In the Matter of

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 applica-
tion for second-class entry.
H.E. Docket No. 4/233

FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION

          A previous recommendation in this case was made on March 21, 1957, based on consideration of one issue (December, 1956) of the magazine "Rage", and proposed findings and conclusions submitted by counsel for the parties. By order dated May 7, 1957, the General Counsel set aside the prior recommendation and granted a re-hearing based upon a showing by the Respondent that issues of the magazine for February, April and June, 1957, were published, and that these copies of the magazine were pertinent to the questions involved in this proceeding. It was later stipulated by the parties that there also might be considered in reaching a conclusion in this matter the August and October, 1957, issues of "Rage".

          The parties have filed proposed findings of fact, conclusions of law and supporting reasons.

          As was the case before, this matter is submitted for decision on stipulated facts and exhibits, the stipulations being filed on February 26 and June 19, 1957. The proposed findings and conclusions filed by the parties in the earlier case are considered as having been submitted in connection with the reopened proceeding.

          As recited in the stipulation on June 19, 1957, the sole issue in this matter is whether the magazine "Rage" is dominated by pictures and text of an obscene, lewd, lascivious and indecent character so as to render it nonmailable under the provisions of Section 1461 of Title 18, United States Code, thereby disqualifying it from entry into the mails under the provisions of Section 224 and 226 of Title 39, United States Code.

          The Supreme Court said recently (June 27, 1957) that "Obscene material is material which deals with sex in a manner appealing to prurient interest." (Roth v. U. S., and Alberts v. State of California, Nos. 582 and 61, October term, 1956). In the Roth case the defendant was convicted for sending obscene material through the mails in violation of 18 U. S. Code 1461. The Court also approved the trial judge's instruction to the jury in which he said: "The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts." The standard or test of obscenity enunciated by the Supreme Court in this case is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." (citing Walker v. Popenoe, 80 U. S. App. D.C. 129, 149 F.(2d) 511; Parmelee v. U. S., 72 App. D.C. 203, 113 F.(2d) 729; U. S. v. Levine, 83 F.(2d) 156; and numerous other cases.)

          I adhere to the conclusion previously reached with respect to the December, 1956, issue.

          In the February, 1957, issue of the publication there are fourteen articles, some of which are narrative, and others of which consist primarily of photographs.

          The item entitled "I Dueled Death on the Isle of Nudes" is a story of a visit to a nudist colony on an island. The test describes persons walking around in the nude, swimming and even making sexual advances. It is this latter activity which precipitates a duel around which the story is centered. This article is illustrated with several pictures of completely nude women either lying on a beach or playing ball in the surf.

          There is a story entitled "The Queer Triangle Murder", telling of a girl who is killed because she makes a date with a boy who is the friend of a male sex pervert. This story is illustrated with a drawing of two girls being attacked by two men in a wooded area. The clothing of the girls is torn and it appears that they are about to be ravaged or murdered, or both.

          The title of another article, "I Run a Girlie - Show Racket," as Petitioner's counsel agrees, is a misnomer to some extent because while the title and the illustration accompanying the article suggest that the story concerns girls, in reality, it concerns gamblers and gambling at traveling shows. The illustration depicts girls in very scanty attire apparently enticing men to come into a tent.

           The article "Is A Woman Making You Impotent?" deals entirely with physical and psychological ways in which women render their husbands incapable of performing the sex act. The illustration accompanying this article shows a woman in a bathing suit in the act of stabbing a man who is nude above the waist. The story begins by telling of a man who awoke to find his wife "holding the knife directly at his testicles".

          "The Courtesan Who Ran For President" is about Victoria C. Woodhull who twice ran for President of the United States. This story dwells at length on the subject's advocacy of free love, and it relates the fact that she became the mistress of Henry Ward Beecher.

          "Whatever Happened to Simone Silva", "Lazy Day With Lynn" and "Burlesque's New Stripper Stars" are picture stories consisting of pictures of young girls in various stages of undress. In some of the pictures, the girls' breasts and various parts of their bodies are entirely exposed and in some of them the poses are sexually suggestive and provocative.

