Sunshine Book Company v. Summerfield

• Decision Date: 03 October 1957
• Docket Number: No. 12622.,12622.
• Citation: 249 F.2d 114
• Parties: SUNSHINE BOOK COMPANY and Solair Union Naturisme, Inc., Appellants, v. Arthur E. SUMMERFIELD, Individually and as Postmaster General of the United States, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

249 F.2d 114 (1957)

SUNSHINE BOOK COMPANY and Solair Union Naturisme, Inc., Appellants, v. Arthur E. SUMMERFIELD, Individually and as Postmaster General of the United States, Appellee.

No. 12622.

United States Court of Appeals District of Columbia Circuit.

Reargued September 25, 1956.

Decided October 3, 1957.

Mr. O. John Rogge, Washington, D. C., for appellants.

Mr. Donald B. MacGuineas, Atty. Dept. of Justice, with whom Messrs. Samuel D. Slade and Joseph Langbart, Attys., Dept. of Justice, were on the brief, for appellee.

Mr. Edward deGrazia, Washington, D. C., filed a brief on behalf of American Civil Liberties Union, as amicus curiae, urging reversal.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER and BASTIAN, Circuit Judges, sitting en banc. (Circuit Judge BURGER took no part in the hearing or consideration of this case.)

DANAHER, Circuit Judge, with whom Circuit Judges Prettyman, Wilbur K. Miller and Bastian 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).¹ After review of the appellants' exceptions to the Initial Decision and recommendations of the Hearing Examiner and the Department's reply thereto, the Solicitor of the Post Office Department affirmed. Concluding that the magazines contained photographs of naked men, women and children, are "obscene and indecent when judged by the ordinary community standards of the vast majority of citizens of this country," and noting that advertisements in the magazines indicate that they are offered freely for sale to the general public who are not members of a nudist organization, the Solicitor directed that the postmaster at Mays Landing, New Jersey, be instructed to treat the named issues as nonmailable.

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 considered as exhibits in an earlier action²; a preliminary injunction to the same effect pending final relief; and that the named issues be declared not to be obscene. Judge Kirkland denied relief, ruling that there was a substantial basis in fact and in law to support the Department's determination and, independently as trier, he concluded that the named issues, being obscene, are nonmailable.³ After the appeal had here been argued, the court ordered rehearing en banc.⁴

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.⁵ Under date of December 30, 1954, he was advised by the Solicitor that the questioned copies "subject to inspection" should be withheld from dispatch and that the senders should be informed that they might have "opportunity to show cause within fifteen days why the article should not be disposed of as matter nonmailable under * * * 39 C.F.R. 36.2." Under date of December 31, 1954, the postmaster informed the senders as to the opportunity to be heard, but erroneously also wrote that the questioned issue "is nonmailable and must be withheld from dispatch." The Solicitor under date of January 6, 1955, advised the senders as to the postmaster's error and pointed out that no ruling or determination as to mailability had been made either by the Solicitor or by any authorized person, that a hearing had been assigned for January 10, 1955, and that "every effort will be made to insure an expeditious consideration and ruling in this matter." Similar notice was given to Solar Universale Nudisme Magazine of a hearing assigned for January 11, 1955, to determine the mailability of its January-February, 1955, issue of Sun Magazine. On January 10, 1955, the Hearing Examiner "at the request of counsel for the publisher and with the agreement of the Solicitor" continued the hearings as to both magazines until January 17, 1955, when the hearings went forward. On appeal from the examiner's initial decision, the Solicitor affirmed January 28, 1955, reciting details as to the photographic contents of the questioned publications which he found were offered freely for sale to the general public.

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 statute⁶ under which the proceedings went forward not only makes criminal the use of the mails for the transmission of proscribed matter, including obscene, lewd or lascivious pictures or publications of an indecent character, but all such matter is declared to be "nonmailable" and "shall not be conveyed in the mails."

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,⁷ where it was held expressly that "obscenity is not within the area of constitutionally protected speech or press." The majority further said:

"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 expression 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.⁹ Arguing that a conclusion of "obscenity" is a matter of opinion, appellants insist that the Postmaster General's order was invalid as a matter of law. The Court tells us however that, while there may be marginal cases, obscenity is recognizable and may be distinguished from the portrayal of sex in art, literature and scientific works. "Obscene material is material which deals with sex in a manner appealing to prurient interest." The Court observed that the trial court "sufficiently followed the proper standard," having applied the test "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Thus, the Court concluded:

"In summary, then, we hold that the federal statute applied according to the proper standard for judging obscenity, does not offend

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