In the Matter of

HUMOR DIGEST, INC.

and its application for entry of the publication known as
"BACKSTAGE FOLLIES" as second-class matter.

H.E. Docket No. 5/152

William F. Scharnikow Hearing Officer

POST OFFICE DEPARTMENT, OFFICE OF THE CHIEF HEARING EXAMINER, Washington 25, D.C.

HEARING OFFICER'S REPORT AND RECOMMENDATION

On or about September 7, 1956, Humor Digest, Inc. (Petitioner) filed an application at the Post Office at New York City for entry of the publication, "Backstage Follies," into the mails as second-class matter. The publisher was advised by letter dated March 19, 1957, that the Director, Division of Mail Classification (Respondent) proposed to deny said application because of the receipt of advice from the Assistant General Counsel, Fraud and Mailability Division, that the November, 1956 and the February, 1957 issues were regarded as nonmailable under Section 1461 of Title 18, United States Code and for the further reason that it has not been established that the publication is a periodical publication rather than a book of pictures, anecdotes and cartoons. ^1/

On September 3, 1957, Petitioner filed a petition asserting that its publication is a periodical publication and is not obscene, lewd or lascivious within the meaning of 18 U. S. Code 1461, and also requesting that the Respondent be required to show cause why this proposed denial of the publisher's application should not be reversed and the application for second-class entry granted. The Petitioner also requested a hearing.

The requested show cause order was issued on September 10, 1957.

The Respondent answered the order to show cause on September 20, 1957 and in substance alleged that the issues of November, 1956 and February, June, August, and October 1957 are not entitled to entry into the mails as second-class matter for the reasons set forth in the notice of proposed denial of the application. In a bill of particulars furnished on October 7, 1957 upon the previous demand of the Petitioner, the Respondent listed the photographs, cartoons, and "jokes" in these various issues of the publication which, according to the Respondent, "furnish their dominant theme of obscene, lewd, lascivious, indecent, or filthy matter," and thereby render the issues nonmailable.

The hearing was held at Washington, D. C. on November 6, 1957, before the undersigned Hearing Officer, duly designated by the Acting Postmaster General. The Petitioner and the Respondent were represented by counsel and were given full opportunity to examine and cross-examine witnesses, and to introduce competent and relevant evidence. Copies of the November, 1956, and the February, June, August, and October, 1957 issues of "Backstage Follies" were offered by the Respondent and the Petitioner, and received, in evidence. This was the sum total of the competent and relevant evidence submitted at the hearing. Although other evidence was offered by the Petitioner, the undersigned, for reasons stated upon the record, sustained objections by Respondent and rejected accompanying offers of proof made by the Petitioner. At the conclusion of the hearing, counsel for both parties submitted oral argument. Since the close of the hearing, Petitioner and Respondent have submitted proposed findings of fact and conclusions of law. The undersigned accepts only those of the Petitioner's and Respondent's proposals as are in substance set forth as the findings and conclusions reached by him in this report; all others are rejected.

An examination of the five issues submitted in evidence, discloses that "Backstage Follies" consists of a collection of photographs of scantily-clad female models; cartoons which also show scantily-clad females; and "jokes." In his bill of particulars, the Respondent refers, for the most part, to certain cartoons in the issues, but also to some of the photographs, and in a few instances, to various jokes, as demonstrating that the predominant theme of the publication is the presentation of obscene, lewd, lascivious, indecent, and filthy matter. Petitioner's argument, in essence, is that the material in the publication is humorous, not obscene or filthy, and that the situations presented are, as the title of the publication indicates, typical of stage life and stage people. From his consideration of the material in the publication, the undersigned agrees with the appraisal of the Respondent. Even though there is a note of humor in some (although not all) of the Petitioner's material, the vehicle is obscene or filthy, and the humor a mere cloak.

