In the Matter of EXCELLENT PUBLICATIONS, INC. and its application for entry of the publication known as "The Gent" as second-class matter. H.E. Docket No. 5/112 September 13, 1957 William A. Duvall Hearing Officer. APPENDIX A I POST OFFICE DEPARTMENT, WASHINGTON, D.C.
On May 22, 1957, Excellent Publications, Inc. (Petitioner), by its President, Frederick A. Klein, filed an application for second-class mail privileges (Respondent's Exhibit No. 1) for the August, 1957, issue of the publication, "The Gent." The publisher had made arrangements for the distribution of this magazine through the Kable News Company, Mount Morris, Illinois (see Respondent's Exhibit No. 2). By letter dated June 7, 1957 (Respondent's Exhibit No. 3) the publisher was notified that because the Assistant General Counsel, Fraud and Mailability Division, had advised that said magazine was regarded as nonmailable matter under Section 1461 of Title 18, United States Code, it was proposed by the Director, Division of Mail Classification (Respondent) to deny Petitioner's application.
The Petitioner, on June 21, 1957, filed his petition requesting a hearing prior to the final Departmental decision on his application, and requesting that the Director, Division of Mail Classification be required to show cause why the proposed denial of the application should not be reversed and the application for second-class entry be granted. The Petitioner alleged that the August, 1957, issue of "The Gent" is not obscene, and raised certain constitutional questions which will be disposed of later.
The Order to Show Cause requested by the Petitioner was issued on July 2, 1957, and the Respondent's answer was filed on July 16, 1957.
The Respondent in his answer admits some of the allegations contained in the petition and denies others, and affirmatively alleges that (1) the August, 1957, issue of "The Gent" is dominated by pictures and text of an obscene, lewd, lascivious, indecent or filthy character so as to render it nonmailable under Section 1461, Title 18, United States Code; (2) it is required in Sections 224 and 226 of Title 39, United States Code that a magazine be mailable matter in order for it to qualify for second-class mail privileges; (3) a previous application for entry of an earlier issue had been abandoned by the publisher after the publisher had received from the Respondent a notice similar to Respondent's Exhibit No. 3; and (4) that the Petitioner "regularly and systematically" publishes obscene, lewd, lascivious, indecent or filthy matter in "The Gent," and, therefore, his application should be denied.
Subsequently, pursuant to motion made by the Petitioner, the Respondent furnished a bill of particulars specifying the items deemed by the Respondent to be objectionable under the statute. The Petitioner later filed an amended petition which did not constitute a substantial change from the original.
The case was heard before me as the assigned Hearing Officer on July 29, 1957, and both parties were represented by counsel.
As is usual in these cases, it was agreed between counsel that the Respondent would present its case first. In addition to the exhibits previously identified, the Respondent offered, and there were received into evidence, the following exhibits:
Exhibit No.
4 -- August, 1957, issue of "The Gent."
5 -- Application filed by Petitioner on April 4, 1957, for
second-class privileges for the magazine "The Gent."
6 -- Notice dated May 13, 1957, of proposed denial of
second-class privileges with respect to the June, 1957,
issue of the magazine.
7 -- Letter, dated May 24, 1957, signed by Frederick A. Klein
indicating that the application which is Exhibit 5,
above, is being abandoned.
8 -- Notice, dated May 31, 1957, from the Respondent to the
postmaster at New York advising the latter that the
Petitioner's application of April 4, 1957, is denied.
As I stated at the hearing, Exhibit numbers 5, 6, 7 and 8 were admitted into evidence in the event any reviewing authority may wish to note them (Tr. 22-23). I draw no inference from these exhibits because, in my view, the abandonment of the application of April 4 amounts, in effect, to a non-suit which a plaintiff in a civil action may take for a variety of reasons.
With the admission into evidence of Exhibits 4, 5, 6, 7 and 8, the Respondent rested and the Petitioner proceeded with his case. Petitioner's counsel first moved to dismiss the proceeding for want of evidence as to the obscenity of the publication. This motion was denied for reasons stated at pages 29-30 of the transcript.
The publisher, Mr. Klein, next took the stand and testified as to his experience in the publishing field, and as to his policy in the publication of "The Gent." He said that it was his objective to have the magazine so composed as to appeal to the adult sophisticated male (Tr. 45, 59, 67, et al.). In this connection, Petitioner offered in evidence the June, 1957, issue of "The Gent" (Petitioner's Exhibit No. 1), which was admitted for the limited purpose of showing the advertising policy of the publisher with respect to this publication. The only advertising in either the June or August issue, other than those for "The Gent" and "The Dude," another magazine published by a company of which Mr. Klein is the president, is that of the Diner's Club which appears in the August issue. The publisher indicated that with the December issue he proposes to start running national advertising, that is, advertisements of products that are nationally known. In the October issue there is an advertisement, donated by the publisher, relating to the Sister Kenny Foundation.
