In the Matter of the Complaint Against THE FILMSTERS at Burbank, California. P.O.D. Docket No. 1/30; 10/17/58 Ablard, Charles D.
On July 2, 1958, a complaint was issued charging the Respondent with obtaining or attempting to obtain remittances of money through the mails for obscene, lewd, lascivious and indecent motion picture films. On July 16, 1958, the Respondent filed a Demand for a Bill of Particulars and an application for the transfer of the hearing. The Complainant opposed the Bill of Particulars but not the transfer of the hearing. The Complainant petitioned the Judicial Officer to preside at the reception of evidence and make the final Departmental Decision pursuant to Section 201.17 of the Rules of Practice of the Post Office Department. This petition was granted and the Demand for the Bill of Particulars was denied. The hearing was transferred to Los Angeles and held on August 27, 1958. Proposed findings of fact and conclusions of law have been submitted by both parties.
At the hearing the Complainant offered into evidence one reel of 16 mm film (Exhibit D) which bore no title and an issue of the magazine "Gala" (Exhibit B) containing an advertisement of the Respondent. The testimony and test correspondence of Postal Inspector, Harry Simon, provided the balance of the Complainant's case.
The Respondent offered the testimony of the owner and operator of the Respondent concern, Mr. Edward Paramore, a Hollywood "director," who testified that the title of the film in question was "What Men Go For." (Tr. 63). The Respondent offered into evidence a reel of 8 mm film "Fighting Femmes of France" (Exhibit 1) which was the subject of a former proceeding in the Post Office Department (Movie Club Guild, H.E. 5/157) and a subsequent judicial decision by the Southern District of California which reversed the determination of the Post Office Department that the film was obscene. The Respondent contends that that film is substantially similar to the film in question in this proceeding and for that reason the judicial decision is binding and the latter film should not be held to be obscene by the Post Office Department.
"What Men Go For" depicts two scantily clad young "ladies" who are fighting in a bed. There is a tangle of arms and legs and posteriors. There are no exposed pubic regions or breasts. The counsel for the Respondent characterizes these actions as being similar to that done by lady wrestlers on television. About the only similarity is that in the opinion of the undersigned both are gross. But "grossness" is not the test for determining the issues in this proceeding. The Supreme Court in U.S. v. Roth, 354 U.S., 476, set the test for obscenity adopting the language of the Model Penal Code as that which represented the definition as developed by the case law. 1/
I have observed both films. While both films show females fighting there is substantially more sensuality in the film from the former proceeding than in the one at issue here. The latter contains only the fighting scenes plus a shot of two parallel posteriors in a kneeling position at the conclusion. There is nothing sensual or provocative and despite the title attributed to it by its director, I do not believe that it represents "what men go for" when judged by the contemporary standards of present day America. In my opinion, it is not obscene. The Supreme Court defined obscene material as "material having a tendency to excite lustful thoughts." (Footnote 20, Roth, supra.) While I cannot rule out the possibility that this film would have such an affect on some persons I believe that it would so appeal only to the deviate or the child-like mind and not the average member of our national community. It is the latter and not the former which provide the standard. Butler v. Michigan, 352 U.S. 380.
The charge to the jury in Roth which was approved by the Supreme Court instructed:
". . . The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly-wise and sophisticated indifferent and unmoved . . .
"The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach."
Judged by this standard, I do not believe the film meets the test of obscenity.
While obscenity has been held to be of little value to society and among the lowest on the scale of materials with redeeming social importance, the material must meet the test of obscenity before it can be deemed to be beyond the protection of the Constitution. While such materials as were distributed by the Respondent may, in my opinion, also be of little social value, they must meet the test of obscenity before this Department has authority to issue an order.
The first three proposed findings of the Respondent are adopted. All others are rejected.
1/ A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters . . ." (Footnote 20 p. 487, Roth, supra. But see distinctions drawn in dissent at p. 499.)