Manual Enterprises, Inc. v. Day

PETITIONER:Manual Enterprises, Inc.
RESPONDENT:Day
LOCATION:South Carolina State House

DOCKET NO.: 123
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 370 US 478 (1962)
ARGUED: Feb 26, 1962 / Feb 27, 1962
DECIDED: Jun 25, 1962

Facts of the case

Question

  • Oral Argument – February 27, 1962
  • Audio Transcription for Oral Argument – February 27, 1962 in Manual Enterprises, Inc. v. Day

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

    Earl Warren:

    Number 123, Manual Enterprises, Incorporated, et al, Petitioner, versus Day, Postmaster General of United States.

    Mr. Dietz.

    Stanley M. Dietz:

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

    The first argument, which I would set forth to this Court, I would divide into three parts.

    I feel, since this is basically a question of obscenity, I feel the first point that I must cover is strictly factual.

    You have four magazines before the Court and just a question of looking at these magazines as judges to see whether in the opinion of the Court, these magazines would revoke to the Court’s definition, as laid down by Mr. Justice Brennan for the Court in its opinion in Roth versus United States.

    Potter Stewart:

    This was not a criminal prosecution.

    This is an exclusion from the mail case, is it not?

    Stanley M. Dietz:

    This, Mr. Justice, is a civil case based upon a criminal statute.

    It is not criminal prosecution.

    It is exclusion from the mails under the provisions of Title 18 1461 saying, “All obscene material is non-mailable.”

    Potter Stewart:

    And then — and then the same statute proceeds to make a criminal offense and make it a criminal offense for anybody who does mail it.

    Stanley M. Dietz:

    The same statute continues to place a penalty of five years imprisonment or a fine upon anyone who uses the mails to transit of obscene material.

    And I think that you will find in the Government’s briefs some argument even to the point that it wou — it would be even a crime for the postman to carry it, according to their interpretation which I don’t agree with the Government’s brief, but looking at the individual exhibits, I have gone over each one, each page as indicated in the record from the testimony given by the Government’s doctors and I have covered it very fully in my brief.

    The first exhibit manual, April 1960 issue, the psychiatrist for the Government testified as to 16 bad pages out of possibly 48, one-third of the total context in the second exhibit, six out of 48 pages were covered, in the third, five out of 48 and in the last exhibit only four out of 48.

    Now, in the Government’s brief, they have outlined nearly something that they feel is wrong or revolting to the statute of — in nearly every page.

    I cannot go along with this.

    I say that if this was so then this was something that psychiatrist should have testified to and not the Government’s brief.

    This brings us to a question of just what is meant by this Court in its definition in the Roth case.

    The Post Office has picked it up.

    As I understand it, the definition says that as to the average person, applying contemporary community standards, the dominant theme of the material considered as a whole must appeal to the prurient interest and the Government would argue that it’s not to the average person.

    I think they argue even further to this Court that this Court did not, in its opinion, intend to mean that obscenity must be judged on its effect upon the average person but only upon the average reader that is expected to receive or be the recipient of this material.

    In the Post Office, they have changed this definition or this test of obscenity that this Court has laid down to one in which material is obscene if it would appeal to the prurient interest of a homosexual because they contain this material is deemed act homosexuals and only produced for homosexuals.

    Of course this is one point that I would gladly argue.

    We contend these magazines, if you examine them and see by volume, if nothing more the context is not for homosexuals, but is basically for the body builder, the person who is interested in large muscles and you may view each and every photograph in the magazine.

    But this brings us to the second consideration, just what is this so-called homosexual audience?

    What are they composed of?

    I argue in my brief and to this Court that this is the word itself, homosexual is incorrectly used, homosexual, the word, the term.

    This does not describe people.

    This is a term that describes things that people do and therefore, the way that it’s used by the Post Office, itself, makes a definition inherently vague and indefinite.

    Stanley M. Dietz:

    I would continue with comparison of the definition as used in the Post Office with the definition as laid down by this Court in the Roth case.

    Now, in the Roth case, this Court has said that we must apply contemporary community standards in judging material that is supposedly obscene.

    Now, that — that is a catch phrase to me, contemporary community standards because the Post Office would say that this material is headed from homosexuals.

    Well, who is there to testify as to the average audience that’s homosexual, then what is the community standards for homosexuals?

    Do they have any community standards?

    Are we going to allow these second class citizens to receive any literature?

    This is a point.

    The Post Office will have this divide Americans into normal people, so-called normal people, even though their doctor says, there’s no such thing as a normal person just within normal limits, normal people or abnormal people.

    Now, for normal people, you receive one type of literature and that’s the only thing that’s allowed to be carried through the mails, and anything that does not fall into this category, anything that’s going to appeal to this so-called abnormal people is obscene.

    I say, this is censorship.

    I would go further with this argument.

    Earl Warren:

    In this argument, that the (Inaudible) specifically statutory is bias of homosexuality’s are criminal standards or (Inaudible) homosexuality’s standard?

    Stanley M. Dietz:

    Perhaps, I did not make my argument clear, Mr. Chief Justice.

    My point was this.

    If we take our definition as laid down in the Roth case, judging the material as a whole applying contemporary community standards, the dominant theme upon the average person, the effect upon the average person, alright?

    The Post Office change at around say, it’s not the average person, it’s not the average normal person, it’s a homosexual, alright?

    Now, can we find a so-called average homosexual?

    The answer is no and this is in the record from the Government doctor’s own testimony.

    So therefore, you might have to say that anything that is going to appeal to a homosexual, by the definition given out from the Post Office, has got to be obscene.

    There’s no — there’s no out.

    Have I been able to make it any clearer?

    Earl Warren:

    That’s alright.

    (Inaudible) as to the matter is that the (Inaudible) as the matter is (Inaudible) says that this (Inaudible)

    Stanley M. Dietz:

    I would best attempt to answer that question by saying that in the opinion of this counsel, there is no community that has no homosexuals.

    That every community has and possibly they’re not, I’ve — and I stated in my brief, possibly it hasn’t been — maybe they haven’t been discovered if you want to use that term, discovered because we keep these people suppressed so maybe they have been (Inaudible) it out and brought to the light.

    Now, if you’re going to — the only other way that I could answer would be in the testimony given by the Government’s doctor in this case as to all of the different, myriads of different things that would appeal to the prurient interest of the different phases or types of people that he would classify as homosexuals and I would say that’s impossible by his own testimony to set any standard.

