In the Matter of the Petition by NUGGET, INC. and its application for entry of the publication known as "NUGGET" as second-class matter. H.E. Docket No. 5/116 December 2, 1957 Eugene E. Dixon Hearing Officer. POST OFFICE DEPARTMENT, WASHINGTON, D.C.
On March 29, 1957, Nugget, Inc., Petitioner herein, made application to the Post Office Department, (herein called the Department) for entry of its publication, "NUGGET" as second-class mailing matter. On June 21, 1957 the Director, Division of Mail Classification, Bureau of Post Office Operations, (herein called the Respondent) advised Petitioner of the proposed recommended denial of the application on the grounds:
(1) That the June and July issues of the magazine (the only ones originally in question) were regarded by the Department as non-mailable under 18 U. S. Code 1461, and the Postal Manual 124.31; and
(2) That it had not been established that the publications in question were "circulated principally to a list of subscribers as required by Section 132.225, Postal Manual . . ."
On July 2, 1957 the publisher filed with the Department its petition for an order to show cause why its application for second-class entry for its publication "NUGGET" should not be granted and for a hearing thereon. On July 10, an order to show cause was served on the parties and the Assistant General Counsel, Fraud and Mailability Division, by the Chief Hearing Examiner returnable at 10:00 a.m. July 26, 1957, and setting July 19, 1957 as the time in which to file an answer. On July 11, the publisher filed several amendments to its petition. On July 19, the Department filed its answer herein signed by William C. O'Brien, Assistant General Counsel, Fraud and Mailability Division, "For Director, Division of Mail Classification". In addition to denying that the June and July issues of "NUGGET" are not obscene, lewd, lascivious, indecent or filthy within the meaning of Section 1461, Title 18, U. S. Code, as alleged in the petition, the answer affirmatively alleges that said issues are dominated by pictures and texts of a nonmailable nature and further alleges that the same is true of the August and September issues of the magazine. The answer also alleges that the May, July and October, 1956 issues of "NUGGET" were denied second-class privileges on January 22, 1957, which denial was not contested by the publisher.
Pursuant to the foregoing pleadings a hearing in this matter was held before the undersigned Hearing Officer on July 26, 1957 at Washington, D. C. The Petitioner and the Department were represented by counsel and afforded full opportunity to examine and cross-examine witnesses and to present relevant evidence.
At the hearing the Petitioner moved for judgment as prayed for in the petition on the grounds that the answer was not signed by the Director of the Division of Mail Classification as required by 201.40(j)(2) of the Department's Rules, and that therefore the Department was in default. This contention is reiterated in Petitioner's proposed findings of fact and will be disposed of below.
Petitioner also objected to, and still objects to, the inclusion for consideration herein of the two issues of "NUGGET" (August and September) referred to in Department's answer and received in evidence at the hearing when offered by the Department.
The answer having admitted that "NUGGET" is circulated principally to a list of subscribers as required by Section 132.225, Postal Manual, the only question to be determined in this proceeding is whether or not the June, July, August and September issues of "NUGGET" are non-mailable within the meaning of 18 U. S. Code 1461. 1/ Before considering the merits, however, I shall dispose of Petitioner's prayer for judgment on the grounds that the failure of the Director of Mail Classification to sign its answer as required by 201.40(j)(2) of the Department's Rules puts the Department in default.
While it is true that Section 201.40(j)(2) provides for the signing of the Division of Mail Classification's answer by the Director thereof, Section 201.40(i) of the Rules also provides that the Assistant General Counsel, Fraud and Mailability Division (who is directed in Section 201.40(c) to represent the Division of Mail Classification) shall be served with a copy of the order to show cause. Section 201.40(j)(1) provides in part that "any party served with a show cause order who wishes to be heard, shall, within the time specified therefor, file with the Docket Clerk an answer to the show cause order. Such answer shall contain a concise statement of the facts and contentions which constitute the party's defense." From the foregoing it seems possible to conclude that the Assistant General Counsel, Fraud and Mailability Division, is meant to be a "party" in the proceeding. But even if he not be considered a "party", the fact that provision is made for serving him should be sufficient to warrant the assumption that he is meant to have the right to answer in his own name. Moreover, it can also be assumed that his answer may be in lieu of an answer by the Director of the Division of Mail Classification. The regulations provide that any one served with an order to show cause " who wishes to be heard " shall file an answer. It would appear from this that there is no obligation on the part of the Division of Mail Classification to answer and that it may elect not to do so. Accordingly, the requirement that the Director sign the answer would apply only if the Division elects to answer. This view is supported by the fact that the Assistant General Counsel is required to represent the Department in these hearings and in any event is the one who supplies the Director of the Division of Mail Classification with the necessary information upon which to base the proposed denial of the mailing privilege. 2/ In these circumstances, it is obvious that an answer filed and signed by the Assistant General Counsel not only will apprise the Petitioner of the facts and contentions which constitute the defense but will also reflect the official position of the Department. Such being the case, it is obvious that the answer as signed in no way whatsoever prejudices the Petitioner and is sufficiently consonant with and acceptable under the Rules. While it is true as contended by Petitioner that an unambiguous statute must be given effect according to its plain and obvious meaning, the corollary of that rule is that where there are conflicting provisions, construction is necessary and an attempt must be made to harmonize them. International Rice Milling Co. v. NLRB , CA5 183 F.(2d) 21, Federal Power Commission v. Panhandle Eastern Pipeline , Del. 337 U. S. 498. The conflict in the rules here is obvious.
