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January 7, 1985


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

                        MEMORANDUM OPINION AND ORDER

These in rem actions have been brought by the United States for forfeiture and destruction of allegedly obscene imported material seized from the United States mails by the Customs Service.*fn1 For the reasons stated in this opinion's findings of fact and conclusions of law, issued as mandated by United States v. Various Articles of Merchandise, Seizure No. 170, 750 F.2d 596 (7th Cir. 1984), this Court concludes all the seized materials are obscene and shall therefore be forfeited and destroyed.

This Court's Mandate Under Seizure No. 170

In a different context this Court has had occasion to state its invariable procedure of conducting a personal review of all materials tendered in obscenity forfeiture proceedings. United States v. Miscellaneous Pornographic Magazines, 526 F. Supp. 460, 467-68 (N.D.Ill. 1981) (hereinafter cited "YourStyle," after the name of the publisher plaintiff in the consolidated action that triggered all the substantive discussion in that opinion).*fn2 It may be that our Court of Appeals' decision in Seizure No. 170 was motivated at least in part by its concern lest District Courts might slight — or perhaps even eschew — the distasteful, though constitutionally mandated, task of personal review (thus Seizure No. 170, at 599, referred to the need "to provoke care on the part of the district judge").

All the same, this Court's own experience indicates the commendable desire of our Court of Appeals ("So that review in these cases will not be illusory . . . and to bring some rationality into these proceedings," Seizure No. 170, at 598), when translated into practice, most frequently proves unrealistic. Almost all the materials tendered to this Court in such proceedings over the years have been what might be termed Jacobellian — bringing into play the truly inspired observation (though its overuse has tended to make it commonplace) by Justice Stewart, concurring in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964):

  I shall not today attempt further to define the kinds
  of material I understand to be embraced within that
  shorthand description ["hard-core pornography"]; 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.

Whenever a case is an obvious "I know it when I see it" candidate, with the seized material compelling an equally obvious affirmative conclusion as to obscenity, it is extraordinarily difficult if not impossible to articulate any meaningful findings of fact of a kind that would ease the task of appellate review. As the Supreme Court Justices themselves have found in obscenity cases, there is no substitute for their viewing the offending materials and reaching their own conclusions as to "patent offensiveness." And that problem is really at the hard core of the conclusion recently expressed by the Second Circuit in United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 136 (2d Cir. 1983) (a conclusion rejected and impliedly criticized by our own Court of Appeals in Seizure No. 170, at 598)*fn3:

  Although appellate courts are required to exercise de
  novo review as to the preliminary substantive
  requirement that the material be "hard core"
  pornographic in nature, Jenkins v. Georgia, supra,
  418 U.S. [153] at 160-61, 94 S.Ct. [2750]

  at 2754-55 [41 L.Ed.2d 642], the trier's finding that
  the material is non-obscene is virtually shielded
  from appellate scrutiny, at least absent evidence
  that it is so clearly unreasonable as to amount to
  abuse of discretion.

One other factor that impelled our Court of Appeals to adopt its requirement for "explicit findings and conclusions" (Seizure No. 170, at 599) does not withstand analysis: its citation of United States v. Various Articles of Obscene Merchandise, Schedule No. 2098, 536 F. Supp. 50, 53 (S.D.N.Y. 1981) for the proposition that "a finding of obscenity as to an article would be res judicata (in the same community, presumably) for subsequent importations of that same article" (Seizure No. 170, at 599). Even a brief rehearsal of the concept of res judicata or claim preclusion — which bars subsequent litigation between the same parties to the prior litigation — makes the suggested application of that concept to Section 1305(a) forfeitures bizarre indeed. It must be remembered the producer or distributor of the publication receives no notice of the Section 1305(a) proceedings — only the addressee of the seized copy does.*fn4 Obvious due process infirmities would attach to a conclusive determination of obscenity of a publication, made binding on the real party in interest who has had no notice or opportunity to litigate, with the determination having been rendered in a proceeding in which an addressee of a copy was the only party notified. In fact the same due process concerns should apply even to a later proceeding involving a different addressee of the same publication, who also has not had his or her day in court.