    Earl Warren:

    As stated in your brief makes the proof at (Inaudible) makes the standard of guilty (Inaudible) Government’s appeal to obedient (Inaudible).

    Stanley M. Dietz:

    I’m having a little difficulty understanding your question, Mr. Chief Justice.

    Do you mean by that question that there’s no –?

    Earl Warren:

    (Inaudible) but it does not — does not appeal to the effect (Inaudible) any persons (Inaudible) does not.

    Earl Warren:

    Do you say (Inaudible) very much reason that it’s never their law (Inaudible) to be obscene?

    Stanley M. Dietz:

    That was not what I have intended to say, Mr. Chief Justice.

    I understand the question now —

    Earl Warren:

    (Inaudible) the reason (Inaudible).

    Stanley M. Dietz:

    I hadn’t — I hadn’t really reasoned it that far.

    My reasoning had stopped at the point where you say there’s one group of deviants but within this particular group there is by the testimony of the Government’s own doctor, there were so many different segments that there is no person, no one or no group of persons, even Professor Kinsey and his group cannot say what is going to be the stimulant to or what would be the standards for arousal of the average of that group, that’s where I stopped.

    You went a little bit further.

    Let — let’s accept for a second just for argument, let’s accept the Government’s view then I have to ask the Court to again go back to the exhibits and examine them carefully, in conjunction with the record.

    These photographs contained, if they were intended for homosexuals and I argued this in my brief that these photographs, none of which shows the completely exposed genital area.

    In all of these photographs the genitalia is draped or covered and these photographs are not worst then, what we so-call normal people called pin-up photographs, which, I think, even this Court would take judicial knowledge, as generally commonly accepted.

    You see photographs of such beauty, female beauties as Marilyn Monroe nude on calendars, on walls all over the country.

    Now, my argument to this Court, if you’re going to consider that these photographs were headed for homosexuals, to appeal to homosexuals then an analysis of these photographs would show that these photographs are no more than the photographs comparable pin-up photographs of Marilyn Monroe and the other beauties.

    And my point, in that argument being this, if we so-called normal people, according to our law, are entitled to have our pin-ups then why shouldn’t the second class citizens, the homosexual group, if you use that term, why shouldn’t they be allowed to have their pin-up?

    Their pin-up is certainly no worse and you — you have to examine each one of these photographs, their pin-up is no worse than our pin-ups.

    That is the — that is the three parts of my first argument, first — first point I raised in my brief.

    The second point raised in the brief is this question following this Court’s decision in Smith versus California, a question whether a publisher of a magazine or any sort of literature is held accountable for the actions of his contributing photographers.

    These magazines were held to be non-mailable on two parts.

    One is that they were obscene and two is that they were non-mailable because they gave information, supposedly where, how, from whom obscene material may be obtained.

    My point is, and the record, I think, shows that the publisher of this magazine did everything reasonable to learn, to ascertain for himself just what materials, the contributing photographers were selling and that he — and the record also indicates that he voluntarily deleted from his magazines the advertisements of particular photographers whom he considered, in his opinion, were selling non-mailable photographs.

    The record will also show that he, himself, did not advertise any of his own particular completely nude photographs, which he was selling under his own trade name of Continental Artist.

    While I’m at that point, I would like to refer to something in the Government’s brief which I feel should be brought to this Court’s attention and that is appearing on pages 48, the bottom of page 48 and the top of page 49 of the Government’s brief, where they allege that Mr. Womack was advertising his own merchandise in carrying an advertisement of Vulcan Studios, Tony of Vulcan Studios.

    Everyone at the Post Office, from the postal inspectors through the hearing examiners, everyone that does have anything to do with Mr. Womack know that he was not Tony of Vulcan Studios that this Tony of Vulcan Studios is entirely different person and we feel that this should be brought to the Court’s attention because it’s just incorrect.

    There’s no — there’s no question that this is just an incorrect statement.

    Now, in the — in the record, the postal — postal inspector, Harry Simon testified that he had extreme difficulty in purchasing anything that was supposed to have been obscene from the photographers.

    And the way that he, the postal inspector, would conduct his investigation would be to mail out what he called test letters.

    Well, we did the same thing, that is the publisher of this magazine did the same thing and he even went further, and he expended more money than the postal inspectors did because he actually found materials that were not to his taste and he did delete those particular photos — photographers from his magazines.

    Now, the third point that I have in this case is the question of whether there was a prior restraint exercised upon these magazines and that requires, in part a consideration of the regulations and in part a consideration of the time sequence and the way that these regulations were applied.

    Now in the Government’s brief, page 3, they have in their statement of facts, March 25th was the date that this material was placed in the mail by us, March 25th, 1960.

    You’ll notice that the next date is April 5th and April 5th was the date that we received the letter — no, excuse me, April 5th is the date that the letter was dated that was supposedly mailed to us, informing us that this material was being held by the General Counsel of the Postal Office Department because they considered it to be obscene.

    I noticed in the rules of the Post Office that is supposed — that is supposed to follow as set forth in the back of the page 81, it’s in Appendix 8 to the Government’s brief.

    Stanley M. Dietz:

    Rule 1 – Limitation, Rule 2 – Initiation because Rule 1 goes into the question of how much money is involved.

    Rule 2 on initiation it says, “Upon receipt of mail matter, of doubtful mailability, etcetera” referring to the provision of the code, “submitted by a postmaster, the General Counsel shall (a) file a complaint with the docket clerk.”

    Now, this material was stopped on the 25th of March, 1960.

    April 5th is when we have received the letter stating that they feel that this material is non-mailable.

    I say again, not we received, but when they supposed to have mailed the letter, April 5th.

    Now, April 11th, 1960, they have in their brief in the bottom of page 3 that we have challenged this letter.

    Well, we did.

    We have filed formal complaint with the Post Office about it, but, we went further than that.

    On that date, April 11th, we received or we asked for and received the temporary restraining order from the United States District Court for the District of Columbia and, of course, in the bottom of page 4, in the Footnote 1, the Government’s brief says temporary restraining order was denied on April 13th.

    Well, this is a little bit of an error because the temporary restraining order was granted on the 11th.

    Now, what happened was two days later, on the 13th, we had a hearing on the preliminary injunction which was denied, giving us the right to come back to the Court, if we did not receive a hearing or to conclude a hearing by the 28th of that month.

    Now, the point that I — I wish to raise with this Court and why this counsel feels that’s important that these magazines are dated.