In view of the foregoing it is recommended that Petitioner's motion to dismiss on this ground be denied.
As to the merits, I am of the opinion that applicable legal principles require a finding that the four issues of "NUGGET" herein are obscene, lewd, lascivious or filthy and thus non-mailable within the meaning of the statute. As stated by the Supreme Court in the Roth and Alberts cases, 3/ the test of obscenity is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest"; whether "it offends the common conscience of the community by present day standards". The Court makes it clear, however, that "sex and obscenity are not synonymous" and that the portrayal of sex in such fields as art, literature or the scientific where it is not treated "in a manner appealing to prurient interest" should be and is protected by the constitutional guarantees of free speech and press. The standard of comparison here is "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 the reader's hands." U. S. v. Levine , 83 F.(2d) 156, 158.
The evidence shows, and I find, as more particularly set forth under the various categories discussed below, including the appendices attached hereto, that the dominant theme of each of the magazines here is sex portrayed in such a manner and amount as to constitute an obvious and intentional appeal to prurient interest. The main vehicle of expression (designated as Category 1, herein) is the short story devoted to the central theme of illicit sex in various forms, such as prostitution, seduction, adultery and fornication in general. In addition (designated herein as Category 2), there is the "feature article" type of journalistic report involving such matters as biographical sketches of attractive young women, mostly actresses, dissertations on foreign countries, far away places, or situations all with accent on illicit sex either expressly stated or suggestively implied. These articles are all liberally supplemented with photographs and drawings (Category 3) most of which when viewed in the light of the articles they illustrate reflect and augment their salacious aura. Besides the foregoing there are (Category 4) independent cartoons, jokes, drawings and photographs, many of which also go beyond the pale of "contemporary community standards".
In making the above findings I recognize and find that the four magazines do carry a number of articles on a variety of subjects not connected with sex, such as sports, gambling, criticisms and miscellaneous comment. Notwithstanding this fact, the concentration and preoccupation of these publications with sex is such as to clearly establish that subject as their dominant theme considering each publication as a whole. Moreover, while some of these articles are well written, including many of those centering on the sexual theme, any literary value which the publications may derive from this fact is overshadowed and outweighed by their salacious effect on the average reader and by their obvious and intended appeal to prurient interest. For these reasons I find that the four issues in question are non-mailable within the meaning of 18 U. S. Code 1461. Accordingly, I recommend that the publications be denied the second-class mailing privilege.
Matter I deem and find to come within Category 1 as obscene
SEPTEMBER ISSUE
A Whiffenpoof's Tale - a college student's account of his experience with a prostitute in Havana.
The Improper Approach - tells of two men trying different "approaches" with a woman, the direct approach proving successful, resulting in intercourse.
A Remarkable Woman - story of a woman who played mistress to rival columnists at the same time without either knowing of the other's claim on her favors.
Portraits of the Women if Ibiza - story of the seduction of a young girl and her murder of the deceitful lover.
Little Blonde - story of a young girl who "permits" herself to be seduced by visiting businessmen, with whom, it develops, she was paid to go by another for business reasons.
AUGUST ISSUE
Mediterranean Outlook - Italian train trip where strange man spends two days showering attention on woman passenger with sole object of achieving a sexual liaison with her. Describes her vascillation as to resistance or acceptance, her spur of the moment acceptance, her change of mind in the hotel room, and her ultimate acquiescence.
Dark Night - a virgin on Siberian farm engages in sexual intercourse without knowing or caring which of the two possible males her partner is, one being her half brother whom she hates.
The Boob - tells of the means a "clever wife employed to give her wicked lover the pleasure of possessing her under her stupid husband's nose."
Profession Pending - story based on illicit relationship between wealthy woman and impecunious man.
Rough Little Customer - story of a very young girl's eager and successful efforts to have intercourse with young soldier.
JULY ISSUE
The Baptism - story of a country baptism and a married woman who lures her former, now married, lover to have intercourse with her.
Eleven O'Clock - story of a milkman's daily visit at the home of a customer for sexual intercourse with the housewife.
