MANUAL ENTERPRISES v. DAY

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Argument of Stanley M. Dietz

Chief Justice Earl Warren: Number 123, Manual Enterprises, Incorporated, et al, Petitioner, versus Day, Postmaster General of United States.

Mr. Dietz.

Mr. Stanley M. Dietz: Thank you, Mr. Chief Justice, may it – may it please the Court?

The first argument, which I would set forth to this Court, I would divide into three parts.

I feel, since this is basically a question of obscenity, I feel the first point that I must cover is strictly factual.

You have four magazines before the Court and just a question of looking at these magazines as judges to see whether in the opinion of the Court, these magazines would revoke to the Court's definition, as laid down by Mr. Justice Brennan for the Court in its opinion in Roth versus United States.

Justice Potter Stewart: This was not a criminal prosecution.

This is an exclusion from the mail case, is it not?

Mr. Stanley M. Dietz: This, Mr. Justice, is a civil case based upon a criminal statute.

It is not criminal prosecution.

It is exclusion from the mails under the provisions of Title 18 1461 saying, “All obscene material is non-mailable.”

Justice Potter Stewart: And then -- and then the same statute proceeds to make a criminal offense and make it a criminal offense for anybody who does mail it.

Mr. Stanley M. Dietz: The same statute continues to place a penalty of five years imprisonment or a fine upon anyone who uses the mails to transit of obscene material.

And I think that you will find in the Government's briefs some argument even to the point that it wou -- it would be even a crime for the postman to carry it, according to their interpretation which I don't agree with the Government's brief, but looking at the individual exhibits, I have gone over each one, each page as indicated in the record from the testimony given by the Government's doctors and I have covered it very fully in my brief.

The first exhibit manual, April 1960 issue, the psychiatrist for the Government testified as to 16 bad pages out of possibly 48, one-third of the total context in the second exhibit, six out of 48 pages were covered, in the third, five out of 48 and in the last exhibit only four out of 48.

Now, in the Government's brief, they have outlined nearly something that they feel is wrong or revolting to the statute of -- in nearly every page.

I cannot go along with this.

I say that if this was so then this was something that psychiatrist should have testified to and not the Government's brief.

This brings us to a question of just what is meant by this Court in its definition in the Roth case.

The Post Office has picked it up.

As I understand it, the definition says that as to the average person, applying contemporary community standards, the dominant theme of the material considered as a whole must appeal to the prurient interest and the Government would argue that it's not to the average person.

I think they argue even further to this Court that this Court did not, in its opinion, intend to mean that obscenity must be judged on its effect upon the average person but only upon the average reader that is expected to receive or be the recipient of this material.

In the Post Office, they have changed this definition or this test of obscenity that this Court has laid down to one in which material is obscene if it would appeal to the prurient interest of a homosexual because they contain this material is deemed act homosexuals and only produced for homosexuals.

Of course this is one point that I would gladly argue.

We contend these magazines, if you examine them and see by volume, if nothing more the context is not for homosexuals, but is basically for the body builder, the person who is interested in large muscles and you may view each and every photograph in the magazine.

But this brings us to the second consideration, just what is this so-called homosexual audience?

What are they composed of?

I argue in my brief and to this Court that this is the word itself, homosexual is incorrectly used, homosexual, the word, the term.

This does not describe people.

This is a term that describes things that people do and therefore, the way that it's used by the Post Office, itself, makes a definition inherently vague and indefinite.

I would continue with comparison of the definition as used in the Post Office with the definition as laid down by this Court in the Roth case.

Now, in the Roth case, this Court has said that we must apply contemporary community standards in judging material that is supposedly obscene.

Now, that -- that is a catch phrase to me, contemporary community standards because the Post Office would say that this material is headed from homosexuals.

Well, who is there to testify as to the average audience that's homosexual, then what is the community standards for homosexuals?

Do they have any community standards?

Are we going to allow these second class citizens to receive any literature?

This is a point.

The Post Office will have this divide Americans into normal people, so-called normal people, even though their doctor says, there's no such thing as a normal person just within normal limits, normal people or abnormal people.

Now, for normal people, you receive one type of literature and that's the only thing that's allowed to be carried through the mails, and anything that does not fall into this category, anything that's going to appeal to this so-called abnormal people is obscene.

I say, this is censorship.

