In the Matter of the Complaint That                         )
                                                                               )
MOVIE CLUB GUILD, and                                       )
JACQUES DU BOIS                                                )
                                                                               )
at                                                                            )
                                                                               )
Burbank, California                                                 )
                                                                               )
(hereinafter called Respondents), are                   )
engaged in conducting a scheme in vio-               )
lation of 39 U.S. Code 4006 (formerly                    )
39 U.S. Code 259a).                                               ) P.O.D. Docket No. 1/281

APPEARANCES:
Ralph B. Manherz, Esq.
Office of the General Counsel
Post Office Department
for the Complainant

Stanley Fleishman, Esq.
1741 Ivar Avenue
Los Angeles, California
for the Respondents

Kelly, Raymond J.

DEPARTMENTAL DECISION

This matter comes before the Judicial Officer of the Post Office Department upon exceptions and brief on appeal filed herein by Respondents on January 6, 1961 from the Initial Decision of the Hearing Examiner dated December 20, 1960.

On August 10, 1960 the complaint was issued alleging that under the names set forth above an enterprise was being conducted through the mails in violation of 39 U.S. Code 259a (now Section 4006). The complaint charged that the Respondents were depositing or causing to be deposited in the mails advertisements giving information as to where, how and from whom obscene, lewd, lascivious and indecent articles, matters, things, devices or substances may be obtained.

A hearing was held in Los Angeles, California on October 4, 1960. The testimony of Postal Inspector Harry J. Simon was received in behalf of the Complainant and various exhibits were produced in support of the complaint. Mr. Edward Paramore testified in behalf of the Respondents and various exhibits were introduced in evidence thorough this witness in Respondents' behalf. Thereafter the parties submitted proposed findings of fact and conclusions of law and from the findings of the Hearing Examiner in his Initial Decision Respondents filed timely appeal on January 6, 1961 noting three exceptions to the decision of the Hearing Examiner as follows:

"1. Respondents except to finding of fact 6, which states that respondents' advertising material creates in the mind of the average person the impression and belief that in response to an order placed for the merchandise sold by the respondents the reader will receive material, which, when considered as a whole, and when measured by contemporary community standards, will appeal to prurient interest.

2. Respondents except to conclusion of law 1, which states that respondents are 'depositing or causing to be deposited in the mails information as to where, how and from whom obscene, lewd, lascivious, indecent, filthy or vile material may be obtained . . . '

3. Respondents except to conclusion of law 2, which states that the material introduced in evidence by respondents to show the level of contemporary community standards does not necessarily serve the purpose for which it was introduced."

Under section 4006 which has been cited above the Respondents are charged with depositing or causing to be deposited in the United States mail information as to where, how or from whom an obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance may be obtained.

There is no allegation in these proceedings that the merchandise which these Respondents offer for sale is obscene. In fact the films were not introduced in evidence. Likewise, it is not alleged that the circulars by which the wares are offered for sale are in themselves obscene. It is charged that the Respondents are depositing or causing to be deposited in the mails information as to where, how or from whom obscene material may be obtained and that their action in this regard violates Section 4006, supra.

The question to be decided in this case is whether the Respondents by the use of language and illustrations in their advertising circulars are creating in the minds of the persons who read them the impression that by making the required remittances they will receive material which when considered as a whole and measured by contemporary community standards will arouse their prurient interest.

The exhibits which were introduced into the record reveal what the Respondents are claiming in their advertisements and the following excerpts from the various exhibits which were pointed out by the Hearing Examiner in his Initial Decision clearly reveal their character. The excerpts from the quoted exhibits follows:

"Exhibit No. Excerpt

1-A-1 'Most Sophisticated Adult Film Available Anywhere]

'***You'll be amazed and delighted at the outstanding quality --- the satisfying action. ('Collectors

Specials' available to the most demanding.)

* * * *

"Exhibit No. Excerpt

'Do not order adult films unless 21 or over.'

2-A-1 'Finest, Most Revealing Nude Movies Available.'

* * * *

'These captivating comedies are most provocative,

ultra-revealing, and usually feature two or three

lovely girls who can act.'

2-A-2 'CONFIDENTIAL FILM LISTING'

(This exhibit carries the 'NOW] Enjoy Dynamic 'Prohibited' BURLESQUE FILMS] photographs of Now, for the first time you can thrill to the out- 14 nude, semi-or standing charms of America's best-known, best- nearly nude developed dancers - in movies branded 'to advanced' females.) (sic) for even sophisticated 'Main Street'

theatres] *** You've never seen dance films like

these] Do not confuse these movies with run-of-

mill 'club merchandise.''

