In the Matter of the Complaint That circular advertisements mailed by

FAX RECORD COMPANY
at Los Angeles, California

are nonmailable under 18 U.S. Code 1461 and 39 U.S. Code 4001.

P.O.D. Docket No. 2/42

August 21, 1961

Reva Beck Bosone Judicial Officer

POST OFFICE DEPARTMENT, Washington, D. C.

DEPARTMENTAL DECISION

In this case the Complainant charged the Respondent with having deposited in the mails at Los Angeles, California, a parcel containing circular advertisements which give information as to where, how and from whom phonograph records that are described, depicted, or represented to be obscene, lewd, lascivious, and indecent, may be obtained contrary to the provisions of 18 U.S. Code, Section 1461 and 39 U. S. Code, Section 4001 and Section 124.41 of the Postal Manual.

Upon stipulation it was agreed that the matter be submitted to the Hearing Examiner to consider his Initial Decision on the basis of the exhibits and proposed findings of fact and conclusions of law; that the Respondent did deposit a parcel containing approximately 300 copies of an advertising brochure in the mails to be delivered at San Francisco, California, and that exhibit A is a true copy of the brochure and would be deemed to have been admitted into evidence. And it was further stipulated that the Respondent could submit documentary evidence purporting to show the similarity of other material; that there would be no objection interposed by Complainant as to the identification of such documentary evidence; that the Respondent does not waive his right to object to the holding of any proceeding before the Department in this matter; that the Respondent specifically contends that the Post Office Department has no statutory power to withhold the mail or to hold any departmental hearing with respect to said mail, or to detain such mail pending the holding of a departmental hearing or other proceeding.

There are three questions:

1. Does the circular (exhibit A) give information as to where, how and from whom one may obtain obscene matter?

2. Are the documents which are purported to show the similarity of other material applicable?

3. Is there an involvement of constitutional questions?

To the first question the answer is "yes". To hold otherwise one would have to admit he was a child and couldn't read. At the bottom of the back page one reads "Buy Fax Party Records at your local record dealer or you can use this convenient order form."

Order Form
                                                     Fax Record Company
                                                     1018 North Fairfax Avenue
                                                     Los Angeles 46, California

This is followed by group titles, listings, prices of records and a space for buyer's name and address.

The brochure is labeled "Fall Catalog 1961" on the outside of which there are two large pictures with a woman in each -- both sparingly draped in filmy material that calls attention to the delicate parts of their bodies. Even with a quick glance at the outside sheet one sees clearly the words "sex" and "erotica". If one hesitates he reads under "the songs of Erotica --

"Their outspoken sexual allusions and bawdy words are completely unashamed, fantastically bold. They delight in the gratification of the senses, painting almost unbelievable pictures of sexual activities and erotic sport to tingle your spine and quicken your heartbeat. Suppressed by generations of censors, Fax now brings you, complete and unexpurgated, such classics as: 'Nine Inch Will Please A Lady', 'A Hole To Hide In', 'Lift My Dress', 'No Hair On It', 'Ruffle The Muff', 'Up-tails All', 'Old Fumbler', and many others."

A sample of what one reads in the inside of the brochure in the "Adam Stag Party Series" is "Back for Seconds" which says:

"Terri creates a wild sexorama of thrills, laughs and tingling adult fun as she sings 'Let's be familiar. You've had me before.' Telling of her travels, she sings, '...now I do it in Dubuque for just a dollar; sometimes as much as twenty times a day.' Terri tells of her 'Love Affair', the 'Young Man From France', 'Tight Situation' 'Sausages', etc."

On the back page of the brochure there are similar "ads" for instance --

"The Uncensored Humor of Bert Henry (FAXLP-3001)" under which is set out:

"A fantastic selection of Bert Henry's spiciest 'smoker' gags and stories including such torrid favorites as: 'The Virgin & The Parachute Jumper', 'The Garbage Man's Daughter', 'The Big Blow', 'The Thumb Sucker', 'The Midget & The Amazon', 'A Little Something For A Sailor', and the great, 'Hollywood's Cork Soakers' story."

The foregoing are samples of similar descriptions and titles of recorded songs in the brochure. Whether or not this brochure taken as a whole is obscene is not at issue here but if it were I would feel compelled to hold that it is obscene. Can ads get any more raw?

