249 F.2d 114 | D.C. Cir. | 1957
Lead Opinion
with whom Circuit Judges Prettyman, Wilbur K. Miller and Bastían concur, Circuit Judge Fahy concurring in the result and stating his views separately: Appellants, Sunshine Book Company and Solair Union Naturisme, Inc., sought in the District Court to enjoin the Post Office Department from refusing to transmit by mail the February, 1955, issue of “Sunshine & Health” Magazine and the January-February, 1955, issue of Sun Magazine. A Hearing Examiner in the Post Office Department had decided that the named issues are nonmailable because obscene as that term is used in 18 U.S.C. § 1461 (1952).
In the District Court, appellants asked a declaration that the determination and order of the Department as applied be declared invalid as unconstitutional; that the Department be restrained permanently from withholding from dispatch in the United States mails the named issues of the magazines, and future numbers of these publications said to be substantially similar to the named issues here involved and to the magazines con
Facts alleged, found and appearing of record may be succinctly summarized. About December 23, 1954, appellant Sunshine completed the printing of approximately 40,000 copies of the February, 1955, issue of the publication, “Sunshine & Health” of which 10,000 copies were to be circulated through the mails. Approximately 30% of the total circulation of the second publication, “Sun Magazine,” was to be distributed through the mails. Appellants alleged that they receive a larger percentage of return on copies disseminated by mail to subscribers than from the sale of copies distributed by other means such as sales at news-stands. Between December 24, 1954, and December 31, 1954, appellant Sunshine Book Company caused some 400 copies of its February 1955 issue to be offered for mailing as third class matter through the post office at Mays Landing, New Jersey. The postmaster under date of December 29, 1954, submitted a sample copy of the questioned issue to the Solicitor for the Post Office Department for instructions, pursuant to the applicable •regulation.
Meanwhile, proceedings had been instituted in the District Court on January 6, 1955, and, on January 18, 1955, the motion for preliminary injunction was denied. It was then ordered that “the status quo” be maintained until the completion of the administrative proceedings and that the case be advanced for trial to be heard January 31, 1955. Accordingly, the case was then heard and after argument, the court’s oral ruling was pronounced. Findings of fact and conclusions of law were thereafter filed, and the judgment dismissing the appellants’ amended complaint was entered February 16, 1955.
In court the Department stood upon the record of the papers and opinions which had been filed in the administrative proceeding which, without objection, were received. The trier offered to hear testimony. Appellants presented no “live” witnesses, and had none in court. In colloquy with the trial judge appellants’ counsel outlined the nature of such testimony as might have been produced: as to community standards; that the photographs do not violate such standards ; that nudism is growing in American life, “for instance, in the home”; and analysis, comparatively, of some nude photographs in certain magazines and of the sequence in “La Tuka,” a motion picture of African tribal life. The trier ruled the proffer was irrelevant in terms of American community life measured by legal standards as applied to the magazine issues before the court. Counsel, in effect, concluded: “This brings us, then, far quicker than I thought we would get there to the issue of obscenity.” It was the issue in the District Court, and is the issue here.
The statute
Appellants’ contentions that the statute “usurps powers impliedly and expressly reserved to the states in violation of the First, Ninth, and Tenth Amendments to the United States Constitution” have been answered by the Court in Roth v. United States,
“Roth’s argument that the federal obscenity statute unconstitutionally encroaches upon the powers reserved by the Ninth and Tenth Amendments to the States and to the people to punish speech and press where offensive to decency and morality is hinged upon his contention that obscenity is expression not excepted from the sweep of the provision of the First Amendment that ‘Congress shall make no law * * * abridging the freedom of speech, or of the press * * (Emphasis added.) That argument falls in light of our holding that obscenity is not expres*118 sion protected by the First Amendment. We therefore hold that the federal obscenity statute punishing the use of the mails for obscene material is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7.”8
The command of the statute is such that if the issues of the magazines in question are nonmailable under 18 U.S.C. § 1461, the Post Office Department is bound to deny access to the mails.
“In summary, then, we hold that [the federal statute] applied according to the proper standard for judging obscenity, do[es] not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.”10
Here, the trial judge carefully reviewed the authorities and applied the test
Appellants ask us to say that our earlier decision
Were we, as appellants asked, to refer to the many issues received as exhibits in the earlier cases, we might readily spell out a continuous pattern of dissemination of nude photographs, a pattern in existence for many years. We would not ignore Sunshine Book Co. v. McCaffrey
“Where the dominant purpose of nudity is to promote lust, it is obscene and indecent. The distribution and sale of the magazines in this case is a most objectionable example. The dominant purpose of the photographs in these magazines is to attract the attention of the public by an appeal to their sexual impulses. The sales of these magazines is not limited to any mailing list of members or subscribers. They are sold and distributed indiscriminately to all who wish to purchase the same. Men, women, youths of both sexes, and even children, can purchase these magazines. They will have a libidinous effect upon most ordinary, normal, healthy individuals. Their effect upon the abnormal individual may be more disastrous.”
Nor do we see in the circumstances here a “prior restraint” against which to inveigh. The statute declares certain matter to be nonmailable which “shall not be conveyed in the mails.” It may be supposed that the Post Office Department is not bound to sit idly by if instruments of crime, proscribed as nonmailable, are nonetheless offered for mailing. We may assume that the Department is not bound to permit the crime to be committed and only thereafter to proceed against one who mails the offending material. Here, pursuant to the departmental regulations, the postmaster sought instructions. An administrative hearing was ordered which proceeded expeditiously, both before the Department and the District Court. After application of the pertinent and appropriate standard, the questioned exhibits were found to be nonmailable. Here, there was no interference with some 30,000 copies of the questioned issue of “Sunshine & Health,” and with some 70% of the questioned issue of “Sun Magazine,” distributed otherwise than through the mails. Here was no injunction restraining the contemplated distribution of the publications to the public at large. Rather, only after hearing in accord with procedural safeguards antecedent to a determination of nonmailability, the Postmaster General has ruled that the facilities of the Post Office Department are not to be utilized, and the offending material “shall not be conveyed In the mails.” There was no seizure, there was no restraint upon “the dissemination of future issues of a publication because its past issues had been found offensive.”
We are satisfied that it has been correctly determined that the issues of the magazines here in suit comprise nonmailable matter within the meaning of the statute. There is no error.
Affirmed.
. Pertinent portions applicable when the proceedings herein were commenced read:
“Every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper* letter, writing, print, or other publication of an indecent character; and — •
*****
“Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” (Emphasis supplied.) Cf. 18 U.S.C. §§ 1461, 1465 (Supp. IV 1957).
Pertinent regulations may be found in 39 C.F.R. as §§ 36.1, 36.2 and 36.7, issued under 5 U.S.C.A. § 22 and 5 U.S.C.A. § 369 as follows:
“§ 22. Departmental regulations. The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.”
Ҥ 369. Duties of Postmaster General. It shall be the duty of the Postmaster General:
* * * * *
“Ninth. To superintend generally the business of the department and execute all laws relative to the Postal Service.”
. Summerfield v. Sunshine Book Company, 1954, 95 U.S.App.D.C. 169, 221 P.2d 42, certiorari denied 1955, 349 U.S. 921, 75 S.Ct. 661, 99 L.Ed. 1253, which involved a proceeding under 39 U.S.C.A. § 259a. There we concluded that the statute did not authorize the Postmaster General to predicate an order refusing mail privileges upon future, unpublished issues of the magazines despite the fact that past issues had contained allegedly obscene matter. Congress has since developed temporary and summary impounding procedures, free from the requirements of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., to be followed in such cases. See the Act approved July 27, 1956, 39 U.S.C.A. § 259b. See S.Rep. No. 2234, 84th Cong., 2d Sess., 2 U.S.Code & Ad.News, 1956, p. 3597. These sections are not involved in the instant case.