'LOVE GODDESS Featuring Dianne Webber whose grace-

fully, firmly-moulded figure and pert, animated

face have made her one of America's top nude

models. *** In this film, artisitically photo-

graphed in a pagan retreat, she enacts the weird

yet beautiful rites of a mournful goddess, a

passionate woman who must symbolize, yet never

experience, the reality of love.'

'EXCLUSIVE Only the Guild Offers DOUBLE-LENGTH

FEATURETTES Shot the Way You Want --Showing What

You Want]'

2-B-1 'MARSHA -- A Southern Belle who'll ring the bell

(This circular with you] She's a firmer school teacher who carries photo- chucked it all to show her all. In a way, she graphs showing still represents the '3R's (Red headed, racy, all or nearly all Rambunctious]) Provides a real objection lesson.' of the nude bodies of eleven girls.)

2-C-1 'NOW] See Hollywood's Two Most Beautiful Cover

(More pictures of Gals - Hope Hathaway & Sheika Mosher in nude or nearly 'THE BOOBSIE TWINS' nude girls.) * * * *

2-C-1 'YVONNE HOLDEN - Wow] Here's a 5'2" of dark-

(More pictures of haired dynamite] Yvonne possesses more vitality nude or nearly and magnetism than any model we've photographed nude girls.) in months. Her personality comes across with an almost physical impact -- as she performs in her own way, for you]'

2-D-1 'HONEYMOON HELP MEET' A beautiful bride, after

(More pictures of her wedding night, is shocked to find her groom nude girls.) passed out behind the sofa. Quite a party the night before.

'FREDDIE --- a gal who's ready, to show her all for you] This dark-haired, sloe-eyed enchantress treats you to a display of vibrant voluptuousness --- beauty in action.***' 2-H-1 'CUTIE ON A COUCH] A 'Sin-tillating' Summer

Sizzler for unashamed adults]***'"

The issue to be determined as indicated above is whether the average person who reads these statements and similar statements in the other exhibits would have reason to believe that should he place an order with the Respondents' he would receive material the dominant theme of which when considered as a whole and when measured by contemporary community standards appealed to prurient interest.

The advertising matter which the Respondents admits depositing in the mail contains numerous pictures of nude and semi-nude females with erogenous areas of these figures accentuated - further, the language used in these advertisements likewise accentuates the purported obscene nature of the films being offered for sale as quoted above. Indeed, some of the language employed in this advertising material represents by clear implication that at lease some of the films depict acts of sexual intercourse. The advertising likewise holds the films out to be more fully revealing and obscene than depicted by the advertisements themselves. The representations in the advertising clearly offers matter which the remitter is led to believe will be of an obscene nature thus giving the leer that promises obscenity. The advertising is designed for that purpose.

Among the exhibits introduced into evidence by the Respondents were a number which were produced for the purpose of showing the level of contemporary community standards. In connection therewith the Respondents contend that the advertisements promised no more than motion picture films with attractive girls in various stages of undress and that the exhibits introduced by the Respondents show that contemporary community standards today are such that these pictures are well within their scope and hence the promising of such material cannot be held to be a promise of obscene material. In connection with these contentions it must be pointed out that Counsel for the Respondent refuses to recognize the rule relied upon by the Complainant as set forth in his brief and pointed out by the Hearing Examiner in the Initial Decision. Instead, he insists that sanctions may not be imposed for mailing circulars which are not obscene, advertising material which is not obscene.

The Complainant points out in his brief a statement from the United States District Court for the District of Columbia in the recent case of U.S. v. Womack, No. 15749, decided April 14, 1960, which involved a criminal prosecution for advertising and selling obscene matters thorough the mail that:

"The mere fact that some other magazines are not prosecuted or even if they are permitted affirmatively to be circulated, is not admissible in evidence. The jury has to decide whether this series of publications, this material, is or is not obscene. The mere fact that some other material can be picked up on the newsstands, for example, or may be sent through the mails, that is equally bad, or equally good, whichever way you put it, is not evidence."

This conviction was affirmed on January 12, 1961 by the United States Court of Appeals for the District of Columbia which held that the trial Judge was correct in refusing the comparative evidence and that the same was immaterial and of no probative weight in reaching a decision upon this issue. The question was whether the particular photographs, which alone were in issue in that case were obscene and filthy.