    Each one of these magazines had got a date on them.

    Now, if they — according to their rules, if they can take a magazine and keep it for 10 to 12 days before they are supposed to send you a letter saying that you’re not going to be able to continue through the mails with this magazine before they even start in, the mechanism for having a hearing then by the time, this hearing is finally granted, if ever, your magazines are no longer saleable because the month has passed.

    And —

    Charles E. Whittaker:

    What’s the alternative to that?

    Stanley M. Dietz:

    The alternative, sir, is three-fold.

    I have set this forward in my brief because, I weren’t familiar with it because the month before they had stopped the magazine that is exhibit number 4, which is the Trim, March 1960 issue of Trim magazine.

    That was stopped the month before and they gave us this letter which said, “You can come and — and get your materials and — and withdraw it from the mails or you can go ahead and request the — the hearing.”

    Now, to withdraw it from the mail that means that we have to ship it by freight, railway express and of course, this is second class mailing privileges were in effect at this time and the expense wise tremendous difference between shipping by mail and shipping by — by freight.

    John M. Harlan II:

    What’s the total circulation?

    Stanley M. Dietz:

    As of this date?

    John M. Harlan II:

    Well with reference to —

    Stanley M. Dietz:

    40,000 or more a month.

    It’s pretty good.

    Charles E. Whittaker:

    Assuming that the material is obscene, and it’s presented to the Post Office Department, they must either take it, mail it or reject it, but if it’s obscene they have no right to take it, isn’t that true?

    Stanley M. Dietz:

    Well, yes, according to the way that the statute is written.

    In fairness, I have to say, yes.

    The statute says that all obscene material is non-mailable.

    I’ve read the Government’s brief.

    Stanley M. Dietz:

    They went back into the — the particular background of the law and said that they didn’t want to stop.

    They have even been accepted, I have to agree with that.

    Charles E. Whittaker:

    Do you think that it’s beyond the power of Congress to prohibit the Post Office Department from transmitting obscene material in mails?

    Stanley M. Dietz:

    Mr. Justice Whittaker, I have never said it’s beyond the power of Congress to regulate the mails.

    Charles E. Whittaker:

    Then when material that is obscene is presented, they must reject it.

    What else then can they do but give you a hearing?

    Stanley M. Dietz:

    Well, that’s the point, Mr. Justice Whittaker.

    I had to go and get a temporary restraining order for the District Court just to get a hearing.

    That’s what we asked for when we went to Judge Tamm, was a hearing because according to the rules, when they send you a copy of the rule and of the way that the Post Office were working it in this particular case, by the time we would have ever gotten to a hearing, you could have forgotten about the magazine because it was — it was a month afterwards and you can’t sell.

    You can’t sell a May magazine in — in June.

    This is the information that I have received, Mr. Justice.

    I have been told that you take a magazine like this and there are people — now, these are sold mostly from newsstands, exactly the same way that all other magazines in this field are sold and these magazines, I didn’t mentioned it before but the records shows that the testimony of the Government’s psychiatrist, these magazines are exactly the same in content, the type of pictures and everything else just like every other physique magazine sold.

    We have them all down at the — at the postal hearing and showed them and were com — compared by the psychiatrist for the Government with all magazines and he said they were all the same, had the same kind of pictures.

    Everything was exactly the same.

    May I be permitted to reserve some of the argument time to answer?

    Earl Warren:

    Yes.

    Felix Frankfurter:

    What is the litigation (Inaudible)?

    Stanley M. Dietz:

    Which one of my points, Mr. Justice?

    Felix Frankfurter:

    I don’t know about the point.

    Stanley M. Dietz:

    I have — I have three claims.

    One, I feel that these magazines are not obscene as laid down by this Court’s, as testified in this Court’s definition, that’s number one.

    Number two is I feel that the way that they have treated us in the prior restraint exercise in the Post Office Department was unconstitutional.

    Felix Frankfurter:

    What is that, they stopped — they have stopped sending through mail?

    Stanley M. Dietz:

    Well, they stopped this stuff before — before it was ever actually carried in the mail.

    This was — this particular set, these four books were stopped.

    Felix Frankfurter:

    The Court had stopped them?

    Stanley M. Dietz:

    When it was offered.

    Felix Frankfurter:

    Before it was offered or when it’s offered?

    Stanley M. Dietz:

    When it was offered.

    It was offered put in — put into the Post Office.

    Stanley M. Dietz:

    Our men walked away and we did not know that it was not accepted but they actually stopped it at that point and held it from March 25th until April 5th when they wrote us a letter and said that they were holding it.

    Felix Frankfurter:

    But you contend that there’s no statutory clause or constitutional clause in (Inaudible).

    Is that (Inaudible) was supposed to (Inaudible) when (Inaudible) was given, not to let it go through?

    Stanley M. Dietz:

    I say that —

    Felix Frankfurter:

    That everything under the law communicates that second chances (Inaudible) anything like that?

    Stanley M. Dietz:

    This is not like Near-Minnesota, Near v. Minnesota.

    Felix Frankfurter:

    (Inaudible) talk about (Inaudible) against the Court be it for every gross of past issues suppose to have the general (Inaudible) hereafter (Inaudible) sorts of anything like that?

    Stanley M. Dietz:

    This is not quite like that.

    No, although I will say this —

    Felix Frankfurter:

    Is it true, is it concluded to Harry neither return it for mailing at the time it was presented, isn’t that right?

    Stanley M. Dietz:

    Yes, that — that would be correct.

    Felix Frankfurter:

    Well, if there’s a statute (Inaudible)?

    Stanley M. Dietz:

    Not spelled out in that many words.

    It’s in the general — the general wording of Title 18 1461 saying that all obscene material is declared to be non-mailable.

    Felix Frankfurter:

    So you think, he’s denied the powers of Postmaster General?

    He obscene, let’s now discuss it, so (Inaudible) may the Postmaster General refuse the — the mail?

    Stanley M. Dietz:

    Well, when you say assumed it’s obscene, you —

    Felix Frankfurter:

    But —

    Stanley M. Dietz:

    — you sort of — sort of would pull the rug out from under it —

    I don’t deny — I don’t deny the Postmaster General’s power that said is something blatantly obscene, a hardcore pornography, put it in the mails in a — in a French postcard let’s say, where it’s right open.

    Felix Frankfurter:

    And the statutory power to — to oppose that and not let it go to the mail?

