Manual Enterprises, Inc. v. Day – Oral Argument – February 27, 1962

Media for Manual Enterprises, Inc. v. Day

Audio Transcription for Oral Argument – February 26, 1962 in Manual Enterprises, Inc. v. Day

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Earl Warren:

— Manual Enterprises, Incorporated, et al., Petitioner, versus J. Edward Day, Postmaster General of the United States.

Mr. Doolittle, you may continue your argument.

J. William Doolittle, Jr.:

Mr. Chief Justice, may it please the Court.

Before I begin my argument this morning, I should like briefly to clarify the circumstances chronologically concerning the initi — initiation of these mailability proceedings, particularly in response to questions yesterday of Mr. Justice Frankfurter and Mr. Justice Brennan.

Since these facts are not in the record and since I’m not sure that they’re completely clear, I do want to make sure that there’s no confusion with respect to them.

Now, you recall as pointed out yesterday that the General Counsel of the Post Office originally informed the mailer, in this case, petitioner, that in his opinion, the matter was nonmailable and also that it was not of sufficient value to warrant a hearing.

Now on the 11th of April, the mailer appealed this decision to the Judicial Officer of the Post Office Department according to regulations, informing him that the magazines that actually been deposited in the mail were not the only thing at issue.

These were only part of the issue of the magazines and that therefore there were great many more that would be affected by a determination of nonmailability and on the basss of that representation, the judicial office held they were sufficient value to warranty hearing.

And he made that decision on the same day, April 11th and it was also on that same day that mailer when into District Court and got ex parte, a temporary restraining order, so that these things all happened on — on the same day.

And then it was on the morning of April 12, the following day, the Government went in and had this temporary restraining order stayed in order that they might respond and eventually, argument was held and the complaint was dismissed without prejudice to petitioner’s going back in if the administrator proceedings were not completed by a date certain.

Now, as we have pointed out in our brief, there is no basis at all in this record for the suggestion that the mailer, the petitioner here, in anyway force the Post Office Department to hold a hearing.

The Post Office regulations provide for a hearing, procedures prescribed in those regulations were followed in every respect in this case.

Earl Warren:

What was the date Mr. Doolittle of the mailing, did you say?

J. William Doolittle, Jr.:

The mailing was actually the 25th of March.

Earl Warren:

The 25th of March.

Yes, very well.

J. William Doolittle, Jr.:

The — these proceedings did go and did go along in their normal course in this case and neither before the Post Office nor in the courts below did this petitioner ever contend that there was any procedural defect or irregularity of any kind.

John M. Harlan II:

What you are saying I gather is that the granting of a hearing here was not the result of the injunction that was normal administrative process.

J. William Doolittle, Jr.:

Quite so Mr. Justice Harlan —

John M. Harlan II:

And it’s just a circumstance that the hearing in the injunction was — happened on the same day, that’s you argument?

J. William Doolittle, Jr.:

That is right.

That is that the (Inaudible)

J. William Doolittle, Jr.:

Well, the record doesn’t reflect that.

Frankly, I can’t state certainly that the Judicial Officer was unaware.

Now as I say, the temporary restraining order which was obtained on the 11th of April was obtained ex parte and the representations that mailer made in his request for a hearing did contribute knowledge to Judicial Officer that would —

Felix Frankfurter:

But it presented a new fact, namely that there was —

J. William Doolittle, Jr.:

Yes, indeed.

Felix Frankfurter:

— that there was new volume of magazines unlike the actual offering that had been made and which had been held at —

J. William Doolittle, Jr.:

Precisely so Mr. Justice, precisely so.

Now, I should like to argue it first that procedures employed by the Post Office Department were required by Congress, and secondly that they did not constitute an unconstitutional prior restraint.

J. William Doolittle, Jr.:

In 1921, in the dissenting opinion in the Milwaukee Publishing Company against Burleson, Mr. Justice Brandeis made this statement.

As a matter of the administration, the Postmaster General through his subordinates rejects matter offered for mailing or removes matter already in the mail which in his judgment is unmailable.

The existence in the Postmaster General of the power to do this cannot be doubted and we submit that that statement is as valid today that it was 40 years ago when Mr. Justice Brandeis made it.

The 18 U.S.C. 1461, which was first enacted in 1865, unequivocally declares that obscenity and I quote, Is declared to be nonmailable matter and shall not be convey in the mails or deliver it from any Post Office or by any letter carrier.

It seems to me clear from the face of the statute as well as from the legislative history which we have set forth on pages 59 to 61 of our brief.

Felix Frankfurter:

Does that — does that language continue to the —

J. William Doolittle, Jr.:

Well that’s not the language as it originally appeared.

That’s the language at the present and as far — as of the time this (Voice Overlap) —

Felix Frankfurter:

Was that the language that was found in the Milwaukee case?

J. William Doolittle, Jr.:

I am frankly not certain that it was identical.

The original language was very close.

It merely said that this matter is nonmailabe and shall not be admitted to mails.

Felix Frankfurter:

That (Voice Overlap) at the time the Milwaukee case, there was not a statute which in terms —

J. William Doolittle, Jr.:

There was — there was not a statute in —

Felix Frankfurter:

— anymore that there is today.

J. William Doolittle, Jr.:

No.

Felix Frankfurter:

And the file to which Mr. Justice Brandeis referred was drawn and partly as an implication from the statute as the matters nonmailable therefore, it’s not to be mailed and partly also from the powers given to the Postmaster General to make regulations to be effective.

J. William Doolittle, Jr.:

That is right.

The statute was not significantly different at that time.

In fact, it has not been significantly different at any stage of its history.

Potter Stewart:

Title 18 is the — is the criminal code.

J. William Doolittle, Jr.:

That’s right Mr. Justice although as this statute was originally enacted, it was enacted as one section of a postal law.

It —

Potter Stewart:

That — might — make a difference — where was it located at the time that Mr. Justice Brandeis made the remark you posed?

J. William Doolittle, Jr.:

I do not know frankly —

Potter Stewart:

Because it is now part of the criminal code.

J. William Doolittle, Jr.:

That is correct.

Potter Stewart:

— it’s criminal offences.

It’s not in anything to do with the Post Office as such.

J. William Doolittle, Jr.:

Well, but as I say, as — as enacted, it was a part of a General Postal Law and the revisers of course put it in the code.

J. William Doolittle, Jr.:

I — it’s pointed out to me that that in fact this statute also appears primarily by reference in 39 U.S.C.

There is a general provisions stating that the various items that are declared nonmailable by the various provisions in 18 U.S.C. are declared to be nonmailable.

(Inaudible)

J. William Doolittle, Jr.:

Yes it does appear in our brief.

We suggest too that this power is confirmed by various other legislations such as Section 39 U.S.C. 4001, which I’ve already referred to.

Now, 4001 (a) is the provision that declares that various items will be nonmailable and then 4001 (b) provides that mail that is not refused by the post — local Post Office when it is offered, but managed to reach the offer — office of delivery shall be disposed of as the Postmaster General shall direct.

Now, furthermore, this provision is part if comprehensives scheme in which a variety of matters, all of which is referred to in Section 4001 (a) by reference and including such items as explosives and disease germs, are declare to be nonmailable matter and precisely the same language.

