327 U.S. 146 (1946), 399, Hannegan v. Esquire, Inc.

Docket NºNo. 399
Citation327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586
Party NameHannegan v. Esquire, Inc.
Case DateFebruary 04, 1946
CourtUnited States Supreme Court

Page 146

327 U.S. 146 (1946)

66 S.Ct. 456, 90 L.Ed. 586

Hannegan

v.

Esquire, Inc.

No. 399

United States Supreme Court

Feb. 4, 1946

Argued January 11, 1946

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

Syllabus

1. Section 14 of the Classification Act of 1879 provides that, in order to be admitted as second class mail, a publication "must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts . . ."

Held that, under this provision, the Postmaster General is without power to prescribe standards for the literature or the art which a mailable periodical (not obscene) disseminates, or to determine whether the contents of the periodical meet some standard of the public good or welfare. Pp. 148, 158.

2. A purpose on the part of Congress to grant the Postmaster General a power of censorship -- a power so abhorrent to our traditions -- is not lightly to be inferred. P. 151.

3. When read in the context of the postal laws of which it is an integral part, the provisions of § 14 must be taken as establishing standards which relate to the format of the publication and to the nature of its contents, but not to their quality, worth, or value. P. 152.

Page 147

In that new, "literature" and the "arts" mean no more than productions which convey ideas by words, pictures, or drawings. P. 153.

151 F.2d 49 affirmed.

In a suit by the respondent to enjoin the Postmaster General from carrying into effect an order revoking respondent's second class mail permit, the district court denied the injunction and dismissed the complaint. The Court of Appeals for the District of Columbia reversed. 151 F.2d 49. This Court granted certiorari. 326 U.S. 708. Affirmed, p. 159.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Congress has made obscene material nonmailable, 35 Stat. 1129, 18 U.S.C. § 334, and has applied criminal sanctions for the enforcement of that policy. It has

Page 148

divided mailable matter into four classes, periodical publications constituting the second class.1 § 7 of the Classification Act of 1879, 20 Stat. 358, 43 Stat. 1067, 39 U.S.C. § 221. And it has specified four conditions upon which a publication shall be admitted to the second class. § 14 of the Classification Act of 1879, 20 Stat. 358, 48 Stat. 928, 39 U.S.C. [66 S.Ct. 458] § 226. The Fourth condition, which is the only one relevant here,2 provides:

Except as otherwise provided by law, the conditions upon which a publication shall be admitted to the second class are as follows . . . Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers. Nothing herein contained shall be so construed as to admit to the second class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates.

Respondent is the publisher of Esquire Magazine, a monthly periodical which was granted a second class permit in 1933. In 1943, pursuant to the Act of March 3, 1901, 31 Stat. 1107, 39 U.S.C. § 232, a citation was issued

Page 149

to respondent by the then Postmaster General (for whom the present Postmaster General has now been substituted as petitioner) to show cause why that permit should not be suspended or revoked.3 A hearing was held before a board designated by the then Postmaster General.4 The board recommended that the permit not be revoked. Petitioner's predecessor took a different view. He did not find that Esquire Magazine contained obscene material and therefore was nonmailable. He revoked its second class permit because he found that it did not comply with the Fourth condition. The gist of his holding is contained in the following excerpt from his opinion:

The plain language of this statute does not assume that a publication must in fact be "obscene" within the intendment of the postal obscenity statutes before it can be found not to be "originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry."

Writings and pictures may be indecent, vulgar, and risque and still not be obscene in a technical sense. Such writings and pictures may be in that obscure and treacherous borderland zone where the average person hesitates to find them technically obscene, but still may see ample proof that they are morally improper, and not for the public welfare and the public good. When such writings or pictures occur in isolated instances, their dangerous tendencies and malignant qualities may be considered of lesser importance.

When, however, they become a dominant and systematic feature, they most certainly cannot be said to be for the public good, and a publication which uses them in that manner is not making the "special contribution

Page 150

to the public welfare" which Congress intended by the Fourth condition.

A publication, to enjoy these unique mail privileges and special preferences, is bound to do more than refrain from disseminating material which is obscene or bordering on the obscene. It is under a positive duty to contribute to the public good and the public welfare.

Respondent thereupon sued in the District Court for the District of Columbia to enjoin the revocation order. The parties stipulated at a pretrial conference that the suit would not be defended on the ground that Esquire Magazine was obscene or was for any other reason nonmailable.5 The District Court denied the injunction and dismissed the complaint. 55 F.Supp. 1015. The Court of Appeals reversed. 151 F.2d 49. The case is here on a petition for a writ of certiorari which we granted because of [66 S.Ct. 459] the importance of the problem in the administration of the postal laws.

