In the Matter of the Mailing of approximately 2,000 postal cards by

UNITED ARTISTS, INC.
at New York, New York.

P.O.D. Docket No. M-15

William A. Duvall

POST OFFICE DEPARTMENT, WASHINGTON, D.C.

INITIAL DECISION OF HEARING EXAMINER

On or about March 20, 1959, United Artists, Inc., New York, New York, the Mailer, deposited certain postal cards for mailing at the New York Post Office. The postmaster entertained doubt as to the mailability of the postal cards and, pursuant to standing instructions, ^1/ withheld the cards from dispatch and transmitted specimens of the cards to the General Counsel for the Post Office Department for instructions.

By letter dated April 1, 1959, the General Counsel, the Complainant, advised the postmaster that it had been determined that there was probable cause to believe that the cards in question were nonmailable under Section 1461 and 1463 of Title 18, United States Code. ^2/ There were transmitted to the postmaster for service upon the Mailer a Notice of Mailability Hearing and a copy of the appropriate procedural rules.

. . . . . . . . . . .

The Mailer filed answer admitting that the cards had been deposited for mailing, but denying that the cards are obscene, and so forth, as charged. The answer also included an allegation that the action of the Post Office Department and its agents in refusing to dispatch and deliver the said postal cards denies the Mailer its rights guaranteed by the First and Fifth Amendments to the Constitution of the United States, is contrary to the statutory authority of the Post Office Department and the regulations thereunder, and constitutes an arbitrary, capricious and totally unwarranted act.

The case came on for hearing before the undersigned on April 20, 1959, in the General Post Office Building, at New York City. Both parties were represented by counsel who participated in the introduction of evidence, and in the examination and cross-examination of witnesses. Counsel for the New York Civil Liberties Union was present at the hearing and, with the consent of the parties, made a statement concerning the powers of the Post Office Department and concerning the position of the organization he represents. Both parties have submitted proposed findings of fact and conclusions of law and supporting briefs. A memorandum has been filed in behalf of the Civil Liberties Union.

There are one or two preliminary matters which it is believed should be disposed of at this time. The first one is the Mailer's allegations with respect to the unconstitutionality of the Post Office Department's action in refusing forthwith to dispatch and deliver the post cards.

The general rule, and the one followed herein, is that decisions regarding questions involving the constitutionality of statutes under which agencies act and questions involving the constitutionality of actions taken by agencies are not within the province of Hearing Examiners. Engineers Public Service Corp. v. S.E.C. , 138 F.(2d) 936. It may not be amiss, however, to point out that the constitutionality of Section 1461 of Title 18, United States Code is firmly established by a long line of decisions culminating in Roth v. United States , 354 U. S. 476. It also may be well to allude to the fact that the Congress specifically has charged the Postmaster General with the duty "To superintend generally the business of the department and execute all laws relative to the Postal Service ." (5 U.S.C. 369, emphasis added) The Postmaster General is the only officer of the Government upon whom this duty is specifically imposed. To aid him in the performance of this duty, the Postmaster General (and the head of each governmental department) is "authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it." (5 U.S.C. 22)

Recipients of obscene or other nonmailable matter might complain to the proper enforcement authorities, but by the time the matter is in the hands of the addressees the statutes have been violated and the mischief has been done. Thus, in instances in which obscene or other nonmailable matter is deposited in the mails, who other than the Postmaster General, through his subordinates, is going to see to it that such matter is not "conveyed in the mails or delivered from any post office or delivered by any letter carrier." ^3/ Who, other than the Postmaster General, would have the physical access to the mails that is necessary to prevent the dissemination of matter which Congress has proscribed and which the Supreme Court has held to be outside the cloak of the protection which the Constitution provides for expression in speech and press? I do not here say that this is a proper case for the exercise of the authority and the performance of the duty placed upon the Postmaster General by the cited statutes, but, given the proper case, these are questions to which authoritative answers must be given. The matter appears to be settled at least in the Southern District of New York, where in two recent decision in cases of the same character as the instant proceeding, the action of the Department has been upheld. On November 19, 1958, Judge Sylvester J. Ryan held the Department's action in a similar circumstance to be valid, saying: "The Post Office Department is not required to sit idly by and lend itself as an instrument for the commission of a crime, when matter proscribed as non-mailable is offered for mailing. * * * There is an obligation imposed on the Postmaster not to permit such matter to be conveyed through the mails once it has been determined to be non-mailable. See Roth v. Goldman , 2 Cir., 1949, 172 F.(2d) 188, cert. denied 1949, 337 U. S. 938." ^4/ To the same effect is a decision dated December 24, 1958, by District Judge E. J. Dimock. ^5/ It is repeated that no ruling is made herein on the constitutional issues raised by the Mailer, but it is not believed to be improper to raise a few pertinent questions and to indicate how they have been answered by the courts in recent cases.