I would go further with this argument.

Chief Justice Earl Warren: In this argument, that the (Inaudible) specifically statutory is bias of homosexuality's are criminal standards or (Inaudible) homosexuality's standard?

Mr. Stanley M. Dietz: Perhaps, I did not make my argument clear, Mr. Chief Justice.

My point was this.

If we take our definition as laid down in the Roth case, judging the material as a whole applying contemporary community standards, the dominant theme upon the average person, the effect upon the average person, alright?

The Post Office change at around say, it's not the average person, it's not the average normal person, it's a homosexual, alright?

Now, can we find a so-called average homosexual?

The answer is no and this is in the record from the Government doctor's own testimony.

So therefore, you might have to say that anything that is going to appeal to a homosexual, by the definition given out from the Post Office, has got to be obscene.

There's no -- there's no out.

Have I been able to make it any clearer?

Chief Justice Earl Warren: That's alright.

(Inaudible) as to the matter is that the (Inaudible) as the matter is (Inaudible) says that this (Inaudible)

Mr. Stanley M. Dietz: I would best attempt to answer that question by saying that in the opinion of this counsel, there is no community that has no homosexuals.

That every community has and possibly they're not, I've -- and I stated in my brief, possibly it hasn't been -- maybe they haven't been discovered if you want to use that term, discovered because we keep these people suppressed so maybe they have been (Inaudible) it out and brought to the light.

Now, if you're going to -- the only other way that I could answer would be in the testimony given by the Government's doctor in this case as to all of the different, myriads of different things that would appeal to the prurient interest of the different phases or types of people that he would classify as homosexuals and I would say that's impossible by his own testimony to set any standard.

Chief Justice Earl Warren: As stated in your brief makes the proof at (Inaudible) makes the standard of guilty (Inaudible) Government's appeal to obedient (Inaudible).

Mr. Stanley M. Dietz: I'm having a little difficulty understanding your question, Mr. Chief Justice.

Do you mean by that question that there's no --?

Chief Justice Earl Warren: (Inaudible) but it does not -- does not appeal to the effect (Inaudible) any persons (Inaudible) does not.

Do you say (Inaudible) very much reason that it's never their law (Inaudible) to be obscene?

Mr. Stanley M. Dietz: That was not what I have intended to say, Mr. Chief Justice.

I understand the question now --

Chief Justice Earl Warren: (Inaudible) the reason (Inaudible).

Mr. Stanley M. Dietz: I hadn't -- I hadn't really reasoned it that far.

My reasoning had stopped at the point where you say there's one group of deviants but within this particular group there is by the testimony of the Government's own doctor, there were so many different segments that there is no person, no one or no group of persons, even Professor Kinsey and his group cannot say what is going to be the stimulant to or what would be the standards for arousal of the average of that group, that's where I stopped.

You went a little bit further.

Let -- let's accept for a second just for argument, let's accept the Government's view then I have to ask the Court to again go back to the exhibits and examine them carefully, in conjunction with the record.

These photographs contained, if they were intended for homosexuals and I argued this in my brief that these photographs, none of which shows the completely exposed genital area.

In all of these photographs the genitalia is draped or covered and these photographs are not worst then, what we so-call normal people called pin-up photographs, which, I think, even this Court would take judicial knowledge, as generally commonly accepted.

You see photographs of such beauty, female beauties as Marilyn Monroe nude on calendars, on walls all over the country.

Now, my argument to this Court, if you're going to consider that these photographs were headed for homosexuals, to appeal to homosexuals then an analysis of these photographs would show that these photographs are no more than the photographs comparable pin-up photographs of Marilyn Monroe and the other beauties.

And my point, in that argument being this, if we so-called normal people, according to our law, are entitled to have our pin-ups then why shouldn't the second class citizens, the homosexual group, if you use that term, why shouldn't they be allowed to have their pin-up?

Their pin-up is certainly no worse and you -- you have to examine each one of these photographs, their pin-up is no worse than our pin-ups.

That is the -- that is the three parts of my first argument, first -- first point I raised in my brief.

The second point raised in the brief is this question following this Court's decision in Smith versus California, a question whether a publisher of a magazine or any sort of literature is held accountable for the actions of his contributing photographers.

These magazines were held to be non-mailable on two parts.

