In the Matter of the Complaint Against

CAPITAL STUDIO
at Washington, D.C.

and

ANTHONY M. GUYTHER
at 315 East
17 Street New York, New York

(Respondent) is engaged in conduct described in 39 U.S. Code 4006.

P.O.D. Docket No. 2/47;

APPEARANCES:
Jonathan A. Guttmacher, Esq.
James F. Harding, Jr., Esq. Saul J.
Mindel, Esq. Richard S. Farr, Esq.
Office of the General Counsel Post
Office Department for the Complainant.

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

DEPARTMENTAL DECISION

The Respondent is charged with violating 39 U.S. Code Section 4006 ^1/ by obtaining or attempting to obtain remittances of money or property through the mail for obscene photographs of nude or semi-nude males and depositing or causing to be deposited in the mail information as to how, or from whom, obscene things may be obtained. The Respondent denies the violation by alleging that he is a legitimate physique photographer who supplies photographs of models for art students and artists; that he does not attempt to obtain or obtain remittances through the mails for obscene materials; that there is no appeal to the prurient interest of the average person; and that he does not advertise where, how or from whom obscene material may be obtained.

The Complainant relied upon certain exhibits of samples, catalogues displaying miniature photographs of nude or nearly nude males; individual photographs of nude or nearly nude males that were sold by the Respondent through his advertisements in magazines in which he advertised his catalogues and photographs for sale by mail; and certain test correspondence with the Respondent by Harry J. Simon, a Postal Inspector.

The Respondent admitted that he advertised the sale of his catalogues in magazines published by Herman Lynn Womack -- magazines showing nude or nearly nude males with emphasis on the genitals covered by a posing strap or emphasis on the buttocks. In exchange for the advertising the Respondent let Womack choose what photographs he wanted. The Respondent took the photographs at Womack's request (Tr. 330) yet the Respondent paid the models and

(1) direct postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representative, to return the registered letters or other letters or mail to the sender marked 'Unlawful'; and

(2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes."

made no objection to Womack's using what pictures he (Womack) chose for his magazines which were aimed at male homosexuals. Manual Enterprises, Inc. v. Day, 289 F.2d 455, certiorari granted 368 U.S. 809 - case argued before the Supreme Court February 26 and 27, 1962 - decision pending.

The evidence showed that the advertising of photographs by Guyther, Vulcan Studios, and Capitol Studios were by the Respondent.

Mr. Anthony M. Guyther, the Respondent, is an artist and a photographer who has done work for some of the most popular magazines in the country. Looking at his earlier work one can see he is a man of fine ability in his field. But in 1955 he adopted a new endeavor and became a photograher of the male physique.

He maintains that his pictures are for those artists who need models but who cannot afford them, yet need the variety and inspiration that comes from pictures such as he sells. He maintains, also, that his photographs of the male body show how it can be developed into a strong one.

The photographs in the advertisements are of nudes or nearly nudes, and the pictures in the catalogs and the individual photographs are of young men - some as young as 14 years of age - who are wearing usually only a posing strap. Some have a hat and boots on, others hold a slender pole or sword, or a deer's horns or some extra thing like chiffon or a towel.

The Respondent said when he received a letter with a dollar in it he didn't take time to read the letter. Money seemed to be his motivation for he admitted that he sold nude pictures of front view to Herman Womack "because he could make me money." He admitted (Tr. 346) that he received remittances through the mail and that he had no knowledge of any art school that used his material. (Tr. 349)

Dr. Frank S. Caprio testified in behalf of the Complainant. Dr. Caprio has been a psychiatrist of many years experience and has authored several books on sex and work with male homosexuals as his patients.

Referring to Complainant's exhibit B-5 Dr. Caprio said: "...this particular magazine would have sexual appeal to a homosexual." This he had learned from his homosexual patients who had purchased such magazines. The Respondent advertised his catalogues in this magazine and others in evidence. Dr. Caprio added "that homosexuals in general, a portion of them would send for such pictures." (Tr. 115)

About the pictures in the catalogues he said, "In other words, homosexuals have such a variety of stimuli that I believe some of these pictures cater to the many special requirements of homosexuals that it takes to stimulate them." (Tr 121) According to Dr. Caprio a nude or near nude picture that focuses attention on the genitals or buttocks excites male homosexuals. "What you are doing is allowing sick people to be re-stimulated by fantasties that keep them sick."

