In the Matter of the Petition by CHARLTON PUBLICATIONS, INC. Charlton Building, Derby, Connecticut and its application for entry as as second-class matter of its publication entitled "ACTUAL CONFESSIONS". P.O.D. Docket No. 1/287 July 26, 1961 Gerard N. Byrne Hearing Examiner POST OFFICE DEPARTMENT, Washington, D. C.,
This case came on to be heard before me on December 8, 1960, and February 15, 1961, upon the petition of the Charlton Publications, Inc. (hereinafter referred to as "Petitioner") for "review of proposed denials of second-class entry" for the magazine "Actual Confessions," a bimonthly publication owned by Petitioner. Proposed findings of fact and conclusions of law with supporting briefs were submitted by both sides on May 15, 1961.
The Petitioner alleged that the April and June issues (1960) of that publication had been denied entry as second-class matter for the following stated reasons:
(a) That it is regarded as non-mailable pursuant to 18 U.S.C.A. 1461.
(b) That it has not been established that all issues of ACTUAL CONFESSIONS constitute mailable matter within the meaning of 18 U.S.C.A. 1461 and 39 U.S.C.A. 224.
(c) That the information does not show compliance with requirements of 39 U.S.C.A. 226 and the pertinent provisions of the Postal Manual and Code of Federal Regulations.
(d) That none were sold to individual subscribers paying the full advertised subscription price.
(e) That no information was made available regarding newsstand sales and returns.
And, the Petitioner asserted that it was entitled to such entry under the law and court decisions. By way of answer, the Director, Postal Services Division, Bureau of Operations, Post Office Department (hereinafter referred to as "Respondent"), traversed these allegations and all other statements contained in the Petition. Subsequently by motion, unopposed, the Respondent amended his answer to include the issues of "Actual Confessions" for August, October and December, (1960) as nonmailable publications in this proceeding.
At the opening of the hearing a conference was held between counsel for the respective parties, as a result of which it was stipulated and agreed that the only issue to be tried and determined in this proceeding was that of mailability of the bi-monthly issues mentioned, pursuant to 18 U.S.C. 1461 and Section 124.31 of the Postal Regulations. Nonmailable publications are not eligible for second-class entry pursuant to 39 U.S.C. 224, (now 39 U.S.C. 4354) and Section 132.21 of the Postal Regulations. Shortly stated, this requires a finding as to whether or not the said issues of the magazine "Actual Confessions" are "obscene, lewd, lascivious, indecent, filthy, or vile" within the meaning of the statute (18 U.S.C. 1461) and the applicable cases.
The parties jointly introduced "Joint Exhibits" numbered 1 through 17, of which those numbered 9, 10, 11, 12, 13 and 14 consisted of copies of the magazine "Actual Confessions" for April, June, August, October and December, 1960, and for February 1961, with the remaining Joint Exhibits consisting of correspondence and reports between the parties. The latter exhibits will not be considered in view of the stipulation, supra; the copies of the magazine constitute, of course, the gravamen of this complaint.
Counsel for the Petitioner then moved that a statement be made to the effect that the burden of proof in this case rests on the Respondent, although, upon interrogation, he admitted that the burden of going forward with proof together with the right or duty to open and close rested on the Petitioner. A decision was tentatively made to the effect that the burden of proof in this case was on the Petitioner, subject to any showing to the contrary that might be made in a brief.
The Petitioner then opened with the testimony of Burton N. Levey, Treasurer of the Petitioner. Mr. Levey testified that the magazine, Actual Confessions, is distributed nationally through approximately half of the total of 150,000 newsstands, and approximately half or more of the 1,000 or more wholesale distributors; that at least 10% to 15% of the circulation is accomplished through galley wholesale distributors; that "galley distributors" serve sparsely-settled areas by breaking down packages of the magazine and re-shipping to retailers by mail rather than by privately-owned conveyances; that wholesale distributors operate in at least 600 to 700 cities in the nation; that distribution by way of galley distributors would probably be infeasible economically without second-class rates; that the February 1961 issue was distributed to a Washington, D. C. wholesaler in the number of 2,000 copies; that the same issue was distributed to wholesalers in New York City in the total number of 10,300 copies; that similar figures for Los Angeles, California are 3,700; that such distribution in Connecticut totalled at least 1,250; and that similar figures for Newark - North Bergen, New Jersey, are 6,000 copies.
