United States v. Joseph N. Palladino, Joseph N. Palladino, Jr.

America, STATES UNITED Appellee, PALLADINO, Joseph

Joseph N. N. Jr., Appellants. Palladino,

No. 72-1005. Appeals,

United States Court First Circuit.

Argued Dec. 1972. Feb.

Decided 1973.

Judgment June Vacated See 93 S.Ct. 3066. Judge, COFFIN, AL- Chief Before Judg- CAMPBELL, Circuit

DRICH es. Judge.

COFFIN, Chief Defendants, son, were con- father jointly by three counts on victed charging indictment of mailing nine-count of violation of obscene re- were sentenced U.S.C. § spectively years. The four and two appeal questions on are whether critical constitu- found obscene are the materials law; protected of tionally as a matter proof pandering was admissi- whether ble, of having pandering” of “the crime govern- charged; whether the been expert obliged proffer tes- ment was timony components of ob- on the three pat- scenity prurient appeal, —dominant exceeding community ent offensiveness standards, lack of and utter of less- other issues social value. Several briefly. import er will be discussed prosecution for the con- evidence The being charged as sisted materials of evi- some additional materials distribution, dencing the manner of testi- including mony by one recipients, four government agent books un- who ordered name, de- and evidence that der a false fendants, through company, Gran- engaged House, Inc., had Order ite Mail mailing large-scale operations. The compara- evidence consisted defense found non- had tive materials which been courts as well as a various obscene magazine Playboy de- issue of recent contemporary signed to demonstrate community district standards. acquittal on directed verdicts of court largely duplica- were three counts which jury acquitted on tive of others. charging mailing deck count illustrating posi- playing cards various on two of sexual intercourse tions Buffalo, Jr., Herald Price Fahringer, charging mailing of adver- counts Y., Pino, Boston, N. with whom John A. tising circulars. Mass., brief, appellants. was on The Materials Kellogg, Atty., Frederic R. Asst. U. S. Gabriel, Atty.,

with whom N. U. to be obscene James S. found brief, consisting appellee. mailing on and a were five books history Fanny Case”, latter and two three brochures.1 The to a “The Hill subsequent found not potpourri brochures other sets mailed brief includes tenor the mark- Shop”, obscene evidenced the sections “Inside a Porno “Co- eting penhagen Fair”, thirty pages book will be of the books. Each Sex together briefly discussed, magazine with refer- of Danish and Swedish illus- trations, interviews, pages it in The three ence to the brochures. “Swed- Cartoons”, found brochures obscene ish Porno comments separately. pro- will described Danish Justice posals to reform the Penal Code Danish Legalized Report “A on Denmark’s concerning pornography, Ministry and a Pornography” page, hard cover is a 560 Report, pages Justice sixteen of covers pages volume. The first consist of magazines banned, had been pages subject on the interviews thirty-one page a final section scatological equi- of Denmark’s recent pictures black and white from a Danish nox; legalization Gallup polls two on the magazine. The while photographs, less pornographic pictures; books and two explicit than in those “Re- Danish concerning in the Danish articles Review port”, genitalia display in- and simulated pornography; Danish toward attitudes sprinkling tercourse, with a of sado- page Report “Pornography a 180 and masochism, lesbianism, bestiality. and Penal Code The Council”. last gamut The run cartoons a similar pages of the book of a consist collection flagellation added. The blurb in the bro- pornographic of advertisements ma- chure, headlining after “CANDID IL- terials. The first half of this section is LUSTRATIONS, NEVER many SEEN IN devoted small black-and-white mentioning BEFORE”, THE U.S.A. and advertisements. The half second con- report a freedom”, “under the new magazine reads: largely full-page sists adver- “Fantastically detailed sex cartoons [sic] portraying, alia, tisements color inter illustrating sado-masochism, strips, les- intercourse, fellatio, actual sexual acts of bianism, shocking lesbianism, cunnilingus, eroticism .... group and sex- Drawing depicting variety of activity a sexual by persons. ual three and four deviations, strange and . sex acts . . A brochure advertised this with the book Every perverse Sex Act —natural and lead-off text: “New in America —SEE THE FIRST FOR TIME —THE NO

