(dissenting).
The falsity of appellees’ advertising seems to me as clear as its truth seems to the majority of the court. The ques-tion before the court is not whether my view is right but whether it is reasonable.
Any language or conduct that is intended to convey a false impression is a false pretense. No special form is necessary. I think appellees, in several advertisements, made false pretenses concerning the nature of the contest, its extent and duration, and its cost to contestants. I shall discuss only one advertisement and only one sort of pretense.
The puzzles were simple. Appellees knew from experience with similar contests that thousands of contestants would solve all the puzzles correctly; that it was impossible to win a prize merely by solving puzzles; and that prize winners would be chosen from among thousands of persons on the basis of a letter-writing contest. So much is plain and undisputed.8
It follows that if appellees intended to convey to all or any of their readers either (1) the idea that the contest was merely a puzzle contest or (2) the idea that there was a substantial chance that prizes would be won merely by solving puzzles, appel-lees made a false pretense. The fraud order must be sustained if the Postmaster General could reasonably find either of those intents. Either is plainly material, since a person who .is willing to risk his money in a puzzle contest may be unwilling to risk it in a letter-writing contest and a person who is willing to face a possibility that puzzles may not be decisive may be unwilling to face a certainty that they will not be decisive.
Exhibit 1 is a full-page tabloid-size advertisement which appellees published in Newsday on April 3, 1945. Across the top of the page is printed in large black letters “Solve the 4 Puzzles NOW — Mail Entry By Saturday Night, April 7th,” and then “$10,000 FIRST PRIZE — PUZZLE CONTEST.” The words “PUZZLE CONTEST” are in letters nearly an inch high. Next comes, in type much smaller than these headlines but much larger and heavier than the body of the advertisement: “Win $10,000, $2,000, $1,000 or Any of 500 Cash Prizes in FACTS Magazine’s New, Delightful Puzzle Contest. SOLVE THESE 4 PUZZLES NOW! Write your solutions on the Entry Form below, and mail the Entry Form on or before Midnight, Saturday, April 7th!” Next follows a “SAMPLE Puzzle — Just to Give You the Idea,” and then: “FACTS MAGAZINE Invites You To Enter This Puzzle Contest. Accept this cordial invitation from FACTS MAGAZINE to enter its puzzle contest. Here is your opportunity to win $10,000, $2,000, $1,000 or any of 500 cash prizes totaling $17,500.” These invitations, and not merely the headlines which precede them, are in larger and heavier type than the body of the advertisement.
The right-hand column of the advertisement is largely occupied by the “sample puzzle” and by four other pictured puzzles. These puzzles consist largely of crude drawings. Like most drawings they catch the eye.
An “OFFICIAL ENTRY FORM” is a conspicuous part of the advertisement. It calls the contest a “Puzzle Contest” and states that “the additional puzzles” will be sent on receipt of the form. It refers to “the official rules” but it does not refer to the writing of letters.
So far there is no suggestion in the advertisement that the contest will, or may, involve the writing of letters. So far there is no qualification of the repeated and emphasized assertion that it is a puzzle *547contest. Obviously the conspicuous parts of the advertisement convey, and are intended to convey, the idea that it is merely a puzzle contest.
The court’s theory seems to be that ap-pellees intended to correct, in the course of the advertisement, the false idea that they intended its conspicuous parts to convey. It seems to me clear that they intended not merely that all readers should get that false idea, but also that many readers should retain it, and that all readers should retain, at the very least, the false idea that there was a substantial chance that prizes would be won merely by solving puzzles. This inference is, at least, one that the Postmaster General might reasonably draw. This is true because (1) the advertisement does not emphasize, but on the contrary diverts attention from, any language which mentions the writing of letters, and (2) even that language does not say that winners are, but clearly intimates that they are not, certain to be chosen on the basis of a letter-writing contest. Either of these facts alone is sufficient to support the Postmaster General’s inference of fraud and therefore the fraud order. Both together are doubly sufficient.
(1) The words “The. Rules are printed in full below. Please read them carefully and be sure you understand them” are in fine print, twelve lines to an inch, near the middle of the page. Attention is diverted from these words by their being printed at the end, not the beginning, of the paragraph in which they occur. The earlier and longer part of the paragraph deals with puzzles alone. This context conveys, not too subtly, the suggestion that the Rules likewise deal with puzzles alone.