The next witness, Ernest H. Hart, testified that he had been the editor of Actual Confessions since August 15, 1960 commencing with the issue dated December 1960; that he has been connected with the publishing business for some 20 years as a free-lance writer, artist and illustrator for publishing houses situated for the most part in New York; that he so worked for Goodman Publishing Company for some 10 years from 1943 or 1944; that he was editor for Practical Science Publishing Company for the period 1954-1958; that he furnished material for other publishers such as Dodd-Mead, Doubleday, Herman Stevens, Little Brown & Company and others. He further testified on direct examination with respect to each story in the issues for December 1960 and February 1961, in effect playing down the sex angles and asserting the other points of each such story. He further testified that ideas for stories were selected by him from current items in the newspapers and newsmagazines and turned over to professional writers who developed the themes; that current newspapers and newsmagazines published pictures more revealing as to nakedness than the Petitioner magazine; that some pictures formed bases from which similar pictures were prepared for the magazine, e.g. "The Neck Kiss". He identified Exhibits A through Z, and Exhibits AA through RR for the Petitioner calling attention to the basic similarity of news articles, pictures, etc. to the stories and pictures in the Petitioner's magazine, and indicating from time to time, the fact that the accounts and pictures in the exhibits were, in effect, more lurid than the magazine. These exhibits consisted of clippings of news accounts, pictures and motion picture advertisements in local newspapers of New York and Connecticut and one national newspaper, all with large circulations, and dealt with rape, murder, adultery, kidnapping, fornication, prostitution and similar items as they appeared in the news and in motion pictures and "legitimate" shows during the course of the past year. After cross-examination the Petitioner rested.
The first witness for the Respondent, Reverend Dan M. Potter, identified himself as Executive Director of the Council of Churches of the City of New York, representing some 1700 Protestant churches and some 600,000 members. Dr. Potter described his education as including a doctorate of philosophy and his experience as including some ten years of dealing with pornography, and stated that he is a member of the Mayor's (New York) Committee of Religious Leaders. He also served as Director of Chaplain Services in the Federation of Churches in Washington, D. C., and in that capacity as Chaplain of the prisons. He had read the December 1960 issue of Actual Confessions and pronounced it salacious and of a type arousing prurient interest; that in his opinion at least 98% of the members of his churches would agree with him, and that such magazines should not be sold. On cross-examination he further stated that one of the advertisements of a motion picture presented in evidence by Petitioner was withdrawn by the newspaper concerned upon protest by his organization and that in his opinion and in the opinions of all his fellow employees and of some inmates of the Washington prisons, magazines of the type in evidence had a deleterious effect upon the inmates and the conditions in the prisons. On cross-examination the Petitioner introduced his Exhibit SS into evidence, a report of psychologists of Brown University which, in effect, stated that the reading of pornography has no effect on the behavior of individuals, that is, it does not lead to unlawful acts. With this report the witness took issue and stated that, in his opinion, the reading of such magazines does lead to acts. He has lived in New York City since 1952 and spent two additional years there (1941-1943).
Thereupon the Respondent called Monsignor Thomas A. Donnellan, who testified as to his education, including three years of graduate study, his membership on the Mayor's Committee of Religious Leaders and his present position as Chancellor of the (Roman Catholic) Archdiocese of New York. As incidental to this position he is moderator of the coordinating committee of Catholic lay organizations, including a committee on literature which reports on such matters. Monsignor Donnellan testified with respect to the October 1960 issue of the magazine "Actual Confessions" and stated, in effect that the reading of such a magazine would have a prurient effect on an ordinary man and a more serious effect on an adolescent. He corroborated Dr. Potter in stating that he believed the reading of such books could lead to overt acts. Father Donnellan stated that he had lived in the New York City area all of his life except for three years (graduate study) in Washington, D. C.
The next witness for the Respondent was Rabbi Julius Mark, Senior Rabbi of Temple Emmanuel, New York City, who identified himself, gave a brief synopsis of his education and stated that he had lived in New York City for thirteen years. He also stated that he had served as a chaplain in the Navy for three and one-half years, had counselled young men in the service, and identified the several secular organizations and those of the Jewish faith which are identified with public charity and morals, of which he is a member. He further testified that he had read two stories in the August 1960 issue of "Actual Confessions," that such stories have a deleterious effect on the readers, have a bad influence on their thinking and possibly on their conduct. He further stated that the vast majority of people with whom he is concerned would agree with him; that there is no difference in the moral standards of the reformed, the conservative and orthodox Jewish congregations, and that this magazine (August issue) should not be sold to the public in general.
The next witness, Edward Papantonio, a New York lawyer, gave his education, stated that he had lived in New York City since 1919, identified himself with the City, State and National organizations of the Veterans of Foreign Wars, and particularly with their Committee for the Study of Indecency in Literature and Communications. Substantially, Mr. Papantonio repeated the testimony of prior witnesses with particular reference to the April and December 1960, issues and declared them to be morally objectionable magazines which should not be sold publicly. He also stated that the consensus of the V.F.W. would be the same.
The Respondent then called Rabbi William F. Rosenblum of Temple Israel Congregation who described his education and experience which include several academic degrees, work as a sociologist, military chaplain, and experience as a Rabbi for thirty years in New York City. He has also written and published a television program, a play and monographs. He further testified that he is on the Committee of Religious Leaders of the City of New York and is a co-chairman with Monsignor Donnellan and Dr. Potter, and has served on the salacious literature committee. In his opinion the October 1960 issue of "Actual Confessions" is very calculatedly a publication to titillate people to excite prurient interest; that the consensus of the community as a whole would be against this magazine.
