United States of America, Plaintiff-appellant, v. Various Articles of Obscene Merchandise, Schedule No. 1769,defendants-appellees, 600 F.2d 394 (2d Cir. 1979)

This is an appeal by the United States from a judgment entered in the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, after a bench trial, finding certain items seized by the United States Customs Service not legally "obscene" and ordering their release to their respective addressees. For the reasons that follow, we affirm in part and reverse in part and remand to the district court for further proceedings.

Between September 15 and September 21, 1978, the United States Customs Service seized 132 lots of allegedly obscene merchandise from the mail arriving in New York from overseas and five different allegedly obscene 8 mm. films from an arriving passenger at John F. Kennedy International Airport. The seized items were destined for the addresses of well over 100 citizens in twenty-five states and Washington, D. C. The seizure was made pursuant to § 305(a) of the Tariff Act of 1930, 19 U.S.C. § 1305(a). On September 26 a warrant for the arrest of the seized articles was issued by the Clerk of the District Court for the Southern District; the next day the United States Marshal made the arrest.¹ 

On October 5, notice of this action was sent to each addressee. The notice read:

PLEASE TAKE NOTICE that the United States of America has commenced an action for the forfeiture and destruction of the below obscene material seized in New York, New York:

ADDRESSEE: MERCHANDISE:

()

()

If you wish to contest the forfeiture and destruction of such merchandise, you have twenty (20) days from the receipt of this notice to file a Claim and Answer with this office. If you wish, you may sign and return the attached form to the undersigned as your Claim and Answer. Failure to file a Claim and Answer will result in the destruction of the merchandise addressed to you.

The form is signed by the United States Attorney and the Assistant United States Attorney assigned to the case.²  The "Claim and Answer" form attached to the notice read:

I hereby file a Claim to the below described merchandise which was addressed to me and which has been seized by the plaintiff pursuant to 19 U.S.C. § 1305:

ADDRESSEE: MERCHANDISE:

()

()

For my Answer to Complaint I deny that the merchandise seized is obscene and subject to forfeiture, but admit that the seized merchandise was sought to be imported into the United States through the Port of New York on the date set forth in Schedule "A" of the Complaint and that the merchandise was seized and is now in custody within the Southern District of New York. I demand judgment that the seized merchandise be forwarded to me.

Five persons signed and returned these forms; a sixth person claimed not by form but by letter.³  Either just prior to, or at the same time as, the mailing of these forms, the government apparently also sent to the addressees something it calls an "assent to forfeiture" form.⁴  At the trial below, the government attorney described this form as one that provides "an opportunity for the addressee to assent to an administrative forfeiture." The form read in relevant part as follows:

Sir: Assent is hereby given to the forfeiture of (the seized articles) now in your custody (and) the subject of your notice dated above. This assent is neither an acknowledgement that the materials being forfeited were solicited nor an admission that it was known that they are obscene.

On November 6 and November 8, notice was sent to the six claimants informing them of the date and time of the proceedings in the district court for the determination of the obscenity of the claimed items.⁵  This notice read in part:

PLEASE TAKE FURTHER NOTICE that you may appear at the time and place of trial, in person or by an attorney, and contest on any appropriate grounds the right of the United States to seize and forfeit the materials you have claimed in this action. You need not appear, either in person or by attorney, to have the issue of whether or not the goods you have claimed are obscene presented to the Court and you will be advised of the Court's decision when it is rendered.

