H.E. Docket No. 4/202
November 10, 1958
In the Matter of the Petition By )
)
GREENLEAF PUBLISHING CO., ) H.E. Docket No. 4/202
)
for second-class entry of )
"ROGUE FOR MEN" Magazine. )
Ablard, Charles D.
POST OFFICE DEPARTMENT WASHINGTON, D. C.
DEPARTMENTAL DECISION
The Director of the Division of Mail Classification notified the Greenleaf Publishing Company that he proposed to deny its application for a second class permit for its publication Rogue For Men because the august 1956 issue was obscene and thus non-mailable. The petitioner initiated these proceedings by a petition of August 15, 1956, requesting that an order be issued requiring the Director of the Division of Mail Classification to show cause why the proposed denial should not be reversed, requesting a hearing and seeking the issuance of the permit. An order to show cause was issued on August 17, 1956. The respondent Director answered admitting that the magazine satisfied all the other statutory requirements 1/. but alleging that the August and
October 1956 editions of the magazine were obscene and dominated by pictures and text of an obscene, lewd, lascivious and indecent character, and were non-mailable. A supplemental answer was later filed to include the December 1956 and February 1957 issues.
On January 22, 1957, a hearing was held before William A. Duvall, who had been duly appointed as the Hearing Officer. At the hearing the respondent introduced into evidence the documents reflecting the applications and denial of second-class entry which was the basis of this proceeding and, over the objection of the petitioner, documents relating to other denials. The issues in question of the magazine were also introduced into evidence. On March 22, 1957, the Hearing Officer filed findings of fact and conclusions of law and a recommendation to deny the petitioner's application. An appeal was made by the petitioner to the General Counsel and on May 8, 1957, he issued a final Departmental Decision disallowing the petitioner's exceptions and adopting the Hearing Officer's decision.
At the time of the Departmental Decision, there was pending in the U. S. District Court of the District of Columbia an action by the petitioner against the Postmaster General to restrain and enjoin him from refusing to transmit the magazine through the mails at second class rates without affording a hearing. This action had been instituted on August 20, 1956, when the Postmaster General proposed to withhold from dispatch the October 1956 issue of the magazine. The court issued a temporary restraining order and the issue was transmitted through the mails. Following the Departmental Decision, the petitioner filed a supplement to its complaint in the District Court praying that the court decree that the decision and the order was unlawful and invalid and that the Court permanently restrain the Postmaster General from refusing to carry the magazine through the mails at second class rates. During the pendency of this proceeding a stipulation of remand was approved by the court on July 16, 1958, which vacated the Departmental Decision and returned the proceeding to the Department for the filing of a new appeal from the Hearing Officer's report and recommendation and a Departmental Decision by the Judicial Officer under the new Rules of Practice of April 26, 1958. The petitioner filed new exceptions to the Hearing Officer's report and recommendation and the respondent replied to those exceptions on September 23, 1958.
The first exception of the petitioner is to the finding that the issues of the magazine are obscene. Between the decision of the General Counsel and the stipulation of remand the Supreme Court on June 24, 1957, decided U.S. vs. Roth, 354 U.S. 476. The Court held that the criminal obscenity statute, 18 U.S.C. 1461, was not a breach of the first amendment to the Constitution and adopted the following standard for determining obscenity:
"A thing is obscene if, considered as a whole its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex or excretion and if it goes substantially beyond customary limits of candor in description or representation of such matters." 2/
Since Roth, the Court has granted certiorari and reversed per curiam three lower courts which held certain materials to be obscene. The cases are Times Film Corporation v. City of Chicago, 355 U.S. 35, Sunshine Book Co. v. Summerfiled, 355 U.S. 372 and One, Incorporated v. Olesen, 355 U.S. 371. The lower courts which were reversed were the Courts of Appeal of the District of Columbia, the 9th Circuit and the 7th Circuit. In Roth there was no issue as to whether the material the defendant had disseminated was obscene. The sole issue was the constitutionality of the statute. In the three cases subsequent to Roth the material itself has been in issue. Only one of the cases, Sunshine, was decided subsequent to Roth by the lower courts and the Roth standard was applied. Thus it can be assumed that the Supreme Court in reviewing the cases felt that the lower courts had either applied the wrong standard or erred in their application of the Roth standard. The court declined to deliver opinions in any of the three cases but cited only Roth in Sunshine and One and Alberts v. California, a companion case of Roth based on a state prosecution, in Times Film. Two justices dissented from the per curiam in Times Film saying that they believed certiorari should not have been granted.
