In the Matter of

 ARNOLD MAGAZINES, INC.

 and its application for entry of the publication known
 as "MAN'S EXPLOITS" as second-class matter.  

 H.E. Docket No. 5/114

 December 10, 1957

 William A. Duvall Hearing Officer.  

 POST OFFICE DEPARTMENT, WASHINGTON, D. C.

This case, involving the application for second-class mail privileges for the publication "Man's Exploits" was submitted for report and recommendation on the basis of a stipulation and without the necessity for a formal hearing. There are to be considered the June, August and November, 1957, and the January, 1958, issues of the publication, and the proposed findings of fact and conclusions of law submitted by both parties.

The only issue in this case is whether the magazine is dominated by pictures and text of an obscene, lewd, lascivious, indecent or filthy character, so as to render it nonmailable under the provisions of Section 1461, Title 18, United States Code, thereby disqualifying it from entry into the mails as second-class matter under Sections 224 and 226 of Title 39, United States Code.

In reaching a conclusion with respect to this issue there are certain criteria established by the courts to be followed. First, one has to determine whether the publication has any literary or scientific or other merit, and whether such merit outweighs, or is outweighed by, any salacious material therein contained ( Walker v. fopenoe , 149 F.(2d) 511). This determination is to be made from the standpoint of the effect of the publication on the average reader ( United States v. Levine , 83 F.(2d) 156). In addition, the conclusion reached as to the merit or salacity of the publication must be based upon an overall view of it and its dominant effect when taken as a whole ( United States v. One Book Entitled Ulysses , 72 F.(2d) 705). A mere quantitative measurement, however, such as the counting of obscene pictures of passages of obscene text is not necessarily to be the determining factor ( Besig v. United States , 208 F.(2d) 772). The Supreme Court has said that in order to determine that a publication is obscene it must be concluded that, applying contemporary community standards, the publication is dominated by material which deals with sex in a manner appealing to prurient interest ( Roth v. United States , 77 S. Ct. 1304). "Filthy," as used in the pertinent statute, has been defined to mean nasty, dirty, vulgar, indecent, offensive to the moral sense, morally depraving and debasing ( Tyomies Publishing Co. v. United States , 211 Fed. 385).

Looking through all four issues of the publication under consideration in this proceeding, one sees articles on a variety of subjects. There are several articles in each issue which are in now way obscene or filthy, such as the Marciano-Patterson story in the June issue, "America's Strangest Physician" in the August issue, "Terror of Texas" in the November issue, and "Scorpion at 12 o'clock," in the January, 1958, issue. There are other similar items which it is not necessary to mention individually. There are no articles, however, for which serious claim as to literary or scientific merit can be made. While there are some stories of a pseudo-scientific character, such as "TV Can Make Your Child A Freak," in the June issue, and "Seven Shocking Sex Facts," in the November issue, these articles, assuming their contents to be true, are not presented in a scientific manner, but are dressed up to catch the eye of a sort of "peeping Tom" reader.

There are stories indexed under the caption "Pages From the Past." One of these (in the November issue) tells of a nymphomaniac who murders 35 men who did not prove to be satisfactory lovers. She cut off their genitalia, cooked them and ate them. In another issue (January, 1958), there is a story of Belle Starr, telling of her life of wantonness and sexual abandon. In two of the issues (August and November) there are so-called true crime stories, dealing with rape-murders or sexual mutilation of the corpses.

In the January issue, there is a story by a deserter from the armed forces who tells of his life with a girl who later becomes a prostitute to support him, and in the June issue there is a full article devoted to the prevalence of prostitution in Hamburg. In the August issue one reads of a Frenchman who goes from drunkenness, to sexual perversion to sadistic mass-murder. As in the case of the stories regarded as being not obscene or filthy, not all of the obscene or filthy stories, or such passages from various articles, are mentioned specifically here. It is believed that enough has been said to convey an accurate impression of the text of this publication.

In each of the issues of this magazine there are two pages of cartoons which are of such vulgarity that they can only be classified as filthy, and in each issue there are drawings or photographs used with one or more articles illustrating the generally sexy theme or depicting a lurid incident of the articles they accompany. There are, in each issue, advertisements of various products in which the device used to catch the eye of the reader is a photographic representation of a woman who is partly dressed or seductively posed.

Finally, in each issue there are at least two picture articles showing attractive, well-formed young girls wearing only a minimum of clothing, and posed in a great variety of suggestive and erotically stimulating poses. As one views the pictures of these scarcely-dressed girls, the conclusion is inescapable that they were introduced "wholly for the purpose of profitably pandering to the lewd and lascivious." ( Lynch v. United States , 285 Fed. 162; Parmelee v. United States , 113 F.(2d) 729).

Petitioner's first four proposed findings of fact are adopted. For reasons already indicated, Petitioner's proposed fifth finding of fact is denied, as is his proposed conclusion of law.

Having read and weighed the entire contents of each issue of the publication involved in this proceeding, having given due consideration to Petitioner's proposed findings of fact, conclusions of law and supporting reasons, and being guided by the standards and criteria quoted from the cited cases, I make the following finding, conclusion and recommendation.

The June, August, November, 1957, and the January, 1958, issues of the publication "Man's Exploits" are obscene, lewd, lascivious, indecent or filthy within the meaning of Section 1461, Title 18, United States Code.

The aforesaid issues of the subject publication being obscene, they are nonmailable matter and do not meet the requirements of Sections 224 and 226 of Title 39, United States Code, for entry into the mails as second-class matter.

It is recommended that the Petitioner's application for entry into the mails as second-class matter of the publication "Man's Exploits" be denied.