In the Matter of FOUR STAR PUBLICATIONS, INC. and its application for entry of the publication known as REAL ACTION as second-class matter at New York, New York; and Buffalo, New York. H.E. Docket No. 5/215 May 6, 1958 William A. Duvall Hearing Officer POST OFFICE DEPARTMENT, OFFICE OF THE CHIEF HEARING EXAMINER, Washington 25, D.C.
On January 23, 1957, Star Publications, Inc. (Petitioner), filed an application (Respondent's Exhibit No. 1) for entry of the publication "Real Action" into the mails as second-class matter.
By written notice dated February 14, 1958 (Respondent's Exhibit No. 10), the Director, Division of Postal Services, Bureau of Operations, Post Office Department (Respondent), advised Petitioner that it was proposed to deny said application on the grounds, in substance, that the April, 1957, and the January, 1958, issues of the magazine (Respondent's Exhibits 5 and 9) are nonmailable within the meaning of Section 1461 of Title 18, United States Code, and that, therefore, the magazine is not entitled to entry into the mails as second-class matter under sections 224 and 226 of Title 39, United States Code. In this notice it was also stated with respect to the intervening issues, that is, those issues for June, August and November, 1957 (Respondent's Exhibits 6, 7 and 8), that while "they may not be denied dispatch in the Mails", they are not "entirely unobjectionable" and "would meet the bare minimum of the tests of mailability".
On February 21, 1958, a petition was filed by Petitioner asserting, among other things, that it is entitled to second-class entry for its publication because the said publication is not obscene or nonmailable. Petitioner also claimed a refund of $12,917.62, which sum represents the difference between the amount required for the payment of postage or the copies mailed and the amount deposited with the postmaster at Buffalo, New York. Petitioner requested a hearing and the issuance of an order requiring the Respondent to show cause why the proposed denial should not be reversed and the application for second-class entry granted.
The show-cause order sought by the Petitioner was issued and in response thereto an answer on behalf of the Respondent was filed on March 20, 1958. In the answer the above assertions of the Petitioner were denied, and the statements made in the proposed denial were affirmatively re-alleged.
The hearing was held before the undersigned duly designated Hearing Officer on March 27, 1958.
At the hearing, the following additional exhibits of the Respondent were received in evidence:
Exhibit Description
2 Agreement of Kable News Company,
distributor, to purchase 300,000
copies of "Real Action", with
return privilege.
3 Request of Petitioner for
additional entry permit for "Real
Action" at Buffalo, New York.
4 Supplemental POD Form 3501
showing sales figures for the
April, 1957, issue of "Real
Action."
After the receipt in evidence of the exhibits mentioned above, and a statement of position by Respondent's counsel, the Respondent rested.
Mr. Allen Stearn, the publisher of "Real Action", took the stand and testified on behalf of the Petitioner. Mr. Stearn's testimony is, of course, contained in the transcript of the hearing, and it is not necessary to summarize it here. In connection with Mr. Stearn's testimony there were received in evidence certain exhibits consisting of photostatic copies of checks of the Kable News Company payable to the postmaster at Buffalo, New York. These checks represent the payment of second-class postage on five issues of the magazine, plus an additional deposit made with respect to each mailing. There were also received in evidence the originals of five post office receipts for money (POD Form 3544, Aug. 1955) bearing the stamp of the Buffalo, New York, Post Office. Each of these receipts agrees in amount with one of the aforementioned checks of the Kable News Company. There were received finally, two pieces of adding machine tape: one, showing the total amount of postage and deposits to be $17,342.23; and the other, showing the amount of the claimed refund to be $12,917.62. Petitioner was advised that the decision with respect to the refund claim is not within the province of the Hearing Officer, but that the exhibits offered would be received to provide a proper basis for determination of this matter by the appropriate Departmental official.
The sole issue in this case is whether the publication "Real Action" is obscene, hence, nonmailable, and, therefore not eligible for entry into the mails as second-class matter. 1/
Obscene material, as defined by the Supreme Court in the case of Roth v. United States , (354 U. S. 476), is "material which deals with sex in a manner appealing to prurient interest". In this same case the Court said that in determining whether material comes within this definition the test is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest".
I have read the contents of each of the five issues of the magazine that have been published, and I have considered the photographs, advertisements, illustrations and cartoons. In conformity with the decision in the Roth case, the contents of these issues of the magazine have been considered as a whole. While it is clear from a reading of some of the stories that there are certain portions of the magazine which, if considered alone, would give rise to serious question as to their mailability, I can not find that the dominant theme of all of the material, considered together, is one of sex so treated as to appeal to prurient interest. Similarly, the questionable material is not contained so frequently and its character is not so grossly objectionable as to warrant the recommendation that the application be denied under the doctrine announced in Milwaukee Social Democratic Publishing Co. v. Burleson , 255 U. S. 407. Although it has not been the determining factor to me, this conclusion finds some support in the concession by the Respondent that three copies of the publication are mailable, even though it is insisted that they are only "slightly mailable". It is desirable to point out, that in reaching this conclusion cognizance has been taken of the fact that "neither the number of 'objectionable' passages nor the proportion they bear to the whole book are controlling". ( Besig v. United States , 208 F. (2d) 142).
Petitioner's proposed findings of fact numbered 1 through 6 and 8 through 15 are adopted. Proposed finding number 7 is adopted to the extent that copies of five issues of the publication were presented and accepted for mailing. In view of the finding herein with respect to all of the issues of the magazine, considered as a whole, proposed findings numbered 16, 17 and 18 are neither adopted nor denied. Proposed findings numbered 19 and 20 have been disposed of earlier in the report, however, it appears that there are typographical or mathematical, or both types, of errors in proposed finding number 19. Petitioner's exhibits contain the accurate figures.
Petitioner's proposed conclusions of law numbered 1, 2 and 3 are disposed of in the conclusion of law with respect to the contents of all five issues of the publication considered as a whole. Proposed conclusions of law numbered 4 and 5 are adopted, and proposed conclusion number 6 has been disposed of earlier.
Respondent's proposed Finding of Fact and Conclusions of Law are denied for reasons herein stated.
The five issues of the publication "Real Action" which are the subject of the proceeding, considered as a whole, are not dominated by pictures and textual matter dealing with sex in a manner appealing to prurient interest, and they are, therefore, not obscene, lewd, lascivious and indecent within the intendment of section 1461, title 18, United States Code.
The five issues of the publication "Real Action" which are the subject of the proceeding, are mailable matter and are entitled to entry into the mails as second-class matter in accordance with the provisions of sections 224 and 226 of title 39, United States Code.
It is recommended that the Petitioner's application for entry into the mails as second-class matter of the publication entitled "Real Action" be granted.
1/ Respondent moved, after all the testimony was in and just before the hearing was closed, to amend the answer so as to add as any additional issue the charge that the publisher failed to maintain the required periodicity or frequency of publication. This motion was denied because of its untimeliness and because of lack of notice to the Petitioner. No motion for a continuance or recess was made.