HOLDS BARRED ILLUSTRATIONS volume, and “Anal Oral Love” is a two magazines from Scandinavian and SEX paperback work, running to some PERIODICALS —MANY IN FULL pages of text and over 120 illustrations COLOR .... ORGIES —EVERY devoted to a historical account of various you SEX NOVELTY about which practices love connoted The its title. whispers heard . . . .’’At bot- chapters although literate, treat un- tom of the advertisement there refer- documented, practices fashion with sex important ence to “the most social rev- early major from man, an- interviews, olution our time” and the civilizations, up cient to Victorian times. articles, penal report. and code carry The last chapter, an effort Pornography” story larg-

“Scandinavian is also a into the era, current is set lengthy hard cover book some four type, pretense er makes little schol- pages. pages hundred arship, mainly supposed After 110 devoted and consists charged II Photographic 1. Count and mail ment “The Deck of Report Legalized Love”; of “A for, on Denmark’s Sexual advertisement Pornography”, Pornog principally, “Scandinavian three Tools for books —“Sex raphy”, work, Pleasure”, and Freak”, a two volume “Anal Erotic “The and Come Middle-Aged and Oral Pervert”; Love”. Count IV “The an ad- paperback book, magazine “My-O-My” of a “Animals as vertisement for the magazines. Sex Partners”. Count IX covered the other and six mailing of three brochures: an advertise- present-day acquit histories of male homo- found nonobscene case ting A ad are all drawn on a different count. second sexuals. The illustrations “My-O-My” magazine graphic art, sculpture from an- vertised contemporary, depict groups side, cient wide three of nude males wherein activity. variety photographically portrayed, anal and oral sexual were n magazines o bibliography A is con- covers of six other selected sizeable showing mostly couples “Anal and Oral tained volume. reverse side each poses. an- Love” is advertised a brochure various most flam amorous setting nouncing boyant are the hard brochure on one “Here ones advertised side They’re heavyweight pace! Super-Sensual”, the new “For the “Sex book boldly photo Pleasure”, Tools for Erotic with a hard-crusted books listing gadgets unique”. graph, sex work various blurb describes picture book”, blurb, High and then under the “A New in Or “2 volume gasms”, descriptions. textual “The ‘definitive’ describes sexual advertised, survey of sex acts” as “a man’s most off-beat On reversed side “spells Kinsey masterpiece sensuality” Re- “The Come what port only Freak”, an insatiable hinted about!” The advertise- revelations drawings woman, examples; explicit with textual and “The ment two also contains Middle-Aged Pervert”, sodomy. characterized as of fellatio and Raging Demands!”, “A Sexual Inferno of work, paperback book en- The fourth again accompanied by textual extracts. con- Partners” titled Sex “Animals eight descriptions of Also listed are brief pages supposed con- tains 191 of text on including other “Inside the Sex books narrating temporary ex- case histories Deviate”, Perverts”, “Anatomy of Nine periences bestiality, with less than a Guidebook”, “The and “The Sexmasters works. dozen illustrations from artistic Orgasm Masters”. page in a full advertise- This is heralded Slammer”, “an erotic ment as a “Sex as a Matter Law Protection making childish shocker others tame and by comparison!” lengthy extract of A to address first task is Our together reproduced, is one encounter law, whether, as a matter of the issue with two illustrations. materials are non-obscene of these advertising these books The brochures protected by Amend First therefore envelopes the ad- were enclosed in of Roth v. ment. three-fold test no identification 476, dressee with external 77 States, 354 S.Ct. U.S. United the name and defendants’ (1957) save address and Mem 1304, L.Ed.2d 1498 1 “pur- company. They note to 413, contained a Massachusetts, 86 383 U.S. oirs v. was (1966), chaser” that the material described 975, 1 L.Ed.2d is se 16 S.Ct. not or- (1) materials, that minors should mantically do the clear: material, der and that one could have whole, primarily appeal taken as from the mail- average his or her removed name prurient adult interests of the sending mailing. by back list pruri (or, deviants, to directed group, of the intended ent interests IX, in Count 502, York, 86 383 U.S. Mishkin v. New consist- found to be obscene which was (2) (1966)?; 958, 56 S.Ct. brochures. One advertised ed of three patently be offensive Photographic Deck of Sexual “The contemporary com cause affront photographs Love”, de- number with a relating munity mat to sexual standards picting in various a man a woman 2 utterly ters?; (3) the materials positions; the full deck itself sex prosecution state previously the standard held that federal 2. We pending presently de local prosecutions national or referent for such stand Supreme by v. Miller Court. Publications, cision nation. Excellent is the ards 2607, 362, States, 37 California, - U.S. -, 365 309 F.2d S.Ct. Inc. v. United - (1973). question 1962). L.Ed.2d (1st Cir. 70 redeeming printed simply conclusion that the word social value? We

