In the Matter of the Petitions by                              )
                                                                               )
SUN ERA, INC.                                                        ) P.O.D. Docket Nos.
7315 Fulton Avenue                                               ) 2/152 and 2/153
North Hollywood, California                                   )
                                                                               )
for second-class mail permits for                          )
the publications "SUN ERA" and                            )
"URBAN NUDIST."                                                  )

POST OFFICE DEPARTMENT
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


Bosone, Reva Beck

DEPARTMENTAL DECISION

Are the publications "Sun Era" and "Urban Nudist" entitled to the second class mailing privilege? Sun Era, Inc., the publisher, filed separate applications for this privilege. On February 19, 1964, the applications were denied by the Director of the Classification and Special Services Division, Bureau of Operations of the Post Office Department.

The applicant appealed this decision and a hearing was held by the Chief Hearing Examiner of the Post Office Department whose Initial Decision was filed on November 10, 1965. It held that second class permits should be issued to Sun Era, Inc., for the publications "Sun Era" and "Urban Nudist." From this decision the General Counsel of the Post Office Department appealed to the Judicial Officer.

On March 22, 1966, the Judicial Officer stayed the proceedings in the above-named cases until a study could be made of the opinions issued by the Supreme Court of the United States in the cases of Ralph Ginzburg v. United States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966), A Book Named "John Cleland's Memoirs of a Woman of Pleasure" et al. v. Attorney General of Massachusetts, 383 U. S. 413 (1966).

On March 24, 1965, a Federal grand jury in the Northern District of Iowa, Western Division returned an indictment of 25 counts against a number of defendants among whom was Sun Era, Inc. The indictment charged that defendants had used the mails for transporting obscene books and magazines in violation of Title 18, Section 1461, U. S. Code. The jury on January 14, 1966 held certain defendants guilty of violating said statute. Sun Era, Inc., was among them.

The Judicial Officer has stayed proceedings in the above-named cases pending the outcome of appeals since the conviction of the Appellant in the United States District Court of Iowa.

It now seems to the Judicial Officer that a great deal of time has lapsed since the applications were made by Sun Era, Inc., for the second class mailing privilege for its magazines "Sun Era" and "Urban Nudist" and that it becomes paramount to make a decision.

The Judicial Officer believes that it is not appropriate or necessary that she wait for further proceedings in the above-named matter since the United States District Court for the Northern District of Iowa, Western Division, has already convicted the Appellant of sending obscene magazines through the mail.

In examining the issues of "Sun Era" and "Urban Nudist" that were involved in the Iowa case, supra, I find that they are of the same character as those in the cases at hand.

The Publications "Sun Era" and "Urban Nudist" are obscene within the meaning of 18 U. S. Code 1461 ^1/ and ineligible for second class mail rates under the statute, 39 U. S. Code 4001. ^2/ The Initial Decision of the Hearing Examiner is reversed and the applications for second class mailing privileges made by Sun Era, Inc., are hereby denied.

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."