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

June 27, 1961

Gerard N. Byrne Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON, D.C.

INITIAL DECISION OF HEARING EXAMINER

On May 26, 1961 Complainant, the General Counsel of the Post Office Department, filed a complaint alleging that a publication issued by the Respondent, "Fall Catalog 1961", placed in the mails at Los Angeles, California, by persons acting for Respondent, is nonmailable under 18 U. S. Code 1461 and 39 U. S. Code 4001, and Section 124.41 of the Postal Manual. The complaint further stated that said publication gives information as to where, how and from whom phonograph records that are represented to be obscene, lewd, lascivious and indecent may be obtained, contrary to said statutes. Respondent answered with a general denial, and subsequently the parties filed a written stipulation waiving a formal hearing, and agreeing to submission of the case to the assigned Hearing Examiner upon exhibits submitted, and Proposed Findings of Fact and Conclusions of Law to be submitted by the parties. The stipulation is as follows: (Caption and signatures omitted)

IT IS HEREBY STIPULATED AND AGREED, by and between counsel for the parties hereto, as follows:

1. In lieu of a formal hearing, this matter will be submitted to the assigned Hearing Examiner for consideration on the basis of this stipulation and exhibits offered pursuant thereto, an initial decision to be rendered by the assigned Examiner after receipt of proposed Findings of Fact and Conclusions of Law, to be filed by the parties within three days of the date set for the hearing, i.e., on or before June 9, 1961.

2. The respondent deposited in the mails a parcel containing approximately 300 copies of the advertising brochure attached to the complaint as Exhibit "A", addressed for delivery at San Francisco, California; that Exhibit "A" attached to the complaint is a true copy of same, and that the original of said exhibit "A" will be deemed to have been admitted into evidence.

3. The respondent reserves the right to submit to the Hearing Examiner within five days of the date of this agreement documentary evidence purporting to show the similarity of other material; that the only questions relating to such documentary evidence shall be with respect to its admissibility and weight, and that no objection will be interposed by complainant as to the identification of such documentary evidence.

4. At no time during the departmental proceedings shall the respondent be deemed to have waived its right to object to the holding of any proceeding before the Department in this matter; and the respondent specifically contends that the Post Office Department has no statutory power to withhold the mail; 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.

Dated this 5th day of June, 1961.

Pursuant to the third paragraph of the stipulation, the Respondent through counsel, submitted a letter dated June 5, 1961 reading as follows: (Letterhead, address, reference, salutation, complimentary close and signature omitted)

We ask that the Hearing Examiner in the above entitled matter take judicial notice of the advertising brochures in the following cases:

Personal Film Club , P.O.D. Docket 5/198, (Heiderich dba Personal Film Club v. Gibson, Civil No. 587-58, U.S. District Ct., So. Dist. of California, Central Division;

Movie Club Guild , P.O.D. Docket 1/281, (Heiderich dba Movie Club Guild v. Ricketts, Civil No. 431-58 PH, U.S. Dist. Ct., So. Dist. of California, Central Division;

Cooper dba Camfield House , P.O.D. Docket 4/124, (Cooper dba Camfield House v. Garrett, Civil No. 537-57 PH, U.S. Dist. Ct., So. Dist. of California, Central Division;

Cooper dba Jon Armond , P.O.D. Docket 4/275, (Cooper dba Jon Armond v. Olesen, Civil No. 829-57 PH, U.S. Dist. Ct., So. Dist. of California, Central Division;

Cooper dba Gemarco , P.O.D. Docket 5/57, (Cooper dba Gemarco v. Olesen, Civil No. 928-57 PH, U.S. Dist. Ct., So. Dist. of California, Central Division;

Cooper dba Saturn Co. , P.O.D. Docket 4/115, (Cooper dba Saturn Co. v. Olesen, Civil No. 457-57 PH, U.S. Dist. Ct., So. Dist. of California, Central Division;

Cooper dba Private Editions , P.O.D. Docket 5/165, (Cooper dba Private Editions v. Olesen, Civil No. 351-58 PH, U.S. Dist. Ct., So. District of California, Central Division;

Toberoff dba Filmcraft , P.O.D. Docket 4/200, (Toberoff dba Filmcraft v. Olesen, Civil No. 514-57 PH, U.S. Dist. Ct., So. Dist. of California, Central Division;

