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U.S. v. MISCELLANEOUS PORNOGRAPHIC MAGAZINES

October 13, 1981

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MISCELLANEOUS PORNOGRAPHIC MAGAZINES, PIECES OF PORNOGRAPHIC AD MATTER WITH HARD CORE ILLUSTRATIONS AND FILMS, DEFENDANT. YOURSTYLE PUBLISHERS, INC., PLAINTIFF, V. G. WILLIAM MILLER, SECRETARY OF THE TREASURY, ET AL., DEFENDANTS. UNITED STATES OF AMERICA, PLAINTIFF, V. VARIOUS ARTICLES OF MERCHANDISE, SCHEDULE # 125, DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

  MEMORANDUM OPINION AND ORDER

These three consolidated actions*fn1 involve allegedly pornographic material seized in 1980 by the United States Customs Service, Chicago office (the "Customs Office") pursuant to 19 U.S.C. § 1305 ("Section 1305").*fn2 Under Section 1305 a customs office is authorized to seize and hold "any obscene book" or other written or visual material imported into the United States from any foreign country, pending determination by a United States District Court whether or not the material is obscene. If the court makes an affirmative determination the material is "forfeited" — destroyed by the United States Attorney.*fn3

In each of 80 C 3593 and 80 C 5566 the government seeks forfeiture and destruction of an allegedly pornographic Swedish magazine entitled Revolt mailed to Gay-Life, a Chicago magazine published by YourStyle Publishers, Inc. ("YourStyle"). Additionally 80 C 3593 requests the forfeiture of certain advertising materials (the "ad materials") addressed to Lee Rice ("Rice") in Canon City, Colorado.

As is their right under Section 1305, addressees YourStyle and Rice have filed "claims" contesting the propriety of the respective seizures. Rice claims the seizure process violates his rights "to freedom of speech and . . . education" under the First Amendment. YourStyle submits four affirmative defenses, each alleging a separate constitutional violation by the government in its seizure procedure. YourStyle also asserts that its First Amendment right as a publisher is violated by any seizure under Section 1305. Finally YourStyle has filed its own complaint against the government, 80 C 5753, seeking injunctive and declaratory relief against the same actions challenged as unconstitutional in YourStyle's affirmative defenses in 80 C 3593 and 80 C 5566.

Three motions are currently pending:

    (1) the government's motion for a ruling as to
  obscenity of the materials claimed by Rice;
    (2) the government's motion to dismiss YourStyle's
  affirmative defenses in 80 C 3593 and 80 C 5566 and
  to dismiss its complaint in 80 C 5753; and
    (3) YourStyle's motion for summary judgment in all
  three actions.

For the reasons stated in this memorandum opinion and order:

    (1) the government's motion for a ruling as to
  obscenity of the "ad materials" is granted;
    (2) the government's motion to dismiss YourStyle's
  affirmative defenses is granted in part and denied in
  part, while its motion to dismiss the complaint in 80
  C 5753 is denied; and

(3) YourStyle's summary judgment motion is denied.

Section 1305 and the Current Seizures

Section 1305 prohibits "all persons . . . from importing into the United States . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation. . . ."*fn4 It also establishes the procedure for forfeiture and destruction of materials imported in violation of the prohibition:

    (1) Customs offices, under the direction of the
  Department of the Treasury, are delegated the
  responsibility for apprehending prohibited material.
  Any customs official discovering any such material is
  directed to seize the prohibited article and hold it
  pending "the judgment of the district court."
    (2) Upon such seizure the customs office is
  required to (a) send a letter to the addressee of the
  material informing him or her of the seizure and of
  the right "to assent to an administrative
  forfeiture," and (b) inform the local United States
  Attorney, "who shall institute proceedings in the
  district court for the forfeiture, confiscation and
  destruction of the book or the matter seized."
    (3) If the district court determines the material
  is obscene "it shall be ordered destroyed and shall
  be destroyed." In that 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."

YourStyle publishes GayLife as the leading newspaper "serving the Midwest Lesbian and Gay community." GayLife "provides news of developments in the Lesbian and Gay community; news of events concerning homosexuality; and news and features deemed of special interest to the Lesbian and Gay community." To obtain national and international news regarding such matters GayLife exchanges subscriptions with "similar" newspapers and magazines outside Chicago. One of those publications is Revolt, "a Gay liberation magazine from Sweden" written entirely in Swedish.

Rice is a private citizen. In 1980 he ordered from a Denmark distributor the ad materials, which advertise the sale of erotic literature and films.

In July 1980 customs agents in Chicago seized the copy of Revolt addressed to GayLife and the ad materials addressed to Rice, now the subject of the 80 C 3593 forfeiture complaint. Agents later seized the second copy of Revolt addressed to GayLife, now the subject of 80 C 5566. In its answers to those actions and in its own Complaint in 80 C 5753 YourStyle asserts that the procedure used to confiscate the copies of Revolt is constitutionally deficient in five respects:*fn5

    (1) Customs agents seize materials under Section
  1305 based on a finding of "probable cause" to
  believe the materials are obscene. However the
  Constitution mandates that such seizures be made only
  upon a finding that the materials are obscene.
    (2) Foreign language materials are seized before
  translation of their text. Any publication with
  "substantial" text (such as Revolt) cannot
  constitutionally be seized without first being
  translated so that the evaluation mandated by Miller
  v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614,
  37 L.Ed.2d 419 (1973) — assessing the work "as
  a whole" — can be made.
    (3) Materials seized under Section 1305 are in
  practice usually subjected in the district court to
  default proceedings under Fed.R.Civ.P. ("Rule") 55.*fn6
  No determination on the merits (as to obscenity of
  the materials) is ever made. Destruction of the
  materials in the ...

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