The next witness for Respondent, William P. Riley, M.D., a pediatrician with psychiatric experience identified himself as New York Chairman of the Citizens for Decent Literature, a national, non-sectarian, non-political organization, with some 500 units in the nation. This strong witness testified categorically that, in his opinion and in the opinions of he members of his organization, the magazine "Actual Confessions" for December 1960, is obscene according to the standards of the community. Since his evidence was cumulative as to the December issue of the magazine it will not be further discussed herein.
Mrs. Richardson D. Benton of Brooklyn, the next witness, identified herself as President of New York City Wide High School Parents' Council, an organization drawing its members from the parents of high school students of all five boroughs of the City. This organization has been concerned with pornography in the schools, and Mrs. Benton testified that the April issue of "Actual Confessions" was, in the opinion of her executive committee, offensive and obscene. Since her testimony was concerned primarily with the effect of this magazine on adolescents it will not be further detailed or considered here.
The next witness, Mrs. Charles P. Adams, President of the New York City Federation of Womens Clubs, stated that these clubs contain over 100,000 members and reflect a broad cross-section of the population. She testified with respect to the April, October and December 1960 issues, that a meeting of some 60 women representing clubs considered this magazine offensive; that her organization regularly considered such matters as magazines through experienced committees, and that she had personally done so. She further testified that in the opinion of her organizations this magazine is salacious and should be banned from public sale since it brings out degrading thoughts and actions in people.
Mrs. Duncan O'Brien was the next witness for the Respondent and testified that she is the Youth Conservation Chairman, Secretary of the Youth Council Bureau of the City of New York, and President of the National Society for the Prevention of Juvenile Delinquency Inc. Her testimony was primarily concerned with the effect of this magazine upon juveniles and adolescents, and will not be reviewed or considered in detail here.
The next witness on behalf of the Respondent was Dr. John R. Cavanaugh, a psychiatrist of Washington, D. C. After qualifying by submitting a typewritten biography and a list of his publications, he testified with respect to the pruriency of the issues of Actual Confessions for April, June, October and December 1960, and the issue for February 1961. He has practiced medicine (psychiatry) for some thirty years and has acted as editor for several medical publications, in addition to publishing articles on his own behalf. He holds the degrees of Bachelor of Science in Medicine and Doctor of Medicine and is a member of professional and honorary societies as well as the staffs of hospitals.
In the course of a long and detailed direct examination he testified as to every story in each of the above issues, and was of the opinion that the dominant theme of each of these issues of the publication, taken as a whole, would have a prurient effect on the average man. He also testified as an educated man and as an editor and writer, that in his opinion the magazine has no value as literature. On cross-examination he testified that one advertisement of a motion picture in a daily newspaper would add to prurient interest, and that one picture in an issue of "Time" magazine would appeal to prurient interest. It also appeared from this cross-examination that the witness does not attend showings of motion pictures nor does he frequent night clubs, and that he does not consider such institutions to be indicative of community standards. He testified, upon questioning, with respect to Petitioner's Exhibits "SS," "UU," "VV" and "WW".
The last witness for Respondent was Carter Brooke Jones, a writer and book critic by occupation with extensive and qualitative experience sufficient to qualify him as an expert. He testified with respect to the issues of "Actual Confessions" for April, June, October and December, (1960) and stated that in his opinion they have no literary merit and contribute nothing to English literature.
Both Petitioner and Respondent submitted proposed findings of fact, conclusions of law and briefs in support thereof. Before taking up these matters, however, one evidentiary point must be cleared up, and that is the inclusion at the hearing of the issue of "Actual Confessions" for February 1961. It will be observed that this action was originally based on the issues of the magazine for April and June 1960. Subsequently the Respondent successfully moved to have the issues for August, October and December, (1960) included. At the hearing, both parties filed, as Joint Exhibit No. 14, the issue for February 1961, and that issue was actively considered by both sides during the hearing. In the circumstances, this matter appears to fall within the provisions of Rule 15(b) of the Federal Rules of Civil Procedure, the applicable part of which is quoted as follows:
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time even after judgment; but failure so to amend does not affect the result of the trial of these issues." (28 U.S.C.A., page 482).
It follows that Number 8 of Volume 2, "Actual Confessions" dated February 1961 is the basis for a controverted issue between the parties in this proceeding which was duly tried at the hearing, and the publication was properly admitted into evidence.
In "Petitioner's Proposed Findings of Fact, Conclusions of Law and Brief" he lists some 242 proposed findings of fact which, in effect, restate the evidence in this case, including a description of Petitioner's Exhibits "A" through "Z" and Exhibits "AA" through "WW". Since the exhibits speak for themselves, and further recital of the evidence is unnecessary, the Petitioner's proposed findings are denied.
