Kinsey appealed to members of Congress for an amendment to the tariff laws which would permit him to have access to the material impounded by Customs. Then he went to see Cairns, to ask for his help. As Cairns recalled the meeting, “He came to see me about it and said that I had admitted the works of Havelock Ellis and he felt he was entitled to have the material on which Ellis based his studies. I said that may be, but before you came to see me, you had asked Congress to amend the statute to permit you to import hard-core pornography. How can I, as an administrator, say that the statute doesn’t cover you when you have already asked for an amendment which they have refused to grant?”
In any case, the test case served its purpose. The court held that since the material was intended for scientific use, the statute barring pornography did not apply in this case. The ruling did not mean that the court was lowering the bars for importation of pornographic material to everyone who wished to import it into the country. It only meant that the bars were being lowered for the Institute of Sex Research in its investigations.
Cairns considers it no great accomplishment to separate the obscene from the artistic. “I have long been of the view,” he once said, “that any man of letters can tell whether the impulse behind a book is literary or pornographic.”
Once when asked if reading and viewing pornographic material over a long span of years had had any effect on his own morals, Cairns grinned and said, “According to the theory of censorship I should be fairly corrupted by now—but I don’t believe I am. I just find the stuff boring.”
20
OF TOY CANARIES AND PIRATES
One day in 1957 an examiner in the New York Customs Appraiser’s Stores opened a packing case received from Switzerland. He lifted out a small brass object resembling a canary cage. On a tiny swing in the cage sat an extremely lifelike little bird. When the examiner wound a key in the bottom of the cage, the bird threw back its head, opened its beak, and burst into song. It ruffled its feathers and wagged its tail as it trilled its merry little time.
The examiner called to a colleague nearby and said, “Hey, Joe! Come and look at this one.”
He turned the key and they watched the little bird perform. The examiner said, “Cute, isn’t it?”
“If my wife sees it, she’ll want one,” the other examiner replied. “It certainly is beautifully made. How are you going to classify it?”
There was the rub. What was this tiny cage with the singing bird? Was it a toy, dutiable at 50 per cent of its value? Was it a musical instrument, subject to a duty of 35 per cent? Or was it, as the importer claimed, simply a “manufacture of metal,” subject to a duty of 20 per cent?