Potter Stewart:

Well now where in — in Tittle 18 of the code are such things that made criminal offences or are they not?

J. William Doolittle, Jr.:

The items are referred to were — in 18 U.S.C. 1760, Sections —

Potter Stewart:

Explosives and so on.

J. William Doolittle, Jr.:

Sir?

Potter Stewart:

Explosives and so on?

J. William Doolittle, Jr.:

That’s right.

Potter Stewart:

7 — 18 U.S.C.

J. William Doolittle, Jr.:

18 U.S.C. 17 sir.

Potter Stewart:

Thank you.

Felix Frankfurter:

Is there Mr. Doolittle, to reflect my recollection or rather inform my ignorance, is there a specific statute authorizing the Postmaster General to exclude the matters used to? (Inaudible) to use the mail or — scheme to defraud or —

J. William Doolittle, Jr.:

Yes sir.

Felix Frankfurter:

Is that right?

J. William Doolittle, Jr.:

There — there are — there is a specific provision on fraudulent material (Inaudible)

Felix Frankfurter:

Saying, you should not carry, fraudulent material?

J. William Doolittle, Jr.:

Well, in — in the same terms of this statute —

Felix Frankfurter:

But I — that — my question was, is there in terms (Voice Overlap) —

J. William Doolittle, Jr.:

In no more —

Felix Frankfurter:

(Voice Overlap)

J. William Doolittle, Jr.:

In no more terms than this.

Felix Frankfurter:

(Inaudible) as to matter promoting fraudulent scheme, is there in terms.

J. William Doolittle, Jr.:

In no more terms than this statute Mr. Justice.

Felix Frankfurter:

I — I don’t follow that in terms.

Term for a hundred years, this file hasn’t been challenged from the Second — from the Postmaster General, but it has never been given to him in terms by Government — or by in terms I mean specifically.

J. William Doolittle, Jr.:

By saying the Postmaster General must be give.

Felix Frankfurter:

(Voice Overlap)

J. William Doolittle, Jr.:

Yes, sir.

Felix Frankfurter:

It’s all drawn from the fact that this matter is mailable.

The Postmaster General be engaged carrying mail, doesn’t carry nonmailable —

J. William Doolittle, Jr.:

Well, we suggest it’s a little stronger than just nonmailable.

The statute says it shall not be conveyed in the mails, and shall not be delivered from any Post Office.

We feel that that is clearly a —

Felix Frankfurter:

But if the Post — the Postmaster General is charged with carrying mail and if matters presented that shall not be mailed and shall not be delivered then for my purposes, there isn’t any stronger, there isn’t any weak and then he’d be told and he shall not carry it.

Isn’t that the — hasn’t that been the law for a hundred years?

J. William Doolittle, Jr.:

That it has been and as far as we know, it’s never been challenged.

William O. Douglas:

But there are some qualifications made by two cases I think.

J. William Doolittle, Jr.:

I know of no qualification made by any —

Felix Frankfurter:

The qualification is —

J. William Doolittle, Jr.:

— decision of this Court.

Felix Frankfurter:

The qualification is that in specific instances, he may have exceeded his power because of the nature of the materials or because acting on past nonmailability, he excluded future presentation.

J. William Doolittle, Jr.:

Well Mr. Justice —

Felix Frankfurter:

That’s a very different problem.

J. William Doolittle, Jr.:

Mr. Justice Douglas — of course, there had been qualifications in the area of granting or denying, second class mailing privileges, but of course that’s an entirely different question.

As you may recall from the Hannegan case —

William O. Douglas:

I beg pardon.

J. William Doolittle, Jr.:

— there you were dealing with something that was conceded to be mailable under these provisions, conceded to be mailable under the — the nonmailability provisions, but in spite of that fact, a second class mailing privilege was denied and this Court speaking through your opinion said that could not be done.

Now, we submit that if the Post Office authorities are thus require to exclude obscenity from the mails, it must also follow that they must refuse to carry questionable matter pending a determines — determination as to whether or not it is mailable because the time required for the transmission of mail is always going to be less than the time within which a full and fair hearing with adequate notice can be conducted and if the material must be allowed that can be conducted in the mails during this hearing, the proceedings to determine mailability would variably become moot and the Post Office would be without any power whatsoever to enforce this congressional declaration of nonmailability.

It would also be required not only to violate this requirement of Congress, but also to a — in the commission of the crime of conducting of sending obscene matter through the mails.

And now, in addition it has always, always been the consistent practice of the Post Office Department to refuse to carry matter deemed to be obscene, unless and until it was authoritatively determined to be mailable and we’ve set forth the details of that administrative practice in our brief on pages 63 and 64 and this has been true as I say from the very outset.

This longstanding interpretation, developed by those who were charged with the responsibility of administering this law and then in — interpretation which as we point out in our brief, Congress has been made fully aware of, we submit would be entitled the great weight even if the statute were as clear on its face and in its history as this one is.

And we submit that in view of the wording, the history and the context of 18 U.S.C. 1461 and of Post Office Department’s consistent and longstanding administrative interpretation of it, there can be no serious question of the Post Office — of the Postmaster General’s authority to refuse to carry matter deemed obscene pending a determination as to whether it is obscene or not.

I might add that over the years.

In a long serious of case — cases beginning with ex parte Jackson in 1877, this Court has made clear it manifest assumption that the Postmaster General did have this power.

Mr. Justice Brandeis’ statement albeit in dissenting opinion, was but one instance of — of many and which this Court has indicated its assumption on that point.

J. William Doolittle, Jr.:

We’ve set forth this —

Felix Frankfurter:

Well, you say albeit in the dissenting opinion a fortiori.

J. William Doolittle, Jr.:

Well, that’s true.

That’s right and these cases we have set forth and discussed in pages 75 to 79 of our brief.

Now on the point prior restraint, the contention that the procedures involved in this case, did involve a prior restraint go to fact that as I’ve indicated the Postmaster General refuses to carry matter deemed, obscene pending a determination of its mailability, we submit that this contention is wholly without merit.

In the first place, this procedure does not have prior impact within the meaning of the prior restraint doctrine, and this is principally for the reason that it operates not prior to publication of the material in question, but only after it has been printed and offered to the public.

There is nothing under this procedure that need be submitted to the authorities in advance.

The onus is on the postal officials to initiate any action that is to be taken and the administrative determination involved in these cases has no future effect.

It covers only the material that has already been published, deposited in the mails and then determined to be obscene.

Thus, the procedure employed in these cases is wholly free from the vices that caused this Court condemned the procedures, for example that were issue in Near against Minnesota as prior restraint.

In the second place, we submit that this procedure does not work really a fully effective restraint within the meaning of the cases this Court has decided.

In Kingsley Books against Brown in 354 US, the Court upheld does not involving a prior restraint an injunction against the sale and distribution of allegedly obscene matter pending a determination of its obscenity.

Now, the restraint involved in these cases of course far less severe.

It may — it — the allegedly obscene matter in this case is merely denied the use of the mails pending that determination.

The mailer is free to sale and distributes this material in any other way he’s able to do free and I suggest this is important, free from the possibility to hazard to contempt prosecution and in this case, we submit that the feasibility of this alternative is really quite clear.

