PARMELEE

v.

UNITED STATES

MILLER, Associate Justice.

The Collector of Customs at the Port of Washington, in the District of Columbia, seized six books, entitled “Nudism in Modern Life,” which had been imported by Maurice Parmelee via the mails, from England. The United States Attorney filed a libel in the court below seeking the con- . fiscation and destruction of the books. The court determined that, they were properly subject ’to libel and should be destroyed. The applicable statute,1 so far as pertinent, reads 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 * * The lower court found as follows :

“4. Upon examination of the book the Court finds nothing in the written text thereof which could be considered obscene or immoral. The case of the Government is predicated upon photographic illustrations which appear at various places in the book.

“5. The illustrations which are asserted to be obscene apparently have no relevancy to the written text at the place in which each of said photographic illustrations is set in the book. The said photographs or illustrations, upon examination, are obscene and within.the condemnation of the statute under the authority of which seizure was made and the libel filed.”

On argument, it was conceded by the government that the text of the books and most of the photographs are unobjectionable. All that remains in dispute, therefore, is whether- the books are objectionable, within the meaning of the statute, because of the presence therein of three or four photographs in which appear full front views of nude female figures, and two photographs in which nude male and female figures appear together. The photographs complained of are uncolored and apparently unretouched and are approximately 2^ x 3% inches in size. The human figures which appear therein are approximately 1% inches in height.

Our decision of the case requires no expression of opinion, judicial or other- ' wise, concerning the merits or demerits of nudity as it may be practiced or professed. The only question before us is whether the book “Nudism in Modern Life” is obscene, in the light of the applicable standard intended to be established by the statute. But obscenity is not a technical term of the law and is not susceptible of exact definition.2 Although the word has been variously defined,3 the test applied in many of the earlier cases was that laid down by *731Lord Chief Justice Cockburn in Regina v. Hicklin,4 as follows: “* * * whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” 5 And the rule was applied to those portions of the book charged to be obscene rather than to the book as a whole.6 But more recently this standard has been repudiated, and for it has been substituted the test that a book must be considered as a whole, in its effect, not upon any particular class, but upon all those whom it is likely to reach.7 Thus considered, obscenity is,‘ as Judge Learned Hand has said, “a function of many variables, and the verdict of the jury is not the conclusion of a syllogism of which they are to find only the minor premiss, but really a small bit of legislation ad hoc, like the standard of care.”8 But in every case it is a question of law for the court to determine, in the first instance, whether the challenged publication can have the tendency attributed to it by the government, and it is only when that determination has been made in the affirmative that the jury is called upon to decide whether it has such a tendency in fact.8a In our opinion, the book “Nudism in Modern Life” cannot reasonably be said to fall within the prohibition of the statute.

Probably the fundamental reason why the word obscene is not susceptible of exact definition is that such intangible moral concepts as it purports to connote, vary in meaning from one period to another.9 It *732is customary to see, now, in the daily newspapers and in the magazines, pictures of modeled male and female underwear which might have been shocking to readers of an earlier era. An age accustomed to the elaborate bathing costumes of forty years ago might have considered obscene the present-day beach costume of halters and trunks. But it is also true that the present age might regard those of 1900 as even more obscene.10

With such considerations in mind, perhaps the most useful definition of obscene is that suggested in the case of United States v. Kennerley,11 i. e., that it indicates “the present critical point in the compromise between candor and shame at which the community may have arrived here and now.” But when we attempt to locate that critical point in the situation of the present case, we find nothing in the record to guide us except the book itself. The question is a difficult one, as to which the expert opinions of psychologists and sociologists would seem to be helpful if not necessary. Assumptions to the contrary which appear in some of the earlier cases,12 reveal the profound ignorance of psychology and sociology13 which prevailed generally, when those opinions were written. More recently, in the cases and textbooks, the desirability and pertinence of such evidence has been suggested.14 Lacking such assistance in the present case, we can compensate for it in some measure by noticing, judicially, evidence which is thus available to us.