    Stanley M. Dietz:

    Well, it’s not spelled out in any statute but it — it’s — you might say that it is construed from the wording of Title 18 Section 1461 wherein the Congress has said that obscene material is non-mailable and shall not be carried.

    Felix Frankfurter:

    Are you challenging his power to do that, to concededly obscene materials?

    Stanley M. Dietz:

    No, Mr. Justice Frankfurter.

    I am not challenging his power.

    Felix Frankfurter:

    (Voice Overlap) be real claim — your real claim that this Postman General exercised the power of the law, and construe as non-mailable to get obscene magazines from mail, he exceeded the exercise — the right to exercise that power because it’s definitely not obscene, is that what this is?

    Stanley M. Dietz:

    Well, I feel, number one it’s not obscene.

    I would agree with your statement of the question in that way, but I would go a little bit further and I say that I’d — I think that if the Postmaster General has these certain rules laid out for him on how he or his agents are to act, whether or not this material is obscene, these are his rules and he’s got to play the — the game by his rules.

    Felix Frankfurter:

    That’s a very good point but on the General’s power of the Postman General excludes all the materials that is thought to be obscene, if it be obscene and that’s made (Inaudible) if it be obscene, you (Inaudible) on that?

    Stanley M. Dietz:

    I’m in no position to argue against it.

    Stanley M. Dietz:

    I think this Court actually decided that in the Roth case.

    I was — as — as I understand it.

    Felix Frankfurter:

    But the other point is that because Department of the Postmaster — Post Office or anybody else (Inaudible) they’ve gone rule procedure by which termination is made be it be held at his procedure, that’s (Inaudible).

    Stanley M. Dietz:

    That is — yes, that is the last point that I — that I raised in my brief.

    Felix Frankfurter:

    What made him depart from that?

    Stanley M. Dietz:

    For right — for the right from the outset.

    They received this material on March 25th.

    If this material was considered obscene then they should have immediately and according to their rules upon receipt of such material is to file, through his General Counsel, is to file a complaint against the material.

    Felix Frankfurter:

    The day (Inaudible) post some charges under the Post Office (Inaudible) from the (Inaudible) this afternoon of the issue in order to so-called (Inaudible).

    Stanley M. Dietz:

    Well, Mr. Justice Frankfurter, you — you were the — the member of this Court who wrote the Kingsley Books case.

    Now, in that case, one of the points you brought forward was that the saving factor of this — unless this counsel is mistaken, one of the saving factors of this statute in New York was you want an injunction, you get it today.

    You have a hearing on it within one day after joinder of issue and a decision within two days.

    And that was one of the saving factors as I understood.

    There’s no such — there’s no such in these rules that the Post Office had.

    That — as a matter of fact —

    Felix Frankfurter:

    (Inaudible) obey the rules but the rules didn’t sufficiently protect it?

    Stanley M. Dietz:

    That is part of it, sir.

    That is part of it.

    Felix Frankfurter:

    I am trying to find out what your case is (Inaudible).

    Stanley M. Dietz:

    I understand.

    Felix Frankfurter:

    (Inaudible)

    Stanley M. Dietz:

    I understood that as well, Mr. Justice.

    Well, as you see now, a part of it, of course, is a fact that they didn’t play by their own rules and part of it is that their rules themselves are inherently vague.

    Now, maybe the rules would be alright if this material that was to be carried through the mail was something that was not dated, that it didn’t matter.

    When I say, alright, as far as this counsel and — and with these clients concerned.

    If it was not dated material, it was not something that had to be brought to the mail for purpose to get it out in timely sale, I say then it might be different.

    Felix Frankfurter:

    And now suppose that the — suppose that sale never find out, will that make you a defendant once as an (Inaudible) somebody complaining about (Inaudible) goes to the mail that the instance (Inaudible) parties (Inaudible).

    Stanley M. Dietz:

    Well, I — I agree with — at this point, I can see what’s behind that question and I — may I say this, week —

    Felix Frankfurter:

    (Inaudible)

    Stanley M. Dietz:

    Well then, let — may I say that once Herman Womack was convicted in the federal court, here, the Post Office made up their mind that they were going to stop these magazines and that’s when we started getting — each month they started grabbing our magazines and that — that’s what actually happened.

    Stanley M. Dietz:

    So, you might say that the Postmaster General has the authority to hold from the mails obscene material, I don’t argue that.

    You asked me if this was comparable to a case where the — in the future they’re going to hold material from the mail, that’s why I thought of Near versus Minnesota.

    Well, actually they had intention of holding every single magazine that this man was associated with.

    Felix Frankfurter:

    What you are now saying is that the Post Office — what you now saying is that there was (Inaudible) against your particular client whenever you (Inaudible) through the mail, is that what they say?

    Stanley M. Dietz:

    No, there’s no question about that.

    That is yes.

    Felix Frankfurter:

    I don’t know if there is or there isn’t anybody in the record at the same time.

    Stanley M. Dietz:

    Well, this point was never brought out in any testimony.

    Felix Frankfurter:

    Well then how can we — how can we agree with your position?

    You — you’re sure that that so but — but we ended up unsure.

    Stanley M. Dietz:

    Alright.

    There’s nothing in the record and I — I don’t care to argue something that’s not in the record.

    Felix Frankfurter:

    So the — the point really isn’t important?

    Stanley M. Dietz:

    No.

    Not that — I — I haven’t raised that in the brief.

    I have nowhere in — in any of my briefs asserted that even though this was always my — now, I would go further and say my personal opinion this was a conclusion and that it was based upon statements made to me as counsel.

    I did not have the opportunity to fully answer the question post by Mr. Justice Black as to the — whether or not the dates were of importance.

    I started to — I think I got off by another attention.

    I am informed that when the month goes by and let’s say this magazine now holding exhibit 1, April Manual when this magazine has the time has gone by and the next issue is on the street, that the top will be torn off, the piece that has the date will be torn off and then, of course, they will try to sell it at a reduced price which of course –.

    John M. Harlan II:

    What is the price?

    Stanley M. Dietz:

    50 cents, Your Honor, 50 cents each magazine.

    Felix Frankfurter:

    Is that the normal price of these magazines?

    Stanley M. Dietz:

    Yes, this is — there were some more expensive.

    There are magazines that are little bit larger in size.

    When I say larger in size, larger photographs, pages are larger and not more pages, just larger and they’re made by a gentleman who — New Jersey, named Weider and I think his magazine sell for a dollar and he does have some annual magazines that sell for $1.50 or $5 annual —

    Felix Frankfurter:

    Annual.

