In the Matter of Petition by ARNOLD MAGAZINE, INC. Publisher of CLASSIC PHOTOGRAPHY 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. 4/211 February 6, 1957 William A. Duvall Hearing Officer. POST OFFICE DEPARTMENT, Washington 25, D.C.
By agreement of the parties to this proceeding, this matter is to be decided upon the basis of certain facts and exhibits contained and described in a stipulation filed October 22, 1956; an amendment to which was filed on January 18, 1957.
This matter arose upon the filing by Petitioner on July 2, 1956, of an application for second-class mail privileges (POD Form 3501, May 1955) (Petitioner's Exhibit 1) for the publication CLASSIC PHOTOGRAPHY.
By a notice dated August 14, 1956, Petitioner was advised that the Director, Division of Mail Classification, Bureau of Post Office Operations, hereinafter referred to as the Director, proposed to recommend denial of Petitioner's application on the grounds that (1) the provisions of law codified at 39 United States Code 224 and 226 require that second-class matter be mailable matter embracing newspapers and other periodical publications; (2) that such publications may not contain material that would cause them to be non-mailable under the provisions of Part 124; Postal Manual; (3) that the Assistant Solicitor (now Assistant General Counsel, Fraud and Mailability Division) for the Post Office Department had advised that the Autumn, 1956, issue of CLASSIC PHOTOGRAPHY is non-mailable under the provisions of 18 United States Code 1461; section 124.31, Postal Manual; and (4) that the application did not establish that the publication has a legitimate list of subscribers as required by section 226, title 39, United States Code (Respondent's Exhibit 1).
On August 29, 1956, Petitioner filed his petition (Petitioner's Exhibit 2) requesting that the Director and the Postmaster General be required to show cause why the proposed denial should not be reversed and the application for second-class entry be granted and for a hearing upon the issues.
On August 31, 1956, the requested show cause order was issued. No provision existing in the rules of practice in matters of this type for naming the Postmaster General in the petition, the show cause order is not directed to that officer, but only to the Director.
Respondent's answer to the petition (Respondent's Exhibit 2) was filed on September 19, 1956. This answer affirmatively alleges in substance that the Autumn Issue of Classic Photography is non-mailable under the provisions of section 1461, title 18, United States Code, and that, therefore, under the provisions of sections 224 and 226 of title 39, United States Code, it is not entitled to entry as second-class matter.
Additional exhibits are: the Autumn, 1956, issue of the publication (Petitioner's Exhibit 3); Respondent's Supplemental Answer (Respondent's Exhibit 3) filed December 21, 1956; and the Winter, 1956, issue of Classic Photography (Petitioner's Exhibit 4).
As provided in section 201.40 (bb) of the rules of practice, both parties have submitted proposed findings of fact, conclusions of law and reasons in support thereof.
The issue in this case is whether the contents of the Autumn and Winter, 1956, issues of Classic Photography are obscene, lewd, lascivious, indecent, filthy or vile so as to render them non-mailable under section 1461 of title 18, United States Code, and thereby making them ineligible for entry into the mails as second-class matter. As an aid in resolving this question I have prepared an analysis of each of the two issues of the magazine in question.
AUTUMN ISSUEArticle
1. Erika's People - 6 pages - no pictures of nudes or semi-nudes - contains small amount of biographical data concerning Erika - no technical photographic data - 7 pictures of various subjects.
2. Bernard's Women and Portraits - 10 pages - 19 pictures of female models in various stages of dress from nude to fully clothed - some pictures with small amount of information as to camera, shutter speed and type of film used, other pictures without any information.
3. The Lady or the Tiger - 4 pages - 7 pictures - 5 of tiger, 2 of nude female with buttocks and part of breast exposed - no photographic data. While ostensibly concerned with pictures of the tiger, the text deals primarily with the photographer's efforts to meet his appointment with the model.
4. Russ Meyer Out of Doors - 4 pages - 7 pictures of nude or nearly nude females - no information as to how pictures were taken - small comments about composition of some of the pictures - no comment or information about other pictures.
5. Shooting Our Cover - 2 pages - 23 pictures - model appears in various stages of dress. The text contains no technical data.
6. Kallard's Nudes - 6 pages - 9 pictures of nude or nearly nude females - some with a small amount of technical data, others without any - text contains biographical information about the photographer.
7. The Wizardry of Weegee - 6 pages - 16 photographs - text contains biographical data about the photographer - 7 pictures are of nude or partly nude females - pictures are of some photographic interest because of the manner of printing, but there is no explanation as to how the individual pictures were taken.
