In the Matter of the Petitions by

CROSSWORD PLEASURE, INC.,
TODAY'S CROSSWORDS, INC.,
DONAJIL PUBLICATIONS, INC.,
and CROSSWORD TREAT, INC.,
at 60 East 42nd Street,
New York, New York

for a hearing upon their respective applications for second-class
entry LEASURE"; "TODAY'S CROSSWORDS"; "CROSSWORD TIME", and
"CROSSWORD TREAT."

P.O.D. Docket No. 1/148

January 20, 1960

William A. Duvall Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON 25, D.C.

INITIAL DECISION OF HEARING EXAMINER

Four publications are involved in this proceeding. Crossword Time and Today's Crosswords were granted second-class entry, respectively, effective as of August 27, 1952, and June 29, 1954. By applications dated, respectively, January 22, 1959, and January 7, 1959, additional entry at Holyoke, Massachusetts, was sought for Crossword Time and Today's Crosswords. With respect to Crossword Pleasure and Crossword Treat, applications for original second-class entry were filed, respectively, on July 1, 1958, and January 22, 1959. Each of these publications is published by a separate corporation but all of the corporations have their offices at 60 East 42nd Street, Borough of Manhattan, City and State of New York, and Mr. Jesse Jacobs is the President of each corporation.

By letters dated April 9, 1959, and April 30, 1959, the Director, Division of Postal Services, Bureau of Operations, Post Office Department, advised the publisher that the several applications referred to above were being denied.

In accordance with the provisions of the Rules of Practice governing these matters the publishers, the Petitioners herein, filed timely petitions appealing from the ruling of the Director. The case came on for hearing before me on October 6 and 7, 1959, at which hearing the parties were represented by counsel who participated in the examination and cross-examination of witnesses, in the introduction of evidence and who have filed proposed findings of fact and conclusions of law.

Today's Crosswords and Crossword Time are approximately 9 1/2 x 6 1/2 inches in size, they contain 84 pages of which 5 are unnumbered, there are 65 pages of various types of puzzles and there are 11 1/2 pages on which are printed the answers to the puzzles appearing in the particular issue. There is a one page narrative item in each issue, there are two pages of advertising and there are 3 or 4 pages of miscellaneous matter such as a table of contents, letters from readers, and the like. The contents of each of these two publications consist of crossword puzzles, diacrostics, figuregrams, diagramless puzzles and certain other types of puzzle material. Crossword Pleasure and Crossword Treat are similar to each other in format in that each is approximately 9 1/2 x 6 1/2 inches in size, consists of 100 pages of which 5 are unnumbered, contains 81 pages of various types of puzzles and 13 pages of the answers thereto. There are between 1 and 3 pages of narrative material in each publication, between 1 and 3 pages of advertising matter, 2 pages of miscellaneous material, and the contents are composed of a variety of types of puzzles.

Mr. Jacobs was the first witness on behalf of the Petitioners. He testified that from the time his first two publications had enjoyed second-class mail privileges until the time of the receipt of the ruling of the Director in April of 1959 he had received no indication from the Post Office Department that his publications did not conform to the requirements for second-class entry prescribed in the applicable statutes and the postal regulations. Mr. Jacobs said that the material contained in his publications relate to the arts, the political fields, the sciences, history, geography and virtually every field. In addition to the crossword puzzles, Mr. Jacobs said that his publications contain editorial matter which was defined as being material other than the puzzles. He stated that there has not been any change in the format of these two publications from the time they were granted their original second-class entry to the present.

All of the publications are regularly published and each of them is a bi-monthly publication. With respect to the publications for which application for original entry was made Mr. Jacobs stated that they cover a wide scope of subjects, and it was his point of view that they cover virtually every subject which is taught in the elementary schools and in high schools. Mr. Jacobs said that the general objective of his publications is to "dispense public information" and that, while all of the publications contain the answers to the puzzles contained in each issue thereof, the solving of the puzzles calls for the exercise of one's mind, and the reader necessarily has to expand his knowledge and information.