    Stanley M. Dietz:

    Yes, annual magazines.

    May I reserve some time?

    Earl Warren:

    You may, you may.

    Mr. Doolittle.

    J. William Doolittle, Jr.:

    Mr. Chief Justice, may it please the court.

    The Court will usually have perceived by now that we are dealing in this case with a rather unusual type of publication.

    One that is, I suggest, the peculiarly insidious form of obscenity in that, while it appears to the average man to be far less objectionable than the usual forms of pornography in fact, it has far more serious effect upon its audience than ordinary pornography has on the average audience.

    The leading commentators on obscenity and the law, Lockhart and McClure, have described this type of publication as the pseudo-physical culture magazine.

    With Court’s indulgence, I should like very briefly to read their most apt description of this genre of publication.

    “Although, not a Charles’ Atlas magazine, they say, it would have appeared to the normal heterosexual male only as a rather bizarre magazine because of the unusual clothing worn by the muscular men pictured in its photographs and peculiar settings and props included in the photographs.

    Analyzed by a psychiatrist or a psychologist, however, the magazine took on an entirely different character.

    It was then seen for what it really was, a magazine for male homosexuals to whom the clothing, settings and props had symbolic meaning.

    Now, because of the character of the appeal of these magazines, these writers, Lockhart and McClure assumed that such material should be characterized as hardcore pornography.

    John M. Harlan II:

    Who are the authors of these magazines?

    J. William Doolittle, Jr.:

    Lockhart and McClure, Mr. Justice Harlan and the writing in 45 Minnesota Law Review I was quoting it, pages 98 and 99.

    Charles E. Whittaker:

    Is that Dean Lockhart of University of Minnesota?

    J. William Doolittle, Jr.:

    The basis of — of what they were talking about — actually, they were not — they wrote this when this case was just beginning.

    Apparently, they didn’t even know about this case.

    They were writing and the citation they give is advice of psychologists at University of Minnesota.

    Charles E. Whittaker:

    Yes.

    J. William Doolittle, Jr.:

    What we have here today, I submit, is precisely the same as I shall try to show you by at least brief references to the record.

    In the time available to me I propose first to argue that in concluding that these magazines are obscene and therefore non-mailable, the Post Office and the courts below properly judged them in relation to the average person in their special audience rather than the average person in the community.

    I shall only touch very briefly upon the alternative ground that these magazines are non-mailable because they contain information as to where obscene material may be obtained.

    And finally, I shall argue that the statutory and administrative scheme by which these magazines were found obscene and therefore, were excluded from the mails, did not constitute a prior restraint in violation of the First Amendment to the Federal Constitution.

    As a pa — passage, I read to you from Lockhart and McClure indicates it is necessary in looking at magazines such as these and to consider the psychiatric and psychological testimony that was adduced with respect to them.

    Felix Frankfurter:

    Would (Inaudible) in order to argue the Government’s brief exactly what (Inaudible)?

    How does these (Inaudible)?

    J. William Doolittle, Jr.:

    Not at all, Mr. Justice.

    This case got going in the very first instance when in — on April 25th of 1960.

    Now, the magazines at issue were deposited in the mails in Alexandria, Virginia.

    Now, I should like to point out at this juncture that the issues are the March and May issues of one magazine, the April issue of another magazine and the May issue of the third magazine.

    I suggest this fact as highly irrelevant in considering the importance of the dates of these magazines which, of course, don’t contain any sort of current events matter.

    The magazines other than the dates on the cover are pretty much identical to one another in their format and content.

    These magazines or samples of them were then sent by the postmaster at Alexandria to the General Counsel’s office of the Post Office Department here in Washington pursuant to the regulations which require that when he has any question of the mailability of matters submitted to him, he will send it to the central authority in Washington for a determination as to or, I should say, for further instructions.

    Felix Frankfurter:

    Then (Inaudible) Alexandria has been informed?

    J. William Doolittle, Jr.:

    No, there’s nothing, Mr. Justice.

    William J. Brennan, Jr.:

    Well, tell me, Mr. Doolittle, one of the principals here is Womack, isn’t he?

    J. William Doolittle, Jr.:

    Yes, sir.

    William J. Brennan, Jr.:

    Well, was he involved in other difficulties with obscene material (Voice Overlap)?

    J. William Doolittle, Jr.:

    Yes, sir.

    He has been convicted of sending obscene matter through the mails.

    William J. Brennan, Jr.:

    While where all of these difficulties of his — these other difficulties they come to light about the time of this thing?

    J. William Doolittle, Jr.:

    Well, I believe that they are slightly in advance of — of these.

    William J. Brennan, Jr.:

    So that might — might be some connection between the prior parties –?

    J. William Doolittle, Jr.:

    Oh, there’s certainly might.

    Oh, I — I don’t doubt that for a minute.

    I’m not — I’m not suggesting that necessarily — that you must necessarily assume from the record that — yes —

    William J. Brennan, Jr.:

    But I — I’m just wondering in the record I ci — you just said nothing about it.

    J. William Doolittle, Jr.:

    No, the record really does not request one —

    William J. Brennan, Jr.:

    One of these magazines might not have escaped any notice at all but for Womack’s other difficulties.

    J. William Doolittle, Jr.:

    Quite possible, Mr. Justice.

    Felix Frankfurter:

    His name — name appears at the postmaster’s (Voice Overlap)

    J. William Doolittle, Jr.:

    No, his — his name does not —

    Felix Frankfurter:

    (Voice Overlap)

    J. William Doolittle, Jr.:

    No, his name does not appear on them, but I think it’s fair to say that the record taken as a whole would strongly suggest that the Post Office Department was aware of his activities and the fact that he was in fact a publisher of these magazines.

    I don’t — I don’t question that for a moment.

    Now, these — as I say, these magazines or samples of them were sent to the General Counsel’s office in the Post Office Department here in Washington and he sent letters on April 5th and 7th, 1960 to Mr. Womack as President of the magazines stating that in his opinion they were non-mailable.

    Now, an important fact as far as that particular event is concerned is that he also stated that in his opinion, they were not of sufficient value to require a hearing under the regulations and for that reason, he did not, at that time, file a complaint with the Post Office Department.

    Now, this is pursuant to Section 203.1 of the Post Office regulations, which is sited on page 81 of our brief, where he is to make this determination on value, which may be appealed to the Judicial Officer.