without recognize nondelegable duty to de- cannot .... The fact our be obscene against contrary publications] cide, contain ver- [these even as non-obscene, subject in no given illustrations of the dict, that work is way so- v. so convinced. Jacobellis detracts we are 1676, Ohio, cial value.” 84 12 L.Ed.2d 793 that we are We confess presently pro Unfortunately, certain whether the law are unable to re- we involving solely printed matching all simple works we tects sort to exercise as Ginzburg Compare v. textual material. F.2d 606 Keriakos, in Hunt 428 did v. States, 86 n. 1970), comparing United 499 (1st the materials Cir. (Stew (1966) given 16 L.Ed.2d here with similar issue ones art, J., Aday dissenting), with v. United by or even absolution States, by comparative other courts. The ma- rev’ing (1967), United L.Ed.2d 1309 the de- terials submitted evidence Co., magazines F.2d comprise v. News States West Coast fendants such (6th importantly, 1966). Hunt, Cir. More found su- those we non-obscene men, pra, discussion portraying we doubt whether a “serious” or either women print genital exposed, to save is sufficient in all cases areas no ac- suggested. film, publication contains conced A a edly which also tion Bride”, “Wild Man and obviously obscene, or unrelated illus held not obscene in Common- photographs. see Palladino, But United trations wealth v. Mass.Adv.Sh. Film, States 35 MM. Motion Picture 260 N.E.2d was described (2d 1970); merely portraying 432 F.2d 705 Cir. district court as (E.D. cavorting Stewart, F.Supp. “a nude on a man and woman States v. Pa.1971). kissing caressing”, Yet do not here decide bed sex- without congress. part ual whether a dominates that whole so may that “utter the whole be said to be sought Defendants have to assist ly” redeeming social value. without including catalogue in their brief of a assumption Rather, even on the the that Supreme Court, in which the fed- cases might, standing alone, in books issue appeal, eral courts of federal district not be we tend to think that courts, appellate and state courts have all but one of them the cases “close held various materials .non-obscene. may pandering of be [where] evidence reading, From our we have been probative respect to the nature of identify publications able to held non- question”, Ginzburg, in su the material pra, law, which, obscene as a matter of as 86 S.Ct. at and text, here, do most of these combine decide, which are hearing after pedantic; photographs often and illus- proper evidence. depicting copu- trations actual range prac- in lation Defendants claim that the but also of deviant charge sodomy from dictment failed to “the crime of fellatio tices and to besti- upon ality group orgies; pandering” or the mer- conduct which such mailing chandising the crime matter as those us.3 of obscene brochures before based, language appealing proposition, Defendants also could be advance Ginzburg pros said in that “the be substantiated the cases in of the Court charged catalogue, “Essentially, any offense their book ecution con seriously production, subject of that text of the circumstances deals with the of ” sale, sex, frankly, publicity no how have . . . . matter must Wholly apart redeeming at 944. .... value separate By sweeping action, fact there no that its inescapable indictment pandering, left crime of us with the has merchandising. subsequently may properly the manner We discuss consider whether we thereof, partial presentation why to see explicit in its Ginzburg no more was positions, consisting case; simply could sex aspect in this pandering that than However, the advertisements neither fur be. indeed, indictment went the instant brochure, magazines ad- nor the alleging for the Ginzburg’s than ther vertising Pleas- Erotic “Sex Tools Defend circulars. of obscene Freak”, ure”, Mid- and “The “The Come surprise. issue claim ants cannot dle-Aged Pervert”, seem to pro us thoroughly pre-trial aired was protection during as a constantly claim to argued much ceedings and Pinkus, one of the Roth-Memoirs law under States While United trial. tests. (C.D.Cal.1971), hold did F.Supp. 928 pandering must proposition that to “Anal With reference indictment, it errone be view, al take a different Love”, we Oral language Ginzburg ously stressed deep though cer sense without presence implying quoted above having tainty. had the benefit Not language pandering in the indictment. testimony against any expert its for or Judge “con agree Frankel We standards, meeting the Roth-Memoirs strictly, not, elements duct” tests are them left with the two volumes arewe “only permissible kinds of They purport and are selves. may serve relevant evidence comprehensive account cohesive and tip toward case to the balance close conduct, age-old types of sexual certain orig finding [emphasis obscenity” drawing of sev and art on the literature Productions, inal], Milky Way Inc. v. While, epochs. for all countries and eral (S.D.N.Y. F.Supp. Leary, know, the dominant theme we aff’d, court), 1969) (three-judge may exceed prurient and the discussion offensiveness, national standards say utterly without it is cannot any more than social value Report respect to “A With supra. Memoirs, “Fanny We Hill”. Legalized Pornography” and Denmark’s volumes hold that both therefore Pornography”, the bulk “Scandinavian are non-obscene and Oral Love” “Anal concerning informative