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July 21, 1959

GROVE PRESS, INC. and Readers' Subscription, Inc., Plaintiffs,
Robert K. CHRISTENBERRY, individually and as Postmaster of the City of New York, Defendant

The opinion of the court was delivered by: BRYAN

These two actions against the Postmaster of New York, now consolidated, arise out of the denial of the United States mails to the recently published Grove Press unexpurgated edition of 'Lady Chatterley's Lover' by D. H. Lawrence.

Plaintiffs seek to restrain the Post-master from enforcing a decision of the Post Office Department that the unexpurgated 'Lady Chatterley's Lover', and circulars announcing its availability, are non-mailable under the statute barring obscene matter from the mails (18 U.S.C. § 1461). *fn1" They also seek a declaratory judgment to the effect (1) that the novel is not 'obscene, lewd, lascivious, indecent or filthy' in content or character, and is not non-mailable under the statute or, in the alternative, (2) that if the novel be held to fall within the purview of the statute, the statute is to that extent invalid and violates plaintiffs' rights in contravention of the First and Fifth Amendments.

Grove Press, Inc., one of the plaintiffs, is the publisher of the book. Readers' Subscription, Inc., the other plaintiff, is a book club which has rights to distribute it.

 Defendant has moved and plaintiffs have cross-moved for summary judgment, pursuant to Rule 56, F.R.Civ.P., 28 U.S.C. There are no disputed issues of fact. The cases are before me for final determination on the pleadings, the decision of the Postmaster General, the record before him and supplemental affidavits. *fn2"

 On April 30, 1959 the New York Post-master withheld from dispatch some 20,000 copies of circulars deposited for mailing by Readers' Subscription, which announced the availability of the new Grove edition of Lady Chatterley. At about the same time he also detained a number of copies of the book which had been deposited for mailing by Grove Press.

 On May 8, 1959 letters of complaint issued by the General Counsel of the Post Office Department were served on Grove and Readers' Subscription alleging that there was probable cause to believe that these mailings violated18 U.S.C. § 1461, and advising them of a departmental hearing. The respondents filed answers denying these allegations and a hearing was held before the Judicial Officer of the Post Office Department on May 14, 1959. *fn3"

 The General Counsel, as complainant, introduced the Grove edition and the circulars which had been detained and rested.

 The respondents offered (1) testimony as to their reputation and standing in the book publishing and distribution fields and their purpose in publishing and distributing the novel; (2) reviews of the book in leading newspapers and literary periodicals throughout the country; (3) copies of editorials and comments in leading newspapers concerning publication of the book and its anticipated impact; (4) news articles dealing with the banning of the book by the Post Office; and (5) expert testimony by two leading literary critics, Malcolm Cowley and Alfred Kazin, as to the literary stature of the work and its author, contemporary acceptance of literature dealing with sex and sex relations and their own opinions as to the effect of the book on its readers. The editorials and comments and the news articles were excluded.

 The Judicial Officer before whom the hearing was held did not decide the issues. On May 28 he issued an order referring the proceedings to the Postmaster General 'for final departmental decision.' *fn4"

 On June 11, 1959 the Postmaster General rendered a departmental decision finding that the Grove edition 'is obscene and non-mailable pursuant to 18 U.S.Code § 1461,' and that the Readers' Subscription circulars 'give information where obscene material, namely, the book in issue in this case, may be obtained and are non-mailable * * *.'

 This litigation, which had been commenced prior to the decision, was then brought on for hearing.


 The basic question here is whether the unexpurgated 'Lady Chatterley's Lover' is obscene within the meaning of 18 U.S.C. § 1461, *fn5" and is thus excluded from the protections afforded freedom of speech and the press by the First Amendment.

 However, the defendant takes the position that this question is not before me for decision. He urges that the determination by the Postmaster General that this novel is obscene and non-mailable is conclusive upon the court unless it is found to be unsupported by substantial evidence and is clearly wrong. He argues, therefore, that I may not determine the issue of obscenity de novo.

 Thus, an initial question is raised as to the scope of the court's power of review. In the light of the issues presented, the basis of the Postmaster General's decision, and the record before him, this question is not of substance.

