In the Matter of Petition By GREENLEAF PUBLISHING CO., Publishers of "Rogue for Men" Magazine, for Order to Show Cause Why Application for Second Class Entry Should Not Be Granted and for Hearing Before Denial of Application for Second Class Entry. H.E. Docket No. 4/202 March 22, 1957 William A. Duvall Hearing Officer POST OFFICE DEPARTMENT, WASHINGTON, D.C.
On June 1, 1956, the Greenleaf Publishing Company, 1426 Fowler Avenue, Evanston, Illinois, filed an application on POD Form 3501 (Respondent's Exhibit 1) seeking entry into the mails as second-class matter of the publication "Rogue for Men."
With respect to the August, 1956, issue of the magazine, the publisher submitted on July 19, 1956, a report on a separate POD Form 3501 (Respondent's Exhibit 2) showing that 275,000 copies had been mailed, 195,830 copies had been sold by new agents and 79,170 copies had been returned to the publisher. Respondent's Exhibits 1 and 2 indicate that the Empire News Company, Skokie, Illinois, distributes the magazine under a contract with the publisher.
The Director, Division of Mail Classification, Bureau of Post Office Operations (hereinafter referred to as the Respondent), advised the publisher by letter dated August 2, 1956 (Respondent's Exhibit 3), that the August, 1956, issue of the magazine was regarded by the then Assistant Solicitor (now Assistant General Counsel, Fraud and Mailability Division) as nonmailable under Section 124.31 of the Postal Manual. The publisher was further advised that on the basis of the aforementioned ruling the Director proposed to deny the application for admission to the second-class privileges of the magazine "Rogue for Men."
The publisher (hereinafter referred to as Petitioner), by his attorneys, filed his Petition on August 15, 1956, praying (1) that the Respondent be required to show cause why the recommended denial of second-class privileges should not be reversed and Petitioner's application granted; (2) that Petitioner be granted a hearing; and 93) that Petitioner's application for second-class mailing rates for the publication be granted effective as of the date of application, and that a permanent permit be issued to Petitioner.
Simultaneously Petitioner filed a Motion for More Definite Statement which should specify (1) the matters upon which the Respondent relied in reaching the determination that the August, 1956, issue of the publication is nonmailable; (2) the standards used in making this determination; (3) whether Respondent seeks to deny entry of future issues of the publication as second-class mail; and (4) whether Respondent deems the publication to be nonmailable on any ground other than those stated in the notice dated August 2, 1956.
Respondent's Answer was filed on September 6, 1956, in which it is affirmatively alleged that (1) the August, 1956, issue of "Rogue for Men" is nonmailable under the provisions of Section 1461, Title 18, United States Code; (2) the basis of proposed denial is broadened to include the October, 1956, issue of the magazine; (3) the October, 1956, issue is nonmailable under 18 U. S. Code 1461; (4) in order to qualify for second-class mail privileges a magazine must be mailable matter; and (5) Petitioner regularly and systematically publishes in said magazine matters which are of a predominantly obscene, lewd, lascivious and indecent character. Respondent prayed that Petitioner's application for entry of "Rogue for Men" to the mails as second-class matter be denied.
Respondent's Reply to Petitioner's Motion for More Definite Statement, in which Respondent's position with respect to information sought by Petitioner was stated, was filed on September 7, 1956.
By subsequent motions to amend, which motions were granted, the basis of the proposed denial of second-class mail privileges was broadened to include the December, 1956, and February, 1957, issues of the publication. For each issue of the magazine now under consideration there was filed a statement setting forth the articles, cartoons or pictures relied upon in reaching the conclusion that each issue was nonmailable.
The hearing in this matter was held on January 22, 1957. At the hearing the Respondent introduced, in addition to the exhibits already identified, Exhibits 4 through 13. Exhibits 4 through 9 are applications for entry as second-class matter of earlier issues of "Rogue for Men," notices of denial of these applications, and a statement as to the number of copies of a particular issue sent through the mails. Exhibits 4 through 9 relate to the December, 1955, and the February, April and June, 1956, issues of the publication. Counsel for Petitioner objected to the admission of these exhibits, but they were admitted for the limited purpose, only, of showing the past transactions between the publisher and the Department.
It might be well to state at this point that the Hearing Officer has not seen the issues of the magazine to which Exhibits 4 through 9 relate and that no consideration has been given to those issues in connection with the determination of the present matter.
