P.O.D. Docket Nos. 2/152 and 2/153
November 10, 1965
In the Matter of the Petition by
SUN ERA, INC.,
7315 Fulton Avenue,
North Hollywood, California
for second-class mail permits for the publications
"SUN ERA" and "URBAN NUDIST."
P.O.D. Docket No. 2/152; P.O.D. Docket No. 2/153
November 10, 1965
William A. Duvall Chief Hearing Examiner
POST OFFICE DEPARTMENT,
DIVISION OF HEARING EXAMINERS,
WASHINGTON, D.C. 20260
APPEARANCES:
Stanley Fleishman, Esq.
1680 Vine Street
Hollywood, California
for the Petitioner
Saul J. Mindel, Esq.
Office of the General Counsel
Post Office Department
for the Respondent
INITIAL DECISION OF HEARING EXAMINER
THE ISSUE
This proceeding calls for resolution of the question of whether the publications Sun Era and Urban Nudist are obscene within the meaning of 18 U. S. Code 1461. 1/ If so, the publications are ineligible for second-class mail rates under the provisions of 39 U. S. Code 4001. 2/
THE DEFINITION OF THE WORD "OBSCENE"
At the outset, one must face the difficult question of defining the word "obscene." Without tracing the long and tortuous legal evolution of this word, perhaps the best place to start at this point in time is Roth v. United States, 354 U. S. 476 (1957). There the Court, per Mr. Justice Brennan, described, in part, the test of obscenity as:
"***whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." (p. 489)
The Court also said:
"However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest." (ibid., p. 487.)
Further, the Court said:
"All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.
* * * * * * * *
"We hold that obscenity is not within the area of constitutionally protected speech or press." (ibid., pp. 484-5.)
In a footnote the Court approvingly quoted the following definition drafted by the American Law Institute in the Model Penal Code:
"'...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
Further elaboration of the meaning of "obscene" is found in Manual Enterprises v. Day , 370 U. S. 478 (1962). In this case the Opinion of Mr. Justice Harlan (concurred in by Justices Stewart and Black) again quoted with approval the previously stated American Law Institute definition, and it also approved a later draft prepared by the Institute, as follows:
"'Material is obscene if, considered as a whole, its predominant appeal is to prurient interest ... and if in addition it goes substantially beyond customary limits of candor in describing or representing such matters.' A.L.I., Model Penal Code, Proposed Official Draft (May 4, 1962), 251.4(1). (Emphasis added.)" (ibid., p. 486.)
After pointing out that the court below in reaching its decision had considered only the impact of the prurient interest appeal of the publications then in question, the Supreme Court Opinion of Mr. Justice Harlan emphasized another facet of the problem in this language:
"We do not reach the question thus thought below to be dispositive on this aspect of the case. For we find lacking in these magazines an element which, no less than 'prurient interest,' is essential to a valid determination of obscenity under 1461, and to which neither the Post Office Department nor the Court of Appeals addressed itself at all: These magazines cannot be deemed so offensive on their face as to affront current community standards of decency - a quality that we shall hereafter refer to as 'patent offensiveness' or 'indecency.' Lacking that quality, the magazines cannot be deemed legally 'obscene,' and we need not consider the question of the proper 'audience' by which their 'prurient interest' appeal should be judged." (ibid., p. 482.)
Summarizing the content of the foregoing paragraph, Mr. Justice Harlan said:
"Obscenity under the federal statute thus requires proof of two distinct elements: (1) patent offensiveness; and (2) 'prurient interest' appeal. Both must conjoin before challenged material can be found 'obscene' under 1461." (ibid., p. 486.)
A further comment by Mr. Justice Harlan about the publications then before the Court was:
"Divorced from their 'prurient interest' appeal to the unfortunate persons whose patronage they were aimed at capturing ***, these portrayals of the male nude cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates. Of course not every portrayal of male or female nudity is obscene. See Parmelee v. United States , 72 App. D.C. 203, 206-208, 113 F.2d 729, 732-734; Sunshine Book Co. v. Summerfield , 355 U.S. 372; Mounce v. United States , 355 U.S. 180." (ibid., p. 490.)