. His opinion with its detailed findings and conclusions has been reported at length. See Sunshine Book Company v. Summerfield, D.C.D.C.1955, 128 F.Supp. 564.
. We heard argument September 25, 1956. We decided to postpone our decision herein because of the pendency in the Supreme Court of several cases, the decisions in which were deemed likely to have an important, if not controlling, bearing on the problems here raised. See, e. g., Roth v. United States (Alberts v. California), 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Kingsley Books, Inc. v. Brown, 1957, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469.
. C.F.R. § 36.7 and see supra note 1.
. 18 U.S.C. § 3461 (1952), supra note 1, was later amended by the Act of June 28, 1955, 18 U.S.C. § 1461 (Supp. IV 1957). Congress sought “to enlarge section 1461 of title 18, United States Code, so as to include within the prohibition of said section all matter of obscene nature, whether or not said matter had fallen within the more restricted definition contained in the statute.” S.Rep. No. 113 to accompany S. 600, 84th Cong., 1st. Sess. U.S.Code Congressional and Administrative News 1955, page 2210. The Report farther advised the Senate that passage of the bill “will contribute greatly in the continuing struggle to combat juvenile delinquency and the corruption of public morals.”
. 1957, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498.
. Id. 354 U.S. at pages 491-492, 77 S.Ct. at page 1313.
. Roth v. Goldman, 2 Cir., 1949, 172 F.2d 788, certiorari denied 1949, 337 U.S. 938, 69 S.Ct. 1514, 93 L.Ed. 1743; “It shall be the duty of the Postmaster General * M to * * * execute all laws relative to the Postal Service.” 5 U.S.C.A. § 369; as to the duty and power of the Postmaster General, compare Bates & Guild Co. v. Payne, 1904, 194 U.S. 106, 24 S.Ct. 595, 48 L.Ed. 894. Where the problem turns upon the exercise of judgment when the contents have not been found to be obscene, a wholly different case is presented. See, e. g., Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, 149, 158, 66 S.Ct. 456, 90 L.Ed. 586.
. 1957, 354 U.S. at page 492, 77 S.Ct. at page 1313.
. Supra note 3, Sunshine Book Company v. Summerfield, 128 F.Supp. at page 568.
. 1940, 72 App.D.C. 203, 113 F.2d 729.
. Supra note 2.
. Sup., 112 N.Y.S.2d 470. There the appellants likewise were plaintiffs who sought a declaratory judgment and a permanent injunction against the Commissioners of Police and of Licenses of the City of New York. Their publications “Sunshine & Health” and “Sun Magazine” were before the court and appellants had been charged with violating § 3141 of the Penal Law of New York, McKinney’s Consol.Laws, c. 40, referred to in Kingsley Books, Inc. v. Brown, supra note 4, 354 U.S. at page 442, 77 S.Ct. at page 1328.
. Kingsley Books, Inc., v. Brown, supra, note 4, 354 U.S. at page 445, 77 S.Ct. at page 1330.
Concurrence Opinion
concurring.
In addition to making it a crime tmail the matter it describes, the statute, 18 U.S.C. § 1461 (1952), declares the
I do not disagree with the conclusion reached. Pictures permeate the magazine and the pictures are dominated by those which the contemporary community deems indecent. If this is so it cannot be but immaterial that much innocent text also appears in the magazine.
This leaves the question whether the departmental procedure met the requirements of due process. In Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1326, 1 L.Ed.2d 1469, the Court sustained the New York “limited injunctive remedy” under the Fourteenth Amendment, applicable to state statute. I think the prompt and speedy administrative process accorded in the present case cannot be distinguished on a Fifth Amendment level, applicable to federal statute, from the procedure sustained in Kingsley Books. After the magazine was held, a longer time elapsed here than in that case before the nonmailable decision was reached; but the Department moved expeditiously — in fact appellant requested additional time.
