In the Matter of the Complaint Against JEFFERSON CREATIONS, INC. at New York, New York P.O.D. Docket No. 1/87; 03/25/59 Ablard, Charles D.
On November 25, 1958, a complaint was filed by the General Counsel charging the Respondent with obtaining and attempting to obtain remittances of money through the mails for obscene matter and depositing in the mails circular advertisements giving information as to where obscene matter may be obtained. A hearing was held, proposed findings were filed by the parties, and an Initial Decision was rendered by the Hearing Examiner finding that the Respondent was depositing information in the mails as alleged but that the matter sent in response to the advertisement was not obscene. Exceptions to the second finding were filed by the Complainant on March 4, 1959, and to the first finding by the Respondent on March 5, 1959. The Complainant replied to the Respondent's exceptions on March 17, 1959, but the Respondent did not reply to those of the Complainant.
The exception of the Complainant is to the finding that the matter sold by the Respondent was not obscene. On motion of the Respondent, the Hearing Examiner took official notice of the proceeding of this Department involving The Master's Studio of Art, H.E. Docket No. 5/88, also operated by Sidney Poss, the owner and operator of the Respondent company. The Department found that the merchandise sold by that enterprise was not obscene. The examiner compared the merchandise in The Master's Studio case and the merchandise in this proceeding and found that it was so similar in
character that the prior decision of the Department controlled this proceeding. The Complainant excepts to this conclusion of the Hearing Examiner contending that stare decisis is inapplicable to administrative proceedings and that an agency is not bound by its earlier decisions. 1/
While this is an established rule, I believe that the Hearing Examiner was correct in ruling as he did if he believed that the Departmental decision in the former proceeding controlled this case. Although stare decisis does not bind the agency, 2/ the Hearing Examiner should follow agency precedent. If the agency desires not to follow prior decisions that is a decision for the agency and not the Hearing Examiner. In fairness to a litigant consistency is desirable. 3/ The argument is proper at this stage of the proceeding but was premature before the Hearing Examiner.
Although I agree with the Hearing Examiner's legal analysis, I believe that his factual analysis was incorrect and that there is a sufficient difference between some of the pictures involved in this proceeding and those involved in the prior proceeding as to warrant a finding that they are obscene without the necessity of reversing the prior decision. Department's exhibits 5A-5H are black and white pictures of a female, nude or semi-nude, except for gloves, shoes and hose, in a variety of provocative poses. In some she is sitting on or near a couch; in one she is "crawling a wall;" (Exhibit 5-C) in another she is "mounting" a bed (5E). Department Exhibits 5I and 5J are color slides showing a nude provocatively posed. In one she is standing wrapped around a bamboo curtain. In the other she is crouched on her knees with her hands partially covering the pubic region. Department Exhibit 5M is a movie depicting a nude model performing erotic and provocative gyrations on the floor. While there is no more of her body revealed than was revealed in the movie which was the subject of the prior proceeding, that movie consisted principally of statuesque poses with almost imperceptible movement. I find that these exhibits are obscene within the definition adopted by the Supreme Court in U.S. v. Roth, 354 U.S. 476. 4/ The other merchandise introduced into evidence, other color slides, is not obscene. The exception of the Complainant is allowed as to all the black and white pictures, the two color slides and the movie and disallowed as to the remainder. The finding is reversed as to the former and affirmed as to the latter.
The Respondent excepts to the finding that the advertisement gives information as to where obscene matter may be obtained stating that since the examiner found that the pictures sold by the Respondent were not obscene that this charge cannot stand. Although I have found that some of the pictures are obscene, this finding is not necessary to validate the charge of giving information. The two are separate and distinct and not inter-dependent. A reasonable man reading the circular would believe that Respondent would furnish him with obscene matter. The circular gives the "leer that promises obscenity." U.S. v. Hornick, 229 F.2d 120. 5/ The finding of the Hearing Examiner is adopted and affirmed. The exception of the Respondent is disallowed.
An appropriate order pursuant to the authority of 39 U.S. Code 259a will be issued.
1/ Kentucky Broadcasting Corp. v. F.C.C., 174 F.2d 38; State Airlines v. C.A.B., 174 F.2d 510.
2/ F.C.C. v. WOKO, 329 U.S. 223
3/ N.L.R.B. v. Mall Tool Co., 119 F.2d 700 (CA 7, 1941)
4/ "...The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly-wise and sophisticated, indifferent and unmoved ... The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards." (The charge to the jury in the trial district court which was approved by the Supreme Court.)
5/ Klaw v. Schaffer, 251 F.2d 615; Glanzman v. Schaffer, 252 F.2d 333.