In the Matter of MYSTERY PUBLISHING CO., INC. and its application for entry of the publication known as "The Dude" as second-class matter. H.E. Docket No. 5/120 November 29, 1957 William A. Duvall Hearing Officer. POST OFFICE DEPARTMENT, WASHINGTON, D.C.
On or about March 4, 1957, Mystery Publishing Company, Inc. (Petitioner) filed an application at the Post Office at New York City for entry of the publication "The Dude" into the mails as second-class matter. (See Respondent's Exhibit No. 1) The publisher was advised by letter dated June 27, 1957, that the Director, Division of Mail Classification (Respondent) proposed to deny said application because of the receipt of advice from the Assistant General Counsel, Fraud and Mailability Division, that the May and July, 1957, issues were regarded as nonmailable under Section 1461 of Title 18, United States Code, and for the further reason that it had not been established that the publication has a legitimate list of subscribers as required by Section 132.225 of the Postal Manual. (See Respondent's Exhibit No. 3)
On July 12, 1957, there was filed on behalf of the Petitioner a petition requesting that the Respondent be required to show cause why the proposed denial of the publisher's application should not be reversed and the application for second-class entry granted and requesting, also, a hearing prior to final Departmental decision on the application.
The requested show cause order was issued on July 12, 1957.
The Respondent answered the order to show cause on July 22, 1957, and, in substance, affirmatively alleged that the May and July, 1957, issues are not entitled to entry into the mails as second-class matter for the reasons set forth in the notice of proposed denial of the application. Information subsequently has been furnished by the Petitioner which establishes to the satisfaction of the Respondent that there is a legitimate list of subscribers to the publication. This issue, therefore, is resolved in favor of the Petitioner. There was a further allegation that the publisher's application should be denied because it had bee proposed by the Department to deny an earlier, similar application, with respect to the August and November, 1956, issues of the magazine, and the proposed denial of the application had been made final because the publisher failed to take any action. I should state at this point that I regard the matter of the earlier application as closed and as having no bearing on the present proceeding, particularly since there are three issues of the magazine involved here from which a long-term view of the magazine may be had. It was also alleged by the Respondent that the Petitioner "regularly and systematically" published obscene, lewd, lascivious, indecent or filthy matter in "The Dude." The answer later was amended to bring the September issue of the magazine into consideration in the proceeding.
The case was heard before me as the assigned Hearing Officer on August 1 and 2, 1957.
In the presentation of the Respondent's case the following exhibits, in addition to those previously mentioned, were introduced and received as evidence:
Exhibit No. 2 - A letter committing the Kable News Company, Mount Morris, Illinois, to purchase 350,000 copies of each issue of the magazine and handle it on a returnable basis. 4 - May, 1957, issue of "The Dude." 5 - July, 1957, issue of "The Dude." 6 - September, 1957, issue of "The Dude."
Respondent offered four additional exhibits which relate to the August and November, 1956, issues of the magazine. Although these exhibits accompany the record in this case, they were not received as evidence because of my previously stated view with respect to the earlier application (Tr. 33).
Petitioner's counsel objected to the receipt in evidence of Respondent's Exhibit No. 4 because it had been marked in red ink in certain places and counsel stated that undue emphasis would be placed upon those places and undue attention would be drawn to them. Counsel for Petitioner was given the opportunity of supplying for the record an unmarked copy of the May issue of the magazine, but none was furnished - presumably because none was available (Tr. 144, 145). I should like to state that such markings as there are in the magazine have not affected, in any way, the conclusion reached herein with respect to the mailability of this publication.
After the rulings had been made with respect to his exhibits, the Respondent's presentation was concluded.
Petitioner's counsel moved to dismiss the proceeding on the grounds that (1) there was no evidence that the magazine violates contemporary community standards and (2) there was no evidence that the magazine appeals to the prurient or has a tendency to corrupt, deprave, or arouse lustful thoughts. This motion was denied because (1) the magazines, themselves are the best evidence as to their contents; (2) the magazines are to be weighed against current community standards, this being the purpose of the proceeding; and (3) the Rules of Practice forbid the Hearing Officer to make any final disposition of such a proceeding. Petitioner made various other motions concerning questions which he also raises in his proposed findings of fact and conclusions of law. These motions will be disposed of later in this Report.