Petitioner's counsel next attempted to establish by Mr. Klein's testimony the reputation of the writers whose articles appear in the magazine. This testimony was objected to and the objection was sustained because of the immateriality of the testimony sought (Tr. 69-77).
A large part of the Petitioner's case consisted of attempts to elicit testimony from the witness as to contemporary community standards by which writings are to be regarded as acceptable or otherwise; whether any wholesalers refused to handle the publication (Tr. 80-88); the fact that Mr. Klein sought legal advice as to the obscenity or lack thereof of the magazine (Tr. 88-93); self-policing steps taken by the Atlantic Coast Independent Distributors Association and the executive group of which it is a part, the Bureau of Independent Publishers and Distributors (Tr. 93-102); and much additional testimony which counsel stated would tend to show public acceptance of certain types of material and to indicate the level of current community standards (Tr. 113-136). This evidence was not received but the Petitioner's counsel was permitted to make offers of proof relating to each of these items. The remainder of the Petitioner's case consisted of offers of proof as to expert testimony which would have been given by Dr. Wladimir G. Eliasberg, a physician and psychiatrist, and Mr. Harrison Smith, President and Associate Editor of the "Saturday Review."
In connection with the publisher's testimony, certain exhibits in addition to the one mentioned earlier were offered. The exhibits were not received as evidence because of their immateriality, irrelevancy or incompetency, but they were permitted to accompany the record. These exhibits are:
Exhibit No.
2 - Letter, dated March 1, 1957, from Frederick A. Klein
as Publisher, West Park Publishing Corp., to George B. Davis,
President, Kable News Company, 500 Fifth Avenue, New York, New
York.
3 thru 3-E - Correspondence and memoranda of distributor
organizations.
3-F - Letter, dated March 19, 1957, from George B. Davis,
Kable News Company, to Hank Hanners, President, ACIDA.
4 - Excerpt from New York Times of June 10, 1957.
4-A - Reporter's minutes of case of State of New York v.
Matthew Burger, in City Magistrates' Court of the City of New
York Arrest Court, Borough of the Bronx, on June 24 and 26,
1957.
5 - Book, "Vengeance Is Mine" by Mickey Spillane.
6 - Book, "I, The Jury" by Mickey Spillane.
7 - Clipping marked to indicate it is excerpted from the
February 27, 1957, issue of "Variety."
8 - A series of clippings from various newspapers.
9 - Another series of advertisements and news stories
clipped from various newspapers and an announcement of an art
exhibit by the New York Bar Association.
10 - Magazine, "Good Times," Vol. I, No. 9.
11 - Magazine, "Good Times," Vol. I, No. 10.
12 - Magazine, "Good Times," Vol. I, No. 12.
13 - Publication, "The Pope and Easter."
Cross-examination by Respondent's counsel consisted, in the main, of questions relating to the witness's earlier testimony that the contents of the magazine teach a moral (Tr. 136-229).
After the hearing, an effort was made to reach a compromise settlement of this case, but the parties could not agree. By agreement of the parties, a subsequent issue of the magazine - that for October, 1957, - is to be considered as part of the evidence in the proceeding, and it was stipulated that the motions, proof and offers of proof made and introduced at the hearing would be deemed applicable with respect to the later issue of the publication.
I have read the entire contents of the August and October, 1957, issues of "The Gent," and, in order somewhat to shorten the body of this report, the contents of these issues are summarized in Appendix A hereto attached.
There have been frequent statements by the courts of the standards by which a publication is to be measured in determining whether it is obscene. Some of these are:
"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." U. S. v. Levine, 83 F.(2d) 156; Walker v. Popenoe, 149 F.(2d) 511.
"*** 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.
"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.
The most recent and concise, and perhaps the most understandable, statement of the test of obscenity is that found in the decision of the Supreme Court in the cases Roth v. U. S., and Alberts v. State of California, 77 S. Ct. 1304, wherein the Court said that the test is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."
Another factor worthy of note is that the dominant theme of a publication is not to be determined on a purely quantitative basis. In other words, the character of a publication is not determined by counting the stories of one or the other type and determining in that manner which type of material predominates. As it was stated in Besig v. U. S., 208 F.(2d) 142, "neither the number of 'objectionable' passages nor the proportion they bear to the whole book are controlling."
With respect to the August, 1957, issue of this magazine, it must be said that there are some portions which clearly are not obscene. In this category would be put the columns "Disc Talk" written by Sam Goody, and "Two For The Show" by Saul Levinson, and stories such as Mencken's "The Marriage of the First-Rate Man" and Perlongo's "The Friend of the Champ."
