P.O.D. Docket No. 1/66
February 18, 1959
In the Matter of the Petition By )
)
CAMERARTS PUBLISHING CO., INC., )
3755 West Armitage Avenue, ) P.O.D. Docket No. 1/66
Chicago 47, Illinois, )
)
for a hearing upon its application )
for second-class entry of "MEN's )
DIGEST." )
Ablard, Charles D.
POST OFFICE DEPARTMENT Washington 25, D. C.
DEPARTMENTAL DECISION
The Director of the Postal Services Division of the Post Office Department notified the Camerarts Publishing Company, Inc., the petitioner, that he proposed to deny its application for a second-class permit for the publication, MEN'S DIGEST, because issue No. 7 for July, 1958, was obscene and thus non-mailable. The second class permit is a form of subsidy. 1/ The petitioner initiated these proceedings by a petition of October 8, 1958, requesting that an order be issued requiring the Director to show cause why the proposed denial should not be reversed, requesting a hearing and seeking the issuance of the permit. An order to show cause was issued and the Director answered on October 15, alleging that in addition to issue No. 7, issues Nos. 6 and 8 of the publication were also obscene. The publisher replied on October 22, denying the pertinent allegations. Upon motion of the publisher, a Bill of Particulars was furnished on November 10 stating specifically the pictures, jokes, cartoons, and articles which the Director deemed to be obscene.
On November 19, 1958, a hearing was held before Hearing Examiner Edward Carlick, who had been duly appointed as the hearing officer for this proceeding. At the hearing the Director introduced into evidence the applications and the denial of the second class entry which was the basis of this proceeding. The three issues in question of the publication were introduced into evidence. On December 29, 1958, the hearing officer filed a report and recommendation to deny the application of the publisher finding that the issues were obscene. Exceptions were filed by the publisher to this report and the Director was replied to those exceptions.
Preliminarily, it is desirable to explain the rationale of this proceeding. The basic second class permit statute, 39 U.S.C. 224, provides that:
"mailable matter of the second class shall embrace all newspapers and other periodical publications which are issued at stated intervals, and as frequently as four times a year and are within the conditions named in sections 225 and 226 of this title." 39 U.S. Code 226 establishes four specific requirements and other general requirements. Those are not in issue in this proceeding.
The contention of the Director is that the publication is non-mailable matter prohibited by 18 U.S.C. 1461, the criminal obscenity statute, from being transmitted in the mails and therefore, not being "mailable matter of the second class", the requirements imposed by 39 U.S.C. 226 are immaterial. The fact that this magazine and other similar publications are transmitted in the mails does not necessarily mean that they are mailable matter. The practical difficulties of prohibiting any periodical matter from the use of the mails presents serious problems. 2/ Despite the fact that these magazines are carried in the mail, the Department may seek to deny the subsidy of the second class permit if it believes that the matter is not mailable, should not have been carried in the mails and should not be carried in the future. The two courses of action are separate and independent and are not alternate. The first is a sanction or prohibition against carriage in the mails; the second is a denial of a permit which gives a form of federal subsidy.
The first exception is to the fact that the report of the Hearing Officer was made without consideration of the proposed findings of fact of the petitioner. The date set for the filing by both parties of proposed findings was December 18, 1958, approximately one month from the date of the hearing. The purpose for setting a date for proposed findings is to permit the presiding officer in any proceeding to estimate the time when he desires to begin work on his decision. On that date he desires the proposed findings so that he may consider them in writing that decision. The proposed findings of the publisher were mailed from Chicago on December 22, 1958, with an attached letter to the Hearing Officer asking that he "accord me the professional consideration of my brief if I am, due to circumstances which I can exercise no control over, three days late." The proposed findings were not received by the Docket Clerk until December 24, 1958.
The Hearing Officer's report was prepared in final form on December 23, and sent to the reproduction department of the Post Office Department. Because of the Christmas holidays, the next working day was December 29. The report was returned from the printer on that day and thus bears that date. I do not believe that the Hearing Officer erred in failing to consider the proposed findings since they were not received until after his decision had been finalized. This was five days after the date set for filing and over a month from the hearing. That is a reasonable period of time for making a decision in this type of proceeding. The petitioner made no effort to request an extension of time as provided by the Rules of Procedure. The exception is disallowed.
Exception 7 of the petitioner raises this issue again and requests that the Judicial Officer consider the late proposed findings in making the Departmental Decision. Those proposed findings consist of twenty-two pages of a very excellent resume of a part of the history of the problems of enforcement of the federal obscenity statute. It has been given careful consideration. The exception is allowed.
Exceptions 2, 5 and 6 of the publisher raise constitutional issues not for consideration of administrative tribunals. Engineers Public Service Corp. v. S.E.C., 138 F.2nd 936 (C.A.D.C. 1943).
Exceptions 3 and 4 of the petitioner reach the merits of the Hearing Officer's report. Roth v. U.S., 354 U.S. 476 (1957), held that the federal criminal obscenity statute was constitutional and not violative of the First Amendment to the Constitution. It is the non-mailability section of this statute which grants authority to the Post Office Department to proceed administratively. 3/ In Roth the Court adopted the following standard for determining obscenity:
"A thing is obscene if, considered as a whole its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex or excretion and if it goes substantially beyond customary limits of candor in description or representation of such matters." 4/
The Hearing Officer relies on Roth, supra, and U.S. v. Levine, 83 F.2d 156 (C.A. 2 1936), which was cited with favor in Roth, and the tests formulated by both those cases in determining that the publications are obscene.