These magazines as the record indicates are not by and large are sent through the mails to individual subscribers.

They are largely sent in bulk to news dealers who then sell them on newsstands and it would seem that they could very easily be shipped by express or some other type of carrier.

Now, we —

John M. Harlan II:

Can I ask you question at this point?

The pictures that — if you look at these pictures, look at the magazines on their face, forget this very testimony for a moment and you look at the documents that I asked you about yesterday that were obtained from other purveyors or other obscenely, you might draw a different conclusions just looking at those documents on their face and what I — the question I want to put to you is your case as far as the magazines are concerned depends basically, does it not, on the interpretation which these psychiatrists or whatever you call, and gave to the real — the exposure that they gave, that you claim they gave to this (Inaudible) these documents as they might effect this unfortunate class of people in the community.

J. William Doolittle, Jr.:

Essentially, that’s true Mr. Justice.

We — we do not content that (Voice Overlap) to the average man.

John M. Harlan II:

(Voice Overlap)

J. William Doolittle, Jr.:

Well, I think — I — I think it would be fair to say that they were somewhat offensive on their face.

Whether or not, they could be said on their face to be obscene, I don’t know.

But I —

John M. Harlan II:

Well, there (Voice Overlap) character than the other one.

J. William Doolittle, Jr.:

Then — the pictures that were —

John M. Harlan II:

The different character than of this miscellaneous picture —

J. William Doolittle, Jr.:

Oh, quite so.

John M. Harlan II:

— from which your opponent disassociates his claim?

J. William Doolittle, Jr.:

Yes, sir of course.

John M. Harlan II:

I understand.

J. William Doolittle, Jr.:

Now, we certainly recognized that there is some measure of restraint involved in denying the use of the mails to this mater — material pending a determination of its obscenity, but we submit that to the extent at these procedures do involve some restraint on the publisher.

They are surrounded by sufficient procedural safeguards as not to interfere with the free flow of constitutionally protected non-obscene matter.

The guidelines to be applied in attempting to determine whether or not this is so had been largely spelled out by this Court, by the contrast between Marcus against Search Warrants in 367 US and the Kingsley Books case that I have discussed.

Now, I think it’s important to point out that in Kingsley, the procedures there were being balanced against and injunction against sell and distribution.

In Marcus, there were being balanced against complete seizure of the materials, here against refusal to carry in the mail.

We submit that while the fact that some restraint is involved does necessitate some safeguards, the facts that it is only refusal to carry in the mails does there significantly on what will constitute reasonable safeguards in this instance.

Now, the Post Office procedures in this case suffer from none of the critical defects that the Court identified in the procedures in the Marcus case.

In Marcus, the proceedings were instituted on the basis of conclusory assertions of a single policeman.

Here, the questionable matter is initially pass on by a local Postmaster and then by legally trained Senior Administrative official, fully schooled in the decisions of this Court and of a lower courts in the law of obscenity, before any mailability action is instituted.

In Marcus, there was no identification of the specific matter being proceeded against.

Here of course, the material that was at was an issue was identified fully and completely from beginning to end and there was not possibility of the findings going beyond the material that actually was in issue.

Hugo L. Black:

May I ask you what the — to your knowledge has been any other evolving, developing class of experts in this line besides psychiatrists?

J. William Doolittle, Jr.:

Well, beyond psychiatrists and psychologists I know of no other body of — of experts in determining these particular facts.

William O. Douglas:

Has the Post Office developed some experts (Inaudible)?

J. William Doolittle, Jr.:

I don’t believe that they have their own body of expert on this, no.

You mean among psychiatrists and psychologists?

Hugo L. Black:

Anybody.

J. William Doolittle, Jr.:

Well —

Hugo L. Black:

What about the FBI?

Doesn’t it have some experts to testify on this field?

J. William Doolittle, Jr.:

I would not suppose on what is obscene.

The FBI might be called upon in an individual case as having developed facts on investigation, but, in point of fact most of the facts that are necessary to be established in this sort of case are established by postal inspectors in point of fact in this case, there was the testimony of one postal — live postal inspector and then also some stipulated testimony of other postal inspectors.

William O. Douglas:

In — in this case (Inaudible) from Missouri where they (Inaudible) the policeman to —

J. William Doolittle, Jr.:

A search Warrant, that’s right.

William O. Douglas:

— to be presented?

J. William Doolittle, Jr.:

That’s right.

William O. Douglas:

How do — how do you develop (Inaudible)?

John M. Harlan II:

Could have I put another question to you?

J. William Doolittle, Jr.:

Yes, sir.

John M. Harlan II:

Would you — without expert testimony in regards to magazine, would you think these were excludable?

Could you defend this case on that — without expert testimony?

J. William Doolittle, Jr.:

Without any expert testimony —

John M. Harlan II:

From the magazine, I’m sorry.

J. William Doolittle, Jr.:

I must say it would be rather difficult.

Perhaps a group of the audience to which these magazines were directed could be brought in to testify on what — what standards might be appropriate and what effect these things might have, but the difficulties of that are obvious and certainly, the experts’ testimony was extremely important in — in developing the record that was developed here.

Hugo L. Black:

What other class of materials are nonmailable besides those described as filthy and indecent and so forth?

J. William Doolittle, Jr.:

In this particular —

Hugo L. Black:

In any field, what other — are the — what other classes of literature are declared to be nonmailabe?

J. William Doolittle, Jr.:

Fraudulent material, material inciting to treason, rebellion.

Hugo L. Black:

Now, I suppose in that kind of case, if isn’t true on its face, you could use the FBI as experts to show what that meant, couldn’t you?

J. William Doolittle, Jr.:

Well not — I wouldn’t suggest not what it meant Mr. Justice, perhaps something that didn’t —

Hugo L. Black:

To whom — to whom it might appeal, which class of the individual it —

J. William Doolittle, Jr.:

I —

Hugo L. Black:

— might appeal to?

J. William Doolittle, Jr.:

I can well imagine the case in which that would be appropriated sir, that that — a part — particular kinds of incitations might be more significant when directed towrads certain —

Potter Stewart:

Example if you were in a foreign language, you might need an interpreter to tell you what it meant.

J. William Doolittle, Jr.:

Yes sir.

That’s what it is.

Hugo L. Black:

But this is — as I understand it then, if there’s some kind of political document that they would hold nonmailable, they could look to see if it might and still some — and still some suppressive desire in somebody and through that by experts.

J. William Doolittle, Jr.:

Well, as I say, I can imagine the case in which that — in which that would be appropriate, certainly not in a typically —

Hugo L. Black:

How long has it been the custom to relay on so called experts as to whether something was obscene and filthy, rather than relay on the document itself?

J. William Doolittle, Jr.:

Well, I think there —

Hugo L. Black:

Do you know that?

J. William Doolittle, Jr.:

I think that — I think that the development of this in the courts generally has taken place over the last 25 or 30 years as — as any kind of documents has —

Hugo L. Black:

Experts on obscenity?

J. William Doolittle, Jr.:

Well, it’s not a question of experts on obscenity.

It’s experts on the effects that particular material might have on people.

