Roth v. Goldman

• Decision Date: 08 February 1949
• Docket Number: No. 152,Docket 21210.,152
• Citation: 172 F.2d 788
• Parties: ROTH v. GOLDMAN.
• Court: U.S. Court of Appeals — Second Circuit

172 F.2d 788 (1949)

ROTH v.GOLDMAN.

No. 152, Docket 21210.

United States Court of Appeals Second Circuit.

February 8, 1949.

Harry Rappaport, of New York City, for plaintiff-appellant.

Harold J. Raby, Asst. U. S. Atty., of New York City(John F. X. McGohey, U. S. Atty., of New York City, on the brief), for defendant-appellee.

Before AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.

PER CURIAM.

This injunction action serves to bring up for review the validity of five orders of the Postmaster General, entered after administrative proceedings and hearings, excluding from the mails three books published by plaintiff under various trade names.The vagaries of censorship are perhaps suggested by the fact that only one of these books was excluded as "obscene, lewd, or lascivious,"18 U.S.C.A. §§ 334,339 now §§ 1461, 1342, 39 U.S.C.A. § 255, while all material concerning the others was held unmailable because of the steps taken to secure mail orders for them by fraudulently advertising them to be salacious when they were not.39 U.S.C.A. §§ 259,732.The orders involving these latter books actually cause us the less difficulty just because the standards of fraud are at least somewhat clearer than those of obscenity.There can be little doubt of the misleading character of the condemned advertising or of the sufficiency of the evidence to sustain these administrative findings.

The other order, based upon a finding of obscenity as to a single book, naturally presents more of a problem because of the imprecise judicial meaning of the statutory terms and the many doubts now held as to the feasibility of administrative or judicial review of book publishing mores and standards.Involved here is a collection of some ninety-six "waggish tales," supposed to have been brought down to us from another era and another clime, and sold through the mails at the special discount of $10 from the listed $20 per volume.Our task is not made easier, however, when we discover them to be American-made or shared smoking room jests and stories, obscene or offensive enough by any refined standards and only saved, if at all, by reason of being both dull and well known.It is urged that such material is not of the sort to stimulate lust.Waiving the question how a court may test such a claim, we may suggest the curious dilemma involved in a view that the duller the book, the more its lewdness is to be excused or at least accepted.If under existing decisions, however, there be some reason to suppose that only books which are dull and without substantial literary merit will be suppressed, it may be answered that within limits it perhaps is not unreasonable to stifle compositions that clearly have little excuse for being beyond their provocative obscenity and to allow those of literary distinction to survive.But in any event, decision under the law here applicable is committed in the first instance to an administrative official; and under normal rules, therefore, judicial review channelled within the confines of a plea for an injunction should not be overextensive.Certainly material such as this does not afford much stimulus or basis for a finding of abuse of administrative discretion or power

Affirmed.

FRANK, Circuit Judge (concurring).

This is the first case in which I have sat where the validity of an administrative order suppressing a book allegedly obscene has been contested.Because of my judicial inexperience in this field, I yield in this case to the more experienced judgment of my colleagues.But I do so with much puzzlement, and with the hope that the Supreme Court will review our decision, thus dissipating the fogs which surround this subject.For, as I shall try to show, those fogs are indeed thick, and I find no clear light penetrating them either in my colleagues' opinion in this suit or elsewhere.

My private tastes are such that I think the American people will suffer no great loss if deprived of the opportunity to read Waggish Tales from the Czechs.But far more is here involved than this particular book: Our decision will become a precedent — in a circuit which includes America's great publishing center — affecting the exercise of the right of free press guaranteed by the First Amendment.Our decision may put in peril other writings, of a higher order of excellence, which any man who happens at the moment to be Postmaster General happens to find offensive.

For my colleagues allow small room for court review, saying that the determination of obscenity "is committed in the first instance to an administrative official; and, under normal rules, therefore, judicial review channeled within the confines of a plea for an injunction¹ should not be overextensive."That ruling vests immense administrative censorship authority in one fallible man, makes him an almost despotic arbiter of literary products.If one day he bans a mediocre book, another day he may do the same to a work of genius.Originality is not so common that we should lightly contemplate its potential stifling.And censorship does more than to keep finished books from being sold: it keeps many from ever being written.Tolstoy and other Russians of the Czarist era have told how fear of the censor impeded their creative writing.An American author's imagination may be severely cramped if he must write with one eye on the Postmaster General; authors must cope with publishers who, uncertain about that official's judgment, may refuse to accept the manuscripts of contemporary or future Shelleys or Whitmans.

