In the Matter of the Complaint That parcels containing books, magazines, and advertising circulars mailed by TELESPANO PRODUCTIONS 139 West 72nd Street, New York 23, New York are nonmailable under 18 U.S.C. 1461. P.O.D. Docket No. 1/210 May 19, 1960 William A. Duvall Chief Hearing Examiner POST OFFICE DEPARTMENT, WASHINGTON, D. C. APPEARANCES: Saul J. Mindel, Esq. Office of the General Counsel Post Office Department for the Complainant Martin Benjamin, Esq. 217 Broadway New York 7, New York for the Mailer
This case involves the mailability of certain parcels which were deposited for mailing at New York, New York, by the Mailer, Telespano Productions, 139 West 72nd Street, New York 23, New York.
The Complainant, the General Counsel for the Post Office Department, filed a complaint alleging that because of the nature of their contents the parcels are nonmailable under the provisions of Section 1461, Title 18, United States Code.
Specifically, there are involved the following items:
I Books
A. Viviendo entre Prostitutos (Living Among Prostitutes)
B. El Diario de Una Masojista (The Diary of a Masseuse)
C. Sieta Cuentos de Amor (Seven Love Stories)
D. La Desnudo el Amor (Love Undressed Her)
E. La Voluptuosa (The Voluptuous Woman)
F. La Filosofia de las Cortesanis (The Philosophy of Courtesans)
G. La Cortina Rojo (The Red Curtain)
H. La Senorita del Mono Oxigenado (The Girl With the Dyed Chignon)
I. Miss Kate y Su Amigos (Miss Kate and Her Friends)
J. Venus en el Claustro (Venus in the Cloister)
K. Enciclopedia de la Sexualidad (Encyclopedia of Sexuality)
L. El Embarazo (Pregnancy)
M. Educacion Sexual (Sexual Education)
II Magazines
A. The publication "Pimienta]" (Hot Pepper) for the months November, 1958 - August, 1959, inclusive; October and December, 1959; and January and February, 1960. 1/
III Advertising Circulars which contain descriptions of and offer for sale the books listed under I, above.
This case came on for hearing before me on January 14, 1960, and both parties were represented by counsel who participated in the examination and cross-examination of the witness. The document constituting the Complainant's proposed findings of fact, conclusions of law and supporting brief was filed on April 1, 1960, but, although at his motion the date for filing proposed findings and conclusions was extended to April 1, 1960, no such document was submitted by counsel for the Mailer.
In total, there are approximately ninety-nine parcels of books and approximately twenty-seven hundred copies of the various issues of the magazines being withheld from dispatch in the mails pending the outcome of this proceeding. Most of the parcels contain one or more of the books alleged to be violative of the statute and some of the parcels contain books not so charged. Of the thirteen books listed above, the first ten are alleged to be nonmailable because they are obscene, while the last three are said to be nonmailable because they contain information as to how and by what means conception may be prevented. Each parcel also contains the circulars in which the Mailer describes and offers for sale the challenged books. Except for the two most recent issues, each copy of the magazine contains an advertisement describing and offering for sale the challenged books; and all of the magazines, themselves, are alleged to be obscene.
The statute invoked reads, in pertinent part, as follows:
Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and--
* * * * * * * *
Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means conception may be prevented or abortion produced, whether sealed or unsealed; and
Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for preventing conception or producing abortion, or for any indecent or immoral purpose; and
Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing--
Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
The problem now, of course, is to determine whether the material which is the subject-matter of this case contravenes the provisions of the foregoing statute. This leads to an unusual feature of this proceeding.
All of the printed matter involved, except for a few scattered and unimportant words, are in the Spanish language, of which the undersigned has only a limited knowledge. The only witness who testified at the hearing was Miss Elsie P. Brown, a translator in the Bureau of the Chief Inspector for the Post Office Department. Miss Brown identified and vouched for the accuracy of written translations and resumes that she had made of the books and certain portions of the circulars and magazines. In view of the necessity of considering the material as a whole, it was recognized that reaching a decision in this case on the basis of the translations presented a substantial problem. As a solution, it was suggested that a copy of each translation be furnished to counsel for the Respondent, who, within twenty days after the date of the hearing, would advise the undersigned whether the Respondent agreed or disagreed with the fairness and accuracy of the translations. (Tr. 28 and 64) In addition, counsel for the Respondent was asked the following question by the undersigned (Tr. 34):
"*** If your translator agrees with the translations and the summary made by Miss Brown, do you agree that I may reach a determination of the issues in this case based upon the material contained in Exhibits 28 through 43 [translations and summaries] without going further into the publications themselves?
