In the Matter of the Application of

 EXCELLENT PUBLICATIONS, INC.

 for entry of the publication THE GENT as second-class matter.  

 H.E. Docket No. 5/112

 May 25, 1962

 Reva Beck Bosone Judicial Officer

 POST OFFICE DEPARTMENT, WASHINGTON, D. C.

 APPEARANCES:
 Stanley M. Estrow, Esq. 
 60 East 42nd Street
 New York, New York for the Petitioner

 Jack T. DiLorenzo, Esq. 
 Eugene P. White, Esq. 
 Office of the General Counsel
 Post Office Department for the Respondent

Acting General Counsel

The Excellent Publications, Inc. filed a petition requesting that the Director, Division of Mail Classification, be required to show cause why he proposed to deny second-class entry for petitioner's August 1957 issue of its magazine entitled "The Gent". The Director, hereinafter called the Respondent, filed an answer alleging that the August 1957 issue of "The Gent" is dominated by pictures and text of an obscene, lewd, lascivious, indecent or filthy character so as to render it nonmailable under the provisions of Section 1461 of Title 18 U.S.C.; that it is required under Sections 224 to 226 of Title 39 U.S.C. that a magazine be mailable matter to qualify for second-class mailing privileges.

A hearing was held before a hearing officer, and before his initial decision was made it was stipulated by and between the parties herein that he also pass upon the mailability of the October issue of "The Gent".

The hearing officer found that the August and October issues of the publication entitled "The Gent" are dominated by pictures and textual matter which present sex in a manner appealing to prurient interest, and that said issues are therefore obscene, lewd, lascivious, indecent or filthy within the meaning of Section 1461, Title 18 U.S.C. and recommended that petitioner's application for entry into the mails as second-class matter of the publication entitled "The Gent" be denied.

The petitioner filed three exceptions to the hearing officer's recommendation.

The first exception is to the finding that the August and October 1957 issues of the magazine "The Gent" are dominated by pictures and textual matter which present sex in a manner appealing to the prurient interest and that the magazines are obscene.

The hearing officer's decision shows that he took into consideration the text, the pictures and cartoons contained in the August issue. The descriptions of the various articles and pictures are accurate. He applied the principle for judging obscenity set forth in cases such as Roth v. U.S. and Alberts v. State of California , United States Supreme Court Nos. 582 and 61, October Term, 1956; U.S. v. Levine, 83 F. (2d) 156; Walker v. Popenoe, 149 F. (2d) 511; and Parmalee v. U.S. , 113 F. (2d) 729. I have likewise carefully read and studied the August issue of "The Gent" magazine in the light of the foregoing court decisions and I have come to the conclusion that the dominant theme of this issue is sex and that the publisher is pandering to the prurient. I do not consider the hearing officer's decision regarding the August issue erroneous, arbitrary or unreasonable and find that it is supported by the constant reference to sex and the nude and semi-nude pictures displayed throughout the issue. I have also carefully read and studied the October issue and find that it is not in good taste, but I cannot conclude that it is obscene as contemplated by the standards set forth in the above court decisions. The exception regarding the August issue is disallowed, but granted as to the October issue.

The second exception is taken to the hearing officer's conclusion of law that the issues are nonmailable and are therefore not entitled to entry into the mails as second-class matter. The text, pictures and cartoons of the August issue when read and viewed by the average person in the light of contemporary community standards of decency and morality call for the conclusion of law that the August issue is nonmailable under the provisions of Section 1461, Title 18 U.S.C. The second exception taken to the hearing officer's conclusion of law covering the August issue is disallowed. The second exception taken to the October issue is allowed for reasons set forth in my answer to exception number one.

The third exception avers that the hearing officer is in error in failing to adopt the thirty proposed findings of fact and conclusions of law submitted by the petitioner. The hearing officer specifically answered each proposed finding regarding the August issue. These answers are founded upon facts contained in the record and the principles of law established in the court decisions cited above and I see no reason why I should extend this opinion to repeat his answers. For the purpose of this final departmental decision, his answers regarding the August issue are affirmed. The hearing officer's answers to the proposed findings covering the October issue are set aside and the petitioner's proposed findings regarding the mailability of the October issue are adopted.

The findings of fact and conclusions of law of the hearing officer regarding the August issue are affirmed and his recommendations are adopted. The hearing officer's findings and conclusions of law covering the October issue are reversed and in lieu thereof I find that the October issue is not obscene and is mailable matter. The Director, Division of Mail Classification, should deny the petitioner's application for a second-class privilege for the August issue of its publication entitled "The Gent" but grant a second-class permit for the october issue of said magazine.

Dated this 4th day of December, 1957.