Trial was held on November 20. The government introduced into evidence all of the seized articles as well as the various items of correspondence sent to or received from the addressees. None of the addressees appeared at trial. During the trial, the government moved for entry of a default judgment against the allegedly obscene articles that were addressed to persons who either had failed to file a Claim and Answer or had filed an "assent to forfeiture." The district court denied the motion, and determined whether each of the Schedule 1769 articles was or was not "obscene." On November 24 the court ordered destroyed those materials portraying children engaged in sexual activity as well as those materials portraying rape, sexual sadism, or other forms of violence. All other materials were ordered released and forwarded to their addressees. The government appealed.⁶ DISCUSSION

(I) Default

We consider first the question whether a default judgment may be entered against the materials addressed to persons who either had "assented" to their forfeiture or had chosen not to file a Claim and Answer.⁷  The district court held that such a judgment could not be entered in proceedings of this kind. We agree and, accordingly, affirm the judgment of the district court in this regard.

The government's argument takes the following course. The procedure for actions commenced under § 1305(a) is governed by the Supplemental Rules for Certain Admiralty and Maritime Claims. Rule A of these rules provides that the Rules of Civil Procedure for the United States District Courts are applicable to the extent that they are not inconsistent with the Supplemental Rules. There is nothing in the Supplemental Rules regarding default, so Fed. R. Civ. P. 55 is properly consulted for guidance. Under this rule, the argument goes, the district court had the power to, and should have, entered a default judgment against the unclaimed articles. But this is to miss the forest for the trees. Given the important First Amendment interests at stake, we decline to approve of such a procedure. Compare St. Martin's Press, Inc. v. Carey, --- F.2d ----, ---- (2d Cir. 1979) (Timbers, J., dissenting) ("Particularly where First Amendment rights are involved, courts must be sensitive to the first whisper of a chilling wind the whisper picked up first by the beeches before the pines.").⁸ 

The statute provides in relevant part as follows:

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 . . . or other article which is obscene or immoral . . . . No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the appropriate customs officer that the obscene or other prohibited articles . . . were inclosed therein without the knowledge or consent of the importer . . ., the entire contents of the package . . . shall be subject to seizure and forfeiture . . . . (T)he 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 appearance of any such book or matter at any customs office, the same shall be seized and held by the appropriate customs officer To await the judgment of the district court as hereinafter provided . . . . Upon the seizure of such book or matter such customs officer 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. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section.

19 U.S.C. § 1305(a) (emphasis added). As is quite obvious, "forfeiture pursuant to § 305 would suppress the material entirely and condemn it in all contexts." United States v. 35 MM. Motion Picture Entitled "Language of Love," 432 F.2d 705, 714 (2d Cir. 1970), Cert. dismissed, 403 U.S. 925, 91 S. Ct. 2241, 29 L. Ed. 2d 704 (1971). In our judgment, Congress intended this final restraint to be imposed only upon a judicial determination that seized articles are "obscene," and not as the result of an unchallenged administrative recommendation for destruction.

This conclusion is amply supported by the statute's legislative history. See United States v. 37 Photographs, 402 U.S. 363, 368-71, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971); United States v. One Book Entitled "The Adventures of Father Silas," 249 F. Supp. 911, 916-19 (S.D.N.Y. 1966). We have held as much:

The Collector of Customs is not authorized under any circumstances finally to determine whether material seized is obscene. His sole function is to select material for judicial review. The power to determine questions of obscenity is vested solely in the courts. In fact, the legislative history of Section 305 indicates great hostility, on the part of the Congressmen who devised the section, to administrative censorship and manifests their desire that the question of obscenity should "be quickly submitted to the district attorney and to the court for determination."

