In the Matter of

 HUMOR DIGEST, INC.

 and its application for entry of the publication known
 as "BACKSTAGE FOLLIES" as second-class matter.  

 H.E. Docket No. 5/152

 May 19, 1958

 Charles D. Ablard Judicial Officer

 POST OFFICE DEPARTMENT, WASHINGTON, D. C.,

Herbert D. Warburton Acting General Counsel

The Petitioner in this case requested a review of the proposed denial of second-class entry by the Division of Mail Classification (now the Postal Services Division) of the Post Office Department. An Order to Show Cause was issued by the Hearing Officer and a hearing was held on November 6, 1957. There were two issues involved: (1) Whether the issues of the publication were obscene, lewd, lascivious, indecent or filthy, and thus nonmailable under 18 U.S.C. 1461; and (2) whether the publication was a "periodical" within the meaning of 39 U.S.C. 221. After hearing the Hearing Officer rendered a report and recommendation in which he concluded that certain issues of the publication were obscene and nonmailable but that the publication was a periodical publication. The Petitioner has excepted to the finding of the Hearing Officer that the publication is obscene and that error was committed by the exclusion of certain evidence of community standards. The Respondent excepted to the finding of the Hearing Officer that the publication was a periodical. The first exception of the Petitioner is allowed and the conclusion of the Hearing Officer that the publication is obscene is rejected.

The issues of this publication consist of a combination of smutty jokes and pictures of females which, although not in the best of taste, are not obscene within the standard of U.S. v. Roth, 354 U.S. 476 (1957). See also decision of the General Counsel in the matter of Reward Magazine, H.E. Docket No. 4/79, dated March 21, 1957. In view of this finding no discussion is deemed necessary of the Petitioner's second exception.

The exception of the Respondent to the conclusion of the Hearing Officer that the publication was a periodical requires a discussion of the cases on that subject. The latest Supreme Court case which discussed the problem was Hannegan v. Esquire, Inc., 327 U.S. 146, 158, (1945) where the Court held that the Postmaster General could not exclude from second-class entry publications which he deemed not to be for the public good or welfare. Mr. Justice Douglas (in the Opinion of the Court) went on to say:

"This is not to say that there is nothing left to the Postmaster General under the Fourth condition. It is his duty to 'execute all laws relative to the Postal Service.' Rev. Stat. 396, 5 U.S.C. 369. For example, questions will arise as they did in Houghton v. Payne , 194 U.S. 88; Bates & Guild Co. v. Payne , 194 U.S. 106, and Smith v. Hitchcock , 226 U.S. 53, whether the publication which seeks the favorable second-class rate is a periodical as defined in the Fourth condition or a book or other type of publication. ***"

In the Riverside case, Houghton v. Payne , a publisher sent to his readers in magazine form the best of literature. Although in form the magazine met the requirements of second class, thus entitling it to a subsidized rate, the content was within itself a complete book. Books are third-class mail and the Postmaster General decided, and his decision was upheld by the Supreme Court, that the publisher was not entitled to the cheap rate. The Opinion of the Court in that case said:

"A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. ***"

In the Music Masters' case, Bates & Guild Co. v. Payne , the publisher supplied readers with choice selections of music in magazine form. The first issue was devoted to Mozart. The Postmaster General ruled, and again his determination was upheld by the Supreme Court, that the publication was not entitled to the cheap rate of postage but should be classed as a book. In the later case, Smith v. Hitchcock , in which a similar question was raised, Mr. Justice Holmes, speaking for the Court said:

"Without attempting a definition we may say that generally a printed publication is a book when its contents are complete in themselves, deal with a single subject, betray no need of continuation and perhaps have an appreciable size."

The publications of the Petitioner deal with the single subject of sex, are complete in themselves and do not require the reader to continue to purchase further issues.

The intent of the legislation authorizing second-class entry was interpreted by Speaker Cannon of the House of Representatives when he declared:

"The policy of that legislation being to encourage the dissemination of sound and desirable reading matter among the masses of the people of the country at cheap rates." Cong. Record, Vol. 19, page 911.

To those who would argue that exclusion from second-class entry constitutes censorship or prior restraint, a quotation from Congressman Money, the manager of the bill which later became the second-class statute, is appropriate. He said:

"In fact, it does not contemplate censorship of the press. It is for the protection of the legitimate journals of the country." Cong. Record, Volume 8, page 2135.

This decision in no way prevents the Petitioner from publishing his magazine nor from transporting it in the mails. It goes solely to the question of whether the publication is a periodical within the meaning of the statute and the interpretations placed upon that statute by the courts. I do not believe it to be such a publication and it is therefore not entitled to subsidized second-class rates.

The exception of the Respondent is allowed and the Hearing Officer's conclusions of law are rejected in toto. The recommendation that the application for entry of second-class matter be denied is accepted.

Dated this 23rd day of April, 1958.