Evaluation of per curiam opinions has presented serious problems for the bench and bar. 69 Harvard Law Review 707. Failure of the courts to articulate the theory upon which the issues are settled has been criticized even by members of the Supreme Court. Speaking of one per curiam, Mr. Justice Jackson said:
"The Court's one-word decision reverses concurring judgments of three highly respected courts -- the Court of Appeals of New York, the Appellate Division of the Supreme Court, First Department, and the Supreme Court, Special Term, New York County. It cites a single case, the implication being that the cited authority settled the question so fully and plainly that a contrary result could have been reached by the three lower courts only by failure to read or heed it. I think this Court owes those courts and the legal profession something more than a reference to an inapplicable decision. The facts of this case present novel questions that this Court should face and on which it should render a reasoned decision." 3/
The petitioner in his brief says "these decisions make clear that the Supreme Court has adopted the Government's suggestion made on page 34 of its brief in Roth that Section 1461 applies only to "hard-core pornography." I do not believe that this inference can be drawn from the three per curiams. The brief for the United States said:
"the validity of the statute must be judged by this mass of 'hard-core' pornography which, as we shall now show, is its main objective and its major catch."
The brief then went on to describe three categories of non-mailable matter under 1461. In the first category they placed novels such as Henry Miller's "Tropic of Cancer." In the second category they placed border-line entertainment magazines "in the form of magazines running from the slick to the pulp." In the third category they placed "hard-core" pornography. There is no doubt that the petitioner's publication falls into this second category. The brief described the second category as follows:
"there is an unlimited range of poses from the 'arty' to the pornographic and it is impossible in the field of photographs to have a clear and sharp line as to what is obscene and what is not." Roth established the "prurient interest" test and in addition requires that the matter go "substantially beyond customary limits of candor in description or representation of such matters." Thus contemporary community standards plays an important part in determining what is or is not obscene.
I do not believe that any of the three decisions since Roth are decisive or controlling on the merits of the issues in this proceeding. However, I do believe they indicate that the Court is looking with increasing disfavor on border-line obscenity cases. Sunshine and One were concerned with publications and the rights of the publishers to use the mails. There was no issue of second-class subsidy. Times Film was an action by the City of Chicago to prohibit the public showing of a motion picture film.
Upon an independent review of the official record of this proceeding including the evidence, the pleadings and the transcript, I conclude that the magazines in question are not obscene. While they are replete with stories concerning sex and pictures of partially nude females I do not believe that they transcend current community standards as required by the Roth test. The toleration point in reading materials becomes more liberalized each year. While Rogue for Men certainly may understandably not be the type reading matter a mother would want her ten year old to read, this is not the standard which is to be applied in determining these questions. 4/ Other more effective sanctions are available at the local level which can meet the problem of morality and the effects of bad reading habits on youth.
The Post Office Department once instituted a proceeding to prohibit Esquire Magazine from obtaining a second class permit. The basis of the proceeding was that the magazine was not of a "public character" as required by the fourth condition of the second class statute5/. It was not alleged as here that the publication was non-mailable. The decision to deny the permit was appealed to the Supreme Court and the Court said:
"The basic value implicit in the requirements of the Fourth condition can be served only by uncensored distribution of literature. From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values. But to withdraw the second-class rate from this publication today because its contents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social or economic views seemed harmful to another official. The validity of the obscenity laws is recognition that the mails may not be used to satisfy all tastes, no matter how perverted. But Congress has left the Postmaster General with no power to prescribe standards for the literature or the art which a mailable periodical disseminates." 6/
The Congress has never attempted to define "public character" and the four technical requirements of the statute remain the only criteria for determining whether a mailable publication is entitled to second class entry. In Esquire the court said:
"it may appear that the information contained in a periodical may not be of a 'public character'. But the power to determine whether a periodical (which is mailable) contains information of 'public character', literature or art does not include the further power to determine whether the contents meet some standard of the public good or welfare."
A re-evaluation by Congress of the type magazine and periodical which it is their desire to subsidize by second class permit would be most beneficial.
Second class privileges were recently denied in the matter of an application for a radio guide publication. The radio station provided the best in classical music and its publication gave information about the station and encouraged listeners. However, it was necessary to deny second class privileges to the publication because it was found to be primarily for advertising purposes. There is no question but that the cultural advantages of such a publication far outweighs that which is offered by Rogue for Men. However, the Congress has failed to elaborate and define what is matter of "public character" and until a policy is established the sole basis for denying entry to a mailable publication must be the four technical requirements of the statute.
Because of the above finding as to the first exception there is no necessity for reaching the issues raised in petitioner's second and third exceptions.
The recommendation of the Hearing Officer is rejected. The Director of the Division of Mail Classification should grant the second class permit to the petitioner.
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1/ Mailable matter of the second class shall embrace all newspapers and other periodical publications which are issued at stated intervals, and as frequently as four times a year and are within the conditions named in sections 225 and 226 of this title. (39 U.S.C. 224) Except as otherwise provided by law, the conditions upon which a publication shall be admitted to the second class are as follows: First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively. Second. It must be issued from a known office of publication. Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications. Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers. Nothing herein contained shall be so construed as to admit to the second class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates. (39 U.S.C. 226)
2/ Roth, Footnote 20, page 487--This language is contained in the Model Penal Code of the American Law Institute Section 207.10 (2).
3/ Brownell v. Singer, 347 U. S. 403 (1954).