In the Matter of the Petition by                                )
                                                                               )
CHARLTON PUBLICATIONS, INC.                           )
Charlton Building                                                     )
Derby, Connecticut                                                 ) P.O.D. Docket No. 1/287
                                                                               )
and its application for entry as                               )
second-class matter of its publi-                            )
cation entitled "ACTUAL CONFESSIONS".              )

APPEARANCES:                                                     Stanley M. Estrow, Esq.
                                                                               60 East 42nd Street
                                                                               New York, New York
                                                                               for the Petitioner
                                                                               Saul J. Mindel, Esq.
                                                                               James F. Harding, Jr., Esq.
                                                                               Office of the General Counsel
                                                                               Post Office Department
                                                                               for the Respondent

Bosone, Reva Beck

POST OFFICE DEPARTMENT Washington 25, D. C.

DEPARTMENTAL DECISION

In this case there is only one issue - mailability (Tr. 7) and that depends on whether or not the magazines in question "Actual Confessions" published by the Petitioner, Charlton Publications, Inc. are obscene within the meaning of the statute, 18 U.S.C. 1461.

The Petitioner applied for a second-class mailing permit for the publication of a bi-monthly magazine named "Actual Confessions". The application was denied upon the grounds that the magazines were obscene within the purview of the statute 18 U.S.C. 1461 and 39 U.S.C. 4001 and 124.41 of the Postal Manual. The particular issues involved are the April, June, August, October and December of 1960 and February of 1961.

The Petitioner raised the question of burden of proof proposing that it rests with the Respondent. I agree with the Hearing Examiner that it does not. In this case the application for a second-class mailing permit was made by the Petitioner and was pending. In any application the reasons for granting it and the statements of its qualifying for the request are made. Since there is a request on a second-class entry it becomes the responsibility of the Petitioner to show that each requirement is met. Had the application been granted and then subsequently denied, the burden of proof would have rested with the Respondent to show that the Petitioner was no longer eligible to enjoy a second-class mailing privilege -- Johnson v. Fleming, 188 F. Supp. 447, 449; Norment v. Hobby, 124 F. Supp. 489; and The Diners' Club, Inc., P.O.D. Docket No. 1/225 - 10 Pike and Fischer, Administrative Law (2) page 1025.

Are the magazines in question obscene within the meaning of the Statute 18 U.S.C. 1461 and 39 U.S.C. 4001? I believe they are. Each magazine, setting out the pictures, titles of the stores, and the stories themselves taken as a whole exceeds the customary limits of candor and is obscene since its predominant appeal is to the prurient interest.

The test of obscenity is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. Roth v. United States, 354 U.S. 476. In New World Dictionary - College Edition - "prurient (1) means having lustful ideas and desires; (2) lustful; lascivious; lewd: as, prurient longings (3) (rare) itching."

Each of the magazines in this case has a front cover portraying an embrace of affectionate familiarity - an erotic pose. Most of the pictures throughout each magazine are of the same type -- and there are many. If one were attracted by the titles of the stores in each magazine and the stories were not lewd he would be disappointed; for example, the titles in the February issue are:

"Lost Innocence", "Flesh Peddler", "Flame of Passion", "Love Hunger", "The Woman Between", "Love or lust", "Wild and Wanton".

Most of the stories have graphic detail of sexual love. The pictures, the titles, many of the advertisements and the stories have but one appeal - sex - a portrayal of such an appeal that attracts the prurient interest as described in Roth v. United States, Supra.

Each issue has a little "Featurette" under which is a subtitle such as "Boating". These articles break from the predominating erotic theme that runs through each magazine but they are innocuous. There are some stories that do not stir the prurient interest but most of them do. Take the pictures, the titles, and the stories - as a whole - and there is but one appeal - that to the prurient interest that comes within the purview of the pertinent statute.

The Petitioner says the witnesses presented by the Respondent to show that the average person applying contemporary standards would have a prurient interest were "special pleaders" and not "average" members of a community.

The witnesses constituted a very strong array of people prominent in civic life who most certainly should know the "contemporary standards," of a community if anyone does and just because they did certainly would not disqualify them from testifying. Some of those whose testimony was taken were: Reverend Dan M. Potter, Executive Director of the Protestant Council of the City of New York which has a membership of 1700 churches; Monsignor Thomas A. Donnellan, Rabbi Julius Mark and Rabbi William F. Rosenblum each with a long list of activity dealing with people in their communities; Mrs. Richardson D. Benton - President of High School Parents' Council of New York City, which represents twenty-six high schools and thousands of students; Mrs. Charles P. Adams, President of the New York City Federation of Women's Clubs - that has over 100,000 members; and several other witnesses with similar interests and activities.

