In the Matter of the Complaint That

ALFRED J. HEINECKE
at Lakewood, New Jersey
and Jackson, New Jersey
(hereinafter called Respondent)

is engaged in conduct violating 39 U.S. Code 259a.

11/28/60

Kelly, Raymond J.

APPEARANCES:
Saul J. Mindel, Esq.;
James F. Harding, Esq.;
Office of the General Counsel,
Post Office Department for the Complainant

O. John Rogge, Esq.;
401 Broadway,
New York, New York for the Respondent and

Stanley M. Dietz,
210 C Street, N.W.,
Washington, D.C. for the Respondent

DEPARTMENTAL DECISION

This matter comes before the Judicial Officer upon an appeal and exceptions filed herein on November 2, 1960 from the Initial Decision of the Hearing Examiner dated October 3, 1960.

In this matter a complaint was filed on May 20, 1960 by the Post Office Department against the Respondent herein wherein it was alleged that Respondent was violating the provisions of Title 39, United States Code, Section 259a in that he had for some time been obtaining or attempting to obtain remittances of money or property through the mails for obscene, lewd, lascivious and indecent articles, matters, things, devices or substances described in such complaint as photographs and drawings of nude males and that Respondent was depositing or causing to be deposited in the mails advertisements giving information as to where, how and from whom obscene, lewd, lascivious and indecent articles, matters, things, devices and substances may be obtained.

On June 8, 1960, Respondent filed an answer herein denying all the allegations of the complaint and alleging that the photographs and drawings of the male nude are not obscene. The matter was assigned to a Hearing Examiner and hearing was held in Washington, D.C. beginning on June 15, 1960 and continued on request of Counsel for Respondent to July 7, 1960 at which time the hearing was completed.

At the hearing Respondent's Counsel presented a trial memorandum which to some extent modified the general denial in Respondent's answer by specifically admitting that Respondent "sends through the mails photographs and drawings of nude males." Respondent contended however that such conduct was legal because he feels and believes his pictures have "artistic merit". From an examination of the transcript and the files and record in this case I must conclude that the Hearing Examiner was correct in his findings of evidential and ultimate facts as follows:

1. The respondent, Alfred Heinecke, is in the business of advertising for sale and selling through the mail photographs of young men or boys in the nude. (Respondent's testimony, his advertisements, stipulations of counsel, and the photographs, Exhibits A-5, D-2 through D-8, E-2 through E-51, H-1 and H-2, establish these facts).

2. The subjects of those photographs are so posed as to disclose and, in some instances to emphasize, the genitals, pubic areas and buttocks. (Examination of the photographs shows this).

3. The main appeal of the photographs is to male homosexuals. (Dr. Caprio's testimony, as an expert, is significant).

4. The Respondent knowingly produces and advertises the photographs for male homosexuals. (This is inferred from the nature of the photographs, the nature of the publications in which they are advertised and Dr. Caprio's testimony. The Respondent's testimony to the contrary is not worthy of belief. He deliberately falsified his testimony, on direct examination, about not having violated any laws, except for small traffic violations, but cross-examination established beyond preadventure his plea of guilty in December, 1954, under the laws of New York (Penal Law Section 483) to what appears to have been a morals charge involving a boy under age sixteen, whose photographs in the nude he took. Since Respondent lied about that situation it may be inferred, and I do infer, that he falsified other matters too. This Hearing Examiner's observations of the Respondent's demeanor on the witness stand tend to confirm the finding concerning the credibility of his testimony. The Respondent's conduct in asking those who send for his pictures of male nudes to sign a statement concerning their occupation is mere sham and subterfuge, designed by Respondent to conceal, or cover up to some extent, that he knowingly produces and advertises the pictures for a homosexual audience).

5. The predominant appeal of the photographs, as a whole, is to the prurient interest of male homosexuals, who would therefore appear to be the persons generally purchasing the pictures and the persons the pictures are intended to reach. In this sense, male homosexuals are the average viewers or recipients of the photographs. To assure heightened appeal to the prurience of his homosexual customers, Respondent advertises his photographic subjects by age in order to meet special age predilections of such customers. (Dr. Caprio's testimony supports these findings).

6. The photographs have no significant artistic merit and no other socially redeeming qualities. In any event, the appeal of the photographs to the prurient interest of average viewers or recipients greatly outweighs any possible claim of photographic art. (The testimony of qualified experts, John Davis Francis and Frank C. Huseman, supports this finding, when that testimony is considered in conjunction with the testimony of Dr. Caprio and an examination of the photographs. Respondent's testimony about the artistic merit of his photographs is a gross exaggeration and unworthy of belief for reasons indicated in item 4, above, among others).