J. William Doolittle, Jr.:

I don’t think it’s ever been in case and it certainly it was not case here that the psychiatrists or psychologists said,this material is obscene.

They — they explained to the Judicial Officer who is charged with making that decision what the effects of these items would be.

They didn’t (Voice Overlap) they didn’t arrive at any conclusion on the subject.

Hugo L. Black:

It claims the judge — if it’s a judge trying the case that although it doesn’t seem obscene to him, it might — doesn’t seem like it was (Inaudible) any wrong desires on him if there are certainly types of people that they have experts no it might?

J. William Doolittle, Jr.:

That’s right.

That’s exactly the sort of case in which that testimony would be appropriate.

William O. Douglas:

These things — I beg you pardon.

Earl Warren:

Mr. Doolittle, but in this case there was the plaintiff not only admitted that he took pride on the fact that this was beamed toward a certain class of deviates, did he not?

J. William Doolittle, Jr.:

Well, —

Earl Warren:

And having — having done that all it was necessary to show, it seemed to me would be what — what the effect was on that class of deviates.

J. William Doolittle, Jr.:

In essence I think that’s exactly right.

Earl Warren:

And that a — that experts’ testimony would probably be very appropriate (Voice Overlap)

J. William Doolittle, Jr.:

I think that’s right Mr. Chief Justice.

Hugo L. Black:

That is given by expert?

J. William Doolittle, Jr.:

Well once again I — I emphasize that they themselves are not making this decision.

They merely providing the finders of fact in pointers —

Hugo L. Black:

And providing a basis on which the judge can rationalize that.

J. William Doolittle, Jr.:

On — on the basis of which he can achieve a ration result I would say.

William O. Douglas:

I suppose that make to us the ultimate importance (Inaudible)

J. William Doolittle, Jr.:

Well, I think that it’s necessary for this Court to look very closely at the decisions that are made.

William O. Douglas:

We’re doing pretty good job (Inaudible)

Felix Frankfurter:

Is this testimony by these experts any different than the testimony that these same experts may give in proceedings for the commitment of — of these people for medical health?

J. William Doolittle, Jr.:

No, I should say not.

Felix Frankfurter:

(Voice Overlap) came up —

J. William Doolittle, Jr.:

— indeed this —

Felix Frankfurter:

— appropriate.

J. William Doolittle, Jr.:

This — these particular experts were specially qualified in dealing with homosexuals and persons of — with homosexual tendencies (Voice Overlap) —

Felix Frankfurter:

And those determinations are made everyday by the courts all over the United States —

J. William Doolittle, Jr.:

Of course, they are.

Felix Frankfurter:

— with reference of those issues, on this kind of evidence which a court or a jury may reject.

J. William Doolittle, Jr.:

Indeed so Mr. Justice.

Hugo L. Black:

Would you mind explaining to me in your words how do you analogize this to that situation?

J. William Doolittle, Jr.:

Well, in any determination, in any court proceeding where the trier must affect human rights on the basis of testimony, on the basis of evidence, he is going to have to have a little bit of help in determining to — determining exactly what the facts are in case —

Hugo L. Black:

Whether person is sane or insane?

J. William Doolittle, Jr.:

Well that’s — that’s the conclusion that he must make in that case.

In this case, the trier must make a determination as to whether or not the matter is obscene or not obscene —

Hugo L. Black:

Well certain —

J. William Doolittle, Jr.:

— and there are two that need some help.

Hugo L. Black:

Well there are certain kinds of pictures will have certain effect on certain kind of people.

J. William Doolittle, Jr.:

Well, that’s the first level of determination.

Of course from that, it must follow that the material is either obscene or not obscene.

Felix Frankfurter:

But if a man would admit —

J. William Doolittle, Jr.:

But I suggest to the Court that that the trier here very much needs some help and it would be — it seems to me —

Hugo L. Black:

What the people need help if the thing is so bad, it’s so obscene, it so nasty and so filthy.

They can’t look at and tell them.

Do we have to have censorship against them to have every kind of literature tested by experts to see how is going to effect somebody —

J. William Doolittle, Jr.:

Oh I suggest that it —

Hugo L. Black:

Well, do we have a censor, why should we just have open censor without rationalizing it in that fashion?

J. William Doolittle, Jr.:

Oh I suggest in a great many cases, perhaps even in the bulk of cases, this will not be necessary.

As I pointed out, this is very unusual case in which the average person cannot be expected to appreciate really of the great effect to this kind of material can have on human beings.

Potter Stewart:

So where do you stop?

I suppose there are some people who might be adversely affected by picture of the empire state building.

J. William Doolittle, Jr.:

Were we stop is pretty much determined by the standard that I’ve argued in favor of and that is we’re talking about material that is beamed to a particular audience.

Now, I suppose that if it can be established that material that would be inclined to stimulate that kind person was being intentionally beamed at him in an effort to stimulate him, maybe a good case will be made out, but the point is, we’re not talking again about the Regina against Hicklin notion of the most susceptible person in the community.

We’re talking about material that is aimed, that is beamed, that is designed for a particular kind of person, just as most material is aimed, beamed and designed at the average public and therefore, maybe judged by the standard to be average public.

But where you’ve got something that’s aimed that is special class, such as the deviates in this case or to children, we submit that then it must be judged in terms of those people at whom it is — it is actually aimed and by whom that would be actually read.

Earl Warren:

I suppose Mr. Doolitte if — if this was mailed to the universe — to some university medical school for — for scientific study in this — in this area, there would be no right to be —

J. William Doolittle, Jr.:

No question at all.

Earl Warren:

— there would be no right in — and the Postmaster General could do it but where — where it’s admitted that this is beamed toward one particular group of — of deviates that it does come within your rule, is that your position?

J. William Doolittle, Jr.:

That’s right.

J. William Doolittle, Jr.:

The perfect example is the — is the so called Kinsey case 31 photog — the United States against 31 photographs which we’ve cited in brief, where some unquestionably hardcore photography was brought in the — attempted to be brought in to this country by the Institute for Sex Research that so called Kinsey Institute.

Hugo L. Black:

How do you know of some of these were not directed to college professors and isn’t true that the — that the Post Office Department can pick out who shall receive certain literature?

J. William Doolittle, Jr.:

Well, —

Hugo L. Black:

Is that your argument?

J. William Doolittle, Jr.:

No, no.

It’s certainly is not.

In this particular case, it was — the testimony is really quite extensive as to the purposes to which the institute planned to use —

Hugo L. Black:

(Voice Overlap) as I understand you to say that the Postmaster has the right to decide what person might be adversity affected by some picture nor some writings and the decline to deliver that the — that person because of that fact (Voice Overlap)?

J. William Doolittle, Jr.:

He has that right Mr. Justice Black only as I’ve tried to indicate in this case when that material is provably being beamed or aimed at a particular a class, he can’t just take the average material that’s being sent out and say — say, I think this is going to hurt little children.

Now, this has been clearly established by this Court that he cannot do that.

Potter Stewart:

To whom were these addressed in fact?

J. William Doolittle, Jr.:

These particular magazines —

Potter Stewart:

Yes.

J. William Doolittle, Jr.:

— are beamed according to the —

Potter Stewart:

To whom where they addressed where they were put in the mail as a matter of fact?