The publisher of the magazine, Mr. Frederick A. Klein next took the stand. He gave testimony as to his general background and experience in the publishing business. He testified that the audience he attempts to appeal to in the magazine is the "adult, sophisticated male" and that he has declined to accept advertising which is of such nature as the publishers believed might degrade the magazine (Tr. 61, 62); and as to the identity of the personnel on the staff of the magazine (Tr. 66-68). There were testimony or offers of proof with respect to the reputation of writers whose works appear in the magazine; the fact that Mr. Klein sought legal advice as to the obscenity or lack thereof of certain articles considered for publication; whether certain distributor organizations attempt to police the publications sold by or through them; the physical characteristics of the magazine, such as the grade of paper and technical quality of the photography; and proof of contemporary community standards by comparing certain other books, magazines or articles which have been published and sold. Finally, Mr. Klein was examined on the contents of the magazines.
There were offered as exhibits to Mr. Klein's direct testimony the following items:
Exhibit No. 1 - Photostat of page from "Book Review Digest" containing reviews of George Orwell's "Down and Out in Paris and London." 2 - Photostat of page from "Book Review Digest" containing reviews of Jean Paul Sartre's "Age of Reason." 3 - Photostat of page from "Book Review Digest" containing reviews of John O'Hara's "Files on Parade." 4 and 4-A - Photostats of pages from "Book Review Digest" containing reviews of William Faulkner's "These Thirteen." 5 - Letter, dated March 1, 1957, from Frederick A. Klein to George B. Davis, President, Kable News Company, relating to the way in which "The Dude" has been and will be edited. 6 - Circular letter, dated March 19, 1957, from George B. Davis, President, Kable News Company, to Hank Hanners, President ACIDA. 7 - Dummy of the May, 1957, issue of "The Dude." 8 and 8-A - Proofs of pages 28 and 30 of the July, 1957, issue of "The Dude." 9 - Letter from Bruce Elliott, Editor of "The Dude," to Mr. Levy, Petitioner's counsel, transmitting an article to be checked. 10 - Copy of the book "Peyton Place" by Grace Metalious.
Cross-examination was directed to Mr. Klein's statements that the contents of the magazines are calculated to appeal to the "adult, sophisticated male" and that the articles in the various issues teach a moral.
Because of intensive, but unsuccessful, effort by both parties to reach a compromise settlement of this matter the date for the filing of proposed findings of fact and conclusions of law was fixed at October 30, 1957, which date was later postponed by the Hearing Officer to November 6, 1957, and the proposed findings were filed by both parties.
The text of the May issue of this publication begins with an article about a small Parisian theatre called Le Grande Guignol. It tells of the specialty of this theatre, which is the so-called "horror" story, and shows pictures of the theatre, an audience, some actors and some scenes from one of the plays. One of the pictures of a scene shows a man pulling a blouse off a young girl in the presence of another girl and two other men. The girl's shoulders and left breast are fully exposed, as is a large portion of her right breast. Opposite this picture is one of the same girls sitting on a divan, bare from her waist up, except that her breasts are cupped in her hands. The man who on the opposite page is disrobing her, appears to be either removing or putting on his sweater, which covers only his arms. His waist and upper torso are bare. There is also a picture of the girl who appears to be being burned alive and the man is standing nearby apparently laughing fiendishly at the girl's plight.
There follows an article called "Poetry Without Pain" in which are quoted many limericks having a sexual meaning or being sexually suggestive in a manner appealing to prurient tastes.
The next article, "The Big Picture," tells of a television set which operates so as to show persons in the nude performing passionate love scenes. Following this is a picture article entitled "Western Style," consisting of pictures of a girl showing her nude or partially nude breasts.