The test for obscenity is not a comparison with other publications which may or may not be obscene, Commonwealth of Pennsylvania v. Donaducy, 76 Atlantic 2d 440; cert den. 341 U.S. 949.

Simply stated the contentions of the parties as to what is here involved differs considerably. The Respondents contend that because the Respondents mailed advertising circulars which are not in themselves claimed to be obscene and further that the material which is advertised is not shown in these proceedings to be in itself obscene that the complaint must fail.

On the other hand the Complainant contends that regardless of whether the advertising itself is obscene or even whether or not the advertising furnished to the remitter is in itself obscene if it is determined that the advertising material creates in the mind of the average person the impression and belief that in response to an order placed for the merchandise sold by the Respondents the reader will receive material which when considered as a whole and when measured by contemporary community standards will appeal to prurient interest.

I agree with the Hearing Examiner that it is not necessary to prove conclusively that the advertisements in themselves are obscene or that the material which will be furnished in response to an answer to the advertisements will also be obscene. I hold that it is sufficient if the average person when he reads these statements in the advertisements and looks at the photographs and pictures there depicted would reasonably believe that if he placed an order in answer to the advertisement he would receive material - the dominant theme of which when considered as a whole and when measured by contemporary community standards appeals to prurient interest. The Hearing Examiner correctly found that this must be answered in the affirmative.

The Respondents further contend that the Hearing Examiner could not himself determine contemporary community standards. The contrary view however was expressed by the court in the recent case of Big Table v. Schroeder, U.S.D.C., N.D., Ill., E.D., Civil No. 59 C 1382, decided June 30, 1960, wherein the court stated:

"Under that test (Roth v. U.S., 354 U.S. 476), the implication is that since the trier of the facts in reaching his decision is to apply contemporary community standards, as would an average man, he therefore is presumably regarded as cognizant of these standards without the aid of hearsay opinions and conclusions of others.**** It must be held, in the abscence of a showing to the contrary, that the official to whom the function of trier of fact has been assigned by virtue of the administrative process applied the contemporary standards which he respects as an average member of the community."

See also Klaw v. Schaffer, 151 F.Supp. 534, affd. per curiam 251 F.2d 615.

The Respondents charge herein that the Complainant seeks to impose sanctions against Respondents solely because Respondents mailed advertising circulars which in themselves were unoffending and which advertised constitutionally protected material and it is Respondents' position that sanctions may not be imposed for mailing circulars which are not obscene, advertising material which is not obscene. I do not agree with this contention nor do I agree with Respondents' contention that the courts have declined to follow the rule of U.S. v. Hornick, 229 F2d 120, decided January 20, 1956, United States Court of Appeals, Third Circuit. In the Hornick case, the defendants were convicted under Section 1461, Title 18 U.S.C. of mailing advertisements giving information as to where and how or from whom obscene material might be obtained. The court in its decision pointed out:

"It will be seen that advertising or giving information about any of these nonmailable things, if done by mail, is made a crime in the same fashion as the use of the mails to send any of the prohibited articles."

The court then pointed out the contents of the advertisement sent by mail and continued:

"We have no doubt that the whole tone of both of these advertisements gives the leer that promises the customer some obscene pictures. Indeed, it has been held that under this section the announcement itself is not required on its face to promise obscene material if that is its purpose. But here the represented nature of what the customer is to receive is, we think, too clear for argument.

When the case was presented to the court a great deal of the discussion by counsel on each side had to do with whether the specimens of nude or nearly nude 'art' fell within the description of obscenity. We do no think that matters. As the Seventh Circuit said in DeGignac v. United States, 1902, 113 F. 197,201, certiorari denied 1902, 186 U.S. 482,22 S.Ct. 941, 46 L.Ed. 1266: 'The offense here denounced is the giving of information by mail where obscene matter may be obtained. Any communication by mail which does this is actionable. The gist of the offense is the giving of the information by mail. It is not necessary to aver ownership or possession of the obscene matter.'

As we have already said, information as to where such obscene matter can be obtained shouts loudly from the words used by the advertising of the defendants. We do not think it is necessary that representations made in these advertisements be true. The statute says 'advertisements *** giving information.' The statute does not say that the advertisement must be true or that the information must be accurate. What is forbidden is advertising this kind of stuff by means of the United States mails. We think that the offense of using the mails to give information for obtaining obscene matter is committed even though what is sent in response to the advertisement to the gullible purchasers is as innocent as a Currier and Ives print or a Turner landscape.

It is not, therefore, necessary for us to determine whether these pictures were obscene. The defendants did purport to give information as to where obscene matter could be obtained. That is enough to make them guilty under the statute."

In the Initial Decision the Hearing Examiner referred to the case of United States v. Fugate, U.S.D.C., S.D. of Ohio, Western Division decided September 21, 1956 (Criminal No. 3187), and quoted as follows:

"The gravamen of the charge is using the mails for "giving information as to where and how obscene and indecent pictures (or publications) might be obtained.'

It is argued that this cannot be determined without reference to the subject matter that would be mailed in response to orders placed as a result of the defendant's mailings. Such construction would nullify the provision of the statute which defines an offense as 'every written *** advertisement or notice of any kind, giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles or things may be obtained'.

The question before the Court is whether or not the various exhibits which are the subject of the counts of the indictment in this case are advertisements telling where and how obscene and indecent publications may be obtained, irrespective of what, if anything, the defendant intended to supply in fulfillment of orders. (The court then quotes with approval most of the paragraphs from the above excerpt from the Hornick case which concludes with the words 'Currier and Ives print or a Turner landscape.')"

"The normal reasonable person could draw but one conclusion and that is that obscene and indecent pictures were advertised. It is significant that two of the witnesses were indignant and turned the letters over the postmaster.

* * * * *

Clearly, the intention of the writer was to convey the idea that he has obscene and indecent pictures for sale.

* * * * * *

As previously stated, it is what is advertised and not what is supplied that determines the violation of the statute. It is not likely that one who placed an order in response to defendant's circulars or letters would complain that he placed an order for obscene literature and that he either did not receive anything or that what he did receive was not obscene. If the defendant seeks to take refuge behind such deception, it compounds his culpability rather than excuses it."

In his Initial Decision the Hearing Examiner also quoted from Klaw v. Schaffer, supra as follows:

"Section 259a provides for the imposition of sanctions not only upon persons obtaining or attempting to obtain remittances through the mails for obscene matter, but also upon persons depositing in the mails information about where, how, or from whom it may be obtained. The Hearing Examiner found that the plaintiff deposited or caused to be deposited such information in the mails. While much of the advertising included in the record is obviously addressed to sex deviates, all of it 'gives the leer that promises the customer some obscene pictures.' United States v. Hornick, 3 Cir., 229 F.2d 120, 121. The subject of this finding is the advertising deposited in the mails and not the materials advertised. Therefore, so long as a come on is addressed to the prurient, it makes no difference whether the advertised matter itself is obscene or not. Cf. United States v. Hornick, supra. The finding is amply supported by the evidence, and in itself independently supports the postal stop order."

Respondents further contend that there is no evidence in the record supporting the finding that the advertising material creates in the mind of the average person the impression and belief that in response to an order placed for the merchandise sold by the Respondents the reader will receive material which when considered as a whole and when measured by contemporary community standards will appeal to the prurient interest and suggests therefore that the Hearing Examiner could not himself determine this issue. I cannot agree with these contentions of the Respondents.

The Hearing Examiner in reaching his decision applied contemporary community standards as would an average man. This is entirely proper - Big Table v. Schroeder, supra and Klaw v. Schaffer, supra.

I therefore find upon the record and files in this matter that the Respondents, Movie Club Guild and Jacques Du Bois, are depositing or causing to be deposited in the mails certain advertising circulars which advise persons how they may obtain certain motion picture films; that these circulars create in the mind of the average person the impression and belief that in response to an order placed for the merchandise sold by Respondents the buyer will receive material which, when considered as a whole and when measured by contemporary community standards, will appeal to prurient interest.

I hold that Respondents are depositing or causing to be deposited in the mails information as to where, how, or from whom obscene, lewd, lascivious, indecent, filthy or vile material may be obtained in contravention of the provisions of Section 259a of Title 39, United States Code.

Proposed findings of fact and conclusions of law as submitted by the parties hereto or the substance thereof have been fully considered and they are adopted to the extent herein indicated. Otherwise, such proposals are denied for the reasons stated or for immateriality.

In view of this Departmental Decision appropriate order for the suppression of the unlawful enterprise herein found to be conducted by Respondents will issue forthwith.