Whereas the character of juvenile delinquency has changed as a consequence of the stimulation of these publications, being no longer the thoughtless, mischievous acts of children, but are reflected in acts of violence, armed robbery, rape, torture, and even homicide, which the vicious and vile publications conditioned the minds of our children;

Whereas as judges of the juvenile court in America we daily see the tragic and pitiful consequences of the children appearing before us and are conscious of the menace to our children which results from these antisocial and vicious. pictures and reading materials: Therefore, be it

Resolved, That the National Council of Juvenile Court Judges urge that action be taken at local, State and National levels of government to curtail, prohibit, and outlaw the publication, dissemination, and distribution of so-called comics, horror magazines, and other publications depicting aforesaid objectionable features; and be it further

Resolved, That civic consciousness be aroused in all our communities through church, fraternal, civic, and business organizations to secure the voluntary cooperation of merchants, magazine distributors, and associations, to place the value of youth above the financial gain resulting from dealing with and in lewd, harmful, and destructive publications; be it further

Resolved, That the press of America be solicited to aid in the development of public opinion that will help to stimulate and gain support for constructive plans and programs to combat the evil herein denounced.

Witness after witness, appearing before the committee representing women's organizations, church groups, and Government officials, as well as public-spirited citizens from all walks of life attested to their conviction on this point. Religious leaders were unanimous in their position that printed filth definitely contributes to the corruption of our youth.

The subcommittee was very much impressed with the views expressed by these witnesses. It rests its case on the premise that ideas have consequences. If those ideas are good, if they are expressed in the great literature which we cherish, they help to produce honest, responsible, and thoughtful citizens. If they are lewd, vicious, and distorted ideas, the consequences will be evil and the results a pollution of our thought supply.

Federal law

OBSCENITY AND THE LAW

The jurisdiction of the Subcommittee on Postal Operations is limited to only one phase of the laws dealing with obscenity. This is the prohibition against sending obscene matter through the mail. The Federal law, in addition, declares it to be a felony:

(1) To import obscene materials;

(2) to deposit obscene materials with a common carrier for transportation in interstate or foreign commerce;

(3) to broadcast obscene language by radio; and

(4) to transport obscene materials in interstate or foreign commerce for sale or distribution.

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The law prohibiting the sending of obscene matters through the mails dates from 1865. It was amended in significant detail during the 1958 session of Congress. Prior to its amendment, this statute could be used only to prosecute offenders in the Federal courts of the jurisdiction in which they deposited the materials in the mail. This aspect of the law was changed to provide that mailers of obscenity could be prosecuted in the Federal judicial districts in which obscene matters are delivered as well as those in which they are deposited. The purpose of this change was to make the purveyors of pornography answerable to the communities whose citizens are assaulted by their materials by means of the U.S. mail.

The subcommittee received testimony during its hearings concerning the difficulties encountered by the Post Office Department in keeping the mails from being used to disseminate obscene materials. One of the statutory powers vested in the Postmaster General to do this is his authority to issue an "unlawful" order under which all of the mail addressed to the purveyor having to do with the pornographic material is returned to its senders. This is an effective weapon against the purveyors since it cuts them off from payments for their obscene materials.

An "unlawful" order may be issued, however, only after a quite lengthy administrative proceeding. An amendment to this statute in 1956 authorizes the Postmaster General to issue an interim impounding order, detaining the purveyor's mail for a period up to 20 days to give the Department an opportunity to complete the administrative procedure required to issue an "unlawful" order. Experience has shown that this is not a sufficient period to complete such a proceeding.

In answer to the need for strengthening the Postmaster General's hand in these cases, legislation was introduced by the chairman of the subcommittee, along with companion bills by several other Members of Congress, which was passed by the House of Representatives on September 1 of this year.

This legislation would make four major changes in an "unlawful" order proceeding:

(1) The period of an interim impounding order would be changed from 20 days to 45 days.

(2) The standard for determining when an interim impounding order may be issued would be changed from one of necessity in enforcing an "unlawful" order to one of public interest.