J. William Doolittle, Jr.:

Well this were — as the matter of fact —

Potter Stewart:

(Voice Overlap)

J. William Doolittle, Jr.:

These were sent to news dealers.

Potter Stewart:

To general news dealers?

J. William Doolittle, Jr.:

Yes.

William J. Brennan, Jr.:

Well then how do we know that the audience is the buyer to these magazines would be the deviates?

J. William Doolittle, Jr.:

Because we have concessions on the part of the publishers of these magazines.

Hugo L. Black:

What — what’s the concession?

J. William Doolittle, Jr.:

The — the testimony in this record shows that the publisher of these magazines admitted to postal authority that these magazines were beamed, designed primarily for homosexuals.

William J. Brennan, Jr.:

Well now — what — what precisely —

J. William Doolittle, Jr.:

Yes.

William J. Brennan, Jr.:

What precisely did he say — as he (Inaudible).

J. William Doolittle, Jr.:

Well on page 10 of our brief, we have summarized the testimony out.

The specific items in the record are here on page 57.

This is a postal official — a postal inspector testifying.

William J. Brennan, Jr.:

57 (Inaudible)

J. William Doolittle, Jr.:

That’s right and can you state what that comment was?

He was substantially, it was substantially to defect that as adults, we don’t have to kid each other.

We know who is getting these magazines and pictures of the type that he was then selling.

Did he say you — he knew that would buying it, yes and did he say who they would be, homosexuals.

Earl Warren:

Didn’t — didn’t the publisher also write a letter to that effect —

J. William Doolittle, Jr.:

Well —

Earl Warren:

— admitting that.

J. William Doolittle, Jr.:

The letter which appears as exhibit G and in this record is at — where is that —

William J. Brennan, Jr.:

I take it Mr. Doolittle that in fact the evidence was that all of these were just to go colleges, you wouldn’t be here with you?

J. William Doolittle, Jr.:

I doubted very much it would —

William J. Brennan, Jr.:

Well, I mean would you —

J. William Doolittle, Jr.:

I — I don’t suppose I would.

William J. Brennan, Jr.:

Well I don’t think not.

J. William Doolittle, Jr.:

I — I don’t know what the physiatrists and psychologists would testify on that point, but I suspect I would not —

William J. Brennan, Jr.:

I mean cannot (Inaudible) to go colleges?

J. William Doolittle, Jr.:

I — as I say I suspect you’re quite right in that —

Felix Frankfurter:

Are these just men?

J. William Doolittle, Jr.:

Pardon me.

Felix Frankfurter:

Are these pictures just men?

Yeah, sure.

Felix Frankfurter:

I know there are males but are they just males in sense in which (Voice Overlap)

J. William Doolittle, Jr.:

Well, they’re males in — in particular posses and particular customs and particular prost.

Felix Frankfurter:

Is that for all — (Voice Overlap) goods so long as you got a mail buddy to mail buddy, is that it?

Earl Warren:

Mr. Doolittle, where — where — where is that letter?

I know there is one in the record —

J. William Doolittle, Jr.:

The letter is at page 88 —

Earl Warren:

Page 88.

J. William Doolittle, Jr.:

— of the record here, that’s right Mr. Justice and the materials that I’ve presumed you are referring to appears more particularly on page 89.

There were — here at page 664 of the record also a — an official in the Post Office Department that is not the postal inspector that I was referring to before stated, I recall clearly referring to a statement made by the publisher he said, Well, let’s not kid ourselves.

J. William Doolittle, Jr.:

We know who is buying this magazine and that is homosexuals, but when I made the suggestion that it was homosexuals who were buying it.

Mr. Chief Justice, I find that my time has expired.

Earl Warren:

Yes, yes.

Mr. Dietz.

Stanley M. Dietz:

Thank you Mr. Chief Justice, may it please the Court.

If I might in response to the light that the Court was following, continue right along with that at page 63 of the record.

Now, I was present when these statements were made to the gentlemen of the Post Office Department, General Counsel’s Office by the publisher and it appears on page 63 of the record.

This Dr. Womack, he had a lot of fun baiting the Post Office Department with this type of statement.

Felix Frankfurter:

Are you now testifying as an expert —

Stanley M. Dietz:

No this is it —

Felix Frankfurter:

— well, Dr Womack might meant when he said things?

Stanley M. Dietz:

This is in the record Your Honor, this is in the record.

Felix Frankfurter:

What —

Stanley M. Dietz:

Where is in the —

Felix Frankfurter:

He’s a lot of fun.

Stanley M. Dietz:

(Voice Overlap)

Felix Frankfurter:

Did it say he has a lot of fun?

Stanley M. Dietz:

Well no, that — that —

Felix Frankfurter:

Is that what he meant, that he was baiting.

I just want to know whether you’re an expert on the inside of Dr. Womack’s (Inaudible), that’s what I want to know.

Stanley M. Dietz:

No, I’m not expert on that Mr. Justice.

Hugo L. Black:

Well, he was an expert on the inside of any people’s brain, wasn’t he?

Stanley M. Dietz:

Yes — he was.

Felix Frankfurter:

Then he disclosed it, didn’t he?

Stanley M. Dietz:

He — he was —

Felix Frankfurter:

I don’t mind disclose it, but I just don’t want to find that expertise.

Stanley M. Dietz:

Alright.

He disclosed it in a way — to say well, have you ever heard (Inaudible), what does that mean?

This doctor is legal.

That’s the way he disclosed it.

Felix Frankfurter:

But are you denying that he said was —

Stanley M. Dietz:

I don’t deny —

Felix Frankfurter:

(Voice Overlap)

Stanley M. Dietz:

I don’t deny this I — I’m —

Felix Frankfurter:

— denying but you have not telling us what was really inside his mind when he said that, isn’t that right?

Stanley M. Dietz:

I’m setting — no, I am not telling you what was really inside his mind —

Felix Frankfurter:

(Voice Overlap)

Stanley M. Dietz:

— I’m telling the — the setting that this statement was made in, he walked in to the Lion’s Den, they admit and admitted on cross-examination that they were trying to bring this out from him, he knew this in advance.

Felix Frankfurter:

Was that a wicked thing to do?

Stanley M. Dietz:

What, to investigate this case?

I’m not saying —

Felix Frankfurter:

(Voice Overlap) we could think to cross examine of person.

Stanley M. Dietz:

Oh no.

Felix Frankfurter:

To find out his intention?

Stanley M. Dietz:

No.

Felix Frankfurter:

So why is that a Lion’s Den?

Stanley M. Dietz:

Well, let’s put at this way.

He was not required to go down there and make these statements.

He went in there intentionally for a purpose and the purpose was to bait the Post Office.

Earl Warren:

He was proud of the fact that this (Voice Overlap)

Stanley M. Dietz:

He was very proud at the fact —

Earl Warren:

— proud that he was going to homosexuals.

Stanley M. Dietz:

No, he was very proud the fact that he could send this material and that the Post Office couldn’t touch him according to him.

Now that was his — his complete statement.

Earl Warren:

Let me ask you this Mr. Dietz.

Have you conceded or was it conceded in the — in this case that these magazines were beamed toward homosexuals?