The next witness in behalf of the publisher was Mr. Jack K. Lippert, Executive Editor, Vice President, and member of the Board of Directors of Scholastic Magazines, Inc. The business of this corporation is the publishing of periodicals and soft-covered books for use in elementary and high schools in the United States and Canada. This concern publishes a total of 12 publications which are used in all grades of the elementary school and high school level. Not all publications are for use in all grades but there is a publication which is intended for use in one or more of the grades at all levels. Some of the publications are for use by students and others of them are addressed to teachers. Some of the publications are weekly in frequency and others are published monthly. Approximately 20% of the gross circulation of Mr. Lippert's publications is sold to school boards for individual schools, with the remaining 80% being paid for by the students. With one exception, all of the publications issued by Scholastic Magazines, Inc. carry one crossword puzzle in each issue. Some of the crossword puzzles are submitted by students and others are supplied by professional crossword puzzle constructors.

Concerning the remainder of the contents of various publications, Mr. Lippert stated that the Board of Advisors of the corporation, comprised of school teachers, curriculum specialists and school administrators from various localities, meets in New York once each year. Prior to the meeting the publisher sends out questionnaires concerning the editorial contents of the publication to each of the approximately 82,000 teachers who subscribe to the various publications but who are not members of the Board. Upon the basis of the questionnaires and the discussions held at the Board meetings the publishers arrive at the type of material that is to be contained in each of the publications. From Mr. Lippert's testimony it appears that for each publication there is a general theme around which all of the puzzles for a given year will be constructed. For example, in one publication for the 1959-60 school year the puzzles concern the topic of United States geography. He stated that they did not put more than one crossword puzzle in each issue of each magazine for the reason that the publisher must maintain a balance of the various types of material and devices by which the student can acquire learning - that it would not serve the purposes of the classroom teacher if every other page in the magazine contained a crossword puzzle. In addition, Mr. Lippert stated, that the use of crossword puzzles would not permit the publisher to present a topic in such depth and with adequate interpretation as does the presentation of the same topic in the form of a narrative or an article about that subject.

Mr. Lippert stated that the basic purpose of the inclusion of a crossword puzzle in each issue of each magazine is to provide an exercise or drill in vocabulary development on the part of the readers. Mr. Lippert referred to one instance in which a crossword puzzle inadvertently was omitted from one issue of one publication. He said that as a result of this inadvertence the publisher was subjected to a bombardment of letters of protest. In response to a question as to the reasons for the strenuous protests, Mr. Lippert stated that he knows that many teachers consider that the word games and puzzles facilitate the learning process and encourage interest on the part of the students.

Mr. Roger Garrison testified in a similar proceeding on October 7, 1959, (P.O.D. Docket No. 1/142) and by stipulation among counsel Mr. Garrison's testimony was treated as having been given with respect to the publications involved in this proceeding. Mr. Garrison teaches in Briarcliff College and has been so engaged for 13 years. He teaches a course in Shakespeare, a course in contemporary American and English literature, and two freshman courses and one advanced course in writing. Mr. Garrison was connected with the information and education program during World War II. He was associated as a writer for the Army newspaper "Yank." He was a script-writer and researcher for "Fact" and was associated in the production of a series of films called "Why We Fight" relating to the history of World War II. Following that employment, Mr. Garrison became a reporter for Life magazine for a period of two years and he has done free lance writing for the College Association. He has written a textbook on writing called "Guide To Creative Writing," published in 1950 by Henry Holt, and he has also written a book relating to the nature of the learning process called "The Adventure of Learning in College."

