In the Matter of

"MAN'S DARING ADVENTURES,"
(Star Editions, Inc., 545 Fifth Avenue, New York 17, New York, Successor to Star Publications, Inc.)

And its application for entry as second-class matter at New York, New York

H. E. Docket No. 4/278

FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION

            On September 2, 1955, an application for second-class mail privileges for the magazine "Man's Daring Adventures" was filed on behalf of Star Publications, Inc., by the owner, J. A. Kramer.  (Respondent's Exhibit 1)  In this application it was stated that the publication would be issued bi-monthly.  The first issue of the magazine was for November, 1955.  The next issue of the magazine is dated February, 1956.

            Between the dates of publication of the first two issues of the magazine, Mr. Kramer died.  Star Publications, Inc. subsequently was succeeded by Star Editions, Inc. (Petitioner), of which latter organization Mr. Gerald Miller is the President and Business Manager (Tr. 21).  The third and fourth issues of the publication were for the months of August and October, 1956, respectively.

            On October 22, 1956, the Director, Division of Mail Classification, Bureau of Post Office Operations (hereinafter called the Respondent) notified the Petitioner that the General Counsel for the Post Office Department had advised that the August and October, 1956, issues of the magazines are regarded as nonmailable under Section 124.31, Postal Manual (18 U.S.C. 1461), and that for this reason the Respondent proposed to deny the Petitioner's application for second-class mail privileges for the magazine.  (Respondent's Exhibit 3)  On November 14, 1956, Respondent advised the Petitioner that the proposed denial of the application was based on the further fact that the proposed bi-monthly schedule of publications was not being maintained.  (Respondent's Exhibit 4)

            There was docketed, on January 2, 1957, the Petitioner's request for a hearing and for an order requiring the Respondent to show cause why the proposed denial of second-class mail privileges should not be reversed and the application for such privileges granted.

            The Petitioner asserted that (1) it was entitled to favorable action on its application for second-class entry for the August and October 1956, issues and for the November, 1955, and the February, 1956, issues of "Man's Daring Adventures"; (2) the magazine was regularly issued in accordance with a stated frequency and as frequently as four times a year; (3) the magazine has a legitimate list of subscribers; (4) deposits in the total amount of $15, 784.37 have been made with this Department to cover the conditional deposits required for fourth-class mail; and (5) since its application should be granted, the Department owes the publisher a refund of $12,284.37.  Paragraph 6 of the Petition contained a statement of the legal grounds on which the Petitioner relies.

            The Show Cause Order requested by the Petitioner was issued on January 8, 1957.

            The Respondent answered the Petition and Show Cause Order on January 24, 1957, denying paragraphs (1), (2), and (5) of the Petition.  It was conceded at the hearing that it had been established to the satisfaction of the Respondent that the magazine has a legitimate list of subscribers (Tr. 3).  With respect to the deposits made by Petitioner, Respondent was without information at the time the answer was prepared, but it was admitted that a publication fulfilling all the legal requirements should be granted second-class entry and should receive a refund of deposits made with the postmaster at the times of mailing in excess of the second-class rate of postage.

            The Respondent affirmatively alleged, in substance, that all four issues of the magazine are dominated by pictures and text of an obscene, lewd, lascivious and indecent character so as to render them ineligible for admission to the mails as matter of the second-class under the provisions of Title 39, United States Code, Sections 224 and 226.  It was further alleged that the Petitioner failed to publish the magazine with the required regularity, and that no issue of the magazine has been published since October, 1956.

            The hearing was held before me on April 2, 1957, and both parties were present and represented by counsel.

            By agreement of the parties, the Respondent presented its case first.  There being no objection, the following exhibits, in addition to those referred to, were offered by the Respondent and received as evidence:

Respondent's

Exhibit No.     Content

            2          A letter dated September 2, 1955, from Ace News Corporation to Star Publications agreeing to the purchase by the former of 300,000 copies of the November, 1955, issue of the publication in a fully returnable basis.

            5          A form supplemental to Respondent's Exhibit No. 1 showing the number of copies of the November, 1955, issue sold to be 200,310 out of a total of 295,500 printed.