Next, there were persistent efforts by the Mailer at the hearing to obtain the testimony of an eminent psychologist as to his expert opinion concerning the effect the viewing of the cards in question would have on an average person. Objections to this testimony were made and sustained and exceptions were duly noted.

Views as to the propriety of receiving expert opinion testimony vary greatly. The desirability, if not the necessity, of receiving such testimony is suggested in Parmelee v. United States , 113 F.(2d) 729 at 732, (C.A.D.C., 1940) where it was said with respect to the difficulty in determining the "critical point in the compromise between candor and shame" referred to by Judge L. Hand in United States v. Kennerley, (209 F. 119, 121):

"But when we attempt to locate that critical point in the situation of the present case, we find nothing in the record to guide us except the book itself. The question is a difficult one, as to which the expert opinions of psychologists and sociologists would seem to be helpful if not necessary."

Here, the Court cited United States v. Levine , 83 F.(2d) 156, (C.A. 2, 1936) among other cases. The Mailer herein also relied in part on this case in urging that the expert be permitted to testify. This case, however, does not seem to be particularly apposite for the reason that a book was under consideration and the opinion of critics was sought to determine its literary worth. The Court (also Judge L. Hand) said:

"On the other hand it is reasonable to allow in evidence published reviews of qualified critics - quite another thing incidentally from expert witnesses at the trial - for such evidence does not lead far afield and is rationally helpful, though in the end it is the jury who must declare what the standard must be." (Emphasis added)

Viewing the other side of the coin, there is the decision of the Supreme Court, Appellate Division, Third Department, New York in Capitol Enterprises v. Regents , 149 N.Y. Supp. (2d) 920 (1956) wherein the Court stated:

"We exercise our own independent judgment as to the film and the validity of the refusal to license it."

In Klaw v. Schaffer , 151 F. Supp. 534 (U.S.D.C., S.D., N.Y. 1957) the Court approved the refusal to accept expert testimony as to the effect certain material would have on average persons. It is also indicated that it would do no harm to receive such testimony, but it is said:

"At the very most, the expert testimony offered need not be considered so compelling as to constrain decision." (id., 539-40)

Finally, in a memorandum opinion by the District Court for the District of Columbia, in Tourlanes Publishing Company v. Summerfield, et al. (Civ. Action No. 3635-55, Nov. 4, 1959; aff'd. 231 F.(2d) 773) it is stated:

"There is no basis for the contention that a Hearing Officer must secure, or even permit, the testimony of experts in receiving an obscenity case. A determination based upon an examination of the allegedly obscene publications, where the publication itself is put into the record and the decision is made upon the entire record of the case, is sufficient."

For the views, which are poles apart, of two highly respected textbook writers, see II Wigmore, Evidence, 3rd Ed., 1940, 673 and 2, Jones, Evidence, 4th Ed., 1938, 372.

In the light of his dichotomy, it appears that there is at present no discernible, clear-cut rule, as to the receipt of expert opinion testimony as to whether a given article or publication is obscene. The only rule that can be derived, therefore, is that the person who presides at such a hearing as the present one must exercise his best judgment, taking into consideration the existing facts and circumstances, and he must then make the ruling which to him seems proper.

The only other preliminary matter to be discussed is the offer into evidence by the Mailer herein of certain books, a magazine article and a postage stamp of the government of Spain to establish contemporary community standards. The objection to the receipt in evidence of these items for this purpose was sustained.

This question is related somewhat to the item discussed next above. In addition to the cases cited in connection with the preceding point, the case of Rosen v. United States , 161 U. S. 29, is pertinent. In this case, it was held among other things that --

"Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd, and lascivious." (id. p. 42)

In United States v. Two Obscene Books , 99 F. Supp. 760, the Court stated that "***since obscenity is a question of fact to be determined by the Court or jury, opinions of so-called experts or critics are immaterial."

