MOORE, Circuit Judge:
The film "Language of Love" in its present form arrived in New York on November 20, 1969 and was seized by the Commissioner of Customs on December 4, 1969. Thereafter a complaint was filed in the United States District Court for the Southern District of New York
After trial before Judge Pollack and a jury, the district court found the film obscene and ordered confiscation and forfeiture. On appeal, claimants continue the arguments made below in addition to certain contentions with regard to the evidence and allegations of error in the trial court.
"Language of Love," a Swedish-made film, is a movie version of the "marriage manual" — that ubiquitous panacea (in the view of some) for all that ails modern man-woman relations. Assuming the Masters and Johnson
"Language of Love" stars four of what are apparently leading Scandinavian sexual technocrats, with brilliant cameo roles for the functioning flesh of various unnamed actors. Four doctors, including the Secretary General of the Swedish Royal Commission for Sex Education (who testified at the trial), an established Swedish gynecologist and family counselor, and a popular husband-wife team of pedigreed sexologists-psychologists who teach and lecture widely and write a syndicated newspaper column on the subject at hand, prepared the script informally by discussing love and marriage in depth before the camera. The camera then conscientiously probes the physical accomplishment of certain athletics (predominantly sexual intercourse) prescribed by the doctors to overcome the ills diagnosed in discussion in relatively brief film sequences interspersed throughout the seemingly interminable discussion. Towards the end of the film, a gynecological examination and the emplacement by a doctor of contraceptive devices in two young women are portrayed. An important sideline in the making of this film is said to be the airing of unhealthy inhibitions and the dismantling of taboos which interfere with the normal realization of sexual harmony. We may observe that all Scandinavian filmmakers appear bent on exploding our myths and taboos as at least a minor premise of their endeavors. See United States v. A Motion Picture Film Entitled "I Am Curious (Yellow)", 2 Cir., 404 F.2d 196, 203 (Ch. J. Lumbard, dissenting).
This film, as did I Am Curious (Yellow), contains scenes of oral-genital contact and other heterosexual activity that no actor or actress would ever have confessed
This film may be characterized by greater explicitness, quantitatively and qualitatively, than other films of this genre, although at least eight are currently playing or have recently played in New York without government interference, all of which could be said to have maximal explicitness and which enable that segment of the public interested in observing sexual activity in the quiet darkness of a movie theatre to do so. The government offers a comparison with I Am Curious (Yellow), which we held not to be obscene, representing that the scenes of sexual activity in "Language of Love" are far more numerous and "shockingly explicit" than those in the former film. Whether that be true or not, and we note that certain types of sexual activity depicted in Curious (Yellow) are not present in this film, we do not intend to tally the instances and methods of sexual accomplishment and compare score sheets in dealing with these films. Here, as in the former case, our duty is to consider the manner in which sex is presented, not its frequency, variety or explicitness per se. 404 F.2d at 199.
"Language of Love" had apparently been scheduled for a premiere showing at a commercial theater in midtown Manhattan, and the record discloses no interest elicited or solicited from our medical institutions or universities. In fact, any documentary classification is expressly disavowed. The government introduced, over objection, an advertisement published in the trade magazine "Variety" offering for hire to film promoters "Language of Love" along with other films promising at least a modicum of redeeming sexual impact for the operators of commercial movie houses. It is most unlikely that this film will be viewed primarily by marriage counselors and their patients in a professional setting. There is no evidence, however, of the manner in which the film will actually be promoted to the public except that the distributor has contracted to insure that no persons under 18 years of age will become privy to its dark secrets. It is described by its makers as a sex education film, produced for the edification of those members of the general public who experience a need for instruction in that sensitive area of their private lives. Presumably those who feel that they have been cheated can always seek a refund of the admission price.
The claimants presented a noted film critic, a principal researcher and author for the Kinsey Institute treatises on sexual behavior in both genders of the human species, a protestant minister and a former New York State chief film censor among its expert witnesses. All agreed that the film has social importance, and that it does not appeal to "prurient interest" in their understanding of that much-debated term. All likewise agreed that the film's explicitness falls within the customary limits of candor tolerated by the national community in view of the currently available competition for the movie-goers' dollars.
The government presented very little evidence beyond the film itself for assistance in determining the obscenity vel non of the film. The jury retired for deliberation with instruction to find in special verdict form whether or not the film, taken as a whole, was (1) in its dominant theme an appeal to prurient interest, (2) patently offensive, and (3) utterly without social value.
Although other constitutional and evidentiary questions are presented on appeal from the judgment, we heard oral argument only on the issue of obscenity vel non, and we reverse on that basis. Claimants' position is that "Language of Love" cannot constitutionally be excluded from the country as "obscene" because its dominant appeal is not to prurient interest but to sexual enlightenment, and because of the little controverted evidence of social importance. We have examined the record and viewed the film in its tedious entirety, and we hold that "Language of Love" is not proscribably obscene within the meaning of at least two of the Memoirs v. Massachusetts
Who is to decide?
At the outset we confront the fact that our judgment differs from that of the jury on questions which were put to them specifically and on which they rendered unanimous verdicts. What weight should the jury's verdict carry? Who is to decide that a work is of such quality as to be ineligible for constitutional protection? These questions have been the subject of extended consideration by the Justices of the Supreme Court and at least at the present time have been resolved, although not without dissent. Mr. Justice Harlan in Roth said:
In Jacobellis, the Supreme Court clearly accepted the responsibility of being the ultimate arbiter, Mr. Justice Brennan writing:
Dissenting, Chief Justice Warren thought that the test on review should be to apply a "sufficient evidence" test to the fact findings of appropriate State and Federal courts as "* * * the only reasonable way I can see to obviate the necessity of this Court's sitting as the Super Censor of all the obscenity purveyed throughout the Nation."
In I Am Curious (Yellow) this court did not allow a jury's verdict to remain as the controlling factor in its reversal. In his opinion, concurring with Judge Hays, Judge Friendly wrote concerning Chief Judge Lumbard's dissenting opinion upholding the role of the jury and the finality of their verdict:
If the Supreme Court chooses not to abdicate its responsibility in deciding obscenity as a matter of fact, neither should this court although it be only an intermediate waystation in the appellate review process. Thus, the primary burden of rendering the "constitutional judgment" required in obscenity cases as the law now stands rests upon this court, and the verdict of the jury can only be an advisory opinion at best. Thus we proceed to the constitutional issue which is ours for decision in the case at bar.
In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304 (1957), Mr. Justice Brennan stated for at least five members of the Court the rather clear proposition that "sex and obscenity are not synonymous." 354 U.S. at 487, 77 S.Ct. at 1310. Abandoning the clarity of that simple negative declaration, he shifted to the affirmative: "Obscene material is material which deals with sex in a manner appealing to prurient interest." Clues to the character of a "prurient interest," as opposed to a mere sexual interest, were included in the accompanying footnote seeking to explain the scope of the term of art which was to become a fixed and immutable requisite for a finding of obscenity. The definitional terms were words such as "lustful," "itching, morbid or lascivious," and "lewd," all of which connote a sense of debasement, of subnormal furtiveness or guilt. The clearest statement excluding normal sexual desire or libidinal arousal was the substitute for "prurient interest" offered by the drafters of the American Law Institute Model Penal Code (Tent. Draft No. 6, 1957), quoted with apparent approval in the footnote. The Model Code characterized an obscene thing as one whose "predominant appeal is to be a prurient interest, i.e., a shameful or morbid interest in nudity, sex or excretion, * * *." Id. at 487 n. 20, 77 S.Ct. at 1310 (emphasis added).
To our knowledge, nothing that the Supreme Court has said subsequent to Roth would alter the restrictive definition of "prurient interest" contained in that footnote. We conclude, therefore, that the Supreme Court has never intended to brand as "obscene" representations of sexual matters which do not import a debasing, "shameful or morbid" quality into the expression or depiction of human sexuality. To conclude otherwise would be to suggest that the human body and its functions are in themselves somehow "dirty" or unspeakably offensive. There is no logic in such a position, and we reject it.
All of the expert witnesses testified that the scenes of sexual activity in "Language of Love" do not, nor were they calculated to, appeal to a morbid or shameful interest in nudity or sex. The film portrays normal heterosexual relations albeit in rather graphic detail, one sequence of female masturbation, and closeups of the examinations performed by the gynecologist. Several sequences in the film we found offensive, not because they excited predilections to prurience but because they intruded upon areas of interpersonal relations which we consider to be peculiarly private. Our sensibilities were offended, but that is a matter of taste and de gustibus non disputandum est, particularly in matters of sex and constitutional law. Whatever considerations of taste are appropriate in an adjudication such as this fall within the element of "patent offensiveness to prevailing community standards," and offensiveness alone is not a sufficient ground for censorship under the prevailing law of obscenity. Memoirs v. Massachusetts, supra. To the average person, certain scenes in "Language of Love" may present a temporary erotic appeal, and the effect may be temporary sexual arousal. The bodies of attractive young persons may well have an erotic appeal, and we cannot ignore that fact. Indeed erotic appeal has assumed a position of paramount importance, somewhat
If prurient interest is to be defined as having lascivious thoughts, how can such a subjective determination be made? The young man meeting an attractive young lady, who seeks admission into this country and who may eventually become his wife, may well, as a normal young male, have lascivious thoughts calling for proper and decorous restraint. Query, should she be denied entry? And what of the scores of objects cited by Kraft-Ebbing and others calculated to arouse such thoughts in certain people affected thereby? The shades of many stores along the avenue featuring briefer bikinis and minier minis might all have to be drawn.
The erotic instinct and the apparent desire for sex education are in the ascendancy in our society, and in the sensitive area of constitutional adjudication of individual rights we must be careful to distinguish between the arousal of sexual instincts and the perversion of those instincts to morbidity. That, we believe, is essential to the wisdom of the Supreme Court's attempts to keep the "door barring federal and state intrusion into [the area of first amendment freedoms] tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests," as long as government chooses to remain in the distasteful business of censorship. Roth, supra, 354 U.S. at 488, 77 S.Ct. at 1311. Since presentation of the sexual matter in this film is not characterized by the forbidden "leer of the sensualist," Ginzburg v. United States, 383 U.S. 463, 468, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), we do not believe the film as a whole can be considered an appeal to prurient interest.
Redeeming Social Value
The overriding aspect of the Memoirs formula appears to have become, in most cases (as indeed it was in Memoirs itself), the presence or absence of the "required modicum of social value," I Am Curious (Yellow), supra, 404 F.2d at 201 (concurring opinion) and the dominant theme of a film or its revealed purpose is important in determining the existence of social value as well as the nature of the film's appeal. Claimants and their witnesses assert that the theme of "Language of Love" is sex education, or sexual enlightenment, and the film itself bears that interpretation. Perhaps uniquely in litigation of this sort, we are not confronted with any difficulty in perceiving a "nexus" between the sex activity and what is claimed to be the legitimate purpose of the filmmaker. Compare I Am Curious (Yellow), supra, at 199. Some mention of sex can hardly be said to be extraneous in a film which is "about" sex, and the social value of this film in particular stands or falls on its presentation of sexual matter, for there is nothing else. Regardless of the caliber of the editing, which in many places is rather crude, it cannot be said that the scenes of graphic, explicit physical activity were simply injected into the film with no relation to the theme, for the sociological, medical and psychological discussions which comprise over three-quarters of this film are about precisely what takes place sexually between the partners.
Ideas are presented in this film — ideas about sex — and the jury seemed to recognize that fact when it revealed its distaste for the prospect that the picture would "be shown and the government
Having said all this, we recognize that this film may lend itself to "exploitation of interests in titillation * * * through [its] pervasive treatment or description of sexual matters," Ginzburg,
This, of course, is not a criminal prosecution but a civil proceeding against the film itself to determine whether it may be imported into the country for any purpose at all. The Supreme Court has noted that a criminal conviction on the theory of Ginzburg "does not necessarily suppress the materials in question, nor chill their proper distribution for a proper use." 383 U.S. at 475, 86 S.Ct. at 949. Our case is not a narrowly directed criminal prosecution, and forfeiture pursuant to § 305 would suppress the material entirely and condemn it in all contexts. This the First Amendment forbids unless the material itself is proscribably obscene. Thus the evidence of the "Variety" advertisement introduced by the government at trial was irrelevant. The Supreme Court expressly recognized the distinction between a proceeding such as this one and a criminal prosecution for conduct violating the mail statute. See Ginzburg, supra, at 474 n. 15, 86 S.Ct. 942. Moreover, the "Variety" advertisement does not establish the manner in which the distributors will promote this film in the future. The ad was placed in a trade magazine, not a publication for general public distribution. It was aimed at distributors, not the public, and it advertised "Language of Love" in particular only on the basis of box office figures in Sweden. The ad presents as a drawing a naked young lady exceptionally well endowed fore and aft and the titles of various motion pictures available to potential exhibitors. The format of the ad may have suggested that "pandering" promotion would be profitable and might occur in the future, but it provides no context of present pandering, nor does it support an inference that the film "was created or exploited entirely on the basis of its appeal to prurient interests." Id. at 474, 86 S.Ct. at 949. Therefore, even if the principle of Ginzburg were applicable constitutionally, the ad was of no probative value in this proceeding. Such proof must be reserved for criminal or State proceedings subsequent to distribution.
A second limitation on our decision to allow this film to cross our borders is the recognized power of the States to "adjust the definition of obscenity" for minors. Ginsberg v. New York, 390 U.S. 629, 638, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). If the film is shown to minors, even though it cannot be proscribed as "obscene" by adult standards, a prosecution may succeed under a statute which reflects "a specific and limited state concern for juveniles." Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515 (1967). Thus our holding may be limited to exhibition for adults only, and the distributor has indicated his intention to exhibit the film with that limitation.
Finally, although the jury found that the explicitness of the sexual portrayal in this film "is patently offensive for general public showing to adult audiences,"
Certainly what is private and what is public is a relative evaluation. Viewing a film with an audience of 300 persons is obviously not entirely private. Nevertheless, the viewing "public" embraces only those who, having read or seen the advertisements or bill of fare offered at the theater, affirmatively moved to enter the theater at what is frequently a premium price. Therefore, it is not the general public which is exposed to the scenes deemed offensive in a movie such as this one, but a highly specific "public" composed of individuals who have freely chosen to present themselves for exposure. See Karalexis v. Byrne, 306 F.Supp. 1363, 1365 (D. Mass.1969) (opinion of Aldrich, C. J., for a three-judge district court). Few of this film's patrons, given its specific subject matter, could complain that their sensibilities were shocked when taken unawares by the film's explicitness. Local authorities can certainly enforce regulations requiring "truth in exhibition" by the local exhibitor at the theater door to insure against affronts to the unsuspecting citizen.
We say all this to emphasize that the local communities are not without protection against the swelling tide of "entertainment" which exceeds their own limits of decency in the portrayal of both sex and violence. As a federal court charged with the delicate responsibility of guarding the First Amendment's guarantee of free expression, we cannot interdict at the border, and for all purposes, a film which does not meet the rigid criteria established by the Supreme Court as the sine qua non for suppression. And putting aside for a moment the intricacies of the Memoirs formula, whatever "hardcore pornography" is, "Language of Love" considered as a whole is simply not of that genre.
In final analysis is freedom of speech and expression, including exhibition of motion picture films, to be based on the opinions of 51 percent or even 80 percent of our populace? If so, it might well be that on a national plebiscite the "Language of Love," "I Am Curious (Yellow)" "Les Amants," "Memoirs" and others would all be condemned by a majority vote. Minorities woud then read and see what their fellow men would decide to permit them to read and see. The shadow of "1984"
In conclusion, a simple standard could easily be judicially created as a matter of law, namely, that any motion picture film which reveals two persons, male and
We therefore reverse and order the confiscated materials released to the claimants.