            6          Letter, dated March 6, 1956, from Star Editions, Inc., explaining delay in publishing the third issue of the magazine.  This letter is addressed to the postmaster at New York and is signed by Leonard B. Cole, President.        Letter states, in part, that the third issue will be the July issue and will go on sale        in the latter part of April, 1956.

            7          Letter dated June 5, 1956,   from Star Editions, Inc., further explaining delay in publishing the third issue of the magazine.  Letter is addressed to the Classified Section of the New York General Post Office and is signed by Robert C. Sproul.  Letter states, in part, that the third issue will be called     the August issue and will be shipped on June 14, 1956.

(Note:  Both Exhibits 6 and 7, above, give the death of Mr. Kramer and the delay in the settlement of his estate as the primary reason for the delay in publishing the third issue.)

            8          Letter dated December 21, 1956, from Star Editions, Inc., stating that the October, 1956, issue of the magazine was the last one published, and that an attorney had been engaged to handle the matter of the proposed denial of second-class privileges to the magazine.  This letter is signed by Gerald Miller, Business Manager.

            9          November, 1955, issue

            10        February, 1956, issue

            11        August, 1956, issue

            12        October, 1956, issue

            13        statement by postmaster at New York as to deposits made for mailings of "Man's Daring Adventures."

            14        Letter dated July 31, 1956, from Star Editions, Inc., stating regrets that the Solicitor for the Post Office Department finds portions of November issue questionable.  Declares intention of not including questionable matter in future issues.

After the receipt in evidence of the foregoing exhibits, Petitioner's counsel moved (Tr. 11-12) that there be stricken from the Respondent's answer all references to the first two issues of the publication.  His reason in support of this motion was that no mention was made of these issues in the notice of proposed denial of second-class mail privileges sent to the publisher on October 22, 1956, or in the amendment to that notice which was issued on November 14, 1956.

            This motion was denied for the following reasons:

            (1)  The answer of the Respondent had been in the hands of the Petitioner for some time in excess of two months prior to the hearing, so that the Petitioner had ample notice that the first two issues of the magazine were to be considered in this proceeding.  There was no element of surprise; and

            (2)  Section 201.40(n) of the Rules of Practice governing these proceedings provides, in part, that the Hearing Officer "shall have no power to decide any motion to dismiss the proceeding or other motion which involves final determination of the merits of the proceeding, such power being reserved exclusively to the Postmaster General or person duly designated by him to make final disposition of the proceeding."  Thus, the Petitioner's motion being, in effect, a motion to dismiss, it necessarily was denied.

In addition, I note that the Petition filed by Star Editions, Inc., asserts the mailability of these two issues, thus raising this question (Petition, page 2, paragraph 1).

            The chief witness for the Petitioner, Mr. Gerald Miller, took the stand.  The principal part of his testimony dealt with the reasons for the delays in publishing the various issues of the magazine.  According to the witness, the time lags between the first and second and the second and third issues were primarily due to the death of Mr. Jerome Kramer, President of Star Publications, Inc., of which the Petitioner, Star Editions, Inc., is the successor.  Mr. Miller further testified that there were also delays occasioned by the settlement of Mr. Kramer's estate, changes in the staff of the new organization, establishment of a new printing schedule and the negotiation of a new contract for paper (Tr. 30, 31).  The witness testified that the reason for the discontinuance of the publication after the October, 1956, issue was the failure to get second-class entry for the magazine (Tr. 43).

            Sales figures indicate that approximately 200,000 copies of the first issue were sold (Respondent's Exhibit 5) and between 145,000 and 146,000 copies of each of the succeeding issues were sold (Tr. 31, 47).

            As a part of the testimony of Mr. Miller there was offered and received into evidence as Petitioner's Exhibit E a letter dated July 27, 1956, which reads as follows:

            Gentlemen:
            Further reference is made to your application for second class entry pending for the publication "MAN'S DARING ADVENTURES."

            The Solicitor for the Post Office Department has furnished this office with the following information concerning the November, 1955 issue of "MAN'S DARING ADVENTURES":

            This issue (November, 1955) contains pictures and text which are questionable as to their mailability under Section 124.31, Postal Manual.  However, these items do not constitute the dominant character of the magazine which would not be refused if offered for mailing, full responsibility upon the sender.

