United States v. Ginzburg, No. 14742-14745.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: McLAUGHLIN, KALODNER and STALEY, Circuit
• Citation: 338 F.2d 12
• Decision Date: 06 November 1964
• Docket Number: No. 14742-14745.
• Parties: UNITED STATES of America, v. Ralph GINZBURG, Documentary Books, Inc., Eros Magazine, Inc. and Liaison News Letter, Inc., Appellants.

338 F.2d 12 (1964)

UNITED STATES of America,
v.
Ralph GINZBURG, Documentary Books, Inc., Eros Magazine, Inc. and Liaison News Letter, Inc., Appellants.

Nos. 14742-14745.

United States Court of Appeals Third Circuit.

Argued June 16, 1964.

Decided November 6, 1964.

338 F.2d 13

David I. Shapiro, Washington, D. C. (Sidney Dickstein, Washington, D. C., Norman Oshtry, Philadelphia, Pa., on the brief), for appellants.

J. Shane Creamer, Asst. U. S. Atty., Philadelphia, Pa. (Drew J. T. O'Keefe, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Morey M. Myers, Scranton, Pa., Murry Powlen, Philadelphia, Pa., Melvin L. Wulf, New York City, on the brief for American Civil Liberties Union and Its Pennsylvania Affiliate, amici curiae.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellants were convicted of violating the federal obscenity law, 18 U.S.C. § 1461. All three publications involved were found to be obscene under the statute. The record shows that in September, 1962, appellant Eros Magazine, Inc. of which appellant Ginzburg was editor and publisher, after a great deal of deliberation endeavored to obtain what was considered advantageous mailing privileges from Blue Ball, Pennsylvania. Meeting with no success there, a similar try was made with the Post Office at Intercourse, Pennsylvania. Again rejected, a final successful effort was made at the Middlesex, New Jersey Post Office from which over five million advertisements of Eros were mailed. It is not disputed that the bulk of the mailings for the three publications was from Middlesex. In the advertisements above mentioned, inter alia, appeared the following:

"The publication of this magazine — which is frankly and avowedly concerned with erotica — has been enabled by recent court decisions * * to be published."

The magazine Eros was thereafter mailed out from Middlesex. It is with Volume 1, No. 4, 1962 thereof that we are concerned. Eros is a quarterly. Its price is $25. a year.

The second publication was mailed in November, 1962. It was a book which had been originally titled by its author "The Housewife's Handbook for Promiscuity". That book so titled had been sold by mail to a selected list by the author. The title was later changed to read "Housewife's Handbook on Selective Promiscuity". The mailing in this instance was under the latter title. Its price is $4.95.

The third publication is a biweekly newsletter called Liaison. According to the witness Darr who was hired by appellant Ginzburg as editor of Liaison, Ginzburg told him that "* * * Liaison was to cover the same scope as Eros, in a more newsworthy fashion." Darr was hired after he had specially written and submitted a piece titled "How to Run a Successful Orgy". Ginzburg telephoned him and asked him "When can you start to work?" The particular piece in revised form was published in Liaison. The price of Liaison was $15, later reduced to $4.95.

The advertising material, concededly not obscene of itself, was admittedly mailed by appellants on the specified dates with full knowledge of its contents.

The case was tried to the court, a jury trial having been waived by appellants. The trial consumed five days. Appellants were found guilty on all counts on June 14, 1963. Later, at the request of the appellants, on August 6, 1963, the court filed special detailed findings of fact. Summing up those findings, the court said:

"In conclusion, after a thorough reading and review of all the indicted materials, this Court finds that said materials are compilations of sordid narrations dealing with sex, in each

338 F.2d 14

case in a manner designed to appeal to prurient interests. They are devoid of theme or ideas. Throughout the pages of each can be found constant repetition of patently offensive words used solely to convey debasing portrayals of natural and unnatural sexual experiences. Each in its own way is a blow to sense, not merely sensibility. They are all dirt for dirt\'s sake and dirt for money\'s sake."

We have read, examined and considered the publications involved in this appeal, "* * * in the light of the record made in the trial court, * *." Jacobellis v. Ohio, 378 U.S. 184, 196, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964). The only important question before us is whether the publications are obscene under the federal statute. Since this calls for a constitutional judgment it is our duty to decide it. Under the obscenity tests laid down by the Supreme Court, the Constitutional status of the publications "* * * must be determined on the basis of a national standard." Jacobellis, supra, p. 195, 84 S.Ct. p. 1682. This is peculiarly fitting here where over five million advertisements for the Eros material were mailed out to prospects in this country.

Also we have very much in mind that as the Supreme Court stated in Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957):

"All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance."

The Court went on to say, 354 U.S. p. 487, 77 S.Ct. p. 1310, that "* * * sex and obscenity are not synonymous" and ruled on p. 487, 77 S.Ct. p. 1310 that "Obscene material is material which deals with sex in a manner appealing to prurient interest." It quoted with approval the American Law Institute, Model Penal Code, proposed official draft (May 4, 1962), § 251.41(1):

"`* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *\'"

The same necessary quality named in Roth, supra, and Jacobellis, supra, as affronting current national community standards is described in Manual Enterprises v. Day, 370 U.S. 478, 482, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962) as "`patent offensiveness' or `indecency'". At pages 483, 484, 82 S.Ct. pages 1434-1435, the Day opinion, speaking of the federal obscenity law, notes that "* * * the statute since its inception has always been taken as aimed at...