Mr. Garrison stated that crossword puzzles are used not only for entertainment, but have been used and are used in instruction in schools. Generally speaking, Mr. Garrison extolled the virtues of crossword puzzles as a means of increasing one's awareness and, hence, one's learning, and he also praised crossword puzzles in general and the publications involved in this proceeding in particular as a means of increasing one's vocabulary. He testified that as a result of his research he had learned that in Mark Sullivan's "History of American Culture in this Century" there is mention of the fact that in 1925 crossword puzzles were the most popular form of entertainment in the United States. Despite the lavish praise heaped by Mr. Garrison upon crossword puzzles as a medium for increasing one's awareness of language and increasing one's learning, Mr. Garrison testified that he does not use crossword puzzles in the practice of his profession. He stated that the reason for this was that he had not found in problems posed by his particular subject matter any need for crossword puzzles. He went on to say, however, that he employs any device that would be useful, including comic books. Mr. Garrison testified that insofar as he knows there is only one book used in one course in Briarcliff College in which use is made of a crossword puzzle. This is an elementary French course and in this textbook there is only one such puzzle.

At the hearing it was agreed that there are three issues to be decided in this proceeding, as follows:

1. Are the publications "periodical publications" within the meaning of Sections 224 and 226 of Title 39, United States Code. ^1/

2. Are the publications originated and published for the dissemination of public information or devoted to literature, the sciences, arts or some special industry; and

3. Do the publications consist primarily of "novelty pages" within the meaning of Section 132.483 of the Postal Manual. ^2/

On the question of whether a publication is a "periodical publication" or a book, the leading case is Houghton v. Payne , 194 U. S. 88, in which the Court said:

"A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects.

"A book is readily distinguishable from a periodical, not only because it usually has a more substantial binding, (although this is by no means essential,) but in the fact that it ordinarily contains a story, essay or poem, or a collection of such, by the same author, although even this is by no means universal, as books frequently contain articles by different authors. Books are not often issued periodically, and, if so, their periodicity is not an element of their character. * * * It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical. Were it not for the fact that they are so issued in consecutive numbers, no one would imagine for a moment that these publications were periodicals and not books. While this fact may be entitled to weight in determining the character of the publication, it is by no means conclusive, when all their own characteristics are those of books rather than those of magazines."

Later, in Smith v. Hitchcock, 226 U. S. 53, the Court said:

"It must be taken as established that not every series of printed papers published at definite intervals is a periodical publication within the meaning of the law, even if it satisfies the conditions for admission to the second class set forth in 14. (citing Houghton v. Payne , supra ). It is established by the same authorities, that books, that are expressly embraced in mail matter of the third class by 17 and so made liable to a higher rate of postage, cannot be removed from that class and brought into the second by the simple device of publishing them in a series at regular intervals of time.

* * * * * * * *

"The noun periodical, according to the nice shade of meaning given to it by popular speech, conveys at least a suggestion if not a promise of matter on a variety of topics, and certainly implies that no single number is contemplated as forming a book by itself. *** Without attempting a definition we may say that generally a printed publication is a book when its contents are complete in themselves, deal with a single subject, betray no need of continuation, and, perhaps, have an appreciable size. There may be exceptions, as there are other instances of books."

Looking objectively at the publications involved in this proceeding it is clear that each issue of each publication is complete within itself. The answers to all the puzzles contained in a particular issue are given in the last few pages of that issue. In addition, I do not feel that it is the ordinary, normal or proper use of the English language to equate puzzle material of the types contained within these publications with "articles". In Webster's New International Dictionary, Second Edition, an "article" is defined, in the sense in which it is used in this case, as "a literary composition forming an independent portion of a magazine, newspaper, encyclopedia, etc." Webster also defines a "composition" as "the arranging of words to form sentences, paragraphs, verses or other parts of any literary work of discourse;***" Therefore, to call any of these types of puzzles an "article" is to do undue violence to the language. While there may be various topics, such as politics, literature, art or current events around which are constructed puzzles appearing in separate issues of the publications, this fact alone does not confer upon these publications that degree of continuity or even the need for continuity which the Court had in mind in the Houghton and Hitchcock cases, supra .

