In the Matter of the Petition by

 ZEST PUBLISHING COMPANY, INC.,
 at Chicago, Illinois

 for a second-class mail permit for "ZING" magazine.  

 P.O.D. Docket No. 1/234

 May 25, 1961

 Jesse B. Messitte Hearing Examiner

 POST OFFICE DEPARTMENT, WASHINGTON, D.C.

 APPEARANCES:
 Nathan T. Notkin, Esq. 
 Chicago, Illinois for the Petitioner

 Saul J. Mindel, Esq. 
 Eugene P. White, Esq. 
 Office of the General Counsel
 Post Office Department for the Respondent

The Petitioner published and distributed fifteen issues of a magazine called Zing. The first issue is dated March 1959. The last issue is dated July 1960. Publication ceased with the July 1960 issue. The fifteen issues are dated: March, May, June, July, August (2 issues), October and November (1959); January, February, March, April, May, June and July (1960). Petitioner claims it is entitled to second-class mailing privileges for, at lease, some of the issues. This, the Respondent denies. A question of nonmailability because obscenity of certain issues is also raised by the pleadings.

For reasons set forth below, this Hearing Examiner has determined that Petitioner is not entitled to second-class mailing privileges in respect to any of the fifteen issues of Zing. The Petitioner by its President, Frank H. Adams, on March 9, 1959 filed with the postmaster at Chicago, Illinois an application for second-class mail privileges for a publication titled "Zing" to be issued "monthly". A supplemental application was filed by Petitioner April 29, 1959.

Petitioner's application, as supplemented, was forwarded by the postmaster at Chicago to the Respondent, who is Director of the Postal Services Division, Bureau of Operations, Post Office Department. By letter dated January 29, 1960 the Respondent notified the Petitioner of the denial of its application of March 9, 1959 (as supplemented) because of (1) failure to issue the publication regularly at stated intervals under the "monthly frequency" as required by statute (39 U.S.C. 224 and 226) and (2) nonmailability under 18 U.S.C. 1461 of specified issues of the publication. The Petitioner disagreed and on March 2, 1960 it filed a petition seeking a determination that it is entitled to second-class mailing privileges for some or all of the issues of Zing. The substance of the allegations of the petition were, in effect, that: the alleged irregularity in issuance of the publication, as evidenced by the failure to publish a December 1959 issue, was not such as justify the denial of second-class mail privileges; obscenity of the issues of the publication specified by Respondent (May, June, July and October, -- 1959) has not been shown and the Respondent is in error in declaring the magazine nonmailable because of obscenity.

The Respondent, by his counsel, filed an answer on March 17, 1960 alleging, among other things: irregularity of publication of Zing is shown by failure to publish April, September and December -- 1959 -- issues; Respondent's view of nonmailability of Zing under 18 U.S.C. 1461 because of obscenity of the May, June, July and October -- 1959 -- issues is not erroneous; the March and November -- 1959 -- issues are also obscene under 18 U.S.C. 1461.

In a reply to the answer, Petitioner, by its counsel, in effect alleged so far as here pertinent: the first issue of Zing was dated March 1959 but was actually issued in April 1959 and should have been dated April 1959; there were two issues (Volume 1 No. 5 and Volume 1 No. 6) dated August 1959 but Volume 1 No. 6 should have been dated September 1959.

A hearing was held before this Hearing Examiner at Washington, D. C., April 19 and 20, 1960. Various exhibits were received in evidence and the testimony of Dr. Frank Caprio, a psychiatrist who has written much about psychiatry and homosexuality, was heard. Thereafter, the hearing was continued at Chicago, Illinois on May 3, 1960. At that time, additional exhibits were received in evidence and Frank H. Adams, Petitioner's president, testified.

On or about June 15, 1960 proposed findings of fact and conclusions of law were filed on behalf of each of the parties.