One is that they were obscene and two is that they were non-mailable because they gave information, supposedly where, how, from whom obscene material may be obtained.

My point is, and the record, I think, shows that the publisher of this magazine did everything reasonable to learn, to ascertain for himself just what materials, the contributing photographers were selling and that he -- and the record also indicates that he voluntarily deleted from his magazines the advertisements of particular photographers whom he considered, in his opinion, were selling non-mailable photographs.

The record will also show that he, himself, did not advertise any of his own particular completely nude photographs, which he was selling under his own trade name of Continental Artist.

While I'm at that point, I would like to refer to something in the Government's brief which I feel should be brought to this Court's attention and that is appearing on pages 48, the bottom of page 48 and the top of page 49 of the Government's brief, where they allege that Mr. Womack was advertising his own merchandise in carrying an advertisement of Vulcan Studios, Tony of Vulcan Studios.

Everyone at the Post Office, from the postal inspectors through the hearing examiners, everyone that does have anything to do with Mr. Womack know that he was not Tony of Vulcan Studios that this Tony of Vulcan Studios is entirely different person and we feel that this should be brought to the Court's attention because it's just incorrect.

There's no -- there's no question that this is just an incorrect statement.

Now, in the -- in the record, the postal -- postal inspector, Harry Simon testified that he had extreme difficulty in purchasing anything that was supposed to have been obscene from the photographers.

And the way that he, the postal inspector, would conduct his investigation would be to mail out what he called test letters.

Well, we did the same thing, that is the publisher of this magazine did the same thing and he even went further, and he expended more money than the postal inspectors did because he actually found materials that were not to his taste and he did delete those particular photos -- photographers from his magazines.

Now, the third point that I have in this case is the question of whether there was a prior restraint exercised upon these magazines and that requires, in part a consideration of the regulations and in part a consideration of the time sequence and the way that these regulations were applied.

Now in the Government's brief, page 3, they have in their statement of facts, March 25th was the date that this material was placed in the mail by us, March 25th, 1960.

You'll notice that the next date is April 5th and April 5th was the date that we received the letter -- no, excuse me, April 5th is the date that the letter was dated that was supposedly mailed to us, informing us that this material was being held by the General Counsel of the Postal Office Department because they considered it to be obscene.

I noticed in the rules of the Post Office that is supposed -- that is supposed to follow as set forth in the back of the page 81, it's in Appendix 8 to the Government's brief.

Rule 1 - Limitation, Rule 2 - Initiation because Rule 1 goes into the question of how much money is involved.

Rule 2 on initiation it says, “Upon receipt of mail matter, of doubtful mailability, etcetera” referring to the provision of the code, “submitted by a postmaster, the General Counsel shall (a) file a complaint with the docket clerk.”

Now, this material was stopped on the 25th of March, 1960.

April 5th is when we have received the letter stating that they feel that this material is non-mailable.

I say again, not we received, but when they supposed to have mailed the letter, April 5th.

Now, April 11th, 1960, they have in their brief in the bottom of page 3 that we have challenged this letter.

Well, we did.

We have filed formal complaint with the Post Office about it, but, we went further than that.

On that date, April 11th, we received or we asked for and received the temporary restraining order from the United States District Court for the District of Columbia and, of course, in the bottom of page 4, in the Footnote 1, the Government's brief says temporary restraining order was denied on April 13th.

Well, this is a little bit of an error because the temporary restraining order was granted on the 11th.

Now, what happened was two days later, on the 13th, we had a hearing on the preliminary injunction which was denied, giving us the right to come back to the Court, if we did not receive a hearing or to conclude a hearing by the 28th of that month.

Now, the point that I -- I wish to raise with this Court and why this counsel feels that's important that these magazines are dated.

Each one of these magazines had got a date on them.

Now, if they -- according to their rules, if they can take a magazine and keep it for 10 to 12 days before they are supposed to send you a letter saying that you're not going to be able to continue through the mails with this magazine before they even start in, the mechanism for having a hearing then by the time, this hearing is finally granted, if ever, your magazines are no longer saleable because the month has passed.

And --

Justice Charles E. Whittaker: What's the alternative to that?

Mr. Stanley M. Dietz: The alternative, sir, is three-fold.

I have set this forward in my brief because, I weren't familiar with it because the month before they had stopped the magazine that is exhibit number 4, which is the Trim, March 1960 issue of Trim magazine.