Next, is an article of slightly over one page in length written by the late Robert Benchley. This article is a typical bit of Benchley humor.
There follows a story called "Eric Mott in the Amazon." One sees Mr. Mott in the later issues of this publication. He has discovered a new way to perform sexual intercourse which he calls the Hydrogen Bomb, and this story tells of him exhausting himself demonstrating the bomb to native girls in the Amazon river country. It essays a humorous vein but it is replete with references to sexual encounters with shapely native girls, among whom is one who is Mott's favorite and whom he has nicknamed "Boobs" for reasons made clear from her description. There is, next, a picture article containing pictures of a shapely young girl with either her buttocks, or her breasts, or portions of both areas exposed. This is followed by "The Beer Drinkers," a story of a rich, young girl who happens to meet a young working man and takes him up to her apartment for the purpose of having sexual intercourse with him. This relationship exists for some time, but the man finally leaves, and falls in love with another girl. The first girl goes hunting for the man, finds him and they indulge in sexual intercourse again.
There is an article with a series of pictures of the girl chosen as "Miss Dude" for this issue.
This is followed by a "gatefold" on one side of which are two pictures of a girl clad in a thin, transparent nightgown. On the other side of the gatefold and on the opposite page are pictures, some in color, of a girl whose body is bare from the waist up and who, otherwise, wears leotards. There are full front views of this girl's bare breasts. Next, is an article called "The Viennese Way." Its main theme is the ease with which, in Vienna, meetings may be arranged for the purpose of sexual relations. "Charlie's Happiest Day," the next story, is by George Orwell and tells of a young Frenchman and the sadistic pleasure he derives from inflicting punishment on a young girl. Next is the story of seduction, told in verse and cartoons, entitled "The Dubious Virgin." This is followed by John O'Hara's "Saffercisco." This is the story of a man who wants to marry an actress who is married. He goes to dinner at the house of the actress to announce his intentions to the husband, only to find that the wife, with the knowledge of her husband, is spending the week-end with her director in San Francisco. "Valley Wedding" is the story of a young man who is on his way to get married but who changes his mind when he sees another girl whom he has been seeing in the evenings after he has left his fiance. The final article is entitled "Theme and Variations" and consists of quotations of poetry by Robert Herrick, and pictures of a nude or nearly nude girl. In this series of pictures, extending over five pages, all of the girl's body, except the pubic area, is exposed.
The first article in the text of the July, 1957, issue of the magazine is by Jean Paul Sartre and is entitled "A Question of Character." This is a story in which a young couple leaves the cafe in which they have been dancing and go to the girl's apartment and have sexual intercourse.
This is followed by three columns, namely: "Waxing Mellow," a discussion of phonograph records, by Sam Goody; "On the House," mentioning places and things to eat and drink, by Matty Simmons; and "The Guys in the Columns," which are short biographical notes on Goody and Simmons. "Goodbye Charlie" is a story in which Charlie leaves his home to go to Birmingham to see his mistress. On the way, he is involved in an accident in which a young boy is fatally injured. After staying a while and talking with the state patrolman, Charlie goes on to see his mistress. She tells him of an experience with a man who has been molesting her, while he, at the same time, tries to tell her of the accident. The story ends with the suggestion that Charlie and his mistress are having sexual intercourse. "Four Poster Peek-a-Boo" is a three-page picture article satirizing a situation in which a man is suspicious that his wife or his girl friend is having an affair with someone else. Both are pictured in night clothes in, under, or around a bed. "No Purple Heart" is a story of a young man who had duty on a small island in the Pacific. On the island are many beautiful native girls with whom the man engages in such an excess of sexual relations that he winds up in a mental institution. "Tailormaids" is a series of pictures of girls modeling masculine attire. "The Butcher's Boy" relates an incident in which a young prizefighter is picked up after a fight by a young girl. The girl tells the boy that she wants to learn to fight but it is obvious that she only wants to go to her apartment and have sexual intercourse with the boy. She succeeds. There is much filthy language in this story.
The next item is the "Miss Dude" for this issue.