(3) A court would be authorized to grant a temporary restraining order against the Postmaster General only if his action is arbitrary or capricious.

(4) The purveyor against whose mail an "unlawful" order is issued would be given a statutory right of appeal to a United States court of appeals.

Following and printed in full is a Post Office Department decision which illustrates many of the difficulties encountered by the Department in discharging its responsibility to keep obscene matter out of the mails.

Post Office Department proceeding

This proceeding is typical of those conducted by the Post Office Department under the authority of 18 U.S.C. 1461, the criminal obscenity statute, which also gives the Postmaster General authority

to withhold from dispatch mail matter which is obscene. This publication was deposited for mailing at the post office in Chicago. The Postmaster entertained doubt as to its mailability and pursuant to the instructions of the postal manual submitted it to the General Counsel for a legal opinion. The General Counsel believing that it was nonmailable, filed a complaint under the mailability rules (24 F.R. 4026). A hearing was held in Chicago before a hearing examiner who rendered an initial decision finding the matter to be obscene. An appeal was taken to the judicial officer, an independent officer on the staff of the Postmaster General, who affirmed the decision of the hearing examiner. It is contemplated that the mailer will petition the U.S. district court at Chicago to enjoin the nonmailability order of the Postmaster General.

POST OFFICE DEPARTMENT, Washington, D.C., August 12, 1959.

P.O.D. Docket No. 1/150

In the Matter of the Complaint That Big Table Magazine, Issue No. 1, Spring 1959, Mailed by Big Table, Inc., 1316 N. Dearborn Street, Chicago, Ill., Is Nonmailable Under 18 U.S.C. 1461

Appearances: Joel J. Sprayregen, Esq., 19 South La Salle, Chicago, Ill., for the mailer; Saul J. Mindel, Esq., and J. Carroll Schueler, Esq., for the complainant.

DEPARTMENTAL DECISION

The publisher of Big Table deposited at the Chicago Post Office several hundred copies of its first issue on or about March 18, 1959. Simultaneously with the mailing of the first issue the publisher made application for second class entry. The Postmaster at Chicago entertained doubt as to the mailability of the publication and transmitted a copy of it to the Director of the Division of Postal Services on April 3, 1959. The Director referred the matter to the General Counsel requesting a legal opinion as to its mailability. On April 24, the publisher, hereinafter referred to as the mailer, requested that if the matter was nonmailable that the hearing be held "preferably late May or early June." On April 30, 1959, a notice of hearing was sent from the General Counsel to the Postmaster at Chicago for service upon the mailer. The notice of hearing stated a belief that the matter was nonmailable under 18 U.S.C. 1461 but that the mailability rules were then in the process of revision and that a copy of these new rules would be sent to the mailer as soon as they were promulgated. Because the mailer had listed two addresses on his application for second class entry some confusion resulted and the service was not accomplished until May 14, 1959. Pursuant to the mailer's request, the hearing was set for June 4, 1959, in Washington, D.C. The new rules were published on May 19, 1959, and sent to the mailer on May 22, 1959. At the mailer's request the place of hearing was changed to Chicago and this necessitated a continuance until June 23, 1959. The hearing was held and the Hearing Examiner rendered an Initial Decision finding that the magazine was obscene and filthy and thus

1 The authority of the Post Office Department to so proceed was upheld in Sunshine v. Summerfield 249 F.2d 114 (C.A.D.C., 1957), reversed per curiam on other grounds 355 U.S. 372; Monart v. Christenberry, 168 F. Supp. 164 (S.D.N.Y., 1958); and Glanzman v. Christenberry (S.D.N.Y., unreported Dec. 24, 1958).

nonmailable. Exceptions were filed by the mailer and the complain. ant replied on August 3, 1959. The exceptions are general in nature and will be considered in their broader context.