Further congressional attention to procedure might be desirable, but this is not to say that the courts should hold invalid the procedure here followed, unless it is to be held that only a court or jury is capable under the Constitution of determining in the first or preliminary instance the question of obscenity.
. In Walker v. Popenoe, 80 U.S.App.D.C. 129, 149 F.2d 511, the order barring the pamphlet from the mails was issued without notice or hearing.
Dissenting Opinion
(dissenting).
“Obscenity is not expression protected by the First Amendment.” Roth v. United States, 1957, 354 U.S. 476, 492, 77 S.Ct. 1304, 1313, 1 L.Ed.2d 1498. “Obscenity, real, serious, not imagined or puritanically exaggerated, is today as in all the past centuries, a public evil, a public nuisance, a public pollution.” Excelsior Pictures Corp. v. Regents of University of State of New York, 1957, 3 N.Y. 2d 237, 246, 165 N.Y.S.2d 42, 49. “The validity of the obscenity laws is recognition that the mails may not be used to satisfy all tastes, no matter how perverted.” Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, 158, 66 S.Ct. 456, 462, 90 L.Ed. 586. Well established though these propositions may be, they do not answer the hard questions of an individual case. Has the publication been found “obscene” by a proper tribunal, applying proper standards ? Has the punishment or remedy been authorized by proper legislation?
In the instant case, these questions have not yet been adequately answered. In the first place, it is not at all clear that the Post Office Department possesses any power to censor any class of mail, sealed or unsealed. Certainly Congress, has never given such a power in so many words, nor has the Supreme Court ever expressly recognized the existence of such a power. The authority under which the Department is said to be operating in this field is a criminal statute passed in 1873 r
The postal power permits the Federal Government to impose criminal sanctions for using the mails to distribute obscene materials. Roth v. United States, supra. Such sanctions, of course, are accompanied by the safeguards of a jury trial. See Brennan, J., dissenting in Kingsley Books, Inc., v. Brown, 1957, 354 U.S. 436, 447, 77 S.Ct. 1325, 1 L.Ed.2d 1469. Prior restraint is another story. A state staute has been upheld which permitted a limited form of judicial prior restraint against materials alleged to be obscene, through temporary injunction followed by prompt trial. See Kingsley Books, Inc., v. Brown, supra. It may be that the postal power would provide a basis for a Federal statute authorizing a similar form of judicial control. But an administrative prior restraint, not plainly authorized by statute and not subject to specified standards and safeguards, is of highly doubtful validity, to say the least. Compare Holmby Productions, Inc., v. Vaughn, 1955, 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770; 350 U.S. 919, 76 S.Ct. 193, 100 L.Ed. 805, reversing 1955, 177 Kan. 728, 282 P.2d 412.
It may be argued that the duty of the Postmaster General “to execute all laws relative to the Postal Service,” 5 U.S.C.A. § 369, gives him some measure of authority over materials deposited in the mail in alleged violation of the criminal statute. It may be said, too, that the statute makes the materials non-mailable, and forbids their handling. These arguments hardly suffice. Congress has always “zealously watched and strictly confined” any proposal to empower the Postmaster General to refuse to handle mail because of its content. See Hannegan v. Esquire, Inc., supra, 327 U.S. at page 156, note 18, 66 S.Ct. at page 461. Surely the courts must take a like attitude, even if they conclude that the present statute does give the Postmaster General some part of the authority he now claims.2
The test of 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.” (Emphasis added.) Roth v. United States, supra, 354 U.S. at page 489, 77 S.Ct. at page 1311.
In the instant case, the magazines “advocate and explain nudism and the nudist mode of living.” Summerfield v. Sunshine Book Co., 95 U.S.App.D.C. at page 170, 221 F.2d at page 43. One of the-magazines has been published for over-twenty years. Their texts were found by the Post Office Department and the District Court not to be obscene. But both the Department and the District Court-thereupon proceeded to deal with the illustrations in the magazines merely as such. The Examiner of the Post Office Department and the District Court explicitly recognize in their opinions that-the publications must be considered as a whole.