There follows the gatefold. On one side are four pictures of a shapely young girl, the nipples of whose breasts are shown in two pictures, and whose breasts are exposed to a large degree in the other two pictures. In all photographs, the girl is nude above her waist. On the reverse side of the gatefold is a picture of a girl propped against a high stool. She wears a hat, gloves and stockings. She is holding her right arm and hand in such a way that the nipples of her breasts are concealed. The remainder of her body, except the pubic area, is exposed. On page 37 are two pictures of a girl, apparently in a night club, wearing a dress cut so low in the back as to show the top part of her buttocks. "Dude Sets Up With 'The Bachelor Party'" consists of scenes from the motion picture film of that title and pictures of persons appearing in it.
"Slavery Can Be Beautiful" tells of a young man who buys three native Arabian girls as slaves. He indulges in sexual intercourse with them to such an excess that, for the sake of his health, he sells them and returns to New York. On board the ship, he scarcely can stand the sight of a woman. Next is "Anne Fleming, Midsummer's Dream" consisting of a series of pictures of a curvaceous young woman posed in quite scanty attire. Her breasts are exposed to a large degree or her figure is outlined by very tight-fitting clothes, or may be seen in outline through a very thin, hip-length gown.
An article by H. L. Mencken entitled "The Marriage Game" is next and it is a satirical bit in which the author depicts marriage as a one-sided game or contest, with the woman being by far the best equipped and most skillful participant.
Mr. Mott reappears in the next story. In this episode, a young woman investigator is sent to see Mr. Mott to determine whether he has secret information about the Hydrogen Bomb. Mr. Mott demonstrates to her his version of the bomb and the young woman asks for repeated demonstrations. "Spirito d'Italia" is the last item in this issue and it is composed of pictures of a young girl in varying degrees of undress in provocative and sexually stimulating postures.
The September, 1957, issue of the magazine begins with four columns, as follows: "Waxing Mellow," by Sam Goody, concerning phonograph records; "On the House," by Matty Simmons, telling of places and things to eat and drink; "Right Dress," by Wilson Cantrell, a discussion of mens' clothing; and "That's the Ticket," by Saul Levinson, a preview of shows scheduled to appear on the New York stage.
The first story is entitled "Layover in El Paso," and tells of a young soldier who missed his first leave at home because he meets a girl who lives in El Paso. He gets off the train and stays with her for so much of his leave that he does not have time to proceed to his home. While he is having his difficulties with his girl, a sailor, whom he met on the train, is living with the girl's roommate. There are instances related in the story in which it is obvious that sexual intercourse is taking place. "Circle of Infidelity" follows, and it is such a melange of adultery that to summarize it would consume almost as much space as does the story.
"Student Saturnalia" is a series of pictures taken at the Art Students League Ball. Several of the pictures show girls in very revealing attire.
"The Man Who Loved Old Ladies" is the title of the next story. It tells of a young girl, who is a dancer, being invited by a man to go into a bar and have a drink. While there, he tells her that he makes love to old ladies, who pay him for his services.
An article about Inga Boling, Bill Stern's assistant, is carried under the title "The Little Girl Behind the Big Man." "Bus From Derby" tells of two men and a girl who are drinking and watching boat races. One of the men takes the car and the girl and leaves the other man. He catches a bus to New Haven, and the story deals with his drunken actions on the bus. It is later indicated that the man was wounded in Korea and this is supposed to account for his behavior.
Mr. Mott comes back in "Eric Mott and the Psychiatrist." He is sent to a psychiatrist who turns out to be a pretty young woman. Mott, demonstrates the bomb to the doctor, who says that they will "need to explore this case further." "Brubbie Desbeck Goes to Mars" is nonsensical jive talk about an orchestra which goes to Mars and brings back a Martian musician. "That's the Way the Ball Bounces" is a series of pictures of a girl dressed in a Bikini bathing suit performing on a trampoline.