United States v. One Carton Positive Motion Picture Film Entitled "491," 367 F.2d 889, 899 (2d Cir. 1966). See also United States v. Various Articles of Obscene Merchandise, Schedule 896, 363 F. Supp. 165, 166 (S.D.N.Y. 1973); United States v. A Motion Picture Film Entitled "I am Curious (Yellow)," 285 F. Supp. 465, 467-68 (S.D.N.Y.), Rev'd on other grounds, 404 F.2d 196 (2d Cir. 1968); United States v. One Carton Positive Motion Picture Film Entitled "491," 248 F. Supp. 373, 376-77 (S.D.N.Y. 1965) and 247 F. Supp. 450, 457 (S.D.N.Y. 1965), Rev'd on other grounds, 367 F.2d 889, Supra; United States v. Reliable Sales Co., 376 F.2d 803, 806 (4th Cir. 1967). Compare United States v. Various Articles of Obscene Merchandise, Schedule 1303, 433 F. Supp. 1132, 1134 (S.D.N.Y. 1976), Rev'd on other grounds, 562 F.2d 185 (2d Cir. 1977), Cert. denied, 436 U.S. 931, 98 S. Ct. 2831, 56 L. Ed. 2d 776 (1978); United States v. Obscene Magazines, 382 F. Supp. 975 (C.D. Cal. 1974). The effect of the government's suggested procedure here would be to remove from the judiciary the statutorily imposed obligation to rule on the obscenity of seized items. We cannot, in light of the clear wording of the statute, say that an addressee's decision to file an "assent to forfeiture" or not to file a "Claim and Answer" serves to lift the burden of making these "adjudications" from the shoulders of the federal courts.

Even if we found the statute ambiguous, however, we would decline to sanction the default procedure suggested by the government. The practical effect of such a procedure would be to permit the government's administrative seizure and subsequent destruction of books, magazines and films to become an unreviewed act of censorship.⁹  As a result, citizens could be prevented from receiving materials which the courts, given the opportunity, would find not obscene. This we will not allow.

"We risk erosion of First Amendment liberties unless we train our vigilance upon the methods whereby obscenity is condemned no less than upon the standards whereby it is judged." Manual Enterprises v. Day, 370 U.S. 478, 497, 82 S. Ct. 1432, 1442, 8 L. Ed. 2d 639 (1962) (Brennan, J., concurring). This is so because "constitutionally protected expression . . . is often separated from obscenity only by a dim and uncertain line." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S. Ct. 631, 637, 9 L. Ed. 2d 584 (1963). Thus, the teaching of the Supreme Court's cases is that "only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58, 85 S. Ct. 734, 739, 13 L. Ed. 2d 649 (1965). As explained further by the Court in Blount v. Rizzi, 400 U.S. 410, 417, 91 S. Ct. 423, 428, 27 L. Ed. 2d 498 (1971):

(T)o avoid constitutional infirmity a scheme of administrative censorship must: place the burdens of initiating judicial review and of proving that the material is unprotected expression on the censor; require "prompt judicial review" a final judicial determination on the merits within a specified, brief period to prevent the administrative decision of the censor from achieving an effect of finality; and limit to preservation of the status quo for the shortest, fixed period compatible with sound judicial resolution, any restraint imposed in advance of the final judicial determination.

See also Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 682, 88 S. Ct. 1298, 20 L. Ed. 2d 225 (1968); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141, 88 S. Ct. 754, 19 L. Ed. 2d 966 (1968); LaMont v. Postmaster General, 381 U.S. 301, 307, 85 S. Ct. 1493, 14 L. Ed. 2d 398 (1965).

Given these pronouncements by the Supreme Court, and given the important First Amendment interests involved, it is our judgment that the government's position on this issue is neither supported nor supportable. "The separation of legitimate from illegitimate speech calls for . . . sensitive tools . . . ." Speiser v. Randall, 357 U.S. 513, 525, 78 S. Ct. 1332, 1342, 2 L. Ed. 2d 1460 (1958). As unedifying as we may find this task in cases involving alleged "obscenity," it is the judiciary which must wield these implements, not administrators or executive officers, who make only the initial determination that certain materials are of doubtful legality.

Accordingly, we affirm the district court's decision in this regard.

(II) "Obscenity"

We turn now to the central issue before the district court: whether the seized articles were "obscene" for purposes of § 1305(a) and therefore subject to destruction. The court expressly, and correctly, referred to the definition laid out in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), as governing this question. In Miller, the Court defined as obscene those "works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." 413 U.S. at 24, 93 S. Ct. at 2615. It is the district court's application of this definition to the articles here in question that we examine on this appeal.