It cannot be assumed that nudity is obscene per se and under all circumstances. Even the application of the narrowest rule would not justify such an assumption. And, from the teachings of psychology15 and sociology,16 we know that the contrary *734view is held by social scientists.17

Nudity in art has'long been recognized as the reverse of obscene.18 Art galleries and art catalogues contain many nudes, ancient and modern. Even such a conservative source book as Encyclopaedia Britannica, contains nudes, full front view, male and female, and nude males and females pictured together and in physical contact.19

The use of nude figures and photographs in medical treatises and textbooks is also commonly practiced today. It was conceded on argument that this, also, constitutes an exception to the earlier prohibition. But this was not always true. In the earlier periods of medical history, censorship of scientific investigation was so restrictive that anatomical drawings alleged to represent the human body were made from studies of animals or upon a basis of pure hypothesis.20 Later, as indicated by such *735cases as Regina v. Hicklin (1868) 21 and People v. Muller (1884),22 the old censorship was relaxed to permit the use of such figures and photographs, provided the textbooks and treatises in which they appeared were restricted to use among practitioners and students.23 No reasonable person at the present, time would suggest even that limitation upon the circulation and use of medical texts, treatises and journals. In many homes such books can be found today ; in fact standard dictionaries, generally, contain anatomical illustrations. It is apparent, therefore, that civilization has advanced far enough, at last, to permit picturization of the human body for scientific and educational purposes. That fact is decisive of the present case. The picturization here challenged has been used in the libeled book to accompany an honest, sincere, scientific and educational study and exposition of a sociological phenomenon and is, in our opinion, clearly permitted by present-day concepts of propriety.24 There is, perhaps, as great or greater need for freedom of scientific research and exposition in this field as in any other.25 And, at this point, it may be well to repeat that the *736question is not whether nudity in practice is justifiable or desirable. All would agree that cancer, leprosy, and syphilis are highly undesirable; still, it is recognized, generally, by normal, intelligent persons, that there is need for scientific study, exposition and picturization of their manifestations.26

The statute involved in the present •case was interpreted in United States v. One Book Entitled Ulysses,27 and the decision in that case is equally applicable here. “It is settled,” says the court in the Ulysses case, “that works of physiology, medicine, science, and sex instruction are not within the statute, though to some extent and among some persons they may tend to promote lustful thoughts.” It-should be equally true of works of sociology, as of physiology, medicine and other sciences — to say nothing of general literature and the arts — that “where the presentation, when viewed objectively, is sincere, and the erotic matter is not introduced to promote lust and does not furnish the dominant note of the publication”, the same immunity should apply.28 Cases relied upon by the government, in which publication and distribution were “wholly for the purpose of profitably pandering to the lewd and lascivious” have no relevancy to the present case.29

As it is conceded that the entire *737text of “Nudism in Modern Life” is inoffensive, and that only a few of the twenty-three illustrations are questionable, it is obvious that the latter do not furnish the dominant note of the publication. The determining question is, in each case, whether a publication, taken as a whole, has a libidinous effect.30 In the present case, as in the Ulysses case, the book as a whole is certainly not obscene; here, as there, the book has “such evident truthfulness in its depiction of certain types of humanity, and is so little erotic in its result, that it does not fall within the forbidden class.”31 The author has been known for many years as a well qualified writer in the field of sociology. His textbooks have been long known and used in the colleges and universities of this country. The photographs used in the book here involved have definite relevancy to the written text, even though there are no specific references therein by plate number; and it cannot fairly be said that they were introduced to promote lust or to produce libidinous thoughts. The author expresses his point of view in the preface to the book as follows: “The illustrations depict better than words can describe the natural and normal life, and the beautiful and healthful methods and activities of a gymnosophic society. They portray them as actually applied in several European countries by many thousands of men, women and children of all classes, occupations and conditions, while the text discusses its scientific, hygienic, cultural, aesthetic, ethical and humanitarian significance.”

