Poss v. Christenberry

• Decision Date: 21 December 1959
• Citation: 179 F. Supp. 411
• Parties: Sidney G. POSS, doing business as Camerart Studios, Plaintiff, v. Robert F. CHRISTENBERRY, Postmaster at New York, Defendant.
• Court: U.S. District Court — Southern District of New York

179 F. Supp. 411

Sidney G. POSS, doing business as Camerart Studios, Plaintiff, v. Robert F. CHRISTENBERRY, Postmaster at New York, Defendant.

United States District Court S. D. New York.

December 21, 1959.

Martin Benjamin, New York City, for plaintiff.

S. Hazard Gillespie, Jr., U. S. Atty., for the Southern Dist. of New York, New York City, for United States, Arthur V. Savage, Asst. U. S. Atty., New York City, of counsel.

BRYAN, District Judge.

Plaintiff, who does business as "Camerart Studios", sues for judgment declaring that an order of the Postmaster General issued against him under 39 U.S. C.A. § 259a is null and void and to restrain the New York Postmaster from enforcing such order. Plaintiff now moves for a preliminary injunction restraining the New York Postmaster from "interfering with the mail addressed to and from plaintiff" pending the final determination of the action. Defendant Postmaster cross-moves for summary judgment, pursuant to Rule 56, F.R. Civ.P., 28 U.S.C.A., upon the complaint and the record of the administrative proceeding before the Post Office Department.

In April of this year the general counsel of the Post Office commenced an administrative proceeding against the plaintiff by the service of an administrative "letter complaint" upon "Camerart". The complaint alleged that Camerart Studios was violating 39 U.S.C.A. § 259a¹ by "depositing * * * in the mail, advertisements * * * giving information as to where, how and from whom obscene, lewd, lascivious and indecent * * * matter * * * may be obtained". On April 13, 1959 a temporary order was entered pursuant to § 259a which impounded mail addressed to Camerart for twenty days.

A hearing on the complaint was held before a Post Office Hearing Examiner on June 4, 1959. At the hearing the Department did not charge that the circular itself, or the matter which it contained, was obscene, or that the material to be sent to purchasers in response to the advertisement was obscene. The sole theory on which it proceeded was that the whole tone of the circular "gives the leer that promises the customer some obscene pictures" under the holding of United States v. Hornick, 3 Cir., 229 F.2d 120, 121.

The mailings were admitted by the respondent and the Department relied solely on the circular itself. None of the material to be sent in response to the solicitations made by the circular was before the Examiner, and there was no evidence as to what such material was other than the representations contained in the circular.

Respondent met the Department's charge with the argument that the circular on its face showed that the publisher had "an honest intent to sell art" and offered for sale merely an introduction to art plus cameras and viewing equipment. He contended that the circular could not be said to promise obscene material, directly, by implication or otherwise.

The only evidence which respondent offered was an advertisement on a page from the May 1959 issue of the U. S. Camera magazine which he claimed to be a technical publication of general circulation in the United States. The offer was made for the purpose of showing that material comparable to that in the circular was generally circulated and did not violate contemporary community standards. However, though a picture of a nude was shown as a mere incident to an advertisement for a photography school, the material was in no way comparable in tone or content to the circular involved here.

The proffered exhibit was excluded by the Hearing Examiner on the grounds that evidence of community standards was not relevant to the issues before him and on the further ground that the proffered matter had been taken out of context and thus, in any event, could shed no light on the issues.

At the conclusion of the hearing the Examiner rendered an oral decision finding that the circular under attack came within the purview of Section 259a since it came within the holding of United States v. Hornick, supra, and therefore gave information as to where and how obscene matter might be obtained.

On appeal the Judicial Officer of the Post Office Department affirmed the Examiner's decision and held that he had properly concluded "that the tests of the Hornick case were met and that a reasonable man reading the circular at issue would believe that he would be furnished obscene pictures by the respondent if he sent money requesting the matter advertised." The Judicial Officer also noted that similar matter had been held to violate the obscenity statutes in Monart, Inc. v. Christenberry, D.C.S.D.N.Y., 168 F.Supp. 654, and Glanzman v. Christenberry, D.C.S.D.N.Y., 175 F.Supp. 485.