The district court determined that all of the seized articles satisfied the first and third parts of the Miller test. As to the second part of the definition, however, that part having to do with the "patent offensiveness" of the portrayal of sexual conduct, the court "divided the materials into subject matter groups in accordance with (its) perception of differing community attitudes." The court found that photographs and films of children engaged in sexual activity "have provoked a very widespread public outrage, based in considerable part on revulsion at the potentially harmful exploitation of children for commercial sex purposes." The court held such materials "offensive to the community standards" and ordered them destroyed. The court made a similar finding and holding regarding the materials depicting rape, sexual sadism or other forms of violence. Those items were also ordered destroyed.

The court made quite a different finding, however, with regard to "Adult materials . . . which do not involve violence, rape or sadism." (emphasis in original). The court characterized these items as portraying "a wide variety of sex activity," ranging from "relatively conventional sex" to "bizarre sexual practices." As to determining the community's attitude toward such materials, the court said the following:

"The most apparent factor in seeking to make that determination is that the community does not speak with any consensus. Without question a significant population is outraged and disgusted by such materials. It is equally clear, given the proliferation of such materials, that the approving and consuming public is enormous. In my view, perhaps the largest element of the community and that closest to common ground expresses a view which tolerates the wishes of others to consume such adult materials privately and does not find them patently offensive Per se unless publicly displayed in an offensive manner.

Except where the corruption and exploitation of children are involved, public outcries against pornography and commercial sex activities in this community more often have to do with resentment of its intrusion into particular neighborhoods or with offensive display rather than with categorical objection to the existence of the materials or the activity."

(Quoting United States v. Various Articles of Obscene Merchandise, Schedule 1724, 460 F. Supp. 826, 829 (S.D.N.Y. 1978) (Leval, J.)). The district court further explained:

In seeking to determine whether the community standards are offended by these materials, I do not see how I can disregard the factor that these materials are being imported discreetly for private voluntary viewing.

I cannot disassociate my findings of community standards from the question whether the materials are to be used in offensive public display or in discreet privacy because I believe that these distinctions are a pertinent part of the community standards. The question of offensiveness is nearly impossible to disassociate from the context in which the material appears.

People are not offended in the abstract they are offended in meaningful contexts. Consider whether the act of sexual intercourse performed by an adult man and woman is patently offensive to our community's standards. The question cannot be answered without information as to the circumstances. If the act is performed in the privacy of the bedroom, the answer will be "no". If performed on a stage erected on a busy and crowded public street at lunch time, the answer will undoubtedly be "yes". I have no doubt that much of the community would find even tame erotic materials to be offensive if displayed in public areas, on billboards or in any manner that inflicted it on unwilling viewers and children. On the other hand, I find in my attempt to determine the standards of the community that the majority view does not necessarily consider adult non-violent sex material patently offensive when it is discreetly and privately used by those who find it enjoyable.

(C)onsideration of the context of display is (not) forbidden in seeking to determine whether the community standards have been offended where the finder of fact concludes that the context is a significant factor affecting the community's attitude.

(footnote omitted). Thus, the court concluded, although some of the articles "might" be offensive if imported for purposes of commercial sale or public display, they were "not offensive to the community standards in their present form and under the circumstances of their importation."¹⁰ 

