In the Matter of the Complaint That

parcels containing books, mailed at
Chicago, Illinois by
NEWSSTAND LIBRARY, INC.,
5143 Diversey Avenue,
Chicago, Illinois

are nonmailable under 18 U.S.C. 1461.

P.O.D. Docket No. 1/282

October 10, 1960

Jesse B. Messitte Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON, D. C.

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

Berry & Simmons
907 Rockford Trust Building
Rockford, Illinois for the Mailer
(attorneys filed answer, but prior to hearing
date withdrew as counsel, according to information
received by telephone by Hearing Examiner)

INITIAL DECISION OF HEARING EXAMINER

This case concerns the mailability, by reason of alleged obscenity, of certain parcels deposited for mailing at Chicago, Illinois, by the Mailer, Newsstand Library, Inc.

The Complainant (General Counsel of the Post Office Department) in the complaint, as amended, (1) alleged the parcels to be nonmailable under 18 U.S.C. 1461 (2) listed by book title and author's name nineteen books allegedly "obscene, lewd, lascivious and indecent" and (3) alleged that circulars contained in the parcels are nonmailable under 18 U.S.C. 1461 because they give information as to where, how, and from whom obscene, lewd, lascivious and indecent matters (all the books listed in the complaint except the books "Daughter of Joy" and "Red House on Green Street") may be obtained. The Mailer's answer to the complaint, as amended, denied the allegations in respect to the nonmailability of the books and circulars. The Mailer also filed a motion to transfer the place of hearing from Washington, D. C. to Chicago, Illinois, but when offered an opportunity by this Hearing Examiner to supply facts showing reasons for such a transfer the Mailer failed to do so, and later in a telephone conversation between this Hearing Examiner and a representative of the Mailer, the Mailer disclosed that it had abandoned its request for a transfer of the place of hearing. In that telephone conversation the Mailer also indicated that (1) it no longer had counsel in this proceeding (2) the Mailer might, perhaps, decide not to continue mail distribution of the allegedly obscene books (3) the Mailer had not decided whether or not it would have someone attend the hearing in Washington, D. C. but the Mailer would surely advise this Hearing Examiner of its plans concerning that matter prior to the hearing. This Hearing Examiner has not, however, received any further communication from the Mailer or anyone on its behalf.

At the time and place scheduled for the hearing on October 4, 1960 there appeared before this Hearing Examiner a representative of the Complainant. No one appeared for the Mailer. Nevertheless in accordance with Rule 7 of the applicable Rules of Practice in Proceedings Relative to Mailability (24 F.R. 4026; 39 C.F.R. Part 203) this Hearing Examiner received the evidence of the Complainant. The Complainant also orally presented proposed findings of fact and conclusions of law and these were recorded in the transcript. Under Rule 10, it would appear that the Hearing Examiner is expected to "render an initial decision within five days of the conclusion of the hearing." (It is hoped that this Rule will be changed by the Judicial Officer of the Post Office Department at an early date so as to allow a more nearly reasonable time for the Hearing Examiner's decision particularly in a case such as this where the Hearing Examiner is required to read nineteen books averaging more than 150 pages per book, make an appraisal of literary values or other socially redeeming qualities in each book and balance those against appeals to prurience, for the average man and under contemporary community standards.)

The evidence supplied by the Complainant consisted only (1) of the nineteen books listed in the complaint (2) a copy of one of the circulars advertising seventeen of those books and (3) copies of the correspondence between the Complainant and the postmaster at Chicago concerning the parcels containing the books listed in the complaint, some other books, and the circulars advertising the books alleged by the complaint to be nonmailable. The Complainant offered no evidence by experts or other qualified witnesses in respect to literary or other socially redeeming qualities of the books, contemporary community standards, or the dominance in each book of material and theme appealing to prurient interest. While such evidence may not be essential, so that its absence would, in the event of court review, constitute reversible error, the lack of it in this case subjected the Hearing Examiner to an excessive burden, particularly in view of the five day limitation for issuing a decision. Judge Hoffman has indicated that an administrative determination, made pursuant to the Administrative Procedure Act, of obscenity under 18 U.S.C. 1461 supported by substantial evidence would not be disturbed by the court, and the administrative agency order would be affirmed, in the absence of legal invalidity for other reasons. If that view is sound, it surely behooves the Complainant to consider seriously whether in cases such as this it would not be far preferable to present a reasonably wide evidential base to support a requested finding of obscenity, rather than limit his presentation of evidence to the minimum amount. (See Judge Hoffman's Memorandum Decision Big Table, Inc. v. Schroeder, June 30, 1960, No. 59 C 1382, United States District Court at Chicago, Illinois).

The failure of the Mailer to present evidence or proposed findings and conclusions rendered the task of decision more difficult. Upon review of this decision, if any, the failure of the Mailer to present its facts and views to the Hearing Examiner should, perhaps, be taken into account in considering the scope of review that is proper.

The nineteen allegedly nonmailable books, as listed in the complaint, are the following:

Title                                                              Author

"Any Two Can Play"                                   James L. Rubel

"Bitter Love"                                                Don King

"The Censored Screen"                              Brian Dunn

"Demands of the Flesh"                              March Hastings

"Dark Desire"                                               G. H. Smith

"Daughter of Joy"                                       James Harvey

"The Devil's Lash"                                       Louis Karney

"Fear of Incest"                                           March Hastings

"First Person, Third Sex"                             Sloane Britain

"The Gorgeous Devil"                                  George H. Smith

"The Peddlers"                                             G. A. Graeme

"Prostitute"                                                   Nancy Dean
(20 Years Behind Red Curtains)

Title                                                              Author

"Savage Breed"                                           William K. Douglas

"Red House on Green Street"                      Wanda Lane

"Rip Tide"                                                     James Harsh

"Swamp Bred"                                            George H. Smith

"The Soft Whip of Passion"                         G. H. Smith

"The Tenement Kid"                                     Karl Edd

"Veil of Torment"                                         March Hastings

18 U.S.C. 1461, so far as here pertinent, reads:

"Every obscene, lewd, lascivious, indecent *** article,
     matter, thing, device or substance; and --

*      *      *      *      *      *      *      *

"Every written or printed *** circular *** or notice of
     any kind giving information, directly or indirectly, where, or
     how, or from whom *** any of such mentioned matters, articles,
     or things may be obtained ****

*      *      *      *      *      *      *      *

"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."