"Madame" tells of a girl who lives, unknowingly, in a house of prostitution and later on is dismayed to learn the truth. The "Miss Dude" article for this issue is somewhat different from those of previous issues. This month the young lady is shown in several photographs in which she is more undressed than dressed up. There are three pictures that reveal a large portion of her body, with parts of her breasts and buttocks exposed. "Two Sundays in Paris" is a story in which an American meets a French girl during his last week in Paris. They see each other frequently and finally have sexual intercourse. He asks her to marry him when he comes back next year and she consents. He returns the next year to find that she has married some one else.
"Issihios Parakalo" is a picture story about Sophia Loren, while "On to Africa - B'wana Come Along?" is a satire on the numbers of books that have been written by persons who have toured Africa.
The last article in the September issue is called "Coffee, Can-Can and Marsha." It is a series of photographs of a girl who has a part in the show "Can-Can" and who supplements her income by working in an espresso shop. The girl is shown in a variety of poses and in varying degrees of undress. In some pictures her breasts are exposed to a large extent or her buttocks are shown, or parts of both areas are shown. Petitioner's first proposed finding of fact is neither adopted nor rejected, because of its immateriality. The magazine itself is the best evidence of its character and the purpose of the hearing was that notice be taken of that evidence.
Petitioner's second and third proposed findings of fact are denied because there was evidence as to the obscene character of the publication.
Proposed finding of fact number four by Petitioner is immaterial because of the conclusion reached herein with respect to the magazine as a whole.
With respect to Petitioner's proposed fifth finding of fact, it is not necessary to itemize those separate portions considered to be "legal" or obscene or filthy because the magazine is to be considered as a whole in its overall effect.
Petitioner's proposed findings of fact numbered six through thirteen are denied for reasons herein indicated.
Petitioner's proposed findings of fact numbered fourteen and fifteen are immaterial since they attempt to impose inapplicable standards. Again, the publication is to be considered in its totality and a determination must be made as to whether under the criteria established by the courts the publication is obscene or filthy.
Petitioner's proposed finding of fact number sixteen is denied as being immaterial. The important thing is that in this proceeding contemporary community standards be applied in reaching a conclusion as to the character of the publication.
Petitioner's proposed finding of fact number seventeen is denied because of the provision of Rule 201.40(c) of the Procedures Governing Administrative Hearings Relative to the Denial, Suspension or Annulment of Second-Class Mail Privileges (Rules of Practice) which states that: "The Director, Division of Mail Classification, Post Office Department shall be represented by the Assistant Solicitor, Fraud and Mailability Division."
Petitioner's proposed finding of fact number eighteen is denied. First, because of the provision of Section 201.40(c) of the Rules of Practice, quoted above, the things done and actions taken by the Assistant General Counsel are to be deemed to have been done and taken by the Director. Second, this is a most technical objection and one which, however ruled upon, would not shed any light on the merits or the issues of the case. Third, the Respondent's interests are not adversely affected simply because of the identity of the person who signs a pleading. This proceeding came about as a result of official action by the Post Office Department and an authorized representative of the Department signed the Answer.
Petitioner's proposed findings of fact numbered nineteen and twenty are denied because the motive or intent of the publisher is not material. United States v. One Book Entitled Ulysses , 79 F.(2d) 705; Rosen v. United States , 161 U. S. 29.
Petitioner's proposed finding of fact number twenty-one is denied because it is the character of the matter which has been included in the publication that is material, and not the character of the matter which has been excluded.
Petitioner's proposed conclusions of law are disposed of as follows:
1, 2, and 3 - Denied for reasons herein discussed.
4, 7, and 9 through 13 - Denied because they raise questions as to the constitutionality of the statutes under which the Post Office Department functions and such questions are not for determination by the Hearing Officer. Engineers Public Service Co. v. S.E.C. , 138 F.(2d) 936.
5 - Denied because there is ample evidence that the magazine is dominated by matters relating to sex treated in a manner which appeals to prurient interest.
6 and 8 - Denied on the basis of the decision in Klaw v. Schaffer , U.S.D.C., S.D.N.Y., Civ. No. 111-226.