Exhibits 10 through 13 are, respectively, the August, October and December, 1956, and the February, 1957, issues of "Rogue for Men."
Counsel for both parties to this proceeding have filed proposed findings of fact, conclusions of law and reasons in support thereof.
In his brief, Petitioner presents five arguments. The first is directed at (1) the alleged lack of reference by the Respondent to any ascertainable standards and (2) the alleged failure to prove by any evidence that the magazine is obscene.
In response to the Petitioner's motion for a more definite statement Respondent quotes certain excerpts from cases which were relied upon by Respondent in proposing to deny second-class entry as follows:
"The effect of a publication on the ordinary person is what counts. *** The dominant effect of an entire publication is what determines its character. The standard must be the likelihood that the work will so much arouse the salacity of the reader to whom it is sent as to outweigh any literary, scientific or other merits it may have in that reader's hands." Walker v. Popenoe, 149 F.(2d) 511, quoting from U. S. v. Levine, 83 F.(2d) 156.
"The determining question is, in each case, whether a publication, taken as a whole, has a libidinous effect," and whether its pictures are "introduced to promote lust or to produce libidinous thoughts." Parmelee v. U. S., 113 F.(2d) 729.
This is a sufficient statement of standards and criteria.
As to the evidence that the magazine is obscene, the magazine speaks for itself. It is proper for the Hearing Officer to base his recommendations upon the record in the case and the contents of the magazine. No further evidence is necessary. (Tourlanes Publishing Company v. Summerfield, et al., Civil No. 3635-55, U.S.D.C., D.C., decided November 4, 1955; affirmed U.S.C.A., D.C., March 29, 1956, 231 F.(2d) 773).
Next, Petitioner argues that Respondent lacked statutory authority to deny second-class rates on the ground of obscenity.
Under R. S. 396, 39 U. S. Code 369, the Postmaster General is instructed to "execute all laws relative to the Postal Service." Section 1461 of Title 18, United States Code declares certain matter to be nonmailable and under 39 U. S. Code 224 only mailable matter is entitled to entry into the mails at second-class mail rates. Thus, the Postmaster General has not only the authority but also the duty of insuring that second-class rates are denied to publications of which obscenity is the dominant characteristic.
Thirdly, Petitioner urges that the denial of second-class rates to Petitioner would amount to the imposition of a fine constituting a criminal penalty in a civil proceeding.
This proceeding has as its chief purpose the question of determining whether the preferential second-class rates are applicable to the publication in question. Thus, while a judgment must be formed as to whether the magazine is obscene which the meaning of the statute and as that term has been defined by the courts, the use to which this judgment will be put is to permit the application of the proper mail rate. The authority of the Department prospectively to deny a publication admission to the mails as second-class matter, based upon the nature of its previous issues, has been upheld. (U. S. ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407).
Petitioner's last two arguments raise constitutional questions. It is not within the province of the Hearing Officer to pass on the constitutionality of the statutes under which the Department carries on its functions. These questions are for decision by the courts. Engineers Public Service Co. v. Securities and Exchange Commission, 138 F.(2d) 936, 951-953. It should be pointed out, however, that the courts repeatedly have held the obscenity statute to be constitutional. Rosen v. U. S., 161 U.S. 29; U. S. v. Rebhuhn, 109 F.(2d) 512; Public Clearing House v. Coyne, 194 U.S. 497, Ex Parte Jackson, 96 U.S. 727; U. S. v. Hornick, 131 Fed. Supp. 603, affirmed 229 F.(2d) 120.
As stated before, Petitioner has said nothing in his brief relating to the merits of this particular case, but because the Petitioner's brief goes to the question of the authority, propriety and legality of these proceedings, it was deemed advisable to answer the brief in this report. The comments made hereinbefore with respect to Petitioner's arguments are made without reference to the issue in this particular proceeding, but they are made generally to show that Petitioner's arguments in and of themselves are not persuasive and are contrary to the weight of authority.
It is now the time to consider the issue in this case, which is: Are the contents of the four issues of "Rogue for Men" obscene within the meaning of 18 U. S. Code 1461 and within the decisions of the courts to such an extent as to render the publication nonmailable, and therefore, not entitled to entry into the mails as second-class matter under 39 U. S. Code 224 and 226?
