect to the probable

- effect of the magasines on various groups in the community.

Dr. Manfred §. Guttmacher, Chief. Medical Officer of the

Supreme Bench of Baltimore City and Consultant to the

American Law Institute in the preparation of the Model

* Penal Code, testified for the .government.. Dr. Jonas R.

Rappaport,’ Medical Officer of the Circuit Court for. Balti-

‘more County ‘and a member of the Governor’s Commis-

sion to Study and: Review the Criminal Laws, testified —

for claimant. Dr. Guttmacher’s testimony was confined to

the two magazines depicting male nudes.

The Court finds from all the. evidence, including the

testimony of the psychiatrists, that International. Nudist

- Sum.No. 16 and Pe International No. 6 were in‘ fact

primarily designed for homosexual males and, to a lesser

extent, adolescent males ; that the pictures have very strong

prurient appeal to almost all exclusively homosexual or

- bisexual males and some prurient appeal to a large per-

centage of latent homosexuals and some adolescent males ;

that to many female adolescents they would he shocking +

and rather frightening™ but to a few might have such *

prurient appeal as to cause masturbation.”

: Ta Titel lak the gletares to Raclonion welll

appeal to the prurient interest of the average male, and

_ particularly to the prurient interest of the adolescent

male. That was the dominant theme of the material.

“(b) Patent Offensiveness. This brings us to the question .

: wiiother the wiaterial so affronts contemporary comm

"® Which. si toed. bn, pore prurient appeal, bat .

aM do nt tend af whether ‘ie material goes: aot

MMP Eh erst al cnn «pos om we ae

‘

™. F. Supp. at 464. See also Jacobelli » 378 US. at 195;

- Ginzburg v. United States, supra. ie ai

_-.The Court. must first decide whether any evidence,

Mtg}

standards relating to the description or representation of

sexual matters as to be patently offensive...

The standards to be applied in customs ° cases ies: should :

be national standards. United States v. One Carton, 347

- SWManual- Enterprises, 370 US. at 488; United States v.

Gineburg, 3 Cir., 338 F.2d 12, 14 (1964), affirined sub , mi

wn ma

and

if so what evidence, may be admitted to prove contempo-

- Tary community standards. This problem has been dis-

cussed in a number of recent cases, which have reached

. different conclusions.”

In Smith v. California; 361 U.S. 147 (1959), concurring

opinions referred to defendant’s rights. ““to enlighten ‘the

* The: test with respect to thie element was worded as follows -.

rial is patently offensive: because it affronts contemporary cém-

munity staridards relating to the description or representation of

sexual matters-*.* *’’ 383 U.S. at 418. In Monual Enterprises,

Justice Harlan cited the test in the A.IAI, Model, Penal Code, “if |

it goes substantially beyond customary limits or candor in descrip-.

tion or representation of such matters’’. 370 U.S. at 486. Justice

Harlan also stated : "Ti is only én the unusual instance where, as.

here, the ‘prurient interest’ appeal of the matérial is found limited

to a particular class ‘of persons that ign ‘arises for a truly

independent inquiry into the question wheth ' or not the material

is patently. offensive,’ 370 U.S. at 486.

(1961) ; United States ¥. Hochman, ED. Wise, THF: ges aoe

United States v. West Coust News Compeqy, Inc, WD. Mich.

228 F. Supp. 171 (1964) ; Manfred v. State of Merylond, 298.

$12, 178 A. 24 178 (1961) ; Yudbin v. State of Maryland, 229

223, 182 A. 2d 798 (1962) ; People v. Finklestein, 12 N.Y. 24:

183 N-E. 2d 661 (1962) ; In re. Harris, 56 Cal. 2d 879, 966 P. ad

305. (1961)...

Dex a 98 irrelevant evidence ‘that goes to ar

Th aie pal safegu: atds of dae process,” 861 U.S. at 164-65.

be AL. giscepe ae Code, .. section 251.4, ‘Obscenity,

p20, proposes: that: . Expert. testimony and testimony.

of the’ atthor, ‘ereate?; publisher or- other person from —

3 hues barsontensntetigiaatee. velating to factors, entering

“into the det niof tlie issue of obscenity, shall be

admissible; ty the instant, case no expert testimony with

respect to commiunity ‘standards was offered’ by -either

_ at By ROT, Was. | 1e e any testimony from the author, creator,

| ry. sen, Pa, from which the material:

Raines sory nape shortly after February 7, °

1908, ee eats aeons SF 5 ern! oe

and the items “offered have ‘\bedi:so. 60m dered bere:

Whether. such natrl woad ora a asm ;

evidence in a jury trial or, in.w. tri |: before thee

out a-jury need not. be: decided. various:,

‘more offensive por he aterial in.

eases is inoonelusives and. ited |

4. | +a(2) Tt is not: hecessary: to deci owhether:

‘f° which.was passed by customs ‘author

BN shortly before or after the: rial wa

caaeieeeremna The Supreme “Co 4

insisted that the standard ‘be dete minod in «judi akin

ceeding by the court ‘or. the jury; expert ior

"other evidence-as may be appropriate inthe: |

case. The probleni mentee = waa ren

(nls Coded fel sn age ed |

\piivate detective, pnd th

“ei ‘orn Ceetasids in'the Gity

‘aras bel minder or: other

zines: It is noteworthy: that: on ‘the: very.

erent tcpropicee of ong of the stores .

a:magazine was convicted |

prisoa jn: B "Criminal Court: of Balti-

‘selling obscene photographs | of: made ‘inales.*

g outlets where 'the detective purchased maga-

“

~ 2

* omitted). tase

The other Je Jatin eee

+ enss this aspect pe en

tet te GRE bee. A

‘to prevent. encroach-

-intoresta’.: (footnote

20,08. at:

the

F S acied, ein yenarelty-£s the palo, ors

Specatankeadihr dlegaies-atniohb-waia and twonti:: It is

‘also ‘clear -that- nude men or women or both may be shown

Bom oa ae aoe repeater

offensive: nicotene ance baie

* “ .

- Komal oe: canta crn petite of wate ew i

t priest " — in any normal

wert, head Er ais to highlight the “gertitalia,

+ tial On the other hand, the

: offensive. At cpio =e, G .

_ Scenity test is that the material

m= * we we MRED ies ‘ .

" . . * -*

ee ay YO ‘Tk 3 ’ nde

preme ‘

2 ¢ Pores

third.

ae ON eae

ae. 26) t a ’ ,

Riabe Ese aoa

$ Rae _ L At ~¢? af { » as ee

bal Suabaitine Ee cake

i eite OR ie

, ” at 2. ) ct 3

‘Revieie. International! N86 are obscene within the purview |

bape at & othe sane Act; 19 USCA. arnt

: BS F 5

_ (Signed) Bonu, C. Tsonsm

ert. (s) Rowum,-0. ‘Toscan , = >

United States District Court _

. ‘

i e ud

: .

: J

> : :

: .

+ :

& o.

F Reet

> 3 ;

a : NESS

SS PL as

‘ Sey <e

aay.

t ;

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.