            In view of the above, the Director for the Division of Mail Classification, Bureau of Post Office Operations has requested that you furnish a written statement for consideration of your application showing what your practice will be with respect to preparing future issues of the publication, so as to avoid the inclusion of material which might raise questions as to whether such issues constitute mailable matter.

Sincerely yours,

/s/ Robert H. Schaffer

Robert H. Schaffer,
Postmaster.

            In connection with the mailing of the four issues of "Man's Daring Adventures" the publisher deposited the sum of $15,784.37 with this Department.  In paragraph 5 of the Petition, it is claimed that since second-class privileges should be granted for the magazine, the Department owes the Petitioner $12,284.37 of the original deposit, this being the amount by which the deposit exceeds the amount of postage required to mail the magazine at the second-class rate.  It is believed that the resolution of this claim is a matter which is outside the province of the Hearing Officer, so no specific recommendation will be made with respect thereto.  It is noted, however, that in paragraph 6 of his answer the Respondent admits "that a publication fulfilling all the requirements of applicable law should be granted a second-class mailing permit and receive a refund of deposits made with postmaster at time of mailings in excess of second-class rate of postage."

            The two basic issues of this proceeding are (1) whether the issues of "Man's Daring Adventures" are obscene, lewd, lascivious or indecent or otherwise proscribed by 18 U.S.C. 1461 so as to render them nonmailable and therefore ineligible for entry into the mails or second-class matter; and (2) whether the failure to maintain the proposed bi-monthly schedule of publication warrants the denial of second-class entry to the Petitioner.

            With respect to the issue first stated above, I have read the entire contents of each of the issues of the subject publication and there is attached hereto as Appendix A a thumbnail resume of the articles in them.  In listing certain advertisements and cartoons, I have specified only those which might be questioned.  There are others which could not possibly be questioned.

            In order to find that a magazine offends against the provisions of 18 U.S.C. 1461, it must be found that the contents "would tend to deprave the morals of those into whose hands the publication might fall by suggesting lewd thoughts and exciting sensual desires."  U.S. v. Dennett, 39 F.(2d) 564; Dunlop v. U.S., 165 U. S. 501; Rosen v. U. S., 161 U. S. 29.  But this description must be true with respect to the magazine when viewed in its entirety.  "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.  As it was stated in Walker v. Popenoe, 149 F.(2d) 511, "The dominant effect of an entire publication determines its character.

            Measured by the foregoing criteria, and giving due consideration and full weight to the matters pointed out in the Respondent's proposed findings I find as a fact that none of the issues of "Man's Daring Adventures" is violative of Section 1461 of Title 13, United States Code.  There are certain photographs and stories which, if they stood alone, would be open to serious question as to their mailability, but these articles and pictures do not, in my opinion, constitute the dominant effect of any issue or of all four of them considered together.

            Next, we come to the issue presented by the failure of the publisher to maintain the stated frequency of publication.

            It is understandable that the death of Mr. Kramer could cause some interruption of the printing schedule, particularly in view of Mr. Miller's testimony that Star Publications, Inc., had been "primarily a one-man business" (Tr. 30).  On January 1, 1956, the date of Mr. Kramer's death, the first two issues of the magazine had been printed and mailed, the mailing date of the second issue being December 21, 1955 (Tr. 30).  The next issue, that which is designated the August, 1956, issue was mailed in June of 1956.  It does seem that this is an excessively long interval of time, even taking into consideration the problems with which the new management was confronted.

            Then in regular sequence, the October issue was published, and with this issue publication was terminated.  The cessation of publication at this time is difficult to understand - particularly in view of Mr. Miller's testimony that "Man's Daring Adventures," together with one other publication, constituted "the backbone of the business" (Tr. 23).  Mr. Miller further testified that "The fifth issue was all ready to go, we had everything ready, but we cancelled it" (Tr. 23).  Thus, we find the Petitioner abandoning the publications of the magazine on which he relied most heavily for financial support.  In the case of the fifth issue of the magazine, all expenses of publication had been incurred except for the cost of mailing. 