In resolving this issue, the contents of the magazine will be measured against the standards quoted in the reply to Petitioner's first argument above. In addition to these standards, there must be considered the intent of the publisher - "Honest, sincere works must be distinguished from publications wholly for the purposes of profitably pandering to the lewd and lascivious." (Sunshine Book Company, et al. v. Summerfield, U.S.C.A., D.C., No. 12622, decided May 31, 1956; Parmelee v. U. S., 113 F.(2d) 735, 736).
In order to make a determination as to the type of recommendation to be made in this case it is necessary that consideration be given to the contents of the various issues of the publication. The first issue is that for August, 1956. The first article in this issue is entitled, "Big Dame Hunter." This article is devoted in its entirety to the approaches to be used by men in making sexual conquests. The tone of this article is set in the following quotation:
"Seduction, most men feel, is the only technique of a genuine sportsman. It gives the game a fair chance. It offers the excitement of uncertainty. The kill represents an achievement. *** No feline creature minds being a target for the predatory male. She is fully aware that all she has to do to elude his marksmanship is to keep saying no. If his aim brings her down, it's only because she wants to be a trophy in his collection."
The tone, thus established, is maintained throughout the entire article.
The next article is entitled, "Bottoms Up - Abroad," and discusses different types of drinks and different places at which to get them.
The next article is "The Major's Sexcessful Spy Ring." This story is about a Czech military attache and his efforts to get military secrets about Swedish weapons. The methods employed by the Major invariably involve the seduction of married or single women.
The next article, which is a regular feature of the magazine, is entitled "Rogue of Distinction." The subject of this article is Frank Sinatra and the article deals with his career and with his private life. Emphasis is placed upon his fascination with women and his attraction for them.
The next article is entitled, "Mr. Hilton's Gold Plate Special." This article describes the L'Escoffier Restaurant at the Beverly Hilton Hotel and the food and service that one gets there.
The next article "Frenchmen Have Their Cake," purports to give a picture of sex life in France. The substance of the article is that because of an overabundance of men, the accomplishment of illicit sexual relationship between men and either single or married women is easy to achieve.
The next article is entitled, "Couriers of the Crown." This story deals with the escape of an English Courier from Chinese pirates.
The next story, "The Blue Chip Nude," is a murder story in which the murderess offers to be the detective's mistress if he will not reveal the fact that she has committed the murder.
In addition to the articles mentioned above there are generously scattered throughout the publication, various pictures and cartoons. For example, on page 15 there is a photograph of a young woman sitting on her heels, clad in a very thin and transparent net garment. Although she is covered by this garment, her breasts are clearly visible. On pages 16 and 17 there is a picture which takes up two pages. The subject of this photograph is the same young woman who appeared on page 16, and this time she is standing on her tiptoes on what appears to be a sandy beach with her arms over her head and her torso turned so that her breasts are visible even through the thin black garment she is wearing which reaches from her shoulders to her ankles. On pages 18 and 19 there are three more photographs of the same young woman in various stages of nudity, although in none is she completely nude.
On page 23 of the magazine is a cartoon which shows a man standing at a doorway holding in his hand a receptacle with the word "Charity" printed thereon. Inside the doorway is a voluptuously formed young woman who has just answered the door. The caption of this cartoon is "I don't know, miss ... I'd have no way of turning in that kind of contribution--." The meaning of this cartoon requires no explanation.
On page 39 of the magazine there is a full page picture, rear view, of a woman walking on a beach clad only in the lower part of a Bikini bathing suit and holding the upper part in her hand.
On pages 39 and 40 there are photographs of three young women. In each instance the breasts are largely exposed and poses and expressions are suggestive.
On pages 42 and 43 there are three additional pictures of scantily-clad young women.
On page 49 is a full page cartoon which shows a thinly-clad young woman lying in front of a fireplace. Behind her is a young man with an eager expression on his face, who is saying to the young woman "Contented? No... For some strange reason a roaring fire makes me feel restless tonight."
The next issue of the magazine is for October, 1956. The first article in this issue is entitled, "So You'd Like to Have a Harem?" This purports to be the story of a young American man who inherits 12 women from an Arabian by whom he had been befriended. The article deals with the attractions of the various members of this harem, who were of different nationalities, and the various problems encountered by the young man after he became their owner.