each book is a matter of law. revolving free about sexual the issues though ap photographs, dom Sufficiency the Evidence explicitness, proaching extreme in By we feel being clear subject now should be not unrelated intelligent give unequipped singularly But, as our discussion above discussed. findings jury’s implicit indicates, the review of the books the advertisements publications in Counts exploited the was defendants, as were II, IV, Roth- all of the and IX failed on “The Handbook Selective Housewife’s tests, in which Promiscuity” purvey in the context Ginzburg, Memoirs in the they of the being No one merchandised. emphasis were “the sex ors’ deliberate simply dismissed publications aspects could ually provocative the work”. of pornography. track To “hard core” at 948. As as 383 U.S. descriptive cata- Partners”, General’s work Solicitor “Animals as this Sex logue Ginzburg, Justice literary in which Mr. to have no historical seems approved, at 499 n. consisting supposed 383 U.S. case his Stewart value, Scandi- Danish and tories, exploited 86 S.Ct. at event was and “photographs books do contain “erotic shock Slammer” and as “Sex navian pretense artistic they with no say consti are er”. We cannot depicting sex- value, graphically acts tutionally protected of law. as a matter including intercourse, acts IX, various charged by ual Count brochures Of sadism, . . . scenes sodomy and and one must non-obscene. Since They con- orgy-like also Photographic character.” Deck of Sexual found “The drawings gross comic book difficult tain it itself not Love” exaggerated same an acquittal “activities fash- fendants’ motion for at the end part prosecution’s argued ion”. But of an elaborate case, any detail, and documented review of gal change. and le- expert social the failure to offer testimony prurient appeal, Tools” brochure on “Sex dominant standards, national and “Animals as Partners” come and Sex Although being descriptions close to it verbal value. change seems unfortunate to ground “such activities a bizarre manner with rules after a trial as attempt one, portray- well run no afford as this whatsoever to we have come to point where, long als of character or and no situation so as the tests obscenity pretense literary present sophisti- to two remain the value”. These publications, triology, however, pose problem cated we think fundamental determining fairness, process, and whether there is a domi- therefore due re- quires appeals prurient experts.4 nant theme which to intervention If group. we are conclusion, interest of deviant In- mistaken sexual deed, the have such Danish and Scandinavian about books doubts our own unas- deal, extent, ability give sisted also a lesser such cases practices lesbianism, judicial review, deviant flagellation, informed fellatio, that we reach bestiality. supervisory same Unlike the result our power.5 Mishkin, supra, situation in there saying In this arewe under proof, beyond nowas the materials them- no “experts” illusion that will render the selves, prurient appeal deviant process adjudicating obscenity a com group. See n. infra. pletely one, rational at either trial or on appellate present problems case was tried as review. There will be carefully competently appellate qualifying attendant on experts, difficul court, ty confining court could testimony wish. district them to within exceeding competence particularly, exercised care and directed to subordi provide bearing nate a fair trial and clear instruc factors the ultimate question, contradictory tions. And it cannot testimony be said that confusion, acquitted perhaps jury, which on three six much testimonial presented it, Nevertheless, counts was undiscrimi nonsense. we think that nating. applicable While the defense several submitted ad tests can have a requests being applied vance fairly ju chance of instructions judges expert used, rors exposed event that citing opinions witnesses were Klaw, and made United F.2d to think States v. about whether the (2d 1965), experts appeal “pru Cir. no “dominant” such were theme is an grounds and, so, offered. One of rient several for de- interests” to what 1965) ; 4. Professors Lockhart and Groner, McClure came to United States v. 475 F.2d (5th 1972), reargument same conclusion: Cir. granted; see also Luros v. States, “[I]f 389 F.2d beyond (8th go pornography 1969), courts, g., should hard-core Cir. and state e. (In categorizing Giannini, California the obscene re ... 69 Cal.2d Cal.Rptr. 655, (1968) ; is hard to see 72 how could be in- 446 P.2d 535 material' telligently Harris, appraised obscenity Cal.Rptr. In re 56 or Cal.2d 16 appellate intelligent- (1961), an how court 366 P.2d could 305 vacated and re ly grounds, review decisions manded on other without competent experts. (1963)) ; evidence of critics or 10 L.Ed.2d 1044 Maryland evidence, (Dunn We think the admission of such v. State Board of Cen proffered by sors, (1965)), when either side in an ob- Md. 213 A.2d 751 scenity required expert testimony case should which be made a constitu- requirement.” Censorship statutory tional either of these For of Ob- reasons. au scenity: Developing expert testimony, see thorization for Constitutional Mass. Standards, (1960). Gen.Laws Ann. ch. § Minn.L.Rev. 28F. federal, 5. We thus follow those United Klaw, (2d States v. 350 F.2d 155 Cir. interest, prurient but appeal “patently to theme’s