The recent decision of the high court in one more case, Jacobellis v. Ohio , 378 U. S. 184 (1964), should suffice, when viewed with the two foregoing cases, to form a framework within Which to study the present proceeding. From the Jacobellis case where are two excerpts which are particularly pertinent her, as follows:
"The question of the proper standard for making this determination has been the subject of much discussion and controversy since our decision in Roth seven years ago. Recognizing that the test for obscenity enunciated there--'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,' 354 U.S., at 489--is not perfect, we think any substitute would raise equally difficult problems, and we therefore adhere to that standard. We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is 'utterly without redeeming social importance,' and that 'the portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.' Id., at 484, 487. It follows that material dealing with sex in a manner that advocates ideas, Kingsley Int'l. Pictures Corp. v. Regents , 360 U.S. 684, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a 'weighing' of its social importance against its prurient appeal, for a work cannot be proscribed unless it is 'utterly' without social importance. See Zeitlin v. Arnebergh , 59 Cal. 2d 901, 920, 383 P. 2d 152, 165, 31 Cal. Rptr. 800, 813 (1963). It should also be recognized that the Roth standard requires in the first instance a finding that the material 'goes substantially beyond customary limits of candor in description or representation of such matters.' This was a requirement of the Model Penal Code test that we approved in Roth , 354 U.S., at 487, n. 20, and it is explicitly reaffirmed in the more recent 'Proposed Official Draft' of the Code. In the absence of such a deviation from society's standards of decency, we do not see how any official inquiry into the allegedly prurient appeal of a work of expression can be squared with the guarantees of the First and Fourteenth Amendments. See Manual Enterprises, Inc. v. Day , 370 U.S. 478, 482-488 (ibid., p. 191. Opinion of Harlan, J.)."
* * * * * * * *
"We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding." (ibid., p. 195.)
* * * * * * * *
If an attempt were made to distill a definition from all of the foregoing quotations, one might reasonably conclude that "obscene" matter is matter which, considered as a whole under contemporary national standards of decency and in the light of its effect upon the average person, appeals in its dominant theme to prurient interest, and in doing so is patently offensive because it goes substantially beyond customary limits of candor in description or representation of such matters as nudity, sex or excretion and is utterly lacking in redeeming social importance, so that it is neither necessary nor proper to attempt to weigh the social significance against the prurient appeal of the matter.
THE PUBLICATIONS IN THIS CASE
The publications for which second-class mailing permits are sought herein and which the Respondent alleges are obscene are Sun Era and Urban Nudist. They deal with the subject of nudism and they treat this subject through the media of drawings, pictures and words. The stories contained in the publications relate, among other things, to nudism in history; the history of nudism; the philosophy of nudism; prior non-nudists who have adopted the nudist way of living; medico-scientific effects of nude living; nudism in other countries; and the activities of nudists at home, at nudist parks or camps, and in the open. The drawings and pictures serve to illustrate the narrative material. Needless to say, most of the drawings and pictures present men, women and children in the nude in photographs of single individuals and in mixed groups. There is more concealment of the pubic area of the males than there is of the females, but there are front views of both sexes in most, if not all, of the issues of both publications.
The Respondent's position is that, in the later issues of each publication, the trend is toward more revealing photographs taken at angles that place more emphasis on buttocks, breasts and genitalia. In general, the persons photographed are engaged in activities, both indoors and outdoors, in which most people who are so engaged wear some sort of clothing. Specifically, the pictures show people swimming, diving, weight-lifting, playing volleyball, hiking, preparing or eating food, posing in some sylvan setting, or participating in some other normal pursuit. As has been indicated, had the subjects of these pictures been clothed, there would have been nothing out of the ordinary about them since there is nothing suggestive or off-color about the actions themselves.
Time and space limitations will not permit any attempt to give detailed descriptions of the various issues of the magazines, and such an undertaking would serve no useful purpose since the above statements are descriptive of the contents of all of the issues of the publications under consideration.
SOME ADDITIONAL CONSIDERATIONS
Certain other cases were mentioned frequently at the hearing and they also have significant bearing on the outcome of the present proceeding.
In a 1955 proceeding very similar to the present one it was decided on behalf of the Postmaster General that the February, 1955, issue of Sunshine and Health Magazine and the January-February, 1955, issue of Sun Magazine were nonmailable because they were obscene as that term was used in 18 U. S. Code 1461. 3/ The publisher brought an action in the United States District Court for the District of Columbia to enjoin the Postmaster General from impounding copies of the magazines and to obtain a declaratory judgment that the magazines were not obscene. The Department's action was sustained by the District Court (128 F. Supp. 564 (1955)) and again, on appeal, by the United States Court of Appeals for the District of Columbia (249 F.2d 114 (1957)). However, when the case reached the Supreme Court, that Court in a one-sentence, per curiam decision, reversed the decision of the Court of Appeals and cited the then recently-decided case of Roth v. United States , supra. (Sunshine book Co., et al. v. Summerfield, Postmaster General , 355 U. S. 372 (1958)).
