In the Matter of the Complaint Against

FAIRFAX RECORD SALES CO.,

and

FAX RECORD COMPANY at
Los Angeles, California

P.O.D. Docket No. 1/160;

APPEARANCES:
Brock, Fleishman & Rykoff BY:
Hugh R. Manes, Esq. 1741 Ivar,
Suite 214 Los Angeles, California
for the Respondent

Ralph B. Manherz, Esq.
for the General Counsel
Post Office Department

DEPARTMENTAL DECISION

On July 13, 1959, the General Counsel for the Post Office Department, Complainant herein, filed a complaint charging that the Respondent was then and had been violating the provisions of Title 39 U.S.C. Section 259(a) in that they were and had been for sometime obtaining or attempting to obtain remittances of money or property through the mail for obscene, lewd, lascivious and indecent articles, matters, things, devices or substances specifically identified as phonograph records and that the Respondent was depositing or causing to be deposited in the mails advertisements, copies of which were attached to the complaint giving information as to where, how and from whom obscene, lewd, lascivious and indecent articles, matters, things, devices or substances might be obtained.

On July 27th, the Respondent through his Counsel filed an answer to the complaint in which he denied the allegations of the complaint and reserved the right to file a more formal answer after a bill of particulars had been furnished. On the same day, demand for bill of particulars was filed by the Respondent and also an application for the transfer of the hearing from Washington, D.C. to Los Angeles, California. On the same day an order was entered by the Hearing Examiner allowing counsel for the Complainant until July 31, 1959, to reply to Respondent's counsel's request for a continuance, demand for a bill of particulars and application for transfer. On July 31, the Complainant replied to the motions of the Respondent objecting to the continuance of the hearing until the latter part of September, furnishing a bill of particulars as requested and objecting to the transfer of the hearing as requested.

On the 31st day of July the Hearing Examiner entered an order denying the Respondent's motion to transfer the hearing and continuing the same to September 2, 1959. On August 7th the Complainant filed a motion for favorable action upon the Respondent's request for transfer of the hearing to Los Angeles for the reason that another case was to be heard at Los Angeles and on August 11th an order was entered by the Hearing Examiner setting three matters for hearing at 1:00 p.m. on September 25, 1959. The Initial Decision of the Hearing Examiner was filed on December 18, 1959, in which he adopted the conclusions of law submitted by the Complainant in this case and concluded that the Respondent herein was conducting a business in violation of Section 259(a), Title 39 U.S.C. and attached for signature by the Judicial Officer of the appropriate order for the suppression of the unlawful enterprise.

Appeal was taken from this Initial Decision and on January 4, 1960, brief on appeal together with other necessary accompanying documents including a request for oral argument were filed by the Respondent. On January 14th, the Complainant's reply brief on appeal was filed and on February 4, 1960, the Judicial Officer entered an order setting oral argument for February 16, 1960. On February 11th the Complainant filed an opposition to the oral argument. On February 15, 1960, the Judicial Officer entered an order denying the opposition of the Complainant to the oral argument and since the Respondent on February 9, 1960 had requested an extension of time for such argument and, on February 17th the Complainant, while renewing his objection to the oral argument of the case had suggested that if it was to be held it should be set down the week commencing February 29th but no earlier than March 1st - the Judicial Officer on March 2nd set the oral argument for March 16, 1960 at 10:00 a.m. and on March 9th at the request of Counsel for the Respondent the oral argument was continued to April 6, 1960, when same was heard.

The transcript of the oral argument has not yet been received and no assurance of its early delivery or in fact of any delivery thereof can be obtained so the Judicial Officer feels this decision should not be postponed any longer and will have to be determined from his notes made at the argument and from the file and record in this cause.

Prior to the oral argument the Judicial Officer read the transcript of testimony of the hearing held on September 25 and 28, 1959, in Los Angeles. Following the oral argument the Judicial Officer examined the exhibits and listened to the records here involved as well as those that were rejected and which accompanied the record as rejected exhibits.

At the oral argument the Counsel for Complainant contended that the record here in question "Erotica, The Rhythms of Love" is patently obscene and that the advertisements pertaining to such record give information as to where, how and from whom obscene, lewd, lascivious and indecent articles may be obtained.

Counsel for Respondent contended that the Hearing Examiner improperly excluded exhibits which were offered to establish contemporary community standards. ^1/ That obscenity can only be determined by applying contemporary community standards and that these rejected exhibits would show these standards and thus substantiate his claim that by these standards the recording "Erotica, The Rhythms of Love" is not obscene. This question will be hereinafter discussed.