The question is whether or not the brochure gives information as to where, how and from whom one may obtain obscene material. From the descriptive words and combination of words used in the briefs of each section and the titles of the songs a buyer couldn't expect to receive a Sunday School Hymnal but songs with nothing left to the imagination and songs wherein realism is distorted far beyond the bounds permitted by law. According to Roth v. United States , 354 U.S. 476 - the prevailing case in obscenity - in determining mailability under 18 U. S. Code 1461 a publication is obscene if, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. There is no doubt in my mind but that the advertised material in the present case would appeal to prurient tendencies.

The Respondent states in his proposed findings of fact - number VI that:

"considering the material as a whole, the dominant appeal is to entertainment and amusement."

If this were true, entertainment and amusement have sunk to an "all time low". If there are entertainment and amusement in the records one expects to receive as a buyer, he reflects or insults his heritage, his environment - either one or both - and relegates mankind to the garbage dump.

Roth v. United States , supra, adopted the definition of obscenity in A.L.I. Model Penal Code, par. 207.10(2) (Tent. Draft Nov. 6, 1957) :

"A thing is obscene if, considered as a whole its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters."

And in the same case pruriency is defined (Webster's New International Dictionary - unabridged, 2nd edition, 1949) as:

"itching; longing, uneasy with desire or longing; of persons having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd---."

I agree with the Initial Decision when it says "the brochure (exhibit A) goes substantially beyond the customary limits of candor in description or representation" of such matters as sex and that it follows from the foregoing that the case of United States v. Jay Hornick , 229 Fed. 2d 120 (1956) applies:

"We have no doubt that the whole tone of both of these advertisements gives the leer that promises the customer some obscene pictures. Indeed, it has been held that under this section the announcement itself is not required on its face to promise obscene material if that is its purpose. But here the represented nature of what the customer is to receive is, we think, too clear for argument.

As we have already said, information as to where such obscene matter can be obtained shouts loudly from the words used by the advertising of the defendants. We do not think it is necessary that representations made in these advertisements be true. The statute says 'advertisements --- giving information.' The statute does not say that the advertisement must be true or that the information must be accurate. What is forbidden is advertising this kind of stuff by means of the United States mails. We think that the offense of using the mails to give information for obtaining obscene matter is committed even though what is sent in response to the advertisement to the gullible purchasers is as innocent as a Currier and Ives print or a Turner landscape."

The second question is: Are the documents which are purported to show similarity of other material applicable? The Respondent submitted a list of cases and asked that the Hearing Examiner take judicial notice of the advertisements connected with each case.

After reviewing these cases I agree and incorporate in this decision that part of the Hearing Examiner's decision which says:

"The Hearing Examiner in the case of Movie Club Guild, et al., P.O.D. Docket No. 1/281 considered all of the decisions cited above by Respondents (except P.O.D. Docket No. 1/281 itself and Fax Record Company, P.O.D. Docket No. 1/160) and had this to say:

'It was noticed that in some of the cases there was a charge similar to the allegation contained in this case. In other cases, not only were the Respondents charged with 'giving information' but they were also charged with selling material which, itself, was obscene. In all of the cases which charged only the giving of information as to where the proscribed material could be obtained, the case of Olesen v. Stanard , 227 F.(2d) 785, was cited. Consideration should be given to this case.

At the administrative hearing before the Post Office Department in the Stanard case it was the position of the Complainant that, since the promoter's literature indicated or suggested that the wares for sale probably were obscene, the Complainant could presume that this was their true character. The court rejected this contention, holding that since the wares were not introduced into evidence their character could not be definitely established, and that the Complainant could not indulge in the presumption and reach the conclusion that they were obscene. The court concluded that an order of the Postmaster General, predicated upon this assumption, impounding all mail addressed to the promoters had no sufficient basis in fact and was invalid.

From the foregoing analysis it will be seen that the case turned upon the true character of the merchandise which was being offered for sale, or more accurately stated, the case turned upon the fact that the record did not reveal the character of the merchandise which was being offered for sale and that the presumption that the promoter was making good on his promise stated in his advertising material to furnish obscene material was invalid.

In all of the cases listed above in which the promoters were charged only with 'giving information' as to where obscene material could be obtained the court in its conclusions of law cited and relied upon the Stanard case. In the remainder of the cases no judicial decisions were cited but it appears to be obvious that the court relied on the Stanard case because the court reached the conclusion that the merchandise sold and offered and received into evidence was not obscene, and that since this was true, the Respondents could not be offering obscene material for sale.'"