          Of the fourteen articles in this issue, therefore, there are eight which because of their texts, pictures, illustrations or all of them appeal to prurient interest. I find the February issue of "Rage" to be obscene.

          In the April issue, the articles "The Lady and the Gorilla", "How Girl Gangs Fight and Love", "Nakedness", "Who is the Girl Waiting At a Bus Stop", "Inside a House of Sin" and "France's Newest Sexy Starlets" are all of such character as to give this issue a dominant effect of obscenity.

          "The Lady and the Gorilla" is illustrated with a picture of a girl who appears to be half nude and half clad in a gorilla costume, and it begins with statements as to the way in which being in Africa is supposed to affect white women. Each instance related deals with sex or has sexual overtones. "How the Girl Gangs Fight and Love" tells sadistically of the kickings, cuttings and beatings that take place in gang fights, and the author tells how "one of the girls, sprawled at a table, gave me a 14 carat come-on."

          "Nakedness: The Greatest Sex Fear" discusses several alleged causes of the fear of nakedness, and there are allusions to homosexuality and sexual inadequacy. The story is illustrated with a picture of a naked woman seated with her left side and part of her back to the camera, and her left breast plainly visible.

          The remainder of the items are picture articles in which scantily attired girls, bare parts of the female anatomy, provocative postures, and prostitution are featured.-

          In the June, 1957, issue of "Rage" there is the story of "China's Cut Throat Pirate Queen". This story starts with the following description:

                    "Sometimes she wears a skin-hugging skirt through which her body tugs in sensuous perfection. Other times she sports black high boots over which are abbreviated silk shorts. Above that, she has no covering at all, revealing to anybody who cares to look, a full and commanding bosom.* * *"

          Through the remainder of the story of piracy there are frequent references to the physical attractions of the woman, and mention is made of her intimacies with members of her gang.

          There is an article entitled "Here's the Real Reason Why Men Hate Women". It purports to show that most sex offenses stem from a lack of maternal affection, but the story consists, in the main, of giving the details of one rape and murder after another.

          In a similar vein, is the story "KILL! KILL! KILL!" which relates a series of sex atrocities committed by a French criminal named Bonnot.

          In this issue, also, are articles entitled "The Great Bosom Hoax", dealing with steps taken by women to beautify themselves, but showing pictures of a nude or sketchily clad woman undergoing various sorts of beauty treatments; "Whatever Happened to Lili St. Cyr," showing a picture of the subject, partially covered by a towel, stepping out of a tub; and "The Steno Who Was 'Too Darn Hot'" and "Las Vegas' Flaming Chorus Girl', which are nothing but vehicles for the presentation of pictures of girls in various provocative poses in different degrees of undress.

          This issue of the magazine I find to be of such character as to be erotically and lustfully stimulating in its dominant effect, and, therefore, obscene.

          The picture articles in the August, 1957, issue of "Rage" are called "The Most Beautiful Model in the World: and "Burlesque' Bosom Queen". As in previous issues, these articles consist of groups of pictures of curvaceous females whose clothing is practically nil. The girls are so posed that attention is focused on their breasts, which in some photographs are completely bare, or their buttocks, or their vaginal areas. In short, very little is left to the reader's imagination. There is also, on page 6 of this issue, a picture of a girl who is designated "this issue's pin-up queen". This girl appears to wear brief panties and, in addition, she has on a filmy, waist-length gown through which the nipples of her breasts may be seen.

          There is an article entitled "Death Wears A Negilee" in which a woman visitor in a small town forms an adulterous relationship with a young man who is a clerk in a grocery store. The young man, believing the woman to be single, wants to marry her and, apparently, an argument and fight ensue, and she kills him. This story carried a full page picture of a woman who has an expression of terror on her face and who is wearing a brassiere and slip.