groups; material is whether provide suffi of fact to trier “contem- it affronts because offensive” professional array of observa relating ciently full porary” and standards national hasty unlikely render matters; tions in order to description sexual to assumption publication at issue “utterly is with- material and everyone it reaches will affect redeeming mat- value”.6 Such way, under all circumstances.” same prurience, attitudes, na- deviant ters as Stern, for the Use Rationale Toward a acceptability, and tional standards Testimony Obscenity in Liti Expert of gation, removed far social value are 527, 549 L.Rev. thought Case Western experience of the from the average (1968). us, Jurors, jury. it seems to wrestling such assistance need impor experts deem alsoWe fully need assist- as much as issues degree, tant, although varying to evaluating insanity or other an ance guide juries other two emotional illness defense. mental or the Roth maze. National branches of least, say elusive are, to argument in standards is forth The classic set of whether a supra. court, determination beasts. A Klaw, That after rehears the national level document exceeds multiplicity questions to exposure requires answered, “Having concluded, tolerance just in mind publications or broad of national to on the the constitutional contrictions views, regional scope, to the at legislation affecting also the free breadth titudes, habits, other com tastes of prurient appeal expression, dom climates, cul ‘average different munities with either an man’ interest —on tures, and histories. concurrence typical recipient’ ‘deviant basis—is As 72, recog supra concern, Groner, statutory n. then it seems desira in nized, jury, perhaps unfair ble, essential, appeal a Boston such indeed well, may sterotyped puritanical, ly someone shown exist.” 350 F.2d concepts of offen added, proof if left to its own It 165-166. then “And siveness, prurient response produce verdict a different stimulation generally important, manuscript particularly than that the same prevent necessary prurient uneven If we interest elsewhere. are to when the segment unequal application of the hence be that of a deviant so law, experts ciety hardly must have a matter same federal whose reactions are knowledge.” lim jury, less to advise the no common Id. at 166.7 judges, contempo appellate as to the expert role of would not be to ited give expresses rary In this we national standards. his “which legal agree concerning Frankfurter’s judgment with Mr. Justice dominant clear, Stern, passages quoted helpful ra above make commentaries 6. Two necessary” “particularly Expert tionale, a Rationale for the Use of while Toward Obscenity Litigation, Testimony for devi are intended the materials when ants, appeals average ; Ross, applies (1968) L.Rev. also Case Western Obscenity Testimony Cases, prurience. Expert illustrates We think this ease require unworkability hinging Note, Hastings See also L.J. 161 experts Obscenity Expert Testimony the kind of intended ment The Use of recipients, Although Litigation, con for most of the Wis.L.Rev. disagree and “deviant” as to ele tain mixture “normal” Ross and Stern expert testimony, appeals. note that Klaw would require We ments of the test apply requires core” materials such “hard rationale our view basic acts, experts depicting erotic on each element of the criminal color slides (2 Cir.), concept. Wild, cert. 422 F.2d 34 States v. 1644, 986, denied, 29 91 S.Ct. 402 U.S. (1971). also government viability See L.Ed.2d 152 7. The the of concedes (2d Manarite, 583, 593 448 F.2d v. Klaw for at States “esoteric” aimed denied, 947, Cir.), 92 assuming S.Ct. group, 404 U.S. cert. that this deviant ease (1971). 281, But, 264 does not such. as the involve 74 California, instruction, expected v. careful and was