Next, there is United States v. 4200 Copies International Journal, et al. , (134 F. Supp. 490, U.S.D.C., E.D. Wash., N.D. (1955)) which was a libel action for forfeiture, confiscation and destruction of specified numbers of copies and volumes of various imported paper bound books seized by the Customs Service as
The foregoing publications, among others, were found to be obscene by the District Court, whose decision was affirmed by the Court of Appeals (247 F.2d 148, C.C.A. 9 (1957)). When the matter came before the Supreme Court, the Solicitor General confessed error and the case was remanded to the District Court for consideration in the light of the Roth case, supra (355 U.S. 180 (1957)). The importer than moved the District Court to dismiss the action, which motion was granted. The United States appealed the dismissal and the matter finally was concluded by an order dated January 5, 1959, by the District Court which reads as follows:
"This matter having come before the Court upon application by the libelant United States of America (Appellant) *** for an order dismissing the Notice of Appeal heretofore previously filed in this cause, and it appearing that the Solicitor General has determined that there will be no appeal in this cause and that the Attorney General of the United States has recommended the dismissal, now, therefore,
"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Notice of Appeal heretofore filed in this cause, be and the same is dismissed." (See Pet. Exs. 1 - 16)
There was in this case, therefore, a decision by the Attorney General not to press charges that the publications in question were obscene.
In another case, the United States District Court for the Eastern District of Michigan, Southern Division, Judge Levin presiding ( Royal News Company v. Dewey Schultz, et al. , Civ. No. 23094 (order dated June 6, 1963)), found to be not obscene and ordered returned to the plaintiff magazines bearing the following titles, among others: Helios; Gymnos; Nude Living; Sunshine and Health; Sundial; Sun Era, Vol. I, No. 2 5/ and Urban Nudist, Vol. I, No. I 6/ (See Pet. Exs. 18 - 26).
THE WITNESSES AND THE TESTIMONY
The backgrounds of the Respondent's witnesses cover a broad spectrum. They are from differing occupations and professions and they represent a wide diversity of interests. Because of the business, civic, or professional activities of the Respondent's witnesses, taken as a group, it is fair to conclude that their views are reasonably representative of those of the average citizen of the nation (if such a composite may be envisaged at all).
Each of Respondent's witnesses, on direct examination, testified that the content of Sun Era and Urban Nudist is offensive to contemporary community standards of decency. Some of the witnesses said that these publications are patently offensive. Some of them said that these magazines possess certain other characteristics, mentioned in the various court decisions which might tend to bring them more nearly within the reach of the above-stated definition of the word "obscene." Yet, each of the Respondent's witnesses, on cross-examination, made statements which are clearly incompatible with the position of the Respondent or they expressed views which are so much at odds with what the courts, and many Justices of the Supreme Court, have said as to raise very serious questions in regard to the legal efficacy of their testimony, even if given full credence, to establish obscenity. There follows a brief statement concerning each witness and some excerpts from the testimony of each. It should be borne in mind that each of the Respondent's witnesses condemned the publications as obscene, but the resumes of their testimony point up the inconsistencies in their statements.
Dr. Donald G. Cortum is a practicing physician and was at the time of the hearing National Co-Chairman, and California State Chairman, of the Committee for Decent Literature. In his activities with the Committee for Decent Literature, Dr. Cortum has spoken before service and civic organizations in various parts of the country.
Dr. Cortum testified that many of the magazines in the Mounce case are obscene. He said that while the reading of Sun Era and Urban Nudist is evidence of undue interest on the part of the reader in nudity, the reading of these publications may provide some psycho-catharsis. He also said that Vol. 1, No. 11 of Sun Era is not more patently offensive than Vol. 1, No. 6 of this publication (Tr. 219).
Dr. Richard W. Thomas is a practicing psychiatrist in San Marino, California. He stated that the text of the publications under consideration is a justification for nudism and that it does not appeal to the prurient interest of the average person (Tr. 232). Dr. Thomas understands that there are some people who agree that nudism is a good way of life for them (Tr. 298). Dr. Thomas testified that the publications Sun and Sunshine and Health (Resp.'s Exhibits 19 and 20) appeal to the prurient interest of the average person (Tr. 715-715). He also said that the exhibits in the Mounce case appeal to prurient interest to the same extent as Sun Era and Urban Nudist (Tr. 322). Dr. Thomas did say that the idea that people in the nude can be as decent, moral, proper and good as people with clothing is worth considering (Tr. 316).