On the other hand, there are some articles which clearly exceed and go beyond current community standards of decency and morality and which patently deal "with sex in a manner appealing to prurient interest" (Roth case, supra). In this group are the stories entitled "Midge's City," "The Succubus" and "The Inheritance," to cite a few. The references to prostitution and the suggestion of lesbianism or some other form of sexual degradation and perversion in "Midge's City" leave no room for doubt as to the obscenity and filth of this story. The frenzied attempts of the young man in the story "The Succubus" to arrange a rendezvous with the old man's daughter for sexual purposes are clearly a presentation of sex of the type which appeals to the prurient. The impassioned recounting of the man's desire for the girl and the lurid description of the ardor of their eventual meeting are among the more provocative portions of this story. As for "The Inheritance," it patently oversteps contemporary community standards. The theme of prostitution, the presentation of prostitutes in a not unfavorable light, and the approbation and adoption of the way of life of a madame by a previously chaste person certainly are not condoned in this day and age.
With respect to the pictures of scantily clad girls in the picture articles "The Girl Who Got Away From it All," "Patty-Cake By the Sea" and "There Lived A Maid," the publisher stated (Tr. 158-166) that as much exposure of the female form could be seen on the beach, on the streets, in any art museum in the country or in any of the photography magazines. He seemed to be under the impression that "There's nothing objectionable to showing a woman's body, as long as the vital organs are not exposed" (Tr. 164). The witness later said that by the term "Vital organs" he meant the pubic area. Aside from the fact that the matter under consideration in this case is not what may be seen on the beach, on the streets, in a museum or in a photography magazine, this view expressed by the publisher is not held by the courts. There must be considered the magazine of which the pictures constitute but a part, the setting in which the pictures are taken, the poses of the subjects and other phases of the photographs. Furthermore, the courts have recognized that partially clad figures may have an equal or greater tendency to arouse 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). These picture articles contribute toward the general atmosphere of salacity pervading this issue of the magazine.
Mention has not heretofore been made of the cartoons appearing in the magazine and there is no need to describe and analyze each one. It suffices to say that, generally, they serve to emphasize, accentuate and increase the tendency of the magazine as a whole "to promote lust or to produce libidinous thoughts" (Parmelee case, supra).
Looking at this entire issue of the magazine, and weighing those portions which have some literary merit against those which can only be regarded as obscene or filthy, or both, the latter easily predominate, and, applying the tests heretofore quoted, I find that the dominant theme of the August, 1957, issue of the publication is that of sex presented in such a way as to appeal to prurient interest.
It is more difficult to assess the October issue than was the case with the earlier one. Looking, briefly, through the October issue, however, one sees the somewhat protracted reference to prostitutes in the story by Louis Armstrong, and his admitted relations with them; the filthy suggestion in the picture on the lower half of page 13, and the picture of the partially-draped nude on page 15 in the "pictorial essay" entitled "The Saga of the Chittlewaiths;" the repeated accounts of the sexual stimulation of Studs Lonigan in "Armistice Day, 1918"; the pictures of nearly-naked women in "The Nude in Advertising"; the relating of the incident in "Victory" in which the soldier pulls a girl's breast from her blouse, and the instances relating to sexual intercourse in this story; the pictures on pages 39 and 41, accentuating the female breast in "The Business of Bosoms"; the full-page picture on page 46 and the other pictures on pages 47, 48 and 49 in some of which large portions of the girl's breasts are visible in the "pictorial essay" entitled "The Vamp"; the bohemianism, including references to sexual encounters, in the story "Bohemia Lost"; and the provocative and stimulating pictures accompanying the article "Blues for the Runway."
It is not intended to suggest that every story or article in this issue consists of obscene material. Such items as "Less Roaring, Please]", "Muriel and the Wild Men", and the columns comprising pages 2 through 5 certainly are not of that character. Nor is the whole of the articles containing the material mentioned in the foregoing paragraph exceptionable. There is, however, a chain of sensuality and libidinousness which may be traced from the front to the back of this issue of the publication.
This issue of the magazine is built around the theme of the gay nineties and the roaring twenties. What has been said heretofore demonstrates that this central theme is depicted and portrayed, in the main, by matters relating to sex. It is my view, and I so find, that the October, 1957, issue of "The Gent," when measured by the standards established in the Levine, Popenoe, Parmelee, Ulysses, Besig and Roth cases, supra, is obscene.
The magazine alone is a sufficient basis for the above conclusions. It may be well to allude, however, to certain other features of this case. In the first place, although the publisher stated that an effort is made to appeal to the "adult sophisticated male" (Tr. 136), the magazine is sold through a distributor, who sends the copies to wholesalers, who, in turn, sell them to dealers, who make them available on newsstands to anyone who has the price. Thus, persons of all classes, children, unsophisticated males, females and, in short, anyone may obtain the magazine.
