Summerfield v. Sunshine Book Co.

DANAHER, Circuit Judge (dissenting).

I agree that 39 U.S.C.A. § 259a, quoted in the majority opinion has applicability here. I agree that the Postmaster General’s powers under that section “are to be construed in much the same manner as his powers under the fraud section, 39 U.S.C.A. § 259,” as the majority observes. Howevei’, I would reverse the order of the District Court, and I wish briefly to note the reasons for the position I take.

The Constitution vested in Congress the power not only to establish post offices and post roads but to regulate the entire postal system of the country, even to the exclusion from the mails of “such printed matter or merchandise as may seem objectionable to it upon the ground of public policy * * Public Clearing House v. Coyne, 1904, 194 U.S. 497, 507, 24 S.Ct. 789, 793, 48 L.Ed. 1092. *49More importantly and bearing directly upon the issue presented here, the Court said, 194 U.S. at page 507, 24 S.Ct. at page 798, that in aid of enforcement of its public policy, Congress possesses the power to “forbid the delivery of letters to such persons or corporations as in its judgment, are making use of the mails for the purpose of fraud or deception or the dissemination among its citizens of information of a character calculated to debauch the public morality.” (Emphasis supplied.) Again, Id., 194 U.S. at page 508, 24 S.Ct. at page 793, the Court continued: “For more than thirty years not only has the transmission of obscene matter been prohibited, but it has been made a crime, punishable by fine or imprisonment, for a person to deposit such matter in the mails. The constitutionality of this law we believe has never been attacked.”

The majority opinion says “ * * * orders of the Postmaster General under Section 259a appear to be subject to the same necessary limitations as were indicated in the Read Magazine case. They must be confined to materials already published, and duly found unlawful. Whether such limitation is practically possible, in cases like the present, is not for this court to determine * * The position thus stated seems to me to be contrary to that set forth in the Coyne case in which the Supreme Court said, 194 U.S. at page 510, 24 S.Ct. at page 794:

“Nor do we think the law unconstitutional, because the Postmaster General may seize and detain all letters, which may include letters of a purely personal or domestic character, or having no connection whatever with the prohibited enterprise. In view of the fact that by these sections the Postmaster is denied permission to open any letters not addressed to himself, there would seem to be no possible method of enforcing the law except by authorizing him to seize and detain all such letters. It is true it may occasionally happen that he would detain a letter having no relation to the prohibited business; but where a person is engaged in an enterprise of this kind, receiving dozens and perhaps hundreds of letters every day, containing remittances or corre-• spondence connected with the prohibited business, it is not too much to assume that, prima facie at least, all such letters are identified with such business. A ruling that only such letters as were obviously connected with the enterprise could be detained would amount to practically an annulment of the law, as it would be quite impossible, without opening and inspecting such letters, which is forbidden, to obtain evidence of the real facts.”1

Just as Congress has power to control the use of the mails for perpetration of swindling schemes, in the exercise of that same power it authorized the Post Office Department to act with reference to the exclusion from the mails of ob*50scene matter “upon evidence satisfactory to the Postmaster General.” (Emphasis supplied.)

In this case the Hearing Examiner found that “the obscene and indecent character of the magazines at issue is evident from a mere inspection thereof.” The Postmaster General “upon evidence satisfactory to him” determined that the material in question was “obscene by any standard recognized by the courts. Considering all whom the publications are likely to reach in their sale to the public generally, it is certain that they are erotically and lustfully stimulating and sexually provocative to the average male person viewing them.”2 *****8 Despite the Postmaster General’s exercise of the authority vested in him, the trial judge said: “I see no limit except my own judgment in this ease,” (J.A. 86) and again “I just do not agree with the Postmaster General and I grant the injunction.” (J.A. 89.)

In National Conference on Legalizing Lotteries, Inc. v. Farley, 1938, 68 App.D.C. 319, 321, 322, 96 F.2d 861, 863, certiorari denied 1938, 305 U.S. 624, 59 S.Ct. 85, 83 L.Ed. 399, this court applying the standard prevailing under § 259 said “In view of what has been already said, it is apparent that the question here is whether there was any reasonable basis for believing that the present contest is a lottery or ‘scheme for the distribution of money * * * by * * * chance,’ for if there was, the action of the Postmaster General must stand. If not, there is no statutory basis for his order, and it must fall.” That was the test as announced by Chief Judge Groner and he concluded that “the law commits the initial decision to the discretion of the Postmaster General, who is authorized to act ‘upon evidence satisfactory to him,’ and we are powerless unless his ruling is palpably wrong.” See also Farley v. Simmons, 1938, 69 App.D.C. 110, 99 F.2d 343, certiorari denied, 1938, 305 U.S. 651, 59 S.Ct. 244, 83 L.Ed. 422.