Concerning the second issue, great stress was laid by the publisher upon what he considers to be the educational value of his publications, and he did state, of course, that the basic purpose of his publications was to "dispense public information". In any type of printed material that is intelligible reference must be made to persons, places, things, events, or concepts which form a part of the vast body of public information. There is no cohesion however in the manner in which these topics are mentioned in the solutions of the various puzzles throughout the series of publications. Rather they are disjointed, disconnected and unrelated words which are to be filled in horizontally and vertically without any semblance of logical sequence. Some of the puzzles require that the solver do a considerable amount of decoding before he is able to reach the solution of the puzzles. If anything, this type of puzzle impedes the spread of public information rather than contributes to its dissemination. It is also highly significant that the publisher of magazines which are used in schools throughout the country testified that crossword puzzles are an inadequate device to use to convey information because it is impossible for the constructor of the puzzle to deal with a subject in sufficient depth or to convey the constructor's ideas as to the way in which a topic should be interpreted. He also indicated that the use of a teaching device consisting solely of crossword puzzles would not be desirable because it would be too monotonous.

Insofar as Mr. Garrison is concerned, it would appear that if crossword puzzles were as valuable a teaching aid as his direct testimony would lead us to believe he would have found some means of employing them in his teaching over the past thirteen years, particularly in view of the fact that he has found comic books useful. Of course, it is true that comic books usually do present a story or a portion of a story in narrative form and in logical sequence. It may be that this is the reason why Mr. Garrison uses comic books, but has found no area of his teaching in which crossword puzzles would be useful.

It appears to me, and I find, that the chief merit of the puzzle material contained in these publications is that it affords entertainment to the solver and it is to fill this need and desire on the part of the solvers that the publications are originated and published and it is to this area of human activity to which they are devoted. Surely, if a person is desirous of obtaining some information regarding literature, the sciences, the arts or some special industry he would go to a proper source of reference to acquire that information. No such person would go to to the publications which are the subject of this proceeding and look through them until he found a puzzle which was constructed around the general topic in which he was interested, then work himself through all the extraneous material that would be required to arrive at the solution of the puzzle in the hope that he would get the precise information he was seeking. Such a course of action is utterly inconceivable. On the other hand, if a person is seeking relaxation or entertainment they might very well pick up any one of the publisher's issues and work through any puzzle that they came upon at random. I find as a fact that the publications with which we are here concerned are not originated and published for the dissemination of public information or devoted to literature, the arts, sciences or some special industry.

Finally, it seems to me that it is clear that all of the publications involved in this proceeding are composed primarily of novelty pages as that term is defined in Section 132.483. The vast majority of the pages contained in each issue of each publication that was received in evidence provide blank spaces for writing or marking. There is, therefore, no alternative to finding that these publications contravene the provision of the cited Section of the Manual.

Upon the basis of the entire record of this case, I conclude as a matter of law that the publications Crossword Pleasure, Today's Crosswords, Crossword Treat and Crossword Time do not comply with the statutes and regulations governing second-class mail, and the respective applications for original entry and re-entry of these publications into the mails as second-class matter are denied and the respective existing second-class permits are revoked.

Proposed findings of fact and conclusions of law submitted by the parties are adopted to the extent indicated herein. Otherwise such proposed findings of fact and conclusions of law are denied either for the reasons stated herein or because of their immateriality.

/s/

1/ " 224. Second-class matter. 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."

" 226. Same; conditions admitting publications to. 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, and bear a date of issue, and be numbered consecutively. Second. It must be issued from a known office of publication. Third. It must be formed of printed sheets: Provided, That publications produced by the stencil, mimeograph, or hectograph process or in imitation of typewriting shall not be regarded as printed within the meaning of this clause. Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers. Nothing herein contained shall be so construed as to admit to the second class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."

2/ Section 132.483 of the Postal Manual generally defines the term "novelty pages." Included in this definition are "*** Printed pages having blank spaces for writing or marking ***". It is provided, also that "*** The total number of novelty pages in the copies may constitute only a minor portion of the total pages

***".