In the Matter of ARNOLD MAGAZINES, INC. and its application for entry of the publication known as "GUSTO" as second-class matter. H.E. Docket No. 5/119 November 8, 1957 William A. Duvall Hearing Officer. POST OFFICE DEPARTMENT, WASHINGTON, D.C.
This case originated in the usual manner, that is, with the filing on or about May 31, 1957, by Arnold Magazines, Inc., of an application for second-class mail privileges for the magazine "Gusto." It is unnecessary to recite here the various other steps taken by the parties which result in the matter reaching the stage at which this Report and Recommendation is made. Suffice it to say that all procedural steps were regularly taken in accordance with the rules of practice governing these procedures, and they are reflected by documents in the file. In lieu of a formal hearing, the parties agreed to submit the matter for recommendation upon the basis of certain facts and exhibits contained and described in a stipulation filed on August 1, 1957. The exhibits accompany the record. Proposed findings of fact, conclusions of law and reasons in support thereof were filed by the Petitioner on September 18, 1957, and by the Respondent on September 30, 1957.
The issue in this proceeding is whether the contents of the October and December, 1957, of the magazine "Gusto" are obscene, lewd, lascivious, indecent or filthy so as to render them nonmailable under Section 1461 of Title 18, United States Code, thereby making them ineligible under Sections 224 and 226, Title 39, United States Code, for entry into the mails as second-class matter.
There was in the initial phase of the proceeding another issue: namely, whether the publication has a legitimate list of subscribers as required by Section 226, Title 39, United States Code. On September 19, 1957, the Petitioner filed an amendment to his proposed findings of fact asserting that sufficient information has been furnished the Respondent to establish that the publication has a legitimate list of subscribers. Nothing further having been received relative to this issue from the Respondent, and there being no mention of this issue in Respondent's proposed findings and conclusions, it is presumed that it has been established to the satisfaction of the Respondent that the publication has a legitimate list of subscribers. This issue is thus resolved in favor of the Petitioner.
In order to reach a conclusion as to the issue in this case a determination must be made as to whether the content of the magazine "appeals to prurient interest" ( Roth v. United States and Alberts v. State of California , 77 S. Ct. 1304), and whether this type of matter constitutes the dominant theme of the publication taken as a whole ( Roth case, supra , and Walker v. Popenoe , 149 F.(2d) 511).
As will be seen from the resumes of the articles in "Gusto" attached as Appendix A to this report, I have read the entire contents of each issue. I have attempted to weigh the contents of each issue to ascertain whether there exists "the likelihood that the work will so much arouse the salacity of the reader" as to "outweigh any literary, scientific or other merits it may have" ( United States v. Levine , 83 F.(2d) 156).
It must be said that there is no article of any scientific merit in the October issue, and if there is any literary merit to any of them it is only to a minuscule degree. As to "other merit," it is presumed that to some readers some of the articles have some merit from the standpoint of the entertainment which may be derived from reading adventure or horror stories.
In this last category would be placed the story of the death of the geologist in the Louisiana quicksand, the fight of the man with the alligator and the headhunter attack on the hunters in Africa. Another article tells of the suffering of a narcotic addict as he tries to struggle through the rehabilitation treatment back to a normal life, and, finally, there are articles criticizing the military, or at least holding the Army up for ridicule, because of the alleged fact that so few generals die in battle, and because of alleged defects in army weapons.
The remainder of the text of the October issue is composed of the recounting of the vice in Corpus Christi, illustrated with pictures of girls obviously depicting prostitutes; quotations of sexually suggestive language from calypso songs; accounts of the lives of young girls dedicated by their parents to satisfy the lust of the priests in certain Indian religions, and given to a life of sexual promiscuity; and the telling of the ways in which certain business deals are closed with sexual intercourse being one of the principal inducements.
In addition, there are the picture articles entitled "Gusto's Gal" and "They Call Her Frenchy." These articles consist of numerous pages of pictures of voluptuous-looking young women in varying degrees of undress and in many sexually provocative poses, with various parts of their anatomies exposed. The cartoons found in different places in the magazine serve only to accentuate the general aura of sensuality pervading it.