Additionally, it was repeatedly conceded by counsel for the Petitioner that "there is sex appeal in these magazines" (Tr. 142), that "there is an appeal to sex in this magazine" (Tr. 150), that the cartoon on page 40 is "a suggestive cartoon" (Tr. 168), "that these cartoons are risque, that they may have sexual meanings" (Tr. 169) and that "this risque stuff would appeal to persons of normal health *** the normal adult male." In a similar vein, the publisher, in answering a question about the story "The Succubus," said (Tr. 180): "It's a sexy story that intimates they would like to (have sexual intercourse), and they never got to it." Answering a series of general questions on cross-examination, the publisher testified as follows (Tr. 207-8):
"Q Is it just coincidence that your staff has just selected that type of story?
"A No, I'd say that the stories basically in the book -- some of the stories in the book have a sex atmosphere to them.
"Q All of those we have gone over?
"A That's right.
"Q You say that they -- we have agreed that they constitute the bulk of the contents. I asked you if it was a coincidence that all of --
"A They have a sex angle.
"Q Is it coincidence that all of them have a sex angle, can you answer my question?
"A No, it isn't coincidence?
"Q How does it come about?
"A In the stories they look for, they look for stories with a sex angle, but in good taste; nothing coarse or rough.
"Q Is it agreeable to your policy that they look for stories that have a sex angle?
"A No, our policy is that we want stories that have a sex angle in good taste and also straight stories. Our future issues will prove that we are doing stories -- well, for example, one of the things started in this issue about the 'Gold Plungers.'"
Later, on re-direct examination, the publisher answered in the affirmative a question as to whether there is "a sexual theme in many of the stories that are contained in this magazine" (Tr. 230). Further, on re-direct, there was the following dialogue between the publisher and his counsel:
"Q (by counsel) Would you say, Mr. Klein, that sex may help sell a magazine?
"A Yes.
"Q And that the reader who reads it, once attracted by the cover, may be induced to come back to it again if it has a little sex appeal in it -- might be inclined to come back again if there was some sex appeal in there?
"A Yes.
"Q Is that one of the reasons, sir, that you have put sex appeal in this magazine?
"A Well, it's been proven by your list of best sellers, the publications in the New York Times every week, that the best sellers have a sex theme to them. Your top movies that are huge successes have a sex theme to them. And if they are given a spot of sex in a magazine -- as I always said, in good taste without being crude -- they'll come back for more."
We see here both the publisher and his counsel freely admitting that the sex theme is given important consideration and prominence in the composition of the magazine, and this is coupled with the statement that the reason for the presence of this theme is to help in the sale of the magazine. It is not suggested that the publisher or his counsel were admitting that the magazine is obscene, for this point was vigorously contested throughout the proceeding, but, in discussing the publication, candor required recognition of the prominent place which the sexual theme occupies in its contents. The contents of the magazine clearly indicate its prurient appeal and the statements of the publisher indicate that the sex theme is consciously and purposely included in the magazine for the purpose of attracting buyers.
The Petitioner's first proposed finding of fact is that the publisher has attempted to follow, and intends to continue to attempt to follow, a policy of publishing a magazine of literary and other merit, photographic and pictorial material of an artistic and thematic nature, features and articles on certain matters of current interest and humorous material, in both story and cartoon form. I adopt the finding that the publisher has made, and probably will continue to make such effort, but it is apparent that he also follows another policy - that of including as much salacious, risque and sexy material as may be necessary (1) to sell the magazine and (2) to ski, however closely, under the wire of the ban of obscenity. This fact is borne out by the fact that he has retained an attorney whose function it is to advise him just how close, in the attorney's opinion, the publisher may skate to the thin ice. This statement suffices for part B of this proposed finding.
There is testimony by the publisher that he attempts to comply with what he conceives to be current community standards. I make the foregoing as a finding of fact. That the publisher's standards differ from those of the courts has been indicated earlier in this report. Therefore, proposed finding number 2, as it is worded in the proposal, is denied.
With respect to the Petitioner's third proposed finding, I agree that the publisher testified that the magazine is intended to be appealing to the adult, educated, sophisticated male. I am not prepared to say that the appeal of the cover would be so limited, and certainly the contents of the magazine would have an even wider appeal. Reference is made to comments above relating to the publisher's policy.
So far as the record is concerned, there is no evidence as to the reputation of the personnel employed by the publisher, but the publisher did testify that certain of his key personnel are well technically qualified, and I so find, although it is immaterial to this proceeding.
Proposed findings numbered 5 and 6, relating to (1) the publication entitled "The Pope and Easter" and (2) the reputation of the national distributor of "The Gent" are neither adopted nor denied. Both are immaterial and irrelevant.
I adopt Petitioner's proposed finding number 7, and refer to comments made with respect to proposed finding number 1.
Proposed finding number 8 regarding the advertising policy of the publisher is adopted. Advertising makes up only a minimal part of the publication.
