In the Matters Concerning

MANUAL ENTERPRISES, INC.,
et al. at Washington, D. C.

P.O.D. Docket No. 1/246

April 28, 1960

Raymond J. Kelly Judicial Officer

APPEARANCES:
Stanley M. Dietz, Esq.
1406 G Street, N.W. Washington, D.C.
Attorney for the Mailer-Petitioner

Richard S. Farr, Esq.,
James F. Harding, Esq. and
Saul J. Mindel, Esq.
Attorneys for Complainant-Respondent,
Post Office Department

POST OFFICE DEPARTMENT, Washington 25, D. C.

DEPARTMENTAL DECISION

In the above matter the General Counsel's Office of the Post Office Department on April 5, 1960, made a finding to the effect that the April issue of the magazine MANUAL was non-mailable under the terms of 18 U.S.C. 1461 (Postal Manual 124.31) and on April 11, 1960, the Mailer-Petitioner herein filed an appeal from this finding and requested a formal hearing of all the issues involved.

On the same day, April 11, 1960, the Judicial Officer entered an order herein setting forth that since it appeared from the verified appeal that the matter offered for mailing was of substantial value and quantity that the General Counsel should initiate forthwith a complaint under the Post Office Department Rules of Practice and Proceedings Relative to Mailability.

On April 14, 1960, the General Counsel filed a complaint in which they alleged that certain parcels containing magazines placed in the mail at Alexandria, Virginia on March 25, 1960, on behalf of Manual Enterprises were non-mailable under 18 U.S. C. 1461, Postal Manual 124.31 and that 255 copies of the April 1960 issue of the magazine MANUAL, 75 copies of the May 1960 issue of the magazine TRIM and 75 copies of the May 1960 issue of the magazine GRECIAN GUILD PICTORIAL were obscene, lewd, lascivious and indecent as the dominant effect of each, considering pictorial and textual context taken as a whole, appeals to the prurient interests of the audience to whom they are intended to be directed or disseminated. A hearing on said complaint was set for April 21, 1960, and the matter assigned to a Hearing Examiner.

On April 14, 1960, the General Counsel's office, Complainant herein, moved to strike from the caption of this case "FIZEEK ENTERPRISES, INC." which was named in this proceeding because of its inclusion as one of the plaintiffs in the related court proceeding Manual Enterprises, Inc., et al. v. Summerfield , U.S.D.C., D.C. Civil Action No. 1082-60, and for the further reason that there were no copies of FIZEEK magazine contained in the parcels presently withheld from dispatch as recited in the original complaint herein. This motion was granted.

On April 18, 1960, the Mailer-Petitioner filed what was entitled appeal of TRIM ENTERPRISES, INC. and GRECIAN GUILD, a body corporate from the finding of the General Counsel's Office of the Post Office Department of April 7, 1960, and on April 18, 1960, the Complainant filed a motion to amend the complaint by adding at the end of the first paragraph "and that said magazines provide information as to where, how and from whom obscene pictures may be obtained." Such amendment is allowed.

On April 25, 1960, an order which had been entered in the Manual Enterprises, Inc., et al. , plaintiff v. Arthur E. Summerfield , defendant, Civil Action No. 1082-60, in the United States District Court for the District of Columbia and which had been filed in said court on April 14, 1960, was received by the Judicial Officer and made a part of this file. In this order it appears that the motion of the plaintiff in that case for a preliminary and permanent injunction was denied by the District Court and the complaint was dismissed without prejudice with the proviso "that if the Post Office Department has not acted finally and completely in the matter by April 28, 1960, the plaintiff may seek further relief from the court."

On April 25, 1960, a stipulation of procedures signed by both parties was filed herein in which MANUAL ENTERPRISES, INC. et al., P.O.D. Docket No. 1/246 and FIZEEK ENTERPRISES, INC., P.O.D. Docket No. 1/235 were consolidated for hearing, which hearing it was agreed therein would be presided over by the Judicial Officer and at that hearing testimony and evidence would be received on the mailability of FIZEEK as well as the magazines MANUAL, TRIM, and GRECIAN GUILD PICTORIAL and that the questions and issues of fact and law involved in the matter of the application of FIZEEK for second-class entry would be heard at a subsequent date to be determined by agreement by the parties and that the Judicial Officer shall enter two separate orders - one dealing with the mailability question on the issues of MANUAL, TRIM and GRECIAN GUILD PICTORIAL now being withheld from dispatch from the Alexandria, Virginia, Post Office and the other order dealing with the application of FIZEEK for second-class entry. Further that the transcript for the consolidated hearings shall remain as a part of the physical record in Docket No. 1/246 and would be incorporated by reference in pertinent parts in the record in the FIZEEK second-class entry proceeding (P.O.D. Docket No. 1/235), and that the Judicial Officer enter his final orders herein without the filing of exceptions by the parties.