          One feature of this issue is a cartoon section called "Television Trends". Each one of them portrays a woman of extraordinary breast proportions, or the text suggests that the female performers get their employment by yielding sexually to the sponsors, and there is one which indicates that there is some activity taking place in a cage at a zoo which would be unfit to be seen by the television audience.

          There is another story entitled "Sex Is My Business" purporting to be an account of the way in which prostitutes live as illustrated by the account of an average night as told by a prostitute. The subject tells of the amount of money she makes in a year, the number of "dates" she had to have in order to get that much money, she tells of her husband getting her into the house in which she stays, and about picking up a man on the street and taking him to the house. This story is illustrated with a picture of a dissolute looking woman standing in an ungainly position at a bar, holding a cigarette in one hand and a drink in the other. She is obviously posed to represent the prostitute concerning whom the story is written.

          The articles in this issue which are regarded as obscene are in the minority, numerically speaking. However, because these items are so brazen in the depiction of obscenity, it is my view that they form the dominant effect of this issue. This statement is particularly applicable to the article entitled "Sex Is My Business".

          Certainly, the community standards of decency and morality will not permit to be condoned, and would be outraged by, the general circulation of a publication containing a discourse in which prostitution is so baldly presented --- and even made to appear attractive. Thus, there is for application the holding of the court in the case of Besig v. U. S., 208 F.(2d) 142, that "8 * * * neither the number of 'objectionable" passages nor the proportion they bear to the whole book are controlling." I find that the August, 1957, issue of the subject publication is obscene in its dominant effect.

          In the October issue of "Rage", the first article is entitled "I Battled Man-Eating Dragons". Most of this story is centered on the lustful craving of a native man for a native girl who is protected by a white man, all of whom escape in a canoe when the Japanese attack the Netherlands East Indies.

          There is also a story called "The Killer in Wolf-Skins" recounting the rapings and killings committed by a gang of men led by a woman in France in the early 1800's. The woman, who is a countess, is partly described thusly: "Though she had a tendency to be plump, her figure was provocative. She wore well her low-cut gowns which left little to the imagination." This story is illustrated with a picture of a man and a woman, both clad in rags which reveal much of their torsos, tied to stakes at which they are about to be burned by a savage-looking gang.

          Another story in the October issue is entitled "The G. I. and the Stripper". The illustration accompanying this story shows a young girl in a wild dance, wearing small cups which only partially cover her breasts, and a low waist band from which pieces of cloth are hung. Her dance is described in suggestive language, as, for example, "A great cheer arose as she discarded her bra and her young breasts swayed." This story continues with the young girl's meeting an AWOL soldier and their criminal activities until the time of their capture.

          "Are You a Bosom Neurotic?" is the title of another story. The theme of this story is that men have made a fetish of the female breast, and the story is illustrated with pictures of performers, past and present-day, with emphasis placed on their breasts. The writer concludes that the cause of this male preoccupation is a subconscious desire to return to maternal protection.

          Another article, "Where Is This Man?" tells of a male resident of Long Island who took pictures in his apartment in which "nude teen-age girls pranced through a wide variety of sex acts, in the most obscene sequences officers had ever viewed." The man's apartment burned, his films were discovered, but the man disappeared and has not been located.

          There is a cartoon sequence entitled "Sex Rears Its Funny Head" with sex being the underlying theme of the series, and there is the usual collection of pictures entitled, this time, "The Most Beautiful Girl In Paris". Again, there are pictures of the shapely young girl in varying degrees of undress and posed in different provocative ways with different parts of her body exposed. There is, also, on page 6 of this issue the "pin-up queen" --- clad, if this is the proper word, only in a bikini bathing suit.

          All of these items, considered and weighed against the remainder of the contents of this issue, lead to the conclusion that the dominant effect of this issue is that of obscenity.

          In reaching the conclusion that the issues of this publication beginning with February, 1957, are obscene, the entire contents of the magazine have been measured by the standard established by the court in U. S. v. Levine, 83 F.(2d) 156, that is, the likelihood that the publication will so much arouse the salacity of the reader into whose hands it may come as to outweigh any literary, scientific or other merits it may have.