Toberoff dba Filmfare , P.O.D. Docket 5/11, (Toberoff dba Filmfare v. Olesen, Civil No. 757-57 PH, U.S. District Ct., So. Dist. of California, Central Division;

Audiotron dba Falcon Sales , P.O.D. Docket 4/230, (Audiotron dba Falcon Sales v. Olesen, Civil No. 753-57 PH, U.S. Dist. Ct., So. Dist. of California, Central Division;

Bloch dba Party Classics , P.O.D. Docket 4/215, (Bloch dba Party Classics v. Gibson, Civil No. 828-57 PH, U.S. Dist. Ct., So. Dist. of California, Central Division;

Bloch dba Reel Treats , P.O.D. Docket 5/6, (Bloch dba Reel

Treats v. Carpenter, U.S. Dist. Ct., So. Dist. of California, Central Division, Civil No. 1163-57 PH;

Bloch dba Candy Carr , P.O.D. Docket 5/150, (Bloch dba Candy Carr v. Carpenter, Civil No. 355-58 PH, U.S. Dist. Ct., So. Dist. of California, Central Division;

Bloch dba Dare , P.O.D. Docket 5/197, (Bloch dba Dare v. Carpenter, Civil No. 462-58 PH, U.S. Dist. Ct., So. Dist. of California, Central Division;

Fax Record Company , P.O.D. Docket 1/160, (Door dba Fairfax Record Sales Co. and Fax Record Co. v. Olesen, Civil No. 592-60 PH, U.S. Dist. Ct., So. Dist. of California, Central Division.

In all of the aforesaid cases the United States District Court held that the circulars were not obscene and did not give information as to where, how and from whom obscene matter might be obtained.

It is noted that in Movie Club Guild, P.O.D. Docket No. 1/281, decided in 1960, cited above, the U. S. District Court case, Civil No. 431-58 PH has no application for the reason that it was apparently decided in 1958 in connection with an earlier case. Therefore, Movie Club Guild, P.O.D. Docket No. 1/281, and the concomitant Departmental Decision, may be considered to be valid precedents. It is also noted that, although reference is made to U. S. District Court decisions in the cases of Cooper dba Private Editions, and Bloch dba Candy Carr no such decisions are contained in the files. For the purpose of this initial decision it will be presumed that findings and judgments were rendered in these cases substantially in conformity with those rendered in the other cases cited by Respondent.

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 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.

The foregoing statement is adopted and reaffirmed. With respect to Fairfax Record Company, P.O.D. Docket No. 1/160 the same statement is adopted and reaffirmed. It will be observed that this latter case involved the product advertised, which the court held was not obscene, whereas in the instant case the advertised matter is not in evidence other than as mentioned in the advertising circular. These facts bring this case squarely within the rule of the case of United States v. Hornick , (CA 3) 229 F.2d 120. In that case the defendant deposited in the mails an advertising circular which promised to deliver certain "sex-sational" pictures of burlesque queens in the "sexiest of poses", and further stated "these cards cannot be sent through the mails". In considering these facts the court said:

"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.

"When the case was presented to the court a great deal of the discussion by counsel on each side had to do with whether the specimens of nude or nearly nude 'art' fell within the description of obscenity. We do not think that matters. As the Seventh Circuit said in De Gignac v. United States , 1902, 113 F. 197, 201, certiorari denied 1902, 186 U.S. 482, 22 S.Ct. 941, 46 L.Ed. 1266: 'The offense here denounced is the giving of information by mail where obscene matter may be obtained. Any communication by mail which does this is actionable. The gist of the offense is the giving of the information by mail. It is not necessary to aver ownership or possession of the obscene matter.'

"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.

"It is not, therefore, necessary for us to determine whether these pictures were obscene. The defendants did purport to give information as to where obscene matter could be obtained. That is enough to make them guilty under the statute."

And in the case of United States v. Fugate , (D.C.W.D. Ohio) Crim. No. 3187 (1956) the following substantially similar statement is quoted from the opinion of the court:

"The gravamen of the charge is using the mails for 'giving information as to where and how obscene and indecent pictures (or publications) might be obtained.'

"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'."