In accordance with said stipulation and the pleadings on file herein, the Departmental Decision in this matter will be confined to the question of mailability of the magazines TRIM, MANUAL and GRECIAN GUILD PICTORIAL, and the questions and issues involved in the application for second-class entry for the several issues of FIZEEK magazines shall be subject to a separate Departmental Decision in that matter following further hearing on the application for second-class entry therein.

Full and complete hearings were had before the Judicial Officer on April 21, 22 and 25 and on both April 21st and the 25th the hearings ran several hours past the usual time for adjournment and into the early evening hours in an effort to expedite and conclude the hearings so as to meet the spirit of the order issued by the District Court as above set forth.

Numerous exhibits were entered by both parties - the Mailer-Petitioner having introduced copies of the magazines in question here as exhibits numbered one through eleven - the first four of which were magazines involved in this decision and the balance being copies of the magazine FIZEEK which is concerned in the second-class entry case as above set forth.

Expert witnesses were called on both sides. The Respondent-Complainant produced Dr. Frank Caprio, a practicing psychiatrist who has had considerable experience in the treatment of homosexuals and who testified at length regarding the effect of the pictures in the magazine in which the subjects were posed in such a fashion as to focus attention on the genitals or buttocks of the male subjects and the emphasis thereon was heightened by tight revealing coverings, by their postures, by the contrasting dress of the subjects of pictures on the same or opposite pages and by the overall context of the publications. Dr. Caprio further testified that the readers of said publications would consist of male homosexuals and that these publications would have a malevolent effect upon some adolescent males should they fall into their hands.

The testimony of Dr. Caprio was supported also by the testimony of Dr. Joseph D. McGovern, a psychologist, and it was stipulated between the parties in the interest of expediting the hearing that another witness of the Respondent-Complainant herein, Dr. John H. Cavanaugh, a physician, who is also a psychiatrist, would testify to the same facts and opinions as did Dr. Caprio.

The Mailer-Petitioner produced Dr. Michael Miller, as an expert witness whose practice involved psychiatry in the treatment of homosexuals. Dr. Miller, who examined all the books in evidence, testified that the average normal person would not be interested in this type of publication - that these publications would not appeal to the prurient interests of the average normal person and that the books themselves would not make a homosexual out of an ordinary person. Dr. Miller further testified that the average normal person would not be likely to purchase these publications but that some homosexuals would be interested in them. The Mailer-Petitioner likewise produced Dr. S. Gordon Link, a non-medical psycho-therapist who gave as part of his qualifications the fact that he was a practicing psychologist and was a fellow in the American Association of Social Psychiatry. He likewise testified that the dominant theme of the magazines in question here would not appeal to the prurient interest of the average person and that he did not believe any of these books would cause a young man to become a homosexual and that it would have no effect on the average adult but might conceivably have an effect on homosexuals. He admitted that the focusing of the attention on buttocks would have an appeal to a homosexual and that some homosexuals might order the pictures advertised in the magazines and that the context of these magazines was important and that it would have an accumulative effect upon homosexuals.

Harry J. Simon, Postal Inspector testified he met Mr. H. Lynn Womack, the publisher of these magazines and owner of the organization of the Mailer-Petitioner in this case in March of 1959, when he, Mr. Womack, came to the witness' office to discuss the magazine TRIM. Mr. Simon at that time advised Mr. Womack that some of the advertisers in this magazine had been convicted of sending obscene matters through the mail and suggested that he, Mr. Womack, might be violating the law by furnishing information in his publications as to where obscene material might be obtained. The witness further testified that he discussed the April 1959 issue of FIZEEK and Mr. Womack admitted that this magazine was purchased by homosexuals. The witness further testified that on July 31, 1959, accompanied by Boyd Fielder, a Postal Inspector, he met Mr. Womack in connection with investigations being conducted on Continental Artists of which Mr. Womack is the sole owner.

There was considerable testimony of Post Office Inspectors and employees and many exhibits were introduced which tended to show that through the ads carried in the magazines here in question, the printing in each issue of a directory providing information as to where photographs and pictures of the type appearing in these magazines could be obtained tended to furnish information to show where obscene material could be obtained. The evidence also revealed how, following receipt of the initial order of pictures and photographs of the kind and type appearing in these publications, there would be follow-up circulars and solicitations from the advertisers, the persons or firms furnishing the pictures or those listed in the Directory, for other and further nude male pictures from these advertisers or others which would have a prurient interest to homosexuals. These procedures led finally to the receipt of what is known as hard-core pornography in the shape of photographs, sketches, pictures and colored slides of males engaged in sex acts with each other, which no one would question were of the type that would appeal to the prurient interests of anyone who would have any desire to look at them.