Petitioner next contends, without citing any authority, that since the statute defining mailability (18 U.S.C. 1461) requires for conviction thereunder proof on the part of the Government beyond a reasonable doubt, similar proof should be required in this case. The distinction between a penal action involving a fine or imprisonment and an administrative hearing to determine whether certain articles are mailable is so patent as to obviate the recital of authorities. Section 4006 (formerly 259a) of Title 39, U. S. Code, is quoted in part as follows:
"Upon evidence satisfactory to the Postmaster General that a person is obtaining or attempting to obtain remittances of money or property of any kind through the mail for an obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance, or is depositing or causing to be deposited in the United States mail information as to where, how, or from whom the same may be obtained, the Postmaster General may--
(1) direct postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representative, to return the registered letters or other letters or mail to the sender marked 'Unlawful';"
* * * * * * *
Further, the Administrative Procedure Act (5 U.S.C. 1006) requires that administrative actions of an agency shall be supported by reliable, probative and substantial evidence. There is no requirement of proof beyond a reasonable doubt.
In addition, the burden of proof rests upon one who files a claim with an administrative agency to establish that the required conditions of eligibility have been met.
Johnson v. Flemming , (DCD Ore.) 188 F. Supp. 447, 449.
Norment v. Hobby , (DCND Ala. SD) 124 F. Supp. 489.
The Diners' Club, Inc., 10 Pike & Fischer, Admin. Law (2d) 1025.
It is next contended by the Petitioner that the Postmaster General has been denied the right of "censorship" of publications, and that a "mailable" newspaper or publication may not be denied second-class privileges "because it failed to meet some standard of worth or value or propriety". This statement begs the question in this case since it assumes "mailability" to exist whereas that is the sole issue in controversy here. Further, the Postmaster General is bound to obey the law and to take action against "obscene, lewd, lascivious, indecent, filthy or vile articles" as required by statute (39 U.S.C. 4006) supra.
See also Glanzman v. Christenberry , (DCSDNY) 175 F. Supp. 485.
Petitioner contends that, by comparison with the book, "Lady Chatterley's Lover," it will be ascertained that its vivid descriptions and language go far beyond anything used in "Actual Confessions". A careful perusal of the book indicates that this statement is true, but the courts have held that the literary value of the book and its contribution to English literature are, in effect, its dominant theme, and that the pornography is secondary and subordinate to this primary element.
Grove Press, Inc. v. Christenberry , (DCSDNY) 175 F. Supp. 488, Affirmed (CA 2nd), 276 F.2d 433.
And the publication, "Actual Confessions," on the face of the record must be held to have no literary value whatever (Tr. 461-463).
Petitioner next contends that there is no theme published in any of its stories which has not been adequately and prominently featured in the newspapers and magazines which have been admitted into evidence. Conceding, for the sake of argument that this is true, it is not a valid point, for the reason that treatment of these matters in the newspapers differs from that in "Actual Confessions". In fact such sources have been excluded from evidence in the case of Gordon Schindler v. United States , (CA 9) 221 F.2d 743, cert. den. 350 U.S. 938, where it was stated:
"If the accused book is drawn from sources not obscene this does not guarantee that the compilation is not obscene, since manner of presentation is cardinal".
There is no basis for asserting that the newspaper and magazine sources of stories in "Actual Confessions" are obscene since there was no evidence (except one issue of the Washington Daily News) of the entire contents of any of the source materials, and in this one exceptional case, the Washington Daily News for February 14, 1961, an examination of the newspaper clearly eliminates any question of obscenity.
It follows from the above that no comparison may be made between the stories in "Actual Confessions" and reported news items in alleged source publications, for the reason that the stories and illustrations in "Actual Confessions" are obviously presented in an entirely different manner. Had the newspapers or other magazines regularly published as part of their publications stories and pictures extracted from "Actual Confessions" then a valid basis for comparison might well have been established. That this was not done is manifest.
It is next contended by Petitioner that television programs and motion pictures feature stories of prostitution, homosexuality and adultery as illustrated by Petitioner's exhibits, and that best sellers such as "Peyton Place," "From the Terrace" and "Lady Chatterley's Lover" are being sold by the millions of copies to the public. It is also asserted that the stories in "Actual Confessions" cannot be compared to these books and unquestionably are not beyond customary limits of candor.
The book "Lady Chatterley's Lover" has been disposed of, supra, in this opinion, and further discussion is unnecessary. As to "Peyton Place" and "From the Terrace," no evidence of their contents was presented in this case, no legal decision with respect to either of them has been cited, and, consequently, no opinion of them can be rendered in this proceeding.
With respect to television, the only evidence in this case is a full-page advertisement from the New York Times (Exhibit B) describing a program dealing with frigidity in women. The advertisement is in good taste, and no evidence was submitted of any lurid presentation or appeal to prurient interest in the actual broadcast. As to motion pictures, it is true that some of them deal with matters of prostitution, homosexuality and adultery or fornication but there is no evidence in this record that the dominant theme of all or a substantial number of motion pictures shown over a reasonable period of time in any community are appeals to pruriency. Further, as will appear herein, in considering Petitioner's Exhibit UU, The Washington Daily News for February 14, 1961, Petitioner's counsel could point out only six advertisements of questionable motion pictures out of some sixty-three advertisements. It may be well to state here that no evidence of complete contents of any television show or motion picture was introduced into evidence. A few general statements of Respondent's witnesses on cross-examination, the argumentative declarations of Petitioner's counsel, and several short critical notes in "Time" magazine which did not disclose the manner of presentation, constitute the entire record in this respect.