Such a condition is compatible with the ideologies of Hitlers,² Czars and Commissars.It does not accord with democratic ideals which repudiate thought-control."Freedom of thought," it has been wisely said, "* * * is worthless unless it goes with freedom of expression.Thought is impossible without expression; thought is expression; an unexpressed thought, like an unlaid egg, comes to nothing.Given this freedom, then, other freedoms follow."³The "right of expression beyond the conventions of the day," wrote Mr. Justice Frankfurter three years ago, is "the very basis of a free society."⁴It would seem desirable that, in this industrial age, when economic pursuits will, perforce, become increasingly regulated by government, the realm of art should remain free, unregimented, the domain of unrestricted competition, free enterprise, and unhampered individual initiative at its maximum.⁵De gustibus non disputandum represents a cherished democratic maxim.Governmental control of the individual's taste may insidiously expand into menacing widespread anti-democratic practices."Man," warned Goethe, "is easily accustomed to slavery and learns quickly to be obedient when his freedom is taken from him."

In that vein, President Franklin Roosevelt said: "The arts cannot thrive except where men are free to be themselves and to be in charge of the discipline of their own energies and ardors.The conditions for democracy and for art are one and the same.What we call liberty in politics results in freedom in the arts. * * * American artists * * * have no compulsion to be limited in method or manner of expression."⁶Disturbed by the way my colleagues' ruling runs counter to that ideal.I think it not inappropriate to ask some questions.

1.In the light of the First Amendment, it is not, I think, frivolous to ask a question about the constitutional power of Congress to authorize an official to bar from the mails, and probably thus largely to suppress, any book or writing he finds obscene.For Mr. Justice Holmes, dissenting, with Mr. Justice Brandeis' concurrence, in Leach v. Carlile, 258 U.S. 138, 140, 141, 42 S.Ct. 227, 229, 66 L.Ed. 511, asserted the unconstitutionality of one of the very suppression statutes before us in this case,⁷ for the reason that the First Amendment was "intended to prevent restraints"⁸ except those needed "for the safety of the nation."⁹Mr. Justice Frankfurter, concurring in Hannegan v. Esquire, Inc., 327 U.S. 146, 160, 66 S.Ct. 456, 90 L.Ed. 586, cited with approval the dissent in Leach v. Carlile.The majority of the Court in the Esquire case, speaking through Mr. Justice Douglas, remarked, 327 U.S. 156, 66 S.Ct. 461, that "grave constitutional questions are immediately raised once it is said that the use of the mails is a privilege which may be extended or withheld on any grounds whatsoever."¹⁰It is germane here that several times the Supreme Court has with seeming approval referred to the distinction first proposed by Mr. Justice Stone in United States v. Carolene Products Co., 304 U.S. 144, 152 note, 58 S.Ct. 778, 783, 82 L.Ed. 1234: "There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments. * * *"SeeThomas v. Collins, 323 U.S. 516, 529, 530, 65 S.Ct. 315, 89 L.Ed. 430;cf.Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093;Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155;Herndon v. Lowry, 301 U.S. 242, 258, 57 S.Ct. 732, 81 L.Ed. 1006;Bridges v. California, 314 U.S. 252, 262, 263, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346;Skinner v. Oklahoma, 316 U. S. 535, 543, 544, 62 S.Ct. 1110, 86 L.Ed. 1655;Kovacs v. Cooper, 69 S.Ct. 448, 458.Some there are who doubt the wisdom of that distinction;¹¹ but members of an inferior court, like ours, may not judicially act on such doubts.Mr. Justice Frankfurter, concurring in the recent Kovacs case, objected to what he described as the oversimplified and dogmatic formulation of the distinction; yet he said that, since "without freedom of expression, thought becomes checked and atrophied,"he would adhere to the views of Mr. Justice Holmes who "was far more ready to find legislative invasion of the Constitution where free inquiry was involved than in the debatable area of economics."

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