If, therefore, the persons who preside at hearings or matters of obscenity are to decide the ultimate issue - either with or without hearing expert opinion testimony - and if mailers must take notice of the difference between decency and obscenity, it should not be too great a legal strain to presume that such presiding officers are aware of the contemporary community standards by which they are to be guided. (See also Klaw v. Schaffer, supra .)

The subject of this proceeding is a 3 1/2" x 5 1/2" postal card, of which approximately 2,268 copies were shown to have been deposited for mailing at New York. On one side of this card is a reproduction of the painting by Francisco Goya which is known as "The Naked Maja," and on the other side, in addition to the address, is the following language:

"The NAKED MAJA"

By Francisco Goya (The Prado, Madrid)

The most breathtaking

canvas that ever came to life]

Ava

GARDNER

Anthony

FRANCIOSA

"THE NAKED

MAJA"

Some of these cards (Dept. Exhibits A-1 and and A-2) also contain an advertisement of the motion picture "Some Like It Hot," starring Marilyn Monroe, Tony Curtis and Jack Lemmon, and some of them (Dept. Exhibits B-1 and B-2) advertise a sound tract album, presumably a recording of the musical score from the motion picture "The Naked Maja." These are the important physical aspects of the card insofar as this case is concerned.

That the Goya original is a masterpiece is conceded by the Complainant (Tr. 15). The only issue, therefore, is "whether to the average person, applying contemporary community standards, the dominant theme of [this postal card] taken as a whole appeals to prurient interest." United States v. Roth , 354 U. S. 476.

In announcing the foregoing criterion by which a question of obscenity is measured, the Supreme Court cited with apparent approval a number of other cases in which, the Court said, the essence of this standard was used. Pertinent passages have been excerpted from these cases and they are quoted in Appendix A to this Initial Decision.

From these cases one is able to glean some information as to the details of the various criteria used by different courts. These include: (1) does its salacity outweigh the artistic or other merit of the item; (2) nudity is not obscene per se; (3) if the item is old, its place in the arts must be recognized; (4) if it is new, the opinions of competent critics may be considered; (5) is it a sincere presentation of the subject matter; (6) is erotic matter introduced to promote lust; (7) certain matters presented in proper context are not obscene, but the same matters presented alone or in improper context may be declared obscene; (8) is it a presentation of dirt for dirt's sake or is it an incident to some artistic purpose; (9) what its effect would be upon its probable recipients; (10) what its effect would be on the average person; and (11) whether it offends the "average conscience of the time."

Before asking these questions with respect to the cards at hand, it is in order to describe them with a bit more particularity. Preliminarily, let it be conceded that nudity, per se, is not obscene, and that nudity in art has long been recognized as acceptable. The figure on the photographic side of the card is that of a nude woman who is resting on a type of chaise lounge over which has been spread what appears to be a velvet cloth, varying in color from greenish-blue to an almost purplush-blue. Underneath the woman from her hips and extending beyond her feet is a white cloth of diaphanous material with a lace fringe, while supporting her head and back are two pillows covered with the same lace-bordered, filmy material. The dark-haired, dark-eyed woman is reclining, partly on one side and partly on her back and she is so situated that her body is inclined toward the viewer of the card. She is completely nude, her arms are raised so that her hands are behind her head, both breasts are fully exposed and the pubic area is darkened indicating the presence of pubic hair. The other, or address side of the card already has been fully described.

Perhaps as good a place as any at which to begin is to consider the artistic merit of the card. Here it must be emphasized that it is the artistic merit of the card - not the Goya original - that is under consideration. The photographer who made the color transparency from copies of which the cards were printed testified that he, personally, visited the Prado Museum in Madrid and took the picture. The Mailer subsequently purchased copies of the transparency from the photographer. His testimony as to the faithfulness of the reproduction is as follows (Tr. 54):

Q Looking at the Government's Exhibit A-1, which is in evidence, is that an exact reproduction from the color slide which you took at the Prado?

A Except for the color of the background, it is.

Q Is it a fair reproduction of the original? Have you seen the original, sir?

A It is, except the only thing I have to quote is the color of the background is not correct.

Q Is the body of the woman in the painting in any way touched or changed from the original?