Proposed finding number 9 is irrelevant and immaterial.
With respect to proposed finding number 10, it is true that the Respondent rested its case after the magazine was received in evidence. This was proper in all respects for it then became the function of the Hearing Officer to inspect the magazine, apply the standards established by the courts and make his report and recommendation. Any other evidence would have been unnecessary, improper and immaterial.
I adopt proposed finding number 11, that the Respondent did not ask that official notice be taken of evidence showing that the magazine had a predominant appeal to prurient interest, or that it exceeded current community standards, that the dominant effect is to excite lustful or lascivious desires and thoughts or calculated to deprave the morals of its readers. Such a request would have been superfluous, these matters constituting the very nature and purpose of the proceeding.
The first sentence of proposed finding number 12 is: "The portrayal of sex and varying degrees of occasional female nudity or semi-nudity in the magazine is not such as to appeal to prurient interest, for, applying contemporary community standards, nothing in the treatment of sexual theme or nudity goes beyond customary limits of candor in description or representation of such matters." This proposed finding is denied for reasons already indicated. The remainder of this proposed finding is argument.
For the reasons heretofore stated proposed findings numbered 13, 14, 15 and 16 are denied.
Because the character of the magazine as a whole is the matter under consideration, it is unnecessary to make such findings as are contained in the Petitioner's proposed findings numbered 17 and 18.
Proposed findings 19, 20, 21, 22, 23 and 24 are denied for reasons herebefore indicated.
With respect to proposed finding number 25, the magazine itself was the most important "witness" in this case. The contents of the publication constitute its testimony, and the testimony leads to the conclusion that the magazine is dominated by matter which relates to matters of sex in a manner appealing to prurient interest. Hence, in this manner it may be said that on the weight or preponderance of the evidence the magazine is obscene, and proposed finding number 25 must be denied.
Similarly, since the conclusion is inescapable that the magazine is obscene, it follows that the magazine must be obscene beyond a reasonable doubt and the Petitioner's proposed finding number 26 must be denied.
Actually, however, the courts have said that the test in these cases is the effect of the publication on the normal, average person. This is the test which must be applied, and the questions of the preponderance of the evidence or the establishment of a fact beyond a reasonable doubt are not applicable here.
Proposed findings numbered 27 and 28 are denied for the reason that Section 201.40(c) of the "Procedures Governing Administrative Hearings Relative to the Denial, Suspension or Annulment of Second-Class Mail Privileges" provides, in part, that: "The Director, Division of Mail Classification, Post Office Department shall be represented by the Assistant Solicitor, Fraud and Mailability Division." Thus, all actions in these proceedings taken by the latter officer are deemed to have been done by the former officer.
With respect to proposed finding number 29, it is true that the answer contains no statement as to whether the Respondent would appear at the hearing in person or by attorney. This proposal is based upon Section 201.40(j)(4) of the Rules of Practice. A fair reading of the Rules of Practice makes it clear that this Rule is to apply when a publisher is the party respondent. Read otherwise, the Rule would be an absurdity. For example, imagine requiring a statement of the respondent's address in the answer filed in this case, under Section 201.40(j)(3) of the Rules. The mere mention of such a requirement is enough to show that it would be ridiculous. Proposed finding number 29 is dismissed from consideration as frivolous. The publisher's interests were not adversely affected and the complained of omission had no bearing on the issues of the case.
Petitioner's proposed finding of fact number 30 is neither adopted nor denied because of its immateriality.
Petitioner's first three proposed conclusions of law are denied for reasons heretofore stated.
Petitioner's proposed conclusions of law numbered 4 through 14 raise constitutional questions which are not for determination by the Hearing Officer (Engineers Public Service Co. v. Securities and Exchange Commission, 138 F.(2d) 936, 951-953). In addition, certain facts are pointed out in connection with particular proposed conclusions, as follows:
5. There was ample evidence, consisting of the magazine itself, upon which to base a finding that the magazine's dominant appeal is to the prurient;
6. It was not error to exclude the testimony of the Petitioner's expert witnesses. (Tourlanes Pub. Co. v. Summerfield, U.S.D.C., D.C., Civ. No. 3635-55, decided November 4, 1955; affirmed U.S.C.A., D.C., 231 F.(2d) 773; Klaw v. Schaeffer, U.S.D.C., S.D.N.Y., Civ. No. 111-226).
To be exact, the law (39 U.S.C. 226) requires that a publication have, among other things, a legitimate list of subscribers. Proposed conclusion number 15, if so amended, is adopted.
For reasons previously indicated, proposed conclusion of law number 16 is denied.
Proposed conclusion of law number 17 is denied. (Rule 201.40(n)).
Proposed conclusion of law number 18 is denied for reasons previously indicated.
Proposed conclusion of law number 19 is denied for reasons previously indicated and because it calls for action outside the scope of the Hearing Officer's authority.