Dr. John R. Cavanagh who has a distinguished record of experience in his field of medicine and psychiatry supported all the other witnesses in saying that the magazines involved appealed to the prurient interest and added that "the pictures amplify and illustrate the text and, of course, enhance the imagination, because you are affected in two different spheres - you get augmented effect." (Tr. 367) To the question:

"Does it (February issue, 1961) appeal to the morbid or shameful interest of sex?" He answered, "It would certainly appeal to morbid interest to sex." (Tr. 370) And to another question, "In giving this testimony, Doctor, concerning these various issues, were you considering the effect on the average ordinary reader, average person in the community?" He answered, "Assuming the average ordinary reader of the magazine was the average ordinary citizen in the community - yes, I so considered." (Tr. 406).

I agree with what has been said about the difficulty of knowing what a community standard is. But it seems to me that there is no better way to know what it is than by hearing the testimony of men and women whose lives have been and are replete with church, community, school and medical activity. They gave the consensus of the members of the organizations which they represented. If they can't speak for the community standards then no one can. Would the ditch digger and the saleslady have any better knowledge of the community standards of the mores that establish those standards? I think not. It seems to me the argument by the Petitioner that these witnesses are "special pleaders" and not "average members of a community" is not convincing.

As for their testimony being hearsay it has long since become an accepted practice to be lenient in admitting hearsay evidence in administrative hearings. It was held in Rhodes Pharmacal Co. v. Federal Trade Commission, 208 F.2d 382 (1954) that:

"We recognize that the rule is well established that evidence which would be excluded in an ordinary lawsuit may, under many circumstances, be received in hearings before an administrative agency -- technical rules for exclusion of evidence applicable in jury trials do not apply to proceedings before federal administrative agencies in the absence of a statutory requirement that such rules are to be observed."

Also see John Bene & Sons, Inc. v. F.T.C., 299 F. 468 and N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862.

The Petitioner produced pages of examples of pictures, advertisements and articles taken out of current magazines and newspapers that he considered were comparable to those seen in "Actual Confessions" to show what community standards are. To see these exhibits all together at a glance would prove the Petitioner's contention - but these exhibits were clipped out of many newspapers and magazines over a period of time. There are shocking pictures and articles because there are shocking news stories of actual daily happenings and some of them are of sex crimes. I must agree with the Petitioner that some theatrical advertisements have a close relationship to the pictures in "Actual Confessions", but I cannot agree that these exhibits establish community standards because the composition of the newspaper and the magazines from which the exhibits were taken are very different from these issues of "Actual Confessions".

One perusing these publications may seldom see these exhibits because these particular magazines and newspapers taken as a whole emphasize news and not pornography. The test for obscenity - the Roth case, supra - is whether to the average person applying contemporary community standards the dominant theme of the material taken as a whole appeals to prurient interest. Therefore the Petitioner's above mentioned exhibits are not applicable to reflect "contemporary community standards."

The Petitioner places great emphasis on the Brown University report on the effect of special reading material upon the behavior of juvenile delinquents. Behavior is not relevant in this case as obscenity according to the Roth case, supra, appeals to the prurient interest. There is a difference. I agree with the Hearing Examiner's initial decision in which he said:

"There is no evidence that the persons who wrote the report conducted any experiments at all; they merely quote what others have said out of context" and they wind up with a legal conclusion. The conclusion of the Hearing Examiner was, "as such it has little, if any, value as evidence."

If "Actual Confessions" magazine is obscene within the statute, 18 U.S.C. 1461, it cannot qualify for a second-class mailing permit. It is, therefore, not necessary to go into the literary aspect of the publication, except, to say that this publication is not obscene because Lady Chatterley's Lover was not obscene is an untrue statement of comparison. Lady Chatterley's Lover was held to be "an honest and sincere novel of literary merit and its dominant theme and effect, taken as a whole, is not an appeal to the prurient interest of the average reader." Grove Press, Inc. v. Christenberry, 175 F. Supp. 488. The evidence shows that in the Grove case eminent literary people gave the foregoing testimony. In "Actual Confessions" the evidence showed that the themes of the stories were often taken from a sensational news item in the daily press.

Carter Brook, a book critic for fourteen years with the Washington Star and a short story writer testified referring to character development of the magazine:

"I would say it was practically non-existent. I would say the writing was poor and there was no - the characters are really cardboard. They are used to illustrate these central episodes of sex, adultery, or whatever it is."

For the reasons set out above, the issues referred to of "Actual Confessions" are held to be nonmailable and not entitled to second-class entry under the provisions of 18 U.S. Code Section 1461 and 39 U.S. Code 4001 and Section 124.41 of the Postal Manual.