The next article in this issue is entitled "Rogue in Tito-Land." This is a story of travel in Yugoslavia and while most of the text is devoted to various scenes and places in Yugoslavia, the opportunity is not passed up to describe the ease with which liaison may be formed with the young women who are traveling in that country.
The next story is "A Blue Note for Johnny Valenta." It is a sordid tale in which Johnny seduces his brother's wife. The brother then waits until Johnny gets married and starts on his honeymoon and then the brother rapes Johnny's new bride.
This month's "Rogue of Distinction" is Errol Flynn. While the story is a biographical sketch of the subject, emphasis is placed upon his relationships with women.
The next article is entitled, "Dance, Belly, Dance." The text purports to be a sort of history of dancing but, in reality, it is used primarily as a vehicle to display pictures of a scantily-clad dancer and to make suggestive remarks.
The next article is entitled, "Mixology for Laymen." This is an article on the subject of how to make mixed drinks.
"A Manual for Heels" is the next article and this purports to give instructions to men for making sexual conquests. It is of the same type and it is written in the same vein as is the article "Big Dame Hunter" in the August issue.
The last article in this issue is "A Tale of Two Knees." This is a story involving an adulterous relationship as supposedly told by the knee of the man. Again in this issue there are many pictures and cartoons of nude and partially nude females and the stories are illustrated with suggestive drawings. Without describing them at length, and referring to them for illustrative purposes only, reference is made to pages 11, 15-19, 22, 23, 39-43, 47 and the cartoon in the upper lefthand corner of page 50.
The first article in the December, 1956 issue is entitled, "The Xmas Present." This is a story of a shy young man who has lived all his life under the strong influence of his mother. He takes a few drinks at a Christmas party attended by his colleagues in his office, and then goes home and has sexual relations with a young woman who recently has come to live in his home.
The next article is entitled, "Is There a Doctor on the Couch?" This story involves a young man who goes to see a psychiatrist. At the end of the story it turns out that the psychiatrist is a woman and they have sexual relations during the course of the treatment.
The third article in the December issue is "Rainier's Hunt For the Golden Goose." This article purports to give the reasons for the marriage of Rainier of Monaco to Grace Kelly.
Next is "Babes For Your Blacklist." This article purportedly is designed for men who, while liking to be intimate with women, wish to avoid marriage. It purports to describe the types of women whom such men should avoid.
The next article is the usual "Rogue of Distinction" and is a biographical sketch of Orson Welles.
The next story bears the title "Timbouctoo - Tag End of Nowhere" and is a story of travel to this place.
The last article in this issue is entitled, "Jeanie With the Bedroom Eyes." This is a story of a young male employee in a department store and his desire for the young woman who is employed to advertise, in the display window of the store, bedroom furniture. The story is told of the young man's attempts to become intimate with the young woman and eventually he succeeds as they have sexual relations in the show window of the store.
As in previous issues, pictures of semi-nude and nearly nude females and suggestive cartoons are liberally scattered throughout the magazine. Examples will be found on pages 19-23, 27, 39-45 and 53.
The last issue under consideration in this proceeding is the issue for February, 1957.
The first article in this issue is entitled, "The Love Master." In this story there is an old man who is represented as being an expert in giving advice to young men in the art of making love. A young woman disguises herself as a man and tricks the older man into having sexual relations with her.
The next article is entitled, "Art Colony Moves Abroad" and purports to give the locations and cost of living information of various art colonies in Mexico and Europe.
The next article is entitled, "Open the Chastity Belt - Richard]" This article discourses on the subject of infidelity among wives.
"Behind The Mask of James Dean," a biographical sketch of the late actor, is the next article in this issue.
Next is "Rest Cure," a story of a young artist who watches a nude girl, through a keyhole in the door which connects their apartments and paints her picture. Eventually she comes through the door into his apartment and the suggestion is that they have sexual relations.
The next article is entitled, "GHQ Atomic Age." This is the story of the building of "Alternate Joint Communication Center."
In the article entitled, "Rogue of Distinction" for this month the subject is Rex Harrison. It deals in large measure with the attractions which this actor has for his female audience.
The final article in this issue is entitled, "How Stale was My Cheesecake." This article is a story about the way in which womens' dress has changed. It discusses the various parts of the female anatomy which are considered attractive by men.