Mr. Benjamin: Yes."
On February 5, 1960, no communication having been received from Respondent's counsel, the undersigned wrote a letter to Respondent's counsel, the first paragraph of which reads as follows:
At page 63 of the transcript of the hearing in the subject case you indicated that you would furnish within twenty (20) days after the close of the hearing a statement as to whether a translator employed by your or your client agrees or disagrees with the translations of the materials involved prepared by the Department's translator, Miss Brown. It would be appreciated if you would expedite the submission of this statement. If you are having some difficulty or delay in connection with the translation of this material please advise me at your earliest convenience.
This letter was not answered nor its receipt acknowledged by counsel.
On February 15, 1960, the parties were advised by order that if no comments with respect to the said translations were received by February 29, 1960, it would be presumed that the Mailer concurs with all of them. Subsequently, on or about March 24, 1960, counsel for the Respondent was granted an extension of time to April 1, 1960, within which to file proposed findings of fact, conclusions of law and supporting reasons. It already has been pointed out that no such document has been filed by the Respondent.
The purpose of the recitation of these facts, all of which appear in the official file of the case, is to indicate that every reasonable effort has been made to extend to the Respondent every opportunity to show by whatever means are available that the translations and summaries prepared by the Department's witness do not fairly and accurately reflect the nature and tenor of the material of which they purport to be translations and resumes. No such showing having been made or attempted, it is presumed that none could be made. Furthermore, there was no attempt on behalf of the Respondent to show that any of the material sold or published by it is of any literary or artistic merit and thereby entitled to be transported in the mails. It must be presumed that the Respondent concedes that no such merit attaches to the material involved in this case.
Passing now to the basic questions, the translations of the first ten of the books listed hereinbefore are not included in this Initial Decision because the material is so obscene and filthy that it would be improper to have it spread upon these pages, when to do so would only serve to further its dissemination. Suffice it to say that there is presented and luridly described almost every sexual practice, perversion and depravity. By any recognized and proper standard, including the one announced in Roth v. United States , 354 U. S. 476, I find these books to be obscene. The remainder of the books are shown by their translations to contain information as to how and by what means to prevent conception.
One of the cases cited with approval in the Roth case was United States v. One Book Entitled "Ulysses" by James Joyce , 72 F.(2d) 705. 2/ In this case the Court said: "While any construction of the statute that will fit all cases is difficult, we believe that the proper test of whether a given book is obscene is its dominant effect." Applying this standard to the various issues of "Pimienta]", I find that they are obscene. In all of the issues there are many photographs of nude or nearly nude females in provocative and suggestive poses; the articles largely deal with sex in a manner appealing to prurient interest; and there are many advertisements, some of which are illustrated, offering to sell pictures of nude or slightly clad girls. This predominantly prurient appeal is not overcome by a few pages on politics, baseball and entertainment. In addition, all but the last two issues of this publication contain advertisements of the books which have been found to be obscene or which have been found to contain contraceptive information.
I find that the circulars, of which Department's Exhibits 6-A through 6-A-4 are examples, are obscene because of their appeal to the prurient interest of the prospective purchaser. Furthermore, the circulars, of which Department's Exhibit 6-A is an example, contains advertisements of books which contain information as to how and by what means conception may be prevented.
Upon the basis of the foregoing findings of fact, which encompass the adoption of the proposed findings of fact submitted by the Complainant, I conclude that as a matter of law the material which is the subject matter of this proceeding is nonmailable under the provisions of Section 1461 of Title 18, United States Code.
1/ The February, 1960, issue of "Pimienta" was added to the complaint by amendment.
2/ Cited at 354 U. S. 489, footnote 26.