Bonica v. Olesen

• Decision Date: 22 November 1954
• Docket Number: No. 16449.,16449.
• Citation: 126 F. Supp. 398
• Court: U.S. District Court — Southern District of California
• Parties: Joe BONICA, doing business as Movie-of-the-Month Club, Movie-of-the-Month and Movie Newsreels, and John Bonica, doing business as 8 MM Movie Club and Movie Club, Plaintiffs, v. Otto K. OLESEN, individually and as Postmaster of the United States Post Office at Los Angeles, California, Defendant.

126 F. Supp. 398

Joe BONICA, doing business as Movie-of-the-Month Club, Movie-of-the-Month and Movie Newsreels, and John Bonica, doing business as 8 MM Movie Club and Movie Club, Plaintiffs, v. Otto K. OLESEN, individually and as Postmaster of the United States Post Office at Los Angeles, California, Defendant.

No. 16449.

United States District Court S. D. California, Central Division.

November 22, 1954.

Laughlin E. Waters, U. S. Atty., for the Southern Dist. of Cal., Los Angeles, Cal., by Max F. Deutz and Richard A. Lavine, Asst. U. S. Atty., Los Angeles, Cal., for defendant.

Gerald L. Kales, Hollywood, Cal., for plaintiffs.

TOLIN, District Judge.

This is an action to enjoin the United States Postmaster at Los Angeles from refusing to deliver mail to the plaintiffs.¹

Since 1946, plaintiffs have engaged in the business of selling motion picture films by mail. The films consist of educational and scenic pictures, children's comedies, and a small class called pin-up pictures. They are sold primarily for home use. The uncontraverted affidavit of one of the plaintiffs indicates that more than ninety per cent of plaintiffs' expenditures have been in the production of musical, scenic, fishing, and similar types of films; and that their business has grossed almost one and one-quarter million dollars. All but eleven of their pictures have not been challenged in either the administrative hearing or the trial of this cause. Prospective buyers were solicited by advertisements in national magazines and by mailed circulars, and the orders were generally filled by mail.

In 1953, a complaint was issued by the Post Office Department charging that there was probable cause to believe that the plaintiffs were obtaining and attempting to obtain remittances of money through the mails for films of an obscene, lewd and lascivious character in violation of statute,² and that therefore plaintiffs should be denied the use of the mails. In particular the complaint charged that eleven of plaintiffs' films were of the prohibited character.³ The plaintiffs responded denying that the specified films were obscene, lewd, or lascivious, and requested further information as to what parts of the named films were deemed objectionable so that such parts might be deleted. Despite this apparent willingness to accept the censorship sought to be imposed, no further information was furnished the plaintiffs. In December of 1953, an administrative hearing was held in Washington, D. C.⁴ and the Examiner found that the eleven films were obscene, lewd and lascivious. Pursuant to this finding, the Postmaster General ordered that all postal money orders and letters directed to the plaintiffs be returned to the senders with notification that payment and delivery was "unlawful" and had been forbidden by order of the Postmaster General. The order was prohibitive in terms and gave no opportunity for staying the full force of a total bar. There was no opportunity afforded the plaintiffs to cease the distribution of the questioned material as a condition of avoiding the drastic action of being totally barred from receipt of mail. The result was immediate and comprehended receipt of all mailed matter including such inocuous items as utilities or tax bills. Since the order applied to all money orders and mail addressed to the plaintiffs, whether relating to the few cited films or otherwise, the plaintiffs were, in effect, completely put out of business by the order.

On commencement of this action, a temporary restraining order and preliminary injunction issued against the defendant pending the outcome of this action in order to prevent the complete destruction of the plaintiffs' business before the matter was finally determined. The plaintiffs have represented by way of affidavits (which have not been rebutted) that since the original complaint was filed by the Post Office, all orders and money received for the specific films which the Postmaster has labeled obscene, lewd, and lascivious, have been returned.

Three separate issues are presented by this action: (1) the constitutionality of the section invoked; (2) the constitutionality of the specific application of this section; and (3) a review of the administrative action against the plaintiffs in other than its constitutional aspects. Pursuant to motion of the plaintiffs, a separate trial was ordered on the latter issue alone, with jurisdiction retained to dispose of the constitutional questions if necessary to an adequate adjudication of this case.

The scope of judicial review of administrative action such as that involved here, is set forth in the United States Code Annotated, Title 5, Section 1009(e), and includes the power to:

"* * * (B) hold unlawful and set aside agency action, finding, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; * * * (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; * * * (5) unsupported by substantial evidence * * *."

The Supreme Court has recently set forth the kind of scrutiny which a reviewing court must give the administrative record to satisfy itself that the agency action rests on adequate proof. In Universal Camera Corp. v. National Labor Relations Board,⁵ the court said:

"Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting (an administrative) decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record. Committee reports and the adoption in the Administrative Procedure Act of the minority views of the Attorney General's Committee demonstrate that to enjoin such a duty on the reviewing court was one of the important purposes of the movement which eventuated in that enactment.

"* * * Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view. * * *

"We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act 29 U.S.C.A. § 141 et seq. direct that courts must now assume more responsibility for the reasonableness and fairness of (administrative) decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both."

It appears that the only contraverted issue at the administrative level was whether or not the films were "obscene, lewd, or lascivious", and that the only evidence on this crucial question was the films themselves. Thus, the court is in a particularly advantageous position to evaluate the evidence.⁶

The words obscene, lewd, and lascivious have received extensive and varied judicial interpretations.⁷ The Ninth Circuit⁸ has recently approved an instruction and definition of the phrase in a criminal action for placing such material in the mail:

"`Matter is obscene, lewd or lascivious, within the meaning of the quoted statute, if it is offensive to the common sense of decency and modesty of the community, and tends to suggest or arouse sexual desires or thoughts in the minds of those who by means thereof may be depraved or corrupted in that regard.' `* * * words "obscene, lewd, or lascivious", * * * have the meaning of that which is offensive to chastity and modesty. They mean that form of indecency which is calculated to promote the general corruption of morals. The true test to determine whether a writing is non-mailable as obscene, lewd, or lascivious is whether its language has a tendency to deprave or corrupt 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.'"

The court specifically emphasized that the test was the common sense of decency and modesty of the community and whether or not it was calculated to promote the general corruption of morals. This is in line with a general transition from the "standard...