United States Postal Service(TM)



 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, Illinois

 is nonmailable under 18 U.S.  Code 1461.  

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

 August 12, 1959

 Charles D. Ablard Judicial Officer

 POST OFFICE DEPARTMENT, Washington 25, D.C.

 APPEARANCES:
 Joel J. Sprayregen, Esq. 
 19 South La Salle
 Chicago, Illinois 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 non-mailable 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 non-mailable under 18 U.S.C. 1461 1/. 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 non-mailable. Exceptions were filed by the mailer and the complainant 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 paper-back 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 re-statement 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 promulgated 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."

"Our reasons for hesitating to relate the definition of obscenity directly to appraisal of artistic merit are as follows. In the first place, great artistry is not necessarily inconsistent with prurient appeal; consummate skill in execution might be the very thing which lends the work its powerful erotic appeal. In the second place, policemen, district attorneys, law judges, and jurors are poorly qualified as art critics; prosecution and conviction should depend as little as possible on their appreciation of poem, painting, sculpture or dance. Finally, we know that even professional critics differ widely in evaluating works of art and entertainment, and that tastes are constantly changing, so that art criticism introduces an undesirable element of uncertainty into the criminal law."

"Accordingly, we have refrained from making artistic or other merit a direct and independent issue in obscenity trials. On the other hand, it is obvious that the issue of 'predominant appeal' involves not only a judgment that the material in question appeals to prurient interest, but also a judgment that it has this characteristic more than any other. Thus consideration is invited to the question of what other appeal, if any, the material has. And in subsection (2) (c) we expressly provide for the admissibility of evidence as to artistic, literary, scientific, educational or other merits."

Thus the Institute did not intend that those of us who must pass on these questions be required to make an independent determination of literary merit. We are only required to determine what is dominant in the material. They recognized that professional critics differ widely and this is borne out by the testimony adduced at the hearing in this matter. Using the above standard on the publication in question, I conclude that it has the characteristic of appealing to prurient interests more than any other.

As to the third element, that the description or the representation goes substantially beyond customary limits of candor, I conclude that the "present critical point in the compromise between candor and shame at which the community has arrived here and now" 2/ . is not such that tolerates material such as the Kerouac and Burroughs articles. The drafters of the Model Penal Code recognize that "our civilization tolerates much that experts or particular segments might regard as appealing primarily to prurient," and concluded that those matters may be separated only by degree from the obscene "but the degree marks the difference between social approval or disapproval of sex portrayal." Although much of the language in the articles is unintelligible to the average reader, it is noted that the words dealing with excretion and sex are most intelligible and explicit in their vulgarity.

The second allegation of the complainant, that the matter is filthy, raises other questions. The Supreme Court in U.S. v. Limehouse , 285 U.S. 424 (1932) held that the addition of the phrase "and every filthy" to the criminal statute added a new class of matter to the prohibition of the statute. The Court had held in Swearingen v. U.S. , 161 U.S. 446 (1896) that language which was coarse and vulgar was not necessarily obscene since it was not calculated to corrupt and debauch the minds and morals of those into whose hands it might fall. Mr. Justice Brandeis speaking for the majority of the Court in Limehouse said,

"The lower court failed to recognize that the amendment introduced, not merely a word, but a phrase. Disregarding the collection of the words, it treated the amended clause as if it had read 'obscene, lewd, lascivious, or filthy;' and then, applying the doctrine of noscitur a sociis, gave to 'filthy' the meaning attributed in the Swearingen case to the words

'obscene, lewd, or lascivious." Thus, the court emptied the amendment of all meaning. We think that it is a more natural reading of the clause to hold that by the amendment Congress added a new class of unmailable matter, the filthy."

In Tyomies Publishing Company et al. v. U.S. , 211 F.2d 385 (C.A. 6, 1914), the Court said,

"By the term filthy is meant what it commonly or ordinarily signifies; that which is nasty, dirty, vulgar, indecent, and offensive to the moral senses morally depraving and debasing."

Recently the Court of Appeals of the Ninth Circuit in Verner v. U.S. , 183 F.2d 184 (C.A. 9, 1950) recognized the distinction between obscene and filthy.

While I believe the definition of obscenity of the American Law Institute is sufficiently broad to encompass the filthy, I am not certain from the opinion of the Supreme Court in Roth whether the Court is adopting the interpretation which the Law Institute placed on its definition or merely the definition. Until this question is resolved I believe that the filthy is still a separate category of matter. I find that this publication is filthy as well as obscene.