* * * * * * * *

"The question before the Court is whether or not the various exhibits which are the subject of the counts of the indictment in this case are advertisements telling where and how obscene and indecent publications may be obtained, irrespective of what, if anything, the defendant intended to supply in fulfillment of orders." (The court then quotes with approval most of the paragraphs from the above excerpt from the Hornick case which concludes with the words "Currier and Ives print or a Turner landscape.")

* * * * * * * *

"It is quite true that it might be argued that under a strict literal interpretation of Exhibit 5, one who placed an order might receive eight small photos of a male, fully clothed, in different poses. They might even be scenic pictures. However, no reasonable normal person would expect to receive such pictures in response to the advertisement.

"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."

* * * * * * * *

"Clearly, the intention of the writer was to convey the idea that he has obscene and indecent pictures for sale."

* * * * * * * *

See also:

Saunders v. Olesen , (D.C.S.D. Cal. C.D.) 163 F. Supp. 938, and United States v. Perkins , (CA 6) 286 F.2d. 150.

Applying the above-quoted principles to the instant case, consideration must be given to the only matter in evidence, Exhibit "A" attached to the complaint, "FAX RECORDS FALL CATALOG 1961." In discussing this circular which, admittedly was deposited in the mails (stipulation of parties, supra) two items entitled, respectively, "Stories For Sex-Minded Males FAXLP-1004," and "Sex Is My Business, FAXLP-1007" will be excluded since they were apparently considered by the court in the case of Door dba Fairfax Record Sales Co. and Fax Record Company v. Olesen , (D.C.S.D. Cal. C.D.) Civil No. 592-60 PH. The remainder of this circular, then, is divided into the following classifications of phonograph records:

"Brand new Personality Series Rollicking Wild Party Series Torrid Adam Stag Party Series Daring, bold Songs of Erotica"

The "Personality Series" is described as the first three records of one Bert Henry, an alleged comic, which are described by the publishers as follows:

Introducing The Brand New Fax Personality Series

Fax again defies tradition to bring you the most outstanding adult party records ever produced. Most comics cannot "go the limit" because their best gags and stories are a bit too bold for large night club audiences. They generally save their scorching gems of heavily-spiced ribaldry for their private club dates and "smoker" specials. The new Fax Personality Series recordings are not taped during a performers' regular night club appearances. They are taped at private parties to bring you all intimacy and daring sex-citement you want in an adult party record.

More particularly these records list (in part) the following:

"The Virgin & The Parachute Jumper; The Big Blow; The Thumb Sucker; and the great Hollywood's Cork Soakers story; Going Down; Queers & Rears; Slippery Sarah; The Silver Screw; Pussy Katz; Open Fly; Stomach Rub; French Test;, etc.,

all of which are described as "sex riot of ribald entertainment" and "choice gems of sin, sex and seduction."

The "Wild Party Series" consists of four record albums of which the publishers have this to say:

WILD PARTY SERIES

Rollicking, frolicking tales of betrayed maidens, hard-drinking men, jaded whores and lusty adventurers that have titillated fun-loved adults for generations. Fax brings you these lusty folk songs and erotic ballads complete in their authentic, unexpurgated versions. Attacked by censors, damned by prudes, subjected to puritanical restriction, these bone-tickling ditties of sin, sex and seduction could not be suppressed because they are an important manifestation of our cultural heritage. In army barracks, ships at sea, club smokers, campus dorms, even in "polite" society we now hear these lusty refrains.

WILD PARTY SONGS

These four records of the Fax WILD PARTY SERIES contain an uninhibited, unexpurgated blast of lusty ribaldry from every corner of the world and the high seas. These are the authentic ballads, sea shanties (sic) and barroom songs that have become famous. You may have heard some of them with other words that would have made the rough and ready men who sang these songs laugh at our puritanical timidness. Fax brings you these lusty ditties as they should be sung, in their original form. So laugh, drink and make merry and sing out loud and clear]

WILD SERVICE SONGS

These two records of the Fax WILD PARTY SERIES are a fantastic and rare treat for servicemen and civilians everywhere. Here are those scorching service songs complete in their authentic, unexpurgated versions, exactly as they were sung by our fighting men. They are a record of reckless daring, fear, pathos, carousing, drinking and womanizing; complete with graphic descriptions of whores, other services and the various hell holes of the world. These songs are as much a part of the service as uniforms and equipment; as vital a part of history as the report of any battle or campaign. Let's join our fighting men once more as we sing these lusty songs and ballads]

Some of these songs are listed as follows:

"Charlotte The Harlot; The Bastard King of England; Come Tie My Root; Bang Away Lulu; Harlot Of Jerusalem; Blinded By Turds; Blow The Man Down; Her Cuckoo's Nest; Winnipeg Whore; Her Promised Land; Miss V.D. of Guam; Our First Piece Of Tail; Merry Men Are We; Barnacle Bill; The Freaking Fusileers; Wine, Women & V.D."