Witness E. Richard Barnes is a member of the Legislature of the State of California and he is a retired Navy Chaplain. The witness Barnes testified in substance and effect as follows: Every single picture of a nude in a nudist publication depicting pubic hair is below community standards (Tr. 382). If the Supreme Court ruled otherwise, the people would accept and abide by the decision but they would not agree with it (Tr. 384). He would not want to stop persons from advocating nudism (Tr. 411). In one of the issues of either Sun Era or Urban Nudist there is an article on nude bathing as it occurred in Roman Baths. Assemblyman Barnes said that this article stimulated thought and that this is a good thing (Tr. 409). He said that the nudist publications in the Mounce case go below community standards in about the same way as do Sun Era and Urban Nudist, but they are not so well done as Sun Era and Urban Nudist (Tr. 416-417). The witness would not object if the distribution of nudist publications should be restricted to nudists, only (Tr. 428). In their overall content, the publications Sun and Sunshine and Health (Resp.'s Exhibits 19 and 20) are comparable to Sun Era and Urban Nudist.
Dr. Stuart C. Knox is a practicing psychiatrist whose patients come from various social and ethnic groups and he has been a member of the Committees on Mental Health of the American Medical Association and of the California Medical Association. The following are paraphrases of some of Dr. Knox's testimony: Nudism breaks down the inhibitions about the human body and seems to put relationships between men and women on an easier basis. There is psychological validity to that point of view (Tr. 595). The average person should be allowed to read about nudism if he so desires, and, also, to see pictures which illustrate the articles on nudism (Tr. 611-612). To Dr. Knox, the Mounce exhibits and Respondent's Exhibits 19 and 20 appeal to the prurient interest of the average person (Tr. 613-616). Dr. Knox gave as his opinion the statement that for a substantial number of average persons the repeated viewing of pictures in nudist publications probably would desensitize them to their stimulating effect (Tr. 625).
The next witness was Mrs. Duffy MacIntyre Gaydowski who is the President of the Tenth District of the Parent Teachers Association which includes Metropolitan Los Angeles and has 240,000 members. She is a Member of the Executive Committee of her organization, which Committee is composed of 22 members. Respondent's Exhibit 25 is a listing of the names of the members of the Executive Committee, together with a statement as to the State from which they came to California and their religious affiliations. This exhibit further tends to show the national character of the standards of decency concerning which the witnesses spoke. In their relationship to contemporary community standards this witness placed the publications Sun and Sunshine and Health in the same category as Sun Era and Urban Nudist (Tr. 678-679). The witness further testified, in substance, that if nudists really believed that nudism freed one of unreasonable fears about the human body and if nudist publications depict that psychology, to that extent an important social function would be performed in explaining how a part of humanity in our society lives (Tr. 692).
Mr. Arthur J. Kates, Manager and part-owner of the Sunset News Company, Los Angeles, magazine distributor, was the next witness for the Respondent. The firm which Mr. Kates represents has 1400 accounts which handle a full line of magazines and an additional 800 or so accounts which handle limited numbers of magazines. Together this company's accounts represent about 99% of the periodical outlets in the area. Mr. Kates stated that one of the exhibits in the Royal News Company case, supra, (Exhibit P-23), and that both of the magazines which were the subject of the Sunshine Book Co. case, supra, (Resp.'s Exhibits 19 and 20) violate contemporary community standards of decency. He further stated that it is his opinion that any magazine which plainly shows "the private parts" would violate contemporary community standards of decency (Tr. 815).
Mrs. Helena G. Johnson testified as the authorized representative and as the Director of Public Welfare for the Council of the Parent Teachers Association of Long Beach, California, a city comprised of persons with various religious, racial and economic backgrounds. Mrs. Johnson testified that the publications Sun and Sunshine and Health (Resp.'s Exhibits 19 and 20) are contrary to the accepted standards of decency (Tr. 844).
Mr. Allen Burnside is the Principal of the John Muir Junior High School, Burbank, California, and he was at the time of the hearing the Chairman of the Decent Literature Committee of the Burbank Coordinating Council, which represents approximately 65 organizations in the community. Mr. Burnside stated that Respondent's Exhibits 19 and 20, among others, would be regarded as obscene by himself and by the committee for which he was speaking (Tr. 904-905).
Dr. Wesley P. Ford, Pastor of the First Christian Church of Pasadena, testified that his congregation represents a cross-section of his community and includes many persons who have moved to California from other States of the Union. Dr. Ford expressed the view that the publications Sun and Sunshine and Health (Resp.'s Exhibits 19 and 20) appeal to the prurient interest of the average person (Tr. 748-749). In regard to one of the exhibits which was a part of the Mounce case (Ex. P-3, Model Studier), Dr. Ford said that this publication would be proper for circulation to artists, but that it would inspire lust in the average person. The witness would have no quarrel if the circulation of nudist publications were restricted to nudists but he does not believe that they should be distributed to the general public. (Tr. 755).
