MESKILL, Circuit Judge:
In this
in rem
action, the United States of America appeals from the judgment of the
United States District Court for the Southern District of New York, Brieant,
J.,
holding that thirty-one magazines seized by the United States Customs Service were not “obscene” within the meaning of 19 U.S.C. § 1305(a) (1976 & Supp. IV 1980). The appellant contends that the district court applied an improper standard of review when considering whether the seized materials were legally obscene for purposes of section 1305(a). We agree with the government’s position and therefore reverse and remand this matter to the district court for further proceedings consistent with this opinion.
BACKGROUND
During April of 1982, United States Customs agents confiscated approximately eighty-six allegedly pornographic magazines during several routine inspections at various ports of entry in New York City. The seizure was accomplished pursuant to 19 U.S.C. § 1305(a), which authorizes customs agents to confiscate obscene materials imported into the United States.
The record shows that the magazines were mailed or shipped from Germany and therefore properly subject to seizure under the “importation” language in section 1305(a).
Customs Service regulations provide that articles are not deemed legally “seized” until the Imports Compliance Branch of the Customs Service determines whether the confiscated materials are “obscene” within the meaning of 19 U.S.C. § 1305(a).
See
App. for Appellant at 11-13. The Imports Compliance Branch made the requisite finding on April 26, 1982, and thereafter referred this matter for prosecution to the United States Attorney’s Office for the Southern District of New York.
The government filed its complaint on May 3, 1982, seeking a warrant for the arrest of the seized magazines and a judg
ment that the materials be forfeited, confiscated and destroyed pursuant to 19 U.S.C. § 1805(a). The addressees of the confiscated materials were notified by mail that a bench trial would be held on June 24, 1982 to adjudicate whether the magazines were obscene and thus subject to forfeiture under section 1305(a). Notice of the pendency of this action was published in the New York Law Journal on May 14, 1982.
At trial, Judge Brieant determined that section 1305(a) review could be best accomplished by separating the magazines into two groups, Group A consisting of fifty-five magazines and Group B consisting of the remaining thirty-one publications.
With respect to Group A, the court applied the prevailing “community standards” test and found the fifty-five magazines to be “obscene” within the meaning of 19 U.S.C. § 1305(a).
See Miller v. California,
413 U.S. 15, 30-34, 93 S.Ct. 2607, 2618-2620, 37 L.Ed.2d 419 (1973). There is no appeal from this ruling.
Judge Brieant departed from the standard mode of analysis when considering the Group B materials. The judge ruled that the “community standard” test should not be applied to these materials because:
[I]t is relevant that they are published in the United States and sold locally right within this District. The Court is prepared to find that as to 31 of those articles, Mr. Tappe’s position
[i.e.,
that they are not obscene] is well taken and I might say also, they all appear to be used merchandise. They are not new by any means and therefore apparently not being imported for channels of trade.
The Court believes that because of their current sale within this District that the community standards would not apply to the 31 exhibits which the Court has noted on the schedule.
See
App. for Appellant at 43. Based on these findings, the court concluded that the Group B materials were not obscene and thus not subject to forfeiture under 19 U.S.C. § 1305(a). The government appeals this decision.
DISCUSSION
The federal courts have never been entirely comfortable when asked to determine whether a magazine, film or other material is legally obscene.
See Miller v. California,
413 U.S. 15, 16, 23, 93 S.Ct. 2607, 2610, 2614, 37 L.Ed.2d 419 (1973);
Interstate Circuit, Inc. v. City of Dallas,
390 U.S. 676, 704, 88 S.Ct. 1298, 1313, 20 L.Ed.2d 225 (1968) (Harlan, J., concurring and dissenting). This judicial reticence stems in part from the realization that cultural notions of morality and pornography are continually evolving and do not lend themselves to precise defi-. nition. Further complicating the analysis is a concern for First Amendment freedoms. There is an inevitable tension between the important interest in free expression and the equally compelling objective of shielding the citizenry, particularly children, from pornographic materials that have no redeeming social value. Given these often irreconcilable forces, it is not surprising that the Supreme Court has characterized the obscenity question as “intractable,”
see Miller v. California,
413 U.S. at 16, 93 S.Ct. at 2610 (quoting
Interstate Circuit, Inc. v. City of Dallas,
390 U.S. at 704, 88 S.Ct. at 1313 (Harlan,
J.,
concurring and dissenting)), and has confessed to the “somewhat tortured history of the Court’s obscenity decisions.”
