In the Matter of ) ) "REWARD" MAGAZINE ) ) and its application for entry as ) H.E. Docket No. 4/79 second-class matter at New York, ) New York. ) Goff, Abe McGregor POST OFFICE DEPARTMENT, WASHINGTON, D. C.
On December 24, 1953, the Respondent filed an application for a second-class mail permit for its publication "Reward" magazine. After two issues were mailed under a temporary permit, the application was denied. On May 11, 1954, Respondent filed a second application and, after 8 issues were mailed under a temporary permit, this application was also denied. On October 21, 1954, a third application was filed and 8 issues were mailed under a temporary permit. No determination of this application was made by the Department.
Prior to a determination in that proceeding and on January 26, 1956, there was filed on behalf of the Director of Mail Classification, a petition alleging all the magazines are obscene and nonmailable under the provisions of Title 18, U. S. C. 1461. A show-cause order was issued by the Chief Hearing Examiner on this petition.
The Respondent filed an answer to the petition and show-cause order denying that the specific issues of the "Reward" magazine are obscene and averring that, since the Postmasters at Philadelphia and New York accepted said magazines for mailing, the Post Office Department is estopped from denying Respondent's applications.
On March 5, 1956, the District Court for the District of Columbia ordered the Department to accord the publisher a hearing on all three applications. Pending in the District Court proceedings is a question of refund of money deposited by Respondent under the temporary permits in excess of the applicable second-class rates on the issues mailed.
At the hearing it was developed that eighteen issues of "Reward" magazine were offered for mailing under the three applications for second-class entry. Two issues were not questioned by the Department, and two others were declared
mailable. Of the remaining fourteen issues, eight were found not to be obscene in dominant effect and six to be obscene in dominant effect.
The Hearing Officer further found that all of the issues under the three applications must be taken into consideration in order to determine the intent of the publisher. With this in mind, the Hearing Officer concluded that in all of the issues there will be found a pattern or design of grouping together stories, photographs, illustrations, many of them especially posed, and advertisements which are in many instances sexually and erotically stimulating. From this the Hearing Officer deduced an intent on the part of the publisher to disseminate material "wholly for the purpose of profitably pandering to the lewd and lascivious", and recommended that the Respondent's three applications be denied as of the date of said applications and the temporary permits be revoked.
This case is here for a final determination on the question of whether the three temporary second-class permits should be revoked because the magazine "Reward" is nonmailable under 18 U. S. 1461.
The eighteen issues of "Reward" magazine constitute a group of lurid, trashy and sexy publications. They are an aggregation of vulgar, assorted crime stories that are devoid of literary merit, and the fact that the magazine has suspended publication probably reflects favorably on the general reading public.
It is indeed unfortunate that such publications receive a Federal subsidy through the second-class mail permit, but the statutes do not exclude "Trashy" publications from the granting of the second-class privilege. To exclude this class we must find that they are an "obscene" publication and thus nonmailable under 18 U. S. C. 1461 and the court decisions construing that statute. I regret that in this case I cannot so find.
The Supreme Court in 1946 in Hannegan v. Esquire, 327 U. S. 146, said that the Postmaster General was not authorized to determine what publications were in the best interests of the public welfare or the public good in withdrawing second-class permits. Since that decision his authority has not been expanded by Congress.
The publications in question can best be categorized as falling within those characterized by the New York State penal statute barring from sale publications "principally made of criminal news, police reports or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime." 1/
In total effect the volumes are so concentrated with crime as to be disgusting and revolting to the average reader. They portray life in its most sordid and lowest state. The stories in these magazines might arouse salacious thoughts in some segments of society. The publisher admitted that the readers would probably be persons of low intelligence but the courts have said that this is not the proper test. In U. S. v. Levine, 83 F. 2d 156, the Court of Appeals said:
"The test is not whether it would arouse sexual desires or sexually impure thoughts in those composing a particular segment of the community, the young, the immature or the highly prudish. In other words you must determine its impact upon the average person in the community."
So considered I find these publications would not have the required effect on the average person to warrant the revocation of the temporary second-class permits.
Because of this conclusion the various technical legal questions raised during the proceedings need not be discussed.
This has not been an easy case for decision and the line of demarkation between obscenity and vulgarity is difficult to trace.
It is recommended that the Director of the Mail Classification Division, Bureau of Operations, make such administrative determination as he may deem proper on the question of refunding the excess money deposited by the Respondent.
Dated this 21st day of March, 1957.
1/ This statute was declared unconstitutional by the Supreme Court in Winters v. New York, 333 U. S. 507.