Stanley M. Dietz:

Never Your Honor I we’ll explain —

Earl Warren:

Do — do you think —

Stanley M. Dietz:

— that fully.

Earl Warren:

— the record will not support that.

Stanley M. Dietz:

Yes.

And — and I will explain the record.

Earl Warren:

Very well.

Stanley M. Dietz:

I have planned to argue that point.

Earl Warren:

Yes (Voice Overlap) —

Stanley M. Dietz:

I think that appears on pages 27 and 28, but may I conclude what I have in my mind now?

Earl Warren:

Yes, you may.

Stanley M. Dietz:

As far as — as far as Dr. Womack was concerned, please remember that he had been investigated and this is all in the record, he had been investigated several times by postal inspector Harry Simon coming around to his place with these magazines were printed over a period of time.

And each time, it was always persisting questioning, is this stuff going to homosexuals, going to homosexuals, tended for homosexuals.

And it got to the point were Womack actually felt so secure that he attempted to tease everyone that inquire about this, but if you will further into the record, you will see that Womack at every point has said.

These magazines are sold to newsstands and no one really knows who the purchasers might be and there is over 40,000 of them sold a month.

Earl Warren:

Now may I ask, are you quoting from the record —

Stanley M. Dietz:

From the record —

Earl Warren:

But no.

When you — when you say that the inspectors had seen time him after time and had said to him, this is homosexual, that’s homosexual and the —

Stanley M. Dietz:

I believe —

Earl Warren:

— that he finally — that he finally made this statement, that’s all in the record.

Stanley M. Dietz:

Yes, I believe that on three occasions, testimony of Harry Simon, the postal inspector is on three different occasions he came to Womack’s close — place of business to discuss this with him and that Womack would give these answers.

Earl Warren:

Yes.

But not just to say each time, but they were there though and that they — they said to him, Now, this is homosexual and so forth and kept repeating it to him until he finally came to this — this state of mind in his testimony or aren’t — is that you conclusion.

Stanley M. Dietz:

Oh no.

This is my recollection on the testimony.

Earl Warren:

Yes, very well.

Felix Frankfurter:

Are you now saying that he was really ironic when he said that, that’s what I get from your remark?

Stanley M. Dietz:

Ironic —

Felix Frankfurter:

But they asked him — yes, but he was kidding them.

Stanley M. Dietz:

They never asked him —

Felix Frankfurter:

But you just said that —

Stanley M. Dietz:

I —

Felix Frankfurter:

— they constantly (Inaudible) him with inquires or with the declaratory statements that this is directed to homosexual.

Felix Frankfurter:

Finally, he just teased them.

I said that he was ironic and you said yes if that the way that you should just to kid you, is that what you said?

Stanley M. Dietz:

He — he never came right out and said that I am saying these things just at to — to kid you, but in the testimony of the counsel for the Government, who was asked him, he says himself that I kept asking him —

Felix Frankfurter:

Is that —

Stanley M. Dietz:

— whether it’s what for homosexual.

Felix Frankfurter:

— I’m not concerned what the Government agent asked him, but what his answers were.

Are you saying that when he said yes, that directed me, that he was fooling, that he was teasing, that he was ironic, that he didn’t mean that he meant the opposite, is that what you say?

Stanley M. Dietz:

I use — I use fooling, teasing. I wouldn’t say that he did mean it.

Felix Frankfurter:

Well then he did mean it?

Stanley M. Dietz:

I believe that in part, he meant it, in part.

Hugo L. Black:

What is (Inaudible) we’ve been so far we —

Stanley M. Dietz:

The answer —

Hugo L. Black:

(Voice Overlap) but I don’t know what is he meant.

Stanley M. Dietz:

The answer Mr. Justice is that nobody really knows.

Hugo L. Black:

Knows what?

Stanley M. Dietz:

Who — whom the purchasers of these magazines are, because they have sold through newsstands and there is no human being who could honestly, truthfully say that X, Y, Z, class of people are the only purchasers of this magazine and that is the only —

Hugo L. Black:

I saw in one of articles Reader’s Digest, (Inaudible)

Stanley M. Dietz:

I — I don’t understand the question.

Hugo L. Black:

I saw one reprinted from the Reader’s Digest, how did he get it, an article?

Stanley M. Dietz:

I’m not aware of what you referring, you mean in — oh in our magazine.

Hugo L. Black:

Yes, one of this magazines.

It said reproduced from the Reader’s Digest.

Stanley M. Dietz:

Well if it said that then it was reproduced from Reader’s Digest I assume.

I’m not — I’m not aware of which one.

Hugo L. Black:

I don’t — I — it was three or four of my head.

I saw that.

Stanley M. Dietz:

There is a —

Hugo L. Black:

Go ahead.

Felix Frankfurter:

Mr. Dietz, let me get back to the purpose that got you on your feet which you expressed, the purpose that you expressed, namely you said you want it follow the line of — follow questions put from the bench.

The Chief Justice then read to you that purported to be a statement by the petitioner, namely that this was beamed to use the phrase you have used, the Chief Justice’s question was, Did he not say that?

Felix Frankfurter:

Isn’t that right?

Stanley M. Dietz:

Maybe I misunderstood the Chief Justice, Mr. Justice Frankfurter.

Felix Frankfurter:

Well, that was for the statement —

Stanley M. Dietz:

He asked me if I conceded or at any point if I conceded that this was beamed to the homosexuals.

Felix Frankfurter:

(Voice Overlap).

There was the statement by him in which he said that indeed this were aimed at a homosexual market, is that right?

Stanley M. Dietz:

By Dr. Womack, yes, yes it was.

Felix Frankfurter:

You then under took to explain that by saying that he was really faded by the baited people or whether they were constantly applied then with question, wasn’t this directed or to homosexual matter or whatever the phrase was.

And as you said, he finally — he finally having been badgered, he finally yielded as to that and said, Yes, that’s true.

Then you started to explain it namely, that why — that this was — which led me to ask you was the ironic and you didn’t care for that adjective, I don’t blame.

I didn’t try put it in the vernacular and said was he kidding, didn’t he mean it.

Did he mean in fact that opposite?

Now, we have back there.

Are you saying now that he did mean it or he didn’t mean it, which are you saying.

Stanley M. Dietz:

Well, as you asked me the question Mr. Justice, I’m not an expert on the inside of his mind, but in my opinion, I would say that he meant it in part.

Felix Frankfurter:

Alright.

Stanley M. Dietz:

Because he meant certainly to say these things if there no other reason then to get back at the interrogated from the Post Office Department and teased them.

And I believe further — I’ll — I’ll take a step and go away out on the lame, I believe further that he might have actually meant this to be true.

In his own mind, he might have believed that all of these magazines —

Felix Frankfurter:

Alright.

Stanley M. Dietz:

— would be purchased by homosexuals.

I’ll go that far, but that’s just his belief.

It’s still cannot — you just cannot get around the fact that all of these magazines are sold from newsstands and no matter what he believes, no matter what I believe, no matter what I believe, no matter what any individual member this Court might believe, they are still sold from newsstands and no one knows for sure.