Finally it is Petitioner's contention that the testimony of all of Respondent's witnesses with respect to the opinions of their organizations and individual members thereof was hearsay, and that they would not have been eligible to sit on a jury involving "Actual Confessions" because of their eager participation in literature drives against allegedly objectionable material. To consider these points in inverse order, it is a novel theory of law that a witness must be qualified to sit on a jury in a case in which he testified; in fact it appears to be the consensus of opinion of courts and lawyers that if a person qualifies as a witness in a particular case he is disqualified as a juror. As to the matter of hearsay, the Petitioner introduced into evidence, not motion pictures or television broadcasts, but advertisements of these pictures containing the usual "puffing" of such sales advertisements; he introduced a hearsay report by psychologists, and hearsay reports of news events. These were accepted for what they were worth, and if hearsay was introduced by Respondent, in turn, Petitioner has no reason to complain. As a matter of fact several of these witnesses for Respondent testified on behalf of their organizations, and stated the consensus of their members. In any event, hearsay may be received in evidence by an administrative agency although findings may not be based on hearsay alone.
Rhodes Pharmacal Co. v. Federal Trade Commission , (CA 7) 208 F.2d 382.
N.L.R.B. v. Imparato Stevedoring Corp. , (CA 3) 250 F.2d 297.
Rosedale Coal Co. v. U.S. Director of Mines , (CA 4) 247 F.2d 299.
Willapoint Oysters v. Ewing , (CA 9) 174 F.2d 676 Cert. Den. 338 U.S. 860, Rehearing Den. 339 U.S. 945.
Turning now to the position of the Respondent it appears that his main objection to the contentions of the Petitioner is the admission into evidence of certain exhibits presented by Petitioner. These exhibits, A through Z, and AA through RR and TT consist of clippings from current newspapers in New York City and nearby areas reporting the crimes of murder, rape, adultery, prostitution and vice generally throughout the area served by these newspapers. They also consist of advertisements for current showings of motion pictures and plays as well as television broadcasts clipped from the newspapers and "Time" magazine. All of these are pasted on cardboard sheets and present a formidable phalangeal appearance of sex, vice and crime. Exhibit "SS" consists of a copy of a report by certain psychologists, reproduced by the American Book Publishers Council, Incorporated, as No. 1 of Volume III of "Censorship Bulletin" dated August 1958. Exhibits UU, VV and WW, respectively, are: (a) The Washington Daily News for February 14, 1961; (b) the first four pages of The Washington Post for February 15, 1961 and page 52 of Time Magazine for January 20, 1961. All of these exhibits are designed to reflect the contemporary community standards.
As stated by the Respondent these exhibits are for the most part taken out of context, are hearsay and should not be considered as admissible as comparative evidence under the doctrine asserted in Womack v. United States , (CADC) No. 15749 (unreported) cert. den. 29 Law Week 328, March 28, 1961. It has been categorically held, however, that, in judging a book, editorial comment, and possibly reports of critics and news articles should have been admitted and considered in order to determine contemporary community standards.
Grove Press, Inc. v. Christenberry , (DCSDNY) 175 F. Supp. 488, affirmed 276 F.2d 433.
Poss v. Christenberry , (DCSDNY) 179 F. Supp. 411.
See also concurring opinion of Justice Frankfurter in Smith v. California , 361 U.S. 147, 160.
And there may well be sufficient similarity from a legal standpoint between a newspaper and a magazine to justify admission into evidence even under the rule of the Womack case, supra. For this reason and in view of these decisions the Petitioner's exhibits have been accepted in evidence.
At first glance these clippings, covering both sides of cardboards some 14 inches by 11 inches, deliver a formidable impact. When considered item by item, however, they lose much of their force for the reason that they represent only small, possibly insignificant parts of the publications from which they were culled. Some newspapers are more sensational than others, and may well have given more prominence on front pages to sensational news items, but no evidence was submitted at any time to show that the actions reflected in these clippings constituted a standard of accepted mores. The items relating to crime were reported as news items with no lurid overtones, although a few, and only a few, were accompanied by sensational photographs. The advertisements of motion picture and other stage exhibitions were for the most part mere "puffing" for sales advantage or critical accounts, accompanied in some instances by poor to fair drawings and illustrations of persons in almost, but not quite, compromising situations. The total effect is not impressive.