It appears to the Judicial Officer that the record in this case clearly shows that the issues of the magazines TRIM, MANUAL and GRECIAN GUILD PICTORIAL in evidence here (Exhibits 1, 2, 3 and 4) consist almost entirely of photographs of young men in nude or practically nude poses handled in such a manner as to focus attention on their genitals or buttocks or to emphasize these parts by tight revealing coverings, by the posture of the models, by contrasting dress on the same or opposite pages and by the overall context of the respective publications.

It further appears to the Judicial Officer that the contents of these magazines would not appeal to the ordinary male adult, that he would have no interest in them and would not buy them under ordinary circumstances and that the readers of these publications consist almost entirely of male homosexuals and possibly a few adolescent males and that these magazines would appeal to the prurient interest of those who do read them. Further, the publisher has admitted that the magazines are knowingly published to appeal to the male homosexual group.

It further appears to the Judicial Officer that there is no amount of literary, scientific or other material in these issues of the publications which would in any way offset the effect of the main contents of these magazines, namely, the published pictures.

It further appears to the Judicial Officer that the advertising contained in the several issues placed in evidence herein is of the same general character as the publication itself and would have the same general appeal to homosexuals and contains an implied promise of obscene pictures to those answering such ads and that in fact the pictures furnished by the advertisers in the magazines have a predominant appeal to the prurient interest of the male homosexual as do the pictures contained in the magazines themselves which as before stated is a prurient one so far as the homosexual is concerned and has the effect of sexual excitement to the male homosexual.

It further appears to the Judicial Officer that the average reader of these magazines is the male homosexual and that each of the issues in evidence here considered fully as a whole in each instance appeals to the prurient interest of the average reader of such magazines and that the average male adolescent who might be attracted to each of the issues here involved would be in danger of the possible luring of such an adolescent reader into the abnormal paths of the homosexual.

Counsel for the Mailer-Petitioner contends that in order to be non-mailable these magazines would have to appeal to the prurient interests of the average normal person in the community. With this contention, I cannot agree. If they appeal to the prurient interest of those male homosexuals for whom they are admittedly published, those who actually purchase and read them then those whom they would be unlikely to reach and for whom they would have no interest, who would not purchase or read them, would not furnish a standard to judge the appeal they would have to those they are likely to reach. It is the effect they have upon the audience for whom they are published and who are interested in them and who would read them that is the important issue here presented.

The publisher of the issues here involved has deliberately planned these publications so that they would appeal to the male homosexual audience and thereby this particular group becomes the predominant audience who would buy and read these publications. Thus, the male homosexual becomes the "average" reader and these magazines do appeal to the prurient interest of the group who purchase and read these publications.

It further appears to the Judicial Officer that the ads in the publications here involved are likewise clearly designed so as to attract the male homosexual and to furnish him with names and addresses where nude male pictures in poses and conditions which would appeal to his prurient interest may be obtained; that the pictures thus obtained would appeal to the prurient interest of such male homosexuals as would read and answer the ads therein contained and if followed up and fully pursued would eventually lead to the procurement of so-called "hard-core" pornographic material.

The Judicial Officer has had the benefit of proposed findings of fact and conclusions of law submitted by the Mailer-Petitioner and likewise of those submitted by the Complainant-Respondent and in this connection the argument attached to the findings and conclusions of the Complainant-Respondent contains a very exhaustive and quite complete statement of the law covering the legal questions here presented and has been of great benefit to the Judicial Officer in conserving time and research in order that a speedy Departmental Decision in accordance with the Rules of Practice in these hearings as well as the wishes of the District Court might be reached.

I therefore determine that the several issues of the magazines here involved and each of them is obscene, lewd, lascivious and indecent so as to render each and all of them non-mailable under 18 U.S.C. 1461 for the reason they have as their dominant theme and effect taken as a whole an appeal to prurient interest considering their effect upon the average reader for whom they are designed and published and who are the special audience to whom they are directed, and to whom the magazines are sold and by whom they are read.

I further find that the magazines give information as to where, how and from whom obscene materials may be obtained in violation of 18 U.S.C. 1461 as determined by the tenor of the advertisements and by the kind and nature of the pictures furnished pursuant thereto as disclosed by the evidence and exhibits in the record.

The proposed findings of fact and conclusions of law including the argument, which contains an excellent brief of the law pertinent hereto, as submitted by the Complainant-Respondent are hereby adopted and the proposed finding of fact numbered three submitted by the Mailer-Petitioner as well as conclusions of law numbers one and two submitted by him are hereby rejected. Mailer-Petitioner's proposed findings of fact numbers 1 and 2 are covered by similar findings in those submitted by Complainant-Respondent and are adopted.

I therefore find that all of the magazines or publications here involved; namely, the April 1960 issue of MANUAL (Exhibit 1), the May 1960 issue of TRIM (Exhibit 2), the May 1960 issue of GRECIAN GUILD PICTORIAL (Exhibit 3) and the March 1960 issue of Trim (Exhibit 4) are nonmailable under 18 U.S.C. 1461.