    Well, upon receipt of this letter, the publishers of these magazines did immediately appeal that decision to the Judicial Officer of the Post Office Department, that is, that decision that these were not of sufficient value to require a mailability proceeding and —

    Was it cited?

    J. William Doolittle, Jr.:

    The record does not reflect, and I’m not aware of any specific dividing line.

    The regulations merely say that they must be or that — that in order for these rules to be a — applicable, they shall be of substantial value — value or quantity.

    Now, the Judicial Officer upon receiving this appeal did rule that they were of substantial value and quantity and that if the General Counsel wish — wished to proceed further, he must immediately file a complaint, which he promptly did.

    J. William Doolittle, Jr.:

    Now, two days prior to that, as Mr. Dietz has pointed out, counsel for these magazines did go into District Court to seek a temporary restraining order which was granted and ex —

    Felix Frankfurter:

    Mr. Doolittle, but when the General Counsel suggest has been sent by a company must set a hearing, was a hearing set?

    J. William Doolittle, Jr.:

    Well, now, as I say, his — his initial determination was that they were not of substantial value or quantity.

    Felix Frankfurter:

    Yes, but he was overruled.

    J. William Doolittle, Jr.:

    He was overruled and upon his being overruled, he immediately filed a complaint.

    Felix Frankfurter:

    What — what do they do to be overruled?

    J. William Doolittle, Jr.:

    He —

    Felix Frankfurter:

    Does the Government come in before he was overruled?

    J. William Doolittle, Jr.:

    The injunction — the suit for an injunction was filed immediately prior or actually two days prior to the Judicial Off — Officer’s ruling that these were of substantial value, that’s right.

    Felix Frankfurter:

    (Inaudible)

    J. William Doolittle, Jr.:

    Well, actually, as I recall the procedure on the 11th, a temporary restraining order was granted ex parte and the next day, the Post Office came in and — and pointed out that they have mailability procedures and upon learning that, the District Judge then made any — any further judicial action dependent upon the holding of the hearing.

    Actually, what he said — what he did was he denied a further injunction without prejudice to the right of the petitioners to come in if a hearing had not been completed by a date certain.

    Felix Frankfurter:

    I’m sorry, I have to trouble you more, when the temporary restraining order was granted, that of the restraining order against aligned acceptable to the mail, is that right?

    J. William Doolittle, Jr.:

    No, the temporary restraining order was against holding the material against —

    Felix Frankfurter:

    Holding?

    J. William Doolittle, Jr.:

    That’s right, against preventing it from going through the mails.

    What part of it (Inaudible)

    Felix Frankfurter:

    Suppose it — in other words, what does a quantity – the quantities of these magazines go through between doing the light of the temporary restraining order?

    J. William Doolittle, Jr.:

    No, they didn’t upon — upon the Government’s becoming aware of this ruling, they immediately went in and — and —

    Felix Frankfurter:

    I thought there was in day in between?

    J. William Doolittle, Jr.:

    No.

    There’s actually, I believe, there’s only one day in between.

    Felix Frankfurter:

    Between — between that one day, does — does the (Inaudible) petitioner bring out (Inaudible) of Government as (Inaudible)?

    J. William Doolittle, Jr.:

    No, no.

    Felix Frankfurter:

    Alright.

    Why does — why does the (Inaudible)?

    William J. Brennan, Jr.:

    Well, as I understand it that you were already held some quantity, did you not?

    J. William Doolittle, Jr.:

    Yes, there were —

    William J. Brennan, Jr.:

    Because we’re not moving to the mail.

    J. William Doolittle, Jr.:

    That’s right.

    J. William Doolittle, Jr.:

    There — that the — the —

    William J. Brennan, Jr.:

    And when the restraint was served it would still not move through mails and you —

    Felix Frankfurter:

    I don’t understand that, that’s my problem, why not —

    J. William Doolittle, Jr.:

    Well, I — I suggest that that’s —

    Felix Frankfurter:

    Once the restraining order made it illegal if you send it to the mail, why would you send it through the mail?

    J. William Doolittle, Jr.:

    Well, I suggest that that’s merely a question of — of the very closeness of the time.

    I — I would guess that the Postmaster Ge — the Postmaster in Alexandria may not even have heard that — that the injunction has been issued until he also heard that the further judicial action was taken.

    Felix Frankfurter:

    (Voice Overlap) that the counsel for petitioner once they learned getting it through the mail during that 24 hours has been heard, these judicial matters (Inaudible)?

    J. William Doolittle, Jr.:

    Well, the Judicial Officers, I say, ordered that the General Counsel either file a complaint or ordered the material released.

    On the 14th of April, he did file a complaint.

    Petitioners responded on the 18th of April.

    Hearing was set for the 21st of April and the Judicial Officer, it took three days after the hearings and the Judicial Officer issued his opinion on the 28th of April.

    Felix Frankfurter:

    Was it a contested hearing on the —

    J. William Doolittle, Jr.:

    Yes, it was.

    It was a full adversary hearing.

    I will — when I’m dealing more specifically with the prior restraint point, I will allude to some other aspects of these proceedings but essentially that’s the timing of the proceedings.

    The testimony on the character — characteristics and the impact of these publications was unusually comprehensive.

    The Government had two psychiatrists, one of which testified by stipulation only and one psychologist plus several lay witnesses and petitioner had one psychiatrist and one psychotherapist.

    The record that was produced by these witnesses makes it clear as to just what the intended and actual audience of these publications was.

    The record for example contained concessions by a petitioner’s publisher.

    I should point out he was not a witness, but evidence that he had admitted that they were designed for and that they were read primarily by homosexual males.

    The Government expert, the psycholo — the psychiatrist and the psychologist testified that the only possible explanation for these magazines considering the way in which they were setup was a purpose to appeal to homosexuals and they testified that in fact the primary audience within their experience would in fact be male homosexuals plus adolescents with some homosexual tendencies.

    It was conceded — I should also point out that these witnesses — these expert witnesses also testified that these magazines would have no appeal to the average normal man and more particularly, they certainly would not appeal to the prurient interest of the average normal man.

    It was conceded not all sides offer that they would appeal to the prurient interest of homosexuals and this, I say, is specifically conceded by the petitioner in this case.

    Now, I’m not going to go into detail concerning the testimony of the psychiatrist and psychologist concerning the significance of the various poses, costumes, props and arrangements in these pictures.