That was stopped the month before and they gave us this letter which said, “You can come and -- and get your materials and -- and withdraw it from the mails or you can go ahead and request the -- the hearing.”

Now, to withdraw it from the mail that means that we have to ship it by freight, railway express and of course, this is second class mailing privileges were in effect at this time and the expense wise tremendous difference between shipping by mail and shipping by -- by freight.

Justice John M. Harlan: What's the total circulation?

Mr. Stanley M. Dietz: As of this date?

Justice John M. Harlan: Well with reference to --

Mr. Stanley M. Dietz: 40,000 or more a month.

It's pretty good.

Justice Charles E. Whittaker: Assuming that the material is obscene, and it's presented to the Post Office Department, they must either take it, mail it or reject it, but if it's obscene they have no right to take it, isn't that true?

Mr. Stanley M. Dietz: Well, yes, according to the way that the statute is written.

In fairness, I have to say, yes.

The statute says that all obscene material is non-mailable.

I've read the Government's brief.

They went back into the -- the particular background of the law and said that they didn't want to stop.

They have even been accepted, I have to agree with that.

Justice Charles E. Whittaker: Do you think that it's beyond the power of Congress to prohibit the Post Office Department from transmitting obscene material in mails?

Mr. Stanley M. Dietz: Mr. Justice Whittaker, I have never said it's beyond the power of Congress to regulate the mails.

Justice Charles E. Whittaker: Then when material that is obscene is presented, they must reject it.

What else then can they do but give you a hearing?

Mr. Stanley M. Dietz: Well, that's the point, Mr. Justice Whittaker.

I had to go and get a temporary restraining order for the District Court just to get a hearing.

That's what we asked for when we went to Judge Tamm, was a hearing because according to the rules, when they send you a copy of the rule and of the way that the Post Office were working it in this particular case, by the time we would have ever gotten to a hearing, you could have forgotten about the magazine because it was -- it was a month afterwards and you can't sell.

You can't sell a May magazine in -- in June.

This is the information that I have received, Mr. Justice.

I have been told that you take a magazine like this and there are people -- now, these are sold mostly from newsstands, exactly the same way that all other magazines in this field are sold and these magazines, I didn't mentioned it before but the records shows that the testimony of the Government's psychiatrist, these magazines are exactly the same in content, the type of pictures and everything else just like every other physique magazine sold.

We have them all down at the -- at the postal hearing and showed them and were com -- compared by the psychiatrist for the Government with all magazines and he said they were all the same, had the same kind of pictures.

Everything was exactly the same.

May I be permitted to reserve some of the argument time to answer?

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: What is the litigation (Inaudible)?

Mr. Stanley M. Dietz: Which one of my points, Mr. Justice?

Justice Felix Frankfurter: I don't know about the point.

Mr. Stanley M. Dietz: I have -- I have three claims.

One, I feel that these magazines are not obscene as laid down by this Court's, as testified in this Court's definition, that's number one.

Number two is I feel that the way that they have treated us in the prior restraint exercise in the Post Office Department was unconstitutional.

Justice Felix Frankfurter: What is that, they stopped -- they have stopped sending through mail?

Mr. Stanley M. Dietz: Well, they stopped this stuff before -- before it was ever actually carried in the mail.

This was -- this particular set, these four books were stopped.

Justice Felix Frankfurter: The Court had stopped them?

Mr. Stanley M. Dietz: When it was offered.

Justice Felix Frankfurter: Before it was offered or when it's offered?

Mr. Stanley M. Dietz: When it was offered.

It was offered put in -- put into the Post Office.

Our men walked away and we did not know that it was not accepted but they actually stopped it at that point and held it from March 25th until April 5th when they wrote us a letter and said that they were holding it.

Justice Felix Frankfurter: But you contend that there's no statutory clause or constitutional clause in (Inaudible).

Is that (Inaudible) was supposed to (Inaudible) when (Inaudible) was given, not to let it go through?

Mr. Stanley M. Dietz: I say that --

Justice Felix Frankfurter: That everything under the law communicates that second chances (Inaudible) anything like that?

Mr. Stanley M. Dietz: This is not like Near-Minnesota, Near v. Minnesota.

