In the Matter of the Complaint Against

 JOSEPH P. SCHILLACI,
 d/b/a REGAL ART CO.,
 at Los Angeles, California

 H.E. Docket No. 5/180;  

 06/25/58

 Ablard, Charles D.  

 POST OFFICE DEPARTMENT WASHINGTON, D. C.

A complaint in the above matter was issued November 27, 1957, charging the respondent with depositing in the mails information as to where, how and from whom obscene matter may be obtained and obtaining or attempting to obtain remittances of money through the mails for that obscene matter. A copy of the advertising circular distributed by the respondent was attached to the complaint. The hearing was held on February 27, 1958, in Los Angeles, California. On March 28, 1958, the Acting General Counsel of the Post Office Department issued an interim impounding order in accordance with 39 U.S.C. 259(b). This order was subsequently invalidated by the District Court for the Southern District of California for the Department's failure to proceed expeditiously with the administrative proceeding. On May 28, 1958, the Hearing Examiner rendered an Initial Decision in which he found that the allegations in the complaint were true and recommended the issuance of a postal unlawful order. The respondent has filed three exceptions to the Initial Decision.

The first exception is based on the decision of the Court of Appeals of the Second Circuit in Columbia Research Corp. v. Schaffer and Vibra-Brush Corp. v. Schaffer on May 13, 1958.

Those cases held that fraud orders issued by the Post Office Department were invalid for failure to comply with Section 3(a) of the Administrative Procedure Act, 5 U.S.C. 1001 et. seq., which requires that, "no person shall in any manner be required to resort to organization or procedure not so published." The Court said that section applied not only to affirmative resort but also to any "subjection to unpublished procedure," and that the proceeding was invalid for failure to publish a description of the relation between prosecutor and adjudicator. The Court went on to say,

"we hold the order at bar invalid for this reason, regardless whether the chain of subordination to the agency of both prosecutor and judge was in fact not sufficiently separated."

On April 24, 1958, a reorganization in the Post Office Department established an independent Judicial Officer responsible directly to Postmaster General, who makes the final departmental decision in administrative proceedings. The delegation of authority to the Judicial Officer and the New Rules of Practice of April 26, 1958, were published and served upon the respondent. Those rules were made applicable to this and other pending cases.

Until this reorganization, the respondent was not subject to any action by the Judicial Officer. Therefore, it appears that the reason for holding the orders in Vibra-Brush and Columbia Research, supra, invalid are not applicable to this case. Also, since this order will probably be tested in the 9th Circuit, the decision of that Court of Appeals in Foreman and Clark, Inc. v. National Labor Relations Board, 215 F.2d, 396, 410 (C.A. 9th) is persuasive. The court there said:

"the clear purpose of Section 3(a), supra, is to provide a shield for a petitioner before the Board, or other agency, to protect him from being penalized for failing to resort to unpublished methods of procedure. It is not a sword by which a petitioner can strike down the agency's order, on the ground that the agency has not authorized itself to issue that type of order, by publishing a statement in the Federal Register]" (Emphasis not supplied)

It is as a sword that the respondent would use Section 3(a).

The second exception of the respondent is to the finding of the Hearing Examiner that the material furnished by the respondent is obscene. The complainant charged that five 8 millimeter films, two sets of black and white pictures, and six sets of colored slides were obscene. One set of the colored slides has been lost and no finding can be made on those exhibits. Having viewed the five films and the two sets of black and white pictures, I concur with the finding of the Hearing Examiner. The respondent in this case, in the language of Chief Justice Warren, in his concurring opinion in Roth v. U.S., 354 U.S. 476, "plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect." The films feature naked young women with close-up shots of the breasts, buttocks, and, in two films, the pubic area. Judged by the contemporary community standards of the nation there is an appeal to prurient interest.

As to the five remaining sets of the color slides, the finding of the Hearing Examiner is modified and only those numbered 14C(2, 3 and 4), 14D(5), 14E(1, 2 and 3) and 14F(1, 3 and 5) are found to

be obscene. The C and F groups and 14E(3) are nudes with pubic area revealed or semi-revealed. The one in D and the two remaining in the E group are pictures of two nude girls on each slide in touching positions. In E(2) the pubic areas are semi-revealed. The other slides are what are generally characterized as "cheese-cake" nudes and are not deemed to be obscene. The exception is disallowed except as to those slides found not to be obscene.

The respondent did not except to the first finding of the Hearing Examiner that the respondent's circulars offered obscenity which also constitutes a violation of 39 U.S.C. 259(a). U.S. v. Hornick, 229 F.2nd 120 (C.A. 3d); Klaw v. Schaffer, 151 F. Supp. 534, 540; Affirmed 251 F.2d 615 (C.A. 2d) and Glanzman v. Schaffer, 143 F. Supp. 243, 247; Affirmed 252 F.2d 333 (C.A. 2d). This finding of the Hearing Examiner thus becomes the final departmental decision.

Respondent's third exception is to the exclusion by the Hearing Examiner of the proposed testimony of Dr. Hacker, a physician and surgeon specializing in psychiatric medicine. Determinations of obscenity have always been considered to be for the court upon application of the proper tests. The Post Office Department has interpreted this as extending also to administrative hearings. It was thus not error for the Hearing Examiner to exclude the testimony of Dr. Hacker as being irrelevant and immaterial. Klaw, supra, and Tourlanes v. Summerfield, Civil Action No. 3635-55, U.S.D.C. D.C. 1955.

The Initial Decision of the Hearing Examiner is affirmed. An appropriate order will be issued.