The publication at issue is a paperback book of slightly larger size of the typical pocketbook. It is a quarterly publication selling for $1.00 per issue. The contents were originally scheduled for publication in the Chicago Review, a literary quarterly of the University of Chicago, but because of the objection of Chancellor Lawrence A. Kimpton of the University of Chicago, to the publication of the material, the editors resigned and published Big Table. The contents consist of a novel by Jack Kerouac, "Old Angel Midnight," two poems by Edward Dahlberg, "Ten Episodes from Naked Lunch" by William S. Burroughs and three poems by Gregory Corso. The General Counsel alleges that the first and third articles are obscene and filthy. No allegations are made as to the second and fourth.

Testimony and letters were offered at the hearing both by the complainant and the mailer as to the literary merit of the articles in question. The Hearing Examiner in his Initial Decision reviewed and analyzed the testimony of these critics, authors and editors and appended excerpts from much of it.

The witnesses differed both as to the merit of the articles and the reasons why they believe the publication either has merit or lacks merit. Most of the witnesses who expressed an opinion on the subject agreed that the purpose of the writers was serious. Both of the alleged obscene and filthy articles are esoteric writings which are difficult to read since they are written in unintelligible language with very little connection in thought. Some of the words in the Kerouac story are merely jumbles of letters. Both pieces are by members of the San Francisco school of literature which supposedly represents the work of the beat generation about which so much has been written. The Kerouac story concerns, as the title literally implies, an old angel named "Midnight" and uses the "stream of consciousness" technique. It is, in the opinion of the critics, supposed to be a protest against what, in the opinion of the author, is our depraved society. The Burroughs story is a portrayal of how the world looks through the eyes of a narcotic addict.

The Supreme Court in Roth v. U.S., 354 U.S. 476 (1957), in upholding the criminal obscenity statute, adopted the definition of obscenity of the American Law Institute Model Penal Code Draft No. 6 as a restatement of the best existing definitions which had evolved through judicial opinions. It is that "a thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex or excretion and if it goes substantially beyond customary limits of a candor in description or representation of such matters." In defining the word "prurient" the Institute states:

"In specifying that the appeal must be to prurient interest, the proposed definition recognizes that there is a normal interest in sexual matters, for which it should be lawful to provide satisfaction through works of art as well as scientific and educational writings. The prurient interest is an exacerbated, morbid, or perverted interest growing out of the conflict between the universal sexual drive of the individual and equally universal social controls of sexual activity."

In elaborating on the definition of obscenity the Institute said: "The proposed definition of obscenity has three elements: (i) the material must appeal to prurient interest in sexual matters; (ii) that aspect of its appeal must predominate over other attractions or values in the material and (iii) the appeal to prurient interest must be by description or representation going substantially beyond customary limits on free expression."

The Hearing Examiner decided that the articles did not appeal to prurient interest since they did not portray sex in an appealing manner. However, he concluded that the definition adopted by the Supreme Court and advocated by The American Law Institute did not require that the matter be sexually arousing to be obscene if it exceeded customary candor in the presentation of sexual matters. I do not believe the candor portion can be considered separately from the remainder of the definition. However, I concur in his conclusion that the matter is obscene but only because of the definition provided by the Institute of the word "prurient." The articles portray sexual matters and subjects in a most exacerbated, morbid and perverted manner. The language used exceeds any four letter Anglo-Saxon words which may be found in current contemporary novels. They discuss defecation, the genitals, sexual relations, perversions, and aberrations in the lowest type of language. I believe the publication appeals to prurient interest.

The mailer contends that if the matter at issue has even the slightest redeeming social importance, it may not be found to be obscene. The Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); said:

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

Thus the Supreme Court seemingly recognized that if matter was found to be obscene it was of very slight social value and therefore it did not receive the constitutional protection. This seems consistent with what the Institute had to say as to the second element of the definition:

"The second aspect of the recommended definition, requiring that appeal to prurient interest be the predominant appeal of the material, recognizes that a work of art or literature may contain elements of prurient interest, which, however, are subordinate to other positive values of the work. Policy as well as constitutional limitations enjoin us to safeguard freedom of expression by balancing artistic or other merits of a work against the alleged prurient appeal."

"While we give indirect effect to artistic merit, we would not favor a formulation that calls directly for an official determination that material has or has not sufficient artistic or other merit to outweigh its objectionable features."