The opinion of the court was delivered by: KIRKLAND
There is before the Court the case of Sunshine Book Co. v. Summerfield individually and as Postmaster General of the United States, defendant, in Civil Action No. 74-55.
The complaint was originally filed January 6, 1955, and there has been an amended complaint filed on January 18, 1955. They differ in only one slight particular. The gravamen of the complaint of January 6, 1955, was directed to injunctive relief sought by the plaintiff against the impounding of some 400 copies of the magazine Sunshine & Health for February, 1955, at the Mays Landing, New Jersey, Post Office, and, as well, a separate claim for declaratory judgment that this particular magazine was not obscene.
The amended complaint also has attached as an exhibit Sun Magazine of the issue of January-February, 1955, and seeks in a third claim a declaratory judgment that the character of that magazine is not obscene in fact.
Historically, the facts of this case indicate that on approximately December 23, 1954, the Postmaster of Mays Landing, New Jersey, Post Office, gave notice to the depositor, namely, the plaintiff here and subsidiary groups including Solar Union Naturisme, Inc., that the deposit of these magazines on instruction of the Postmaster General was being withheld from the United States mails.
At the same time notice was given of an administrative hearing before the Solicitor for the Post Office Department. The hearing began on January 16, 1955, and after several postponements has proceeded to a conclusion and there has been filed in the action of this case today the administrative finding of the Postmaster through his subordinates the trial examiner and the Solicitor for the Post Office Department, and that finding has been that the 'review of the entire official record * * * upon substantial evidence * * * indicates that the magazines in question contain photographs of naked men, women and children, principally women, clearly revealing genitals, breasts and other portions of the body normally covered in public.' It concludes that, 'From the advertisements therein contained, that they are offered freely for sale,' and the Post Office Department through its officials in this hearing has made a finding of fact that 'The photographs appear obscene and indecent when judged by the ordinary community standards of the vast majority of citizens of this country.'
Continuing with the historical portion of the case, there was filed at the outset with the complaint of January 6 a motion for a temporary restraining order. That was heard briefly and denied, and a date was set for the hearing of the temporary injunction, which upon hearing was likewise denied, and so it was brought up until this date, January 31, 1955, for the determination of the then pending status of the case on the final injunction.
At the time this particular Court heard the argument of the motion for a temporary injunction one of the issues raised was, and properly raised, that the administrative remedies has not been exhausted. The Court heard argument on both sides of the question and concluded that from the Congressional enactments and the customs and procedures followed that the initial determination under Title 18 U.S.C. § 1461, the obscenity statute, lay with the Postmaster General, and accordingly the Court gave directions that that should first be settled and disposed of, as the record now reveals it has been, and then the matter on the nature of the finding, as well as the question raised by the pleadings, would be decided today.
Accordingly, on the record of the case, including the pleadings, the affidavits appended, affidavits appended to Civil Action 3007-53, the Court on opening statements has narrowed the issues of this particular case.
The Court has ruled that there is provision under this statute, Title 18 U.S.C. § 1461, for the Postmaster General to conduct hearings and examinations into the alleged obscenity of publications, pamphlets, pictures, papers, letters, prints or other publications; that Title 18 U.S.C. § 1461 is not unconstitutional; that due process under the Fifth Amendment was provided for by a hearing in which either testimony, or review of the magazines and the pictures contained therein by visual observation, and the helpful argument of counsel did constitute a proper hearing within that provision. The Court has also ruled that under Title 18 U.S.C. § 1461, there is not a denial of the provisions of the First Amendment to the Constitution.
The Court also ruled preliminarily that the administrative hearing was one contemplated by the Congress and one carried out properly by its designated agent, the Postmaster General; that the scope was not essentially criminal in character, though criminal provisions are applied because the statute carefully declared that whatever was obscene, lewd, lascivious, filthy or of an indecent nature as it applied to any book, pamphlet, picture, paper, letter, print or other publication should be declared not to be mailable and should not be conveyed in the mails or delivered from any post office or by any letter carrier; that the Court was not confined to a mere determination of whether the finding of the Postmaster General from his hearing was arbitrary and capricious but that the Court in the status of this case which antedated the actual finding in the proceedings themselves, as well as the review of the proceedings, had the right to pass upon whether there was a foundation of the Postmaster in his finding that these two publications were obscene.
That left open the sole question of whether the two publications were obscene as a matter of fact and as a matter of law.
Counsel have very ably presented the matter. They have been very careful to indicate their industry, and their deep professional learning.
Accordingly, we are in the posture of determining the standards by which to judge these particular magazines.
First of all, nudity is not, per se, obscene, as the case of Parmelee v. United States from our own circuit, reported in 72 App.D.C. 203, 113 F.2d 729, was clear to point out. However, we must steer a course, in the clash of these legal interests, between what is art on the one hand, pornography on the other; what is decent on the one hand as against what is indecent on the other; and what is conformity to the mores of the District of Columbia, the State of New Jersey and America in general. Accordingly, we must first consider the definitions which have been handed down in interpreting the mandate of Congress.
Title 18 U.S.Code, § 1461 lays down five descriptive adjectives of what will constitute the basis of obscenity in general. Congress has used the words, 'obscene,' 'lewd,' 'lascivious,' 'filthy' and 'indecent' and has applied them to books, pamphlets, pictures, papers, letters, prints and other publications.
This, of course, is a magazine. It is a publication. There are contained within it pictures. Accordingly, in that aspect of the statute, this Court has jurisdiction.
It is declared if they are found to be obscene they are to be non-mailable, they are not to be transported or conveyed in the mails, and they are not to be delivered from any post office or by any letter carrier.
Those parts are clear and do not need definition. But there is need of definition as to what the Congress meant in the employment of the five adjectives.
In connection with the definition of 'obscene' the Supreme Court in Dunlop v. United States, 165 U.S. 486, 17 S. Ct. 375, 41 L. Ed. 799, has declared that obscenity or the adjective 'obscene' must be calculated to lower that standard which we regard as essential to civilization or calculated with the ordinary person to deprave his morals or lead to impure purposes.
In the case of United States v. One Obscene Book Entitled ' Married Love', 48 F.2d 821, from the Southern District of New York, decided in 1931, the Court there declared that obscenity means to be offensive to the senses or to the taste, refinement; disgusting, repulsive, filthy, foul, abominable, loathsome, offensive to modesty or decency, expressing or suggesting unchaste or lustful ideas; impure, indecent, lewd.
In our own local case, Parmelee v. U.S., 72 App.D.C. 203, 113 F.2d 729, 730, decided in 1940, the Court said, and I quote: 'Obscenity is not a technical term of the law and is not susceptible of exact definition. * * * Probably the fundamental reason why the word obscene is not susceptible of exact definition is that such intangible moral concepts as it purports to connote, vary in meaning from one period to another.'
In the case of United States v. Two Obscene Books, 99 F.Supp. 760, from the District Court of California, decided in 1951, the Court indicated that the definition of 'obscene' is: Offensive to chastity and modesty; that form of indecency which is calculated to promote the general corruption of morals; has a tendency to deprave or corrupts the morals of those whose minds are open to such influences and into whose hands it may fall by allowing or implanting in such minds obscene, lewd, or lascivious thoughts or desires.
Passing on to the second word which appears in the statute, namely, the word 'lewd', it has been defined in United States v. Slenker, D.C., 32 F. 691, as having a tendency to excite lustful thoughts.
In the case of United States v. Males, decided in D.C. 51 F. 41, the word 'lewd' has been defined as licentious.
The third word is the word 'lascivious.' In the case of United States v. Clarke, D.C., 38 F. 732, that word was defined as synonymous with 'lewd'; dissolute, unchaste, calculated to excite lustful and sensual ...