Books, magazines and motion pictures¹¹  are, of course, entitled to the protection of the First Amendment.¹²  But when they contain material that is "obscene in the constitutional sense," United States v. Dellapia, 433 F.2d 1252, 1254 (2d Cir. 1970), their distribution, or, as here, their very existence, may be regulated by the government without offending constitutional guarantees. "(O)bscenity is not protected by the freedoms of speech and press." Roth v. United States, 354 U.S. 476, 481, 77 S. Ct. 1304, 1307, 1 L. Ed. 2d 1498 (1957). Accord, Miller v. California, supra, 413 U.S. at 23, 93 S. Ct. 2607. Thus, the problem presented in cases such as this one is twofold. First, the term "obscene" must be properly defined. As explained by Justice Rehnquist, "(t)he definition of obscenity . . . is not a question of fact, but one of law; the word 'obscene' . . . is not merely a generic or descriptive term, but a legal term of art." Hamling v. United States, 418 U.S. 87, 118, 94 S. Ct. 2887, 2908, 41 L. Ed. 2d 590 (1974). Second, once the definition is arrived at, it must be applied to the facts of the specific case a matter of considerable delicacy. " '(T)he line between speech unconditionally guaranteed and speech which may legitimately be regulated . . . is finely drawn.' " Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 66, 83 S. Ct. at 637, Quoting Speiser v. Randall, supra, 357 U.S. at 525, 78 S. Ct. 1332. It is our task on this appeal to determine whether the district judge properly discerned this line. It is our judgment that, under the teaching of the Supreme Court cases as they stand today, he did not.

It is well settled that the "obscenity" of an article seized pursuant to § 1305(a) is to be determined by reference to the Miller test. See United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 129-30, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973); United States v. Various Articles of Obscene Merchandise, Schedule 1303, supra, 562 F.2d at 190 & n.8; United States v. One Reel of 35MM. Color Motion Picture Film Entitled "Sinderella", 491 F.2d 956, 957 (2d Cir. 1974). We need not consider on this appeal whether the articles in Schedule 1769, "taken as a whole, appeal to the prurient interest in sex." The district court found that they did. Nor need we consider whether these articles "have serious literary, artistic, political, or scientific value." The district court found that they did not. But we are required to consider whether the district court properly applied to the seized articles the "patently offensive" part of the Miller test. We conclude that it did not.

In Miller the Court held that in order for a trier of fact to classify material as "obscene" it must find that the material "portray(s) sexual conduct in a patently offensive way." 413 U.S. at 24, 93 S. Ct. at 2615. As a "basic guideline" for this determination, the trier of fact is to decide "whether the work depicts or describes, in a patently offensive way, (specifically defined) sexual conduct . . . ." Id. The Court gave two "plain examples" of such depictions or descriptions:

(a) Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated.

(b) Patently offensive representations, or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

413 U.S. at 25, 93 S. Ct. at 2615. Although the examples given by the Court do to some extent help clarify what the Court had in mind as to the types of activity displayed in "patently offensive" representations or descriptions of sexual conduct, they do not clarify what the Court meant by the term "patently offensive." In other words, we are told only that an example of a work which "depicts or describes, in a patently offensive way, (specifically defined) sexual conduct" is a work which contains "(p)atently offensive representations or descriptions" of certain specified sexual activity. The only other clues offered in Miller are references by the Court to "pornography" or "pornographic material," 413 U.S. at 18-19 n.2, 93 S. Ct. at 2615, "patently offensive 'hard core' sexual conduct," 413 U.S. at 27, 93 S. Ct. at 2616, and " 'hard core' pornography," 413 U.S. at 28, 93 S. Ct. 2665. It has largely been left to us, then, the inferior federal courts, to infer the meaning of the term "patent offensiveness."¹³ 