Merely labeling the proceeding "in rem" does not alter matters, for the subject of in rem proceedings — the property subject to destruction — is only a particular item of property (in this case a copy of a publication), not the generic class of which that item of property may be a part. That is the established wisdom in the res judicata field — or more accurately, the field of collateral estoppel or issue preclusion, for the problem with which our Court of Appeals was rightly concerned in Seizure No. 170 was the prospect of binding a different litigant in a future lawsuit involving the same publication. We need look no farther than the Restatement of Judgments to show that the unsupported "res judicata" statement in Schedule No. 2098 (referred to with apparent approval in Seizure No. 170, at 599) is not only unsupported but unsupportable in law as well as in logic.*fn5

This is not to minimize the practical (as distinct from legal) effect of a court's declaration that a copy of a publication is obscene. Such a prior determination may well have a precedential influence on another District Judge who is later called upon to consider forfeiture of another copy of the same publication. But that prospect is totally distinct from a res judicata determination that would foreclose such later review. And even the practical persuasiveness of an earlier declaration of obscenity is necessarily diminished if the earlier forfeiture is one that went by default, without the usual testing in the crucible of the adversary process.

Despite the somewhat questionable underpinnings discussed in this section, this Court will of course essay the task presented by Seizure No. 170 in every Section 1305 case delivered to its calendar under this District Court's random assignment system.*fn6 Its analysis of the materials in issue in these cases follows.

Application of the Standards in These Actions

Seizure No. 170, at 597 paraphrased the familiar constitutional test of Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973) this way:

  To determine whether a particular item is obscene, we
  apply a three-part test: first, the work, taken as a
  whole, must appeal to prurient interests; second, the
  work must portray sexual conduct in a patently
  offensive way; and third, the work, taken as a whole,
  must lack serious literary, artistic, political or
  scientific value.

As in Seizure No. 170, the works at issue here unquestionably fall comfortably within the first and third criteria. Observation demonstrates that result without the need for any discussion, and this Court so finds.*fn7 That leaves only the issue of patent offensiveness for resolution.

Both the District Court and the Court of Appeals in Seizure No. 170 looked to the "average person in the relevant community" for that determination. There is no doubt the graphic depiction of sexual matters has undergone a dramatic revolution in taste in a single generation. In 1963 (if recollection does not play false) this Court and its then partners in the law practice defended Hugh Hefner against a City of Chicago obscenity charge stemming from photographs in an issue of Playboy magazine. One of those offending photos showed actress Jayne Mansfield (a "sex symbol" of that era) in bed and apparently unclothed (though she was substantially covered by the bedsheets, and no genitalia were at all visible in the photographs), with a male actor sitting fully clothed (indeed maybe even wearing a fedora, again if recollection is not playing tricks) on the same bed. Other photos showed Ms. Mansfield in other situations, but none depicted any sexual activity or any frontal nudity that included genitalia. Of course those pictures were not obscene, but the very fact they could then stimulate an obscenity prosecution (while today they would not stimulate sale of a magazine, let alone much if any prurient interest) suggests how and to what extent other times have produced other mores.

At the same time this Court cannot permit the mere fact that some commercial market now exists for a product to compel a negative decision as to its patent offensiveness, for the ultimate result of that kind of analysis (or lack of it) would compel judicial denial of every forfeiture where the addressee is a consumer who has ordered the merchandise. "Contemporary community standards," for patent offensiveness purposes, must look to the judgment of the "average person in the community, rather than the most prudish or the most tolerant," Smith v. United States, 431 U.S. 291, 304, 97 S.Ct. 1756, 1765, 52 L.Ed.2d 324 (1977). As Seizure No. 170, at 600 put it:

  We have already noted that availability [in the
  relevant community of similar materials] is not
  simply to be equated with acceptability, although
  there is, of course, an obvious linkage.

Contrast the differing decisions by the Court of Appeals for the Second Circuit in Schedule No. 2102, 709 F.2d at 134-37 (and Judge Meskill's concurrence, id. at 137-38), on the one hand, with Schedule No. 2127, 705 F.2d 41, 43-44 (2d Cir. 1983) and the earlier decision ...

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