Constitutional Law: Is Nothing Obscene?

CONSTITUTIONAL LAW Is Nothing Obscene?

The Swedish film 491 is a sardonic shocker that takes its title from Christ's commandment to forgive sinners "until seventy times seven," or 490 times (Matthew 18:21-22). Apparently suggesting the unforgivable 491st sin, the film depicts a Swedish sociological experiment in which a young bachelor named Krister (connoting Christ) shelters six juvenile delinquents who proceed to wreck his home, sell his furniture, maim themselves, cavort with a prostitute and force her to have inter course with a dog. Assorted scenes evoke other perversions from sodomy to fellatio; the picture ends with Krister's arrest and one boy's suicide.

According to a Swedish psychiatrist, the novel (491) on which the film is based is "probably the best textbook on youth psychiatry ever to have appeared." U.S. and European critics have praised the film. When 491 reached New York in 1964, however, U.S. customs men barred it as an "immoral" import. In upholding the ban, U.S. District Judge Henry N. Graven ruled that 491 met all the Supreme Court tests of obscenity. "To the average person applying contemporary community (national) standards," held Graven, the film's "dominant theme as a whole appeals to the prurient interest." In addition, he said, "it is utterly without redeeming social importance."

Invisible Target. By a vote of 2 to 1, the U.S. Court of Appeals for the Second Circuit has just reversed Graven.

All three judges on the panel that heard the case were admittedly "disgusted" by the film. Yet, after mulling over the Supreme Court's muddled obscenity rules, two of the judges felt forced to clear 491 for U.S. entry.

In stinging dissent, Chief Judge J. Edward Lumbard argued that more than 99% of viewers would consider 491 purely a pitch to prurient interest. Speaking for the majority, though, Judge Leonard Moore saw "redeeming social importance" in the fact that 491 professes "constructive ideas" even while it purveys seamy sex. Moreover, he noted a vital effect of last term's Supreme Court decision in Mishkin v. New York, which apparently discarded the "average person" test of prurient interest. Now the yardstick is "the probable recipient group"—which seems to mean that judges must determine whom the material is aimed at and how it appeals to that particular group—an effect that Moore believes "can never be ascertained with certainty."

Visible Sex. "More objectively," said Moore, "the courts cannot be wholly oblivious to contemporary community standards." While 491 languished in the customs basement, he said, millions of Americans were free to view the Italian film Love and Marriage, which depicts a sultry Sicilian wife cuckolding her husband everywhere from a public lavatory to his own bed as he sleeps on it. Glancing at U.S. bestsellers, Moore wryly noted that Harold Robbins' The Adventurers "introduces a different nymphomaniac every few chapters," while Masters and Johnson's Human Sexual Response describes hundreds of couples' reactions as they "perform their sexual functions, naturally and artificially, under klieg lights."