Esquire v. Walker, No. 8899.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtMILLER, EDGERTON, and ARNOLD, Associate Justices
Citation151 F.2d 49
PartiesESQUIRE, Inc., v. WALKER, Postmaster General.
Docket NumberNo. 8899.
Decision Date04 June 1945

151 F.2d 49 (1945)

ESQUIRE, Inc.,
v.
WALKER, Postmaster General.

No. 8899.

United States Court of Appeals District of Columbia.

Argued April 20, 1945.

Decided June 4, 1945.

Writ of Certiorari Granted October 22, 1945.


Mr. Bruce Bromley, of New York City, pro hac vice, by special leave of Court, with whom Mr. Hugh Lynch, Jr., of Washington, D. C., was on the brief, for appellant. Messrs. Morris L. Ernst, George S. Collins, Alexander Lindey, and John F. Harding, all of New York City, also were on the brief for appellant.

Mr. Marvin C. Taylor, Department of Justice, of Boston, Mass., pro hac vice, by special leave of Court, with whom Assistant Attorney General Francis M. Shea and Messrs. Arnold Levy and David Lloyd Kreeger, Special Assistants to the Attorney General, and Edward M. Curran, United States Attorney, of Washington, D. C., were on the brief, for appellee. Messrs. Charles B. Murray and Daniel B. Maher, Assistant United States Attorneys, both of Washington, D. C., also entered appearances for appellee.

Mr. Robert E. Coulson, of New York City, on behalf of Reader's Digest Association, Inc., Mr. Albert E. Brault, of Washington, D. C., on behalf of Authors' League of America, Inc., Mr. Charles A. Horsky, of Washington, D. C., on behalf of the American Civil Liberties Union, Mr. Arthur H. Clephane, of Philadelphia, Pa., on behalf of Curtis Publishing Company, and Mr. Elisha Hanson, of Washington, D. C., on behalf of American Newspaper Publishers Association, each filed briefs as amicus curiae, urging reversal.

Before MILLER, EDGERTON, and ARNOLD, Associate Justices.

Writ of Certiorari Granted October 22, 1945. See 66 S.Ct. 100.

ARNOLD, Associate Justice.

Esquire is a well known magazine of general circulation. It contains stories, articles,

151 F.2d 50
literary and dramatic reviews. Its contributors include distinguished authors, clergymen, and professors in our best educational institutions

The Postmaster General revoked the second-class mailing privileges of this magazine, not on the ground of obscenity but because he thought its dominant purpose was to publish writings and pictures described in his order as being "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."1 The revocation order would cost Esquire about $500,000 a year and put it in such a disadvantageous competitive position that it probably could not continue as a current magazine of general circulation.

The theory of the ruling depriving Esquire of second-class mailing privileges, while at the same time permitting it to be mailed at higher rates, is stated by the Postmaster General as follows: "A publication to enjoy these unique mail privileges emphasis added * * * 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."

No doubt such a duty exists. But it does not follow that an administrative official may be delegated the power first to determine what is good for the public to read and then to force compliance with his ideas by putting editors who do not follow them at a competitive disadvantage. It is inconceivable that Congress intended to delegate such power to an administrative official or that the exercise of such power, if delegated, could be held constitutional.2 Congress established the second-class mailing privileges because it believed that periodicals which disseminated public information, literature, art or science deserved to be encouraged on account of their contribution as a class to the public good. But the American way of obtaining that kind of contribution is by giving competitive opportunity to men of different tastes and different ideas, not by compelling conformity to the taste or ideas of any government official.

151 F.2d 51
This basic idea has nowhere been more eloquently expressed than in the famous quotation from Mr. Justice Holmes, dissenting in Abrams v. United States:3

"But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas, — that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution."

What the Government appears to assert is that the power to charge Esquire an additional $500,000 a year for use of the mails, unless it conforms to the Postmaster General's notions of the public good, is not a power to censor because the magazine may be mailed at the higher rate. The key to an understanding of this extraordinary contention is found in the Postmaster General's reference to second-class mailing rates as "unique privileges." He appears to think of his duty under the statute, not as administration of nondiscriminatory rates for a public service, but as analogous to the award of the Navy E for industrial contributions to the war. The Navy E is an award for exceptional merit. The second-class mailing rate is conceived by the Post Office to be an award for resisting the temptation to publish material which offends persons of refinement.

But mail service is not a special privilege.4 It is a highway over which all business must travel.5 The rates charged

151 F.2d 52
on this highway must not discriminate between competing businesses of the same kind. If the Interstate Commerce Commission were delegated the power to give lower rates to such manufacturers as in its judgment were contributing to the public good the exercise of that power would be clearly unconstitutional. Such a situation would involve freedom of competitive enterprise. The case before us involves freedom of speech as well

Little more need be said to decide this case. Nevertheless, since we hope that this is the last time that a government agency will attempt to compel the acceptance of its literary or moral standards relating to material admittedly not obscene, the voluminous record may serve as a useful reminder of the kind of mental confusion which always accompanies such censorship.

The first source of that confusion is, of course, the age old question when a scantily clad lady is art, and when she is highly improper. Some refined persons are hopeful that an answer to this vexing riddle may some day be found. Others are pessimistic. But whichever school eventually proves correct it is clear from the following cross-examination of one of the expert witnesses for the Post Office that the problem had not yet been solved when the record in this case went to press:

"Q. Now that you have heard Mr. O'Brien, could you tell me in your opinion whether that picture is decent or indecent? A. Well, taking the expression of the picture and who the person is and what her attitude in life is, I think it is decent. I think the purpose for which you do things in life has a great deal to do with it. It is the motive in those pictures which is harmful.