We are concerned in this appeal with two issues:

1. whether or not the record "Erotica, The Rhythms of Love" is obscene; and

2. whether the advertisements of this record give information as to where, how and from whom obscene, lewd, lascivious and indecent articles, matters, things, devices or substances may be obtained.

It can readily be seen that if the record itself is found to be obscene, then certainly advertisements as to where it could be obtained would be unmailable under the statute.

The record "Erotica" is a recording of the sounds made by a man and a woman engaged in sexual intercourse. The exclamations, cries, moans, sighs, words and other sounds such as the rustling of sheets, the creaking of bedsrpings and the like brings out fully every possible sound made by the parties or by the bed on which the act of sexual intercourse takes place. There is no doubt in the mind of any listener as to what is being recorded.

Respondent contends that the advertisements are not obscene and since he also contends that the record itself is not obscene he insists that the advertisements may not be barred from the mails. If, however, the record is obscene then it follows as stated above the advertising material showing where this may be procured would be nonmailable under the statute.

Certainly the sounds of this record which leave nothing to the imagination as to what is going on, sounds which set forth the act of sexual intercourse in its most lustful aspect leaves nothing to the imagination and would certainly cause erotic and lustful sexual stimulation in the average normal person and would offend the standards of morality, modesty and decency of any community. It goes far beyond the "critical point in the compromise between candor and shame at which the community may have arrived here and now," as stated by Judge Learned Hand in U.S. v. Kennerly, D.C. 209 F. 119, 121.

Counsel for Respondent contends further that it was error for the Hearing Examiner to exclude the records which were offered to establish contemporary community standards and which were rejected by the Hearing Examiner, primarily, because they were offered in an attempt to establish the level of contemporary community standards, which type of proof he held was not appropriate in an administrative hearing. This was correct:

"If these exhibits were offered in proof of a community standard, it was unnecessary to receive them. The finder of fact in an obscenity issue is no more required to consider proof of the moral standards of the community than is a jury in a negligence case required to consider proof of the standard of due care. The issue of fact to be tried is whether the material in question is obscene under the standard laid down by the law, and the standard itself is not in issue."

Klaw v. Schaffer, 151 F.Supp. 534, 540, affirmed 251 F.2d 615.

The material here under consideration deals with sex in a manner appealing to the prurient interest of the listener and certainly a thing is obscene if considered as a whole its predominant appeal is to prurient interest. Here we have a record bound to stir up a shameful and morbid interest in sex that goes substantially beyond the customary limits of candor in description or representation of such matters. See Roth v. U.S., 354 U.S. 476 and the definition of obscenity advanced by the American Law Institute Model Penal Code, Section 207.10(2) cited therein.

I therefore find:

1. that the record "Erotica, The Rhythms of Love" is obscene per se and;

2. that the advertisements of this record give information as to where, how and from whom obscene articles may be obtained.

I further find that holdings of the Hearing Examiner as to the proposed findings of fact and conclusions of law submitted by the parties hereto are correct and they are affirmed.

The Respondent is conducting a business in violation of Section 259(a), Title 39 U.S.C. and order for the suppression thereof shall issue forthwith.

05/17/60

Kelly, Raymond J.

1/ These excluded exhibits were the following phonograph records: a recording by Les Baxter entitled "The Passions" featuring Bas Sheva; a recording on the Capitol label entitled "Party Time" by Julia Lee and Her Boyfriends; a recording on International label containing themes from the original sound track of the motion picture "The Mating Urge" composed and conducted by Stanley Wilson; a record on Hi-Fi Recording label entitled "Taboo" and sub-titled "The Exotic Sounds of Arthur Lyman"; and RCA Victor record of "Nights in the Gardens of Spain" By Falls recorded by the San Francisco Symphony Orchestra with Arthur Rubinstein at the piano; a Mercury recording on one side of which is "Capriccio Espangnol" by Rimsky-Korsakov and on the other side of which is "Bolero" by Ravel, recorded by the Detroit Symphony Orchestra; a Mercury record containing recordings of "La Tragedie De Salome" by Florent Schmitt, "Salome: Dance of the Seven Veils" by Richard Strauss and "Namouna: Suite No. 1" by Edouard Lalo; and a Columbia Record entitled "Pagan Festival" featuring the music of Dominic Frontiere and his orchestra."