Another aspect of the case is equally disturbing. More than a decade ago we held in Walker v. Popenoe, supra, that a hearing must precede the barring of published matter from the mails. Here, the Department refused to accept the magazines for mailing, and held a hearing after its refusal had become effective.
“We are not impressed with the argument that a rule requiring a hearing before mailing privileges are suspended would permit, while the hearing was going on, the distribution of publications intentionally obscene in plain defiance of every reasonable standard. In such a case the effective remedy is the immediate arrest of the offender for the crime penalized by this statute. Such action would prevent any form of distribution of the obscene material by mail or otherwise. If the offender were released on bail the conditions of that bail should be a sufficient protection against repetition of the offense before trial. But often mailing privileges are revoked in cases where the prosecuting officers are not sure enough to risk criminal prosecution. That was the situation here.” 80 U.S.App.D.C. at page 132, 149 F.2d at page 5149
For these reasons the order of the Post Office Department should be held invalid. Under all the circumstances — the passage of time and the disregard by the Post Office Department of our ruling in the Walker case — further administrative proceedings with respect to the magazine issues here involved should not be permitted. The case should be remanded to the District Court with instructions to issue an injunction permanently restraining enforcement of the Department’s order.
. Rev.Stat. § 3893 (1875), as amended, 18 U.S.C. § 1461 (Supp. IV, 1957).
. We were there speaking of another postal statute, 39 U.S.C.A. § 259(a).
. Cf. Roth v. Goldman, 2 Cir., 172 F.2d 788, certiorari denied, 1949, 337 U.S. 938, 69 S.Ct. 1514, 93 L.Ed. 1743; One, Inc., v. Olesen. 9 Cir., 241 F.2d 772, cert. pending, 26 U.S.L.Week 3046 (1957).
. There is broad authority to review even factual matters when freedom of speech and of the press is involved. Cf. Niemotko v. State of Maryland, 1951, 340 U.S. 26S, 271, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280; Reed, J., concurring in Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 506, 72 S.Ct. 777, 96 L.Ed. 1098; Dye, J., dissenting in Commercial Pictures Corp. v. Board of Regents of University of State of New York, 1953, 305 N.Y. 336, 350, 113 N.E.2d 502, 512, reversed sub nom. Superior Films v. Dept. of Education, 1954, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329.
. The test traditionally applied by the English courts was stated in Regina v. Hicklin [1868], L.R. 3 Q.B.D. 360, 371: “whether the tendency of the matter
. See Walker v. Popenoe, supra at page 130 of 80 U.S.App.D.C., at page 512 of 149 F.2d.
. It is also questionable whether finding a picture “grotesque” sufficiently complies with the Supreme Court’s mandate requiring a finding of appeal to “prurient interest.” Compare Sunshine Book Co. v. Summerfield, D.C.D.C.1955, 128 F.Supp. 564, 571, with Roth v. United States, 1957, 354 U.S. at page 489, 77 S.Ct. at page 1311.
. The District Judge found that the refusal of the Post Office Department to transmit the magazines in question began on or about December 23, 1954. By letter of December 30, 1954, the Solicitor of the Post Office Department acknowledged a letter of December 29, 1954, from the Postmaster of Mays Landing, New Jersey, which set forth the action taken. The Solicitor advised that the magazines “should be withheld from dispatch,” except for copies submitted for first class mailing, and that the senders “should be informed that they may have an opportunity to show cause within fifteen days why the article should not be disposed of as matter nonmailable ... by offering through appearance at this [the Solicitor’s] office in person or by attorney, or through submission of a statement in writing, whatever evidence or arguments they care to submit.”
The Postmaster of Mays Landing transmitted this information to appellant by letter of December 31, 1954. He added that the magazines in question were “nonmailable and must be with
. See Both v. United States, 1956, 77 S.Ct. 17, 1 L.Ed.2d 34 (per Harlan, Circuit Justice).