Dr. Raymond I. Lindquist, Minister of the First Presbyterian Church of Hollywood, testified that his congregation consists of 8300 members, large numbers of whom are from various places throughout the United States. While Dr. Lindquist maintained his position that the various issues of Sun Era and Urban Nudist contravene community standards of decency, he testified that various issues of the publication Nude Living (Pet. Exs. 32-A through 32-L) are not patently offensive and do not offend the community standards of decency (Tr. 974-975). Dr. Lindquist did not explain the reason for the differing views in regard to these different publications and an examination of these publications fails to provide any clue as to why there should be a difference of opinion as to their character. The witness said that when nudism is practiced by sincere nudists in a special place where non-nudists are not exposed to it, nudism is not offensive (Tr. 947). The witness did say that Sun Era portrays the nudist philosophy as he understands it (Tr. 948).
Mr. Charles Crecelius is the Principal of the Beardslee School, Duarte, California, and he is active in community organizations and in the Monrovia-Duarte PTA Council, which has a special committee to study the question of objectionable literature. Mr. Crecelius said that the issues of the publication International Journal which were a part of the material considered in the Mounce case (Exhibits P-4 and P-5) would contravene contemporary community standards of decency and be regarded as patently offensive, but he was not sure that they would be regarded as offensive to the same degree as Sun Era and Urban Nudist. He did state that in his opinion the publications Sun and Sunshine and Health would not be offensive.
The final witness called by the Respondent was Mr. Mel Hocker, who is the operator of a nudist camp at San Bernardino, California, and who is, also, a director of the Golden States Sunbathing Association, a group of nudist camp owners in Southern California. Mr. Hocker defined "social nudists" as people who practice their nudism in nudist camps or parks or other outdoor places set aside for this purpose. Nudists, other than "social nudists," as defined by Mr. Hocker, are persons who hold the same beliefs and engage in the same practices as "social nudists," but who do so in places outside nudist camps or parks or places set aside for this purpose, such as in the home (Tr. 1203-1204). Mr. Hocker would approve of some of the issues of both Sun Era and Urban Nudist and he would disapprove of some issues of both publications, but his approval or disapproval was grounded upon Mr. Hocker's opinion as to whether the individual issues would be helpful to, or a disservice to, the "social nudist" movement.
THE PETITIONER'S WITNESSES
There were only three witnesses for the Petitioner and it is not necessary to dwell at length on their testimony.
The first witness was Dr. Jay Hersell Ziskin who for a number of years was a practicing attorney and is now a psychologist employed as a counsellor and instructor of psychology at the California State College at Los Angeles. He has a Bachelor of Arts Degree, a Bachelor of Laws Degree, and a Doctorate of Philosophy in psychology, all from the University of Southern California.
In Dr. Ziskin's testimony he supported and expanded the statement of Dr. Cortum on the efficacy of Sun Era and Urban Nudist in the realm of psycho-catharsis (Tr. 1481). When questioned about a possible morbid effect that might be produced by continual viewing of these magazines, he said that, while there is a normal curiosity about sex and nudity in everyone, he does not believe that the publications would elicit a sick response (Tr. 1488). In Dr. Ziskin's view, Sun Era and Urban Nudist, considered as a whole, do not appeal to the prurient interest of the average person (Tr. 1499).
The second witness for the Petitioner was Mr. David Gary Broman who has a Bachelor's Degree in Psychology from Brigham Young University and a Master's Degree in Human Development and Family Relationships. Mr. Broman teaches child psychology and does counselling work at Pacific Oaks College and Childrens Schools. For about a year after his school work was completed Mr. Broman worked in the Aid to Dependent Children Program and for another year he was employed at the Jewish Family Service in Chicago doing family counselling. He has been in his present employment for about 3 years.
Mr. Broman was of the view that Sun Era and Urban Nudist perform a useful function in that they present sexuality in a natural, everyday, matter-of-fact, and in what he considers a wholesome way. He stated that they take away the bizarre element of nudity (Tr. 1551). He subscribed to the views of Drs. Cortum and Ziskin on the psycho-cathartic potential of the publications (Tr. 1561, et seq.; 1597-1600).
The last witness for the Petitioner was Mrs. June Lange, editor of a magazine called Nude Living, a nudist publication for which a second-class mailing permit has been granted. Mrs. Lange has been a nudist since 1948. She has been an official of the American Sunbathing Association, a member of the Board of Directors of the Western Sunbathing Association and she has served as Public Relations Chairman for both groups. She belongs to nudist camps in California and elsewhere in the United States.
Mrs. Lange said that it is the view of nudists that the human body is completely wholesome in all its functions. She attempts to express this idea in the publication she edits and she testified that Sun Era and Urban Nudist portray the nudist philosophy and the nudist way of living (Tr. 1613).