In three instances, (Exhibits UU, VV and WW) the exhibits were accompanied by part or all of the advertising media publications. Thus in Exhibit UU, The Washington Daily News, a tabloid form of newspaper consisting of 44 pages, there are two brief items on page one, both of which report in typical newspaper style items relating to sexual molestation of a witness in a criminal case, and the breakup of a call girl ring in Rome, Italy. On page 5 of this publication there are 1 1/2 columns relating to the infamous Rees case enlarging on the item on page 1. On page 25 two-thirds of the page is devoted to nightclub advertisements. Three of the advertisements out of 12 present dancers as belly dancers, "exotic stars," and "Washington's most famous face and figure". No evidence was submitted of the type of entertainment offered, or that nightclub entertainment constitutes an accepted standard of mores. Page 26 advertises in a restrained manner, "Burlesk," "The Virgin Spring," "Never on Sunday" and "The World of Suzie Wong". Other items are also advertised on this page. ON page 28 one advertisement, without comment, presents "Love is my Profession," and there are four other advertisements of unquestioned character. Finally, on page 29 under "Neighborhood Movies," 6 out of 63 small advertisements present without comment "Butterfield 8," "From the Terrace," "Suddenly Last Summer" and "The Dark at the Top of the Stairs". The remainder of this 44 page newspaper is of unquestioned merit in the way of news reporting, editorials, features and advertisements. The dominant theme of the entire issue, taken as a whole, is that of a substantial newspaper furnishing a characteristic public service containing no pornography whatever.
In the four pages of The Washington Post submitted as Exhibit "VV," there are on page one a headline and approximately 3/4 of a column devoted to the testimony of a witness in the notorious Rees case, and approximately 3/4 column on page 3 devoted to the same case. This account is a true reportorial statement of the facts testified to by a witness without lurid details. The balance of the four pages consisting of some 30 columns is devoted to other legitimate news and advertising. Clearly, this exhibit, if it is to be used to establish a community standard, is, like its companion newspaper The Washington Daily News, utterly devoid of anything appealing to prurient interest, and, taken together, these newspapers indicate a high level of contemporary community standards.
One of the remaining exhibits relating to community standards is page 52 of the issue of "Time" magazine for January 20, 1961 which reflects a discussion of an alleged new religious trend termed "sexualism" by several types of authors. Also on this page is a still picture from "Hiroshima, Mon Amour," a French motion picture which appears to appeal moderately to prurient interest. Under no circumstances can it be said that page 52 is otherwise appealing to prurient interest, nor can it be asserted either that the particular issue of "Time" is obscene nor that the discussion on page 52 is authoritative. It is merely a choice of material, selected by editors, of a thought-provoking subject in a speculative state. There is no appeal to pruriency.
The remaining exhibits intended to indicate customary community standards, Exhibits, I, J, N, Q and R, are, respectively:
Page 59, Time Magazine for 10/10/60.
Page 61, Time Magazine for 8/22/60.
Page 59, Time Magazine for 10/3/60.
Page 73, Time Magazine for 3/14/60.
Page 54, Time Magazine for 5/30/60.
On the reverse side of Exhibit N, without introduction into evidence, appears page 44 of Time Magazine for 9/5/60.
Exhibit I is a routine critical article on "Les Ballets Africains" with a stylized photograph showing naked womens' breasts.
Exhibit J describes pubs and clubs with stripteasers in London, England.
Exhibit N is an article on "The Hostage" by Brendan Behan, the Irish writer.
Exhibit Q is an article on "The Good Soup" concerning the life of a French cocotte.
Exhibit R is an article on the winning motion picture at an exhibition at Cannes, France.
The reverse side of Exhibit "N" contains two articles: One deals with a hospital farce, and the other is a cinema in which it is stated that the heroine is seduced.
There is no evidence that any of these pages may be considered obscene, and if they are intended to portray a community standard then it may be said that such standards are not established by occasional erotic motion pictures and plays. Further, the motion pictures and plays described therein are not in evidence, and there is no direct evidence of the manner of presentation, which, as stated above, is cardinal.
In addition several of these exhibits are concerned with occurrences in foreign countries, which have no application to community standards in the United States.
Exhibit "SS," "Censorship Bulletin" dated August 1958 purports to be a report by three psychologists of Brown University who asserts, in effect, that reading of salacious materials has no effect on delinquent behavior of boys. In the first place, there is no evidence that the persons who wrote the report conducted any experiments at all; they merely quote what others have said, out of context, and they conclude that salacious reading matter is made the scapegoat by those who would deprive us of our liberties. This latter conclusion is completely beyond the field of psychology, and the remainder of the report is "double hearsay" taken out of context. As such it has little, if any, value as evidence.
Next in order of consideration are Joint Exhibits 9, 10, 11, 12, 13 and 14, the issues of "Actual Confessions" which are the basis for this hearing. Before considering them in detail, it will be appropriate to discuss the rule by which obscenity is measured under the law. This involves a discussion of Roth v. United States , 354 U.S. 476 and Grove Press, Inc. v. Christenberry , (DCSDNY) 175 F. Supp. 488, affirmed 276 F.2d 433. In the Roth case the Supreme Court held:
a. That obscenity is not within the area of constitutionally protected speech or press.
b. Obscene material is material which deals with sex in a manner appealing to prurient interest, i.e. material having a tendency to excite lustful thoughts.
c. The test for obscenity is: whether to the average person, applying contemporary community standards the dominant theme of the material taken as a whole appeals to prurient interest.
d. "Prurient" is defined in pertinent part in Webster's New International Dictionary (Unabridged, 2d Ed. 1949) as follows:
"Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity or propensity, lewd".
e. "Pruriency" is defined in pertinent part as follows:
"Quality of being prurient; lascivious desire or thought".
f. There is no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I. Model Penal Code, par. 207.10(2) (Tent. Draft No. 6, 1957) viz.:
"A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters".
