*1 conclusively establishes record and ac appellant’s received husband compensation1 statutory cepted the appellant is injuries sustained recovery for barred therefore examined haveWe consortium.2 loss of urged by appellant contentions the other would warrant find no error disturbing District action
Court.
Affirmed. and Solair BOOK COMPANY
SUNSHINE Appellants, Naturisme, Inc., Union SUMMERFIELD, Individually E.
Arthur General as Postmaster Appellee. States, United
No. 12622. Appeals States
United of Columbia Circuit. District 25, 1956.
Reargued Sept. 3, Oct.
Decided part pursuant Long overruling Hitaffer Fairmont 2d 1. Paid U.S.App.D.C. Act, Argonne Co., and Harbor Workers’ shoremen’s amended, (1927), 33 U.S. 23 A.L.R.2d certiorari Stat. F.2d seq. A. 901 et C. 71 S.Ct. denied note that the Smither L.Ed. 624. We U.S.App. Coles, & Co. 2. Smither the briefs handed down after case 68, 242 сertiorari F.2d denied D. C. in the instant case. filed 1 L.Ed. *2 refusing partment from to transmit February, 1955, mail the of “Sun- issue Magazine shine & Health” Janu- and the Maga- ary-February, 1955, issue of Sun Hearing zine. A in the Post Examiner Department Office had decided that the named issues because are nonmailable obscene as that term is used in U.S.C. (1952).1 ap- After review of the § pellants’ exceptions to the Initial Deci- sion and the Hear- recommendations of C., Washington, Rogge, D. Mr. 0. John ing Department’s Examiner re- and the appellants. for ply thereto, the Post Solicitor Of- Atty. Dept, MacGuineas, Mr. B. Donald Concluding Department fice affirmed. Justice, Messrs. Samuel whom magazines photo- that graphs contained Attys., Langbart, Joseph D. Dept, and Slade men, chil- naked women and brief, Justice, for on the dren, when are “obscene and indecent appellee. judged by community ordinary stand- Washington, deGrazia, D. Mr. Edward majority ards of the vast of citizens American C., filed on behalf a brief noting country,” this advertise- and that curiae, Union, as amicus Civil Liberties ments in the that indicate urging reversal. gen- they freely are offered for sale to public eral who of nud- are members Judge, Chief Before Edgerton, organization, ist directed the Solicitor Miller, Baze- Prettyman, Wilbur K. Landing, Mays postmaster that Fahy, Washington, lon, Danaiier Jersey, New sitting be instructed to treat Judges, en banc. Circuit Bastían, as part named issues nonmailable. Judge (Circuit Burger took no of this or consideration Court, appellants In asked the District case.) a declaration the determination and order of the as DANAHER, Judge, unconstitutional; whom Circuit invalid declared as Judges Prettyman, perma- K. Wilbur restrained Circuit the nently Judge concur, withholding dispatch Bastían Circuit Miller and from from concurring Fahy and stat- in the result mails named is- the United States Appellants, separately: magazines, his sues of the future num- views Company publicatiоns Un- and Solair Book bers of these stantially said to be sub- Sunshine sought Naturisme, Inc., Dis- issues ion similar to the named enjoin OfficeDe- trict Court the Post here involved and to the con- 1. Pertinent filthy an indecent or delivered sued ter, writing, print, proceedings Cf read: (Supp. “Every “Is Pertinent C.F.R. [*****] shall not under letter book, declared IV follows: . 1957). portions applicable pamphlet, picture, paper* regulations carrier.” character; herein were §§ 36.1, U.S.C. be nonmailable conveyed any post lewd, other § 36.2 and 22 and 5 (Emphasis and—(cid:127) §§ lascivious, publication in the mails be found office commenced when the U.S.C.A. 36.7, is mattеr supplied.) let- or business It all ice.” with partment, property head of clerks, General: of preservation prescribe “Ninth. “§ “§ its shall be * laws relative law, business, each Departmental appertaining for the conduct of its officers and regulations, not Duties of Postmaster General. To distribution and * department superintend and the duty department government to the Postal Serv- * records, papers, to it.” regulations. custody, generally authorized * performance and execute inconsistent Postmaster of his de- use, * copy questioned action in an earlier So sidered as exhibits issue to the preliminary ef to the same licitor the Post Office relief; instructions, pursuant applicable pending and that the final fect *3 (cid:127)regulation.5 to ob be declared not date of December named issues