Big Table, Inc. v. Schroeder
| Decision Date | 30 June 1960 |
| Docket Number | No. 59 C 1382.,59 C 1382. |
| Parties | BIG TABLE, INC. v. Carl A. SCHROEDER, United States Postmaster for Chicago, Illinois. |
| Court | U.S. District Court — Northern District of Illinois |
Joel J. Sprayregen, Chicago, Ill., for plaintiff.
R. Tieken, U. S. Atty., Charles R. Purcell, Jr., Asst. U. S. Atty., Chicago, Ill., for defendant.
The dispositive question in this action is whether the magazine "Big Table I" is obscene, but a necessary preliminary to that inquiry, as it is raised here, is a resolution of whether the judicial review of a Post Office order, barring matter from the mails on such ground, is subject to and adequately provided for by the Administrative Procedure Act, 5 U.S.C.A. § 1009. That issue is implicit in the clash between the opposing motions for summary judgment which are before the court for its consideration.
The plaintiff, an Illinois corporation, is the publisher and distributor of "Big Table," a quarterly publication in the nature of a literary review, of which the number in suit was the first. The defendant United States Postmaster for Chicago, Illinois, refused to accept "Big Table I" for mailing pursuant to a departmental order determining that two articles contained therein were obscene and filthy and, therefore, non-mailable under the statutory declaration found in Title 18, Section 1461, of the United States Code.
The complaint which initiated the present action sought both injunctive relief from the operation of the order and a declaratory judgment that the magazine was not obscene or filthy, that the defendant's acts were unauthorized by statute as well as in violation of the First and Fifth Amendments to the Constitution of the United States, and that the seizure and impounding of the publication without notice or prior hearing did not afford due process of law.
Jurisdiction was properly asserted under 28 U.S.C. § 1339, which grants the district courts original jurisdiction of any civil action arising under federal statutes relating to the postal service, and under 5 U.S.C.A. § 1009, which authorizes judicial review of administrative decisions.
The defendant's pending motion states that judgment on the complaint must be entered in his favor if the agency action was supported by substantial evidence in the administrative record. What the plaintiff seeks is a finding de novo by the court in regard to the matter of obscenity, and its argument is based primarily on the premise that the agency action has no finality in this area because of the constitutional issues involved. Hence, the cross-motion for summary judgment asks for decision on substantially the same grounds as those advanced in the complaint. However, it is not necessary to decide the constitutional objections in reaching a conclusion in this case.1
That summary judgment is appropriately invoked is clear. No issue of fact may be entertained in reviewing an administrative proceeding under the standards set forth in the Administrative Procedure Act, 5 U.S.C.A. § 1009, unless the facts are subject to a trial de novo. Even assuming that a trial de novo as to the fact of obscenity were required, summary judgment would still be proper because the material evidence, the contents of the writings themselves, is undisputed. And, for good measure, there is also contained in the administrative record on which the parties submit, testimony and exhibits that bear on the literary merit of the articles, the intent of their authors, and like matters which have been said to be relevant and perhaps necessary to the decision to be rendered in an obscenity case. See the concurring opinion of Justice Frankfurter and the part concurrence and part dissent of Justice Harlan in Smith v. California, 1959, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.2
The legal issue, framed by the motions, which is posed first for consideration is the matter, previously referred to, of the parties' differing constructions of the court's scope of factual review where the possibility of obscenity was the impetus to the disputed administrative action.
The defendant is correct in his contention that the court is bound by the "substantial evidence" rule in this action. The following cases amply demonstrate that administrative orders by the Post Office, including those dealing with obscenity, are subject to the provisions of the Administrative Procedure Act. Cates v. Haderlein, 1951, 342 U.S. 804, 72 S.Ct. 47, 96 L.Ed. 609; Door v. Donaldson, 1952, 195 F.2d 764; Cadillac Publishing Co. v. Summerfield, 1955, 97 U.S.App.D.C. 14, 227 F.2d 29, certiorari denied 350 U.S. 901, 76 S.Ct. 179, 100 L.Ed. 791; Cadillac Publishing Co. v. Summerfield, D.C.D.C.1957, 155 F. Supp. 313, jdmt. vacated as moot, 1958, 105 U.S.App.D.C. 343, 267 F.2d 620.3
It follows, therefore, that the "substantial evidence" rule, which provides that the court may set aside or compel agency action on review if it was unsupported by substantial evidence on the record below viewed as a whole, 5 U.S. C.A. § 1009(e) (5), cannot be read out of the Act, as the plaintiff requests, simply because the order is contested on a claim of constitutionally protected speech, or because the initial findings of obscenity are often reversed on review. Nor has that been done. Bonica v. Olesen, D.C.S.D.Cal.1954, 126 F.Supp. 398.