    We’ve set that out in some detail at pages 5 to 10 of our brief.

    I would, however, like to touch briefly upon the expert testimony concerning the impact of these magazines on their intended audience.

    It’s rather unusual in an obscenity case as you no doubt appreciate for there to be any sort of specific evidence as to the effect that pornography will have on its audience.

    In the case of the average person, they just has not been establish clearly one way or the other that it does or does not have this effect or that and therefore, as I say it’s particularly noteworthy that psychiatrists and psychologists were willing to come forward and testify as they did in this case.

    I think it’s fair to say that there was some disagreement on this — in this record and I — I will advert briefly to the extent of that — that disagreement.

    J. William Doolittle, Jr.:

    Now, there was testimony in — in wi — in light of which all of these facts have to be considered that homosexuals do have less adequate control over their reactions than do the normal person.

    The Government witnesses also testified that these magazines could very well stimulate practicing homosexuals to engage in overt and indeed in unlawful homosexual activities.

    There was testimony that the magazines would induce adolescents with latent homosexual tendencies to become fixed in a pattern of homosexual behavior and as to both of these categories that is to say adult male homosexuals and adolescents with homosexual tendencies.

    The testimony was that the reaction of these magazines would arouse in them would make it more difficult to treat and to cure them.

    Now, the — there was not a significant difference of expert opinion on this — on these various points to the extent that the defense psychiatrist and psychologist testified, I shouldn’t say defense, the petitioner’s psychiatrist and psychologist testified.

    They merely said that magazines of this character could not turn one who had no homosexual tendencies into a homosexual.

    They also said that by and large pictures do not have a great effect on most homosexuals although, they admitted that to the extent that a homosexual is subject to any stress or that — that he is unable to get any relief from — from his drives that then they might have some effect on him.

    Here again, we’ve endeavored to set out the divergence to the extent that there is any of this testimony in our brief, but I think it’s fair to say that there was not, the — this testimony that I referred to is not specifically attacked by the petitioner’s experts.

    The Government’s expert also testified that the appeal to the prurient interest of homosexuals was the dominant theme of these magazines.

    Indeed, one of them testified that this was the only theme of these magazines and once one understands and appreciates the significance of the various costumes and poses and props in these pictures, this conclusion is fairly obvious just from looking at the magazines.

    The Government experts further testified that these magazines had no redeeming qualities of any kind.

    For example, they were unable to find any sort of intention to express ideas or to advocate a point of view such as it’s apparently the controlling consideration in this Court’s decision in One Incorporated against Olesen and Sunshine Publications against Summerfield.

    Now, the petitioner has contended in — in this connection of redeeming qualities that these magazine are — magazines are physical culture magazines.

    As I’ve indicated at least one commentator has characterized them as pseudo-physical culture magazines and I think it’s relevant to notice the American Law Institute comment in the Model Penal Code that appeals to prurient interest should not escape condemnation merely because they circulate onto the banner of some cult.

    But in point of fact, again an examination of these publications will, I think, fairly clearly demonstrate that there is very little about them that suggests physical culture.

    One particular examper — example I would cite is that the advertisements that appear in this magazine are invariably for photographs of males.

    They — they don’t in any instance advertise physical culture equipment or weightlifting equipment or books as to how to improve your body.

    The Government experts specifically denied that these were physical culture magazines in their dominant theme and even the petitioner’s experts testified as to the marked and critical differences between these publications and what we might recall to have been — wha — what we might have expected the publications of the Charles’ Atlas and the Bernarr MacFadden’s.

    For example, they noted that these magazines were notably lacking in –in text material contrary to these magazines of the past that — and they noted as — as a very critical distic — distinction, the bizarreness and the fact that some of these would be wearing only shoes and that sort of — that sort of thing.

    They noted the general poor taste of the pictures that they say would not probably be found in the traditional physical culture magazines.

    They also pointed to something which is fairly unavoidable, if you examine the magazines, and that is that the great many of the models that appear have very undistinguished physiques.

    On the basis of this testimony taken as a whole, the Judicial Officer of the Post Office Department found that the dominant theme of the magazines was an appeal to the prurient interests of the actual and intended audience of these publications, namely male homosexuals and adolescents with homosexual tendencies and that they were therefore obscene and non-mailable and the court’s below, they both agreed.

    Now, this finding and its approval by the courts below, of course, assumed that obscenity is properly judged in relation to the average member of the audience of the publication and not the average person in the community.

    And we submit that this was clearly correct.

    Indeed, that this is the only test that is possible at the legislative ends of Congress in enacting this legislation and of the States generally in enacting obscenity legislation, are to be upheld.

    It is almost universally recognized that the primary purpose of obscenity legislation is to ban material that may lead directly or indirectly to illegal or immoral conduct.

    Now, it seems plain that if we are to be concerned with the effect that this sort of material is to have on conduct, we must consider those who are exposed to it and hence maybe affected by it, not to some group that will not come in contact with it at all.

    The testimony in this case is, as I have indicated, that homosexuals will see and will be affected by this material whereas the average normal person by and large simply won’t buy it.

    I should like the Court to consider the anomaly of applying the average normal adult standard to all material irrespective of its audience.

    Under the average normal adult standard that petitioners are contending for, pornographic matter appealing to the prurient interest of normal adults can be kept from them in spite of the fact that in relation to abnormal people, they have better defenses against being affected by this sort of thing and furthermore as a general rule or I should say more often than not they have a lawful outlet for any desires that are stimulated by this material or at least they have an outlet that is less socially condemned.

    J. William Doolittle, Jr.:

    However, under the same average normal adult standard, pornographic matter deemed that’s — at the special tastes and interests of sexual deviants or of adolescents cannot be controlled in spite of the fact that is the evidence in this case, indicated they are more likely to be affected by it.

    They have a lower threshold as far as the effect on them is concerned and that they do not by and large have as much of an available outlet for any — any desires that maybe stimulated.

    Thus, those most in need of protection against the pornography of the panders of pornography would be denied it.

    I suggest quite the contrary of what Mr. Dietz suggested — in suggesting that homosexuals are made second class citizens.

    There is an analysis that I’ve gone through, it suggest that the average normal adult would be made second class citizen since he could be kept from pornography, but the homosexual could not.

    Now, I do want to cover one point and that is that the adoption of the standard would certainly not be an adoption of the Hicklin Test where all material is to be judged by its effect on the most susceptible person.