observation Smith 361 165, 215, 225, personal 147, preferences 80 S.Ct. 4 L.Ed. rise above its U.S. day-to-day experiences, (1959) (concurring) 2d “com take the national 205 that pulse, merely munity psychological not standards or the sense what was shock- ing ques physiological consequences prurient group or to it to the to, or being identify groups appealed of fact tioned literature can as a matter any possible redeeming hardly except ex If be established 8 value. perts.” Ross, Expert being Testi this like loose See also seems cast on a Hastings sea, mony Obscenity Cases, appellate windless in an courts are juries (1966). even position, less enviable at L.J. 174-177 have, by selection, least virtue of their value, particu most Social sharing some values with sense some larly, subject requiring careful de community. sympa- completely areWe Amend lineation. It axiomatic First thetic with Groner, supra, the court v. United States may majority ment the not doctrine that said, at prescribe expression. what is valuable guidance experts “Without or Chicago Dept. Mosley, Police v. 408 otherwise, ap- we find unable to ourselves U.S. 33 L.Ed.2d 212 S.Ct. ply anything Roth the standard with Virginia (1972); West State Board objective more definite or then our Barnette, Education personal prudence own standards of 1178, L.Ed. 1628 Thus decency, standards which should not and prevent obscenity if we are to the law’s cannot de- serve as a basis for either provision judgment unusual of a nying granting pro- or first amendment publication’s becoming value from the tection to this or other literature.” passing majority’s repressing tool for We therefore reverse expression distasteful, unusual, it finds light In our remand the retrial. discomforting, simply threatening, or we protection discussion of as a matter witnesses, psychological, must have sociological, law, government may press the the still historical, medical, or liter mailing three counts of obscene matter ary expertise, explain objectively jury on which the convicted the defend total absence of social value. However, ants. since we hold both supra. generally Stern, See pro volumes of “Anal and Oral Love” required experts use of will While law, tected a matter and since easy, not make decisions jury necessarily here held the advertise will, think, process make of deci- Photographic ment for “The Deck sion a more structured one. In govern Sexual Love” event, is, the alternative the court said again ment these ma introduce Klaw, acceptable of res less terials into evidence establish ipsa loquitur. jury present crime of obscene matters.9 We books, compris- four ease handed the accept do not the defendant’s contention pages, almost 1500 and the set government must limit each given an brochures, was hour’s worth single document, count to a or alterna- necessary caveat, 8. He adds the “Of course magazine “My-O-My” not obscene as a testimony experts would not dis Supreme law. Since neither place judge determining the ul summary order nor Court’s of the rul- question particular timate ing below, (U.S. Nov. U.S.L.W. obscene, any book is more than the testi 16, 1971), anything indicate in re- mony experts relating to the state gard, of the and the lower court’s is not patent patenta art in suits published, determines we are not sure if this is so. bility of a controverted device.” If, however, the defendants could establish ruling, at a new trial this was the district court could black the side of 9. Defendants assert that the dealing “My-O- California, the advertisement Wiener v. (1971), My.” 30 L.Ed.2d 539 found remanded Judgment Case reversed. are counts tively if multi-document that this with proceedings consistent jury instructed must be permitted, the opinion. docu- of the all convict that it can mailing ob- are particular ments in a CAMPBELL, Circuit H. LEVIN mailing ob- the offense is scene. Judge (concurring). material; in a matters all hence scene may Judge in one single tempted follow to I would be guilt them dissenting one of found I not count and were Aldrich’s views law, it now opinion obscene. as the is that the doing How- precludes so. stands, our possible, we a retrial is Since with ever, it would be I to do so were important on to comment deem qualifications: these jury, ad instruction that court’s objection to potent the most I think answering Roth-Memoirs dition im- rests on virtual Roth test trilogy questions, or an aid “Obscenity” applying possibility it. answering them, determine should suscepti- “pornography” is not a word the Danish Scandinavian whether analysis Es- definition. ble to close “legitimate” publications or books were indicating sentially they pejoratives, are material was the written disgust arouses some- material which “simply these most excuse sale banning to sanction Unless one is one. photographs of the at the end vivid” body which substantial materials all Ginzburg Supreme Court book. regard disgusting— might ap on kind of some doubt this threw degree inviting position intolerable proach, pandering. absent evidence many censorship differ- in view of the L.Ed.2d S.Ct. today prevailing, ent standards assessing problem While rejected