While persuasive arguments have been made by the plaintiff for the proposition that the court must evaluate the accused writing or other form of expression for itself, if that position were accepted, the result would be not only to deny well-established precedent but to exceed the bounds of judicial review provided by the statute needlessly.
What constitutes obscenity is a question of fact, Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304. Assuming that authority to ascertain that fact has been properly granted to the administrative agency, the court must accept the conclusion reached by that body if it is supported by substantial evidence and not in disregard or violation of the other standards to be applied on review.
There is no basis for invoking the exception to the rule which provides for a trial de novo in some instances since the facts on which obscenity is alleged or contested do not fall within that class of "constitutional facts" which are awarded the exception by the Act, e.g., facts relative to the jurisdiction of the agency or facts possibly excluded by ex parte hearings.
Simply because a denial of constitutional rights is claimed does not command a finding de novo, since by reviewing the record as a whole and in the light of constitutional objections where necessary to decision, the court, by adhering to the substantial evidence rule, does give the facts that re-examination required when constitutional rights are invoked. An analogy may be drawn from the principles used in appellate review in such an instance. For example, as was said in Niemotko v. Maryland, 1951, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed. 267, "(I)n cases in which there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will reexamine the evidentiary basis on which those conclusions are founded." (Emphasis supplied.) Similarly, in Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 506-507, 72 S.Ct. 777, 783, 96 L.Ed. 1098, a movie censorship case, Justice Reed stated in his concurring opinion that "our duty requires us to examine the facts of the refusal of a license in each case to determine whether the principles of the First Amendment have been honored."
Those opinions do not prescribe a finding de novo but, rather, accord a broader than usual inquiry on appellate review, an appraisal comparable in kind to that required under the Administrative Procedure Act.
Thus, application of the "administrative finality" doctrine to Post Office findings on obscenity has never been denied, until the recent opinion of the Court of Appeals for the Second Circuit in Grove Press, Inc. v. Christenberry, 2 Cir., 1960, 276 F.2d 433, 436. In that case which involved the celebrated "Lady Chatterley's Lover," the question of obscenity on review was said to be one "starkly of law." The court therein agreed with the conclusion drawn below, that since there was no disputed evidence, the "substantial evidence" rule had no application. However, as defined by the Supreme Court in reference to review of any administrative proceeding, "`substantial evidence * * * means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456.
The Grove Press affirmance 276 F.2d 435, in rejecting the argument of "finality," also cited the "constitutional overtones implicit" in obscenity issues and the necessity of granting a full review of the facts when a denial of constitutional rights is claimed.4 That the determination of obscenity requires a "constitutional judgment" was the stand taken by Justice Harlan in dissenting from the majority holding that it is a question of fact, in Roth v. United States, 1957, 354 U.S. 476, 497, 77 S.Ct. 1304.
Even if that view were adopted, it is doubtful whether a more thorough search of the record would be conducted by the reviewing court than is now the case, which, after all, is the objective sought by the demand for a finding de novo. But, it should be clearly stated, that since obscenity has been held to be an issue of fact, there can be no independent conclusion by the court in the granting of review to agency action subject to the Administrative Procedure Act. O'Dwyer v. C. I. R., 4 Cir., 1959, 266 F. 2d 575; In re Cartellone, 148 F.Supp. 676 (N.D.Ohio 1957), affirmed Carlellone v. Lehmann, 6 Cir., 255 F.2d 101, certiorari denied 1958, 358 U.S. 867, 79 S.Ct. 99, 3 L.Ed.2d 99.
In sum, an administrative determination, when warranted by the record viewed...
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State v. Onorato
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- In re Ford, LR 5687.