Because the parties were, at the suggestion of the Hearing Examiner, engaged in conscientious efforts to settle this matter informally under Rule 2 of the applicable Rules of Practice (24 F.R. 3592) this Hearing Examiner deferred issuance of an Initial Decision. On January 12, 1961 Respondent's counsel reported to this Hearing Examiner that: efforts at informal disposition of the matter had failed; the magazine Zing was no longer being published; all that remained, therefore, was the question of whether the Petitioner is entitled to a refund of any money deposited, as postage for mailing Zing in the past, in excess of second-class mail rates; second-class entry would have no future use or value because the magazine was defunct. The Respondent also moved (a) for denial of second-class entry on the record of the proceeding on the basis of irregularity in maintaining monthly publication and obscenity of various issues or (b) to reopen the record to receive in evidence the June and July -- 1960 -- issues of Zing to show a continued history of obscene content. The Petitioner in answer to the Respondent's motion pointed out, among other things, that the June and July 1960 issues were not sent through the mails and also denied that the content of those issues were obscene and therefore, nonmailable.

By order dated January 26, 1961 this Hearing Examiner reopened the record for the purpose of receiving certain additional evidence. Pursuant to the order of January 26, 1961 the parties filed a stipulation on March 22, 1961 supplying for the record: (a) as exhibits, Petitioner's issues of Zing dated June and July -- 1960 -- and (b) the evidential fact that the Petitioner ceased publication of Zing in June 1960, the last issue being dated July 1960 (alleged reason for cessation being postage cost in excess of second-class rate).

This Hearing Examiner afforded the parties an opportunity to file supplemental proposed findings of fact and conclusions of law on or before March 31, 1961. Respondent made such a supplemental filing on March 30, 1961. Petitioner did not file anything further.

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The matters, in dispute, broadly stated are: (a) whether Petitioner regularly issued in accordance with its statement of frequency (monthly) the publication Zing so as to conform to applicable statute 39 U.S.C. 224, 226 and the related postal regulation, and (b) whether the March, May, June, July, October and November -- 1959 -- and the June and July -- 1960 -- issues of Zing are, within the meaning of 18 U.S.C. 1461 obscene, lewd, lascivious or indecent so as to be nonmailable, and in addition so as to present a pattern of nonmailability justifying denial of second-class entry to other issues admittedly not obscene (August - September -- 1959 -- January, February, March, April, May -- 1960) on a legal theory allegedly analogous to the ruling of the majority of the Supreme Court in Milwaukee Social Democrat Publishing Co. v. Burleson , 255 U.S. 407 (1921).

For reasons detailed below this Initial Decision, if it becomes final, determines: (a) that where a publisher, which issues fifteen issues of a publication during a period of seventeen months and then ceases publication, has adopted a monthly frequency and fails to publish in the second and tenth month, the publisher has not, under the circumstances here presented, met an essential requirement of 39 U.S.C. 224 and 226 and is therefore not entitled to second-class mailing privileges for any of the fifteen issues; (b) certain issues (March, May, June, July, October and November -- 1959 -- June and July -- 1960) are obscene within the meaning of 18 U.S.C. 1461; such issues are therefore nonmailable on that account; but other issues are not thereby rendered nonmailable.

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The pertinent portions of applicable statutes and regulations are set forth below.

39 U.S.C. 224 contains the following language:

"Mailable matter of the second class shall embrace *** periodicals which are issued at stated intervals and as frequently as four times a year and are within the conditions named in *** 226 of this title".

39 U.S.C. 226 includes the words:

"Except as otherwise provided by law, the conditions upon which a publication shall be admitted to the second class are as follows: First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively. * * *"

The regulation, embodied in Postal Manual 132.221, is a reasonable implementation of 39 U.S.C. 224 and 226. That regulation states:

"Regular Issuance. Publishers must determine the number of issues they will publish each year and adopt a statement of frequency that will show at what regular intervals the issues will appear. Examples of statements of frequency are ** Weekly ** Monthly ** Quarterly ** A publication may not be published under a frequency that provides for less than four issues each year. Issues must be published regularly as called for by the statement of frequency. Publishers may change the number of issues scheduled, and adopt a new statement of frequency by filing an application for second-class reentry. * * *"

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18 U.S.C. 1461 states:

"Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and --

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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 *****

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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.

Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or *** knowingly takes any such thing from the mails for the purpose of circulating *** thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.