Justice Felix Frankfurter: (Inaudible) talk about (Inaudible) against the Court be it for every gross of past issues suppose to have the general (Inaudible) hereafter (Inaudible) sorts of anything like that?

Mr. Stanley M. Dietz: This is not quite like that.

No, although I will say this --

Justice Felix Frankfurter: Is it true, is it concluded to Harry neither return it for mailing at the time it was presented, isn't that right?

Mr. Stanley M. Dietz: Yes, that -- that would be correct.

Justice Felix Frankfurter: Well, if there's a statute (Inaudible)?

Mr. Stanley M. Dietz: Not spelled out in that many words.

It's in the general -- the general wording of Title 18 1461 saying that all obscene material is declared to be non-mailable.

Justice Felix Frankfurter: So you think, he's denied the powers of Postmaster General?

He obscene, let's now discuss it, so (Inaudible) may the Postmaster General refuse the -- the mail?

Mr. Stanley M. Dietz: Well, when you say assumed it's obscene, you --

Justice Felix Frankfurter: But --

Mr. Stanley M. Dietz: -- you sort of -- sort of would pull the rug out from under it --

I don't deny -- I don't deny the Postmaster General's power that said is something blatantly obscene, a hardcore pornography, put it in the mails in a -- in a French postcard let's say, where it's right open.

Justice Felix Frankfurter: And the statutory power to -- to oppose that and not let it go to the mail?

Mr. Stanley M. Dietz: Well, it's not spelled out in any statute but it -- it's -- you might say that it is construed from the wording of Title 18 Section 1461 wherein the Congress has said that obscene material is non-mailable and shall not be carried.

Justice Felix Frankfurter: Are you challenging his power to do that, to concededly obscene materials?

Mr. Stanley M. Dietz: No, Mr. Justice Frankfurter.

I am not challenging his power.

Justice Felix Frankfurter: (Voice Overlap) be real claim -- your real claim that this Postman General exercised the power of the law, and construe as non-mailable to get obscene magazines from mail, he exceeded the exercise -- the right to exercise that power because it's definitely not obscene, is that what this is?

Mr. Stanley M. Dietz: Well, I feel, number one it's not obscene.

I would agree with your statement of the question in that way, but I would go a little bit further and I say that I'd -- I think that if the Postmaster General has these certain rules laid out for him on how he or his agents are to act, whether or not this material is obscene, these are his rules and he's got to play the -- the game by his rules.

Justice Felix Frankfurter: That's a very good point but on the General's power of the Postman General excludes all the materials that is thought to be obscene, if it be obscene and that's made (Inaudible) if it be obscene, you (Inaudible) on that?

Mr. Stanley M. Dietz: I'm in no position to argue against it.

I think this Court actually decided that in the Roth case.

I was -- as -- as I understand it.

Justice Felix Frankfurter: But the other point is that because Department of the Postmaster -- Post Office or anybody else (Inaudible) they've gone rule procedure by which termination is made be it be held at his procedure, that's (Inaudible).

Mr. Stanley M. Dietz: That is -- yes, that is the last point that I -- that I raised in my brief.

Justice Felix Frankfurter: What made him depart from that?

Mr. Stanley M. Dietz: For right -- for the right from the outset.

They received this material on March 25th.

If this material was considered obscene then they should have immediately and according to their rules upon receipt of such material is to file, through his General Counsel, is to file a complaint against the material.

Justice Felix Frankfurter: The day (Inaudible) post some charges under the Post Office (Inaudible) from the (Inaudible) this afternoon of the issue in order to so-called (Inaudible).

Mr. Stanley M. Dietz: Well, Mr. Justice Frankfurter, you -- you were the -- the member of this Court who wrote the Kingsley Books case.

Now, in that case, one of the points you brought forward was that the saving factor of this -- unless this counsel is mistaken, one of the saving factors of this statute in New York was you want an injunction, you get it today.

You have a hearing on it within one day after joinder of issue and a decision within two days.

And that was one of the saving factors as I understood.

There's no such -- there's no such in these rules that the Post Office had.

That -- as a matter of fact --

Justice Felix Frankfurter: (Inaudible) obey the rules but the rules didn't sufficiently protect it?

Mr. Stanley M. Dietz: That is part of it, sir.

That is part of it.

Justice Felix Frankfurter: I am trying to find out what your case is (Inaudible).

Mr. Stanley M. Dietz: I understand.