Under relief, Judge 30, 1954, by Kirkland denied he was advised scene. the Solicitor ruling questioned copies “subject a substantial basis in that there was that the spection” support Depart in fact and law to the should from dis be withheld independently patch and, and in ment’s determination that the senders should be might trier, they “opportun is concluded the named formed as sues, he that that have being ity why days are nonmailable.3 to show cause within fifteen argued, appeal disposed as the had here been the of After article should * * * rehearing banc. 4 the ordered en matter court under nonmailable C.F.R. 36.2.” Under date December of appearing alleged, Facts found and 1954, 31, postmaster the the informed succinctly summarized. record heard, opportunity senders as to the to be 23, 1954, appellant Sun About December erroneously ques but also wrote that the approxi completed printing shine the must tioned issue “is nonmailable February, copies mately 40,000 of the dispatch.” be withheld from The Solici 1955, publication, “Sunshine of the issue January 6, 1955, tor ad under date 10,000 copies were & Health” of which postmaster’s vised the senders as to the through Ap mails. the be circulated ruling pointed error out that proximately circulation of the total 30% mailability determination had been as to Maga publication, “Sun second made either Solicitor or through zine,” was to be distributed hearing person, authorized had that a alleged they Appellants re that mails. assigned January 1955, 10, been larger percentage on of return ceive a “every insure that effort will be made to copies subscrib mail to disseminated ruling expeditious an consideration and copies dis from sale ers than giv in this matter.” Similar notice means such as sales other tributed Maga Nudisme en Solar Universale 24, December Between news-stands. January assigned zine of a 1954, appellant 1954, 31, and December mailability 11, 1955, to determine Company caused Book some Sunshine January-February, 1955, of Sun issue its February copies to be 1955 issue of its 1955, Magazine. January 10, On mailing matter third class offered for Hearing request of Examiner “at Landing, through Mays post officeat publisher and with for the counsel agreement Jersey. postmaster under date New continued of the Sоlicitor” sample 29, 1954, submitted December p. not involved These sections 3597. Compa- v. Sunshine Book 2. Summerfield instant case. U.S.App.D.C. 169, 1954, ny, 221 P.2d 921, 1955, 42, denied 349 U.S. certiorari 3. findings opinion with its detailed His 1253, in- which 99 L.Ed. 75 S.Ct. length. reported at has conclusions proceeding § under 39 U.S.C.A. volved Company v. Sum- Book Sunshine See the stat- There we concluded 259a. F.Supp. merfield, D.C.D.C.1955, the Postmaster authorize did not ute 4. We heard September 25, argument refusing predicate an order General postpone decision our decided to future, unpublished upon privileges mail pendency in the Su because herein despite fact issues cases, prеme deci several Court of allegedly past had contained issues likely to were deemed in which sions Congress has de- since matter. obscene controlling, important, if not an have summary temporary veloped im- problems bearing raised. here on the procedures, free from the re- pounding (Alberts g., See, Roth v. United States e. Pro- quirements Administrative California), seq., Act, § 1001 et 5 U.S.C.A. cedure Books, Kingsley 1304, 1 L.Ed.2d the Act cases. See in such followed Brown, S. Inc. July approved § 1 L.Ed.2d Ct. Cong., S.Rep. 84th No. See 259b. supra note 1. and see 36.7 Ad.News, C.F.R. Sess., & 2 U.S.Code 2d community of by measured hearings until American life as to both the January 17, mag- hearings legal standards when the Counsel, appeal azine issues before the court. the ex On forward. went brings us, effect, decision, concluded: “This the Solicitor initial aminer’s thought then, reciting quicker I 28, 1955, far than we January de affirmed get would of obscen- there issue photographic contents as to the tails ity.” issue in District publications he It was the questioned Court, freely the issue here. for sale to the offered found were general public. under which the The statute6 *4 Meanwhile, in- proceedings had proceedings only went forward not makes January District Court on in the stituted 6, 1955, of criminal use the mails the the January 18, 1955, and, the on proscribed matter, in of transmission preliminary was motion for cluding obscene, pic or lewd lascivious “the ordered It was then that denied. publications of tures or an indecent char com- quo” maintained until the be status acter, all such matter is to but declared proceedings pletion of the administrative “nonmailable” and “shall con not to be advanced for trial and the case that veyed in the mails.” According- January 31, 1955. heard be ly, Appellants’ the contentions that after heard and the case was then powers “usurps impliedly ex and statute ruling argument, court’s oral the pressly reserved to the states in violation Findings pronounced. of and con- fact First, Ninth, of and Tenth Amend the filed, of law thereafter and clusions were the United States ments to Constitution” dismissing appellants’ judgment the the by in Roth been answered the Court February have complaint amended was entered States,7 ex v. United where it was held 16, 1955. “obscenity pressly that within the is not upon In court stood the constitutionally protected speech area of papers opinions the record of the and majority press.” The further said: which had been filed in the administra- argument which, proceeding objection, that the federal tive “Roth’s without unconstitutionally obscenity statute received. to hear were testimony. The trier offered powers presented upon Appellants no the reserved encroaches witnesses, by Amend- Ninth and Tenth “live” and had none in court. the people colloquy judge appel- and to In the States the with the trial ments to press speech punish where of- lants’ outlined nature of such counsel the to decency morality testimony might produced: is as fensive have been community standards; hinged upon his contention that ob- that excepted expression scenity photogrаphs is do not violate such stand- not ; growing sweep provision of ards that nudism is Ameri- home”; ‘Congress life, instance, can “for Amendment that the First * * * abridg- analysis, comparatively, make law of some nude shall speech, photographs or of in certain the freedom ** added.) (Emphasis sequence Tuka,” pic- press a motion “La light argument falls in ture of African our tribal life. The trier That proffer holding obscenity expres- not ruled the is irrelevant in terms supra (1952), accompany Cong., 1st. 18 S. 84th Sess. § U.S.C. 3461 note Congressional by and Administra was later amended 28, 1955, U.S.Code Act of June 1955, page The Re News (Supp. tive § U.S.C. IV port advised the Senate that 1957). Congress sought farther enlarge “to sec great passage bill “will contribute Code, 1461 of tion title United States continuing struggle ly in to combat prohibition so as to include within the delinquency corruption juvenile and the nature, said all section matter of obscene public morals.” whether not said matter had fallen within the more restricted definition con S.Rep. tained the statute.” No. L.Ed.2d 1498. by Here, carefully protected judge Amend- First re
sion
the trial
therefore hold that
viewed the
ment. We
authorities and
obscenity
punishing
test1 1we had laid
federal
statute
down in Parmelee v.
quoted
ma-
United
mails for obscene
the use of the
States
which was
by
proper
charge, approved
verbatim
is a
exercise
terial
Roth
delegated
Congress
Supplied by
judge
postal power
the Court.
trial
I, 8,
extensive, particularized descrip
7.”8
Art.
cl.
§
offending
tions
and offensive ma
statute is such
command
repeated,
terial which need
here
magazines in
issues of the
that if the
question
they speak for themselves.
deem the
under U.S.C.
are nonmailable
judge
conclusions reached
the trial
Post Office
amply
Appellants argue
sustained.
deny
mails.9*Ar
access to the
bound to
guing
obscenity
us that
the issue of
is “not
“obscenity”
conclusion
that a
finding
foreclosed
of the trial
appellants
opinion,
insist
is a matter of
independently
court and is to be
reviewed
order was
the Postmaster General’s
we,
determined
this court.” Were
of law. The Court
invalid as a matter
*5
go
urged,
beyond
isas
to
and to
trier
may
that,
us however
while there
tells
conclusion,
reach our own
we would have
recog
marginal cases, obscenity is
hesitancy
deciding
no
that what is be
distinguished
may
nizable and
fore us is “material which deals with sex
portrayal
art,
literature and
sex
appealing
prurient
in a manner
est,”
to
inter
is
works. “Obscene material
sсientific
obscene,
and hence is
as Roth tells
man
which deals with sex in a
material
us.
prurient
appealing to
interest.” The
ner
“suf
observed
the trial court
Appellants
say
ask us to
that our
standard,”
ficiently
proper
followed the
judicata. Quite
earlier decision
res
is
having applied the test “whether to the
apart
many
from the fact that the
issues
average
contemporary
person, applying
publications
of the
there involved differ
community standards,
the dominant
from the exhibits before us in no sub
theme of the
as a whole
material taken
particular
stantial
so far as their cоmmon
appeals
prurient
Thus,
to
interest.”
pattern
nudity
concerned,
is
some of
Court concluded:
more,
them were
and some less offensive
portrayal
summary, then,
their
of sexual
“In
we
indicia than
hold that
photographs
accord
statute]
federal
exhibits
[the
with
judg
proper
which
we are
to the
standard
now concerned.
im
Most
portant,
ing obscenity,
however,
offend con
did
we
do[es]
not in the ear
safeguards against
lier case reach
con
or decide
stitutional
such issue.
contrary,
upon protected
On the
ma
we
based
victions
concerned sole
ly
give
acting
scope
terial,
with the
fail to
of the
men in
order of the Post
which,
adequate
proh master General
concluded,
notice of what
we
ex
authority.
ceeded his
Indeed,
ibited.”10
we ex-
judgment
pages 491-492,
exercise of
when
8.
Id.
121
specified
safeguards,
newspapers
is of
standards and
transport
deliver
highly
say
validity,
doubtful
the least.
on its
magazines pending final decision
Compare Holmby Productions, Inc., v.
is ac
content
part
their
to whether
Vaughn,
may
1955,
870,
117,
Congress
day
76
350
S.Ct.
U.S.
ceptable to it. “Some
193,
specif
100
give
L.Ed.
350
U.S.
perhaps
authorization
that
805, reversing 1955,
guidance
Kan.
terms,
L.Ed.
proper
ic
action,
P.2d 412.
on administrative
restrictions
safeguards as the Constitution
such
may
argued
duty
It
Congress
done
may
has not
require. But
Postmaster General
all laws
“to execute
Book
Summerfield Sunshine
so here.”
Service,”
relative to the Postal
page
U.S.App.D.C.
Co.,
gives
him
some measure
author
page
“All that
D.C. has been twenty years. 18 U.S.C. § we said: “The statute found [now Their texts were Department an mails ob- Post Dis- does not bar from the Office 1461] phrase It trict scene sentence. or an obscene not to But both be obscene. * * * ‘book,pamphlet an bars obscene Court- the District ’ * * thereupon publication proceeded *. If a other il- to deal with the stimulating publication magazines merely as a whole is not lustrations in e., such. Department “arouse the The the senses does not Office [i. Examiner of the Post reader, salacity”] ordinary it and the ex- District Court * * * plicitly recognize opinions not within the statute. in their that- publications publication dominant effect of an entire as a must be considered (Emphasis in determines its character.” whole.6 Yet an of their examination original.) also Parmelee v. United opinions, See as well as that of the Solicitor States, 1940, App.D.C. F.2d Department, the Post Office shows 729; Cir., Dennett, 2 United States weigh effort to the material considered 1092; A.L.R. Unit- F.2d objeсtionable against the rest of the con- Ulysses, ed v. One Book Entitled States tents, weigh permitting or to the risk in Cir., 1934, 72 F.2d United States against the former to limi- circulate Levine, Cir., 156. In 83 F.2d implicit press tations on freedom of the cases, found the courts these works which halting circulation of latter.7 medical, genuine sociological, to be of aspect equally Another of the case is literary al- were held not merit disturbing. ago More than a decade we though them, portions from con- taken Popenoe, held in supra, Walker v. might text, appear otherwise. hearing barring precede pub- must case, magazines “ad- In the instant Here, lished matter from the mails. explain nudism and vocate the nudist maga- accept refused to living.” mode of mailing, Summerfield v. Sun- zines for and held a Co., U.S.App.D.C. page shine Book after its refusal had become effective.8 obscenity deprave charged as question began is to transmit corrupt open minds those whose By on or about December let- influences, immoral such and into whose ter of December the Solicitor publication fall.” hands this sort of the Post Office acknowl- Regina But see v. Martin Seeker War edged 29, 1954, a letter of December burg, [1954], 2 All E.R. Ltd. 683. That Mays Landing, the Postmastеr New encompass “might test well material Jersey, which set forth the action taken. sex, legitimately treating with so it The Solicitor advised that rejected unconstitutionally must be dispatch,” “should be withheld from ex- speech and restrictive of the freedoms of cept copies submitted for first class States, press.” Roth v. United mailing, and that the senders “should be page 489, 77 S.Ct. at they may opportun- informed that have an Popenoe, supra Walker v. 6. See ity days why to show cause within fifteen *9 page U.S.App.D.C., 130 of 80 at disposed the article should not be of as 149 F.2d. by offering matter nonmailable ... questionable finding 7. It is also whether through appearance at this Solici- [the picture “grotesque” sufficiently complies person by attorney, tor’s] office in Supreme Court’s with mandate re through of a submission statement “prurient quiring finding appeal writing, arguments whatever evidence or Compare interest.” Sunshine Book Co. v. they care to submit.” Summerfield, D.C.D.C.1955, F.Supp. States, Mays Landing with Roth v. United The Postmaster page U.S. appel- transmitted this information to page 1311. by lant letter December He question Judge added that District found the re- Department fusal the Post Office “nonmailable and must be with- were inter- expressly such an condemned Fannie al., Appellants, et SEIDENBERG press in the ference freedom with case, we said: Walker where SEIDENBERG,Appellee. Martha E. impressed are not “We
argument requiring a No. 13346. a rule mailing hearing privileges before Appeals United States Court of permit, suspended while would District of Columbia Circuit. going on, dis- Argued 2,Oct. 1957. publications intentional- tribution of ly Decided every Oct. plain obscene in defiance case In such a reasonable standard. Rehearing Petition for Denied remedy immedi- is the the effective Nov. for the of the offender ate arrest penalized statute. this crime prevent form Such actiоn would mate- obscene
of distribution of the of- If the mail or otherwise.
rial con- bail the
fender released on a suffi- should be ditions of that bail against repetition protection
cient But often
the offense before trial.
mailing privileges are revoked prosecuting officers
cases where the enough risk criminal sure are not
prosecution. That was the situation U.S.App.D.C.
here.” 149 F.2d at of the Post
For reasons the order these held invalid.
Office should be pas- all the circumstances—the
Under disregard by sage of time and the ruling of our Post Office administrative case—further
the Walker proceedings magazine respect per- should not be issues here involved The case should be remanded
mitted. is- District with instructions to injunction permanently restrain-
sue an Department’s or- enforcement
der.
objection by
Department,
By
the Post Office
dispatch.”
letter of Janu-
held from
proof
burden of
rested
that
Post Office
on the
ary 6,
appellant,
the Solicitor
ap-
rather than
acknowledged that
the Postmaster’s
pellant. An initial decision was
nonmailability
handed
in er-
as to
statement
January
down
1955,
the Examiner on
ruling
ror,
or determination either of
“no
and affirmed
on
non-mailability having yet
Solicitor
mailabilily or
”
January 28, 1955. It is thus evident that
gave
.
.
no-
made.
.
He also
appellant’s
were barred from
question
hearing on the
of a
tice
*10
for almost a month
the mails
before the
January 10, 1955.
no action
on
But
hold
hearing and the initial administrative de-
transmit
taken to
they
were unmailable.
cision
appellant’s request,
At
the mail.
postponed
January
States,
Both v. United
See
hearing,
(per Harlan,
the Examiner
At