A Not at all. The position of the person and everything else has not been touched.

Q Did you in any way touch the negative or any reproduction thereof?

A No, never.

Q So that in your opinion, having seen the original, this is an accurate reproduction of the nude?

A That is correct.

Since the card is a current work, what is the opinion of the only competent critic who was presented at the hearing? This witness testified as follows (Tr. 80):

Q If those colors are not accurately reproduced on this card, doesn't that have an adverse effect on this card as opposed to the original painting, as to whether there is a masterpiece?

A The card itself is certainly not the masterpiece. It is the reproduction of a masterpiece. That, however, is true of any reproduction in any of these books.

No reproduction is ever perfect or can even hope to approach perfection, but this is in my judgment as conscientious and accurate a reproduction as the technical processes available today will permit.

So, looking objectively at the card, the only possible conclusion that can be reached on the basis of the evidence available is that it is a copy of a photograph which does not accurately depict that which it purports to show, and that it can not be considered a masterpiece. In sum, it is simply a color picture of a nude woman.

What, now, of the artistic sincerity of the use of the card? The card was mailed to editors, theatre owners and operators, and to the owners and operators of music and record shops. There is nothing in the record, nothing in their occupations, and nothing in the everyday experience of mankind that would lead one to believe that these addressees have any unusual or more-than-ordinary interest in art. Although the true purpose behind the mailing of the card is obvious from the card, itself, that purpose was nailed down by counsel for the Mailer when he said (Tr. 32):

MR. KLINE: Would it solve the problem, sir, if I concede that these pictures were being mailed in connection with the exploitation of a motion picture? This has never been denied by us, sir.

We are in the business of selling and distributing motion pictures and it is our only business and these cards were mailed in the course of advertising and promoting a motion picture. This is conceded. If you still want to go forward with your questioning, that is up to you.

What, next is the context of the card? At the hearing strenuous, but unsuccessful, efforts were made to have included in the record various books on the subject of art containing copies of The Nude Maja. These books were rejected as being irrelevant and immaterial for the reasons that (1) the mailability of the books was not in issue and (2) the books obviously were serious treatises on art, and were designed for the teacher, the student, the connoisseur or the art-lover. In the case of this card, the reproduction of the painting of the nude woman stands alone and its connection with the exploitation of a motion picture is made clear by the language on the reverse side. It was not sent to anyone, so far as the evidence of record shows, who has more than the average interest in painting or who has any special interest in the works of Goya. Again, it must be concluded that the card contains an inaccurate reproduction of a painting of a nude woman.

What is the card's probable effect on the recipients, and what is its relationship to the average conscience of the times? From what has been said about the persons to whom the cards were addressed, there is no reason to believe that these 2,268 people were other than average persons. They edit trade or general newspapers, they exhibit motion pictures, they own or operate music stores or record shops. There is nothing to cause one to think that these persons have any more or less education, narrower or wider interests, greater or smaller problems, more or less religious inclination, higher or lower standards of living, or more liberal or more strict views on questions of decency or obscenity than the average person. If one gives thought to the question and if one is honest, he must conclude that the average person is something of an enigma. He is subject to impulses and actions, within limits, for both good and evil. This is a fact so well known that it is within the common experience of mankind, and it has been stated with his usual clarity by Judge Learned Hand: "***even respectable persons may have a taste for salacity." ( U.S. v. Levine, 83 F.(2d) 156, 158).

There are places in this country today where nudity among adults is practiced, and there are places, such as the beaches and other sites of sports events, where semi- or near-nudity is freely accepted. The practice of nudism, however, is certainly the exception to the rule, and the nature of the activity involved, together with changing mores, make the wearing of varying amounts of clothing acceptable. Generally speaking, however, "we live in a clothed civilization." (State v. Becker, 272 S.W. (2d) 283, 286)

The cards now before the Department, being photographic reproductions of a painting of a full front view of a nude woman, showing both breasts and pubic area, and being displayed alone, are believed to strike the average person as being at odds with the customs, practices, mores, and ideas of decency of the present day. It is believed that the Mailer contemplated that this would be the probable effect of the cards.