8. Celebrity or Sell-ebrity - 4 pages - 13 pictures of motion picture personages - no nudes - the text tells of efforts of celebrities to keep their names and faces before the public - there is no technical photographic data in the text.
9. Grundy's Aquarium - 5 pages - 6 full-view pictures of a nude female with pubic area obliterated. WINTER ISSUE
Article
1. Places and Faces - 5 pages - 12 pictures - no nudes - text contains biographical data about the photographer, some small amount of technical information not specifically related to any of the photographs.
2. Shooting the Nude Outdoors - 4 pages - 8 pictures of which 6 are full figure and all are nude. The author-photographer discusses the equipment he uses and there are some suggestions and information as to how the pictures were taken.
3. Erika by Request - 2 pages - 3 pictures of scenes in New York City - no technical information.
5. Photography 100 Years Ago - 2 pages - 5 pictures - text contains biographical sketch of David Octavius Hill. Would be of interest to persons seriously concerned with development of photography. Pictures are of individuals and replicas of early cameras.
6. The Other Guyther - 2 pages - 4 pictures - some technical data in text - 2 pictures of nudes - 1 full figure with thin veil. 1 picture of model from waist up, nude, reclining.
7. Steelworker - 2 pages - 7 pictures - no nudes - text describes author's experience of taking the pictures and gives some technical information as to how pictures were made.
8. Shooting the Bullfight - 5 pages - 13 pictures - no nudes - two sentences describe camera used by photographer and his preference as to film.
9. Portfolio of Beauty - 11 pages - 20 pictures - 5 full-figure nudes - remainder either unclothed or partially clad. Photographic information so general or brief as to be of little, if any, value.
10. Make Your Own Camera More Adaptable - 2 pages - 9 pictures - text contains direction as to how to adapt view camera for use as a reflex type. Two of the pictures used to illustrate this article are of a female model - one picture being completely in the nude, the other partially nude.
11. A Camera in Bali - 6 pages - 13 pictures - text relates various facts of Balinese life. There is one picture of a bare-breasted woman with a child in her lap and the caption indicates that they are mother and child. The text devotes some space to praising the beauty of Balinese women.
12. Tips to Tyros - 1 page - 2 pictures of an ape.
Each of the issues of the publication contains 52 pages, counting the inside and outside of the front and back covers. The inside of the front cover of each issue contains photographic reproductions of nude or partially nude females. Of the 52 pages of the Autumn issue, there are 32 pages on which pictures of nude or partially nude females appear, while there are such pictures on 25 of the 52 pages of the Winter issue.
In the Autumn issue there is a total of 99 pictures of which 45 or over 45 per cent are of nude or partially nude models. The corresponding figures in the Winter issue are 112, 48 and over 42 per cent.
The purpose behind this detailed analysis is to provide a means to define a pattern which must be measured by the criteria established in various pertinent decisions of the courts on issues similar to the one here presented. Understandably, the courts have been reluctant to attempt to lay down hard and fast rules for the definition of obscenity, indecency, and the other terms used in the statute. The following standards are those which are believed to furnish the best guidelines in this matter:
"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." (U.S. v. Levine, 83 F. 2d 156, 158; Walker v. Popenoe, 149 F. 2d. 511, 512).
"... a book must be considered as a whole, in its effect, not upon any particular class, but upon all those whom it is likely to reach." (Parmelee v. U.S., 113 F. 2d 729, 731).
"The determining question is, in each case, whether a publication, taken as a whole, has a libidinous effect." (Parmelee case supra, p. 736-7).
"While any construction of the statute that will fit all cases is difficult, we believe that the proper test of whether a given book is obscene is its dominant effect." (U.S. v. One Book Entitled Ulysses, 72 F. 2d 705, 708).
"Honest, sincere works must be distinguished from publications wholly for the purpose of profitably pandering to the lascivious." (Parmelee case, supra, p. 736.)
Do these magazines have literary, scientific or other merits to a degree sufficient to outweigh the portions of them which tend to arouse the salacity of the reader into whose hands they may come? Such merit as the magazines have lies in the field of photography. The text of both issues has been read, studied and analyzed. There is patently no literary or scientific merit in either issue. There scarcely is any technical data on photography in general or with respect to the particular pictures in the Autumn issue. There is somewhat more of such information in the Winter issue, but it is largely of such a generalized nature as to be of little value to a serious student of photography. To the amateur photographer seeking to learn something of the art the information would be even less helpful. There are a few articles which would be of historical interest to persons interested in photography or in achieving certain photographic results. These articles, however, are in the very definite minority.
