In the Matter of the Complaint That ) June 30, 1959 ) CAMERART STUDIOS ) ) at ) ) New York, New York ) P.O.D. Docket No. 1/139 ) (hereinafter called Respondent) is ) engaged in conducting a scheme in ) violation of 39 U.S. Code 259a. ) APPEARANCES: Martin Benjamin, Esq. 217 Broadway New York, New York for the Respondent Saul J. Mindel, Esq. for the Complainant Ablard, Charles D.
On April 23, 1959, a complaint was filed by the General Counsel of the Post Office Department charging the Respondent with depositing or causing to be deposited in the mails advertisements which give information as to how obscene, lewd, lascivious and indecent matter might be obtained. The Complainant sought the issuance of an order pursuant to 39 U.S.C. 259(a) to prohibit the Respondent from receiving mail or cashing postal money orders. On April 27, 1959, the General Counsel petitioned for an interim impounding order pursuant to 39 U.S.C. 259(b). An order was issued by the undersigned on April 29, 1959, impounding the mail for twenty days.
The statute provides that at the end of the twenty day period, the order may be extended by the U.S. District Court. No extension of the order was sought. An answer was filed by the Respondent denying all material allegations but admitting that certain articles were mailed. The Complainant on May 20, 1959, moved that the Hearing Examiner render an oral initial decision. The hearing was held on Junr 4, 1959, and the examiner rendered an oral initial decision in which he found that the allegations of the complaint were true and recommended the issuance of the order against the Respondent.
On June 24, 1959, the Respondent filed a brief on appeal from the decision of the examiner. The brief presents five exceptions all of which go to the merits of the proceeding. In support of its position the Complainant relies on U.S. v. Hornick, 229 F.2d 120 (C.A. 3, 1956). 1/ It offered into evidence only the circulars mailed by the Respondent and not any material which was sent in response to those circulars. The Court in Hornick held that the criminal statute, 18 U.S.C. 1461, a comparable statute to the one upon which this proceeding is based, was violated by the mailing of circular matter. The court said:
"We have no doubt that the whole tone of both of these advertisements gives the leer that promises the customer some obscene pictures. Indeed, it has been held that under this section the announcement itself is not required on its face to promise obscene material if that is its purpose..."
"As we have already said, information as to where such obscene matter can be obtained shouts loudly from the words used by the advertising of the defendants. We do not think it is necessary that representations made in these advertisements be true. The statute says 'advertisement *** giving information.' The statute does not say that the advertisement must be true or that the information must be accurate. What is forbidden is advertising this kind of stuff by means of the United States mails. We think that the offense of using the mails to give information for obtaining obscene matter is committed even though what is sent in response to the advertisement to the gullible purchasers is as innocent as a Currier and Ives print or a Turner landscape."
The Hearing Examiner concluded, and I agree, that the tests of Hornick were met and that a reasonable man reading the circular at issue would believe that he would be furnished obscene pictures by the Respondent if he sent money requesting the matter advertised. The evidence speaks for itself. Similar matter was held to violate the obscenity statute in two recent decisions in the U.S. District Court for the Southern District of New York. 2/ The exceptions are disallowed.
The decisiion of the Hearing Examiner is affirmed and adopted. An order will issue.
1/ See also Klaw v. Schaffer, 251 F.2d 615 (C.A. 2, 1958); Glanzman v. Schaffer, 252 F.2d 333 (C.A. 2, 1958).
2/ Monart v. Christenberry, 168 F.Supp. 164 (S.D.N.Y., 1958); Glanzman v. Christenberry, (S.D.N.Y., Dec. 24, 1958).