*      *      *      *      *      *      *      *

With the exception of one book, described below, I find each of the books, here under consideration, obscene, in the sense, that "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Roth v. U. S. , 354 U. S. 476, 489. Each of the eighteen books, I find to be obscene: deals with sexual intercourse of a nature and in a manner well calculated to arouse considerable prurient interest; lacks literary merit or other socially redeeming qualities so as to offset significantly the strong appeal to prurient interest; and, contains pictures on the front cover and excerpts on the rear cover well-designed to heighten, and commercially exploit, the appeal to prurient interest. Some of the books (such as Exhibit 25 - "Veil of Torment") contain in about the middle of the book (following page 96) an elaborate advertisement for the "Reserve Copy Club" whose members are said to receive "fiction stories, carefully selected for mature, broadminded men and women" and the advertisement includes excerpts from several of the Mailer's other books which are obviously designed to heighten, and commercially exploit, the appeal to prurient interest. It is true that the degree and nature of appeal to prurient interest is not identical in each of the eighteen books; nor is the style or quality of the writing in each identical; nor are the plots or subject matter always the same. What is present in each book, in my opinion, is such detailed and lurid descriptions of various acts of sexual intercourse, and closely related matters, that to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. There is material which, to quote Judge Woodbury, "portrays sex with a loose lipped, sensuous leer." Flying Eagle Publications, Inc. v. United States, 273 F.2d 799, 803 (C.C.A. 1). There is a vast chasm between (1) the lowliness of literary and other socially redeeming qualities of the books, listed in the complaint in this proceeding, and (2) the very high literary distinction and socially redeeming qualities, found by the Courts, in the publications considered in Grove Press, Inc. v. Christenberry , 276 F.2d 433 (C.C.A. 2) and United States v. One Book Entitled Ulysses , 72 F.2d 705 (C.C.A. 2).

The ban of the statute 18 U.S.C. 1461, as limited in its application by the important public interest in a free press protected under the First Amendment to the Constitution, renders the eighteen books nonmailable. I recognize that the existence in a book of weird overtones, or words and actions which are crude, coarse, vulgar and sometimes or to some people stimulative of lustful thoughts and reactions, does not necessarily render the book obscene. The test of the law is the reaction of the community as a whole - the average individual in society - whether to that individual the dominant theme of the material taken as a whole appeals to prurient interest.

By that test, I do not consider and I do not find Exhibit 18 (Twenty Years Behind Red Curtains, The Biography of a Prostitute) obscene or nonmailable. It purports to be and probably is a report of a true biographical story about prostitution. The preface of the book says: "There is no undercurrent of excitement, no fictional gloss of high adventure." My reading of the book has persuaded me that the statement in the preface is substantially accurate. The dominant theme of the book does not appeal to prurient interest of the average man, according to contemporary community standards. By way of contrast "Red House on Green Street", Exhibit 19, deals with prostitution but contains lurid descriptions of sex acts, natural and otherwise, so that its dominant theme does appeal to the prurient interest of the average man according to contemporary community standards.

Of course, the test of Roth v. U. S. , supra , creates, at best, an illusory sense of certainty. But in these matters of alleged obscenity, the average man concept, the contemporary community standards concept, the existence or measurement of literary and other socially redeeming qualities of a writing and the ascertainment of the degree of appeal to prurience, do not lend themselves too readily or gracefully to administrative or judicial determination. Since, and on the basis of, the Roth case the Supreme Court of the United States has on several occasions in per curiam opinions reversed Courts of Appeals in Post Office cases involving alleged obscenity. One, Inc. v. Oleson , 355 U. S. 371; Sunshine Book Co. v. Summerfield , 355 U. S. 372. In doing this, the Supreme Court refrained from stating any detailed reasons why the subject matter was not obscene, although the courts below analyzed the nature of obscenity in the publications there in question. While the Supreme Court may wisely have been reticent in respect to the details of what is and what is not obscene, the privilege of such reticence is not available to a Post Office Hearing Examiner in a mailability case presented under 18 U.S.C. 1461 any more than it was available to Judge Woodbury, writing for the Circuit Court of Appeals, in the Flying Eagle Publications case, supra .

In respect to the eighteen books I have found obscene and therefore, nonmailable, the resulting action of the Post Office Department will not deprive the public of anything worth while and will remove from the mail that which in its dominant theme, viewing the material as a whole, appeals to the prurient interest to the average person, under contemporary community standards.

I find that the circulars, of which Exhibit 26 is a sample, gives information as to where and from whom obscene matter (sixteen of the obscene books listed above) may be obtained and therefore such circulars are nonmailable under 18 U.S.C. 1461.

I conclude as a matter of law that each of the eighteen books (Exhibits 7 through 25, excluding Exhibit 18) and the circular (Exhibit 26) advertising sixteen of them are nonmailable under 18 U.S.C. 1461. Disposition of the parcels containing the nonmailable matter should be made in accordance with Rule 14 of the Rules of Practice in Proceedings Relative to Mailability.

 /s/