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The regulations embodied in the Postal Manual include the following:

Nonmailable matter includes: "Obscene, lewd, lascivious or filthy publications or writings, or mail containing information concerning where, how or from whom such may be obtained *****". (Postal Manual Sec. 124.41)

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"*** periodical publications may be mailed at the second-class rates. The copies may not contain obscene *** material that would cause them to be nonmailable under the provisions of part 124". (Postal Manual Sec. 132.211)

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Based upon study of the entire record and applicable law, this Hearing Examiner makes findings of fact and reaches conclusions of law, as follows.

1. During the period between March 1, 1959 and July 1, 1960 the Petitioner published fifteen issues of a publication called Zing.

2. Petitioner on March 9, 1959 informed the Post Office Department in writing that the publication called Zing was to be issued monthly. The Petitioner planned the first issue for March 1959 and it was dated March 1959.

3. There was no issue of Zing for the month of April 1959. (The Petitioner's claim that the issue labelled March 1959 was so labelled because of a printer's error is not supported by evidence worthy of credence and believed by this Hearing Examiner. Two letters sent by Petitioner's president, Frank H. Adams, to the postmaster at Chicago tend to show issues for March and April 1959 were expected. There is no explanation, satisfactory to this Hearing Examiner, concerning the omission by Petitioner of an issue for April 1959 and so dated).

4. There was no issue for the month of December 1959. This Petitioner concedes. (At the hearing on May 3, 1961 the Petitioner's president testified the omission of the December 1959 issue was caused by a fire at a printing plant on October 4, 1959. The credibility of this testimony is shaken greatly by the fact that in a letter on January 4, 1960 Petitioner's president specified only one reason for missing the December issue, namely "limited funds". And in the petition of March 2, 1960 filed herein it was alleged, in respect to the December 1959 omission, that "the January 1960 issue was published in December 1959 and could have been dated December 1959, but having come so close to the end of the month, the publisher decided to call it the January 1960 issue". The failure of Petitioner to have mentioned so dramatic occurrence as a fire in the letter of January 4, 1960 or in the petition of March 2, 1960 leads me to disbelieve the testimony of Petitioner's president concerning the fire being the cause of the omitted December issue).

5. Two issues were dated August 1959 and none was dated September 1959. This, too, the Petitioner's president claimed was a printer's error.

6. In June 1960 the Petitioner ceased the publication of Zing and the last issue was dated July 1960.

7. Each of the fifteen issues of Petitioner's publication Zing was consecutively numbered as follows: March 1959 - Vol. 1, No. 1; May 1959 - Vol. 1, No. 2; June 1959 - Vol. 1, No. 3; July 1959 - Vol. 1, No. 4; August 1959 - Vol. 1, No. 5; August 1959 - Vol. 1, No. 6; October 1959 - Vol. 1, No. 7; November 1959 - Vol. 1, No. 8; January 1960 - Vol. 1, No. 9; February 1960 - Vol. 1, No. 10; March 1960 - Vol. 1, No. 11; April 1960 - Vol. 1, No. 12; May 1960 - Vol. 1, No. 13; June 1960 - Vol. 1, No. 14; July 1960 - Vol. 1, No. 15.

8. Petitioner did not regularly issue Zing at the stated monthly intervals between March 1, 1959 to July 1, 1960 or thereafter but in fact omitted the April 1959 issue, the December 1959 issue and all issues after the July 1960 issue.

9. The issue of Zing Vol. 1, No. 6, perhaps, does not bear a correct date of issue. It is dated August 1959 but the correct date probably should have been September 1959. (If it were correctly dated August 1959 then two issues would have been published in August 1959 and none for September 1959 thus further evidencing Petitioner's failure to issue Zing regularly at the stated monthly intervals).

10. As a matter of law, Petitioner failed to meet the requirement of 39 U.S.C. 224 and 226 for regular issuance of Zing each month during the period from March 1, 1959 to July 1, 1960 - or thereafter. Such failure, on the basis of the facts found above, disentitles Petitioner to second-class mailing privileges (and the low second-class postage rates which in effect constitute a government subsidy) for any of the fifteen issues of Zing.

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11. As a matter of fact and also as a matter of law, the March, May, June, July, October and November -- 1959 -- as well as the June and July -- 1960 -- issues of Zing are obscene within the meaning of 18 U.S.C. 1461. Roth v. United States , 354 U.S. 476 (1957) as interpreted and applied in Manual Enterprises, Inc. v. Day , No. 16,072 decided March 23, 1961, U. S. Court of Appeals D. C.