There was no mention of the phrase "patently offensive" in Roth v. United States, supra, 354 U.S. 476, 77 S. Ct. 1304, the case that provides the starting point for obscenity analysis. In Roth the proper test for obscenity was held to be only "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." 354 U.S. at 489, 77 S. Ct. at 1311. Subsequently, however, in Manual Enterprises v. Day, supra, 370 U.S. 478, 82 S. Ct. 1432, Justice Harlan, announcing the judgment of the Court, found that the magazines there in question "cannot be deemed so offensive on their face as to affront current community standards of decency a quality that we shall hereafter refer to as 'patent offensiveness' or 'indecency.' Lacking that quality, the magazines cannot be deemed legally 'obscene . . . .' " 370 U.S. at 482, 82 S. Ct. at 1434. He also referred to sexual conduct "portrayed in a manner so offensive as to make it unacceptable under current community Mores," Id., to "obnoxiously debasing portrayals of sex," Id. at 483, 82 S. Ct. at 1434, to "material whose indecency is self-demonstrating," Id. at 487, 82 S. Ct. 1432, to materials "offensive on their face," Id. at 488, 82 S. Ct. 1432, and to materials "deemed to be beyond the pale of contemporary notions of rudimentary decency," Id. at 489, 82 S. Ct. at 1438. Although Justice Harlan found the magazines there at issue "dismally unpleasant, uncouth, and tawdry," Id. at 490, 82 S. Ct. 1432, they were held not to be obscene. Two years later, in Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964), Justice Brennan, announcing the judgment of the Court, held that the film "The Lovers" was not obscene, at least in part because it was not " 'substantially beyond customary limits of candor in description or representation of (sexual) matters.' " Id. at 191, 84 S. Ct. at 1680. See Roth v. United States, supra, 354 U.S. at 487 n.20, 77 S. Ct. 1304. In Jacobellis, Justice Stewart filed his now famous concurring opinion, which reads in part:

(C)riminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

378 U.S. at 197, 84 S. Ct. at 1683 (footnote omitted).

In Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966), the Court adopted a new test for obscenity:

(I)t must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) The material is patently offensive because it affronts community standards relating to the description and representation of sexual matters ; and (c) the material is utterly without redeeming social value.

383 U.S. at 418, 86 S. Ct. at 977 (emphasis added). The Court went on to note that, Assuming that "prurient appeal" and "patent offensiveness" had been demonstrated, "the circumstances of production, sale, and publicity" may be used as relevant to the question whether the material is utterly without redeeming social value. 383 U.S. at 420, 86 S. Ct. at 978.¹⁴ 

The Court expanded on the use of context or circumstance as relevant to the determination of "obscenity" in Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31 (1966), holding in effect that advertisements which were "not themselves obscene," 383 U.S. at 465 n.4, 86 S. Ct. 942, could be deemed so in light of "the setting in which the publications were presented." 383 U.S. at 465, 86 S. Ct. at 944-45. The Court found evidence of "pandering" relevant "in close cases" to the questions of prurient appeal and social value. See also Pinkus v. United States, 436 U.S. 293, 303, 98 S. Ct. 1808, 56 L. Ed. 2d 293 (1978); Hamling v. United States, supra, 418 U.S. at 130, 94 S. Ct. 2887, 2914 ("evidence of pandering could be relevant in the determination of the obscenity of the materials at issue, as long as the proper constitutional definition of obscenity is applied"); Kois v. Wisconsin, 408 U.S. 229, 231-32, 92 S. Ct. 2245, 33 L. Ed. 2d 312 (1972); Milky Way Productions, Inc. v. Leary, 305 F. Supp. 288, 294-95 (S.D.N.Y. 1969) (three judge court), Aff'd, 397 U.S. 98, 90 S. Ct. 817, 25 L. Ed. 2d 78 (1970). Compare United States v. 31 Photographs, 156 F. Supp. 350 (S.D.N.Y. 1957). With regard to "patent offensiveness," however, the Court made only the following comment:

The deliberate representation of (the) publications as erotically arousing . . . would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material.

383 U.S. at 470, 86 S. Ct. at 947.¹⁵  Accord, Splawn v. California, 431 U.S. 595, 597-98, 97 S. Ct. 1987, 52 L. Ed. 2d 606 (1977).