DISCUSSION
In view of the cosmopolitan and diverse backgrounds of the groups represented by or known to Respondent's witnesses, it might be reasonable to find that the testimony of the Respondent's witnesses reflects the national attitude toward such matters as the practice of nudism by mixed groups and the representation of nudity in publications having wide and general distribution. (See, for example, Ex. R-25, which shows that of the 22 - member PTA Council of which Mrs. Gaydowski is the President, nine members came from states other than California and one member came from the Phillipine Islands.) On the question of whether these publications to some extent violate contemporary community standards, the testimony of the witnesses leads to a conclusion in the affirmative. But this conclusion must be tempered by some statement such as -- that the community standards which are violated must be expressed in terms of the kind of literature the average person would normally have in his home. If nudity is to be represented, the representations of it found in the Petitioner's publications do not substantially go beyond the customary limits of candor in such representations. And even if the bounds of candor are exceeded, this one factor, alone, can not be the basis for declaring the magazines nonmailable by reason of their obscenity. No witness had put to him a request for his opinion based upon all the facets stated earlier herein of the legal definition of the word "obscene," and from what they did say in response to questions put to them it is clear that the witnesses could not reasonably attribute to the publications all the characteristics which must be present before a valid finding of obscenity under 18 U. S. Code 1461 can be made. So, while all of the witnesses used the word "obscene" in describing the publications, the basic import of their testimony is that they see in the practice of nudism together with general circulation of its representation in print and picture a certain indecorum or impropriety, and a lack of modesty, which they consider offensive and do not approve. This is the most that one may fairly infer from their testimony.
That the witnesses did not use the word "obscene" with a full understanding of its legal implication, or that if they intended to do so they were in error, may be illustrated in a number of ways. For example, of the twelve witnesses who testified in behalf of the Respondent, eight said either (1) that the publications Sun and Sunshine and Health (Exs. P-19 and P-20) are obscene or (2) that they are of the same character as Sun Era and Urban Nudist which they previously had said were obscene. (e.g., Witnesses Barnes, Knox, Gaydowski, Thomas, Ford, Johnson, Burnside and Kates). Although there are perhaps more photographs in Sun Era and Urban Nudist than there are in Sun and Sunshine and Health, this Hearing Examiner agrees with these witnesses that the four publications are of the same character. But the rub is, insofar as the Respondent is concerned, that under the previously cited decision of the Supreme Court, Sun and Sunshine and Health are not, under applicable law, "obscene." It is true that there are pictures of nudes in all of these publications, but nudity per se is not obscene. (See the last quotation from the Manual case, supra, and the cases therein cited.) If the subjects were clothed, no notice would be taken of the activity in which they are engaged, or of their postures. These pictures, therefore, are simply photographs of persons in the nude and, in the absence of lewd posturing, or whatever other activity might be required to make them "patently offensive," they can not reasonably be said to go substantially beyond customary limits of candor in description or representation of nudity.
Another illustration of the point that the witnesses did not use the word "obscene" in its full legal sense is the testimony of Respondent's witnesses concerning the social significance of the publications. Witness after witness said, for example, that (1) a viewing of the publications might provide psycho-catharsis; (2) that nudism is an idea worth considering; (3) that persons should not be prevented from advocating nudism; (4) that the average person should be allowed to read about nudism if he so desires; (5) that to some extent nudist publications serve an important social function; or other remarks in this vein. (e.g., Witnesses Cortum, Thomas, Barnes, Knox, Gaydowski, Ford and Lindquist.) Statements of this type from the Respondent's witnesses cut squarely across the decisions of the Supreme Court in Roth and Jacobellis , supra, holding that in order to be "obscene," and thus excluded from constitutional protection, matter must be "utterly" without social importance.
"Utterly" is a vast word. It may be that by using this word the Supreme Court has decreed that, given the slightest socially significant context, no speech, writing, drawing or photograph may lawfully be classified as obscene. A piece of writing or a picture -- regardless of how repugnant, shocking or depraved it may be -- may be said to have some value as an illustration, for example by a psychiatrist or teacher, of words which should not be uttered or activity in which one ought not to engage. Thus, while obscenity is not entitled to Constitutional protection, it may be that almost any conceivable writing or representation is permissible, in some context, because it may be that no such matter is obscene, since it would be most difficult to say that under all circumstances any such material is " utterly without redeeming social importance" and that it has absolutely no "literary or scientific or artistic value or any other form of social importance ." [Underscoring added.] (See Roth and Jacobellis , supra).
