(dissenting).
“Obscenity is not expression protected by the First Amendment.” Roth v. United States, 1957, 354 U.S. 476, 492, 77 S.Ct. 1304, 1313, 1 L.Ed.2d 1498. “Obscenity, real, serious, not imagined or puritanically exaggerated, is today as in all the past centuries, a public evil, a public nuisance, a public pollution.” Excelsior Pictures Corp. v. Regents of University of State of New York, 1957, 3 N.Y. 2d 237, 246, 165 N.Y.S.2d 42, 49. “The validity of the obscenity laws is recognition that the mails may not be used to satisfy all tastes, no matter how perverted.” Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, 158, 66 S.Ct. 456, 462, 90 L.Ed. 586. Well established though these propositions may be, they do not answer the hard questions of an individual case. Has the publication been found “obscene” by a proper tribunal, applying proper standards ? Has the punishment or remedy been authorized by proper legislation?
In the instant case, these questions have not yet been adequately answered. In the first place, it is not at all clear that the Post Office Department possesses any power to censor any class of mail, sealed or unsealed. Certainly Congress, has never given such a power in so many words, nor has the Supreme Court ever expressly recognized the existence of such a power. The authority under which the Department is said to be operating in this field is a criminal statute passed in 1873 r1 It contains no language which directs the Department to refuse *121to transport and deliver newspapers and magazines pending final decision on its part as to whether their content is acceptable to it. “Some day Congress may perhaps give that authorization in specific terms, with proper guidance for and restrictions on administrative action, and with such safeguards as the Constitution may require. But Congress has not done so here.” Summerfield v. Sunshine Book Co., 1954, 95 U.S.App.D.C. 169 at page 175, 221 F.2d 42 at page 482 “All that Congress meant by this [1873] act was, that the mail should not be used to transport such corrupting publications and articles, and that any one who attempted to use it for that purpose should be punished.” Ex parte Jackson, 1877, 96 U.S. 727 at page 736, 24 L.Ed. 877.
The postal power permits the Federal Government to impose criminal sanctions for using the mails to distribute obscene materials. Roth v. United States, supra. Such sanctions, of course, are accompanied by the safeguards of a jury trial. See Brennan, J., dissenting in Kingsley Books, Inc., v. Brown, 1957, 354 U.S. 436, 447, 77 S.Ct. 1325, 1 L.Ed.2d 1469. Prior restraint is another story. A state staute has been upheld which permitted a limited form of judicial prior restraint against materials alleged to be obscene, through temporary injunction followed by prompt trial. See Kingsley Books, Inc., v. Brown, supra. It may be that the postal power would provide a basis for a Federal statute authorizing a similar form of judicial control. But an administrative prior restraint, not plainly authorized by statute and not subject to specified standards and safeguards, is of highly doubtful validity, to say the least. Compare Holmby Productions, Inc., v. Vaughn, 1955, 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770; 350 U.S. 919, 76 S.Ct. 193, 100 L.Ed. 805, reversing 1955, 177 Kan. 728, 282 P.2d 412.
It may be argued that the duty of the Postmaster General “to execute all laws relative to the Postal Service,” 5 U.S.C.A. § 369, gives him some measure of authority over materials deposited in the mail in alleged violation of the criminal statute. It may be said, too, that the statute makes the materials non-mailable, and forbids their handling. These arguments hardly suffice. Congress has always “zealously watched and strictly confined” any proposal to empower the Postmaster General to refuse to handle mail because of its content. See Hannegan v. Esquire, Inc., supra, 327 U.S. at page 156, note 18, 66 S.Ct. at page 461. Surely the courts must take a like attitude, even if they conclude that the present statute does give the Postmaster General some part of the authority he now claims.2 3 Certainly, under any view, the courts must intervene if improper standards have been applied in making a determination of obscenity.4 That has occurred in this case.
The test of obscenity is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” (Emphasis added.) Roth v. United States, supra, 354 U.S. at page 489, 77 S.Ct. at page 1311.5 Wo expressed a similar thought *122in Walker v. Popenoe, 1945, 80 U.S.App. D.C. 129, 130, 149 F.2d 511, 512, where we said: “The statute [now 18 U.S.C. § 1461] does not bar from the mails an obscene phrase or an obscene sentence. It bars an obscene ‘book, pamphlet * * * or other publication * * *. ’ If a publication as a whole is not stimulating to the senses [i. e., does not “arouse the salacity”] of the ordinary reader, it is not within the statute. * * * The dominant effect of an entire publication determines its character.” (Emphasis in original.) See also Parmelee v. United States, 1940, 72 App.D.C. 203, 113 F.2d 729; United States v. Dennett, 2 Cir., 1930, 39 F.2d 564, 76 A.L.R. 1092; United States v. One Book Entitled Ulysses, 2 Cir., 1934, 72 F.2d 705; United States v. Levine, 2 Cir., 1936, 83 F.2d 156. In these cases, works which the courts found to be of genuine sociological, medical, or literary merit were held not obscene, although portions of them, taken from context, might appear otherwise.
