(dissenting):

I find fault with the result reached by the majority, because the trial court found as a conclusion of law that:

Although the practice of using expert testimony or other extrinsic evidence to prove obscenity may have been considered a necessity at one time, see Smith v. California, 361 U.S. 147, 165 , 80 S.Ct. 215 , 4 L.Ed.2d 205 (1959) (Frankfurter, J., concurring), the Supreme Court made it clear in two cases decided in 1973 that this was not a requirement. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 , 93 S.Ct. 2628, 2634 , 37 L.Ed.2d 446 (1973), the Court stated:

On the samé day, the Court reaffirmed this view by its decision in Kaplan v. California, 413 U.S. 115, 121 , 93 S.Ct. 2680, 2685 , 37 L.Ed.2d 492 (1973):

The materials here were before the court and thus were sufficient “in themselves for the determination of the question” had they been measured by the standards in Miller v. California; 413 U.S. 15, 25 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973).

In many obscenity cases, a jury is empaneled to act as the factfinder. As such, it is clear that a jury need not have experts to explain to it whether the materials in question are offensive to the average person, applying contemporary community standards. In fact, in this area of the law the Court has pointed out that:

The Supreme Court in Miller v. California, 413 U.S. 15, 25 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973), gave examples of hard core pornography that could constitutionally be pro *813 scribed by state law. 1 It also stated in United States v. 12 200-ft Reels of Super 8mm. Film, 413 U.S. 123, 130 , 93 S.Ct. 2665 , 37 L.Ed.2d 500 (1973), that those examples applied to define obscenity under 19 U.S.C. § 1305 (a), the statute under consideration here.

Here, for example, the materials in United States v. Thirty-Seven Photographs, No. 75-1290, consisted in part of photographs approximately 10 inches by 15 inches in size depicting explicitly both normal and perverted sexual relations. Some of the photographs were taken as such close range that the eyes of the viewer were placed in stark realism within a few feet of the subject matter. It was stipulated that the photographs were imported for a commercial purpose. 402 U.S. 363, 377-78 , 91 S.Ct. 1400 , 28 L.Ed.2d 822 (1971) (Harlan, J., concurring). They were to be included in a book to be named The Kama Sutra of Vatsyayana to candidly describe a large number of sexual positions. Id. at 366 , 91 S.Ct. 1400 , (White, J.).

When the trial was before the court and not the jury, as here, it was the duty of the court to learn for itself what the applicable standards were and to apply them. The statute which the trial court was called upon to interpret was 19 U.S.C. § 1305 (a). The Supreme Court said in United States v. 12 200-ft. Reels of Super 8mm. Film, supra, 413 U.S. at 130, 93 S.Ct. at 2670, that it was prepared to construe section 1305(a) when using the word “obscene” to mean

Thus, if the trial court looked at the exhibits and found them to consist of portrayals of explicit sex, normal or perverted, it became his responsibility to find them proscribed as obscene. He may not escape that duty by saying that there was no evidence that the materials exceeded contemporary community standards. Were the case being tried to a jury, the jury would have to be instructed as to the definition of obscenity. The court would have told the jurors in terms of Miller, supra. But here the judge was the trier of fact. If the photographs met the Miller standard, they were in fact and on their face obscene. It is irrelevant for him to speculate on what a Los Angeles jury might find. He is that Los Angeles jury. The Supreme Court has told him what obscenity consists of in terms of photographs. He is bound to follow it as defined.

The majority deplores that this court is compelled to review “censorship value judgments” as though it is a denigrating responsibility beneath our dignity or unworthy of our effort. Congress establishes our jurisdiction and enacts the laws encompassing our responsibility to uphold the “Constitution and laws of the United States.” The law of obscenity is a part of that responsibility, and I find no reason to deplore that duty. The enforcing of the law of obscenity may no more be disparaged as censorship than the enforcing of the general criminal law may be denounced as repressive. Mr. Justice Brennan responded to this subject in Jacobellis v. Ohio, 378 U.S. 184, 190 , 84 S.Ct. 1676, 1679 , 12 L.Ed.2d 793 (1964), where he said:

I would reverse the judgment of the trial court and remand the case for a new trial.

. Among them: