Roth v. Goldman

bоok, the more its lewdness is be ex HAND, N. Before AUGUSTUS accepted. cused or least If under exist CLARK, Judges. FRANK, Circuit decisions, however, there be some rea suppose only son to books which are PER CURIAM. literary dull and without substantial merit injunction This action serves to suppressed, may will be be answered that up bring validity review the of five or for perhaps limits it within not unreasonable General, Postmaster entered ders compositions clearly stifle have lit proceedings hear after administrative provoca being beyond tle excuse ings, excluding from the mails three books literary and to allow tive published plaintiff trade under various event, distinction to survive. But in vagaries censorship names. аpplicable the law under here decision suggested by perhaps only fact in the first instance to an ad committed “obscene, these books was excluded as official; ministrative and under normal lascivious,” lewd, or 18 U.S.C.A. §§ rules, therefore, judicial review channelled 1342], 39 U.S.C.A. [now §§ § plea injunc confines of within the for an concerning while material the others not be tion should overextensive. Certain steps held unmailable because of the ly such as this does material afford taken to secure orders for mail them stimulus or basis finding much fraudulently advertising them to be sala power of administrative abuse discretion or they were cious when not. 39 U.S.C.A. §§ involving Affirmed. these orders lat- keeps FRANK, Judge(concurring). being finished books Circuit sold: many Tolstoy being from ever written. I have sat This first case in which and other era Russians of tire Czarist validity of an administrative where the impeded told how fear of the censor their allegedly suppressing obscene order a hook writing. creative An American author’s ju-my Because of contested. been imagination may severely cramped he field, yield in inexperience I in this dicial eye must write with the Postmaster one experienced judgment to the more this case General; cope publishers authors must colleagues. I do with much my But so of who, judg uncertain about that official’s hope that puzzlement, and with the ment, accept manuscriрts may refuse to decision, our Supreme will review Court Shelleys of or or contemporary future fogs which surround dissipating the thus Whitmans. show, For, try to subject. as I shall this thick, I find no indeed fogs those are compatible with the Such a condition is my either in light them penetrating clear Hitlers,2 ideologies Commis of Czars and or opinion this suit else- colleagues’ democratic sars. It does not accord with where. repudiate thought-control. ideals which wisely thought,” been “Freedom of it has think My private are such tastes “ * (cid:127) * * said, goes unless worthless great suffer people the American will expression. Thought with freedom of opportunity to read deprived loss if of expression; thought impossible without far But Waggish from the Czechs. Tales unexpressed expression; thought, like an particular more is here involved than nothing. egg, comes to Given this an unlaid prece- become decision will book: Our then, freedom, other freedoms follow.”3 America’s includes a circuit which dent—in beyond “right expression the con The affecting the ex- great publishing center— day,” wrote ventions Mr. press guaranteed right of free ercise of the Justice ago, very years is “the Frankfurter three decision by the First Amendment. Our society.” It seem basis free higher may peril writings, put in other age, when desirable in this industrial excellence, any man who order of will, pursuits perforce, become in economic haрpens to be Postmaster the moment regulated government, creasingly happens offensive. General to find free, unregi realm should remain of art small for my colleagues For allow room mented, compe the domain of unrestricted review, saying that the determination court tition, unhampered enterprise, free in the in “is committed first De at its maximum.5 individual initiative official; and, un to an administrative stance disputandum represents a non gustibus therefore, judicial rules, review der normal democratic cherished maxim. Govern plea of a within confines channeled may mental control of the individual’s taste injunction1 not overex should for expand menacing insidiously into wide ruling vests immеnse That ad tensive.” “Man,” spread practices. anti-democratic censorship authority ministrative easily Goethe, warned “is to. accustomed man, makes him an almost des fallible slavery quickly learns to be obedient products. literary If one potic arbiter is taken him.” when his freedom book, day day he a mediocre another bans vein, President In that Franklin Roose genius. a work of do the same to except “The arts thrive said: cannot Originality is so commonthat we should velt contemplate potential are free to be themselves stifling. men lightly where discipline charge keep censorship does more than to be in And injunction. tion of Culture Germany, under 1 I am unaware Frankfurter, ICallen, Cf. this statute Timasheff, The Liberal Fordham L.Rev. J., concurring in Hanne- National Spirit Legal Regimenta means (1942) a suit for Socialist review ring opinion 194—202. gan The views the other Frank, Esquire, Justice Fate Inc., substantially Kovacs v. and Freedom 327 U.S. day 90 L.Ed. Cooper, reiterated 586. concur- approval conditions first ardors. referred to the distinction energies own proposed one and Mr. in United democracy for art Stone Justice politics re Co., liberty States v. Carolene 304 U.S. we call Products same. What * * * 144, note, arts. in freedom in the sults * * * scope no com 1234: “There may be a narrower American artists operation manner pulsion presumption in method of constitu be limited way my tionality legislation appears when expression.” Disturbed on its ideal, specific prohibition face to be runs counter to within a colleagues’ ruling Constitution, some the inappropriate to ask such as those the first think it not ” * * * ten See Thom questions. Amendments. 529, 530, Collins, 516, as 65 v. 323 U.S. S.Ct. Amendment, light First 1. In the of the 315, 430; 89 L.Ed. v. Ala Thornhill cf. ques not, think, ask a it is frivolous to bama, 95, 736, 88, 310 84 U.S. S.Ct. L.Ed. 60 power of Con tion the constitutional about 1093; State, 147, 161, Schneider 308 v. U.S. gress to bar to an official authorize 146, 155; 60 S.Ct. 84 Herndon L.Ed. v. sup mails, largely to thus probably 732, Lowry, 242, 301 258, U.S. 57 S.Ct. 81 press, writing he obscene. finds book 1006; Bridges California, L.Ed. v. 314 U.S. Holmes, dissenting, with For Mr. Justice 252, 262, 263, 190, 192, 62 86 L.Ed. 159 S.Ct. concurrence, Leach Brandéis’ Mr. Justice 1346; Oklahoma, A.L.R. Skinner U. v. 316 141, Carlile, 138, 140, 42 S.Ct. v. 258 U.S. 535, 543, 1110, S. 544, 62 86 S.Ct. L.Ed. 511, 227, 229, uncon 66 L.Ed. asserted the Cooper, 448, Kovacs v. 69 S.Ct. supprеs stitutionality very of one Some there are who doubt the wisdom case,7 sion us in for the statutes before distinction;11 of that but members of an in “in First Amendment was reason that the 8 court, ours, judicially ferior like may not except prevent tended to restraints” act on such Frank doubts. Mr. safety of the Justice seeded “for the nation.”9 furter, concurring in the recent Kovacs Frankfurter, concurring in Mr. Justice case, objected to what he described as the 146, Esquire, Inc., Hannegan 327 U.S. v. oversimplified dogmatic formulation 456, 586, 160, 90 cited with 66 L.Ed. S.Ct. distinction; yet he said since approval Carlile. the dissent in Leach v. expression, thought freedom of “without Esquire majority The Court atrophied,” becomes checked would rсase, through Doug speaking Mr. Justice adhere to the Mr. Holmes views las, remarked, 156, 461, Justice 327 U.S. 66 S.Ct. ready legisla “was far find who more to questions “grave are im constitutional tive invasion where [of Constitution] that the use mediately raised said once it inquiry free involved than in the de may privilege of the mails is be ex batable of economics.” area any grounds tended or withheld on what 10 germane dealing It is here that If here with soever.” several Supreme seeming Court part providing times the the statute not for ad 6 Message dedicating advance, of the to exercises one determine Art, grounds May us, New York Museum of Modern that certain words before 8, shall not be uttered. Even those who 7 (Rev.St.3929). interpret strictly 259 the Amendment most § 39 U.S.C.A. 8 agree prevent Colorado, to Patterson v. 205 U.S. it was See intended previous 556, 462, 879, 454, restraints. S.Ct. We not before per Holmes, J.; any question Congress 689, Gros us to as how far 10 Ann.Cas. jean 233, may go safety Press, American U.S. the nation.” 660; Lovell Court Mr. 80 L.Ed. cited “the dissents of Griffin, 444, 453, 452, U.S. Justice Brandéis and Mr. Justice Holmes ex in United States rel. 82 L.Ed. 949. Milwaukee Social Publishing Burleson, J., Holmes, “I Democratic said: do Co. v. there suppose anyone say 407, 421, 423, 430-432, would U.S. speech pro 360, 361, 363, written freedom of less Amendment L.Ed. 704.” tected the First than the spoken Clark, freedom words. discussion The Dilemma Therefore authority Judges, 35 Am. Bar understand American Ass’n. cannot Congress any (1949), 8, 10, undertakes J. authorize prevent mailing many objects, supрression of obscene

ministrative perfumes, who such punishment example, as which no but for criminal might question produce toriously already it, But the con published had result. power suppress pub a few stitutional case obscene (although different Justices, Supreme might lications ago, Court well there were exist weeks four per ample may eight participated, reading reason believe that them out of the who punitive legis socially conduces to harmful sexual haps have even such conduct held part State, beings. of the on the lation, violative of normal human How enacted ever, press ‍‌‌​‌​‌‌​​‌‌​‌‌‌‌‌​​​​‌​‌‌​​​‌‌​​​‌‌​​​‌‌‌​​​‌‌​‌‍proof and free right convincing of free of that fact hаs constitutional never been assembled. It be exceed speech12). ingly Perhaps difficult obtain. in order exception Nation” “safety proof to be trustworthy, ought such be at think, given broader today, I would least extensive as Kin and intensive would, for interpretation Holmes’. It sey Report.16 Macaulay, replying de so readily demonstrable example, include books, suppression mands for of obscene fraud and commercial mischiefs cial said: find “We it difficult believe that sup justify like.13 It doubtless this, any temptations as a world full so of a “clear pression there were of a book if gentleman, have vir whose life would been present danger” its words that and Aristophanes tuous if he nоt read had evils” ad grave bring “substantive about Juvenal, will by and be made read vicious In public the interest.14 versely affecting “Waggish them.” Substitute Tales urged exception, may terms “Aristophanes from and the Czech” for demon obscene books reading that the Juvenal,” and remarks become rele those socially dangerous ef strably entails such vant here. empow persons15 as to fects on normal notwithstanding First Congress, er the Psychological in last few studies the dec suppression of Amendment, direct suggest ades kinds of stimuli—for writings. leather, instance, the odor of old lilacs or candle, socially sight the man the of an umbrella or a no sane thinks think that piece arousing touch of a of silk оr cheese-cloth— dangerous of normal sexual provocative irregular be Consequently, reading obscene sexual desires. consequence, apparently men,17— in normal merely Con havior has books know, provocative seem, far constitutionally for all we more than gress, it would Perhaps reading of suppress books it can the obscene books. fur- more no such behavior, 12 Doubleday New Co., Inc., v. would be instructive dis See & * * * pat York, 79, 848, affirm cover sexual 335 whether U.S. 69. people by ing, tern of and of New Mexico without is sub divided Court stantially opinions, 687, Mr. different N.E.2d 6. N.Y. 77 297 enjoyed people ‘protection’ part in the who Frankfurter took no' Justice censorship рrinted of State maté decision. grounds obscenity.” rials on Ernst 13 Magazine, 333 U. Donaldson v. Read Loth, and American Sexual Behavior and 178, 68 S.Ct. 591. S. Kinsey Report (1948) The Bridges California, v. 314 U.S. See psychiatrist psychologist “The and 190, 192, 261-263, 252, L.Ed. any sharp fail find distinction between 1346; Alabama, A.L.R. Thornhill * * * apparently traits, abnormal 736, 88, 60 S.Ct. 310 U.S. hand, though similar, the one less 1093; Lowry, U. Herndon v. marked, people. traits normal 242, 732, 258, 81 L.Ed. 57 S.Ct. S. psychoneurotic are, and insane so to Collins, 529, 516, 323 U.S. Thomas ” speak, Murphy, ‘more so.’ Gardner 315, 89 L.Ed. 430. the Introduction to An Outline of Ab- below, in the As noted the courts Psychology (1929). normal obscenity now refer cases reac West, Society also See Conscience persons. of normal tions psychiatrist (1945), well 16 “Interestingly enough,” told, legal, versed matters are which contains discussions, cautiously phrased, helpful law, “New Mexico lawyers handicapped by pull not seem feel interested does of the un- motivations of one. As a conscious of normal lack footnote to sexual human dictionary for most will disclose tiler research Some definitions “obscene” from, “disgusting,” “loathesome,” rather —as men,18 reading- “repul diverts to, conduct19 may suggest anti-social than stimulates there serious sive” — social it, danger, ex what is meant (which, constitutionally justifying take such, suppression, cases, as “sex pressions, the shock of writ used in obscene “corrupt ings susceptibilities. debauch the to normal impurity,” ual But there morals”20). indications that Thomas minds and Jefferson21 161-165, pp. 158, school, beings; especially percent see from which about young people reported they had course, psychiatry infallible received most their sox information. Of an period few, reported they percent, A still in its about 4 but art science many psychiatrists, books, adolescence, and, owed percent most Jess than 1 while superfluous they acquired asserted that deterministic had tainted philosophy. Frank, most Law and information from movies. 359-360; Exactly note, proportion specified Mind the same Modern (1945) 64-69; Frank, as the Fate and Freedom church chief source of their sex Hall, Law, Principles information.’ Criminal cf. (1917) These statistical results conclusive; are not offered as Oh. but Censorship' Press, 18 Alpert, do more and The than cast doubt corrupt assertion that “Over ten ‘immoral’ 72: Harv.L.Rev. books deprave Hygiene years ago must be Bureau of Social tlie admitted. These questionnaires placed City statistical to ten results sent New York thousand the scale against college weight dogma upon normal school graduates. women law Twelve hundred an lift founded the counter- pan high. received; swers and of Add this: were that ‘evil manners’ seventy-two persons easily replied acquired are as who that the without books as books; slums, information came source their sex from that crowded machine specific mentioning labor, books, volumes, lives, emotions, barren not starved and ‘dirty’ unreasoning specified danger one a the are far as source. minds more Instead, Bible, tlie ous to morals books listed were: the so-called obscene Dictionary, Encyclopaedia, True, tangential, tlie literature. the novels this attack is problem .Tames, Henry involved, but Dickens to a social Shake is here and weight approach speare, diseases, the of this circulars venereal should be books, Motley’s counterpan medical and Rise of felt. The higher”. the is lifted -a trifle Republic. ques Dutch In Id. answer the at 74. 20 things Swearingen stimulating States, what tion of most Unitеd 446, sexually, replies, ‘Music,’ 451, U.S. 765; Dysart the 409 9 said L.Ed. ‘Pictures,’ ‘Dancing,’ States, 18 said said United U.S. ‘Drama,’ 655, ‘Books,’ 657, said 95 said and L.Ed. 461. In ” Swearingen very simply case, page the noted Man.’ 161 U.S. at 19Alpert page 563, writes the American Youth study “obscene, Commission the Court said the the conditions and words young people Maryland lewd or ute, attitudes lascivious” are “used in the stat ages describing twenty- between the as of sixteen and ‍‌‌​‌​‌‌​​‌‌​‌‌‌‌‌​​​​‌​‌‌​​​‌‌​​​‌‌​​​‌‌‌​​​‌‌​‌‍and of the same reported four, fense.” “For this as 1938: Maryland study deliberately picked Inaugural In Jefferson’s Second was Ad state, and, according dress, ‘typical’ March as a he referred to arti published 13,528 Commission, young per during people press, cles in the the his sonally Maryland administration, “charged speak interviewed in first with what fifty for young its two hundred and soever the thousand licentiousness could devise or Maryland people twenty Ho dare.” said libel and the suits were the proper adding- redress, press in the United millions States. ‘The chief that “the * * * legal youth restraint, other source of sex “education” needs for the no * * * ages religious groups and no and all line can be drawn youth’s contemporaries, liberty found to be between tlie inestimable s- * * Sixty-six percent press demoralizing boys its licentiousness. percent forty improprieties gills reported If still there be which this restrain, supplement what knew rule would not about sex was its more sought censorship ptiblic limited must be opiniоn.” less their friends of age their own had told them. After “contemporaries” Previously, youth’s home, and the his draft of a proposed importance Virginia, Constitution the source that next in he 79á Madi-son,22 edge authorities do not very come of con mean close James power. anyone regards the First stitutional interpreting

when it comes to If precise Amendment, recognized limitations obscenity no such the standard in the stat ute, free-press pertinent he right. on cannot have read time, cases. For see: At one the courts then, impossible, altogether It is not obscenity held that the existence of turned Court, Supreme following the lead author, subjective on the intention Brаn Holmes and Mr. Mr. Justice Justice regardless of on probable the book’s effect suppression déis, down this statu will strike readers. This been aban test has now prophesy. so te.23 But I not venture do doned; solely now the courts consider however, If, “grave it be- true that intention, “objective” which author’s immediately questions constitutional equates with the book’s others.26 effect on an official by authorizing statute raised” words, In other an author does violate suppose suppress books,24 one would pub if he writes statute statute, verging does that -such alone, of all dainty ditty lishes a which unconstitutionality, least contain should at men, obscene; private, un believes arbitrary safeguards against official unusual communicated, successfully thought rights guaranteed on the incursions purposes Also, wrong.27 at one are not a Amendment, strictly in should be First time, held obscene it would writing was terpreted preclude doubts about so as socially probably have a undesirable effect unconstitutionality validity. To avoid abnormal; but now the test has on the pro might seem that should statute way become that of the shifted and guide precise standard to fairly vide some pers probably will affect normal words action, far more the officials’ standard statutes, A so for our ons.28 standard difficult precise necessary in those than is prec interpret hardly judges action, ablest administrative providing for press tate a himself was the victim of freedom ment without without The Artists lous, too, freely United cannot be of press la * * when the prosecution ly to ever may to ‘really carried before question presses kad included [1809], See Creation du me whether we opposed the a Madison, commission of he be as is Berman, great safe,’ freedom expressed. * mortified our moment defense of States of America free, venal and mendacious given shall be uncompromisingly about the sale government, resisted, ‘The latter was history censorship he the public figure. newspapers writing of Monde, saying the civil Thomas told Col. selling force to be told press, private free, except every statement: should * * * 250-251: assailed the when the bookseller private injury State prefer I should De man magistrate.’ Jefferson threatened with even permitted action.” have Yancey public guaranties books, a book Becourt’s Sur Constitutions, defended the latter.’ as Were able ‘Where the * * * “He newspapers that he though a “Printing- so unscrupu- character press to govern- violent- opinion Among coming in can be far as ^[1816] Dufief to be cause hesi- read, left was the the So, he as ” a D.C. wholly demure. United States v. 156; 1357; Chaplinsky it would Parmelee U.S. 283 It 315 U.S. ing Vol. U.S. titled to leave said: to rable from the had practice 24 Hannegan ^[25] 23 27 might Kennerley, U.S. There are dicta Cf. See them It evil effects but he 4, 113 F.2d 729. 507, 510, Parmelеe v. United yielding Ulysses, 1031; contrary. “Some p. accordingly Swearingen Judge luxuriant United 697, 716, be a defense if 113 F.2d 729. a 568, 571, 572, v. United 66 away, few of Winters v. New the conceivably degree 68 L. D.C., States proper States, Levine, Cir., to proper S.Ct Esquire, Inc., ‍‌‌​‌​‌‌​​‌‌​‌‌‌‌‌​​​​‌​‌‌​​​‌‌​​​‌‌​​​‌‌‌​​​‌‌​‌‍See Hand in growth, 51 its noxious 456, v. New v. United been decided States, injure 209 F. S.Ct. Near thought 562, v. One Book En use that abuse is fruits.” 90 L.Ed. 586. may perhaps States, what he wrote F.2d be than, United 625, Cir., 40 L.Ed. 765. v. the argued it Hampshire, States, Minnesota, York, 119, 120; his App.D.C. anything. 327 U.S. is branches 75 L.Ed. by prun- vigor 83 F.2d 766, Works, insepa- States words better App. 333 86 be of Supreme Maybe, community general.30 Court of the any ise.29 Nor there then, will finding clarify the General’s decisions which it. Postmaster suffice, de a not irrational based assume, however, we havе Let us public contemporary termination of the render sufficiently precise a standard But here attitude towards books like this. interpreted to statute constitutional if it be that atti express finding he made no about which will is obscene mean a book tude. socially effects probably undesirable so, arguable on normal readers. Even We thus know how at do not he arrived best, which, skirts obscenity. that with at To statute his conclusion sustain as unconstitutionality, order, must, minimum, fact that read in finding at a probable implied must such will be results de record an administrative unusually supported by of an clear evidence termination that book is at odds with words, it is convincing “average kind —in He conscience of the time.” arguable ought be of that the evidence has not told how he ascertained that us required stronger effect, average than is character conscience.31 In we are far ordinary something basis of administrative action. asked to infer that he invoked But, bar, judicial That, however, evidence at the sole the. case like notice. support finding the hook guess public consists of mean no more than a opinion. itself. And the recent elec Presidential guess, tion teaches such a even when However, although Supreme Court public-opinion polls, assisted so-called question, passed never on this the lower astray. go badly proof of that direct courts have held necessary. Perhaps is not knowledge harmful effects Because the state our primitive psycho state of our psychology pro because inadequacy and the our convincing proof knowledge makes logical opinion determining public cedures unobtainable, question such effects almost this susceptible make less of ex have, instead, taken pert, explainable the lower courts objective, and administra mores, of what questions current “the social sense is tive determination than most “average passed conscience of right,” the bodies, administrative and not time,” e., again at the time is the attitude closely i. what how suppression stat testifying 29 George Shaw, Judge jury Bernard L. said Hand there that a committee, Parliamentary especially equipped 1909 before a to determine thought there right” asked whether “any “social sense prosecution power given if in repeated “should time.” He idea place on to sexual vice Cir., citements take Levine, United States v. stage.” replied, “No, I not ad He could my 83 F.2d I have doubts. you prosecute in any particular mit for single because jury may For not vice, you immediately to sexual centives represent “average” all at the views of prosecute possible manager to make it a especially community, the оn a such sub- principal has on the actress a because ject. pretty pretty is hat I or a woman. Moreover, years deciding eleven after protest against strongly anything that is ease, Judge Hand, Levine Learned quite may definite. You not make Repouillo States, Cir., v. United defining you what law like incentive rejected jury’s F.2d a verdict general lay vice, to sexual but down a guide prevailing as a to the moral stand regard unspeci law of with that kind respect “good with ards moral going fied to sexual incentives vice is too .very character” of the man there before far, when mere a woman wash fact of the court. That case did not relate to putting clothes, оn her face decent obscenity, but, according Judge Hand, anything kind, may possibly or applicable generally test was “the passes somebody in the street cause who accepted moral conventions current at the say, admire her T have been time.” generaliza vice.’ incited sexual These dangerous.” Perhaps Pearson, order, account, tions are too his G.B. that comply fails to with the S. Administrative Kennerley, Act, 1007(b); See United Procedure U.S.C.A. States D.C. but f pass point. 209 F. criminal I a case. approaches society, ute no although by studies of means unconstdtutionality, I would away scru useless for further purposes,34 are reviewing think court should alchemy ordinary care such an from the “scientific” than tinize with more respect astrology.35 day or will Maybe some we with- administrative determination opin community data public opinion. Engaged in such scru attain scientific about speech ion. One wonders whether free their tiny, fall back on judges must suppressed press may validly and free means judicial notice, own must suppression when their dubi turns on the guess ration decide official’s whether ous data now available. supportable. But where enough al to be inform judges gather will the facts to way, I can in the think of better views judicial Those whose notice? present ignorance, state to decide of our lawyers. judges best most know are finding rationality of the that this judi improper to take It would seem compare not with other obscene than to the Post cial notice that tales such as those now American read books accessible to all obscene master here found General basis, ers. I considerable On that have promi many gatherings freely at told difficulty Gen believing the Postmaster Bar Associa lawyers meetings nent anyone For ob finding eral’s correct. leading law- tions or of alumni our asking, any pub tain from for almost ought I we whether ar Stories, schools.32 doubt library, copy of Balzac’s Droll lic undemocratically, to conclude rogantly, English.36 easy That acces translated into apart, an intellectual or lawyers are a race might well serve sibility that book “guardians” (like totalitarian elite Plato’s public persuasive as a indicator of current “guards”33), with a’“sense acceptable— type judgments about the themselves, rela right” has no -which' writing. e., past Within the not i. obscene— multitude right tion to what is vast days, have re-read Stories. Droll few Plato) Americans, (a la whom of other see, nor under me, For life cannot may see, look as children. anything anyone stand how else could Waggish less obscene than in that book is that we the matter do truth of General has Tales which the Postmaster know, anything approximates suppressed. “average” public American reliаbility, the Hand, count, Judge per A. obscenity. This N. subject Per opinion on the alleged to passages be ob held that knowledge. haps have such we never will Joyce’s Ulysses a subordi played talk scene have heard many years we For possibly may role.37 same cannot science,” believe that nate and some “social Stories, which one deceased Droll the needed said of obtain that source from “tales But, conservative critic described as if “science” connotes enlightenment. unleashed, of the flesh are accuracy, the lusts high degree most which fairly depraved passim. “guards,” cratic of the scenity, the Alma Mater of. on among self the mоst As To upper That One conservative great revert to Plato’s gatherings teachings, lawyers 14. socially dangerous thinks courts. behavior see is law-school for a relevant Fite, distinguished as a correct totalitarian, moment to see, member The Platonic has been group. many judges lyrics which considers that e.g., certain translation effects no sung Fite, and which anti-demo- disco,vered noticeably respected question Legend loc.cit., faculty of ob- sitting many it is is Ulysses, fore posod. Customs state, and that in Freedom rigid passim. Schools, Chi.L.Rev. Let it 36Apparently Cf. United Cf. existing, censorship. banished all Frank, not be Frank, 56 Tale Frank, ban on (1945) Haight, Cir., (1947) 462; States was lifted and never reim Fate forgottеn Book 72 F.2d L.J. 40-41. Droll A Plea Banned v. One poets and Freedom Laws Review, (1947) Stories, Frank, Book Books United States Plato advocated Fate and Lawyer- Entitled thereto Un. of (1945) 1330- ideal art, greater impact bac amid a harmful to run riot left satisfied and “average” superior its Priapi.” Were reader. If ar- on flushed chanalia of tistry General, my colleagues were he “literary call Postmaster critic the —or obscenity in opinion immunity up his own distinction”—were to confer to set man readily available disregard control, most from official then someone would e., pub (i. of American attitudes ifestations have to determine which books have that suppress the usages), he would lic-library quality. The Postmaster func- General’s Balzac book. tion critic, then he literary would that of Waggish with the reviewing judges differentiate super-critics. will not do to as It ground Droll Stories Jurisprudence merge Tales on the with aesthetics. the mores comported with “classic” which publishers Authors and would consult place time and prevailing at legal digests legal-artistic precedents. on own comments publication. Balzac’s might day We legal some have a Restate- would, his awareness that it this work show ment of Literary the Canons of Taste. contemporar did, many offend as Congress anything cannot believe had so ies,39 George called it Sand who such as grotesque in mind. important, where we seek indecent. More sum, appears In Droll as Stories obvious- prevailing in the attitude to discover ly acceptable public, to the American question is not what country today, the obscene, more, that test is not thought of day Balzac’s living those think, Waggish would incline to Tales. “average” American book but how the regards (perhaps be now it. Wherefore I agree that the fraud orders con experience over or without am cause cerning am the circulars which advertise Self just how ly do not understand obtuse), I Bumarap Defense For Women and must 40test “average conscience of the time” stand, for the evidence—the circulars them with the no reconciled support findings which selves— as a work tion that a “classic”—defined But, orders are based.42 as rest on the place “accepted the arts” which has ground person that a commits a fraud who n —is not obscene,41no matter what its con advertises a book if its dominant theme regardless whether it is in tents and Waggish resembled that of when in Tales “average current con tune with that not, fact it docs these orders tend to show science.” reading number of a considerable public, especially buy those who would say Nor will it do to that Droll Stories Tales,43 probably Waggish read and would possesses artistry which I chance unusual so, like If Waggish Tales lacks. For this want books then thеse orders think it. just argument way: strongly If indicate that that book cuts out is not obscene, dominantly present mores, greater book of line with our and thus translator’s Kennerley, nation in the world Levine, Lord ho and underhand our These pithy (1932). Judge 40 41 Judge France attacked wrote: hallowed princesses Quoted In have frankness Byron people, the foreword Cir., persuaded L. Hand in United L. Hand in D.C., Preface to “There ‍‌‌​‌​‌‌​​‌‌​‌‌‌‌‌​​​​‌​‌‌​​​‌‌​​​‌‌​​​‌‌‌​​​‌‌​‌‍are countless by Jacques physiognomy so often whose * * * 209 F. 120. laughter, F.2d cheeks Heritage once mo.ved tbe first ton ”. United laugh decorously gayest, complained Le British blush at a Clercq, mourning; States v. States Press wittiest draped people kings tales, cant ed. of. v. judged. United 156, whom it books dо'ubt. conscience.” trative Procedure Act. acter of standard of evidence that it the fact 42 Here, again, however, Perhaps Judge It has Decameron —should effeet (like Waggish Talos) States v. that a a classic—like Droll [a book] been compliance non-obscenity by Then, however, * * * Hand meant said Levine, Cir., attuned is a “classic” is some that “what counts with the likely upon there represent which other merely are to bo Stories the char- Adminis- “average reach”; F.2d abe with he

those orders inconsistent well is obscene. finding Waggish Tales repeat, however, since, novice, as a oppose

I am' unwilling my case my experienced to those of more

views col- decision,

leagues, concur in their but

bewilderment.

Crampton Harris, George S. Brown Birmingham, Ala., Morton, Wade all of H. appellants. for George P. Robert W. Bondurant and Smith, Ala., ap- Birmingham, both pellees. BUTLER, KERSHAW, al. et

McDONALD HOLMES, and HUTCHESON, Before ENGINEERS, et al. LIMITED LEE, Judges. Circuit CO. K. et al. v. H. FERGUSON ADAMS HUTCHESON, Judge. Circuit No. cases, appeal, These consolidated for Appeals Court of United States employees, brought by ‍‌‌​‌​‌‌​​‌‌​‌‌‌‌‌​​​​‌​‌‌​​​‌‌​​​‌‌​​​‌‌‌​​​‌‌​‌‍Fair under the Circuit. Fifth Act of 29 U.S.C.A. Labor Standards 25,1949. Feb. seq., 201 et as amended the Portal-to- § April Rehearing 4,1949. Denied Portal Act U.S.C.A. et § seq., compensation, li- to recover overtime attorneys’ damages,

quidated fees. jury on an Tried the court without facts, agreed they resulted in statement of judgments final for the defendants based that “Plaintiffs on these conclusions: rеcover, pursuant are entitled to provisions Labor 16(b) of the Fair Sec. ;1 Kennedy Act of 1938 Silas Standards 1016; Co., Cir., 164 F.2d St. Mason Johns Adams, 5 Shipbuilding Co. v. Cir. River Murphey et Reed al. v. et 164 F.2d 257”; al., Cir., F.2d “This action barred Sec. Act, 258”. 29 U.S.C.A. Portal-to-Portal § appellants, pointing here Plaintiffs out Kennedy judgments cases, which the court relied Reed below conclusion, been reversed for the first anew, trial the causes remanded sec- urging court in its that the erred the Portal-to-Portal conclusion ond recovery, insisting permitted are Act wrong and must be re- judgments versed. themselves, as

Appellees, contenting did, with judge citing three district cited, place seem to their main opinions Sec. 9 of Portal-to-Portal reliance 216(b). 1 29 § U.S.C.A.

Case Details

Case Name: Roth v. Goldman

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 8, 1949

Citation: 172 F.2d 788

Docket Number: 152, Docket 21210

Court Abbreviation: 2d Cir.