There has never been a reported judicial decision on a second class proceeding where the alleged obscenity of the publication was the issue for determination. In the only reported case the Post Office Department attempted to prevent Esquire magazine from obtaining a second class permit, but the basis of that proceeding was not that the magazine was obscene but rather that it was not of a "public character" as required by 39 U.S.C. 226. 5/ The Supreme Court held that the Department could not deny a second class permit on that basis but implied that the Department could deny a second class permit to an obscene publication. The brief of the Government in Roth v. U.S., described three categories of what was considered to be non-mailable matter prohibited by Section 1461. In the second category they placed border-line entertainment magazines "in the form of magazines running from the slick to the pulp." In discussing the category they said:
"there is an unlimited range of poses from the arty to the pornographic and it is impossible in the field of photographs to have a clear and sharp line as to what is obscene and what is not." Since Roth, there have been three per curiam decisions of the Supreme Court. All were without opinion citing only Roth and its companion case. All reversed the Courts of Appeal of three different circuits that had held the material in question obscene. 6/ One recent commentator has stated that possibly these per curiam decisions indicate that a determination of obscenity is a non-rational process. 7/ Since there has never been a reported judicial decision on this type of proceeding, and since the "entertainment" magazines which seek second class entry contain such a broad variety of material, judicial guidance would be desirable. Roth held the statute constitutional; but now the problem is to interpret and apply that statute to the categories of matter which the Government believed were subject to control under that statute.
The distinction between the issues in this type proceeding and those in others was delineated by Mr. Justice Frankfurter in his separate concurring opinion in Hannegan v. Esquire, supra. He said,
"While one may entirely agree with Mr. Justice Holmes in Leach v. Carlile, 258 U.S. 138, 140, as to the extent to which the First Amendment forbids control of the post so far as sealed letters are concerned, one confronts an entirely different set of questions in considering the basis on which the Government may grant or withhold subsidies through low postal rates, and huge subsidies, if one is to judge by the glimpse afforded by the present case. It will be time enough to consider such questions when the Court cannot escape decision upon them."
It is not necessary to elaborate on the exact content of the publications of the petitioner. 8/ They are in evidence and the articles cited by the Director in the Bill of Particulars have been considered along with all the other matter contained in each issue of the publication. Upon study of the facts in this case and upon application of the standards in Roth 9/ and Levine, supra, I conclude that the issues of the publication of the petitioner meet those tests and are obscene.
This decision should not be interpreted as indicating that the Department will summarily rule adversely to applicant publishers litigating these questions thus forcing them to resort to the courts. In fact the permit has been administratively granted to several publishers recently after contested proceedings where the issue involved was obscenity. 10/ Thus, the Department will apply the standards of Roth and decide these questions on the merits after a hearing and deliberation on the facts.
In so doing it is realized that, as the court in discussing Roth said in Capitol Enterprises, Inc. v. City of Chicago, supra, Footnote 8,
"While it was held 'that obscenity is not within the area of constitutionally protected speech or press' this certainly cannot be rationally interpreted so that any communication might be rubber-stamped 'obscene' through the apparatus of preventive censorship. The communication must first be obscene before deprived of its constitutional shelter."
The recommendation of the Hearing Officer is adopted. The permit is denied.
Judicial Officer
1/ Hannegan v. Esquire, 327 U.S. 146 (1946).
2/ Sunshine v. Summerfield, 221 F.2d 42 (C.A.D.C. 1954) and HMH Publishing Company v. Summerfield, Civ. Action No. 2745-58, U.S.D.C., D.C., November 7, 1958.
3/ Sunshine v. Summerfield, 249 F.2d 114 (C.A.D.C. 1957); Monart v. Christenberry, Civ. Action No. 138-338, U.S.D.C., S.D., N.Y., November 19, 1958; Glanzman v. Christenberry, Civ. Action No. 140-233, U.S.D.C., S.D., N.Y., December 24, 1958.
4/ This language is contained in the Model Penal Code of the American Law Institute, Section 207.10 (2).
5/ Hannegan v. Esquire, supra (Footnote 1).
6/ Times Film Corporation v. City of Chicago, 355 U.S. 35, Sunshine Book Co. v. Summerfield, 355 U.S. 372 and One, Incorporated v. Olesen, 355 U.S. 371.
7/ 79 Harvard Law Review 90, 91 (1958).
8/ "Struggling to reach by reasoning absolute certainty of what shall be classed as obscene unduly strains the legal machinery. Only by a close study of the facts as they confront judges when a record is made in these cases, can it be determined whether a censor has frustrated an owner, publisher, or exhibitor by an inaccurate classification." Capitol Enterprises, Inc. v. City of Chicago, 260 F.2d 670 (C.A. 7, 1958)
9/ "...The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly-wise and sophisticated, indifferent and unmoved ... The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards." (The charge to the jury in the trial district court which was approved by the Supreme Court.)