Cover Story - fictional interview with well known actress who alludes to engaging in intercourse under the influence of hypnotism and further muses, "I bet I'm the only girl in the world that was ever tried to be raped by her father and her brother in the same week."
A Date in Room 504 - story of a prostitute who mistakenly visits the wrong hotel room but has affair with the man she finds there who assumes she is his date of the previous night.
In the French Manner - story of competing French wine salesmen whose sales volume depends on their sexual success with the female relatives of the bar owners. The wife of one of the salesmen arranges to receive the "favors" of the rival so as to see what chance her husband had of topping his competitor's sales and thus be promoted to the Paris office. Her conclusion: "Capturing first place from Le Grand no longer was a fit subject for speculation. She had sampled the other product. It could not be surpassed."
Crisis of Love - description of a woman's surrender to her boss' advances and her fatal remorse on her honeymoon.
JUNE ISSUE
Educational Process - story of seduction which failed of fruition by a quirk of fate.
The Sisters - story of how a husband almost went to bed with his wife's contriving twin sister and how he could not explain to his wife his innocence or, as a result, enjoy being guilty.
What Happened in the Big City - story of a man's unsuccessful efforts to buy sexual pleasure in the "big city" with an anti-climax and a moral.
Wolfie - tiresome story of a neurotic's love for and jealousy of a woman, "his sex fantasies and frustrations."
Love for Sale - story of a young man's first sexual intercourse with a prostitute.
Six Beauties - story of a man's wish to die surrounded by six naked young women.
Matter I deem and find to come within Category 2 as obscene
SEPTEMBER ISSUE
Everyman's Cup of Tea - biographical sketch of Brigitte Bardot, French actress, "a symbol of unsophisticated, unabashed and utterly unregenerate sexuality."
Fashionable Frenzy - description of the "mambo" as done at the Palladium in New York with suggestive, sexual connotations.
Pleasure Islands - an article on Majorca picturing it as a place where women go for "a spree" or "some fun on the sly", where one is "permitted a private life ... what you do behind the walls of your villa, apartment or bedroom is your own (business)".
AUGUST ISSUE
Copenhagen - article devoted to the theme that Copenhagen is a haven for any male who is desirous of engaging in illicit sexual intercourse.
JULY ISSUE
No Two Pairs Alike - in praise of women's legs as a point of attractiveness "both aphrodisiac and esthetic" as compared to her breasts. Conclusion: "As both a symbol and an erotic weapon, the legs have it over any other part of the anatomy --- Breasts are for babies."
Break-Loose Town - description of Las Vegas as a modern Babylon where in "the world of pleasure" --- even the most tireless and "specialiste" appetites can be taken care of. Where "if you wake up in the middle of the night hungry as a Bengal tiger, you just lift up that little old phone and say, 'Send up a bottle of Haig & Haig for me and Miss La Rue, and some hot vittles'".
JUNE ISSUE
An Interview with Monique - Monique "considers sex a ripe plum that should not be neglected. She is frankly opposed to inhibitions, the way American women treat their husbands and Frenchmen as lovers."
Capri - illustrated article whole tone of which is sex.
Book Jackets ala Francois - how sex is advertised by French publishers who "offer a famine to the imagination but a feast to the eye".
Matter I deem and find to be within Category 3 as obscene
SEPTEMBER ISSUE
Inside cover. Pages 16-19, 49-51, 63, 65.
AUGUST ISSUE
Pages 39, 46.
JULY ISSUE
Pages 5, 9, 21-23, 43-44, 54.
JUNE ISSUE
Inside cover. Pages 10-13, 27-29, 34-27, 39, 41, 46, 60, 63, 66-67.
Matter I deem to be in Category 4 as obscene
SEPTEMBER ISSUE
Photographs, drawings and cartoons. Pages 25, 48, 54. Jokes 3, 12, 15.
AUGUST ISSUE
Photographs, drawings and cartoons. Cover. Pages 2, 5, 9, 17, 19, 21-22, 25, 51, 53-57, 72, 63. Jokes 4, 6, 10, 11, 23, 24, 28.
JULY ISSUE
Photographs, drawings and cartoons. Pages 30-33, 51, 53, 59-61, 63, 65, 69, 74, 75, 79. Jokes 9, 10.
JUNE ISSUE
Photographs, drawings and cartoons. Pages 2, 5, 33, 53, 56, 69, 72. Back cover. Jokes 7, 8, 9, 10, 16, 23, 29.
1/ Title 18, Sec. 1461 states in part:
"Every obscene, lewd, lascivious or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character ... is declared to be non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier ..."
2/ The Director's notice to the Petitioner herein of the proposed denial indicates that it is based on information supplied to him by the Assistant General Counsel.
3/ Roth v. U. S. , and Alberts v. State of California , 77 S. Ct. 1304.