          There is one other feature of this magazine which should be noted, and that is the item which appears on page 4 of every issue. This item is called "In the Next Issue of Rage." In every issue of "Rage", without a single exception, the reader is shown the picture of a nude or nearly nude girl, and he is lead to believe in glowing and sexually suggestive language that he may expect "striking", "intimate", "daring", or "provocative:, pictures in quantity of the photographed girl in the next succeeding issue. The conclusion is inescapable that these photographs, as well as other pictures, cartoons and drawings, are placed in the magazines "wholly for the purpose of profitably pandering to the lewd and lascivious" --- a practice which was condemned by the court in Lynch v. U. S., 285 Fed. 162.

Petitioner has proposed findings of fact which may be summarized as follows:

            1. Petitioner is organized and doing
business under and by virtue of the laws of
the state of Connecticut , with an editorial office
in New York, New York.

            2. Petitioner filed an application for
entry of "Rage" into the mails as second-class
matter, together with a letter from the American
News Company of New York agreeing to take 300,000
copies of each issue of the magazine, retaining
the right to return unsold copies.

            3. The Respondent notified the Petitioner
on October 9, 1956, that it was proposed to deny
the application for second-class entry because
(1) the publication is nonmailable, and (2) the
publication does not have a legitimate list of
subscribers.

            4. The Petitioner subsequently established
to the satisfaction of the Respondent that the
publication does have a legitimate list of
subscribers.

            5. That the Hearing Officer found the
December, 1956, issue not to be obscene; not to
be composed wholly for the purpose of profitably
pandering to the lewd and lascivious; and to be
eligible for entry into the mails as second-class
matter. The Hearing Officer recommended that the
application filed by Petitioner be granted.

            6. That application was made by Respondent
for a continuance of the date for filing excep-
tions to the Hearing Officer's Report and Recom-
mendation because a motion to reopen this pro-
ceeding was being filed with the General Counsel.

            7. The date for filing said exception was
indefinitely postponed.

            8. The hearing was reopened for the receipt
of additional evidence at the order of the General
Counsel.

            9. At the reopened phase of the hearing the
Respondent had the burden of proof to show (1)
that the Hearing Officer's original recommendation
was erroneous, and (2) that the additional evidence
overcame the presumption that once the character of
a publication is such that the publication is found
to be entitled to the second-class privilege, it
will continue to be maintained substantially in
similar character.

            10. That the December, 1956, issue of "Rage"
is not nonmailable under the provisions of Section
1461, Title 18, United States Code.

            11. That the issues of "Rage" subsequent to
the issue of December, 1956, are not dominated by
pictures and text of an obscene, lewd, lascivious
and indecent character within the definitions set
out in 18 U. S. Code 1461 and Sections 124-31,
Postal Manual.

          I adopt the first nine of the foregoing proposed findings of fact submitted by the Petitioner. With respect to the ninth proposed finding, attention is invited to what is believed to be an erroneous assumption on the part of the Petitioner. It would appear from a reading of this ninth proposed finding of fact that the Petitioner presupposes that the original recommendation of the Hearing Officer constituted a final determination of this matter insofar as the December, 1956, issue of the publication is concerned. This assumption, of course, is inaccurate because the Hearing Office has no authority to make any final determination of the merits of a proceeding, such power being reserved exclusively to the Postmaster General or such person as may be duly designated by him. (Rules of Practice 201.40(n)). Thus, while it is possible that the original recommendation made by the Hearing Officer might be adopted as the Departmental finding, it is also possible that the views of the officer having authority to make final Departmental disposition of the matter may differ with those of the Hearing Officer. Thus, I agree with the Petitioner that the Respondent had the burden of proof as stated, but as indicated, in my view the Respondent sustained and carried that burden of proof with respect to those issues of "Rage" subsequent to December, 1956.