14 - Denied on the basis of the decisions of the courts in the Klaw and Engineers Public Service Co. cases, supra .
15 - Denied for reasons herein indicated.
16 - Denied. I have reviewed the transcript of the proceeding and, upon being persuaded that Petitioner's motions were properly ruled upon, I adhere to them.
17, 18 and 19 - Dismissed for reasons herein indicated. See also the comments made with respect to Petitioner's proposed finding of fact number 1.
20 - Denied, because a review of the rulings made excluding evidence offered by the Petitioner makes it clear that the rulings were proper for the reasons given at the time the rulings were made.
21 - Denied. This is the first instance, so far as I am aware, in which it has been seriously contended that it was error or abuse of discretion to permit cross-examination on matters brought out and discussed on direct examination. Surely, counsel must have included this proposed conclusion of law through an inadvertence. Petitioner's counsel's direct examination of the publisher on the contents of the magazine will be found at pages 140 through 205 of the official transcript of the hearing.
22 - I am at a complete loss trying to understand what state of mind could have resulted in the request for this proposed conclusion of law. The assertion on which it is predicated is wholly and utterly unsupported by and contrary to the record.
The refutation of this assertion is found at pages 292 through 294 and page 296 of the stenographic record of the testimony wherein Respondent's counsel was specifically limited to questions of prosecutions involving the three issues involved in this proceeding. Respondent's counsel did not make or ask to make an offer of proof on this point. Zeal on the part of an attorney in the interest of his client is commendable but such an apparently reckless assertion as is found in this proposed conclusion of law can not be permitted to pass unnoticed.
23 - Denied on the ground of the impropriety of the statement made by counsel in his offer of proof because the witness whose testimony was being offered would have been incompetent to give the testimony had he been present, under oath and on the witness stand.
24 - Denied. Due regard has been given the contemporary community standards. Further denied on the basis of the Klaw
case, supra .
Inadequate as are such summaries as those given earlier, it is obvious that sex, in one form or another, dominates each of the issues of "The Dude." The appeal to prurient interest appears in the ways in which the stories are written. It is developed in the setting of the scenes in which the actions take place, in the recounting of the passions and emotions which affect and motivate the characters, in the choice of language used to present a situation to the reader, and in the descriptions of the physical characteristics and reactions of the characters. Each of these factors has its effect and, taken together, they have a considerable cumulative impact.
If there were nothing in the issues of this publication but the stories and articles heretofore mentioned, one could only conclude that this magazine is obscene within the meaning of Section 1461 of Title 18, United States Code. The validity of this statement is borne out by the repeated situations in all issues in which the reader knows that sexual intercourse has taken place, is taking place or is about to take place; by the references to sexual aberrations such as sadism; by repeated accounts of adulterous relationships; and by the series of stories in which the so-called "Hydrogen Bomb" is the central theme.
Mention has not heretofore been made of the drawings and cartoons appearing in the publication. There are illustrations in each of the issues depicting either the generally sexual themes of the stories they accompany or depicting some of the more lurid passages in the stories. The cartoons bear no relation to the textual content of the magazine but, with few exceptions, their effect is to heighten the overall appeal of the publication to prurient interest. The cartoons, also, present adulterous situations, situations involving seduction, and situations involving sexual intercourse.
Clearly and unquestionably, the salacity of the publication outweighs any literary, scientific or other merits it may have ( Walker v. Popenoe , 149 F.(2d) 511), so that the effect on the ordinary reader ( United States v. Levine , 83 F.(2d) 156) is inevitably to convince him that the book is obscene in its dominant effect ( United States v. One Book Entitled Ulysses , 72 F.(2d) 705), which is to say 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).
1. That the May, July and September, 1957, issues of the publication "The Dude" are obscene within the meaning of Section 1461, Title 18, United States Code.
1. That the May, July and September, 1957, issues of the publication "The Dude," being obscene, are nonmailable matter, and they 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 Petitioner's application for entry into the mails as second-class matter of the publication "The Dude" be denied.