Proposed conclusions of law 20 through 22 are denied. (Rule 201.40(n)).
For reasons heretofore given, proposed conclusion of law number 23 is denied.
With respect to proposed conclusions of law 24 through 33, I have re-examined the rulings made with respect to the specified admissions or exclusions and the granting or denying of the specified motions. I believe that these rulings were correct for the reasons given at the time the rulings were made or for reasons herein stated, and I, therefore, adhere to these rulings. These proposed conclusions of law are denied.
FINDING OF FACT
I find that the August and October, 1957, issues of the publication entitled "The Gent" are dominated by pictures and textual matter which present sex in a manner appealing to prurient interest, and that said issues of this publication are therefore obscene, lewd, lascivious, indecent or filthy within the meaning of Section 1461, Title 18, United States Code.
CONCLUSION OF LAW
The August and October, 1957, issues of the publication entitled "The Gent" being nonmailable, they 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
It is recommended that Petitioner's application for entry into the mails as second-class matter of the publication entitled "The Gent" be denied.
/s/ August, 1957, issue of "THE GENT".
1. Disc Talk - Sam Goody - Column devoted to unusual or popular phonograph records.
2. Table for Two - Matty Simmons - Places to dine in San Francisco. Recipes for 2 drinks.
3. Suit Yourself - Wilson Cantrell - Column devoted to fashions for men.
4. Two for the Show - Saul Levinson - Discusses new shows scheduled for the Fall season.
5. Guys Present - Paragraph about each of the authors of the four above columns.
6. Midge's City - Arthur Austrian - The story concerns a procuress who awakens in late afternoon and starts in search of a prostitute who owes her some money. The women meet in a bar when the prostitute, Gertie, brings into the bar a man with whom she plans later to have sexual intercourse. Gertie goes into the rest room and the procuress (Midge), who by this time is somewhat inebriated, follows her and threatens to cut her with a switch-blade knife unless Gertie pays her forty dollars. Midge finally accepts thirty dollars and the promise to pay the remainder on the following night. Midge also exacts a promise from Gertie that the latter will come to Midge's room at three o'clock the next morning. In the last paragraph there is the following statement about Midge: "She thinks of what will happen in her room at three o'clock, under the single bare bulb hanging from the ceiling; no one will hear Midge's cry of pleasure except Gertie, bending over her."
7. The Gold Plungers - Picture story of diving in the Kern River area of California and digging in the submerged rocks for gold.
8. The Moonbeam Mixture - Davis Grubb - This story tells of a man who wishes to form some sort of a relationship with a girl whom he saw sunbathing on the terrace of the apartment below his and, later, in a restaurant. He states that he definitely does not want to marry the girl. The girl gives him no encouragement, so he goes to a person who describes himself as a "Wizard of Love." The "Wizard" gives the man an aphrodisiac powder which is supposed to enable the man to have the girl swooning in his arms within a short time. The man arranges another meeting with the girl and releases some of the powder in the air. The girl begins to succumb to the man's suasions, but tears herself away and runs from his apartment. She goes to the restaurant and he follows her there, where he asks her to marry him. She accepts and he goes to get their coats from the hat-check room. While he is away, the girl goes to a table in the shadows where the "Wizard" is sitting. It develops that she had engaged the "Wizard" to give the man the stronger of two love philtres causing him to want to marry the girl. This story is illustrated with a drawing of a female figure, nude except for a band around her hips and pubic area.
9. The Girl Who Got Away From it All - This is a four-page picture article showing a curvaceous young woman in a series of poses and in varying degrees of undress. In most of the pictures, either the girl's breasts or buttocks are exposed to some extent, although not both areas are exposed in the same picture and neither portion is totally exposed in any photographs. Her costume, which in some pictures she is wearing and in others she is holding to her body, consists of either a pink or white, filmy, short gown. In two pictures the impression is created that the girl is nude, but these are pictures of the girl from the waist upward, and in one of these her breasts and waist are covered with straw and in the other her arm and shadows obscure her breasts.
10. Jewelry - Alberto Moravia - Six Italian young men are close friends and when one of them gets some article, such as a watch or a ring, the rest follow suit. One of the men hires a girl as cashier at his bar. He brings her to dine at the place frequented by the friends. At first, they are restrained in their manners and conversation but, before long they lapse into their earlier habits of eating and telling ribald jokes. The owner of the bar resents the conduct of his former friends and says he is going to stop eating with them. He chides the others about all the jewelry they are wearing, comparing them to women. They remind him that he wears the same amount as the owner of the bar gives all of his jewelry to the girl, who is by now his sweetheart. The group of friends ceased to get together and later the teller of the story hears that the owner of the bar and his sweetheart get married, and that she is laden with jewelry.