On the other hand, the photographs of nude or partially nude females are liberally and generally scattered throughout both issues of the publication as indicated in the analysis included herein. Are these photographs "obscene, lewd, lascivious, indecent, filthy or vile"? It is recognized, as the court stated in Parmelee v. United States, 113 F. 2d 729, that nudity per se is not obscene. However in reaching a conclusion as to whether a photograph is obscene, one does not consider, solely, whether the subject is nude. There must be considered the setting in which the picture is taken, the posture of the torso, the appendages, and even the facial expression -- in short, the picture as a whole. If the figure is partly clad, this fact, also, must be considered because the courts have recognized that partially clad figures may have an equal or greater tendency to excite lustful thoughts than have wholly nude figures. (Parmelee case, supra, footnotes 15, 16, and 17, pp. 732-734; Sunshine Book Company v. Summerfield, 121 F. Supp. 564, 571).
Considering the magazines, individually, as a whole, it is evident that there is a preponderance of photographic reproductions of nude or partially nude females. As previously indicated, 45 per cent of all pictures in the Autumn issue and 42 per cent of all pictures in the Winter issue are of this type. With all of the innumerable places and things which would be possible photographic subjects, the above-stated percentages indicate that by far the greater portion of the publication is concerned with the partially clad or unclad feminine figure, and that this subject dominates both issues. The fact that such a high preponderance exists also indicates that pictures of this type were purposefully and intentionally used by the publisher in making up the magazines. Again, when consideration is given to the various subjects which might appear in a publication such as is here involved, it scarcely could be a matter of chance that so much full or partial nudity appears therein.
Upon a review of the exhibits in this matter, including the issues of the publication, upon inspecting, analyzing and weighing the contents of the entire magazines, upon an appraisal of the publisher's intent as evidenced by the magazines themselves and upon consideration of various court decisions, I make the following findings of fact, conclusion of law, and recommendation.
FINDINGS OF FACT
1. The first three of Petitioner's proposed findings of fact are adopted.
2. The submission by Petitioner on December 6, 1956, of POD Form 3501 showing the number of copies of the Autumn issue of Classic Photography actually sold by dealers supplied by the American News Company, Inc., sufficiently establishes that the publication has a legitimate list of subscribers.
3. The Autumn and Winter issues of the publication are dominated by pictures of an obscene, lewd, lascivious or indecent character so as to render them non-mailable under section 1461, title 14, United States Code.
In support of this finding, specific reference is made to pages 11, 12, 13, 15, 16, 17, 20, 24, 25, 26, 27, 31, 33, 34, 35, 41, 46, 48, 49 and 50 of the Autumn issue and pages 10, 11, 12, 13, 16, 17, 18, 23, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, and 43 of the Winter issue.
The very repetition throughout both issues of photographs of nude and partially nude females would tend to inspire lustful thoughts in the mind of the reader into whose hands the publication might fall, particularly when some are posed in such provocative postures as are depicted, for example, in the articles entitled "Russ Meyer Out of Doors" and "Kallard's Nudes" in the Autumn issue, and "Shooting the Nude Outdoors" and "Favorite Model" in the Winter issue. These articles are cited for illustrative purposes and the fact that they are cited should not be construed as excluding other articles of a similar character.
4. It is the intent of the publisher to pander to persons of prurient tastes. The quantity of photographs of naked and partially naked women impels one to this conclusion. In addition to the quantity of such pictures there is the further fact that some of the models are so posed as to overemphasize their breasts and to make them appear grotesque. One cannot escape the impression that such artistic merit, if any, as is present in these photographs is only coincidentally present.
This conclusion is further buttressed by the front covers of both issues, each of which carries a picture of a scantily-clad young woman. In addition, across the front cover of the Winter issue is a red banner on which is printed in large, vari-colored type the words "SPECIAL IN THIS ISSUE: WOMEN - PORTFOLIO OF BEAUTY - Grundy: Kell: Wagner: Meyer: Oritz - and others." Other articles are mentioned on this front cover, but it is this banner and the girl dressed in the gown that catch the eye.
Finally, the publication's circulation is not restricted to those interested in art or photography. A distributor takes the magazines from the publisher, resells them to dealers who make them available for purchase by anyone having the price of a copy.
For the reasons herein indicated, Petitioner's fifth proposed finding of fact and the proposed conclusion of law are rejected.
CONCLUSION OF LAW
1. The Autumn and Winter issues of the publication CLASSIC PHOTOGRAPHY are non-mailable matter within the meaning of the provisions of section 1461, title 18, United States Code, and are not entitled to entry into the mails as second-class matter in accordance with 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 mail matter of the publication CLASSIC PHOTOGRAPHY be denied.