Justice Felix Frankfurter: (Inaudible)

Mr. Stanley M. Dietz: I understood that as well, Mr. Justice.

Well, as you see now, a part of it, of course, is a fact that they didn't play by their own rules and part of it is that their rules themselves are inherently vague.

Now, maybe the rules would be alright if this material that was to be carried through the mail was something that was not dated, that it didn't matter.

When I say, alright, as far as this counsel and -- and with these clients concerned.

If it was not dated material, it was not something that had to be brought to the mail for purpose to get it out in timely sale, I say then it might be different.

Justice Felix Frankfurter: And now suppose that the -- suppose that sale never find out, will that make you a defendant once as an (Inaudible) somebody complaining about (Inaudible) goes to the mail that the instance (Inaudible) parties (Inaudible).

Mr. Stanley M. Dietz: Well, I -- I agree with -- at this point, I can see what's behind that question and I -- may I say this, week --

Justice Felix Frankfurter: (Inaudible)

Mr. Stanley M. Dietz: Well then, let -- may I say that once Herman Womack was convicted in the federal court, here, the Post Office made up their mind that they were going to stop these magazines and that's when we started getting -- each month they started grabbing our magazines and that -- that's what actually happened.

So, you might say that the Postmaster General has the authority to hold from the mails obscene material, I don't argue that.

You asked me if this was comparable to a case where the -- in the future they're going to hold material from the mail, that's why I thought of Near versus Minnesota.

Well, actually they had intention of holding every single magazine that this man was associated with.

Justice Felix Frankfurter: What you are now saying is that the Post Office -- what you now saying is that there was (Inaudible) against your particular client whenever you (Inaudible) through the mail, is that what they say?

Mr. Stanley M. Dietz: No, there's no question about that.

That is yes.

Justice Felix Frankfurter: I don't know if there is or there isn't anybody in the record at the same time.

Mr. Stanley M. Dietz: Well, this point was never brought out in any testimony.

Justice Felix Frankfurter: Well then how can we -- how can we agree with your position?

You -- you're sure that that so but -- but we ended up unsure.

Mr. Stanley M. Dietz: Alright.

There's nothing in the record and I -- I don't care to argue something that's not in the record.

Justice Felix Frankfurter: So the -- the point really isn't important?

Mr. Stanley M. Dietz: No.

Not that -- I -- I haven't raised that in the brief.

I have nowhere in -- in any of my briefs asserted that even though this was always my -- now, I would go further and say my personal opinion this was a conclusion and that it was based upon statements made to me as counsel.

I did not have the opportunity to fully answer the question post by Mr. Justice Black as to the -- whether or not the dates were of importance.

I started to -- I think I got off by another attention.

I am informed that when the month goes by and let's say this magazine now holding exhibit 1, April Manual when this magazine has the time has gone by and the next issue is on the street, that the top will be torn off, the piece that has the date will be torn off and then, of course, they will try to sell it at a reduced price which of course --.

Justice John M. Harlan: What is the price?

Mr. Stanley M. Dietz: 50 cents, Your Honor, 50 cents each magazine.

Justice Felix Frankfurter: Is that the normal price of these magazines?

Mr. Stanley M. Dietz: Yes, this is -- there were some more expensive.

There are magazines that are little bit larger in size.

When I say larger in size, larger photographs, pages are larger and not more pages, just larger and they're made by a gentleman who -- New Jersey, named Weider and I think his magazine sell for a dollar and he does have some annual magazines that sell for $1.50 or $5 annual --

Justice Felix Frankfurter: Annual.

Mr. Stanley M. Dietz: Yes, annual magazines.

May I reserve some time?

Chief Justice Earl Warren: You may, you may.

Mr. Doolittle.

Argument of J. William Doolittle

Mr. J. William Doolittle: Mr. Chief Justice, may it please the court.

The Court will usually have perceived by now that we are dealing in this case with a rather unusual type of publication.

One that is, I suggest, the peculiarly insidious form of obscenity in that, while it appears to the average man to be far less objectionable than the usual forms of pornography in fact, it has far more serious effect upon its audience than ordinary pornography has on the average audience.

The leading commentators on obscenity and the law, Lockhart and McClure, have described this type of publication as the pseudo-physical culture magazine.

With Court's indulgence, I should like very briefly to read their most apt description of this genre of publication.