Referring again to the Roth standard for judging the character of an article, attention is focused on the word "appeals." In the sense in which the word is used by the Court, it is defined to mean, "to call forth, or attempt to call forth, a sympathetic response by, or as by, specially addressing a class of persons, or some human sentiment, faculty, or the like; as, to appeal to patriotism, a book or song that appeals." (Webster's New International Dictionary, Second Edition, Unabridged, 1944)

Applying all the foregoing yardsticks that have been used by the lower Courts and recognized with approval by the Supreme Court it would appear, and it is so found as a fact, that to the average person, applying contemporary community standards the cards in question, taken as a whole, appeal -- that is to say that they constitute an attempt to evoke -- the human sentiment or interest in the prurient. The cards are therefore found to be nonmailable. That which is indecent or obscene will vary from case to case, and that which in one setting may be a work of art, may, against a different background be declared obscene or indecent. ( U.S. v. Smith, 45 Fed. 476; Lynch v. U.S. , 285 Fed. 162; U.S. v. Hornick, 131 F. Supp. 603, 229 F.(2d) 120.)

Mailer's proposed findings of fact numbered 1, 2, 3, 4, 7, 9, 10, 11, 14 and 15, are adopted. Proposed finding of fact number 5 is correct, except that the action was also commenced under 18 U.S.C. 1463. Proposed finding number 6 has been disposed of earlier in this Initial Decision. Proposed finding of fact number 8 is denied for the reason that the witness whose testimony is cited in support thereof stated that he has never seen the original, but that his impressions were based on "a sort of consensus" in his mind arrived at by seeing many reproductions of the painting. If, as the witness and the photographer testified, no photographs can truly reproduce the original and there are differences between all reproductions and the original, then the impressions of the witness are based on a consensus of inaccuracies. Proposed findings number 11 and 12 are rejected as being immaterial. Proposed finding number 16 is rejected as being immaterial for the reason that a judgment must be formed based on the card "taken as a whole." Proposed finding number 17 is denied for the reasons herein given.

The Mailer's proposed conclusions of law numbered 1, 2 and 8 are denied for reasons herein indicated. The Mailer's proposed conclusions of law numbered 3 through 7 are outside the province of the Hearing Examiner.

Complainant's proposed findings of fact numbered 1, 2, 3, 4, 5, 6, 8, 9 and 11 are adopted. Proposed finding of fact number 7 is denied for the reason that the conclusion therein stated does not necessarily follow from a viewing of the card. Proposed finding number 10 is rejected because it is believed that it would be more accurate to state that the cards constitute a commercial exploitation of nudity.

Complainant's proposed conclusion of law number 1 is outside the province of the Hearing Examiner. Proposed conclusion of law number 2 has already been disposed of. Proposed conclusions of law numbered 3 through 8 are adopted.

In conclusion, it may be well to state what this Initial Decision is not. It is not a holding that the painting "The Naked Maja" by Goya is obscene. The only finding made herein relates to the postal cards deposited for mailing by United Artists, Inc. At the hearing statements were made by counsel for the Mailer that all that was being done in the mailing of the subject cards was advertising a motion picture being distributed by the Mailer; that the Mailer was motivated by a desire for profit, just as were the publishers of the art books and treatises which were sought to be introduced in evidence, and that the profit motive is a legitimate one. This Initial Decision should in no way or by no means be construed as being a criticism of the profit motive. The only thing which has been criticized is the means by which it is sought to obtain the profit.

/s/ Hearing Examiner

APPENDIX A

1. Walker v. Popenoe , 149 F.(2d) 511. Book on sex information for married persons. "The effect of a publication on the ordinary reader is what counts. * * * It would make nonsense of the statute to hold that it covers works of value and repute merely because their incidental effects may include some slight stimulation of the senses of the ordinary reader. The dominant effect of an entire publication determines its character. The standard must be the likelihood that the work will so much arouse the salacity of the reader to whom it is sent as to outweigh any literary, scientific or other merits it may have in that reader's hands. * * *works of physiology, medicine, science, and sex instruction are not within the statute * * *. No serious work of this character, expressed in decent language is obscene, lewd, or lascivious."