            Mr. Miller assigns as the reason for the discontinuation of the magazine the failure to obtain second-class mail privileges (Tr. 43), but there was nothing final in the notice sent to him on October 22, 1956, by the Director of the Division of Mail Classification.  In fact, the notice begins with the words "You are advised that the undersigned proposes to recommend denial of your application ***."  (Underscoring added)  In this same note, the publisher is advised of his right to a hearing, and he is told that only in the event he fails to request a hearing as provided in the rules governing these proceedings will the proposed action become final.  So that, other factors remaining the same, there can be perceived no reason why subsequent issues of the magazine could not have been printed and mailed during the pendency of this proceeding.

            There is provision in the regulations of the Post Office Department, of which I take official notice, for the steps to be taken when publishers wish to adopt a new statement of frequency.  Section 132.221 of the Postal Manual (39 C.F.R 22.2(b)) reads in part as follows:

            "A publication may not be published under a frequency that provides for less than four issues each year.  Issues must be published regularly as called for by the statement of frequency.  Publishers may change the number of issues scheduled, and adopt a new statement of frequency by filing an application for second-class reentry."

            Section 132.34 of the Postal Manual (39 C.F.R 22.3(d)) provides in part that:

            "When the name or frequency is changed, an application for reentry must be filed on form 3510 at the post office of original entry, accompanied by two copies of the publication showing the new name or frequency."

            If the publication at the regular time became impracticable, the publisher should at least have complied with the regulations provided for such contingencies.

            Finally, Section 226 of Title 39, United States Code provides, so far as is here pertinent, as follows:

            "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 ***."

            Upon the basis of the evidence in the record of this proceeding it appears, and I find as a fact, that the publication failed to meet this first requirement of the law which sets forth the prerequisites for the admission of publications to the mails as second-class matter.  There was, furthermore, no compliance with the regulations of the Department with respect to the statement of frequency either between the second and third issues or after the publication of the fourth issue.

            I adopt the following findings of fact proposed by the Petitioner:

            1.  Findings numbered 1 through 17, except that as to number 6, the testimony of the witness Miller is that Mr. Kramer died on January 1, 1956 (Tr. 30);

            2.  Findings numbered 24 through 28;

            3.  Findings numbered 31 through 35;

            4.  Finding number 37.

            With respect to Petitioner's proposed findings of fact numbered 18 through 23, I neither adopt nor reject them because of their immateriality.

            Proposed findings numbered 29 and 30 are to the effect that the lack of, and the inability to get, second-class entry put the Petitioner at a great economic disadvantage and caused the cessation of publication of the magazine.  While these statements are true, based upon the evidence in this proceeding, the statements do not go far enough.  There should be added to them the fact, also appearing in the record, that the publication of questionable material and the irregularity of publication were the causes of the lack of, and the inability to get, second-class mail privileges.  In my view, the act of the Director, Division of Mail Classification, in withholding permanent second-class mail privileges from the Petitioner was, in the light of the facts and circumstances surrounding this matter, reasonable and proper.  What has been said here is also applicable to Petitioner's proposed finding number 39.  I have previously commented upon the discontinuance of publication.

            Because of the recommendation hereinafter made, I neither adopt or deny Petitioner's proposed finding number 36.

            I deny Petitioner's proposed finding of fact number 38 for the following reasons:

            1.  There is no provision in the law (39 U.S.C. 226) for excusing a publication for failing to meet its stated frequency of publication;

            2.  The delay in resuming publication was excessively long; and

            3.  The Petitioner did not comply with the regulations of the Department governing changes in the statement of frequency of publication.

            With respect to the Respondent's proposed findings of fact, I deny proposed  finding number 1 for the reasons indicated herein, and I adopt proposed finding number 2.

            The Petitioner's first proposed conclusion of law is denied.  No permanent second-class permit had been awarded to the Petitioner, and there was, therefore, no permit to annul or suspend.  The question presented is whether to deny or grant an application for original entry.  This matter has been regularly processed in accordance with the "Procedures Governing Administrative Hearings Relative to the Denial, Suspension or Annulment of Second-Class Mail Privileges," and is procedurally correct.

            Because of the recommendation hereinafter made, I neither adopt nor deny Petitioner's proposed conclusions of law numbered 2 and 7.