The Postmaster General then entered a final order directing the New York Postmaster not to honor postal money orders drawn in favor of "Camerart Studios and its agents and representatives" and not to deliver mail addressed to such parties but to return it to the sender marked "Unlawful". This action followed.

Two questions are presented here. Is the defendant entitled to summary judgment? If not, is plaintiff entitled to a preliminary injunction? Different considerations apply to each of these questions and I shall deal with the summary judgment question first.

The circular in question advertises for sale motion pictures, stills and slides of female nudes to "help you develop your latent creative ability". It contains photographs of 16 completely nude ladies in various provocative and suggestive poses. The photographs prominently feature the breasts of the posed nudes so as to focus attention on them. Each "model" is given a rather showy and presumably glamorous name. There is an attempt to conceal one portion of the anatomy only. Such concealment as there is has nothing to do with modesty but is rather designed to suggest and provoke. On the frontispiece of the circular there appears a man with a camera seemingly taking a picture of the only concealed portion of the anatomy of one of the models.

The prospective purchaser is invited to order his movies, stills or slides by the name of the model he prefers. He also may order a pocket movie viewer or a folding slide viewer with wallet "which you can keep in your pocket" for handy "on the spot" viewing. It is noted that "you must be over 21 to order".

Most of the text has implications similar to those in the language representing that each movie features "a different model in a varied assortment of unretouched front, side and back views" and asking that the customer "open up and see for yourself how our nude movies, photos and color slides will help you". The figures are referred to several times as "art nudes" and on the last page the circular says:

"The Female Nude Figure * *

"It's a known fact that the basic way of learning to be creative is to study and master the Female Nude Figure!

"Naturally, the best way of studying the Female Nude Figure is to have real, live models pose for you but in most cases, this ideal situation is not readily available. The very next best thing then, is to have your very own personal ready reference Nude photographic file.

"That's where we come in! We will supply you with this practical working material in the form of our Guaranteed Unretouched Nude Movies, Photos and Color Slides that include many differently proportioned models posed in front views, back views, full length, and close-up poses.

"Don't delay * * * study and then master the Nude Female Figure by mailing your order for our exclusive * * * professionally made Nude Movies, Photos and Color Slides."

As I have noted, the Post Office Department did not make a finding that this circular was obscene, or that the material which it advertised was obscene. Its finding that the circular violated Section 259a is based solely on the construction given by the Hornick case to 18 U.S.C. § 1461,² the criminal obscenity statute which Section 259a parallels.

Hornick involved an appeal from a conviction under Section 1461 for depositing in the mails advertisements giving information as to where obscene matter could be obtained. It was not claimed, and the court did not find, that the circulars mailed were in themselves obscene. The material advertised was not before the court and there was no evidence as to its contents. The court merely found "that the whole tone of both of these advertisements gives the leer that promises the customer some obscene pictures". It held that it made no difference whether the advertisement itself was obscene or whether the matter to be supplied pursuant to the advertisement turned out to be obscene. The offense of mailing material giving information as to where obscene matter might be obtained was committed if the mailed material purported to give such information "even though what was sent in response to the advertisement to the gullible purchasers is as innocent as a Currier & Ives print or a Turner landscape".

The court affirmed the conviction solely on this theory.

Hornick was decided prior to Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, which laid down the tests to be applied in determining what material may be found obscene and thus not entitled to the constitutional protections of freedom of speech and press. I have recently had occasion to discuss the Roth case and its effects in Grove Press, Inc. v. Christenberry, D.C. S.D.N.Y., 175 F.Supp. 488, 492-494, 498-499. There is no need to cover the ground again here.

Roth holds that material is obscene if "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest" 354 U.S. 476, 77 S.Ct. 1311. Only material meeting this test may be excluded from the protections of the First Amendment on the ground that it is obscene. Neither the Roth case nor the cases which follow it, nor those which it cites with approval, hold that a mere promise to supply material which may be obscene falls within the penumbra...