7. The photographs generally do not appeal to the prurient interest of the average or ordinary person. (Dr. Caprio's testimony supports this finding).

8. The advertising used by Respondent, whether it is in magazines designed for and distributed primarily to male homosexuals, or in his own catalogue and brochures, contains the leer that promises obscene pictures.

9. The photographs sold by the Respondent, for which he receives remittances of money through the mails, are obscene, lewd, lascivious and indecent. Their dominant theme and effect is an appeal to the prurient interest of those who are average viewers, namely, the persons to whom the photographs are directed and for whom they are designed. They lack any significant artistic or other socially redeeming qualities. They go substantially beyond customary limits of candor and predominantly appeal to a shameful or morbid interest in nudity.

10. Respondent's advertisements, distributed by mail, give information as to where, how and from whom obscene things may be obtained, as shown by the content of the advertisements as well as by the nature of the pictures furnished.

It is further apparent that under pertinent legal authorities and cases cited in the briefs filed in this matter by the respective parties that the Hearing Examiner's conclusion as a matter of law was correct when he held that:

Within the meaning of 39 U.S.C. 259a Respondent is obtaining, or attempting to obtain remittances of money through the mails for photographs that are obscene, lewd, lascivious and indecent. The photographs have for their dominant theme and effect an appeal to the prurient interest of those who are average viewers, namely, the persons for whom the photographs are designed and to whom they are directed. They lack any significant artistic or other socially redeeming qualities. the record discloses that an ad of the Respondent appeared in the November 1958 and the May 1960 issues of TRIM MAGAZINE. A Postal Inspector saw the November 1958 issue of TRIM and entered into correspondence with the Respondent herein as a result of which he received through the mails from the Respondent a number of nude photographs which were all entered as exhibits in the files and record herein and also a circular (Exhibit A4) which the Respondent has been sending through the mails accompanied by nude photographs.

The exhibits in the record also reveal a great number of other nude photographs which had been sent through the mails and which were so posed as to disclose and frequently to emphasize the male genitals, pubic areas and buttocks.

The issue herein is whether the sale of these photographs of nude boys and men through the mails is a violation of 39 U.S. Code 251a in the light of applicable decisions concerning obscenity. The Complainant contends that they do violate the statute because of the context in which they are presented by the Respondent and the manner in which they are sold and that the "average man test" would apply to the average man in the average audience which is to receive the material sent out by the Respondent and that it would not necessarily apply to the average man in the community as a whole.

The Respondent contends that these photographs of nude males which they admit sending through the mail are not obscene because they would not appeal to the prurient interest of the average person in the community and relies upon the wording of the Roth case that the test is whether to the average person applying contemporary community standards the dominant theme as a whole appeals to the prurient interest.

The Psychiatrist, Dr. Frank S. Caprio, testified that the pictures presented in the catalogues sent out by the Respondent (Exhibit A4) were presented in such a way and in such a design that their appeal would be primarily to the prurient interest of the homosexual and that there was definitely not any artistic appeal therein. He further testified that the dominant appeal of all the pictures of the nude male introduced in evidence would be to established homosexuals and that to the homosexual viewing these pictures the dominant interest would be one of sexual arousement of such homosexual male.

In the case of Manual Enterprises, Inc., et al., P.O.D. Docket No. 1/246, we held that the contents of the magazines in evidence therein would not appeal to the ordinary male adult - that he would have no interest in them and would not buy them under ordinary circumstances - that the readers of those publications consisted almost entirely of male homosexuals and possibly a few adolescent males. We held further that the magazines there in evidence would appeal to the prurient interest of those who did red them - that the magazines were beamed to the homosexual group and would have an appeal to them.

We further held in Manual that the average reader of the magazines was the male homosexual and that magazines appealed to the prurient interest of the average reader thereof - that the average male adolescent who might be attracted to those magazines would be in danger of being lured into the abnormal paths of the homosexual and that it is the effect the magazines have upon the audience for whom they are published and who are interested in them and who purchase and read them that must be considered. Since the magazines there involved had been deliberately planned to appeal to the male homosexual audience that this particular group thus becomes the predominant audience who buy and read these publications and so the male homosexual becomes the average reader and the magazines do appeal to the prurient interest of that group.

As pointed out by the Hearing Examiner our Departmental Decision in Manual was upheld by United States District Court for the District of Columbia on August 17, 1960 in Civil Action No. 1450-60.