The next item in the catalog is "Adam Stag Party Series" consisting of some five albums partially described as "if you have never heard such tantalizing gems of sexcitement before, you're in for the treat of a lifetime." A partial list of these songs is as follows:

"The Perfect Ass; On Top Of Some Oakie; Wild Goose; My First Piece; He Liked To Nibble On My Cupcakes; Big Banana; Case Of Rape; Steel Balls; Spanish Fly; Let's be familiar, you've had me before; Throes Of Fornication; Prostitute Of Ill Repute; Go Out And Hustle."

Finally there are The Songs of Erotica of which this catalog says:

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.

The catalog also contains an order form with quoted prices, addressed to Fax Record Company, 1018 North Fairfax Avenue, Los Angeles 46, California.

It will be observed that the album "Songs of Erotica" is not the same record as that involved in Door dba Fairfax Record Sales Co., Fax Record Company v. Olesen , (D.C.S.D. Cal. C.D.) Civil No. 592-60 PH, supra. Further, notice is taken of the definition of the word "bawdy", used in the catalog to describe this album, as:

"Of or pertaining to or characteristic of a bawd; obscene; lewd; unchaste; as a bawdy story. Webster's New International Dictionary - Second Edition, Unabridged."

Accompanying the above items in the catalog (Exhibit "A") are the pictures of two young women dressed in diaphanous clothing over the breasts, and opaque clothing and apparently a gee-string over their pubic areas respectively. These photographs merely accentuate and carry forward the whole sexy theme of the catalog.

For the purpose of determining mailability under 18 U. S. Code 1461 the matter of obscenity is governed by the case of Roth v. United States , 354 U.S. 476. According to the decision in that case 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 prurient interest.

The court in the Roth case also accepted the definition of the A.L.I. Model Penal Code, par. 207.10(2) (Tent. Draft Nov. 6, 1957) viz:

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 the term "prurient" was defined in pertinent part as follows:

"Itching; longing; uneasy with desire or longing; of persons having itching, morbid or lascivious longings; of desire, curiosity or propensity, lewd." Webster's New International Dictionary (Unabridged 2nd Ed. 1949)

Measured by these standards the material in Exhibit "A" must be inferred to be obscene, since the entire body of matter advertised is either bawdy (obscene, lewd) or concerned with sex to a morbid extent, and the catalog goes substantially beyond the customary limits of candor in description or representation of such matters. That the advertised matter appeals to the prurient interest of the average person is self-evident, and it is equally manifest that such an advertisement would not be accepted by a daily newspaper in the community.

It follows from the above that the doctrine of the Hornick case, supra, must be applied, and, accordingly, the following findings of fact and conclusions of law are made and declared:

1. The Respondent deposited or caused to be deposited in the mails a parcel containing 300 copies of the advertising brochure attached to the complaint as Exhibit "A" and described in the complaint herein as a circular brochure entitled "Fall Catalog 1961", addressed for delivery at San Francisco, California.

2. The said Exhibit "A", "Fall Catalog 1961", gives information as to where, how and from whom certain phonograph records described, depicted, or represented to be obscene or lewd, may be obtained.

3. The said Exhibit "A", "Fall Catalog 1961", by virtue of the fact that it gives information as to where, how, and from whom certain phonograph records described, depicted or represented to be obscene or lewd may be obtained, is nonmailable under the terms and definitions of Section 1461, Title 18, United States Code, and Section 4001, Title 39, United States Code.

The above findings and conclusions dispose of all of the Respondent's proposed findings and conclusions except those numbered V and VI. These proposed conclusions raise constitutional questions beyond the jurisdiction of a Hearing Examiner. Engineers Public Service Corp. v. Securities and Exchange Commission , 138 F.2d 936.

It is recommended that the nonmailable matter herein considered be disposed of in accordance with Rule 14 of the Rules of Practice in Proceedings Relative to Mailability.

/s/