19 F.2d 295 (2nd Cir. 1927), 274, American Mercury, Inc. v. Kiely

• Docket Nº: 274.
• Citation: 19 F.2d 295
• Party Name: AMERICAN MERCURY, Inc., v. KIELY, Postmaster of City of New York, et al.
• Case Date: May 02, 1927
• Court: United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 295

19 F.2d 295 (2nd Cir. 1927)

AMERICAN MERCURY, Inc.,

v.

KIELY, Postmaster of City of New York, et al.

No. 274.

United States Court of Appeals, Second Circuit.

May 2, 1927

Page 296

Emory R. Buckner and Charles H. Tuttle, U.S. Atty., both of New York City (Thomas J. Crawford, Frank Chambers, and Alvin McKinley Sylvester, Asst. U.S. Attys., all of New York City, of counsel), for appellants.

Arthur Garfield Hays, of New York City, for appellee.

Before MANTON, HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

The injunction pendente lite was granted below, restraining and enjoining the postmaster of the city of New York and the Postmaster General, their agents and employes, pending the trial of this cause, from treating the April, 1926, issue of the appellee's magazine, the American Mercury, as nonmailable, and directing them to transmit that issue through the mails. Two articles, one entitled 'Hatrack' and another 'A New View of Sex,' and an advertisement of one Henry F. Marks' Book Shop, containing information as to where certain obscene books specifically mentioned in the advertisement might be purchased and the price thereof, caused the Postmaster General to issue an order holding that this issue was unmailable, pursuant to the section 211 of the United States Criminal Code (Comp. St. Sec. 10381) and section 470 of the Postal Laws and Regulations of 1924. This order was issued because it was found that the specified matter tended to corrupt the morals of those into whose hands they might fall, and further that it gave information where, how, from whom, and by what means obscene, lewd, or lascivious and indecent books and publications might be obtained.

The bill alleges that the April number was submitted to the postmaster at Camden, N.J., where the magazine is printed, on March 15, 1926, and no objection was made thereto; that t practically the whole of the edition of this issue was mailed and delivered before April 5, 1926. The editor of the magazine submitted an affidavit in support of the application for an injunction, and swore that the April issue was published in March, 1926, and, in accordance with its usual practice, submitted to the postmaster of Camden, N.J., where the magazine is printed, before March 15, 1926, and that no objection was made thereto and practically the whole of the edition was mailed and delivered before April 5, 1926. In a notice sent out to the 'friends of the American Mercury,' he said, after stating that the issue had been submitted to the postmaster at Camden before March 15, 1926, and the number had been passed, 'the whole edition had been mailed and delivered before April 5th-- all save a few copies held for stock. The question of the mailability of the number was thus purely academic.'

His grievance, as stated in his affidavit, was that, 'although practically all of said April number has been distributed, the mere fact that the post office officials have made this order of nonmailability stamps the magazine as an obscene publication, and doubts have arisen as to whether the said...