The writing of letters is nowhere mentioned in type that is large or heavy or prominently placed. It is mentioned only in the Rules. The Rules are in fine print, twelve lines to an inch, in the lower left-hand corner of the page. They contain almost a thousand words divided into ten numbered paragraphs. The quotation on which the court relies, beginning with the words “In case of ties * * * ” and ending with the words “ * * * the conclusion of the contest,” is a part of paragraph 9 of the Rules. That paragraph is the longest of the ten and therefore the least likely to be read in its entirety. It does not begin with the language which the court quotes. It begins with these words: “Neatness will not count. Do not decorate your answers. Just submit your solutions in accordance with the rules.” Nothing could be better calculated to suggest to a prospective contestant (a) that the remainder of the paragraph, like its opening sentences) is unimportant and need not be read, and (b) that the remainder of the paragraph, like its opening sentences, deals only with “answers” and “solutions.” Then follows, beginning in the middle of a line of fine print, with nothing to emphasize it or draw the reader’s attention to it, the language which the court quotes and on which the court relies. It would have been easy for appel-lees to print this language in large type, or in heavy type, or to begin a paragraph with it, or to devote an entire paragraph to it, or to do' several of those things. From any point of view but one and for any purpose but one, the importance of this language clearly demanded that attention be called to it in some way, since it was the only language in the entire advertisement which tended to qualify the numerous and conspicuous assertions of the headlines, the large type, the pictures, and the entry form that the contest was a puzzle contest. Instead of emphasizing this vital language, appellees did the opposite. They hid it as effectively as they could. In setting it in fine print, near the bottom of the page, in a paragraph introduced by matter both unrelated and unimportant, what can have been their purpose, except to prevent as many prospective contestants as possible from finding out that the contest might involve letter writing? No answer has been suggested. Unless the Postmaster General acted capriciously in drawing the only inference that has been suggested as possible, his fraud order must be sustained.
(2) If a prospective contestant discovered the language on which the court relies, and carefully read every word of it, he would learn that the “puzzle contest” was likely to end in a letter-writing contest for which a large number of persons might *548be eligible. But he would not learn that thousands of persons were certain to be eligible, or even that any letter-writing contest at all was certain to be required. Nothing of that sort is stated anywhere, not even by the hidden language on which the court relies. On the contrary, that very language intimates, clearly and repeatedly, that ties in the solving of puzzles may or may not occur and that although the prizes may not, on the other hand they may, be. won by the solving of puzzles alone: “In Gase of ties, if two or more persons tie in submitting the correct solutions”; “if necessary, a second tie-breaking group of puzzles”; “In case a second tie-breaking group of puzzles is necessary”; Only in case ties exist after such final tie-breaking puzzles have been checked will' the letters be considered”; “the sponsor anticipates that a large number of persons may enter the contest and that a large number may solve, one, two or all three of the Groups of puzzles.” [Italics supplied.] The ' court says that prospective contestants were “told in the Rules that the sponsors anticipated that a ‘large number' of persons would solve all the puzzles.” I cannot find this statement in the Rules. In other words I do not agree with the court that “may” means “will.”
For the foregoing reasons it seems to me clear that (1) the advertisement was intended and apt to convey to many contestants the false idea that the contest was merely a puzzle contest and (2) the advertisement was intended and apt to convey to all or nearly all contestants, including entirely reasonable and careful ones, the false idea that there was at least a substantial chance that prizes would be won merely by solving puzzles.
The court finds that no reasonable reader of the advertisement would think that prizes might be won merely by solving puzzles. Obviously this finding of fact seems to me erroneous. Many readers lacked the knowledge, based on experience with similar contests, which appellees had and this court now has. Moreover, I think the court’s finding is immaterial. To say that it invalidates the fraud order is equivalent to saying that if a scheme would not deceive reasonable men, to whom it is not primarily addressed, it may legally be used to take money from children and other simple people. The advertisement is primarily addressed to such people, since they are the ones likely to be attracted by crude and easy puzzles. “The fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced.” 9
The court says: “As we said in Farley v. Simmons, the question is what the advertisement is ‘reasonably intended to cause the reader thereof to believe.’ ” Despite other language in the prevailing opinion, that appears to be the question which the court actually decides. But it, is not the question before the court. It was the question before the Postmaster General. That is what we said in Farley v. Simmons. I think the court now confuses the Postmaster General’s functioh, with our own. The question before us is not what the advertisement was intended to cause the reader to believe, but what the Postmaster General could reasonably find that it was intended to cause the re'ader to believe. As Judge Learned Hand and this court have said, the Postmaster General was entitled to put “the most malign interpretation which can in reason be put” on appellees’ advertisement.10 Conceding for the sake of argument that there may be some doubt whether appellees intended to convey a false idea, I do not see how there can be any doubt that the Postmaster General might reasonably find what he found. Neither, apparently, does appellees’ counsel. We asked counsel whether he argued that no reasonable man could conclude that appellees intended to convey the idea that their contest was exclusively a puzzle contest. He replied: “Of course we must concede that a reasonable man might draw that conclusion, but we contend that the reasonable man would not draw it.”
Approximately 35,000 persons solved correctly the original group of 80 puzzles, and approximately 27,000 of these solved correctly all the puzzles in the first “tie-breaking” series. The Post Office proceedings prevented completion of a second tie-breaking series.
Federal Trade Comm. v. Standard Education Society, 302 U.S. 112, 116, 58 S.Ct. 113, 115, 82 L.Ed. 141.
Putnam v. Morgan, C.C., S.D.N.Y., 172 F. 450, 451; Farley v. Simmons, 69 App.D.C. 110, 115, 99 F.24 343.