The issues of Esquire Magazine under attack are those for January to November inclusive of 1943. The material complained of embraces in bulk only a small percentage of those issues.6 Regular features of the magazine (called "The Magazine for Men") include articles on topics of current interest, short stories, sports articles or stories, short articles by men prominent in various fields of activities, articles about men prominent in the news, a book review department headed by the late William Lyon Phelps, a theatrical department headed by George Jean Nathan, a department on the lively arts by Gilbert Seldes, a department devoted to men's clothing, and pictorial features, including war action paintings, color photographs of dogs, and water colors or etchings of game

Page 151

birds and reproductions of famous paintings, prints, and drawings. There was very little in these features which was challenged. But petitioner's predecessor found that the objectionable items, though a small percentage of the total bulk, were regular recurrent features which gave the magazine its dominant tone or characteristic. These include jokes, cartoons, pictures, articles, and poems. They were said to reflect the smoking-room type of humor, featuring, in the main, sex. Some witnesses found the challenged items highly objectionable, calling them salacious and indecent. Others thought they were only racy and risque. Some condemned them as being merely in poor taste. Other witnesses could find no objection to them.

An examination of the items makes plain, we think, that the controversy is not whether the magazine publishes "information of a public character" or is devoted to "literature" or to the "arts." It is whether the contents are "good" or "bad." To uphold the order of revocation would therefore grant the Postmaster General a power of censorship. Such a power is so abhorrent to our traditions that a purpose to grant it should not be easily inferred.

The second class privilege is a form of subsidy.7 From the beginning, Congress has allowed special rates to certain classes of publications. The Act of February 20, 1792, 1 Stat. 232, 238, granted newspapers a more favorable rate. These were extended to magazines and pamphlets by the Act of May 8, 1794, 1 Stat. 354, 362. Prior to the Classification Act of 1879, periodicals were put into the second class,8 which, by the Act of March 3, 1863, 12 Stat.

Page 152

701, 705, included "all mailable matter exclusively in print, and regularly issued at stated periods, without addition by writing, mark, or sign." That Act plainly adopted a strictly objective test, and left no discretion to the postal authorities to withhold the second class privilege from a mailable newspaper or periodical because it failed to meet some standard of worth or value or propriety. There is nothing in the language or history of the Classification Act of 1879 which suggests that Congress, in that law, made any basic change in its treatment of second class mail, let alone such an abrupt and radical change as would be entailed by the inauguration of even a limited form of censorship.

The postal laws make a clear-cut division between mailable and nonmailable material. The four classes of mailable matter are generally described by objective standards which refer in part to their contents, but not to the quality of their contents.9 The more particular descriptions of the first,10 third,11 and fourth12 classes follow the same

Page 153

pattern, as do the first three conditions specified for second class matter.13 If, therefore, the Fourth condition is read in the context of the postal laws of which it is an integral part, it, too, must be taken to supply standards which relate to the format of the publication and to the nature of its contents, but not to their quality, worth, or value. In that view, "literature" or the "arts" mean no more than productions which convey ideas by words, pictures, or...

