In the Matter of the Petition by                                )
                                                                               )
EROS MAGAZINE, INC.                                          )
110 West 40th Street                                             )
New York, New York 10018                                 ) P.O.D. Docket No. 2/244
                                                                               )
for a hearing upon the denial                                 )
of its second-class permit for                                )
"EROS"                                                                   )

POST OFFICE DEPARTMENT
WASHINGTON, D. C. 20260

APPEARANCES:                                                     Robert W. Maris, Esq.
                                                                               Dilworth, Paxson, Kalish, Kohn & Levy
                                                                               2600 Fidelity-Philadelphia Trust Building
                                                                               Philadelphia, Pennsylvania
                                                                               for the Petitioner
                                                                               William F. Lawrence, Esq.
                                                                               Associate General Counsel
                                                                               Saul J. Mindel, Esq.
                                                                               former Assistant General Counsel
                                                                               Jules W. Lindau, Esq.
                                                                               Attorney, Office of General Counsel
                                                                               Post Office Department
                                                                               for the Respondent

Bosone, Reva Beck

DEPARTMENTAL DECISION

Is "Eros" magazine entitled to the second class mailing privilege? If so, then the publisher of "Eros" magazine, the Appellant in the above-named case, is entitled to a refund of $24,156.96. The Initial Decision denied the privilege.

It is maintained by the Appellant that all of the requirements for the granting of the second class mailing privilege were met; that a hearing was requested and should have been held to have permitted the Appellant to introduce evidence which he thought was necessary. No hearing was held.

The Appellant made his application for the second class mailing privilege on July 12, 1962. The director, Edwin A. Riley, of the Classification and Special Services Division, Bureau of Operations of the Post Office Department, hereafter referred to as Director, delayed making a decision on the said publication because he was not sure that the Appellant was entitled to the second class mailing privilege. The Appellant paid the fourth class mailing rate for distribution of "Eros" magazine until a decision would be made by the Director on the Appellant's application. (This is not an unusual procedure.)

Counsel for the Appellant in a letter of July 15, 1963, wrote that the fourth consecutive issue of "Eros" magazine had been "published and distributed in accordance with the statutory and regulatory requirement"; that Appellant in the same letter referred to Mr. Riley's letter of April 25, 1963, which said that "since the Federal Grand Jury at Philadelphia, Pennsylvania, had returned an indictment which included as one of the counts a charge that Vol. 1, No. 4 of 'Eros' (and this is the volume that is involved in the above-named case) was in violation of the postal obscenity statute (18 U.S.C. § 1461)" there would be no action on the application of "Eros" magazine "until there has been an opportunity to examine future issues of 'Eros.'" Later the United States District Court for the Eastern District of Pennsylvania held that Vol. 1, No. 4 of "Eros" was in violation of the above-named statute. Counsel for the Appellant stated in his letter of July 15, 1963, that regardless of the decision in the Federal Court he believed the magazine was mailable. He went on to say that he was advising his client that no further issues of "Eros" should be placed in the mail "until the judgment of the district court has been reversed on appeal." On March 21, 1966, the Supreme Court of the United States delivered the decision in the case of Ralph Ginzburg et al, Petitioners, v. United States affirming the decision of the Court of Appeals for the Third Circuit, 338 F.2d 12. One of the publications for the mailing of which the publisher was tried and convicted was "Eros" Vol. 1, No. 4.

Mr. Riley, Director, on July 13, 1966, notified the publisher that his application had been denied because "The publication has been discontinued." On October 28, 1966, Mr. Riley sent an amended notice to the Respondent. The new amended notice denied the application for the reason that the several issues of Appellant's publication contained obscene matter (Ginzburg v. United States, 383 U. S. 463 (1966)). The Respondent appealed from the Director's decision. The matter came before the Hearing Examiner who in his Initial Decision denied the Respondent's application for second class mailing privileges for the publication of "Eros."

Timely appeal was taken by the Appellant and excellent briefs were filed by Counsel for the Appellant and the Respondent.