"Q. Will you look at this Exhibit 133, and tell me if this picture is decent or indecent? A. I think I am being trapped, Your Honor.

"Q. You found that out, haven't you? A. Yes. I knew I was going to be trapped when I came here and I know I shall be in every column tomorrow.

"Q. You haven't been reading the newspapers, have you? A. I read Dr. Marshall's testimony yesterday.

"Q. You did? A. Yes.

"Q. Now, just where and how are you being trapped? A. I am trying to be made a prude. I am not a prude.

"Q. Well, would you mind telling me if that picture is decent or indecent? A. If I had a daughter I shouldn't like to have her photograph in that costume. I have no daughter, I have only sons.

"Q. Is that your criterion for decency, Madam? A. My criterion for decency is anything that is proper, in order, certainly not harmful to human dignity. This woman is evidently by the ocean. I see the ocean there. She has probaby come in and out of the ocean and if she stays there all right for me, but I do not wish to see that picture displayed except where it belongs. I believe in suitability, suitability; I don't like the picture. It is not pleasing to me and to my eye because I don't believe in such poses.

"Now, I am going to be raked, I know, over the coals by those people over there for being a prude. No, I am not a prude. I know I am not a prude; I am a dignified woman who believes in life being lived for a purpose.

"Have you ever been to the headquarters of the National Education Society and seen the statue of Horace Mann: "Be not afraid to die unless you have won some victory for humanity". Do you think this sort of thing is winning a victory? I don't.

"Q. Well, do you think it is decent or indecent? A. I think it is indecent. You force me to an answer. I say it is indecent for a picture, not for the beach. You asked we about the picture. Now, I don't know that young lady. On the beach I think it would be all right, but not as a picture to be published in a magazine.

151 F.2d 53

"Q. This picture, Exhibit 131, do you think it is decent or indecent? A. I object to it very much.

"Q. Do you think it is decent or indecent? A. Do I have to answer, Your Honor?

"Q. I wish you would, please. A. It is a matter of please?

"Q. Yes. A. Then I refuse to answer. You have shown me enough. You know my state of mind.

"Q. Now, why do you refuse to answer? A. Because I will be misinterpreted."

A second source of confusion in determining what kind of literature furthers public welfare is the dividing line between refined humor and low comedy. To illustrate the difficulty inherent in this problem we cite the following colloquy between...

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  • Sierra Club v. United States Postal Service, No. C-71-1840 SW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 1, 1973
    ...106, 24 S.Ct. 595, 48 L.Ed. 894; Esquire, Inc. v. Walker, 55 F.Supp. 1015 (D.D.C.1944), reversed on other grounds 80 U.S.App.D.C. 145, 151 F.2d 49, affirmed Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586; Dell Publishing Co. v. Summerfield, 198 F.Supp. 843 (D.D.C. 1961)......
  • Atlanta Corporation v. Olesen, No. 17025-C.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 23, 1954
    ...many duties to perform and its tasks are not easy, but as Judge Arnold remarked in Esquire Inc., v. Walker, 1945, 80 U.S. App.D.C. 145, 151 F.2d 49 at page 55, affirmed Hannegan v. Esquire, 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. "We believe that the Post Office Officials should experience a f......
  • United States v. Weekly Publications
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 15, 1946
    ...although frequently referred to as a privilege is a "must" for publishers. Esquire, Inc., v. Walker, C.A.D.C., 1945, 80 U.S.App. D.C. 145, 151 F.2d 49, 51, aff. sub nom. Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, 66 S.Ct. It is a form of subsidy through extremely low postal rates, and a......
  • Hannegan v. Esquire, No. 399
    • United States
    • United States Supreme Court
    • February 4, 1946
    ...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 the importance of the problem in the administration of ......
  • Request a trial to view additional results
5 cases
  • Sierra Club v. United States Postal Service, No. C-71-1840 SW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 1, 1973
    ...106, 24 S.Ct. 595, 48 L.Ed. 894; Esquire, Inc. v. Walker, 55 F.Supp. 1015 (D.D.C.1944), reversed on other grounds 80 U.S.App.D.C. 145, 151 F.2d 49, affirmed Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586; Dell Publishing Co. v. Summerfield, 198 F.Supp. 843 (D.D.C. 1961)......
  • Atlanta Corporation v. Olesen, No. 17025-C.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 23, 1954
    ...many duties to perform and its tasks are not easy, but as Judge Arnold remarked in Esquire Inc., v. Walker, 1945, 80 U.S. App.D.C. 145, 151 F.2d 49 at page 55, affirmed Hannegan v. Esquire, 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. "We believe that the Post Office Officials should experience a f......
  • United States v. Weekly Publications
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 15, 1946
    ...although frequently referred to as a privilege is a "must" for publishers. Esquire, Inc., v. Walker, C.A.D.C., 1945, 80 U.S.App. D.C. 145, 151 F.2d 49, 51, aff. sub nom. Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, 66 S.Ct. It is a form of subsidy through extremely low postal rates, and a......
  • Hannegan v. Esquire, No. 399
    • United States
    • United States Supreme Court
    • February 4, 1946
    ...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 the importance of the problem in the administration of ......
  • Request a trial to view additional results

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