(a) Those issues are devoted largely to pictures of young men in the nude or nearly so.

(b) In many of such pictures: the subjects are so posed as to focus attention on genitals or buttocks; the emphasis on genitals or buttocks is heightened by abbreviated, tight and revealing covering, such as "posing straps".

(c) In some such pictures, the posture of the models strongly suggests a male homosexual relationship. In others an object (such as sword or club) is used and this is a significant symbol in sexual fantasies of deviants within the male homosexual group.

(d) Much of the advertising is for the sale of photographs or movies of nude or nearly nude males; some of the advertising gives information as to where, how and from whom obscene pictures may be obtained.

(e) The foregoing content has definite appeal to some male homosexuals and the appeal is to the prurient interest of such individuals. Not every appeal to the prurient interest of homosexuals will render a publication obscene under 18 U.S.C. 1461. (See One, Inc. v. Oleson , 355 U.S. 371, 1958, rev'g. 241 F.2d 772 - CCA 9 - 1957).

(f) The content, as outlined above, is designed by Petitioner to appeal to the prurient interest of male homosexuals.

(g) The dominant effect of each of the above-designated issues, considered in its entirety, is an appeal to the prurient interest of the average reader, such average reader being the male homosexual whose sex fantasies are aided and abetted by pictures of nude males and the like.

(h) There are items in some of these issues concerning barbell exercises, physical fitness activities, proper diet or the like of a nature quite appropriate for physical culture magazines but these items are quite unrelated to the "posing straps", the swords and the nudity and posture of the photographic models, all referred to above. (See Flying Eagle Publications, Inc. v. U. S. , 285 F.2d 307, 308 - CCA 1 - 1961. "An obscene picture of a Roman orgy would be no less so because accompanied by an account of a Sunday school picnic which omitted the offensive details".

(i) The content of the magazines (pictorial and advertising) which appeals strongly to the prurient interest of some male homosexuals is not significantly affected or offset or outweighed by any literary, physical culture or other content. (In this respect at least this case may differ from Sunshine Book Company v. Summerfield , 355 U.S. 372 - 1958 - rev'g. 249 F.2d 114 - C.A.D.C. - 1957).

(j) One may ask - if pictures of nudes in the context of a magazine dealing with nudist colony activities were not obscene under 18 U.S.C. 1461 ( Sunshine Book Company v. Summerfield , 355 U.S. 372 - 1958; Roth v. U. S. , supra) - and if a magazine beamed at homosexuals with some content appealing to their prurient interest is not obscene under 18 U.S.C. 1461 ( One, Inc. v. Oleson , supra; Roth v. U. S. , supra) - why are the pictures of nude or nearly nude males etc. in certain issues of Zing such as to make the magazines obscene under 18 U.S.C. 1461 as construed in Roth v. U.S. ? The answer for me, at this time, is to be found in the decision of the U. S. Court of Appeals for the District of Columbia in Manual Enterprises, Inc. v. Day , supra, and the Departmental (Post Office Judicial Officer) and District Court decisions which were there reviewed. I consider the present case, on the question of obscenity under 18 U.S.C. 1461, controlled by those decisions in the Manual Enterprises case. The present case is evidentially weaker than in Manual but I consider the evidence adequate to justify a similar finding and conclusion concerning obscenity.

12. Although the issues of Zing, specified in 11 above are nonmailable under 18 U.S.C. 1461 ( Manual Enterprises, Inc. v. Day , supra) that does not authorize the Respondent to refuse mail privileges to other issues (August 1959, January - May 1960) or to future unpublished issues of the magazine, if there were any. (See Summerfield v. Sunshine Book Company , 221 F.2d 42, C.A.D.C. - 1954; cert. den. 349 U.S. 921 - 1955). Milwaukee Social Democrat Publishing Co. v. Burleson , supra, is not applicable.

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All proposed findings and conclusions submitted are adopted to the extent embodied herein. Otherwise they are rejected as irrelevant, immaterial or not established by the evidence and applicable law.