 (1) Prior to Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, the Supreme Court had 'always assumed that obscenity is not protected by the freedoms of speech and press.' However, until then the constitutional question had not been directly passed upon by the court. In Roth the question was squarely posed.

 The court held, in accord with its longstanding assumption, that 'obscenity is not within the area of constitutionally protected speech or press.' *fn6"

 The court was faced with a dilemma. On the one hand it was required to eschew any impingement upon the cherished freedoms of speech and the press guaranteed by the Constitution and so essential to a free society. On the other hand it was faced with the recognized social evil presented by the purveyance of pornography.

 The opinion of Mr. Justice Brennan for the majority makes it plain that the area which can be excluded from constitutional protection without impinging upon the free speech and free press guarantees is narrowly limited. He says (354 U.S. at page 484, 77 S. Ct. at page 1309):

 '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 guarantees, unless excludable because they encroach upon the limited area of more important interests.'

 He gives stern warning that no publication advancing such ideas can be suppressed under the guise of regulation of public morals or censorship of public reading matter. As he says (354 U.S. at page 488, 77 S. Ct. at page 1311):

 'The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.'

 It was against the background of these constitutional requirements that the Court laid down general standards for judging obscenity, recognizing that it was 'vital that (such) standards * * * safeguard the protection of freedom of speech and press for material which does not treat sex' in an obscene manner. The standards were 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

 The Court did not attempt to apply these standards to a specific set of facts. It merely circumscribed and limited the excluded area in general terms.

 Plainly application of these standards to specific material may involve no little difficulty as the court was well aware. Cases involving 'hard core' pornography, or what Judge Woolsey referred to as 'dirt for dirt's sake,' *fn7" purveyed furtively by dealers in smut, are relatively simple. But works of literary merit present quite a different problem, and one which the majority in Roth did not reach as such. *fn8"

 Chief Justice Warren, concurring in the result, said of this problem (354 U.S. at page 476, 77 S. Ct. at page 1314):

 '* * * The history of the application of laws designed to suppress the obscene demonstrates convincingly that the power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social controversy. Mistakes of the past prove that there is a strong countervailing interest to be considered in the freedoms guaranteed by the First and Fourteenth Amendments.'

 And Mr. Justice Harlan, dissenting, also deeply concerned, had this to say (354 U.S. at pages 497, 498, 77 S. Ct. at page 1315):

 '* * * The suppression of a particular writing or other tangible form of expression is * * * an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressible within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem in the last analysis becomes one of particularized judgments which appellate courts must make for themselves.

 'I do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as 'obscene', for, if 'obscenity' is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind.'

 Mr. Justice Frankfurter, concurring in Kingsley International Pictures Corp. v. Regents, 79 S. Ct. 1362, 1369 expressed a similar view. He pointed out that in determining whether particular works are entitled to the constitutional protections of freedom of expression 'We cannot escape such instance-by-instance, case-by-case * * * (constitutional adjudication) in all the variety of situations that come before this Court.' And Mr. Justice Harlan, in the same case, also concurring in the result, speaks of 'the necessity for individualized adjudication. In the very nature of things the problems in this area are ones of individual cases * * *.'

 These views are not inconsistent with the decisions of the majority determining both Roth and Kingsley upon broader constitutional grounds.

 It would seem that the Court itself made such 'individualized' or 'case by case' adjudications as to the obscenity of specific material in at least two cases following Roth. In One, Inc. v. Olesen, 355 U.S. 371, 78 S. Ct. 364, 2 L. Ed. 2d 352 and Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S. Ct. 365, 2 L. Ed. 2d 352, the courts below had found in no uncertain terms that the material was obscene within the meaning of Section 1461. *fn9" In each case the Supreme Court in a one sentence per curiam opinion granted certiorari and reversed on the authority of Roth.

 One, Inc. v. Olesen, and Sunshine Book Co. v. Summerfield, involved determinations by the Post Office barring material from the mails on the ground that it was obscene. In both the District Court had found that the publication was obscene and that the determination of the Post Office should be upheld. ...

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