Cancellation of the 14th New York Film Festival’s public showings of In the Realm of the Senses is another reminder of the Federal Government’s vast powers in the field of obscenity—powers easily overlooked in view of the general, though inaccurate, impression that the Supreme Court has returned control of pornography to the states.
The dispute surrounding In the Realm of the Senses involved a Federal law against the importation of obscene material. The Memphis, Tennessee, convictions of Harry Reems and others connected with Deep Throat involved a Federal law against the interstate transportation of obscene material. And the Wichita, Kansas, convictions of Screw’s co-founders involved a Federal law against the mailing of obscene material. (The convictions in the Screw case have since been vacated; it remains to be seen whether the case will be retried.) Still other Federal laws deal with such things as the broadcasting of “obscene, indecent, or profane language,” obscene interstate telephone calls, and the unsolicited mailing of non-obscene but “sexually oriented” material.
The current Federal law against the importation of obscene material— United States Code, Title 19, Section 1305(a)—has been on the books since 1930 (although its predecessors date back to 1842), has survived repeated attacks on its constitutionality (the Supreme Court, for example, upheld it in 1971 and again in 1973), and is still actively being enforced by U.S. Customs.
But what happened to In the Realm of the Senses was far from a typical Customs obscenity case. Indeed, it is the only case of its kind on the record. In the typical case, allegedly obscene material which arrives in the United States from abroad will be “seized” (i.e., detained) by Customs, and a Federal court will then determine whether the material is in fact pornographic. That’s what happened to James Joyce’s Ulysses in the Thirties (not obscene), I am Curious (Yellow) in the Sixties (not obscene), and a hard-core cartoon entitled Sinderella in the early Seventies (obscene). In a related case, Exhibition, one of the films shown in the 13th New York Film Festival (1975), was detained by Customs when it arrived in New York but was quickly released when the U.S. Attorney declined to bring suit to have it declared obscene.
The print of In the Realm of the Senses intended for showing in the 14th New York Film Festival arrived in Los Angeles on September 16, 1976, and was released by Customs and formally “entered” into the United States on September 21. As is frequently the case in Los Angeles, Customs officials did not screen the film before allowing its entry. The print was then sent to New York in time for its scheduled showings at the Film Festival: a press screening on Friday afternoon, October 1, and public showings on Saturday evening, October 2, and Monday evening, October 4.
Customs officials in New York, however, questioned the propriety of the film’s entry in Los Angeles and told the Film Society of Lincoln Center (which sponsors the New York Film Festival) that it could not proceed with the press screening unless Government representatives were in attendance. The audience for the press screening thus included three Treasury agents, a Customs attorney, and Eleanor M. Suske, Chief of Imports Compliance for the New York Customs area.
Following the press screening, Customs advised the Film Society and Anatole Dauman, producer of the film, that, had In the Realm of the Senses entered the United States via New York, Ms. Suske would have detained it and turned the matter over to the U.S. Attorney. Dauman and the Film Society were then told that Customs was exercising its right to recall the film under a Federal regulation which authorizes a “demand [for] the return” of entered merchandise which Customs later “finds … not entitled to admission into the commerce of the United States.” They were also told that the print would be seized if any attempt were made to show it, and it was ominously implied that other legal proceedings might ensue. The threat of seizure continued throughout the next few days and, as a result, the scheduled public showings of In the Realm of the Senses were both canceled. (Another Oshima film, The Ceremony,  was shown instead, and ticket-holders were promised free admission to a screening of the canceled film if and when it was freed.)
On November 1, Dauman, who had refused to surrender the print, filed suit in the U.S. District Court for the Southern District of New York against Fred R. Boyett, Commissioner of Customs for the New York area, Ms. Suske, and the United States.* The lawsuit, supported by various affidavits, contested the validity of Customs’ recall demand (formally called a “Notice of Redelivery”) and sought (a) injunctions preventing Customs and other Government officials “from interfering or threatening to interfere with the exhibition, possession, distribution or transportation of the film” and (b) a judicial declaration that In the Realm of the Senses is not obscene.
On November 8, the U.S. Attorney’s office filed an affidavit that announced, to everyone’s surprise, that “[a]ll prior [Customs] demands for surrender of the film have, in effect, been countemanded.” Specifically, the affidavit disclosed that the recall demand had been withdrawn with the concurrence of Customs officials in New York, Los Angeles and Washington and would not be reissued, and that Customs would not make any attempt to prevent the importation of additional prints of In the Realm of the Senses. Significantly, the affidavit also disclosed that the U.S. Attorney’s office, which had screened the film, “would decline any request [by Customs] for a forfeiture action” against it—a clear indication that an obscenity proceeding against In the Realm of the Senses would not succeed in court. The Government then moved to dismiss Dauman’s lawsuit as “moot” (i.e., academic).
At a hearing on November 9, Federal District Judge Marvin E. Frankel refused to dismiss Dauman’s case. Characterizing the Customs action against In the Realm of the Senses as “an outrage,” Judge Frankel announced from the bench that he would enjoin Customs from pursuing its recall demand “or from otherwise proceeding against the film in question or prints thereof” under the Federal law against the importation of obscene material. His ruling was, technically, a very narrow one: the procedure followed by Customs was invalid. Thus, he did not decide whether the film is obscene, and his injunction won’t prevent proceedings against it under other Federal obscenity laws (or state and local laws). Technicalities aside, however, Judge Frankel’s ruling is still of immense practical importance; the Customs statute is the only obscenity law which can used to prevent a film from showing anywhere in the United States—and now that won’t happen to In the Realm of the Senses.