In the Grove Press case, the District Judge in an opinion expressly approved by the Court of Appeals, (276 F.2d 435) held, (inter alia) with respect to "Lady Chatterley's Lover":
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There is nothing of "the leer of the sensualist" in the promotion or methods of distribution of this book. There is no suggestion of any attempt to pander to the lewd and lascivious minded for profit. The facts are all to the contrary.
Publication met with unanimous critical approval. The book was favorably received by the literary critics of such diverse publications as the New York Times, the Chicago Tribune, the San Francisco Call Bulletin, the New York Post, the New York Herald Tribune, Harpers and Time, to mention only some. The critics were not agreed upon their appraisal. Critical comment ranged from acclaim on the one hand to more restrained views that this was not the best of Lawrence's writing, and was dated and in parts "wooden".
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The essence of the Ulysses holding is that a work of literary merit is not obscene under federal law merely because it contains passages and language dealing with sex in a most candid and realistic fashion and uses many four-letter Anglo-Saxon words. Where a book is written with honesty and seriousness of purpose, and the portions which might be considered obscene are relevant to the theme, it is not condemned by the statute even though "it justly may offend many".
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The book is almost as much a polemic as a novel.
In it Lawrence was expressing his deep and bitter dissatisfaction with what he believed were the stultifying effects of advancing industrialization and his own somewhat obscure philosophic remedy of a return to "naturalness". He attacks what he considered to be the evil effects of industrialization upon the wholesome and natural life of all classes in England. In his view this was having disastrous consequences on English society and on the English countryside. It had resulted in devitalization of the upper classes of society and debasement of the lower classes. One result, as he saw it, was the corrosion of both the emotional and physical sides of man as expressed in his sexual relationships which had become increasingly artificial and unwholesome.
The novel develops the contrasts and conflicts in characters under these influences.
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This plot serves as a vehicle through which Lawrence develops his basic theme of contrast between his own philosophy and the sterile and debased society which he attacks. Most of the characters are prototypes. The plot and theme are meticulously worked out with honesty and sincerity.
The book is replete with fine writing and with descriptive passages of rare beauty. There is no doubt of its literary merit.
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*** The dominant theme, purpose and effect of the book as a whole is not an appeal to prurience or the prurient minded. The book is not "dirt for dirt's sake". Nor do these passages and this language submerge the dominant theme so as to make the book obscene even if they could be considered and found to be obscene in isolation.
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Thus, this is an honest and sincere novel of literary merit and its dominant theme and effect, taken as a whole, is not an appeal to the prurient interest of the average reader.
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It is true that the editorial comment was excluded by the Judicial Officer at the hearing. But it seems to me that this was error. These expressions were relevant and material on the question of whether the book exceeded the limits of freedom of expression in matters involving sex and sex relations tolerated by the community at large in these times.
The contemporary standards of the community and the limits of its tolerance cannot be measured or ascertained accurately. There is no poll available to determine such questions. Surely expressions by leading newspapers, with circulations of millions, are some evidence at least as to what the limits of tolerance by present day community standards are, if we must embark upon a journey of exploration into such uncharted territory.
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One facet of legal obscenity must be further considered, and that is the intent of the writer or publisher. Thus it has been held that:
"Honest, sincere works must be distinguished from publications 'wholly for the purpose of profitably pandering to the lewd and lascivious'".
See in this connection Glanzman v. Schaeffer , (DCSDNY) 143 F. Supp. 243, 247
Grove Press, Inc. v. Christenberry , supra.
I have carefully read, including covers, each of Joint Exhibits 9, 10, 11, 12, 13 and 14, that is, the issues of "Actual Confessions" for April, June, August, October and December, 1960, and for February 1961, and have concluded, from such reading and the evidence submitted, that such exhibits are obscene within the meaning of the cases cited. Thus in the April issue there are nine stories entitled, respectively:
"Man Of Evil"
"I Was A Victim Of A Strip Party"
"I Toyed With His Love"
"The Tease"
"I Had To Have Them Both"
"Malice Town"
"Anybody's Plaything"
"Mock Marriage"
"My Introduction To Sex"
and in addition one innocuous article of two pages on interior decorating. The balance of the sixty-eight pages consist of the stories mentioned above copiously illustrated with photographs suggestive of illicit venery and adding to the appeals to prurient interest; and of advertisements most of which are sexually suggestive if not obscene in themselves. All of the stories deal with sex and at least seven of them are obscene within the definition of the Roth case, supra. The illustrations, including the cover, supplement the dominant theme of illicit venery.