As for the December issue, the same general pattern obtains. Violent, gory death is presented in "Kill the Bloody Brute," "I Saw the Claws of Death" and "Murder at Saltash Tavern." Less revolting are the articles entitled "I Found the Golden Virgin," a tale of treasure hunters in Yucatan, and "Flameout," the story of the suspicious army husband who saves the life of the man he suspects as being his wife's paramour. The story "Why GI's are Easy Marks" tells primarily of ways in which soldiers are victimized by gamblers at so-called charity carnivals, but some of the pictures illustrating the story would lead one, at first glance, to believe that the article deals with what it calls "kootch" dancers. Another story, "The Night I Went to Hell" tells of a semi-religious rite performed by a tribe in Iraq in which a peacock is killed and the participants in the rite drink the blood, girls dance and go through motions which symbolize an earlier custom in which a virgin is ravished and then offered as sacrifice to the god. There is also a story about the late Houdini which tells of his uncanny ability to make escapes from apparently escape-proof situations. Although there are in several of the foregoing articles passages which, if considered alone, would have to be regarded as nonmailable, I do not feel that, considered as a whole, they should be placed in that category.
On the other hand, there is an article listed in the table of contents under Health and Science entitled "Are You a Pin-Up Neurotic" which serves primarily as a vehicle for presenting several pictures of nude or partially nude females apparently in postures which the author considers to be sexually stimulating. In the article it is stated that different types of "pin-up" pictures appeal to different individuals according to their sex adjustment, and it appears that an attempt has been made to satisfy each type. The picture-story "Who is Lana Wong?" presents numerous pictures of a Chinese girl clad, for the most part, in a gauze-like brassiere and a "G-string." There is another picture article entitled "Homey Corinne," the chief purpose of which would seem to be to present a series of photographs emphasizing the breasts of a young girl who, in this area, is abundantly endowed. Another such picture appears on page 4 of the December issue and, on page 51, there is an advertisement of "LIFE-SIZE Pictures" which carries a photograph in which the greater part of a young woman's anatomy is exposed.
As is the case with the former issue, the cartoons in the December issue serve to increase the libidinous effect of the magazine as a whole.
Words are inadequate to convey the impression created by the two issues of this publication, but inspection leads one to the firm conclusion that the dominant theme and effect of them, taken as a whole, is an appeal to prurient interest.
I adopt Petitioner's proposed findings of fact numbered First, Second, Third and Fourth (as amended). For the reasons heretofore stated, I deny Petitioner's Fifth proposed finding of fact and his proposed conclusion of law.
Applying contemporary community standards and being guided by the decisions in the Roth , Popenoe and Levine cases, supra , I find as follows:
The October and December, 1957, issues of the publication "Gusto" are, when considered as a whole, dominated by material of an obscene, lewd, lascivious, indecent or filthy nature within the meaning of Section 1461, Title 18, United States Code.
The October and December, 1957, issues of the publication "Gusto" are nonmailable matter and are not entitled to entry into the mails as second-class matter in accordance with Sections 224 and 226, Title 39, United States Code.
It is recommended that the application of Arnold Magazines, Inc. for entry of the magazine "Gusto" into the mails as second-class matter be denied.
"GUSTO" - October, 1957
1. Quicksand - Employees of oil company go into Louisiana swampland on surveying assignment. One of them is caught in quicksand and is killed. The other, in attempting to rescue his friend also is caught in quicksand but manages to escape.
2. I Battled the Monster Cayman - Men go up Amazon to hunt and take pictures. Boat hits sand bar, passengers see cayman and reach for their guns causing the boat to capsize. One passenger is killed by cayman, the other kills the cayman that attacked him, manages to get back to boat, right it and get in.
3. Gusto's Gal - Four pages, eight pictures of shapely girl, various stages of undress, breasts are obviously bare but are not completely shown in any picture, but in many of them large areas of the breasts are exposed.