Felix Frankfurter:

Well if — it’s a — it’s a matter of common human experience that the chances of something that we believe toward which we direct action is more likely to be connected with our action than if we didn’t believe it.

Stanley M. Dietz:

I wouldn’t argue against that.

Earl Warren:

Who is the Lynn, L-Y-N-N —

Stanley M. Dietz:

That is —

Earl Warren:

— is the writer of the letter on the —

Stanley M. Dietz:

That is Dr. Womack.

Earl Warren:

That’s Dr. Womack.

Stanley M. Dietz:

His name is Herman Lynn Womack.

Earl Warren:

What is your explanation of that letter, what does that letter indicate to you?

Stanley M. Dietz:

That letter, I don’t even have to read it.

I’ve seen that letter.

That’s the one where is — I think it’s written to a Mercury Studios —

Earl Warren:

This is suppose to be a photograph (Voice Overlap)

Stanley M. Dietz:

— and that’s the one were it says in 1958, we want a truck driver type, it’s all showered up, clean and ready for bed.

That letter was directed to one particular photographer who submitted photographs that we used in this magazine and apparently, this particular photographer’s work was models who were rough and tough and dirty looking and this was an attempt to get the models to be better appearance.

Earl Warren:

For what purpose.

Stanley M. Dietz:

To use in the magazines.

Earl Warren:

For yes, but for what kind of — what kind of viewer.

Stanley M. Dietz:

Well —

Earl Warren:

You don’t think this letter implies any such thing You don’t think —

Stanley M. Dietz:

Well —

Earl Warren:

— this letter implies —

Stanley M. Dietz:

— let’s — let’s say this —

Earl Warren:

— that this is to go —

Stanley M. Dietz:

Let say that — that it was —

Earl Warren:

— even the homosexual.

Stanley M. Dietz:

— for homosexuals.

Earl Warren:

I beg pardon.

Stanley M. Dietz:

Let’s say that it was intended to get this particular photograph for use to appeal to a homosexual.

Earl Warren:

Yes, well that is — it is the fact, is it — it fairly imports that does it not?

Stanley M. Dietz:

I won’t argue that.

Earl Warren:

Very well.

Stanley M. Dietz:

I won’t argue against that.

Earl Warren:

Yes.

Well that in — is something of a concession is it not on the part of the publisher that this was beamed as they say to — to homosexuals?

Stanley M. Dietz:

Well, let’s say it’s a concession that he wasn’t in looking, overlooking any part of the American market in his attempt to sell his magazines.

Earl Warren:

Well, what part of the letter would indicate that?

Stanley M. Dietz:

That he was not overlooking any part of this portion —

Earl Warren:

Yes, that it was —

Stanley M. Dietz:

Well, this — this is just one photographers worked Mr. Chief Justice.

You will notice in the back of directory of the magazines, there are some 40 or so names listed as contributing photographers to these magazines, but, this — this counsel has trouble in my own mind, with this — this problem.

I — I mentioned that yesterday, even if these magazines are beamed — magazines which are at homosexuals, if there’s such a thing as a class of people named homosexuals, if these magazines are beamed off, then what does this One, Inc. versus Olesen case stand for?

Are homosexuals allow to receive the pick ups or literature that they may chose to purchase or — or they to be censored out of that because we, as so called normal people don’t like homosexuals.

It’s not —

Earl Warren:

Your principle argument is Mr. Dietz, is it not that these publishers have — have the right to — to beam to the homosexuals of the country, these things that appeal peculiarly their prurient interest and that if we do not do that — if we do not permit that, we are denying to them that which is given to — to other people because some other things that are in circulation do appeal perhaps to — to the sex motives of — of those people.

Stanley M. Dietz:

I don’t go quite as far as the Chief Justice’s question.

Earl Warren:

Yes.

Stanley M. Dietz:

When you say where that there — to go to homosexuals to appeal to their prurient interest.

I don’t go this far, you see because I don’t — as I see the testimony and the psychiatrists, I don’t feel that it holds that far.

Now, the Government — I didn’t want to get in to this particular — you put me on the spot, but —

Earl Warren:

I thought you will figure this in your opening argument that we were denying —

Stanley M. Dietz:

I didn’t want —

Earl Warren:

— we were denying to homosexuals the right to have what’s comparable with other people to pin up, pin up girls and — and you said that if we did that, if we took away from them the right to have something that it would appeal to them in the same way that the so called girlie magazines appeal to the — to the normal persons that we would depriving them of something to which they were lawfully entitled.

Now, that’s the way I understood your argument.

Stanley M. Dietz:

You are exactly correct in that premise, but I think in your question, you went a little bit further and said these magazines are going to arouse — and maybe I miss understood your question.

Earl Warren:

Well, no.

Stanley M. Dietz:

Well, arouse some prurient interest in the homosexual.

Earl Warren:

I — I did use that.

I did use that word, yes.

Stanley M. Dietz:

Well, my argument is that these — these magazines are not going to cause any unlawful actions.

Now, may I say —

William J. Brennan, Jr.:

Well what you — I thought what you really argued was that even assuming these were beamed at the homosexual market, they are not obscene publications within the law of definition.

Stanley M. Dietz:

That is one part of my argument Mr. Justice Brennan.

William J. Brennan, Jr.:

One part of you — now that was the —

Stanley M. Dietz:

No that’s just one part it.

William J. Brennan, Jr.:

Alright.

What’s the other part of it?

Stanley M. Dietz:

The other part is that these magazines could not in — if they were just purchased by homosexuals, these magazines could not clause the unlawful actions that the psychiatrists claim they could.

The Government —

William J. Brennan, Jr.:

Your time is running out.

I frankly don’t see how that’s only different to the proposition I just posed.

Stanley M. Dietz:

My time is running out.

Mr. Justice — Mr. Chief Justice, you asked me a question whether I had at anytime conceded that these magazines were homosexual magazines.

I’ve never conceded that —

Earl Warren:

Yes.

Stanley M. Dietz:

— 27 — the Government claims that I give in the record on page 28, but if you will examine page 27 of the record, you will see that when I was questioning this witness, I started all my questions as appear on 28 were of the magazine — using the magazine One Incorporated, which this Court had ruled upon in its prior case One Inc. versus Olesen.

I had used this magazine to show, to compare with the psychiatrists in my cross-examination of him.

I showed them the magazine, this picture in the magazine, Is this worst in the pictures in our magazine?

He said, Yes wanted appeal —

Earl Warren:

Yes.

Stanley M. Dietz:

I also showed him the Sunshine & Health Magazine.

This is also in the record, which this Court had ruled to be not obscene or at least mailable and the photographs that were therein contained and in that magazine and he also testified and it’s in the record that that these magazines would be — even more appealing to the prurient interest of a homosexual because of a complete nudity of the particular model.

And Mr. — Mr. Justice Stewart hit the nail right on the head when he said that he assumes at the Empires State building would appeal to some erotic interest in some people.

Well, this was my argument and it appears in the record that there was so many myriad of different things that would appeal to homosexual that you could not possibly have any sort of a photographic magazine without appealing to — to some different face of homosexuals which goes back to what I argued to the Chief Justice yesterday that you cannot have any standards, because there was so many different degrees in this category of people and Mr. Kinsey phrased that out and we’ve argued that in our — in our brief.