Since Miller, the Supreme Court has provided additional insight into how the term "patent offensiveness" is to be interpreted. For example, in Kaplan v. California, 413 U.S. 115, 93 S. Ct. 2680, 37 L. Ed. 2d 492 (1973), the Court declared that expression by words alone may be held "legally obscene" if upon reading it the Court can describe it as being "made up entirely of repetitive descriptions of physical, sexual conduct, 'clinically' explicit and offensive to the point of being nauseous." 413 U.S. at 116, 93 S. Ct. at 2683. In United States v. 12 200-ft. Reels of Film, supra, 413 U.S. 123, 93 S. Ct. at 2670, the Court indicated that there was a certain "substantive" aspect to the Miller examples: "If and when . . . a 'serious doubt' is raised as to the vagueness of the words 'obscene,' 'lewd,' 'lascivious,' 'filthy,' 'indecent' or 'immoral' as used to describe regulated material in (federal statutes), we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California . . . ." 413 U.S. at 130 n.7, 93 S. Ct. at 2670. And in Hamling v. United States, supra, 418 U.S. 87, 94 S. Ct. 2887, the Court did precisely that, explaining that "Miller undertook to set forth examples of the types of material which a statute might proscribe as portraying sexual conduct in a patently offensive way." 418 U.S. at 113-14, 94 S. Ct. at 2906. The Court went on to say:

Miller, in describing the type of material which might be constitutionally proscribed . . . was speaking in terms of substantive constitutional law of the First and Fourteenth Amendments. . . . While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is "patently offensive" within the meaning of the obscenity test set forth in the Miller cases.

418 U.S. at 114, 94 S. Ct. at 2906.

In Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974), decided the same day as Hamling, the Court considered the question whether the popular film entitled "Carnal Knowledge" was "patently offensive." The Georgia court held that it was; the Supreme Court held that it was not. The Court acknowledged that the question of "patent offensiveness" was "essentially a question of fact," but went on to hold that the fact finder does not have "unbridled discretion in determining what is 'patently offensive.' "

While (the Miller list of examples) did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination.

418 U.S. at 160-61, 94 S. Ct. at 2755. Using this analysis, the Court held that the film was not "patently offensive" because its scenes were neither "within either of the two examples given in Miller " nor "sufficiently similar to such material to justify similar treatment."¹⁶  "(T)he film could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way." 418 U.S. at 161, 94 S. Ct. at 2755.

This analysis was again employed in Smith v. United States, 431 U.S. 291, 97 S. Ct. 1756, 52 L. Ed. 2d 3241 (1977), where the Court described the criterion of "patent offensiveness" not only as an "underlying question of fact() " to be determined in light of "contemporary community standards," but also as a standard containing a "substantive component." 431 U.S. at 300-01, 97 S. Ct. 1756. "The kinds of conduct that a jury would be permitted to label as 'patently offensive' . . . are the 'hard core' types of conduct suggested by the examples given in Miller." 431 U.S. at 301, 97 S. Ct. at 1764. The Court referred to these kinds of conduct as "substantive conduct" the portrayal of which may be held to be "patently offensive." 431 U.S. at 303, 97 S. Ct. 1756. Of particular relevance to the appeal now before us is a comment made by Justice Stevens in dissent: "The standard now applied by the Court focuses its attention on the content of the materials and their impact on the average person in the community." 431 U.S. at 317, 97 S. Ct. at 1772. And in Ward v. Illinois, 431 U.S. 767, 97 S. Ct. 2085, 52 L. Ed. 2d 738 (1977), the Court held that, although the Miller examples did not include depictions of sado-masochistic sexual behavior, depictions of such conduct could nevertheless be found "patently offensive." The Court reasoned that the Miller examples "gave substantive meaning" to the "patent offensiveness" portion of the Miller test " 'by indicating the kinds of materials within its reach,' " 431 U.S. at 775, 97 S. Ct. at 2089, but that because the examples "were not intended to be exhaustive," 431 U.S. at 773, 97 S. Ct. at 2090, Quoting Hamling v. United States, supra, 418 U.S. at 114, 94 S. Ct. 2887, the real question to be asked is whether the material in question is "the sort of" material described in Miller, i. e., "specific hardcore sexual conduct." The Court characterized this as the Miller "specificity requirement," 431 U.S. at 775, 97 S. Ct. 2085, and held the requirement satisfied.