The June issue of sixty-eight pages contains eight stories entitled, respectively:
"Career Girl"
"She Travelled That Long Long Road"
"Born In Sin"
"Mistress"
"Initiation"
"My Mother Wanted My Man"
"She Couldn't Say No"
"Tainted"
and one innocuous article of two pages on sewing. At least seven of these stories are obscene within the definition of the Roth
case, supra, and what has been said of the April issue with respect to photographs and advertisements is also true of this issue.
The August issue of sixty-eight pages contains eight stories entitled:
"I Put Him Through Hell"
"My Body Cries For Love"
"It Wouldn't Work, I Was Eighteen He Was Forty"
"I Lost To Lust"
"Frigid"
"Sadistic Lover"
"Unfaithful"
"I Lied About My Baby's Father"
Of these at least seven are obscene within the definition of the Roth case, supra, and prior remarks as to accompanying photographs are relevant here. The advertising is somewhat more restrained. The one remaining story in this issue is on the borderline of obscenity.
The October issue of sixty-eight pages contains seven stories entitled:
"Sorority Shame"
"Cast-Off"
"Sands Of Sin"
"Housewife By Day - Call Girl By Night"
"Sex]"
"Ashamed Of My Parents"
"Too Rich For Love"
and one innocuous article of two pages on boating. Of these stories five are obscene within the definition of the Roth case, supra, one is questionably so, and one is on the borderline of obscenity. As to the photographs, prior remarks are relevant, and again the advertisements are more restrained.
The December issue of sixty-eight pages contains seven stories entitled:
"Hate Kept Us Apart"
"Our Illicit Affair"
"Unnatural Sex"
"Too Old For Love"
"No Will Of My Own"
"They Called Me Easy"
"Infidelity's Passion"
Of these, four are definitely obscene within the definition of the Roth case, supra, and three are not, although the latter play up sex as at least part of the theme. Again, the pictures accompanying the stories supplement the themes, and again the advertising matter as more restrained than in the earliest issues. The cover of this issue definitely appeals to prurient interest to a greater degree than those of prior issues.
The February 1961 issue of sixty-eight pages consists of seven stories entitled:
"Lost Innocence"
"Flesh Peddler"
"Flame Of Passion"
"Love Hunger"
"The Woman Between"
"Love Or Lust"
"Wild And Wanton"
plus an innocuous article of two pages on Christmas trees. Again four of the stories are definitely obscene within the definition of the Roth case and three are not, although two of the latter are suggestive of the improper. The accompanying photographs in this issue, like those in the others, are extremely suggestive and carry out the themes of illicit venery. The advertisements are typical: Larger or smaller busts, larger or smaller legs; how to win a husband, etc.
Based on the foregoing I make the following findings of fact:
1. The dominant theme, taken as a whole of the material in each of the Exhibits 9, 10, 11, 12, 13 and 14 in this case, that is, the issues for April, June, August, October and December, 1960, and for February 1961, of the periodical "Actual Confessions," applying contemporary community standards, appeals to the prurient interest of the average person.
2. The predominant appeal of each of the Exhibits 9, 10, 11, 12, 13 and 14 in this case, that is, the issues for April, June, August, October and December, 1960, and of February 1961, of "Actual Confessions" considered as a whole, is to prurient interest, i.e., a shameful or morbid interest in sex, and each of them goes substantially beyond customary limits of candor in description and representation of such matter.
3. There is no redeeming literary theme or literary craftsmanship such as those described in Grove Press, Inc. v. Christenberry , 175 F. Supp. 488, in any of said Exhibits 9, 10, 11, 12, 13 and 14, herein, that is, in the issues of "Actual Confessions" for April, June, August, October and December, 1960, and for February 1961.
4. There is no honesty or sincerity of purpose or work in any of the publications here in issue, that is, the April, June, August, October and December, 1960, and February 1961 issues of "Actual Confessions," but rather these publications are prepared and distributed wholly for the purpose of pandering to the lewd and lascivious.
Accordingly, I conclude as a matter of law that:
1. The Exhibits 9, 10, 11, 12, 13 and 14, herein, that is, the issues of "Actual Confessions" for April, June, August, October and December, 1960, and for February 1961 are obscene within the meaning of the statutes and the definitions of applicable cases.
2. The Exhibits 9, 10, 11, 12, 13 and 14 herein, that is, the issues of "Actual Confessions" for April, June, August, October and December, 1960, and for February 1961, are nonmailable under Section 1461 of Title 18, United States Code and Section 4001, Title 39, United States Code.
3. The Exhibits 9, 10, 11, 12, 13 and 14 herein, that is, the issues of "Actual Confessions" for April, June, August, October and December, 1960, and for February 1961 are not eligible for second-class entry of publications pursuant to Section 4354 of Title 39, United States Code.
All proposed findings of fact and conclusions of law submitted by the parties hereto, except as embodied in the stated findings and conclusions, supra, are rejected as not established by the evidence.
The action of the postmaster of the City of New York and of the Director, Postal Services Division, in denying entry of second-class status to the publications herein described is sustained.