            I adopt Petitioner's proposed conclusion of law number 4.

            For reasons previously stated, I deny Petitioner's proposed conclusions of law numbered 3, 5 and 6.

            I deny the Respondent's proposed conclusions of law numbered 1 and 2 on the basis of previously indicated reasons, and I adopt Respondent's proposed conclusions of law numbered 3, 4 and 5.

RECOMMENDATION

            Because the Petitioner failed to maintain the required frequency of publication and because the Petitioner failed to comply with the Department's regulations regarding changes in the statement of frequency of publication, I recommend that the Petitioner's application for second-class mail privileges for the magazine "Man's Daring Adventures" be denied.

William A. Duvall
Hearing Examiner

APPENDIX A

November, 1955, issue

1. Death Can Be 30 Feet Long - Hunting crocodiles.

2.  The Silent Terror - An avalanche in the Alps.

3. Brothers Under the Skin - During a drinking bout, a man robs his brother.

4. Custer's Bloody Blunder - The Battle of Little Big Horn.

5. Hunting the Killer of the Plains - Hunting Coyotes.

6. "Thar She Blows" - About the motion picture "Moby Dick."

7. Ambush at Gaza - An encounter between Israeli and hostile forces.

8. This Penny's From Heaven - Story and pictures about Penny Duncan - Some pictures show fairly large areas of her breasts.

9. Horror on the Highway - Ammunitions and explosives - hauling trucks are highway hazards.

10. Deadly Menace of the Bush - Hunting Wild Boars.

11. We Can Stop Murder on Queer Street - Advocates EEG before prizefights.

12. Shooting the White Hell! - A group shoots some rapids in canoes.

13. Man-Eaters of Queensland - Cannibalism in Queensland.

14. "Hot Lead-Coming At Me" - Towing a target for fighter planes.

15. Brave Bull - Red Blood - Bull fighting story.

16. The Alley of 1000 Sins - Prostitution in Algeria.  Show pictures of men and girls on narrow street - all girls sufficiently dressed.

Advertisements: - Books: "From Freud to Kinsey"; The Pleasure Primer"; 8mm and 16 mm Movie Comedies. 

2

February, 1956, issue

1. Horror in the Jungle - Killing a tiger which had been terrorizing natives and killing stock.

2. On the Hot Seat - 3 pages of pictures of Barbara Osterman.  She appears to be nude, but she is so posed that neither her breasts nor pubic area are exposed.

3. Are You an Alcoholic? - Article on Alcoholism.

4. We Drove the Suicide Road! - Story about the construction of an oil pipeline from Edmonton, Alberta, to the west coast of Canada.

5. Home for Killers - Place where death masks of certain German criminals are kept.

 6. Private Eyes? - Take 'Em Away - Ridicules fictional private detectives.

7. Meanest Fish Alive! - Fishing for gar.

8. The Ship that Sailed on Blood - Mutiny on a whaling vessel.

9. This Operation May Save America - Advocates sterilization for mental defectives.

10. Hell in the Mud! - Racing in mud near Naples, Florida.

11. Our Military Blunders Are Costing Lives - Title is explanatory.

12. Wanna Buy An Elephant? - Man in Vero Beach, Florida, sells wild animals.

13. How to Water Ski - Illustrated instructions on water skiing.

14. Don't Hack Off My Head - Bandits raid a Mexican village.

15. Manhattan After Dark - Private investigator for insurance company traps man who has been blackmailing wife of wealthy man.  Blackmailer had compromising pictures of woman.  Blackmailer is finally killed.  Story contains some suggestive passages.

16. When we fought Spain - Story of Spanish-American War.

Advertisements:  -  Books:  "Bed Manners"; "Better Bed Manners"; "The Pleasure Primer".

3

August, 1956, issue

1. Mating and Murder - A story of cockfighting.

2. She'll Have You Bug-Eyed - Pictures of a girl in a bikini-type outfit illustrate an article on the use of lady bugs to kill garden pests.  In some of the pictures on pages 12 and 13, the girl's breasts are largely exposed.