Some comment is warranted on the fact that there is matter in this publication which the General Counsel does not allege to be obscene. It is unfortunate that this is included and must also be proscribed by the non-mailability ban. Most of the critics agreed that the Dahlberg pieces were the best in the publication. However, I believe that the two articles charged when considered together are the dominant part of the publication. Kerouac is generally considered the dean of the beat generation authors. This, plus the fact that his is the lead article is in the publication, gives it more prominence than the others.

Another point which deserves mention has been raised in this and other proceedings. It is the question as to what extent an author of some repute is at liberty to use language which he might not be entitled to use had he not obtained such a reputation. It has been contended by publishers and critics that an Ernest Hemingway or a James Joyce could not write obscene matter. Kerouac is, in the opinion of most critics, a gifted author. His works such as "On the Road" have been reviewed by competent literary critics and reputable literary quarterlies and found to be of merit. But does this give him carte blanche and place him above a law which is applicable to others? The fallacy of such a contention was pointed out recently by no less a critic of the application of the postal obscenity laws than the author of the celebrated opinion of the Court of Appeals of the District of

Columbia in the Esquire 3/ . case, former Circuit Judge Thurman Arnold. In the brief for the appellant in State of Vermont v. Verham News Corporation in the Supreme Court of Vermont, Docket No. 1305, Mr. Arnold, citing An Unhurried View of Erotica by Ginzburg, said:

"But the literature of obscenity contains some of our greatest names. Mark Twain, whose dialogue called '1601' is today widely but secretly circulated, wrote to a Cleveland librarian, 'If there is a decent word findable in it it is because I overlooked it.' Great painters have lent their talents to producing erotic material so extreme that it had to be secretly circulated. Such names include Hogarth, Rowlandson, Aubrey Beardsley, Rubens, Rembrandt, Jan Steen, Michelangelo, Raphael, Tintoretto, Titian, Boucher and Rodin. In music Gilbert and Sullivan produced an obscene musical play called 'The Sod's Opera'. Yet Sullivan was the man who wrote 'Onward Christian Soldiers'. The list could be extended indefinitely. One of the most widely read pornographic articles was written by Benjamin Franklin; another star in this galaxy was Eugene Field."

The mailer contends that the publication is designed for a select group of avant garde literati and his witnesses concede that the average reader would not get much out of the book. He admits however that he is interested in sales and the financial success of the publication and that the book is stocked in book stores and newsstands. While method of distribution may be a factor in this type of proceeding there is no indication that there is any control over the dissemination of the publication by either the publisher or the vendors.

A similar contention is made as to the Burroughs article in that testimony was introduced from a psychologist who stated that the work would be of benefit to those who treat narcotics addicts. But there is no evidence that it is sold for those purposes. Had the same article appeared in a psychiatric medical journal a different situation would have been presented.

The mailer contends that any idea no matter how expressed has the protection of the First Amendment to the Constitution. If we muse on this just a bit we can see the fallacy of this argument for may not the manner of presentation of the idea be, as Judge Learned Hand said in Kennerley , supra, the difference "in the critical point in the compromise between candor and shame at which the community may have arrived"?

How far may one go when explaining or advocating nudism? adultery? homosexuality? lesbianism? If indeed these are ideas which are protected by the First Amendment, there must surely be some limitation on the manner of expressing them to the viewer or the reader. Certainly the Supreme Court in Roth and more recently in Kingsley International Picture Corporation v. The Regents of the University of the State of New York , decided June 23, 1959, did not intend to eliminate all restraints on expression. Kerouac has every right to criticize society and Burroughs every right to explain dope addiction but it is my opinion that the right to express those ideas does not carry with it the Constitutional right to express them in the manner which has been done in this publication.

I conclude that Big Table I is obscene and filthy and thus non-mailable. The findings of fact of the Hearing Examiner in the Initial Decision are adopted and his decision is affirmed. The exceptions of the mailer are disallowed. The matter should be disposed of pursuant to Rule 14 of the Rules of Practice in Proceedings Relative to Mailability.

___________________

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).

2/ U.S. v. Kennerley , 209 Fed 119, 121 (S.D.N.Y., 1913).

2/ Hannegan v. Esquire , 151 F.2d 49, affd. 327 U.S. 146 (1946).