In the Matter of the Complaint Against

MILCO SPECIALTIES at
New York, New York

P.O.D. Docket No. 1/96;

Ablard, Charles D.

DEPARTMENTAL DECISION

On December 4, 1958, a complaint was filed by the General Counsel charging the Respondent with obtaining and attempting to obtain remittances of money through the mails for obscene matter and depositing in the mails circular advertisements giving information as to where obscene matter may be obtained. A hearing was held, proposed findings were filed by the parties, and an Initial Decision was rendered by the Hearing Examiner finding that the Respondent was depositing information in the mails as alleged but that the matter sent in response to the advertisement was not obscene. Exceptions to the second finding were filed by the Complainant on March 4, 1959, and to the first finding by the Respondent on March 5, 1959. The Complainant replied to the Respondent's exceptions on March 17, 1959, but the Respondent did not reply to those of the Complainant.

The exception of the Complainant is to the finding that the matter sold by the Respondent was not obscene. On motion of the Respondent, the Hearing Examiner took official notice of the proceeding of this Department involving The Master's Studio of Art,

H. E. Docket No. 5/88, operated by Sidney Poss, the owner and operator of the Respondent company. The Department found that the merchandise sold by that enterprise was not obscene. The examiner compared the merchandise in The Master's Studio case and the merchandise is this proceeding and found that it was so similar in character that the prior decision of the Department controlled this proceeding. The Complainant excepts to this conclusion of the Hearing Examiner contending that stare decisis is inapplicable to administrative proceedings and that an agency is not bound by its earlier decisions. ^1/

While this is an established rule, I believe that the Hearing Examiner was correct in ruling as he did if he believed that the Departmental decision in the former proceeding controlled this case. Although stare decisis does not bind the agency, ^2/ the Hearing Examiner should follow agency precedent. If the agency desires not to follow prior decisions that is a decision for the agency and not the Hearing Examiner. In fairness to a litigant consistency is desirable. ^3/ The argument is proper at this stage of the proceeding but was premature before the Hearing Examiner.

Although I agree with the Hearing Examiner's legal analysis, I believe that his analysis of the facts was incorrect and that there is a sufficient difference between some of the pictures involved in the prior proceeding as to warrant a finding that they are obscene without the necessity of reversing the prior decision. The finding of the examiner that Department's Exhibits 6J, 6H and 6K are not obscene is reversed. These three black and white pictures show a girl identified in the advertisement of the respondent (Department's Exhibit No. 2) as one Blaze Star sitting and crouched provocatively on a dishevelled bed naked with the region near her pubic area exposed. I find that these pictures are obscene within the definition adopted by the Supreme Court in U.S. v. Roth, 354 U.S. 476. ^4/ The other merchandise introduced into evidence, color slides and a movie, is not obscene. They are similar to that which was the subject of the prior proceeding. The exception of the Complainant is allowed as to the three pictures and disallowed as to the remainder.

The Respondent excepts to the finding that the advertisement gives information as to where obscene matter may be obtained stating that since the examiner found that the pictures sold by the Respondent were not obscene that this charge cannot stand. Although I have found that some of the pictures are obscene, this finding is not necessary to validate the charge of giving information. The two are separate and distinct and not inter-dependent. A reasonable man reading the circular would believe that Respondent would furnish him with obscene matter. The circular gives the "leer that promises obscenity." U.S. v. Hornick, 229 F.2d 120. ^5/ The finding of the Hearing Examiner is adopted and affirmed. The exception of the Respondent is disallowed.

An appropriate order pursuant to the authority of 39 U.S. Code 259a will be issued.

1/ Kentucky Broadcasting Corp. v. F.C.C., 174 F.2d 38; State Airlines v. C.A.B., 174 F.2d 510

2/ F.C.C. v. WOKO. 329 U.S. 223

3/ N.L.R.B. v. Mall Tool Co., 119 F.2d, 700 (CA 7, 1941)

4/ "...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.)

5/ Also see Klaw v. Schaffer, 251 F.2d 615; Glanzman v. Schaffer, 252 F.2d 333.