by properly whole, parts disparate, is a when the virtually impossible left —one is vexing one, incon it nevertheless seems selecting “real- which is task of tests, prescribed sistent with the ly” quite is not so bad from that which effect, speak in terms of ask bringing Experts may help in bad. purpose speculate questions sophisticated more consideration about a good faith. agree Judge issue, I of the during prob- arising question A Aldrich that will meet as to the court’s camera trial lem. juror had indicated examination of who Assuming, then, that we have subject his discomfort with give up attempt, I think then ? what such a situation now moot. Should regu- society should be allowed to again arise, inquiry should be made display late and circula- somewhat presence of counsel. United States highly tion al- offensive Larkin, 1969). (1st v. F.2d 617 Cir. though not ban them. Modern adver- challenge Defendant’s to the constitu tising economy potent a market tionality of 18 1461 on the U.S.C. § and intrusive It be unfor- force. would ground Stanley Georgia, society, already tunate if our dominated 22 L.Ed.2d 542 by ratings Nielsen and televised fanta- any governmental (1969), power voids unreality, sies of violence and should to restrict distribution of mate obscene by further dominated the fantasies of consenting is, rials to for the adults I inventive merchants of think smut. present least, foreclosed legisla- entitled, that families are if the Reidel, States v. determines, so ture de- to a reasonable 1410, 28 L.Ed.2d 813 All other gree protection from unsolicited ma- objections been considered terials, unregulated and from the intru- merit. entrepreneurs found be without pornography sion in- nearly daily the mails surfeit will more effect a to their lives cure process media, including, judicial future than will at sanc- and time, wonder, too, only omnipresent I tion.2 must TV set. not majority, the Commission with that but unsatisfactory effort Should Graham,3 Billy well known nonlibertine protected separate ma- core” from “hard pornography objectionable is abandoned, I think that terials ever be aesthetics, other than aas matter of working might focused on be attention contemporary is but a reflection be- principles permitting re- reasonable pornogra- havior rather than a cause. If public ad- strictions the most blatant phy, harmful, privately enjoyed, is not display pornography. vertising and “redeeming what is the need for a problem Admittedly the of definition important, value”? More on what basis I think a would remain: but somewhat judgment is a value to be formed? permissible looser definition would be regulation type since I have in pornography prosecuted If it is be only in- mind would relate to the more perhaps logical juries is more to have publicity forms trusive and would weigh expert apply, than to un considerably outright fall short ban- aided, concepts. their own individual ning. consenting While be adults should Yet, having experts dealt with in this want, they free to receive and see what decades, field for over I three am not society I do think not that is constitu- sanguine enough to think that much will tionally required to surrender all at- accomplished. Even are found tempt at control over the milieu within standard, qualified expound a national which its children are reared. Ohio, 1964, cobellis v. cf. Ja 184, 194-195, Judge (dissenting). ALDRICH, weig-ht Senior average how much will an juror appraisal attach to the witness’ not, disagree course, I do about it differs from his in own? We have disagree children. is It difficult upon experts patent sisted cases, e.g., all with the decision unless court Saws, Co., Contour Inc. v. L. S. Starrett one is to take the stand that hard core Cir., 1970, 428 F.2d but that pornography longer is no consid- is to fill a conceded void. not the Will scale, large ered unlawful. colored, far So average juror, not, whether assisted or highly pictures, focused anything still not know art, about but they portray, the scenes in the case at know what he doesn’t like ? concerned, bar are is hard think of what, scatological, deeper other than has been But than experts, the matter of Nevertheless, omitted. I any way confess that without in criticizing the schol- great the full freedom arship advocated opinion, legal the court’s or its majority members, of its see light Presiden- judicial correctness in the prece- Report tial dents, of the Commission on Ob- I deluding wonder if we are not scenity Pornography (1970), though ourselves. aIf deck cards illustrat- “among positions said to be the most controversial of sexual intercourse reports produced by gov- reject ever an not thought official obscene—I body,”1 ernment has much to recom- the cards social value it, sporadic mend not to avoid and because of presum- their obverse side— highly ably ery- selective enforcement that is “straight,” because al- ingly conspicuous, probably though inevita- many persons are told that ble, but I public positions because believe consider other than the “mis- Classics, Inc., (1970) 1. Foreword, Greenleaf 3. edition at 11. n. p. 8, Foreword of D. H. Gilmore. Concededly, public