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101 practice notes
  • 158 F.Supp. 940 (M.D.Pa. 1958), Crim. 12702, United States v. Keller
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • January 9, 1958
    ...v. New Hampshire, 1942, 315 U.S. 568, at pages 571, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. See and cf. Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, at pages 155, 156, 66 S.Ct. 456, 90 L.Ed. 586, 'Under our system of government there is an accommodation for the widest varieties of tastes a......
  • 121 N.E.2d 585 (Ill. 1954), 33043, American Civil Liberties Union v. City of Chicago
    • United States
    • Illinois Supreme Court of Illinois
    • May 24, 1954
    ...of Regents, 305 N.Y. 336, 113 N.E.2d 502; Broadway Angels, Inc., v. Wilson, 282 A.D. 643, 125 N.Y.S.2d 546; cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586; Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Schuman v. Pickert, 277 Mich. 225, 269 N.W. 152......
  • 96 A.2d 47 (N.J.Super.Ch. 1953), C-1209, Bantam Books, Inc. v. Melko
    • United States
    • New Jersey Superior Court of New Jersey
    • March 31, 1953
    ...lists. The question of previous restraint in the publication field again came before the Supreme Court in Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586 (1946), when the Postmaster General revoked Esquire magazine's second-class mailing permit because, essentially, it d......
  • 108 N.E.2d 582 (Ohio Mun. 1952), 572128, State v. Smith
    • United States
    • Ohio Municipal Court of Ohio
    • July 18, 1952
    ...states having such legislation. 333 U.S. at page 520, 68 S.Ct. 665, 92 L.Ed. 840. In Hannegan, Postmaster General, v. Esquire, Inc., 1946, 327 U.S. 146, 66 S.Ct. 456, 458, 90 L.Ed. 586, the court was called upon to decide whether the magazine Esquire may be banned from second-class mail, un......
  • Free signup to view additional results
95 cases
  • 158 F.Supp. 940 (M.D.Pa. 1958), Crim. 12702, United States v. Keller
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • January 9, 1958
    ...v. New Hampshire, 1942, 315 U.S. 568, at pages 571, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. See and cf. Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, at pages 155, 156, 66 S.Ct. 456, 90 L.Ed. 586, 'Under our system of government there is an accommodation for the widest varieties of tastes a......
  • 121 N.E.2d 585 (Ill. 1954), 33043, American Civil Liberties Union v. City of Chicago
    • United States
    • Illinois Supreme Court of Illinois
    • May 24, 1954
    ...of Regents, 305 N.Y. 336, 113 N.E.2d 502; Broadway Angels, Inc., v. Wilson, 282 A.D. 643, 125 N.Y.S.2d 546; cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586; Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Schuman v. Pickert, 277 Mich. 225, 269 N.W. 152......
  • 96 A.2d 47 (N.J.Super.Ch. 1953), C-1209, Bantam Books, Inc. v. Melko
    • United States
    • New Jersey Superior Court of New Jersey
    • March 31, 1953
    ...lists. The question of previous restraint in the publication field again came before the Supreme Court in Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586 (1946), when the Postmaster General revoked Esquire magazine's second-class mailing permit because, essentially, it d......
  • 108 N.E.2d 582 (Ohio Mun. 1952), 572128, State v. Smith
    • United States
    • Ohio Municipal Court of Ohio
    • July 18, 1952
    ...states having such legislation. 333 U.S. at page 520, 68 S.Ct. 665, 92 L.Ed. 840. In Hannegan, Postmaster General, v. Esquire, Inc., 1946, 327 U.S. 146, 66 S.Ct. 456, 458, 90 L.Ed. 586, the court was called upon to decide whether the magazine Esquire may be banned from second-class mail, un......
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2 firm's commentaries
  • State + Local Tax Insights - Winter 2012
    • United States
    • JD Supra United States
    • January 18, 2012
    ...for actions taken at EDA meetings. N.J. Stat. Ann. § 34:1B-4(i). 16 Gitlow v. New York, 268 U.S. 652, 666 (1925). 17 Hannegan v. Esquire, 327 U.S. 146, 157 (1946). 18 Fla. Stat. § 288.1254(4)(b)(4). The statute states that family-friendly productions are those that have cross-generational a......
  • Mofo New York Tax Insights - Winter 2012
    • United States
    • Mondaq United States
    • January 18, 2012
    ...for actions taken at EDA meetings. N.J. Stat. Ann. § 34:1B-4(i). 16 Gitlow v. New York, 268 U.S. 652, 666 (1925). 17 Hannegan v. Esquire, 327 U.S. 146, 157 (1946). 18 Fla. Stat. § 288.1254(4)(b)(4). The statute states that family-friendly productions are those that have cross-generational a......
4 books & journal articles
  • Administrative Procedure Act
    • United States
    • Federal Administrative Procedure Sourcebook, Fifth Edition 2016
    • January 1, 2016
    ...General suspending second-class mailing privileges may, as before, be tested by a suit to enjoin such action. Hannegan v. Esquire, Inc., 327 U.S. 146 (1946). In brief, where agency action is reviewable, but the Congress has not specified the form of review, the courts will continue to selec......
  • Public forums, selective subsidies, and shifting standards of viewpoint discrimination.
    • United States
    • Albany Law Review Vol. 64 Nbr. 2, December 2000
    • December 22, 2000
    ...see Marjorie Heins, Viewpoint Discrimination, 24 HASTINGS CONST. L.Q. 99, 105-10 (1996). (10) See Hannegan v. Esquire, Inc., 327 U.S. 146, 158 (1946) (striking down the Postmaster General's revocation of second-class mailing privileges to a magazine accused of being morally improper). (11) ......
  • Beyond content neutrality: understanding content-based promotion of democratic speech.
    • United States
    • Federal Communications Law Journal Vol. 61 Nbr. 2, March 2009
    • March 1, 2009
    ...Inc. v. FCC, 492 U.S. 115 (1989). (144.) See Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987); cf. Hannegan v. Esquire, Inc., 327 U.S. 146 (1946). (145.) For a description of these requirements, see Turner Brdcst. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 631 n.2, 643 n.6 (1994......
  • Subsidized speech.
    • United States
    • Yale Law Journal Vol. 106 Nbr. 1, October - October 1996
    • October 1, 1996
    ...505 U.S. 672, 678 (1992). (34.) Rust v. Sullivan, 500 U.S. 173, 199-200 (1991) (citations omitted). (35.) See Hannegan v. Esquire, Inc., 327 U.S. 146, 151 (1946); see also Buckley v. Valeo, 424 U.S. 1, 93 n.127 (1976) (finding public campaign financing permissible subsidy); Mark G. Yudof, W......