I think it should be noted that the court in the Stanard decision said:

"the circulars contained pictures of attractive young women with word descriptions or titles which clearly indicated that risque pictures would be sent to those who ordered them. ---- There was nothing further in the circulars which could possibly indicate that the pictures would be of the nature denounced as unmailable under Section 25a of Title 39 U.S.C.A."

A thing risque is quite different from a thing obscene. Risque is described in Webster's New World Dictionary - College Edition (1958) as being "very close to being improper or indecent; daring; suggestive; as a risque joke." The advertisements in the brochure in the present case are not risque; they go far beyond this.

I am in further agreement with the Hearing Examiner when in his Initial Decision he said:

"I suggest, with all deference, that the Stanard case is inapposite in respect to that portion of all of the foregoing cases concerning the charge of 'giving information' where, how and from whom obscene material may be obtained. What is believed to be proscribed by the statute invoked is, as has been stated above, the creation in the minds of the readers of the advertising material, the impression or belief that the material being offered for sale is obscene. If this is the offense at which the statute is directed, the character of the merchandise being offered for sale is immaterial."

In the case of the Fairfax Record Co., P.O.D. Docket No. 1/160 it was the product that was advertised which was held not to be obscene.

In the present case no product is involved only the brochure out of which were taken the excerpts set out in the foregoing, hence the case of United States v. Hornick , 229 F.2d 120 (1956) applies. The same question was involved whether the brochure advertised where, how and from whom one could obtain obscene material contrary to the said statutes.

In the case of the United States v. Fugate , U.S. District Court for the Southern District of Ohio, Western Division (Criminal No. 3187) the defendant was indicted under Title 18 U.S.C. Section 1461 - the court had this to say:

"It is argued that this cannot be determined without reference to the subject matter that would be mailed in response to orders placed as a result of the defendant's mailings. Such construction would nullify the provision of the statute which defines an offense as 'every written --- advertisement or notice of any kind, giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles or things may be obtained.'" and

"The normal reasonable person could draw but one conclusion and that is that obscene and indecent pictures were advertised. It is significant that two of the witnesses were indignant and turned the letters over to the postmaster." and

"Clearly, the intention of the writer was to convey the idea that he has obscene and indecent pictures for sale----that as previously stated it is what is advertised and not what is supplied that determines the violation of the statute."

And in further support of the Hornick case the court said in Klaw v. Schaffer , 151 Fed. Supp. 534 (1957):

"While much of the advertising included in the record is obviously addressed to sex deviates, all of it 'gives the leer that promises the customer some obscene pictures.' United States v. Hornick , supra. The subject of this finding is the advertising deposited in the mails and not the materials advertised. Therefore, so long as a come-on is addressed to the prurient, it makes no difference whether the advertised matter itself is obscene or not."

In United States v. Perkins , 286 F.2d. 150 (1961), the court supports U.S. v. Hornick , supra - and said:

"However, it was not necessary that the Government establish that material which would have been supplied in response to orders solicited by the defendant's advertising circulars would, in fact, have been obscene."

And cites Grimm v. United States , 156 U.S. 604--

"It is said that the letter is not in itself obscene, lewd, or lascivious. This also may be conceded. But, however, innocent on its face it may appear if it conveyed and was intended to convey information in respect to the place or person, where, or of whom, such objectionable matters could be obtained, it is within the statute."

I agree with the Hearing Examiner when he said that Constitutional questions are not in the province of an administrative agency, so therefore they are not considered in this decision. Engineers Public Service Corp. v. Securities and Exchange Commission , 138 F.2d 936.

For the reasons set out above the circular in the parcel referred to above is held to be nonmailable under the provisions of 18 U.S. Code, Section 1461 and 39 U.S. Code, Section 4001 and Section 124.41 of the Postal Manual.

Accordingly, IT IS HEREBY ORDERED that the Respondent is allowed fifteen days from the date of the service of this decision on the Respondent within which to withdraw the circulars from the mails. If, after the expiration of the fifteen day period, the circulars have not been withdrawn from the mails, and if no order to the contrary has been issued by the Judicial Officer or by the Judge of a District Court of the United States, the circulars shall be disposed of as nonmailable.