In the instant case, the magazines “advocate and explain nudism and the nudist mode of living.” Summerfield v. Sunshine Book Co., 95 U.S.App.D.C. at page 170, 221 F.2d at page 43. One of the-magazines has been published for over-twenty years. Their texts were found by the Post Office Department and the District Court not to be obscene. But both the Department and the District Court-thereupon proceeded to deal with the illustrations in the magazines merely as such. The Examiner of the Post Office Department and the District Court explicitly recognize in their opinions that-the publications must be considered as a whole.6 Yet an examination of their opinions, as well as that of the Solicitor of the Post Office Department, shows no effort to weigh the material considered objectionable against the rest of the contents, or to weigh the risk in permitting the former to circulate against the limitations on freedom of the press implicit in halting circulation of the latter.7
Another aspect of the case is equally disturbing. More than a decade ago we held in Walker v. Popenoe, supra, that a hearing must precede the barring of published matter from the mails. Here, the Department refused to accept the magazines for mailing, and held a hearing after its refusal had become effective.8 *123We expressly condemned such an interference with freedom of the press in the Walker case, where we said:
“We are not impressed with the argument that a rule requiring a hearing before mailing privileges are suspended would permit, while the hearing was going on, the distribution of publications intentionally obscene in plain defiance of every reasonable standard. In such a case the effective remedy is the immediate arrest of the offender for the crime penalized by this statute. Such action would prevent any form of distribution of the obscene material by mail or otherwise. If the offender were released on bail the conditions of that bail should be a sufficient protection against repetition of the offense before trial. But often mailing privileges are revoked in cases where the prosecuting officers are not sure enough to risk criminal prosecution. That was the situation here.” 80 U.S.App.D.C. at page 132, 149 F.2d at page 514 9
For these reasons the order of the Post Office Department should be held invalid. Under all the circumstances — the passage of time and the disregard by the Post Office Department of our ruling in the Walker case — further administrative proceedings with respect to the magazine issues here involved should not be permitted. The case should be remanded to the District Court with instructions to issue an injunction permanently restraining enforcement of the Department’s order.
. Rev.Stat. § 3893 (1875), as amended, 18 U.S.C. § 1461 (Supp. IV, 1957).
. We were there speaking of another postal statute, 39 U.S.C.A. § 259(a).
. Cf. Roth v. Goldman, 2 Cir., 172 F.2d 788, certiorari denied, 1949, 337 U.S. 938, 69 S.Ct. 1514, 93 L.Ed. 1743; One, Inc., v. Olesen. 9 Cir., 241 F.2d 772, cert. pending, 26 U.S.L.Week 3046 (1957).
. There is broad authority to review even factual matters when freedom of speech and of the press is involved. Cf. Niemotko v. State of Maryland, 1951, 340 U.S. 26S, 271, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280; Reed, J., concurring in Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 506, 72 S.Ct. 777, 96 L.Ed. 1098; Dye, J., dissenting in Commercial Pictures Corp. v. Board of Regents of University of State of New York, 1953, 305 N.Y. 336, 350, 113 N.E.2d 502, 512, reversed sub nom. Superior Films v. Dept. of Education, 1954, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329.
. The test traditionally applied by the English courts was stated in Regina v. Hicklin [1868], L.R. 3 Q.B.D. 360, 371: “whether the tendency of the matter *122charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” But see Regina v. Martin Seeker Warburg, Ltd. [1954], 2 All E.R. 683. That test “might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.” Roth v. United States, 354 U.S. at page 489, 77 S.Ct. at page 1311.
. See Walker v. Popenoe, supra at page 130 of 80 U.S.App.D.C., at page 512 of 149 F.2d.
. It is also questionable whether finding a picture “grotesque” sufficiently complies with the Supreme Court’s mandate requiring a finding of appeal to “prurient interest.” Compare Sunshine Book Co. v. Summerfield, D.C.D.C.1955, 128 F.Supp. 564, 571, with Roth v. United States, 1957, 354 U.S. at page 489, 77 S.Ct. at page 1311.
. The District Judge found that the refusal of the Post Office Department to transmit the magazines in question began on or about December 23, 1954. By letter of December 30, 1954, the Solicitor of the Post Office Department acknowledged a letter of December 29, 1954, from the Postmaster of Mays Landing, New Jersey, which set forth the action taken. The Solicitor advised that the magazines “should be withheld from dispatch,” except for copies submitted for first class mailing, and that the senders “should be informed that they may have an opportunity to show cause within fifteen days why the article should not be disposed of as matter nonmailable ... by offering through appearance at this [the Solicitor’s] office in person or by attorney, or through submission of a statement in writing, whatever evidence or arguments they care to submit.”
The Postmaster of Mays Landing transmitted this information to appellant by letter of December 31, 1954. He added that the magazines in question were “nonmailable and must be with*123held from dispatch.” By letter of January 6, 1955, to appellant, the Solicitor acknowledged that the Postmaster’s statement as to nonmailability was in error, “no ruling or determination either of mailabilily or non-mailability having yet been made. . . . ” He also gave notice of a hearing on the question to be hold on January 10, 1955. But no action was taken to transmit the magazines in the mail. At appellant’s request, the hearing was postponed to January 17, 1955. At the hearing, the Examiner ruled, correctly, we think, and without objection by the Post Office Department, that the burden of proof rested on the Post Office Department rather than appellant. An initial decision was handed down by the Examiner on January 20, 1955, and affirmed by the Solicitor on January 28, 1955. It is thus evident that appellant’s magazines were barred from the mails for almost a month before the hearing and the initial administrative decision that they were unmailable.
. See Both v. United States, 1956, 77 S.Ct. 17, 1 L.Ed.2d 34 (per Harlan, Circuit Justice).