11. The Marriage of the First-Rate Man - H. L. Mencken - A whimsical piece purporting to show that the superior-type of man does not marry until late in life when his defenses against matrimonially-inclined women are weaker. The author also argues that superior-type men marry lesser women and vice versa.
12. Patty-Cake by the Sea - A picture article of a young girl on a beach, clad, except for one photograph, in a barrel or in brief pants. While the girl's breasts are nowhere completely exposed, in nearly all of the pictures there is exposed a proportionately large area of her breasts. She is either standing, sitting or reclining in the surf or on the sand.
13. I Like to Have Things Nice - Evelyn E. Smith - In this story a man employs a female private detective because he suspects that his partner is trying to kill him. She goes to the man's office under the guise of being his new secretary. She meets the partner who turns out to be an ex-lover of hers and, together, they plot the murder of the man and his wife in order to collect the proceeds of large insurance policies.
14. Appearance and Reality - In this article, there is a series of pictures comparing the appearances of certain subjects. The first picture is of a small frog sitting on what appears to be a large mushroom. Alongside this picture is a photograph of a woman whose only garment is a large, circular hat. The woman's back and part of her right side are to the camera, and her bare buttocks and part of her right breast are exposed. Next, a picture of an apparently sleeping seal, seated on a rock, is placed opposite a picture of a young woman, clad in a bikini bathing suit and seated on a rock. Next, two cactuses are shown adjacent to the close-cropped heads of two small boys. The appearance of certain underwater coral growths is next compared with the appearance of the legs of two girls who are dancing the can-can. Finally, there is a picture of a girl's legs crossed, with the girl lying on her back, with her right side to the camera. The picture shows the girl from the waist down, but the pubic hair has been obliterated. This photograph is compared with the appearance of a piece of modern sculpture.
15. The Friend of the Champ - Robert A. Perlongo - This is the story of a wealthy man who befriends a champion boxer. In time the man, Jim, introduces his sweetheart, Fran, to the boxer. Eventually, the boxer and Fran marry, and Jim - instead of being resentful - serves as the boxer's best man at the wedding.
16. The Succubus - Evan S. Connell, Jr. - An old man, crossing the ocean by plane, tells the person in the seat next to him of an event of the old man's youth. He was crossing the Atlantic by ship when he saw a beautiful young girl whom he desired. The girl was accompanied, however, by her father and the man could see the girl only for short intervals when she could escape her father. Finally, the girl comes to the young man's cabin and they prepare to have sexual intercourse. The couple is prevented from carrying out their purpose because the man is overcome by seasickness. This story is illustrated with a drawing of a nude female on a bunk in a ship's cabin. There is a man in the cabin facing the porthold. This drawing illustrates the phase of the story in which both characters are nude and preparing to have intercourse.
17. Interlude - This is a story in which a man and his wife are having a cocktail party. Among the guests is a couple; the man previously was engaged to the hostess. During the course of the evening the male guest, who becomes somewhat inebriated, describes a picture he is painting. The hostess and the painter decide to go look at the painting. While in the painter's apartment, he takes several more drinks which render him hors de combat. The hostess kisses the painter, smearing him with lipstick, and takes from her purse a pair of panties with her name embroidered on them, and places them on a table where they are clearly visible. Returning to her home, she finds the only remaining guest to be the painter's wife, who soon leaves. The hostess goes to her bedroom and sees her husband sprawled across the bed, asleep. "The shades were drawn and there was a bottle and two glasses on the table." The bed was rumpled and the aroma of familiar perfume lingered there. The suggestion is that it is the aroma of the perfume worn by the painter's wife which the hostess previously had noticed and criticized.
18. There Lived A Maid - The table of contents describes this item as a pictorial essay. On the first page of the essay, the following verse is quoted: "In Scarlet Town, there lived a maid, whose heart was turned to lovin', Gave every man, the time of day, and her name was Barbara Allen ..." Also on the first page of this article are eight small photographs in color of a girl who wears no clothes, but whose pubic area and breasts are hidden by a guitar, except that it does appear that the nipple of the girl's right breast is visible in the photograph in the center of the page. In several of the other pictures on this page the girl's limbs and nude buttocks are visible. This article continues on the next two pages. The slight bit of textual material comments on the revival of folksongs. It is stated that the photographs recreate the tone of sombre pleading in the refrain from an old English Ballad entitled "Barbara Allen." One picture occupies a half of a page. It shows the girl holding the guitar upright in front of her, with the body of the guitar concealing most of the girl's figure, and with the neck of the guitar covering the left side of the girl's face and head. Opposite this picture is a full-page picture looking down at an angle on the girl, who is facing roughly eighty degrees to the reader's right from the bottom of the page. The girl's knees are on the floor and she is sitting back on her heels. Her head is thrown back, her eyes are closed, her hair appears to be caught in a breeze and her mouth is open as if she is singing. Again, she is holding the guitar so that the pubic area is concealed but rather large portions of her breasts are exposed, as, of course, are her bare shoulders and right side.