2. Parmelee v. United States , 113 F.(2d) 729. Book entitled "Nudism in Modern Life" containing three or four photographs of nudes. "But more recently this [Hicklin] standard has been repudiated, and for it has been substituted the test that a book must be considered as a whole, in its effect, not upon any particular class, but upon all those whom it is likely to reach. *

* * It cannot be assumed that nudity is obscene per se and under all circumstances. * * * Nudity in art has long been recognized as the reverse of obscene. Art galleries and art catalogues contain many nudes, ancient and modern. * * * Later, as indicated by such cases as Regina v. Hicklin (1868) and People v. Muller , the old censorship was relaxed to permit the use of such figures and photographs, provided the textbooks and treatises in which they appeared were restricted to use among practitioners and students. No reasonable person at the present time would suggest even that limitation upon the circulation and use of medical texts, treatises and journals. In many homes such books can be found today; in fact standard dictionaries, generally, contain anatomical illustrations."

3. United States v. Levine 83 F.(2d) 156. Indictment for mailing circulars advertising these allegedly obscene books. "There can never be constitutive principles for such judgments [whether a work is decent or obscene], or indeed more than cautions to avoid the personal aberrations of jurors. We mentioned some of these in United States v. One Book Entitled 'Ulysses' * * *; the work must be taken as a whole, its merits weighed against its defects * * * if it is old, its accepted place in the arts must be regarded; if new, the opinions of competent critics in published reviews or the like may be considered; what counts is its effect, not upon any particular class, but upon all those whom it is likely to reach. *

* * The standard must be the likelihood that the work will so much arouse the salacity of the reader to whom it is sent as to outweigh any literary, scientific, or other merits it may have in that reader's hands; of this matter the jury is the arbiter."

4. United States v. Dennett , 39 F.(2d) 564. Book of sex instruction for youth. "***we hold that an accurate exposition of the relevant facts of the sex side of life in decent language and in manifestly serious and disinterested spirit cannot ordinarily be regarded as obscene. Any incidental tendency to arouse sex impulses which such a pamphlet may perhaps have is apart from and subordinate to its main effect."

5. Khan v. Leo Feist, Inc., et al. , 165 F.(2d) 188. Suit to enjoin infringement of the copyright in the song "Rum and Coca-Cola." "It seems exaggerated to hold that the rather cheap and vulgar verses would tend to promote lust."

6. United States v. One Book Entitled Ulysses by James Joyce , 72 F.(2d) 705. Libel by the United States for the forfeiture of the subject book on the ground that it was obscene. "*** It is settled, at least so far as this court is concerned, that works of physiology, medicine, science and sex instruction are not within the statute, though to some extent and among some persons they may tend to promote lustful thoughts. * * * We think the same immunity should apply to literature as to science, where the presentation, when viewed objectively, is sincere, and the erotic matter is not introduced to promote lust and does not furnish the dominant note of the publication. * * * Referring to Halsey v. New York Society for Suppression of Vice , 136 N.E. 219, dealing with the sale of Mademoiselle de Maupin, by Theophile Gautier, the Court said: "*** After acquittal, the plaintiff sued for malicious prosecution, and a jury rendered a verdict in his favor. The Court of Appeals refused to disturb the judgment because the book had become a recognized French classic and its merits on the whole outweighed its objectionable qualities, although, as Judge Andrews said, it contained many paragraphs which 'taken by themselves' were 'undoubtedly vulgar and indecent.' In referring to the obscene passages, he remarked that: 'No work may be judged from a selection of such paragraphs alone. Printed by themselves they might, as a matter of law, come within the prohibition of the statute. So might a similar selection from Aristophanes or Chaucer or Boccaccio, or even from the Bible. The book, however, must be considered broadly, as a whole.' We think Judge Andrews was clearly right, and that the affect of the book as a whole is the test. * * * While any construction of the statute that will fit all cases is difficult, we believe that the proper test of whether a given book is obscene is its dominant effect. In applying this test, relevancy of the objectionable parts to the theme, the established reputation of the work in the estimation of approved critics, if the book is modern, and the verdict of the past, if it is ancient, are persuasive pieces of evidence; for works of art are not likely to sustain a high position with no better warrant for their existence than their obscene content."

