# Appendix — Central Magazine Sales, Ltd. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0994%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1967 - **Citation:** 389 U.S. 50 ## Text 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 2a 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 od 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 © tein: Bo 1a aA Cumexer F. Harsswourn, Je., . . ) 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 S " z3 th we : eh Mite ttt a ‘ 3, | 5S ; £F on. 4 RSET YS og be a sth \r t : . or cee A § Te 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 -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 ee 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. ca 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 ay ‘ ‘ ™. 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 e - 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 -. Justice Brennan in the Fanny Hill case: “‘that * © * the mate 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: AS 4 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 e ' * 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 3 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 XH @ : offensive. At cpio =e, G . _ Scenity test is that the material m= * we we MRED ies ‘ . " . . * -* © tithe iments Canad ot aa ela a 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 ee ‘Revieie. International! N86 are obscene within the purview | bape at & othe sane Act; 19 USCA. arnt : BS F 5 _ (Signed) Bonu, C. Tsonsm Chet Judge, U. 8: District Court © ert. (s) Rowum,-0. ‘Toscan , = > United States District Court _ = * t 3 , : : : . 5 + : & o. F Reet > 3 ; a : NESS SS PL as ‘ Sey