Miller v. California,
413 U.S. at 20, 93 S.Ct. at 2612.
To assist the lower courts in resolving questions of legal obscenity, the Supreme Court has adopted a three-tier standard of review:
The basic guidelines for the trier of fact must be: (a) whether “the average
person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest,
Kois v. Wisconsin, supra,
[408 U.S.] at 230, [92 S.Ct. 2245, 33 L.Ed.2d 312], quoting
Roth v. United States, supra
[354 U.S.] at 489, [77 S.Ct. 1304, 1 L.Ed.2d 1498]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
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MESKILL, Circuit Judge:
In this
in rem
action, the United States of America appeals from the judgment of the
United States District Court for the Southern District of New York, Brieant,
J.,
holding that thirty-one magazines seized by the United States Customs Service were not “obscene” within the meaning of 19 U.S.C. § 1305(a) (1976 & Supp. IV 1980). The appellant contends that the district court applied an improper standard of review when considering whether the seized materials were legally obscene for purposes of section 1305(a). We agree with the government’s position and therefore reverse and remand this matter to the district court for further proceedings consistent with this opinion.
BACKGROUND
During April of 1982, United States Customs agents confiscated approximately eighty-six allegedly pornographic magazines during several routine inspections at various ports of entry in New York City. The seizure was accomplished pursuant to 19 U.S.C. § 1305(a), which authorizes customs agents to confiscate obscene materials imported into the United States.
The record shows that the magazines were mailed or shipped from Germany and therefore properly subject to seizure under the “importation” language in section 1305(a).
Customs Service regulations provide that articles are not deemed legally “seized” until the Imports Compliance Branch of the Customs Service determines whether the confiscated materials are “obscene” within the meaning of 19 U.S.C. § 1305(a).
See
App. for Appellant at 11-13. The Imports Compliance Branch made the requisite finding on April 26, 1982, and thereafter referred this matter for prosecution to the United States Attorney’s Office for the Southern District of New York.
The government filed its complaint on May 3, 1982, seeking a warrant for the arrest of the seized magazines and a judg
ment that the materials be forfeited, confiscated and destroyed pursuant to 19 U.S.C. § 1805(a). The addressees of the confiscated materials were notified by mail that a bench trial would be held on June 24, 1982 to adjudicate whether the magazines were obscene and thus subject to forfeiture under section 1305(a). Notice of the pendency of this action was published in the New York Law Journal on May 14, 1982.
At trial, Judge Brieant determined that section 1305(a) review could be best accomplished by separating the magazines into two groups, Group A consisting of fifty-five magazines and Group B consisting of the remaining thirty-one publications.
With respect to Group A, the court applied the prevailing “community standards” test and found the fifty-five magazines to be “obscene” within the meaning of 19 U.S.C. § 1305(a).
See Miller v. California,
413 U.S. 15, 30-34, 93 S.Ct. 2607, 2618-2620, 37 L.Ed.2d 419 (1973). There is no appeal from this ruling.
Judge Brieant departed from the standard mode of analysis when considering the Group B materials. The judge ruled that the “community standard” test should not be applied to these materials because:
[I]t is relevant that they are published in the United States and sold locally right within this District. The Court is prepared to find that as to 31 of those articles, Mr. Tappe’s position
[i.e.,
that they are not obscene] is well taken and I might say also, they all appear to be used merchandise. They are not new by any means and therefore apparently not being imported for channels of trade.
The Court believes that because of their current sale within this District that the community standards would not apply to the 31 exhibits which the Court has noted on the schedule.
See
App. for Appellant at 43. Based on these findings, the court concluded that the Group B materials were not obscene and thus not subject to forfeiture under 19 U.S.C. § 1305(a). The government appeals this decision.