          Concerning the tenth proposed finding of fact submitted by the Petitioner, I adopt it to the extent indicated in my original report dated March 21, 1957, which report is incorporated herein by reference.

          For the reasons previously set forth, the eleventh proposed finding of fact of the Petitioner is denied.

          For this first proposed conclusion of law, the Petitioner submits that none of the issues of "Rage" is nonmailable and, therefore, is not violative of 18 U. S. Code 1461. I adopt this conclusion only with respect to the December, 1956, issue of the publication. For reasons heretofore given, I deny this conclusion as to the remainder of the issues of the magazine.

          The second proposed conclusion of law of the Petitioner is that the last five issues of the publication "are not found to overcome the presumption that once the character of a publication is found to be entitled to second-class entry, it will continue to be maintained substantially in a similar character."

           With regard to this proposed conclusion of law, as was true with the ninth proposed finding of fact, it stems from the erroneous assumption that the character of the magazine had been finally established. This is not the case because no final determination of this question has been made by the Department. The Hearing Officer's conclusion stated in the report of March 2, 1957, that the December, 1956, issue of this magazine is mailable was only a recommendation and is no more final than is the conclusion reached herein that the subsequent issues are nonmailable. Neither conclusion will become final and the character of the magazine will not be established insofar as this Department is concerned until a decision has been made by the officer duly designated by the Postmaster General.

          Secondly, it is my view that the character of the magazine changed in the later issues. It should be noted parenthetically that only slight change in the character of the publication would have been necessary for me to have concluded that the magazine was nonmailable. In my view, the December, 1956, issue was very close t the thin borderline which separates the nonmailable from the mailable, and the conclusion of mailability was reached by giving the publisher the fullest benefit of the presumption that he was engaged in the publication of a mailable periodical. This presumption has been overcome with the receipt and consideration of the additional evidence and my adherence to my conclusion is not without misgivings, especially when this issue of the magazine is viewed against the background of the total effect of all of the issues. For, example, in the February, April and June, 1957, issues, there are more photographs of nude and semi-nude females and some of the photographs are more provocative, revealing and sexually suggestive than those contained in the first issue. The number of articles in these issues which are regarded as obscene outweigh quantitatively and qualitatively those articles on the first issue which might be regarded as mailable. Furthermore, in the August, 1957, issue, while there are other portions which support the conclusion reached, I would be strongly persuaded to hold the magazine obscene solely upon the basis of the article entitled "Sex Is My Business", related by the whore. Similarly, in the October issue, the general character of the magazine, including the stories, the pictures, cartoons and drawings has a general overtone of salacity and indecency and constitutes an "appeal to the erotic interest" deplored and condemned by Mr. Chief Justice Warren in the Roth case, supra.

           It follows from what has been said that the Petitioner's third proposed conclusion of law, namely; that the December, 1956, issue of "Rage" is mailable and therefore the application for second-class entry should be granted, is denied.

          The Supreme Court of the United States has held that if a newspaper which has been accorded second-class privileges so frequently publishes nonmailable matter as to justify the presumption that it will continue to do so, the Postmaster General may revoke these privileges, not only as to the particular issues containing such matter, but also as to future issues, subject to the publisher's right to secure a renewal upon submission of a proper application and proof that the paper will conform to the law. (U. S. ex rel. Milwaukee Social Democrat Publishing Co. v. Burleson, 255 U. S. 407) Based on a review of the record of this proceeding, including a reading of the entire contents of the issues of the magazine involved, the proposed findings, conclusions and supporting reasons submitted by the parties, and various decisions of the courts, I find (1) that the February, April, June, August and October, 1957, issues of "Rage": magazine are nonmailable matter within the meaning of the provisions of Section 1461, Title 18, United States Code, and are not entitled to entry into the mails as second-class matter in accordance with the provisions of Sections 224 and 226 of Title 39, United States Code. I, therefore, recommend that the proposed denial of the Petitioner's application for entry of the magazine "Rage" into the mails as second-class matter be made final.

William A. Duvall
Hearing Officer