In fact, it is only because social scientists are still working under conditions of enforced self-deception, similar to those which prevailed in the early days of the medical profession, that the propriety of the present book is questioned. Until phenomena such as those discussed in “Nudism in Modern Life” can be studied on a realistic basis, it is reasonable to expect as great professional inadequacy in the solution of social problems as was true of attempts to solve problems affecting the health of the physical body, prior to the present-day development of medical science. There are still some unexplored areas of medical science, but there are many unexplored areas of social science. If anything, there is needed today greater patience and greater tolerance concerning research in sociology than in medicine; looking to the day when social scientists can advise not only courts, but the people generally; just as physicians, chemists and other physical scientists do today.32 “Democracy today needs the social scientists, both inside and outside the universities. It needs to free them to think with all possible penetration, wherever that thinking may lead. New ideas about human relations and institutional adjustment should be fully, honestly and hospitably analyzed. Society should he most deeply concerned not with ridiculing failures or condemning those whose findings it does not approve, but with aiding that small minority of pioneers whose work in the social studies is reaching up to new levels of scientific achievement. Such persons are to be found in universities, in government and in private life. No greater contribution to the disinterested comprehension of today’s issues could be made than by affording these able men and women full opportunity to make their work genuinely effective.”33 It cannot reasonably be contended that the purpose of the pertinent statute is to prevent scientific research and education. To uphold the decision of the lower court would contribute to just that result. So to interpret it would be to abandon the field, in large measure, to the charlatan and the fakir.34 “The foolish judgments of Lord Eldon about one *738hundred years ago, proscribing the works of Byron and Southey, and the finding by the jury under a charge by Lord Denman that the publication of Shelley’s ‘Queen Mab’ was an indictable offense are a warning to all who have to determine the limits of the field within which authors may exercise themselves.” 35

Reversed.

VINSON, Associate Justice,

dissenting.

The libel of the instant book required the District Court to decide whether it fell within the purview of § 305 of the Tariff Act of 1930.1 The court, sitting without a jury as a judge of both law and fact, found that it did. The only question presented by this appeal is whether the court followed correctly the mandate of Congress.

The relevant provisions of § 305 are-as follows:

“All persons are prohibited from importing into the United States from any foreign country * * * any obscene book, * * picture * * *: Provided further, That the 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 adjudication that such book or matter thus seized is of the character the entry of which is by this section pro-, hibited, it shall be ordered destroyed and' shall be destroyed. * * *

“In any such proceeding any party in interest upon demand may 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.”

The book in the instant case was not admitted under special dispensation of the Secretary. Hence, if obscene within the meaning of the statute, it clearly is subject1' to destruction.

In reviewing the District Court judgment we must first ascertain what connotation is to be given the term obscene as it appears in the statute prohibiting the importation of obscene books. It seems clear, contrary to implications in the majority opinion, that the purity of the author's motive and incidental claim the book may have to literary, scientific or educational value is not decisive.2 Under an English statute prohibiting the sale of obscene *739literature, Cockburn, C. J., stated in Regina v. Hicklin, 3 Q. B. 360, 371 that: “the test of obscenity is this: Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”. In this country we have several so-called federal obscenity statutes. In addition to the Tariff Act provision here invoked, Congress has provided criminal sanctions against importation, transportation by common carrier, or through the mails, of any “obscene, lewd, or lascivious” book.3 With certain modifications the obscenity test of Regina v. Hicklin has been adopted by the Federal Courts in interpreting all of these statutes.4 As modified by these decisions the test might be stated as follows: A book is obscene when in the aggregate sense of the community5 the tendency of the objectionable matter, considered with the book as a whole,6 is to arouse lustful thought.7 That such a test of obscenity is required when the term' is associated in a criminal statute with lcwdness and lasciviousness does not, of course, mean that it is sufficiently broad for the term as it appears in the Tariff Act. Indeed, such a definition seems unduly restrictive of the normal meaning of the term and there is some judicial support for a broader, more inclusive definition.8 Assuming, however, that the stated definition *740is applicable, can we say that the District Court erred in holding this book obscene within the meaning of the statute?

Preliminarily it may be well to recall some of the fundamental principles respecting the function of an appellate court. First of all, it is settled that in ordinary actions an appeal is limited to matters of law.9 In § 305 of the Tariff Act it is provided that “In any such proceeding [libel of an allegedly obscene book] any party in interest upon demand may 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”.10 (Italics supplied) These proceedings partake, therefore, of the nature of ordinary actions at law.- In such actions the verdict of the jury on questions of fact is final and conclusive.11 Where a jury is waived the finding of the court on factual issues is given the same conclusive weight.12 There is in respect to every factual quéstion, however, a preliminary legal question — could reasonable men differ on the factual issue in the light of the proof.13 If so, the question is one for the fact trier. It is settled that whether a book is obscene presents a question of fact, if reasonable men could differ on that question.14 From this it follows that, where there has been a jury verdict (or a finding by the court where a jury is waived) that a book is obscene, an appellate court cannot disturb that determination unless it is prepared to say that no reasonable man could have found as did the jury (or court).