DISCUSSION
The federal courts have never been entirely comfortable when asked to determine whether a magazine, film or other material is legally obscene.
See Miller v. California,
413 U.S. 15, 16, 23, 93 S.Ct. 2607, 2610, 2614, 37 L.Ed.2d 419 (1973);
Interstate Circuit, Inc. v. City of Dallas,
390 U.S. 676, 704, 88 S.Ct. 1298, 1313, 20 L.Ed.2d 225 (1968) (Harlan, J., concurring and dissenting). This judicial reticence stems in part from the realization that cultural notions of morality and pornography are continually evolving and do not lend themselves to precise defi-. nition. Further complicating the analysis is a concern for First Amendment freedoms. There is an inevitable tension between the important interest in free expression and the equally compelling objective of shielding the citizenry, particularly children, from pornographic materials that have no redeeming social value. Given these often irreconcilable forces, it is not surprising that the Supreme Court has characterized the obscenity question as “intractable,”
see Miller v. California,
413 U.S. at 16, 93 S.Ct. at 2610 (quoting
Interstate Circuit, Inc. v. City of Dallas,
390 U.S. at 704, 88 S.Ct. at 1313 (Harlan,
J.,
concurring and dissenting)), and has confessed to the “somewhat tortured history of the Court’s obscenity decisions.”
Miller v. California,
413 U.S. at 20, 93 S.Ct. at 2612.
To assist the lower courts in resolving questions of legal obscenity, the Supreme Court has adopted a three-tier standard of review:
The basic guidelines for the trier of fact must be: (a) whether “the average
person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest,
Kois v. Wisconsin, supra,
[408 U.S.] at 230, [92 S.Ct. 2245, 33 L.Ed.2d 312], quoting
Roth v. United States, supra
[354 U.S.] at 489, [77 S.Ct. 1304, 1 L.Ed.2d 1498]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Miller v. California,
413 U.S. at 24, 93 S.Ct. at 2614. The
Miller
test has been consistently applied by the federal courts since 1973 to ensure uniformity and predictability in this very difficult area of the law.
See United States v. Various Articles of Obscene Merchandise, Schedule No. 1769,
600 F.2d 394, 400-01 (2d Cir.1979);
One Reel of 35MM Color Motion Picture Film Entitled “Sinderella”,
491 F.2d 956, 957-59 (2d Cir.1974). Although imperfect, it is nonetheless the standard by which we are bound.
Judge Brieant chose a more novel approach to the resolution of the obscenity question when reviewing the thirty-one magazines at issue here. The court took judicial notice that the Group B magazines were “used,” were available for purchase in the local market, and were published in the United States. Citing these considerations, most notably the fact of current sale within the local market, Judge Brieant ruled that it was not necessary to evaluate the Group B magazines against the
Miller
“community standard.” We disagree.
Every
allegedly obscene publication, regardless of whether it is “used,” available for sale locally, or published in the United States, must be reviewed under the
Miller
standards.
See generally United States v. Various Articles of Obscene Merchandise, Schedule No. 2102,
678 F.2d 433, 434-35 (2d Cir.1982) (per curiam);
United States v. One Reel of 35MM Color Motion Picture Film Entitled “Sinderella”
491 F.2d 956, 959 (1974) (“For some reason films quite obviously obscene are being allowed, permitted or tolerated by local law enforcement agencies in certain areas and theatres but the existence of these enclaves does not create a community standard.”). In fact, this Circuit has implicitly rejected the claim that “local availability” is a legally sufficient defense to charges of obscenity.
See United States v. Manarite,
448 F.2d 583, 593 (2d Cir.),
cert. denied,
404 U.S. 947, 92 S.Ct. 298, 30 L.Ed.2d 264 (1971) (“Mere availability of similar material by itself means nothing more than that other persons are engaged in similar activities.”).
We emphasize once again that consistent application of a uniform obscenity standard is the most important vehicle for maintaining judicial integrity in this difficult area of the law. The judgment is reversed and this matter is remanded to the district court for proceedings consistent with this opinion.