To summarize, in order for a portrayal of sexual conduct to be " patently offensive," as that term has been used by the Supreme Court, it must at a minimum be a depiction, description or representation either of the activities listed in the Miller examples or of activities "sufficiently similar" to those activities to justify similar treatment. Once this " substantive component" is satisfied, the question becomes whether, as a matter of fact, the portrayal is "patently offensive" in light of "contemporary community standards." And, as explained by the Court in Smith, "contemporary community standards must be applied by (the fact finder) in accordance with (its) own understanding of the tolerance of the average person in (its) community." 431 U.S. at 305, 97 S. Ct. at 1766. It is with this as background that we evaluate the district court's use of the inferred intention of the addressees to enjoy the seized articles privately as relevant to the question whether those articles are "patently offensive."

It is our judgment that the district court's method of analysis is not supported by the relevant Supreme Court pronouncements. In reaching its own conclusions as to the "patent offensiveness" of allegedly " obscene" materials, the Supreme Court has referred only to the "works," or to the "portrayals" of sexual activity, or to the "depiction," "representation or description" of that conduct. There has been no mention of the context in which those works were to be viewed by the owner, nor has there been mention of their intended private use. The assumption throughout the development of this area of the law has been that the portrayal of sexual activity either is or is not "patently offensive." The question which the Supreme Court is instructing the lower courts to ask in this regard is as follows: Is, as a matter of fact, the depiction, description or representation of sexual conduct contained in the article in question "patently offensive" under "contemporary community standards"? As explained above, some portrayals of sexual conduct may not, as a matter of substantive constitutional law, be found to be "patently offensive." Their content must be either that content mentioned in the Miller examples or "sufficiently similar" to that content to justify similar treatment. But the manner in which sexual conduct is depicted, described or represented in allegedly obscene materials is not affected by the manner or place in which the materials themselves either are, or are intended to be, used and enjoyed. Under the Supreme Court cases handed down to date, such information is simply not relevant to the determination of the materials' "patent offensiveness."¹⁷  For this reason, we must vacate the district court's order that the materials be released and remand for further consideration of the question of the "patent offensiveness" of these articles in light of "contemporary community standards." See, e. g., Hamling v. United States, supra, 418 U.S. at 125-26, 94 S. Ct. 2887; United States v. Various Articles of Obscene Merchandise, Schedule 1303, supra, 562 F.2d at 190; Id. at 191 (remand "to gauge the reaction of the community when, as and if it viewed (the materials)"), Quoting United States v. One Reel of 35MM. Color Motion Picture Film Entitled "Sinderella," supra, 491 F.2d at 958; United States v. Manarite, 448 F.2d 583, 593 (2d Cir.), Cert. denied, 404 U.S. 947, 92 S. Ct. 298, 30 L. Ed. 2d 264 (1971); United States v. 35 MM. Motion Picture Film Entitled "Language of Love," supra, 432 F.2d at 715 n.7; United States v. Wild, 422 F.2d 34, 35-36 (2d Cir. 1969), Cert. denied, 402 U.S. 986, 91 S. Ct. 1644, 29 L. Ed. 2d 152 (1971); United States v. One Carton Positive Motion Picture Film Entitled "491", supra, 367 F.2d at 896; Id. at 905 (Waterman, J., concurring). See also United States v. 2,200 Paper Back Books, 565 F.2d 566, 569-71 (9th Cir. 1977).

The district court's order that certain of the allegedly obscene articles be released to their addressees is vacated; the judgment of the district court is affirmed in part and reversed in part, and the case is remanded to the district court for further proceedings not inconsistent with this opinion.¹⁸