In the Matter of

 BOWERY ENTERPRISES
 171 East 33rd St.,
 New York 16, New York.  

 P.O.D. Docket No. M/11

 November 19, 1958

 Charles D. Ablard Judicial Officer

 POST OFFICE DEPARTMENT, WASHINGTON, D.C.

On November 5, 1958, a Notice of Mailability Hearing was issued to Bowery Enterprises informing them that 9,730 circulars of their corporation were being held at the Post Office in New York because it was believed that they were non-mailable under the provisions of 18 U.S.C. 1461, the criminal obscenity statute. The mailer filed an answer on November 7, 1958, in which the defenses were made that the Post Office Department lacked statutory and constitutional authority for such a proceeding, that a prior proceeding against the enterprise constituted res adjudicata and that the circulars did not violate the act.

A hearing was held on November 14th in New York City at the General Post Office before the Judicial Officer. At the hearing, the complainant amended the notice to include two additional groups of identical circulars which had been withheld after the notice bringing the total number detained to 14,771. A sample of each group consisting of circulars, order blanks and envelopes was introduced into evidence. (Exhibits A-2-5, B-2-5, C-2-5.) Also introduced were the memoranda from the Postmaster at New York to the General Counsel which initiated the proceedings and transmitted the materials to the General Counsel. (A-1, B-1, and C-1.)

The mailer made several preliminary motions to dismiss based upon the contentions set forth in his answer. The motions, arguments and the rulings thereon are reflected in the transcript. All of the motions were denied by the Judicial Officer.

The mailer challenged the jurisdiction of the Post Office Department to proceed administratively under 18 U.S.C. 1461. The United States Supreme Court in Sunshine v. Summerfield , 355 U.S. 372, reversed, per curiam, a decision of the Court of Appeals of the District of Columbia, 249 F.2nd 114, citing U.S. v. Roth , 354 U.S. 476. The same day the court also reversed per curiam U.S. v. One also citing only Roth . The Court of Appeals in Sunshine had held that the Post Office by the language of Section 1461 had authority to withhold from the mails, after a hearing, matter that was deemed to be non-mailable. Three judges dissented saying that there was no administrative authority. The question raised by the mailer is to the effect the two per curiam reversals of the Supreme Court had upon the authority of the Post Office Department. The sole issue raised in the petition for certiorari in One was whether the publication was obscene and therefore non-mailable. In addition to the question of obscenity other issues such as interpretation of Section 1461 were raised in Sunshine .

The Supreme Court's Rule No. 15(c)1 provides that "only questions set forth in the jurisdictional statement or fairly comprised therein will be considered by the Court." Thus the Court was precluded from considering any but those issues raised by the petitioner. The next problem is what issues raised by the petitioners were in fact decided by the Court. Since the sole citation in both Sunshine and One is U.S. v. Roth , we must look to see what was said in Roth which would affect the issues raised in Sunshine and One . There was no question of statutory construction or Post Office Department authority or procedure in Roth since that was a criminal matter. Therefore, it would appear that those additional issues concerning the authority of the Post Office Department raised in Sunshine were not passed upon by the Court. The sole remaining issue for consideration by the Court was the obscenity of the publications in question. The standard to be applied in such a determination had been established by the Court in Roth . I believe that the Court passed solely on that issue and not on the question of Post Office Department authority. Therefore, I believe the decision of the Court of Appeals of the District of Columbia as to the authority of the Post Office Department to proceed under Section 1461 was not modified.

The constitutional question is not for determination by an administrative agency. Engineers Public Service Corporation v. S.E.C. , 138 F.2d 936. The former proceeding against Bowery Enterprises does not constitute res adjudicata since it was a different type of proceeding and there was different evidence.

The circulars of Bowery Enterprises introduced into evidence speak for themselves. They contain a large picture on the first sheet of one Betty Page sitting semi-nude on a stool with her legs spread and her arms in a vertical position on the stool between her legs. The rest of the circular consists of approximately forty small pictures of nudes or semi-nudes in various provocative poses. There are squares for the recipient to check the various slides and motion pictures which he desires to order.

The complainant alleges that these circulars violate 18 U.S.C. 1461 under the theory of U.S. v. Hornick , 229 F.2nd 120, (3rd Circuit 1956.) That decision held that the statute was violated if circular material was sent through the mail which gave "the leer that promises obscenity". The court held that it was immaterial that the matter which was actually furnished in response to the circular was not obscene. 1 .

I believe that the circulars in question in this proceeding are non-mailable. The pictures contained in the circular are sufficiently within the purview of the Hornick theory in that I believe a reasonable man in observing this circular would believe that material which he would order would be obscene material.

The 14,771 circulars held by the Post Office in New York are not to be carried in the mails now or at any time in the future. They should not be redeposited for mailing and, if they are, they should be refused by the Postmaster. They should be held for a period of fifteen days during which time the mailer may receive them from the Postmaster. If the mailer has not received them within the expiration of that time, they should be destroyed unless the Postmaster is instructed otherwise by this office or a Federal Court. 2 .

1. This interpretation of the statute was adopted by the Court of Appeals of the Second Circuit in Klaw v. Schaffer , 151 F. Supp. 534, 540; Affirmed 251 F.2nd 615 and Glanzman v. Schaffer , 143 F. Supp. 243, 247; Affirmed 252 F.2nd 333.

2. 39 U.S.C. 258 provides that the Post Office Department may instruct as to the disposition of non-mailable matters.