4. Generals Don't Die Fighting - Article that follows the theme suggested by the title.
5. When Will They Clean Up Corpus Christi? - Story purportedly telling of the vice which is permitted to thrive in Corpus Christi, including prostitution, gambling and narcotics smuggling. Story is illustrated with two pictures of the outside of a burlesque theatre, two pictures of alleged young hoodlums picked up in a round up, and two pictures of a girl at a bar, one girl is alone, the other is seated beside a man. Both girls wear somewhat revealing gowns - a fairly large area of breast being exposed in one. Both pictures of the girls suggest that they are prostitutes.
6. Headhunter Attack - Story of attack on a group in the African jungles by members of the Akondo tribe, who are headhunters.
7. The Good Life - Cartoons having a sexual theme.
8. Narco - A story involving the experience of a narcotic addict in receiving treatment at the U. S. Public Health Service hospital at Lexington, Kentucky.
9. Sin For The Gods - Story of how in the past in India some girls were dedicated to the God Shiva and were required to sing, dance, and have sexual relations with the priests and any other men who could pay the established price. The story tells of one such girl, Savrita, and gives a description of her "wedding" and her life afterwards in the temple.
10. Calypso - Is It Pornography in Hi-Fi? - Article gives sources of some current calypso songs such as Jelke trial, certain divorces and so forth. There are quoted the lyrics from songs and most of them are sexually suggestive.
11. What's Wrong With Army Weapons - This article carries the complaint that U. S. weapons are too few in number and are obsolete.
12. Sex - Big Business Lubricant - This article tells of the use of "party girls" in the transaction of business deals. It is illustrated with pictures of Pat Ward and Nella Bogart who figured in criminal cases involving prostitution.
13. They Call Her Frenchy - Picture article showing shapely young girl. Some pictures show her buttocks, some show large areas of her breasts, all show her in scanty attire or filmy, partly transparent garments.
"GUSTO" - December, 1957
1. I Found the Golden Virgin - Two men search in Yucatan for a golden statue of the virgin. They find it at the bottom of a well inside a cave. The natives are angry and attempt to kill them, but the hunters escape.
2. Are You a Pin-Up Neurotic? - A group of pictures with an accompanying narrative which argues that one's sexual adjustment may be determined by the type of pin-up pictures he prefers. Some pictures show bare buttocks, or breasts; others show girls in very scanty attire.
3. Why GI's are Easy Marks - Account of gambling at carnivals set up near army camps.
4. Who Is Lana Wong - Four pages of pictures of Chinese girl wearing a net brassiere and a G-string.
5. The Night I Went to Hell - An American visits place where religious rites are observed by members of an Arabian tribe. Some portions deal with dance by nearly nude girls. These are only minor portions of the story.
6. The Man They Couldn't Capture - Story about Houdini.
7. Homey Corinne - Four pages of pictures of young girl with different parts of her body exposed in varying degrees.
8. I Saw the Claws of Death - Two botanists and the wife of one of the men (the older) live in the Belgian Congo. The older man discovers that his wife is having an affair with the younger man. The older man kills the younger, but makes it appear that the young man has fallen into an animal trap. Later, the older man attempts to stab his wife, but she escapes. The old man flees into the jungle. He is followed and his body is found. It appears that he has been killed by the "Aniotos," or leopard-men.
9. Keeping Abreast of the Times with McCartney - Two pages of suggestive cartoons.
10. Murder at Saltash Tavern - Two groups of loggers come into a small town in Vancouver. They get into a fight, the lights go out and when the lights come back on one man is dead, with his head on the brass rail. A Northwest Mounted Police sergeant discovers the murderer from blood on his shoes and captures him.
11. Kill the Bloody Brute - A previously tame elephant goes berserk in an Indian village and kills several people. The police come to the village and kill the elephant.
12. Flameout] - An army master sergeant is a GCA operator at an airfield. He suspects his wife is having an affair with a flyer named Johnson. One day, Johnson is flying a jet in a dust storm and his engine stops. The sergeant is torn between his duty to bring the man down safely and his desire to let the man die because of his supposed relationship to the sergeant's wife. The sergeant's sense of duty prevails and the pilot is saved. The sergeant then learns that his suspicions concerning his wife and the pilot are without foundation.