There is a pertinent quotation which demonstrates that which needs no substantiation - namely, the prescience of Judge Learned Hand who, in 1913, made these comments in his decision in U. S. v. Kennerley , 209 F. 119, 121:
"***If there be no abstract definition, such as I have suggested, should not the word 'obscene' be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now?***
"Nor is it an objection, I think, that such an interpretation gives to the words of the statute a varying meaning from time to time. Such words as these do not embalm the precise morals of an age or place; while they presuppose that some things will always be shocking to the public taste, the vague subject-matter is left to the gradual development of general notions about what is decent.***"
To the same effect Mr. Justice Holmes once said:
"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." ( Towne v. Eisner , 245 U.S. 418 (1918)).
It is obvious to any observer that the trend of community standards of decency and customary limits of candor has been toward a greater degree of relaxation and freedom. Whether this situation is good or bad is left for determination by someone else, but it is an undeniable fact. It may be that at some future time this trend will slacken or be reversed, but the pendulum has not yet begun to swing in the other direction. The problem is such that the Respondent - ever alert to the possibility of obscenity being distributed by mail, and under a second-class mail permit at that - subjected the Petitioner to this proceeding and its publications, offensive to many, to the crucible of a formal hearing and decision under the Administrative Procedure Act.
From all that has been said, it is clear that this record, when viewed in its overall aspect, does not support the position of the Respondent. This is so even without going into the divergence of expert opinion as to whether the Petitioner's magazines, taken as a whole, appeal to the prurient interest of the average person. The Petitioner must prevail even in the absence of fuller treatment of the testimony of its witnesses -- evidence which has been studied and which is worthy of being accorded much weight.
On December 8, 1964, counsel for the Respondent supplemented his proposed findings of fact and conclusions of law with references to the following two cases: Dale Book Company, Inc. v. Leary, et al. , 233 F. Supp. 754 (1964); and United States v. Ginzberg, et al. , Nos. 14742 - 14745, C.A. 3 (1964).
In the Dale Book Company case, the District Court was confronted with many difficult questions, such as whether certain civil rights of the distributor of nudist publications had been abridged (alleged unlawful arrest; alleged unlawful search and seizure; and alleged censorship and prior restraint) and whether a federal court should intervene in a state case prior to the time of final action on the case by the highest state court, in addition to the question of the alleged obscenity of the publications involved. In view of the Court's concern with questions other than obscenity, and in the light of the highly pertinent decision of the United States Supreme Court in Sunshine Book Co. v. Summerfield , supra, and the other Supreme Court cases cited herein, the decision in Dale Book Company is not particularly persuasive on the basic issue of the instant proceeding.
In Ginzberg , the three publications under consideration were obviously of a different character than Sun Era and Urban Nudist. The publications involved in the Ginzberg case were Eros, Housewife's Handbook on Selective Promiscuity and a newsletter called "Liason." The contents of Eros consist of unrelated matter which the Court described as "bits of non-statutory material [which] have simply been laced into the obscene structure which is the Eros volume in evidence***." Concerning the Handbook, the Court found "There is nothing of any social importance in [it]." In respect to Liason, the Court said "There is no pretension that it has any social significance or literary merit." With regard to all three publications, the Circuit Court quoted approvingly a special detailed finding of fact by the District Court wherein it is said "They are devoid of theme or ideas." Thus, those three publications, as described in pertinent court findings, are quite different in character than Sun Era and Urban Nudist, wherein there is a theme of some social significance to which the textual and pictorial content are related.
Upon consideration of the entire record of this proceeding, the Hearing Examiner makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. Sun Era is a publication of Sun Era, Inc., of North Hollywood, California.
2. Urban Nudist is a publication of Sun Era, Inc., of North Hollywood, California.
3. On November 20, 1962, Sun Era, Inc., filed an application for a second-class mailing permit for the publication Sun Era.
4. On January 28, 1963, Sun Era, Inc., filed an application for a second-class mailing permit for the publication Urban Nudist.
5. On February 19, 1964, a representative of the Post Office Department -- Edwin A. Riley, Director, Classification and Special Services Division -- (herein sometimes referred to as the Respondent), advised Sun Era, Inc. (herein sometimes referred to as the Petitioner), that both applications were being denied subject to the outcome of a proceeding such as this.
6. The Respondent admits, and this Hearing Examiner therefore finds, that Sun Era and Urban Nudist
(a) are regularly issued at stated intervals as frequently as four times a year and bear a date of issue and each is numbered consecutively;
(b) are issued from a known office of publication;
(c) are formed of printed sheets;
(d) have a legitimate list of subscribers.
7. The Respondent advised Petitioner that the reason for the denial in each case was that issues of Urban Nudist and Sun Era submitted in connection with the application show that they regularly and systematically contain matter which appears to be obscene and, therefore, nonmailable under the terms of 18 United States Code 1461 and 39 United States Code 4001.