    We’re talking here about material that is aimed at a special audience, that is read by a special audience in matter, that this directed to the average audience as most material is and would of course be judged accordingly.

    In view of this consideration, most of the enlighten commentators of today have urged that the — that pornography, that obscenity be judged in terms of its audience.

    And I will cite we’ve referred to in our brief simply the American Law Institute’s Model Penal Code, Lockhart and McClure, who are recognized as the leading authorities in this country on obscenity and the law and in addition, the English and their Obscene Publications Act of 1959 also adopted this standard at the urging of lea — leading literary fi — figures in England.

    We submit further that this standard, judging material in relation to its audience, is entirely consistent with what this Court laid down as the definition of obscenity in the Roth case.

    It’s significant to note the trial court charge in Roth, which was approved by this Court, was articulated in terms of the effect upon all those whom it is likely to reach.

    And of course, in the Roth case, there was no contention that this — the material in that case was aimed at anything but the general public and therefore, this didn’t create any sort of stir but as I say that was in the Roth charge and in addition, in many of the cases cited by this Court in Roth, the standard of the audience to which the publication — to which the material was directed was the standard used by the Court that we’ve set out in our brief in page 30 that some of those cases and the language that the Courts used in employing that standard.

    I think one further point that is rather important in judging the audience standard is that it has been rather persuasively argued that the adoption of an audience standard as oppose to an average adult standard is perhaps the key to intelligent, liberal and effective judging of obscenity.

    This is strongly urged by Lockhart and McClure.

    They point out, for example, that such standard would tend to protect works of some literary narrative such as for example, Lady Chatterley’s Lover for magazines of some literary merit or ordinarily deemed and consumed primarily by people somewhat more sophisticated than the average normal adult.

    On the other hand, employment of this standard does leave open the possibility of proceeding against the pander who goes into the schoolyard to purvey these very same books to young children in order to stimulate their sexual interest.

    In short, we strongly urge that where the evidence shows the material was designed primarily for and consumed primarily by a special audience, its obscenity must be judged in relation to that audience and we further urge that in this case, the Judicial Officer and the courts below properly employed that standard in concluding that this material was non-mailable.

    Now, if the Court’s indulgence in order to make sure that I covered the prior restraint point, I shall not argue the second point in our brief and it’s also the second point in the petitioner’s brief concerning the second and independent basis for concluding that this material is non-mailable and that is, that it contained information as to where obscene material could be obtained that is, it primarily turns on the facts in both of the brief we’ve set out the fact in detail and I don’t think that anything would be gained by argument on the point here.

    John M. Harlan II:

    (Inaudible)

    J. William Doolittle, Jr.:

    The — this material here at Court you mean?

    John M. Harlan II:

    Yes.

    J. William Doolittle, Jr.:

    Yes it is.

    John M. Harlan II:

    (Inaudible)

    J. William Doolittle, Jr.:

    It relates to material that could be obtained from the advertisers.

    That’s right.

    William J. Brennan, Jr.:

    What I understand that –that material was seized rather than —

    J. William Doolittle, Jr.:

    Well, part of it was.

    Part — pictures of nude males, completely nude, undraped males were obtained through the mails from some of these advertisers by postal inspectors and also by one private citizen who testified at the hearing.

    Beyond that, what the hearing officer — the Judicial Officer characterized as hardcore pornography an extremely gross material was seized in local police raids, that’s right.

    John M. Harlan II:

    (Inaudible)

    J. William Doolittle, Jr.:

    Well, we — we believe and we’ve set out the facts on the basis of — on which our belief is founded that the petitioners plainly had knowledge or at the very least were chargeable with knowledge of what their advertisers were putting out.

    In the first place, they represent in three or four of these magazines.

    They represent familiarity with the work of their advertisers and urge the various subscribers to the magazine to send their money into these photographers for pictures.

    Secondly, the record is replete with evidence of the involvement of petitioner’s publisher with purveyors of homose — of — obscenity among homosexuals including his offer to exchange what he calls sucker lists among the various other photographic studios, indeed his own conviction for sending obscenity through the mails such that it — it defies credulity that he was not aware of what these various studios were doing.

    Furthermore, he was warned a number of times that the possibility that the material — that his advertisers were sending obscene materials through the mail and finally, we suggest that if you just examine these advertisements themselves, you’ll see that they rather strongly indicate that obscene material could be obtained just to suggest one example, one of the pictures has a — one of the magazines in the advertisements has a picture of a young boy with the parts of the picture that would render it objectionable, very obviously retouched, very obviously removed and then the text below the picture offers “an original print of this photo” and is rather clear of what the advertiser had in mind in making that particular offer.

    A contention is made and I shall devote the remainder of my argument to it that the procedures followed by the Post Office Department constitute a prior restraint in violation of the First Amendment in that the Postmaster General refused to carry these matters — these magazines pending a determination of their mailability. After very briefly going through the procedure that was followed, I will argue that the procedure here was required by Congress and that it is not barred by the Constitution.

    The procedures are set forth at the back of our brief and I’ve already indicated to some extent what they consist of.

    I would like to add that in this case, a slight variation in the procedures was agreed upon by stipulation in order that they be expedited and I might say that the pro — that the regulations which do require expedition at each stage of the proceedings expressly provide for waiver of any part of the procedure in order that they be moved along and here, by stipulation, the — a hearing before a hearing examiner was waived.

    Ordinarily, there’s a hearing before a hearing examiner and then this is final unless it appealed to the Judicial Officer.

    Here by stipulation, the hear — the hearing was originally held before the Judicial Officer so that one stage of the proceedings was eliminated in order to complete the proceeding as quickly as possible.

    Potter Stewart:

    Mr. Doolittle, am I right in my understanding that this entire administrative apparatus has is its only foundation, this one line in a — in a criminal statute 18 U.S. Code 1461?

    J. William Doolittle, Jr.:

    Well, no, I certainly would not say that’s the only basis for it.

    Potter Stewart:

    Where — where’s —

    J. William Doolittle, Jr.:

    That’s — well, there is — there actually there is other statutory basis for it.

    It — it is a consideration of a number of statutes taken together.

    The other statute I would cite to you in that regard is set forth on page 61 of our brief where it’s provided that non-mailable matter which reaches the opposite devi — delivery shall be disposed off as the Postmaster General directs indicating, at we think quite directly that Congress intended that such matter be removed from the mail.

    Earl Warren:

    We’ll recess now.