The Hearing Examiner points out in his Initial Decision that:

The American Law Institutes Model Penal Code, Tentative Draft No. 6, pages (1) and (2) recognizes that although obscenity is to be judged generally by reference to ordinary adults, it must be judged with reference to a "specially susceptible audience if it appears from the character of the material or the circumstances of its dissemination to be especially designed for or directed to such an audience."

The discussion and conclusions of the Hearing Examiner are adopted as follows:

The opinion of the Court (per Mr. J. Brennan) and the concurring opinion of Mr. C. J. Warren, in Roth v. U.S., 354 U.S. 476 do not preclude the foregoing legal conclusion. Language supporting the conclusion will be found in: U.S. v. Levine, 83 F. (2d) 156, (C.C.A. 2); Klaw v. Schaffer, 151 F.Supp. 534, aff'd. 251 F.(2d) 615, (C.C.A. 2), judgment vacated for failure to substitute party defendant in 357 U.S. 346; U.S. v. 31 Photographs, 156 F.Supp. 350 (D.C.S.D.N.Y.).

Cases cited in the brief of Respondent's counsel demonstrate beyond question that much, once considered "obscene" by the Post Office Department, the United States District Courts and United States Courts of Appeal, has been considered otherwise by the United States Supreme Court. Three post-Roth illustrations will suffice. Certain issues of nudist publications, Sunshine & Health and Sun Magazine were determined not to be obscene in Sunshine Book Company v. Summerfield, 355 U.S. 372, rev'g. 249 F.(2d) 114 (C.A.D.C.) which affirmed 128 F.Supp. 564. So also the film "The Game of Love," Times Film Corp. v. City of Chicago, 355 U.S. 35, rev'g. 244 F.(2d) 432 (C.C.A. 7). In a third case One Inc. v. Oleson, 355 U.S. 371, rev'g. 241 F.(2d) 772 (C.C.A. 9) the Court held a magazine called "One" which was beamed at homosexuals not to be obscene. I have read the brief per curiam opinions of the Supreme Court in the three cases in conjunction with the opinions of the Courts below which described in some detail the alleged "obscenity". Suffice to say, that I am nevertheless persuaded that Respondent's photographs in the case before me constitute obscenity, under 39 U.S.C. 259a, because of (i) the high degree of appeal to the prurient interest of average viewers (ii) the absence of artistic or other socially redeeming qualities, and (iii) surrounding circumstances. Respondent's deliberate pandering, at a price, to the prurient interest of homosexuals with photos of nude boys, exhibiting genitals, pubic areas and buttocks, and described by age apparently to meet special predilections of customers is, in my view, a particular vicious course of conduct involving the sale of obscene things, and within the very narrow area left open to proper governmental controls, by the opinions of the Supreme Court, per Mr. Justice Brennan, on the constitutionality of the federal criminal obscenity statute, 18 U.S.C. 1461,in Roth v. U.S., supra.

Nudity, in many contexts, is according to court decisions compatible with community standards of candor. In the present case the nude photographs, as sold by Respondent, would in my opinion be generally considered quite shameful, in view of (i) the high degree of deliberate appeal to, and commercial exploitation of, the prurient interests of homosexuals and (ii) the lack of artistic or other socially redeeming qualities in the photographs.

It is interesting to point out that this view finds support in the very recent decision of State v. Jackson, in the Oregon Supreme Court decided October 19, 1960.

The Hearing Examiner also found:

Respondent's advertisements in magazines and in catalogues he distributes by mail give information as to where, how and from whom obscenity may be obtained, all contrary to the provisions of 39 U.S.C. 259a. U.S. v. Hornick, et al., 131 F.Supp. 603, aff'd 229 F.(2d) 120,(C.C.A. 3); Klaw v. Schaffer, supra.

The record amply supports this conclusion which is hereby approved and adopted.

I therefore find:

a. that the photographs and drawings of nude males here involved are obscene, lewd, lascivious and indecent within the meaning of 39 U.S.C. 259a;

b. that the Respondent has been obtaining or attempting to obtain remittances of money or property through the mails for obscene, lewd, lascivious and indecent articles, matters, things, devices or substances;

c. that the Respondent has been depositing or causing to be deposited in the mails advertisements giving information as to where, how and from whom obscene, lewd, lascivious and indecent articles, matters, things, devices or substances may be obtained.

Findings of fact and conclusions of law submitted by the parties are adopted to the extent they are covered herein otherwise they are rejected.

Order in the form provided for in 39 U.S.C. 259a will issue forthwith.