The Director, under 39 U. S. Code § 4354 and spelled out in § 822.353 of the Postal Manual, has wide authority by which to determine whether there should be granted second class mailing privileges to a publisher. Considering the circumstances involved in the delay and the invitation by the Appellant in his letter of July 15, 1963, to delay ^1/ does not show that it was unreasonable. If the publisher believed that the ruling on his application was being unreasonably delayed, then the burden was on the publisher to go into court to have the ruling by the Director expedited. The circumstances surrounding the delay show an acquiescence by the publisher.

Title 39 U. S. Code § 4354(a) I believe means what it says:

"Generally a mailable periodical publication is entitled to be entered and mailed as second class mail if it--

(1) is regularly issued at stated intervals as frequently as four times a year * * *".

Apparently in Appellant's letter of July 15, 1963, he believes that there is a requirement for four issues of a publication when he said, "On April 3, 1963, we wrote regarding the second class mailing permit application of Eros Magazine, Inc. We advised that the fourth consecutive issue had been published and distributed in accordance with the statutory and regulatory requirement."

Mailability of a magazine in addition to other prerequisites for second class mailing privileges depends on whether or not it is obscene, lewd, lascivious, etc. (18 U. S. Code § 1461). If it is, then according to this statute it "shall not be conveyed in the mails or delivered from any post office or by any letter carrier."

When the Supreme Court of the United States granted certiorari, 380 U. S. 961, and affirmed the conviction of Ginzburg on March 21, 1966, 383 U. S. 463, it held that "Eros" magazine Vol. 1, No. 4 which was one of the publications in the original case against Ginzburg in the Federal Court was obscene. It then follows that it is not mailable--18 U. S. C. § 1461.

The Appellant questions the clarity of the Supreme Court's decision that this particular edition, Vol. 1, No. 4, is obscene on its face, and that since this decision of the Supreme Court of the United States (Ginzburg) was a criminal case and that the matter now before the Post Office Department is a civil case, a hearing was necessary.

Counsel for the Appellant argues well the question that he raises relative to collateral estoppel which is relied on in the Initial Decision. The Appellant requested a hearing wherein he could produce evidence questioning the obscenity of "Eros" Vol. 1, No. 4 but the Hearing Examiner denied the request on the grounds that a hearing "would be first, a useless exercise, and secondly, highly inappropriate to proceed to hearing in this matter when the dispositive factual question has already been decided by the applicable courts and affirmed by the United States Supreme Court." This makes sense and is in accord with the decision in United States v. Myers, 38 F.R.D. 194, when it says: "The policy of the law favors finality in litigation and, therefore, is opposed to relitigation of issues once determined in an adversary proceeding."

"A finding must be essential to a judgment before it can be given collateral estoppel effect in a later suit. The Supreme Court has stated: 'That doctrine (collateral estoppel) makes conclusive in subsequent proceedings only determinations of fact, and mixed fact and law, that were essential to the decision. Yates v. United States, 354 U. S. 336 * * *'" (E. I. du Pont de Nemours and Co. v. Union Carbide Corp., 369 F. 2d 242 (1966)).

The issue of obscenity was litigated in the Ginzburg case, supra, and it is essential in the determination of the question of the eligibility of "Eros" for second class mailing privileges. The determination of that issue by the Supreme Court clearly is binding upon the Post Office Department.

"Eros" magazine Vol. 1, No. 4 was Appellant's fourth publication--one of the requirements needed in applying for the second class mailing privilege. The Supreme Court of the United States held that this volume was obscene--and to the extent that the sentence in the case of Ralph Ginzburg, Petitioners v. United States was affirmed. Since this particular issue is obscene and therefore not mailable, the Appellant did not meet the requirement of having a publication that is regularly issued at stated intervals as frequently as four times a year" (Statute, supra).

In view of the facts, the law and the arguments in the above-named case, the Initial Decision is hereby affirmed. The publisher is denied second class mailing privileges for the publication "Eros."

1/ Sunshine Publishing Company v. Summerfield, 184 F. Supp. 767, is distinguishable from this case.