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May 7, 1957

Irving KLAW, Plaintiff,
Robert H. SCHAFFER, individually, and as Postmaster of the United States Post Office of New York, New York, Defendant

The opinion of the court was delivered by: EDELSTEIN

The parties have cross-moved for summary judgment in an action to enjoin the defendant Postmaster from carrying out the order of the Postmaster General issued under the provisions of 39 U.S.C. § 259a, 39 U.S.C.A. § 259a, directing that mail addressed to the plaintiff be marked 'unlawful' and returned to the senders. The complaint also seeks a declaratory judgment that 39 U.S.C. § 259a, 39 U.S.C.A. § 259a is unconstitutional as repugnant to the First, Fifth and Eighth Amendments, and a judicial review under the Administrative Procedure Act, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. 1001 et seq., of the decision and determination of the Hearing Examiner and the approval of that decision by the Solicitor for the Post Office Department and the Postmaster General.

After the issuance of an administrative complaint, and upon appropriate notice, an administrative hearing was held on the charge that the plaintiff was conducting an unlawful enterprise through the mails in violation of 39 U.S.C. § 259a, 39 U.S.C.A. § 259a. The Hearing Examiner filed findings that the plaintiff was obtaining and soliciting remittances of money through the mails for obscene, lewd, lascivious and indecent photographs, drawings, cartoons and motion pictures, and was giving information by mail about where, how or from whom such material might be obtained. The plaintiff in this action thereafter appealed to the Solicitor for the Post Office Department who affirmed the initial decision of the Hearing Examiner, and an order was issued by the Postmaster General to the Postmaster in New York, New York, directing that all mail addressed to the plaintiff be marked 'Unlawful: Mail to this address returned by order of the Postmaster General', and forbidding the payment of any money order in favor of the plaintiff.

 After the filing of the complaint in this action, Judge Dimock signed a temporary restraining order requiring the Postmaster to impound the mail addressed to the plaintiff, and an order to show cause why a preliminary injunction should not be granted. Subsequently the plaintiff and defendant agreed to adjourn the motion for preliminary injunction and consented that the restraining order should remain in effect until the court had decided the case upon its merits. A consent order was entered by Judge Levet extending the temporary restraining order until plaintiff's motion for an injunction had been decided.

 The plaintiff argues that the order of the Postmaster prohibiting receipt of all mail is illegal on the ground that it exceeds the scope of authority granted under Section 259a of Title 39 U.S.Code, 39 U.S.C.A. § 259a. *fn1" It is further argued that if Section 259a can be interpreted to permit a prohibition of the receipt of all mail, the statute is unconstitutional as a prior restraint under the First Amendment. Plaintiff's affidavit' which is apparently uncontradicted, indicates that only about 40% of his business concerns material which the Post Office Department claimed to be forbidden by the statute. The remaining 60% consists of material against which no charges were directed. Moreover, a number of exhibits which were the subject of charges were found not be offensive.

 A literal reading of the section does not compel the conclusion that only mail against which a factual determination of obscenity has been made may be barred. In Public Clearing House v. Coyne, 194 U.S. 497, 24 S. Ct. 789, 48 L. Ed. 1092, the Supreme Court considered a fraud statute worded, in relevant portions, almost identically with subsection (a) of Section 259a, and upheld the statute interpreted to permit letters to be detained that had not been factually determined to be connected with a fraudulent enterprise. I conclude that the order of the Postmaster does not exceed the scope of authority granted him under Section 259a.

 But the plaintiff's most urgent contention is that the section so interpreted is unconstitutional as a prior restraint under the First Amendment, citing Summerfield v. Sunshine Book Company, 95 U.S.App.D.C. 169, 221 F.2d 42, 45, certiorari denied 349 U.S. 921, 75 S. Ct. 661, 99 L. Ed. 1253. In that case. certain nudist magazines, illustrated with photographs, were found after an administrative hearing to be obscene within the meaning of Section 259a, and an order was issued directing the interception and return of all mail addressed to the company. The court formulated the issue thus:

 'Should this court then construe Section 259a to authorize the issuance of orders of indefinite duration which hamper or prevent the continuance of the publication and distribution of a magazine -- with a substantial and admittedly innocuous text -- because its past issues have been found to contain some obscene illustrations, although none of its future issues may contain obscene matter within the meaning of the statute?'