2: surfeit im- minent, Sexploitation: Wages, see Sin’s Newsweek, p. Feb. _ed cry.” girls them and made unnatural; il- volumes sionary” if two thoughts,” “lascivious congress, reader with al- Since lustrating and anal oral un- supply, time readily acts, would though “unnatural” are classic these ob- words, become did this mind, printable, jury’s obscene art, or book? scene their because court’s text, rational accompanying on what pornographic material current Much “ap- an one decide can basis of highly many, But is, offensive. to graphic photo- pages pendix” 30 of free not the measure fensiveness other graphs unnatural of so-called 1971, California, speech, v. Cohen temptation I resist obscene? acts is 284, 1780, 15, L.Ed.2d 91 S.Ct. U.S. favoring the repeat the list of cases to history demonstrate centuries defendants’ found in to be defendant poison is one another man’s that what is herein. brief has position. I time wonder man’s consenting should adults when por- not come publishers putative Whether permitted only read what be to jailed nography come to has Stanley Georgia, 1969, 394 U.S. choose, v. prose- game played of chance 1243, 542, 557, L.Ed.2d cutors, juries, courts, finally, with purchase true free to it. It is Court, should respect, with the all Reidel, 1971, 402 in United States v. permits to it ultimate wisdom whose 813, is, 351, 1410, L.Ed.2d perceive hard core and what what Stanley apply to to af Court refused light of the Amend- not. In the protection First rights seller, or indirect. direct ford speech afforded to ment unwilling suggests to me falling pornographic short of condemna- rights to consider the readers’ chilling ness may envisage ef- tion, standing. matter of engenders. See uncertainty this fect standing has boundary 355-356. defense When, however difficult Compare rapidly eroding. Arnold define, large writing been area of was 45, Camp, 1970, Tours v. 91 S. imper- 400 U.S. and illustration was considered might L.Ed.2d it Ct. where missible, such to be tol- nubilation had adopted position that Court be said erated. With shrunk to its area willing minority was very which proportions, present price seems previous take the term Data Process high. Camp, 1970, Service 397 U.S. Finally, hope pandering I De 25 L.Ed.2d 184. rule, except pro- insofar it serves bar, quite apart fendants case at persons who, tect from affront under- own claims freedom standably, alone, go wish to be will left speech, appear would the same by the board. Is this to be one field standing represent rights of a where seller’s talk Is a is forbidden? purchaser as had the defendant in Eisen says book dirtier because the vendor Baird, stadt v. 92 S. concept subjective is? of a test Having Ct. mild 349. Expurgated is reminiscent of the Mother my brethren, er reservations which, than I Goose, tongue-in-cheek, judgment omitting advertised as would order “salacious” words. the defend E.g., “Georgie Porgie, pudding pie, ants. enabling public, bootleggers A during risk them to milk the a Op. s did Prohibition. cit . ante, 9; see, also, n. 2.

Case Details

Case Name: United States v. Joseph N. Palladino, Joseph N. Palladino, Jr.

Court Name: Court of Appeals for the First Circuit

Date Published: Jun 25, 1973

Citation: 475 F.2d 65

Docket Number: 72-1005

Court Abbreviation: 1st Cir.