“Although, not a Charles' Atlas magazine, they say, it would have appeared to the normal heterosexual male only as a rather bizarre magazine because of the unusual clothing worn by the muscular men pictured in its photographs and peculiar settings and props included in the photographs.

Analyzed by a psychiatrist or a psychologist, however, the magazine took on an entirely different character.

It was then seen for what it really was, a magazine for male homosexuals to whom the clothing, settings and props had symbolic meaning.

Now, because of the character of the appeal of these magazines, these writers, Lockhart and McClure assumed that such material should be characterized as hardcore pornography.

Justice John M. Harlan: Who are the authors of these magazines?

Mr. J. William Doolittle: Lockhart and McClure, Mr. Justice Harlan and the writing in 45 Minnesota Law Review I was quoting it, pages 98 and 99.

Justice Charles E. Whittaker: Is that Dean Lockhart of University of Minnesota?

Mr. J. William Doolittle: The basis of -- of what they were talking about -- actually, they were not -- they wrote this when this case was just beginning.

Apparently, they didn't even know about this case.

They were writing and the citation they give is advice of psychologists at University of Minnesota.

Justice Charles E. Whittaker: Yes.

Mr. J. William Doolittle: What we have here today, I submit, is precisely the same as I shall try to show you by at least brief references to the record.

In the time available to me I propose first to argue that in concluding that these magazines are obscene and therefore non-mailable, the Post Office and the courts below properly judged them in relation to the average person in their special audience rather than the average person in the community.

I shall only touch very briefly upon the alternative ground that these magazines are non-mailable because they contain information as to where obscene material may be obtained.

And finally, I shall argue that the statutory and administrative scheme by which these magazines were found obscene and therefore, were excluded from the mails, did not constitute a prior restraint in violation of the First Amendment to the Federal Constitution.

As a pa -- passage, I read to you from Lockhart and McClure indicates it is necessary in looking at magazines such as these and to consider the psychiatric and psychological testimony that was adduced with respect to them.

Justice Felix Frankfurter: Would (Inaudible) in order to argue the Government's brief exactly what (Inaudible)?

How does these (Inaudible)?

Mr. J. William Doolittle: Not at all, Mr. Justice.

This case got going in the very first instance when in -- on April 25th of 1960.

Now, the magazines at issue were deposited in the mails in Alexandria, Virginia.

Now, I should like to point out at this juncture that the issues are the March and May issues of one magazine, the April issue of another magazine and the May issue of the third magazine.

I suggest this fact as highly irrelevant in considering the importance of the dates of these magazines which, of course, don't contain any sort of current events matter.

The magazines other than the dates on the cover are pretty much identical to one another in their format and content.

These magazines or samples of them were then sent by the postmaster at Alexandria to the General Counsel's office of the Post Office Department here in Washington pursuant to the regulations which require that when he has any question of the mailability of matters submitted to him, he will send it to the central authority in Washington for a determination as to or, I should say, for further instructions.

Justice Felix Frankfurter: Then (Inaudible) Alexandria has been informed?

Mr. J. William Doolittle: No, there's nothing, Mr. Justice.

Justice William J. Brennan: Well, tell me, Mr. Doolittle, one of the principals here is Womack, isn't he?

Mr. J. William Doolittle: Yes, sir.

Justice William J. Brennan: Well, was he involved in other difficulties with obscene material (Voice Overlap)?

Mr. J. William Doolittle: Yes, sir.

He has been convicted of sending obscene matter through the mails.

Justice William J. Brennan: While where all of these difficulties of his -- these other difficulties they come to light about the time of this thing?

Mr. J. William Doolittle: Well, I believe that they are slightly in advance of -- of these.

Justice William J. Brennan: So that might -- might be some connection between the prior parties --?

Mr. J. William Doolittle: Oh, there's certainly might.

Oh, I -- I don't doubt that for a minute.

I'm not -- I'm not suggesting that necessarily -- that you must necessarily assume from the record that -- yes --

Justice William J. Brennan: But I -- I'm just wondering in the record I ci -- you just said nothing about it.

Mr. J. William Doolittle: No, the record really does not request one --

Justice William J. Brennan: One of these magazines might not have escaped any notice at all but for Womack's other difficulties.

Mr. J. William Doolittle: Quite possible, Mr. Justice.