In Near v. State of Minnesota, ex rel. Olson, 1931, 283 U.S. 697, 715-716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, Chief Justice Hughes said: “The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases * * and as one such he notes “On similar grounds, the primary requirements of decency may be enforced against obscene publications.”

The material here was found by the Postmaster General to be obscene. If it were open to me to pass on the exhibits, I would agree. The case is not like Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586, where, at page 158, Mr. Justice Douglas noted “The validity of the obscenity laws is recognition that the mails may not be used to satisfy all tastes, no matter how perverted.” At page 159, Mr. Justice Frankfurter, concurring, noted even the more sharply the distinction between the Esquire case and one like this when he pointed out “Matters that are declared nonmailable (Criminal Code § 211, 35 Stat. 1129, 36 Stat. 1339, 18 U.S.C. § 334) are of course not ‘literature’ with*51in the scope of the second-class privilege.”

The only officer designated to administer the will of Congress in this situation is the Postmaster General. Unless his findings are “palpably wrong,” the trial court was in error in substituting its judgment for that of the officer commanded to execute the public policy pronounced by Congress. The initial decision of the Hearing Examiner makes clear that he took into account not only the facts and circumstances upon which the hearing proceeded but the law applicable thereto. Cogently, the order of the Postmaster General did likewise. In Parmelee v. United States, 1940, 72 App.D.C. 203, 211, 113 F.2d 729, 737, this court said: “The determining question is, in each case, whether a publication, taken as a whole, has a libidinous effect.” The Postmaster General “upon evidence satisfactory to him,” applied that test and found against the publications. Judge Vinson (later Chief Justice) dissenting in that case, 72 App.D.C. at page 216, 113 F.2d at page 742, cautioned: “Certainly, it seems difficult to conclude that no reasonable man could say that this book offends the community standard and, with a District Court finding that the book with its pictures is obscene, I am unable to understand how my brethren can stand on that proposition.” Of course that case involved a libel under the Tariff Act, 19 U.S.C.A. § 1305(a), properly triable in the District Court. Here, the court has nothing to do with the findings of the Postmaster General unless they are “palpably wrong.” Here, that most of the scores of pictures in a score or more of exhibits are obscene seems to me as plain as the figures and the parts thereof depicted.

I cannot believe that the First Amendment or any other amendment affords protection against previous restraint against publications, the pattern of which so clearly emerges from each separate issue. Thinking thus, I would have no difficulty in concluding that the government may as a matter of public policy withdraw the facilities to pander the obscenity condemned by the Congress. The enforcement of the statute has been committed to the Postmaster General. The trial judge erred in substituting his judgment for that of the duly designated officer and the order of injunction should be reversed.

. In Donaldson v. Read Magazine, 1918, 333 U.S. 178, 190, 68 S.Ct. 591, 598, 92 L.Ed. 628, the Supreme Court itemized a series of statutes and commented: “All of the foregoing statutes, and others which need not be referred to specifically, manifest a purpose of Congress to utilize its powers, particularly over the mails and in interstate commerce, to protect people against fraud. This governmental power has always been recognized in this country and is firmly established. The particular statutes here attacked have been regularly enforced by the executive officers and the courts for more than half a eentury. They are now part and parcel of our governmental fabric. * * * ” Specifically rejecting the contention that the court should overrule the Coyne case, Id., 333 U.S. at page 194, 68 S.Ct. at page 598, the Court continued: “None of the recent cases to which respondents refer, however, provide the slightest support for a contention that the constitutional guarantees of freedom of speech and freedom of the press include complete freedom, uncontrollable by Congress, to use the mails for perpetration of swindling schemes.”

Against this background Congress enacted § 259a, the applicability of which is here involved.

. The findings of the Hearing Examiner diselose that the respondents “are obtaining and endeavoring to obtain remittances of money through the mails * * * and are depositing or causing to be deposited in the United States mails, information as to where, how and from whom such magazines may be obtained * *

Submitted as evidence were 24 issues of “Sunshine and Health,” a monthly publication, from March 1951 through March 1953, 7 issues of “Sun Magazine,” a bimonthly publication, from January-Eeb-ruary 1952 to March-April 1953, and the July 1952 issue of “Natural Herald.” After reciting specific details as to the particulars in which the publications were found to be obscene, the Hearing Examiner concluded: “It is clear that the magazines here involved are sold and distributed to all who wish to purchase them, whether they be men, women or children, The public is solicited generally and indiscriminately * *