7. American Civil Liberties Union v. the City of Chicago, 121 N.E. (2d) 585, concerning the exhibition of the motion picture film "The Miracle." After referring to the standard adopted in Ulysses, supra the Court said: "*** The doctrine that a book must be considered as a whole does not, of course, mean that obscene matter becomes protected simply by being bound in the same cover with innocent matter. It does contemplate, however, that instances of obscene diction or episodes may be so slight or infrequent as not to impart an obscene flavor to the entire book, *** and that in the context of the whole work, incidents of sexual misconduct may be so presented as to arouse pity or revulsion rather than desire. * * * Furthermore, a book is not to be held obscene on the basis of language or episodes which, considered in the light of the work as a whole, do not represent a calculated exploitation of dirt for dirt's sake, but are fairly incident to some other artistic purpose, such as the exposition of some thesis of the author ***." We hold, therefore, that a motion picture is obscene, within the meaning of the ordinance if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever artistic or other merits the film may possess.

8. Commonwealth v. Isenstadt , 62 N.E. (2d) 840. Indictment for possessing and selling an allegedly obscene book. "***the book is to be treated as a whole in determining whether it violates the statute. * * * We agree with the weight of authority that under each of the prohibitions contained in the statute the test of unlawfulness is to be found in the effect of the book upon its probable readers and not in any classification of its subject matter or of its words as being in themselves innocent or obscene.

* * * We are convinced that the Legislature did not intend by those words [obscene, indecent and impure] to set up any standard merely of taste, even if under the Constitution it could do so. *

* * So, too, we think it proper to take into account what we may call the probable 'audience' of the book, just as the effect of a lecture might depend in large degree upon the character of those to whom it is addressed. * * * We cannot accept the proposition *** that even a work of fiction, taken as a whole, cannot be obscene, indecent, or impure if it is written with a sincere and lawful purpose and possesses artistic merit, and if sincerity and artistry are more prominent features of the book than obscenity." (Cites Ulysses , Parmelee and Lynch , supra ).

9. Missouri v. Becker , 272 S.W. (2d) 283. Conviction for possessing and selling allegedly obscene publications, nudist magazines. It is difficult to understand why the Supreme Court cited this case because the Missouri Supreme Court declined to follow, among others, the Parmelee and Ulysses cases, and cited Regina v. Hicklin , with approval. The Court did cite, however, the cases of United States v. Harmon , 45 F. 414, where it is said that the test of obscenity is "What is the judgment of the aggregate sense of the community reached by it?"

10. Bantam Books v. Melko , 96 A. (2d) 47, "***a book is to be judged by its artistic merit and as a whole; its effect is to be judged by a person with average sex instincts and not by those members of the community who might be particularly susceptible." *

* * The effect of the book as a whole, its artistic sincerity, the climate of current opinion, the changing nature of moral standards of thought, the fact that the book is not dirt for dirt's sake, the use of the normal person rather than the abnormal as a criterion, the book's literary worth and particularly its reception at the hands of qualified critics -- these are some of the elements weighed in determining whether a book was obscene in such lower court cases as ***.

11. Commonwealth v. Feigenbaum , 70 A. (2d) 389. Indictment for possessing for sale allegedly obscene books. Court upholds following finding by lower Court: "*** Nor can it be said that they have the effect of inciting to lewdness, or of inciting to any sexual crime, or that they are sexually impure and pornographic, i.e. 'dirt for dirt's sake.'"

12. Roth v. Goldman , 172 F.(2d) 788, 794-795 (concurrence). Action for injunction against the execution of orders of the Postmaster General excluding certain books published by the plaintiff from the mails. "***but now the test has shifted and become that of the way the words will probably affect normal persons. * * * To sustain his [Postmaster General's] order, we must, at a minimum, read into the record an implied administrative determination that the book is at odds with the 'average conscience of the time.'"

1/ Section 331.6 of the Postal Manual provides: "The postmaster shall not give opinions to the public concerning the mailability of matter under 124.3 (relating to obscene and indecent matter), 124.4, 124.6, 124.8 and 125.5. When there is doubt as to the mailability of any such matter, it shall be withheld from dispatch or delivery and a sample, or a complete statement of the facts, submitted to the General Counsel for instructions."

2/ 18 U.S.C. 1461 provides in pertinent part that "Every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication ofan indecent character;*** . . . . . . . . . . . "Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier."

The penalty for violation of the statute is a fine of "not more than $5,000" or imprisonment for "not more than five years, or both."

3/ See Note 2, supra .

4/ Monart v. Christenberry , Civ. No. 138-338, U.S.D.C., S.D., N.Y. memorandum opinion.

5/ Glanzman v. Christenberry , Civ. No. 140-233, U.S.D.C., S.D., N.Y.