 On the basis of the Supreme Court's decision in Donaldson v. Read Magazine, 333 U.S. 178, 68 S. Ct. 591, 92 L. Ed. 628, the court resolved the issue by declaring that the orders must be confined to materials already published, and duly found unlawful. Otherwise, it was said, the Postmaster General would be permitted 'to prevent -- in practical effect -- the continued publication of a magazine without any advance knowledge that its future issues will be in violation of law, and thus to suppress putatively lawful activities. *fn2" Grave constitutional questions would then be presented.' But that is far from the situation at bar. The plaintiff does not publish a periodical or engage in a business which by its nature is so distinctly divisible into separate enterprises that one part may not properly be identified with the remainder. *fn3" Indeed, it appears that he is engaged in a single activity of supplying photographs, cartoons and motion pictures of women classifiable only in the degree of their salaciousness. I do not read Summerfield v. Sunshine Book Company as authority to provide immunity to such a business on the ground that only a substantial portion of it, rather than all of it, is offensive under the statute. It is the kind of a business, as distinguished from that in the Sunshine case, in which it is not too much to assume that prima facie all letters are identified with the prohibited enterprise. This reasoning, as set forth by the Supreme Court in Public Clearing House v. Coyne, supra, 194 U.S. at page 510, 24 S. Ct. at page 794, is decisive:

 'Nor do we think the law unconstitutional, because the Postmaster General may seize and detain all letters, which may include letters of a purely personal or domestic character, and having no connection whatever with the prohibited enterprise. In view of the fact that by these sections the postmaster is denied permission to open any letters not addressed to himself, there would seem to be no possible method of enforcing the law except by authorizing him to seize and detain all such letters. It is true it may occasionally happen that he would detain a letter having no relation to the prohibited business; but where a person is engaged in an enterprise of this kind, receiving dozens and perhaps hundreds of letters every day containing remittances or correspondence connected with the prohibited business, it is not too much to assume that, prima facie at least, all such letters are identified with such business. A ruling that only such letters as were obviously connected with the enterprise could be detained would amount to practically an annullment of the law, as it would be quite impossible, without opening and inspecting such letters, which is forbidden, to obtain evidence of the real facts.'

 The Supreme Court specifically declined to overrule the Coyne case in Donaldson v. Read Magazine, 333 U.S. 178, 191, 68 S. Ct. 591, 92 L. Ed. 628. Accordingly, I find that there is no substantial constitutional question to justify the convening of a three-judge statutory court under 28 U.S.C. § 2282. California Water Service Co. v. City of Redding, 304 U.S. 525, 58 S. Ct. 865, 82 L. Ed. 1323.

 The plaintiff vigorously challenges the finding that his publications are obscene. The exhibits in the case consist in part of photographs of models, not nude, described by plaintiff as 'pin-up' or 'cheesecake' pictures, but described by defendant as 'strip-tease' pictures. The greater part of the material, however, consists of sadomasochistic and fetishistic material: photographs, drawings, cartoons and motion pictures of scantily clad women bound, gagged and otherwise fettered; or inflicting and being subjected to varieties of physical punishment or torture, by each other or by means of intricately contrived machines, instruments and devices; or wearing tightly laced, strapped or fastened girdles, boots, belts, hoods, straight jackets, or other similarly constricting clothing. The Hearing Examiner found, on the basis of expert testimony, that the sadomasochistic and fetishistic material would, upon being viewed by those persons subject to certain sexual deviations, tend to cause erotic and lustful sexual stimulation. And he further found, without reference to expert testimony, but on the basis of the material itself, that it would have a similar effect upon the normal average male, offending the present and prevailing standards of decency, modesty and morality of the country.

 In connection with the sadistic, masochistic and fetishistic materials, the plaintiff implicitly admits their peculiar appeal and effect. There was expert testimony in the record, disregarded by the examiner, that such materials would induce an erotic sensation in only a minute percentage of the population, and would have no particular effect upon the normal male. Plaintiff contends that, inasmuch as the test of obscenity is the effect upon the normal individual, these pictures cannot be obscene by the legal standard.

 In an earlier day, the test of obscenity was that laid down by Lord Cockburn in Regina v. Hicklin, (1868) L.R. 3 Q.B. 360, 369: 'Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.' But Judge Learned Hand, in United States v. Kennerly, D.C., 209 F. 119, 121, suggested that the test be modified to permit the word 'obscene' to 'indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now * * *'. His suggestion has since found its expression in the law. The classical expression is one by Judge Woolsey in United States v. One Book Called 'ulysses', 5 F.Supp. 182, 184, affirmed 2 Cir., 72 F.2d 705:

 'The meaning of the word 'obscene' as legally defined by the courts is: Tending to stir the sex impulses or to lead to sexually impure and lustful thoughts. * * * Whether a particular book would tend to excite such impulses and thoughts must be tested by the court's opinion as to its effect on a person with average sex instincts -- what the French would call l'homme moyen sensuel -- who plays, in this branch of legal inquiry, the same role of hypothetical reagent as ...

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