3. The Most Murderous Racket - Story about abortionists.

4. The Conqueror - Article about RKO-Radio's picture of the same name.

5. Cambodia Convoy - Account of motor convoy trip from Saigon to Phnom-Pehn, and murders committed by guerillas.

6. You Only Die Once - Story of poison murders committed by Mary Creighton in 1923 and 1935.  One part tells of the seduction of Mary Creighton's   daughter by Everett Applegate.

7. Rouse His Blood Lust - Story of the wild dogs in Australia.

8. You Could Be Scared to Death - Says that extreme fright can produce a state closely resembling death.

9. A Nest of Trouble - Three people go mountain climbing, get caught in a storm, are attacked by eagles

10. I Shot Mussolini - As told by the man who purportedly shot the Italian Dictator.

11. Fifty Fangs in My Flesh - A man's narrow escape from a shark.

12. Please!! Don't Feel Sorry For Us - A humorous account of a city-dweller's visit to the suburban home of friends.

13. Stalk the Long-Tusked Killer - Eskimos hunt walruses.

14. Ho-Ho-Hoax - Hoaxes that have been pawned off on the public, such as the "Cardiff Giant."

15. Throw Yourself Into the Blast - Man survives dynamite blast by throwing himself into the eye of the blast area.

16. Ready - Aim - Fire - A soldier in the Union Army is executed for desertion.

17. Tangier - Sin City - Pictures of prostitutes in a house in Tangier.

Cartoon - page 65, man viewing nude model.  Instructor tells him "it's customary to do a little painting here, Bradley."

Advertisements:  Classified Opportunities, page 57.

October, 1956, issue

1.  The Problem of an Unwed Father - Man's sweetheart advises she is pregnant and he runs away.  He later hears the girl has married.  He returns, starts and becomes successful in law practice, marries and moves into house across the street from place where former sweetheart and their son live.  Man tells of his unhappiness because he cannot assume fatherly relationship with his son.

2.  Horns of Hell - Story of Bullfighting.

3.  Murder in Mid-Air - Member of French Underground puts sugar in gasoline tank of plane carrying eight German officials.  Plane's engines fail and plane falls into sea.

4.  U. S. Camel Corps - Tells of importation of camels in mid 1800's for service on western frontiers of the United States.

5.  Kathy Carlyle, Brainy Dish - 4 pictures (2 pages) of scantily clad girl.

6.  A Strange Desire - Man visits Samoa and has sexual relations with a native girl who tells him she wants a "baby with blue eyes."  Story contains details of their going to bed in the presence of the girl's mother and father, their swimming in the nude in a lagoon and their having sexual relations.

7.  Pretty Nice Job - Jayne Mansfield - Three pages of "cheese-cake" photographs of Jayne Mansfield in various types of physical exercise purportedly to keep her in good physical condition.  Pictures are so pose as to emphasize various parts of her anatomy.

8.  Trapped Targets for Navy Bombers - Two men whose boat engine has failed become marooned on a small island used as a target for Navy bombers.

9.  The Mountain - A resume of the Paramount picture of the same name.

10. The Old Buff's Last Laugh - Story of hunting for water buffalo.

11. The Secret Gate - Man in Brazil has garden with a secret gate.  He has his housekeeper procure girls to come to him for sexual purposes.  The housekeeper does this by using secret potions on those who won't willingly visit him.  She also gives him some concoction which increases his desire for women.  The housekeeper took the children born of these arrangements and lived off the income they earned by working as servants.

12. The Miserly Midas of Wall Street - Story of Hetty Green, woman who was tremendously wealthy and made money from her trading on the stock market.

13. Red Lights Over Tokyo - Picture story of a prostitution in Japan (2 pages).  Without text, only one picture would be questionable.

14. Are They Men?  Or Are They Women? - Article on hermaphrodites.  Tells of scientific ways of determining true sex of persons whose sex characteristics are uncertain.

15. The Smoki People - People of Prescott, Arizona, preserve rituals and dances of various Indian tribes.

Advertisements:   page 64 - "100 life-size pictures of lovely Hollywood models in Full Color.
Page 54 - "Classified Opportunities"; comic booklets - the kind adults want; Party records.
Page 53 - Most Exciting Books you've Ever Seen.