Justice Felix Frankfurter: His name -- name appears at the postmaster's (Voice Overlap)

Mr. J. William Doolittle: No, his -- his name does not --

Justice Felix Frankfurter: (Voice Overlap)

Mr. J. William Doolittle: No, his name does not appear on them, but I think it's fair to say that the record taken as a whole would strongly suggest that the Post Office Department was aware of his activities and the fact that he was in fact a publisher of these magazines.

I don't -- I don't question that for a moment.

Now, these -- as I say, these magazines or samples of them were sent to the General Counsel's office in the Post Office Department here in Washington and he sent letters on April 5th and 7th, 1960 to Mr. Womack as President of the magazines stating that in his opinion they were non-mailable.

Now, an important fact as far as that particular event is concerned is that he also stated that in his opinion, they were not of sufficient value to require a hearing under the regulations and for that reason, he did not, at that time, file a complaint with the Post Office Department.

Now, this is pursuant to Section 203.1 of the Post Office regulations, which is sited on page 81 of our brief, where he is to make this determination on value, which may be appealed to the Judicial Officer.

Well, upon receipt of this letter, the publishers of these magazines did immediately appeal that decision to the Judicial Officer of the Post Office Department, that is, that decision that these were not of sufficient value to require a mailability proceeding and --

Unknown Speaker: Was it cited?

Mr. J. William Doolittle: The record does not reflect, and I'm not aware of any specific dividing line.

The regulations merely say that they must be or that -- that in order for these rules to be a -- applicable, they shall be of substantial value -- value or quantity.

Now, the Judicial Officer upon receiving this appeal did rule that they were of substantial value and quantity and that if the General Counsel wish -- wished to proceed further, he must immediately file a complaint, which he promptly did.

Now, two days prior to that, as Mr. Dietz has pointed out, counsel for these magazines did go into District Court to seek a temporary restraining order which was granted and ex --

Justice Felix Frankfurter: Mr. Doolittle, but when the General Counsel suggest has been sent by a company must set a hearing, was a hearing set?

Mr. J. William Doolittle: Well, now, as I say, his -- his initial determination was that they were not of substantial value or quantity.

Justice Felix Frankfurter: Yes, but he was overruled.

Mr. J. William Doolittle: He was overruled and upon his being overruled, he immediately filed a complaint.

Justice Felix Frankfurter: What -- what do they do to be overruled?

Mr. J. William Doolittle: He --

Justice Felix Frankfurter: Does the Government come in before he was overruled?

Mr. J. William Doolittle: The injunction -- the suit for an injunction was filed immediately prior or actually two days prior to the Judicial Off -- Officer's ruling that these were of substantial value, that's right.

Justice Felix Frankfurter: (Inaudible)

Mr. J. William Doolittle: Well, actually, as I recall the procedure on the 11th, a temporary restraining order was granted ex parte and the next day, the Post Office came in and -- and pointed out that they have mailability procedures and upon learning that, the District Judge then made any -- any further judicial action dependent upon the holding of the hearing.

Actually, what he said -- what he did was he denied a further injunction without prejudice to the right of the petitioners to come in if a hearing had not been completed by a date certain.

Justice Felix Frankfurter: I'm sorry, I have to trouble you more, when the temporary restraining order was granted, that of the restraining order against aligned acceptable to the mail, is that right?

Mr. J. William Doolittle: No, the temporary restraining order was against holding the material against --

Justice Felix Frankfurter: Holding?

Mr. J. William Doolittle: That's right, against preventing it from going through the mails.

Unknown Speaker: What part of it (Inaudible)

Justice Felix Frankfurter: Suppose it -- in other words, what does a quantity – the quantities of these magazines go through between doing the light of the temporary restraining order?

Mr. J. William Doolittle: No, they didn't upon -- upon the Government's becoming aware of this ruling, they immediately went in and -- and --

Justice Felix Frankfurter: I thought there was in day in between?

Mr. J. William Doolittle: No.

There's actually, I believe, there's only one day in between.

Justice Felix Frankfurter: Between -- between that one day, does -- does the (Inaudible) petitioner bring out (Inaudible) of Government as (Inaudible)?

Mr. J. William Doolittle: No, no.

Justice Felix Frankfurter: Alright.

Why does -- why does the (Inaudible)?

Justice William J. