Dissenting Opinion of Judge Manton 

72 F.2d 705 (1934)

UNITED STATES  v.  ONE BOOK ENTITLED ULYSSES BY JAMES JOYCE (RANDOM HOUSE, Inc., Claimant).

MANTON, Circuit Judge.

I dissent. This libel, filed against the book Ulysses prays for a decree of forfeiture, and it is based upon the claim that the book's entry into the United States is prohibited by section 305 (a) of the Tariff Act of 1930 (19 USCA 1305 (a). On motion of appellee, the court below entered an order dismissing the libel, and the collector of customs was ordered to release the book. The motion was considered on the pleadings and a stipulation entered into by the parties.

The sole question presented is whether or not the book is obscene within section 305 (a) which provides:

"All persons are prohibited from importing into the United States from any foreign country * * * any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material. * * *

"Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the collector to await the judgment of the district court as hereinafter provided. * * * Upon the seizure of such book or matter the collector shall transmit information thereof to the district attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. * * *

"In any such proceeding any party in interest may upon demand 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 parties agreed as to the facts in the stipulation. There is no conflicting evidence; the decision to be made is dependent entirely upon the reading matter found on the objectionable pages of the book (pages 173, 213, 214, 359, 361, 423, 424, 434, 467, 488, 498, 500, 509, 522, 526, 528, 551, 719, 724-727, 731, 738, 739, 745, 746, 754-756, 761, 762, 765, Random House Edition). The book itself was the only evidence offered.

In a suit of this kind upon stipulation, the ultimate finding based solely on stipulated facts is reviewable on appeal to determine whether the facts support the finding. Lumbermen's Trust Co. v. Town of Ryegate, 61 F.(2d) 14 (C. C. A. 9); Order of United Commercial Travelers of America v. Shane, 64 F.(2d) 55 (C. C. A. 8). Moreover, the procedure in this suit in rem conforms to that obtaining in suits in admiralty (Coffey v. United States, 117 U.S. 233, 6 S. Ct. 717, 29 L. Ed. 890) where the appellate courts may review the facts. The Africa Maru, 54 F.(2d) 265 (C. C. A. 2); The Perry Setzer, 299 F. 586 (C. C. A. 2).

Who can doubt the obscenity of this book after a reading of the pages referred to, which are too indecent to add as a footnote to this opinion? Its characterization as obscene should be quite unanimous by all who read it.

In the year 1868 in Regina v. Hicklin L. R., 3 Q. B. 359, at page 369, Cockburn C. J., stated 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 1879, in United States v. Bennett, Fed. Cas. No. 14,571 Judge Blatchford, later a justice of the Supreme Court, in this circuit, sitting with Judges Choate and Benedict, approved the rule of the Hicklin Case and held a charge to a jury proper which embodied the test of that case. The Bennett Case clearly holds the test of obscenity, within the meaning of the statute, is "whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands a publication of this sort may fall." The court held that the object of the use of the obscene words was not a subject for consideration.

Judge Blatchford's decision met with approval in Rosen v. United States, 151 U.S. 29, 16 S. Ct. 434, 438, 480, 40 L. Ed. 606. The court had under consideration an indictment charging the accused with depositing obscene literature in the mails. There instructions to the jury requested that conviction could not be had although the defendant may have had knowledge or notice of the contents of the letter "unless he knew or believed that such paper could be properly or justly characterized as obscene, lewd, and lascivious." The court said the statute was not to be so interpreted. "The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character; and if it was of that character, and was deposited in the mail by one who knew or had notice at the time of its contents, the offense is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of its contents, assumed the responsibility of putting it in the mails of the United States. The evils that congress sought to remedy would continue and increase in volume if the belief of the accused as to what was obscene, lewd, and lascivious were recognized as the test for determining whether the statute has been violated. Everyone who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd, and lascivious."

Further the Supreme Court approved the test of the Hicklin Case. On page 43 of 151 U. S., 16 S. Ct. 434, 439, the court states: "That was what the court did when it charged the jury that `the test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influence, and into whose hands a publication of this sort may fall.' `Would it,' the court said, `suggest or convey lewd thoughts and lascivious thoughts to the young and inexperienced?' In view of the character of the paper, as an inspection of it will instantly disclose, the test prescribed for the jury was quite as liberal as the defendant had any right to demand."

Again the Supreme Court in Dunlop v. United States, 165 U.S. 486, 17 S. Ct. 375, 380, 41 L. Ed. 799, reviewed a charge in a criminal case upon the subject of obscene publications as follows: "Now, what is (are) obscene, lascivious, lewd, or indecent publications is largely a question of your own conscience and your own opinion; but it must come before it can be said of such literature or publication — it must come up to this point: that it must be calculated with the ordinary reader to deprave him, deprave his morals, or lead to impure purposes. * * * It is your duty to ascertain, in the first place, if they are calculated to deprave the morals; if they are calculated to lower that standard which we regard as essential to civilization; if they are calculated to excite those feelings which, in their proper field, are all right, but which, transcending the limits of that proper field, play most of the mischief in the world."

In approving the charge, the court said: "The alleged obscene and indecent matter consisted of advertisements by women, soliciting or offering inducements for the visits of men, usually `refined gentlemen,' to their rooms, sometimes under the disguise of `Baths' and `Massage,' and oftener for the mere purpose of acquaintance. It was in this connection that the court charged the jury that, if the publications were such as were calculated to deprave the morals, they were within the statute. There could have been no possible misapprehension on their part as to what was meant. There was no question as to depraving the morals in any other direction than that of impure sexual relations. The words were used by the court in their ordinary signification, and were made more definite by the context and by the character of the publications which have been put in evidence. The court left to the jury to say whether it was within the statute, and whether persons of ordinary intelligence would have any difficulty of divining the intention of the advertiser."

Thus the court sustained a charge having a test as to whether or not the publications depraved the morals of the ordinary reader or tended to lower the standards of civilization. The tendency of the matter to deprave and corrupt the morals of those whose minds are open to such influence and into whose hands the publication of this sort may fall, has become the test thoroughly entrenched in the federal courts. United States v. Bebout (D. C.) 28 F. 522; United States v. Wightman (D. C.) 29 F. 636; United States v. Clarke (D. C.) 38 F. 732; United States v. Smith (D. C.) 45 F. 476; Burton v. United States, 142 F. 57 (C. C. A. 8); United States v. Dennett, 39 F. (2d) 564, 76 A. L. R. 1092 (C. C. A. 2). What is the probable effect on the sense of decency of society, extending to the family made up of men, women, young boys, and girls, was said to be the test in United States v. Harmon (D. C.) 45 F. 414, 417.

Ulysses is a work of fiction. It may not be compared with books involving medical subjects or description of certain physical or biological facts. It is written for alleged amusement of the reader only. The characters described in the thoughts of the author may in some instances be true, but, be it truthful or otherwise, a book that is obscene is not rendered less so by the statement of truthful fact. Burton v. United States, supra. It cannot be said that the test above has been rejected by United States v. Dennett (C. C. A.) 39 F.(2d) 564, 76 A. L. R. 1092, nor can that case be taken to mean that the book is to be judged as a whole. If anything, the case clearly recognizes that the book may be obscene because portions thereof are so, for pains are taken to justify and show not to be obscene portions to which objection is made. The gist of the holding is that a book is not to be declared obscene if it is "an accurate exposition of the relevant facts of the sex side of life in decent language and in manifestly serious and disinterested spirit." A work of obvious benefit to the community was never intended to be within the purview of the statute. No matter what may be said on the side of letters, the effect on the community can and must be the sole determining factor. "Laws of this character are made for society in the aggregate, and not in particular. So, while there may be individuals and societies of men and women of peculiar notions or idiosyncrasies, whose moral sense would neither be depraved nor offended, * * * yet the exceptional sensibility, or want of sensibility, of such cannot be allowed as a standard." United States v. Harmon, supra.

In United States v. Kennerley (D. C.) 209 F. 119, the Bennett Case was followed despite the dictum objecting to a test which protected the "salacious" few. By the very argument used, to destroy a test which protects those most easily influenced, we can discard a test which would protect only the interests of the other comparatively small groups of society. If we disregard the protection of the morals of the susceptible, are we to consider merely the benefits and pleasures derived from letters by those who pose as the more highly developed and intelligent? To do so would show an utter disregard for the standards of decency of the community as a whole and an utter disregard for the effect of a book upon the average less sophisticated member of society, not to mention the adolescent. The court cannot indulge any instinct it may have to foster letters. The statute is designed to protect society at large, of that there can be no dispute; notwithstanding the deprivation of benefits to a few, a work must be condemned if it has a depraving influence.

And are we to refuse to enforce the statute Congress has enacted because of the argument that "obscenity is only the superstition of the day the modern counterpart of ancient witchcraft"? Are we to be persuaded by the statement, set forth in the brief, made by the judge below in an interview with the press, "Education, not law, must solve problems of taste and choice (of books)," when the statute is clear and our duty plain?

The prevailing opinion states that classics would be excluded if the application of the statute here argued for prevailed. But the statute, Tariff Act 1930, § 305 (a), 19 USCA § 1305 (a), provides as to classics that they may be introduced into the commerce of the United States provided "that the Secretary of the Treasury * * * 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." The right to admission under this proviso was not sought nor is it justified by reason thereof in the prevailing opinion.

Congress passed this statute against obscenity for the protection of the great mass of our people; the unusual literator can, or thinks he can, protect himself. The people do not exist for the sake of literature, to give the author fame, the publisher wealth, and the book a market. On the contrary, literature exists for the sake of the people, to refresh the weary, to console the sad, to hearten the dull and downcast, to increase man's interest in the world, his joy of living, and his sympathy in all sorts and conditions of men. Art for art's sake is heartless and soon grows artless; art for the public market is not art at all, but commerce; art for the people's service is a noble, vital, and permanent element of human life.

The public is content with the standard of salability; the prigs with the standard of preciosity. The people need and deserve a moral standard; it should be a point of honor with men of letters to maintain it. Masterpieces have never been produced by men given to obscenity or lustful thoughts — men who have no Master. Reverence for good work is the foundation of literary character. A refusal to imitate obscenity or to load a book with it is an author's professional chastity.

Good work in literature has its permanent mark; it is like all good work, noble and lasting. It requires a human aim to cheer, console, purify, or ennoble the life of people. Without this aim, literature has never sent an arrow close to the mark. It is by good work only that men of letters can justify their right to a place in the world.

Under the authoritative decisions and considering the substance involved in this appeal, it is my opinion that the decree should be reversed.