In reaching this conclusion, the undersigned has considered not only the items specifically pointed out by the Respondent but also the entire content of each of the issues. The eight "jokes" referred to by the Respondent in his bill of particulars deal with the allegedly humorous aspects of the female breasts and anatomy, sexual intercourse, and even defecation. They are unquestionably obscene or filthy. All of the photographs show full-bodied, scantily-clad females. Although, in the opinion of the undersigned, some of these photographs (including a number of those referred to by the Respondent in his bill of particulars) ^2/ are not so extreme in their poses or presentations of the breasts or buttocks as to offend present day community standards, other photographs reveal these features to such an extent and in such a manner as to be obviously intended, in each case, to appeal to the prurient interest of male readers and beyond the tolerance of present-day community standards. ^3/ Even if these photographs and the "jokes" were not in themselves sufficient to show obscenity and filth to be the predominant themes of the publication, they certainly contribute substantially to this conclusion as the back drop to the cartoons which constitutes the greatest block of material and which, in the opinion of the undersigned, make a sustained appeal to the erotic senses of the male reader.

In all, the Respondent has referred the undersigned to ninety-seven of these cartoons through the five issues of the publication which are in evidence. So uniform in nature and their obviously intended erogenous appeal are these cartoons, that individual discussion appears to be unnecessary. Every one of these cartoons gives prominent and suggestive display to the feminine breasts and many, to the buttocks as well; some show or suggest nudity or almost complete nudity of these parts and, in some instances, the body generally; some show the females in suggestive or amorous poses; and many contain "humorous" references to the physical attributes, the amorous proclivities, and the sexual attitudes of the girls who are shown in these cartoons. From a consideration of these cartoons and upon the foregoing observations, the undersigned has concluded that, when judged in the light of currently prevalent community standards, the cartoons make a sustained series of appeals to the prurient interest of male readers; ^4/ and that since these cartoons constitute the greatest part of each issue and are presented against a background of photographs of scantily-clad females and "jokes", some of which are also obscene or filthy, the predominant theme of the publication, "Backstage Follies," as judged from the issues in evidence, is the presentation of obscene, lewd, lascivious, and indecent matter. The undersigned accordingly finds that the publication, "Backstage Follies" is nonmailable within the meaning of 18 United States Code 1461 and, for this reason, will recommend that application for its entry into the mails as second class matter be denied.

From an examination of the five issues in evidence, however, the undersigned is not prepared to say that "Backstage Follies" is not a "periodical publication" within the meaning of 39 United States Code 221. After a reading of the authorities cited by the Respondent, it does not appear to the undersigned that, as a collection of pictures, "jokes," and cartoons, the instant publication lacks the "connection between...subjects" and the "literary continuity" which are apparently required by the statute. ^5/

Upon the foregoing considerations, the undersigned makes the following:

CONCLUSIONS OF LAW

1. That the November, 1956 and the February, June, August, and October, 1957 issues of the publication "Backstage Follies," being obscene, are nonmailable matter and do not meet the requirements of 39 United States Code 224 and 226 for entry into the mails as second-class matter.

2. That the aforesaid issues of the publication "Backstage Follies" show the publication to be a "periodical publication" within the meaning of 39 United States Code 221.

RECOMMENDATION

It is recommended that Petitioner's application for entry into the mails as second-class matter of the publication "Backstage Follies" be denied as nonmailable matter.

1/ An earlier notice of proposed denial on a somewhat narrower basis had been sent to the publisher on October 29, 1956.

2/

November, 1956: pp. 1, 7, 36
February, 1957: pp. 10, 15, 36
June, 1957: pp. 43, 49, 67
August, 1957: pp. 1, 68
October, 1957: p. 67

3/

November, 1956: pp. 2, 27, 30
February, 1957: pp. 1, 2, 7, 18-19, 27
June, 1957: pp. 13, 26-27, 34-35, 54
August, 1957: pp. 2, 10-11, 12, 47, 67
October, 1957: pp. 10, 11

4/ Roth v. U.S. , 354 U. S. 476.

5/ Houghton v. Payne , 194 U. S. 88; Smith v. Hitchcock , 226 U. S. 53.