Felix Frankfurter:

Suppose — suppose that mail matter is written in Sanskrit.

Stanley M. Dietz:

In — in.

Felix Frankfurter:

In Sanskrit and addressed to Sanskrit Community of the United States or maybe such or some article of non-populous foreign tongue, could the Post Office have that translated into English Suppose there’s a publication in some (Inaudible) language —

Stanley M. Dietz:

There is — there is right mail Your Honor.

There is right mail being imported in this country — The Christ, The Christ is a magazine.

It comes from Germany.

It’s in German and it’s a nudist magazine and the Post Office every time — every time they catch it, well, they have — they try to stop it.

Felix Frankfurter:

What I’m — I’m asking you, could — could matter written in a foreign non-English tongue to be translated into English in order to understand what it means considering the market to which it was directed, could it?

Stanley M. Dietz:

Mr. Justice Frankfurter, you picked the full one of the questions —

Felix Frankfurter:

(Voice Overlap)

Stanley M. Dietz:

No, well I’m — I’m against — I’m against the Post Office stop at anything in the mail (Voice Overlap)

Felix Frankfurter:

You are not alone in that.

I understand that.

Felix Frankfurter:

I’m asking you the constitution of the laws of United States being what they are and the decisions of this Court being what they are could matter in a foreign language be translated into English in order to find out what it means to those, to whom it is directed, what’s the answer to that?

Stanley M. Dietz:

Well, how —

Felix Frankfurter:

I’m not asking (Voice Overlap)

Stanley M. Dietz:

If you follow — if follow that —

Felix Frankfurter:

— law.

Stanley M. Dietz:

If you follow the — the Government’s view yes, if you follow all you know —

Felix Frankfurter:

I’m asking (Voice Overlap)

Stanley M. Dietz:

I say no.

Felix Frankfurter:

Well, you say no because you think nothing can be excluded.

Stanley M. Dietz:

I don’t think that — in this particular case or that you have mentioned, I don’t think that the Post Office would have that right.

Felix Frankfurter:

It was merely because in the foreign language?

Stanley M. Dietz:

Well, it’s not going to appeal to prurie — prurient interest —

Felix Frankfurter:

I have reach to that point.

I’m asking you whether they could find out what the — what the — what the figures or holographic are which are in the foreign script.

Could it translated into English, could it be translated?

But if you don’t want to answer, that’s alright too.

Stanley M. Dietz:

I — I’d like to be able to answer.

Let’s say that they —

Felix Frankfurter:

Suppose the equipment is French, suppose a lot of French stuff comes in, can the Post Office in order to find out what the contents are have the French translated into English?

Well, that seems to be too difficult a question I (Inaudible).

Earl Warren:

Mr. — Mr. Dietz, is the question of prior restraint properly before us here?

Stanley M. Dietz:

We feel that it is.

The Government deems it is not.

Earl Warren:

Did you raise it — did you raise it in the administrative procedure?

Stanley M. Dietz:

No Your Honor, I did not.

Earl Warren:

Did you raise it in the court below?

Stanley M. Dietz:

No I did not and I did not — I did not ask for a jury trail in the administrative proceeding.

It wasn’t provided in their rules as I said yesterday.

I tried to play ball by their rules even though they didn’t play ball by their rules and I see all a lights are flashing on me but —

Earl Warren:

Could you answer my question?

Stanley M. Dietz:

I would like to — I did like to — all the Justices seem interested on the Government’s examination, the Government’s argument, about the sequence of events here.

Well, now I have before me and it’s in the record, the letters of April 5th and April 7th and of course the letter of March 1st which was the first one that we had received.

As I stated yesterday, they stopped our issue.

Now, Mr. Justice Brennan asked question yesterday about Womack’s conviction.

Womack was convicted in the end of January of 1960, I believe it was a 28th and 29th.

The next week, these magazines which would have hit the mail to the first week in February, they were stopped, although we were not notified of it until March 1st 1960 is the letter that we’ve received notifying us that these magazines — that some of these magazines had been stopped, not all.

They were withdrawn from the mail.

That — that was the first part of it.

And in that — and it’s very interesting that the Government did never rely on any other section of the code in any of these proceedings except Section 1461 and each time if they stop any raw material, they give us some of Section 1461 along with the rules of procedure.

Now, on April 5th and April 7th, they wrote to us and of course April 5th, they told us that they had stopped these magazines which had been mailed on the 25th of March and then they gave us 10 days in which to come in and object to their procedure, they — and — just time sequence.

So actually what we did was we went to the District Court and in the District Court, Mr. Justice Frankfurter asked yesterday why we didn’t flood the mail with materials during the day and a half or two days that we had on temporary restraining order, in that case Mr. Justice Frankfurter, all that we went in to the District Court and asked for was an administrative hearing, which by the — they — they were apparently trying to deny us this hearing.

We were not trying to get around the hearing.

We came in to court and asked for a hearing.

And I have the original complaint here, the motion for the first —

Felix Frankfurter:

You had a restraining — you had a restraining order —

Stanley M. Dietz:

We’ve got a restraining order.

Felix Frankfurter:

— and therefore frees from what is called censorship, but Mr. Doolittle made clear that you didn’t have the time within which to do any of —

Stanley M. Dietz:

Well, Mr. Doolittle possibly made it clear to your mind but not to mine.

We had the time, but —

Felix Frankfurter:

Well, in the difference position, you see (Voice Overlap) —

Stanley M. Dietz:

We didn’t — yes.

We didn’t — we didn’t attempt to.

We didn’t attempt to evade anything.

We just wanted to get the hearing.

And —

Earl Warren:

Mr. Dietz —

Stanley M. Dietz:

You asked the question —

Earl Warren:

— I’ve looked over the magazine again and the Reader’s Digest article was not (Inaudible)

Stanley M. Dietz:

I didn’t think so because I am very familiar for me with these magazines, although the gentlemen at the Post Office and this appears in the record, all — the expert so forth call the experts on obscenity to Post Office (Inaudible) read one word to text for many of magazines.

Even the psychiatrist who testified that the use to change was supposed to have been so bad because it appealed to some advocates that wants to be changed up and beaten to the death.

Stanley M. Dietz:

This use to change in that photograph was illustrating an article pernicious.

I asked to gentleman — the doctor, was he is ever heard a pernicious, know anything about it and this was article in our book and he confessed complete ignorance and then said that he — he’s not — he’s not expert on those kind of matters.

And then you also asked a question Mr. Justice Black which — whether there are such things as the experts on obscenity, Mr. Justice Frankfurter wrote in his concurring opinion in Smith versus California, a very strong concurring opinion which I have attempted to use in other case to get courts to listen to experts, but apparently, they don’t follow this particularly.

They hold there’s no such thing as expert.

Earl Warren:

Very well Mr. Dietz I think, we (Voice Overlap)

Stanley M. Dietz:

I beg —

Earl Warren:

I think we better get to rest —

Stanley M. Dietz:

I know I gone over my time, so I want to thank you.

I —

Earl Warren:

It’s alright.

Stanley M. Dietz:

I also didn’t finish half things I wanted to say.

Earl Warren:

I’m sure of that.