Dr. Albert Ellis was called by the Respondent. He has been a Doctor of Psychology since 1943, and has written hundreds of papers and several books. Much of his work has been in the field of sex. He like Dr. Caprio has testified before in Post Office cases and in courts. He has treated about 100 homosexuals. (Tr. 168)

Dr. Ellis said: "There may have been two or three cases of all the homosexuals I have seen who specifically reported that they were aroused when having this kind of material which they may or may not have obtained."

Dr. Ellis believes photos such as those in this case operate as an escape valve on most homosexuals - some of their pent-up emotions are let out. He thinks there would be less overt acts if a male homosexual looked at these photographs while Dr. Caprio thinks there would be more. Dr. Ellis believes there is no prurient interest by homosexuals in the exhibits while Dr. Caprio believes there is. Dr. Caprio believes a nude or nearly nude photo of a young boy would stimulate the sex appeal in a homosexual but Dr. Ellis says the interest is one of love -- not necessarily sex. (Tr. 179)

Mr. Frank C. Huseman a witness for the Complainant is a free lance art-director teacher who was in the past connected with the Corcoran Art Gallery for seven years. At one time he conducted a correspondence school of art which required his sending photographs as there could not be life models. He, too, has had a great deal of experience in collecting photographs and putting them together "for a composite whole which puts the company in the best possible position in the eyes of the public." (Tr. 204)

After showing Mr. Huseman exhibit B-2, A-16 and A-19 and others he was asked, "Your opinion is that the impact on you as a student of art and as a past judge of art is what?" He answered, "Is absolutely negative." He said that the body structure was completely obliterated by heavy shadows - that there was not enough delineation to be instructive. He did admit, though, that with exhibit B-2 and exhibit A-19 thorough A-28 an accomplished artist could draw from these photographs, but that they were of no use in the instruction of art. (Tr. 227 & 228)

Mr. Elbridge C. Purdy was an operator-photographer for 42 years employed by the Department of Agriculture - making photographs and supervising staff photographers. He is presently teaching portrait photography in the Graduate School of the Department of Agriculture. He has judged exhibits in which he evaluated the artistic and photographic merit of examples of photography.

He said the interest in exhibits A-19, A-23, A-24, A-25 and A-26 was focused on the genitalia area. After discussing lights and shadows he said he would not use these pictures. His comment was the same on the other exhibits. He did say, though, "Other persons equally qualified could disagree with me." (Tr. 469) Klaw v. Schaffer, 151 Fed. Supp. 534 (1957) supports the Initial Decision that the photographs sold by the Respondent were obscene, that they were deposited in the mail and that he received money. This case also supports the decision of the Hearing Examiner on his finding that there was sufficient evidence to support his findings of fact --"The problem is merely whether there is substantial evidence to support the finding, viewing the record in its entirety." Manual Enterprises, Inc. v. J. Edward Day, 289 F.2d 455 (C.A.D.C. 1961) is a case in point which supports the Initial Decision. In this case "Trim" & "Manual" magazines (exhibits in the present case) were found to be obscene because they were intended for male homosexuals -- that the pictures would arose the prurient interests in homosexuals. It was held "The proper test in this case, we think, is the reaction of the average member of the class for which the magazines were intended, homosexuals."

The evidence is clear that the Respondent did receive orders and payments through the mail for catalogues of photographs and for individual photographs that were "beamed" at the male homosexual. United States of America v. Jay Hornick, 229 F.2d 120 (1956). Therefore I affirm the Initial Decision and at this time will issue the appropriate order as provided in 39 U.S. Code 4006.

06/12/62

Bosone, Reva Beck

1/ "Upon evidence satisfactory to the Postmaster General that a person is obtaining or attempting to obtain remittances of money or property of any kind through the mail for an obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance, or is depositing or causing to be deposited in the United States mail information as to where, how, or from whom the same may be obtained, the Postmaster General may --