19. The Inheritance - This story, written in the first person, tells of a young man who is in love with a girl who required that the man she marries be virgin. They were engaged and were to be married in two weeks. Suddenly, the girl asked him whether he was a virgin and he replied that he was not - that he had had intercourse with the madam of a house of prostitution in a small town in New Mexico where he had been stationed during the war. The girl breaks their engagement. He then receives a letter from an attorney in Albuquerque advising him that he had inherited a "thriving business enterprise" from a Miss Lucy Fullerton, whom the young man did not remember. He goes to New Mexico to view his inheritance, which, it develops, along with oil well shares and cash, is a house of prostitution in which seven girls were employed. The madam had made him her heir because "She was so grateful because you were young and handsome, so sweet and kinda bashful then" and because he never would go to bed with anybody but her. The young man lives in the house and tells the new madam of the situation with his erstwhile sweetheart.
He decides to go back to New York to try to win back his sweetheart's affections. He packs and starts to leave but when he goes into the parlor, his sweetheart, Louella, is there. The new madam, Marguerite has written to her and persuaded Louella to come to New Mexico. He decides he must get Louella out of the house. Louella goes up to bathe. Later, he goes upstairs to his room to take his suitcase. There, he sees Louella's clothes on a chair and Louella sitting in the middle of his bed. The girl reminds him that he has said he would marry her and said, "We can get the license later. Tomorrow. Then we'll be the same when we marry. I'm not really such a prude, Darrell."
Later, Louella decides that she is going to be the madam of a new house which Marguerite is going to start in another town, although she is not going to be a prostitute.
This story is illustrated with a drawing showing a man either dressing or undressing. In front of him is a girl whose right breast is bare. There are six other girls portrayed and the breasts of several of them are exposed, and the impression is created that most of them are scantily clad.
II October, 1957, issue of "THE GENT".
1. Disc Talk - Sam Goody - Current records of popular and classical music.
2. Table for Two - Matty Simmons - Tells of older places to dine.
3. Suit Yourself - Wilson Cantrell - Describes mens' fashions as set by Jimmy Walker.
4. Two for the Show - Saul Levinson - Discusses "Compulsion," "Counsel for the Defense" and "West Side Story," shows coming to New York theatre.
5. A Night on the Town with Satchmo - An autobiographical piece by Louis Armstrong in which he tells of taking his mother out one night when she had said she wanted to teach him how to hold his drinks. A fairly large part of the story deals of the subject's experiences with prostitutes.
6. The Saga of the Chittlewaiths - A farcical pictorial history of a fictitious family. The picture on page 15 shows a woman posing as a photographer's model. A shawl reaches from her right shoulder to the floor, covering the pubic area. Her breasts are partially exposed.
7. Less Roaring, Please - Robert Bloch - The author sets forth to show that the "roaring twenties" were not as frivolous and dissolute as they are depicted in current literature and theatre.
8. Muriel and the Wild Men - Emily Post - Humorous story of the interests and activities of a debutante during the twenties.
9. Armistice Day, 1918 - James T. Farrell - The scene is Chicago and the story is about the activities of Studs Lonigan on Armistice Day. It is concerned, principally, with his encounters on the elevated railway with women in situations which sexually excite him, similar situations in the street, and various events, such as fights, parades and demonstrations.
10. The Nude in Advertising - Two pages of pictures (5) purporting to show old pictures of partially clad women used in advertisements of the period of 1890's. In two pictures, the subject's buttocks are exposed and another picture shows the subject's breasts.
11. Grandpa's Peepshow - Pictures purportedly shown in a device called a Mutoscope, a sort of hand operated motion picture machine. It is stated that such picture stories always had a moralistic ending.
12. Victory - Dennis Lynds - A fictional account of the celebration of V-E day by personnel at a U. S. air base in England.
13. The Business of Bosoms - Helen Breckenridge - Womens' fashions from World War I to the present. Several innocuous pictures and drawings, and several pictures emphasizing the female breast.
14. Adagio Dancer - John Dos Passos - Story about the life of Rudolph Valentino.
15. The Vamp - Present-day photographic conceptions and presentations of characters and situations from books of the 1920's. Several pictures show large portions of the pictured girl's breasts.
16. Bohemia Lost - George Mandel - Reminiscences of Greenwich Village, of events that happened there and of the people who participated in them. There are numerous accounts of instances involving sexual intercourse.
17. Blues for the Runway - Walt Fishman - Tells of the waxing and wanning of burlesque. Pictures on page 55 are provocative. Show a practically nude girl in a sensuous dance.
18. Midsummer Night - Charles Jackson - Story of an adolescent boy's attraction for a girl who was visiting a summer vacation place.