8. The Respondent's ruling is not supported by the evidence.
9. The articles in Sun Era and Urban Nudist discuss the philosophy of nudism; the history of nudism; the goals of the nudist movement; the purposes of the nudist movement; and the desire of the nudist movement to make nudism an acceptable way of life everywhere. The articles discuss the benefits and values of nudism; the nudist concept of shamelessness of the body; and the desirability of naturalness, cheerfulness and cleanliness of body and mind.
10. The pictures in Sun Era and Urban Nudist are posed and candid photographs of men, women and children engaged in various aspects of nudist living, and many of the photographs show pubic hair and genitalia. Sun Era and Urban Nudist also contain photographs of artistic and historic representations of nudism. The pictures in the publications are illustrative of and relevant to the articles in the publications.
11. The contents of Sun Era and Urban Nudist are substantially the same as the contents of nudist publications which have second-class mailing privileges.
12. The pictures in Sun Era and Urban Nudist are substantially the same as pictures in nudist publications which have second-class mailing privileges.
13. The contents of Sun Era and Urban Nudist are substantially the same as the contents of similar nudist publications which have been adjudicated not obscene in court decisions.
14. The pictures in Sun Era and Urban Nudist are substantially the same as the pictures of similar nudist publications which have been adjudicated not obscene in court decisions.
15. To the average person, Sun Era and Urban Nudist appeal to substantially the same interest as nudist publications which have second-class mailing privileges.
16. To the average person, Sun Era and Urban Nudist appeal to substantially the same interest as nudist publications which have been adjudicated not obscene.
17. Taken as a whole, neither Sun Era nor Urban Nudist goes substantially beyond the customary limits of candor of the contemporary community.
18. Taken as a whole, both Sun Era and Urban Nudist have some social importance.
19. Petitioner's magazines Sun Era and Urban Nudist fall within the so-called "nudist" category, featuring photographs of men and women in the nude.
20. The pictures of nude men and women provide the dominant feature of the magazines.
21. Many of the said pictures clearly reveal the genitals of the male subjects and the pubic area of the females presented.
22. The poses and/or camera angles in many of the said pictures focus the viewer's attention on the genital area of the subjects and, in some instances, on their buttocks or the women's breasts. The viewer's attention is not so focused in many pictures, also.
23. The Petitioner solicits sales of the said magazines in the pages of other magazines which he publishes outside the "nudist" category and which contain photographs of nude or partially nude female models.
24. Petitioner's magazines to a limited extent offend contemporary standards of the community.
CONCLUSIONS OF LAW
1. Sun Era is mailable matter.
2. Urban Nudist is mailable matter.
3. Neither Sun Era nor Urban Nudist is obscene.
4. Neither Sun Era nor Urban Nudist is hard core pornography.
5. Neither Sun Era nor Urban Nudist goes substantially beyond customary limits of candor of the contemporary community.
6. Both Sun Era and Urban Nudist have some social importance.
7. Both Sun Era and Urban Nudist are constitutionally protected expression.
8. Both Sun Era and Urban Nudist are of substantially the same general class, type and character as similar publications which have second-class mailing privileges.
9. Both Sun Era and Urban Nudist are of substantially the same general class, type and character as similar publications which have been adjudicated not obscene by court decisions.
10. Sun Era and Urban Nudist satisfy all statutory and regulatory conditions for second-class mailing privileges.
11. Petitioner has satisfied all statutory and regulatory conditions for second-class mailing privileges.
12. Petitioner is entitled to second-class entry for Sun Era.
13. Petitioner is entitled to second-class entry for Urban Nudist.
All proposed findings of fact and conclusions of law submitted by the parties have been carefully considered and they are adopted to the extent herein indicated. Otherwise, the proposed findings of fact and conclusions of law submitted by the parties are rejected for reasons herein set forth, or because of their immateriality, or because they are unsupported by or contrary to the evidence.
RECOMMENDATION
It is recommended that second-class permits be issued to Sun Era, Inc. for the publications "Sun Era" and "Urban Nudist."
/s/
1/ Pertinent portions of 18 U.S. Code 1461 read:
"Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance
* * * * * * * *
"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."
2/ 39 U.S. Code 4001 provides in pertinent part:
"Matter, the deposit of which in the mails is punishable under sections *** 1461 *** of Title 18, is nonmailable."
goes substantially beyond customary limits of candor in description or representation of such matters. ...'" (ibid., footnote 20, p. 487.)
3/ Those issues of these nudist publications are parts of the instant record as Respondent's Exhibits 19 and 20.
4/ The importer's name was Mounce, and this case will later be referred to as the Mounce case.