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Opinion of the Court.

In that view, "literature" and the "arts" mean no more than productions which convey ideas by words, pictures, or drawings. P. 153.

151 F. 2d 49, affirmed. F.2d

In a suit by the respondent to enjoin the Postmaster General from carrying into effect an order revoking respondent's second-class-mail permit, the district court denied the injunction and dismissed the complaint. The Court of Appeals for the District of Columbia reversed. 151 F.2d 49. This Court granted certiorari. 326 U. S. 708. Affirmed, p. 159.

Marvin C. Taylor argued the cause for petitioner. With him on the brief were Solicitor General McGrath, Assistant Attorney General Sonnett and Vincent M. Miles.

Bruce Bromley argued the cause for respondent. With him on the brief were Morris L. Ernst and Harriet F. Pilpel.

Briefs were filed by the following as amici curiae, in support of respondent: James W. Stites, George Roberts and Whitney North Seymour; Elisha Hanson for the American Newspaper Publishers Association; Francis H. Scheetz and Arthur H. Clephane for the Curtis Publishing Company; Robert E. Coulson and William R. Sherwood for the Reader's Digest Association, Inc.; Sidney R. Fleisher for the Authors' League of America, Inc.; and Charles Horsky, Arthur Dehon Hill, Luther Ely Smith and Arthur Garfield Hays for the American Civil Liberties Union.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Congress has made obscene material nonmailable (35 Stat. 1129, 18 U. S. C. § 334), and has applied criminal sanctions for the enforcement of that policy. It has

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327 U.S.

divided mailable matter into four classes, periodical publications constituting the second-class.1 § 7 of the Classification Act of 1879, 20 Stat. 358, 43 Stat. 1067, 39 U. S. C. § 221. And it has specified four conditions upon which a publication shall be admitted to the second-class. § 14 of the Classification Act of 1879, 20 Stat. 359, 48 Stat. 928, 39 U. S. C. § 226. The Fourth condition, which is the only one relevant here,2 provides:

"Except as otherwise provided by law, the conditions upon which a publication shall be admitted to the second class are as follows. . . Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers. Nothing herein contained shall be so construed as to admit to the second-class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates." Respondent is the publisher of Esquire Magazine, a monthly periodical which was granted a second-class permit in 1933. In 1943, pursuant to the Act of March 3, 1901, 31 Stat. 1107, 39 U. S. C. § 232, a citation was issued

1 "That mailable matter of the second class shall embrace all newspapers and other periodical publications which are issued at stated intervals, and as frequently as four times a year and are within the conditions named in sections twelve and fourteen." § 10 of the Classification Act of 1879, 20 Stat. 359, 39 U. S. C. § 224. For other periodical publications which are included in second-class matter, see 37 Stat. 550, 39 U. S. C. § 229; 31 Stat. 660, 39 U. S. C. § 230.

2 The first three conditions are:

"First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively. Second. It must be issued from a known office of publication. Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications: Provided, That publications produced by the stencil, mimeograph, or hectograph process or in imitation of typewriting shall not be regarded as printed within the meaning of this clause."

to respondent by the then Postmaster General (for whom the present Postmaster General has now been substituted as petitioner) to show cause why that permit should not be suspended or revoked. A hearing was held before a board designated by the then Postmaster General. The board recommended that the permit not be revoked. Petitioner's predecessor took a different view. He did not find that Esquire Magazine contained obscene material and therefore was nonmailable. He revoked its secondclass permit because he found that it did not comply with the Fourth condition. The gist of his holding is contained in the following excerpt from his opinion:

"The plain language of this statute does not assume that a publication must in fact be 'obscene' within the intendment of the postal obscenity statutes before it can be found not to be 'originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry.'

"Writings and pictures may be indecent, vulgar, and risque and still not be obscene in a technical sense. Such writings and pictures may be in that obscure and treacherous borderland zone where the average person hesitates to find them technically obscene, but still may see ample proof that they are morally improper and not for the public welfare and the public good. When such writings or pictures occur in isolated instances their dangerous tendencies and malignant qualities may be considered of lesser importance.

"When, however, they become a dominant and systematic feature they most certainly cannot be said to be for the public good, and a publication which uses them in that manner is not making the 'special con

Sec. 1 of that Act provides:

"When any publication has been accorded second-class mail privileges, the same shall not be suspended or annulled until a hearing shall have been granted to the parties interested."

* See 7 Fed. Reg. 3001.

691100°-47-14

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327 U.S.

tribution to the public welfare' which Congress intended by the Fourth condition.

"A publication to enjoy these unique mail privileges and special preferences is bound to do more than refrain from disseminating material which is obscene or bordering on the obscene. It is under a positive duty to contribute to the public good and the public welfare."

Respondent thereupon sued in the District Court for the District of Columbia to enjoin the revocation order. The parties stipulated at a pre-trial conference that the suit would not be defended on the ground that Esquire Magazine was obscene or was for any other reason nonmailable. The district court denied the injunction and dismissed the complaint. 55 F. Supp. 1015. The court of appeals reversed. 151 F. 2d 49. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problem in the administration of the postal laws.

The issues of Esquire Magazine under attack are those for January to November, inclusive, of 1943. The material complained of embraces in bulk only a small percentage of those issues. Regular features of the magazine (called "The Magazine for Men") include articles on topics of current interest, short stories, sports articles or stories, short articles by men prominent in various fields of activities, articles about men prominent in the news, a book review department headed by the late William Lyon Phelps, a theatrical department headed by George Jean Nathan, a department on the lively arts by Gilbert Seldes, a department devoted to men's clothing, and pictorial features, including war action paintings, color photographs of dogs and water colors or etchings of game

5 It was not contended that Esquire Magazine does not comply with the first three conditions of 39 U. S. C. § 226, set forth in note 2, supra. * Items taking up a part or all of 86 pages out of a total of 1,972 pages.

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birds and reproductions of famous paintings, prints and drawings. There was very little in these features which was challenged. But petitioner's predecessor found that the objectionable items, though a small percentage of the total bulk, were regular recurrent features which gave the magazine its dominant tone or characteristic. These include jokes, cartoons, pictures, articles, and poems. They were said to reflect the smoking-room type of humor, featuring, in the main, sex. Some witnesses found the challenged items highly objectionable, calling them salacious and indecent. Others thought they were only racy and risque. Some condemned them as being merely in poor taste. Other witnesses could find no objection to them.

An examination of the items makes plain, we think, that the controversy is not whether the magazine publishes “information of a public character" or is devoted to "literature" or to the "arts." It is whether the contents are "good" or "bad." To uphold the order of revocation would, therefore, grant the Postmaster General a power of censorship. Such a power is so abhorrent to our traditions that a purpose to grant it should not be easily inferred.

From

The second-class privilege is a form of subsidy. the beginning Congress has allowed special rates to certain classes of publications. The Act of February 20, 1792, 1 Stat. 232, 238, granted newspapers a more favorable rate. These were extended to magazines and pamphlets by the Act of May 8, 1794, 1 Stat. 354, 362. Prior to the Classification Act of 1879, periodicals were put into the second-class, which by the Act of March 3, 1863, 12 Stat.

8

It was found to be worth $500,000 a year to Esquire Magazine. "A newspaper editor fears being put out of business by the administrative denial of the second-class mailing privilege much more than the prospect of prison subject to a jury trial." Chafee, Freedom of Speech (1920), p. 199.

8 Rates on periodicals, designed primarily for advertising purposes or for free circulation, were increased by the Act of July 12, 1876, 19 Stat. 78, 82.