In the Matter of Petition by

ARNOLD MAGAZINES, INC.

publishers of "Rage" Magazine, December, 1956 issue, for order
to show cause why application for second class entry should
not be granted and for hearing before denial of application
for second class entry.

H.E. Docket No. 4/233

March 21, 1957

William A. Duvall Hearing Officer.

POST OFFICE DEPARTMENT, WASHINGTON, D.C.

FINDINGS OF FACT, CONCLUSION OF LAW AND RECOMMENDATION

By agreement of the parties to the proceeding, this matter is to be decided upon the basis of certain facts and exhibits recited and described in a stipulation filed on February 26, 1957.

Paragraphs 2 and 3 of the stipulation set forth the preliminary steps by which this proceeding originated.

On October 18, 1956, Petitioner filed its petition asking, in substance, (1) for a hearing on the question as to whether the publication "RAGE" is obscene within the meaning of 18 U. S. Code 1461; (2) that the proposed denial of second class privileges for said publication be reversed; and (3) that its application for second class entry of said publication be granted.

A show cause order was issued directed to the Director, Division of Mail Classification, and an answer on behalf of that official to the petition was duly filed.

The exhibits in the case are as follows:

Petitioner's Exhibits

1. POD Form 3501 - Application for Second-Class Mail Privileges.

2. Petition.

3. December, 1956, issue of "Rage."

Respondent's Exhibits

1. Notice, dated October 9, 1956, to Petitioner of proposed denial of second-class mail privileges for the publication "Rage."

2. Respondent's answer to the petition.

Petitioner has also submitted a POD Form 3501 showing the number of copies of the publication actually sold by dealers. This statement establishes to the satisfaction of the Director, Division of Mail Classification that the publication has a legitimate list of subscribers.

The issue in this case is whether the December, 1956, issue of "Rage" is of such an obscene, lewd, lascivious and indecent character as to render it nonmailable under 18 U. S. Code 1461, thereby making it ineligible for entry into the mails as second-class matter pursuant to 39 U. S. Code 224 and 226.

In order to resolve this issue there must be applied certain standards and criteria established in various court decisions. There are many cases dealing with the subject of obscenity but it is believed that the following excerpts provide a sufficient basis for the reaching of the required conclusions in this case:

"The determining question is, in each case, whether a publication, taken as a whole, has a libidinous effect" (Parmelee v. U. S., 113 F.(2d) 729, 736-7).

"The standard must be the likelihood that the work will so much arouse the salacity of the reader to whom it is sent as to outweigh any literary, scientific, or other merits it may have in that reader's hands" (U. S. v. Levine, 83 F.(2d) 156, 158).

Furthermore, under the Parmelee case, supra, page 736, an attempt must be made to ascertain the intent of the publisher and consideration must be given to that intent. (See also Lynch v. U. S., 285 Fed. 162).

In order to reach a conclusion upon which to base a recommendation with respect to the granting or denial of the publisher's application for second-class entry of this magazine I have read the entire contents thereof. In his proposed findings of fact, conclusions of law and reasons in support thereof, counsel for Petitioner has included an analysis of the contents of the magazines. This analysis is incorporated herein by reference, and, except as hereinafter pointed out, I concur in the characterization of the text, photographs, cartoons and advertisements as set forth in the Petitioner's proposed findings.

There are ten narrative articles and two articles told largely by means of photographs. Of the ten narrative articles, there are eight which, although in my view totally lack literary or scientific merit, could not be regarded as obscene or indecent. It is true that some of these eight articles are sordid such as, for example, the article entitled "The Burlesque Dancer Murder Case" but no publication may be barred from the second-class privilege solely because of sordidness. Again, the article about the slaughter of horses in "I Saw Africa's Bloodiest Rite" is revolting, but this quality, alone, is violative of no statute.

If the article entitled "I Played Suburbia's Newest Sex Game" and the picture-story "Spangled Sequin," were considered by me as to whether they are obscene, and, if they stood alone, I would seriously question their mailability. That question, however, is not presented in this proceeding. The publication consists of 68 pages, including front and back covers, and those articles, which might be held to be objectionable under the statute in question and applicable court decisions, comprise only 9 pages.

I have read, both in the magazine and in Respondent's proposed findings and conclusions, the excerpts quoted by the Respondent, and I have seen the pictures, cartoons and advertisements to which he refers. I am also aware of the holding of the Court of Appeals for the Ninth Circuit in Besig v. U. S., (208 F.(2d) 143, 146), that a judgment as to whether a book or publication is obscene cannot be predicated on the basis of a purely quantitative evaluation of the contents. In my view, however, the sentences and phrases quoted by the Respondent and the pictures, cartoons and advertisements referred to by him, when weighed against the contents of the whole magazine - either on a quantitative or qualitative basis or both - do not establish the dominant effect of this publication.

Having this view of the matter, I make the following findings of fact, conclusion of law and recommendation.

FINDINGS OF FACT

1. The December, 1956, issue of the publication "Rage" is not, in its dominant effect, obscene, lewd, lascivious or indecent, within the intendment of 18 U. S. Code 1461.

2. The contents of the magazine do not indicate that it is so composed by the publisher "wholly for the purpose of profitably pandering to the lewd and lascivious."

CONCLUSION OF LAW

1. The December, 1956, issue of the publication "Rage" is not nonmailable matter under 18 U. S. Code 1461, and it is therefore entitled to entry into the mails as second-class matter in accordance with the provisions of 39 U. S. Code 224 and 226.

RECOMMENDATION

It is recommended that the proposed denial of the application for entry into the mails of the publication "Rage" as second-class matter be reversed, and that said application be granted.

/s/