We come then to the question, can it be said that no reasonable man could find the book in question obscene within the meaning of the statute? In this connection it is important to recall that under the decisions a book is obscene if in the aggregate sense of the community the tendency of the questionable matter, considered with the book as a whole, is to arouse lustful .thought. That is to say — the book must be judged by reference to the “standard of the community”.

“Laws of this character 'aré made for society in the aggregate, and not in particular. So, while there may be individuals *741and societies of men and women of peculiar notions or idiosyncrasies, whose moral sense would neither be depraved nor offended by the publication now under consideration, yet the exceptional sensibility, or want of sensibility, of such cannot be allowed as a standard by which its obscenity or indecency is to be tested. Rather is the test, what is the judgment of the aggregate sense of the community reached by it? What is its probable, reasonable effect on the sense of decency, purity, and chastity of society, extending to the family, made up of men and women, young boys and girls,' — •* * * Who is to deem, who is to judge, whether a given publication impinges upon the general sense of decency? * * * The answer to this is, that asserted violations of this statute, * * * must be left to the final arbiter under our system of government, — the courts. The jury, the legally constituted triers of the fact under the constitution, is to pass upon the question of fact. Under our institutions of government the panel of 12 are assumed to be the best and truest exponents of the public judgment of the common sense. Their selection and constitution proceed upon the theory that they most nearly .represent the average intelligence, the common experience and sense, of the vicinage; and these qualifications they are presumed to carry with them into the jury-box, and apply this average judgment to the law and the facts. Sitting as the court does in this case, in the stead of the jury, it may not apply to the facts its own method of analysis or process of reasoning as a judge, but should try to reflect in its findings the common experience, observation, and judgment of the jury of average intelligence.” 15

The majority opinion recognizes that the book in question must be judged by the “community standard” but it suggests in ascertaining “* * * the present critical point in the compromise between candor and shame at which the community may have arrived here and now” 16 that “the expert opinions of psychologists and sociologists would seem to be helpful if not necessary”. While such opinions might be helpful, none appear in the record. Furthermore, it must be remembered that social scientists do not alway reflect, or even intend to reflect, the sentiment of the community. Their opinions would seem relevant only if directed to the question of what the present community conscience is, in reference to a book of this character. It would seem clear that a sociologist’s opinion on the standards of foreign communities (set forth at some length in note 16 of the majority opinion) would be almost entirely irrelevant to determination of what the standard of the community is in this country.

The District Court was of the' view that the book with the pictures in question, was obscene within the meaning of the statute, i. e., that it offended the present community standard. From their opinion it seems clear that the majority of this court would agree that just a few years ago a book of this character containing the pictures in question would unquestionably have been regarded as obscene. Undoubtedly, thought changes in respect to what is obscene. The “judgments of Lord Eldon about one hundred years ago, proscribing the works of Byron and Southey” do not damn him as foolish so much as they support the thesis of the majority opinion that the content of the term “obscene” is geared to the clock. The majority have evidently concluded that the country-wide sense of decency has altered in the past few years to the extent that in the present day only a Rip Van Winkle could regard the book in question as obscene. That I cannot believe. Accepting the premise that “time marches on”, I am nevertheless unable to agree that we have here and now “progressed” to the point where a publication of this character is, beyond the possibility of reasonable difference of opinion, acceptable to the community. This publication, it must be repeated, is to be judged in the light of the present day standard, not that of the world of tomorrow. It is significant in this respect to note that when the governing provision was last re-enacted in 1930, Congress inserted for the first time a proviso indicating that it did not regard the “so-called classics or books of recognized and established literary or scientific merit” as ipso facto without the prohibition against the importation of obscene books.17

I think it important to emphasize that decision of this case calls, not for the individual judge’s personal opinion, but, for a *742gauging of the present community sentiment.18 It seems obvious to me that a court should rarely attempt that task as a matter of law. Certainly, it seems difficult to conclude that no reasonable man could say that this book offends the community standard and, with a District Court finding that the book with its pictures is obscene, I am unable to understand how my brethren can stand on that proposition. I not only think reasonable men might differ on that question which in itself requires an affirmance, I approve the result reached by the District Court that the matter in question is within the prohibition of the statute. I must therefore dissent.