The following quotation is considered to be significant:
"The world seems to be filled with photographers who spend all their time squeezing their bulbs at pretty girls. Operating with the sang-freud of a Freud and the craft of a Krafft-Ebing, these picture-snappers have created a new kind of pictorial journalism in which the bust-line is more important than the headline.
Take a magazine like ROGUE, for example. (Go ahead, take two or three and make the editor happy.) Open it up and you'll find page after page of pulchritude on parade. One gets the notion that there are only two kinds of females in the world today -- cover-girls and uncover-girls."
The pictures and cartoons of this issue are the same type and character as those found in the earlier issues. Examples may be found among other places throughout the magazine, on pages 15-19, 39-45, 49, 59 and 65.
When one looks objectively at the contents of each of these magazines individually and all of them collectively, one cannot but be impressed with the appeal that is made to the baser instincts. While there are some articles in each of the magazines which describe travel in various places and contain biographical sketches of different individuals, the greater portion of each issue is devoted to stories which involve adulterous relationships, infidelity among wives, advice to men on their approach to women for the purpose of having sexual relations. Even in the articles which give biographies or tell of travels there are suggestive remarks inserted from time to time which are of such nature as to tend to arouse lustful thoughts in the minds of the average reader, and it must be borne in mind that the articles dealing with biographies and travel are by far less numerous and less provocative than the majority of the articles found in the publication. The greater number of the articles in all of the issues of the magazine leave very little to the imagination, and convey their message not only by a suggestion and inuendo but in some instances in the baldest of statements.
In addition to the articles specifically referred to, there is also carried in each issue a feature which is called "Nertsery Rhymes." These features are composed as a rule of suggestive limericks or parodies on nursery rhymes which are suggestively phrased. Accompanying each of these features are drawings of quite scantily-clad females. The cover of each issue contains a drawing of a shapely and usually only slightly clad female which is designed to attract the eye of anyone who may see the magazine on the newsstand. Each issue contains almost innumerable advertisements proclaiming the sale of pictures of women. The suggestion is that the pictures advertised and offered for sale are of nude or partially clad females. As this magazine is distributed, it will become known among those whose tastes lean toward the prurient that this is a source to which they may refer to buy pictures of the type illustrated.
The pictures and cartoons carried in the magazine are either so bold in representing the nude or partially nude female figure or so sufficiently suggestive in their captions or are so provocative in the posture of the photographed or cartooned female figure that it is obvious upon inspection that their appeal is primarily to those persons who prefer the lewd and lascivious.
There is nothing in any of the issues of this magazine now under consideration which is of any literary or scientific merit. As indicated before, some of the articles which deal with travel, or the biographical sketches are probably of some interest. These articles, however, comprise only a small proportion of the entire contents of the magazine.
There remains the question as to whether these magazines are "honest, sincere works" or whether they are designed "for the purpose of profitably pandering to the lewd and lascivious." If this publication were honestly and sincerely designed as a magazine for men, there would surely be more articles, pictures or drawings in which sex plays a less important part. There is nothing wrong or obscene, of course, in articles on sex if the subject is properly and sanely treated. But to convey stories of rape, adultery, murder, man-chases-girl, and pictures, drawings, and advertisements of pictures of nude or nearly nude females almost to the exclusion of everything else leaves little room for doubt as to the intent of the publisher. There is no other conclusion that can be reached but that the magazines intentionally are filled with material of the type that has been described herein for the purpose of attracting and appealing to those persons who prefer the lewd and the lascivious.
Based upon a review of the entire record in this case, the issues of the publication, and the decisions of the courts, I make the following findings of fact, conclusion of law, and recommendation.
FINDINGS OF FACT
1. The August, October and December, 1956, and the February, 1957, issues of the publication "Rogue For Men" are dominated by articles, pictures and drawings of an obscene, lewd, lascivious or indecent character.
2. It is the intent of the publisher of the magazine "Rogue For Men" to pander to persons of prurient, lewd and lascivious tastes.
CONCLUSION OF LAW
1. The August, October and December, 1956, and the February, 1957, issues of the publication "Rogue For Men" are nonmailable matter within the meaning of 18 U. S. Code 1461, and are not entitled to entry into the mails as second-class matter under the provisions of Sections 224 and 226 of Title 39, United States Code.
RECOMMENDATION
1. It is recommended that Petitioner's application for entry as second-class matter of the publication "Rogue For Men," be denied.
For the reasons indicated herein, Petitioner's prayers for relief are denied.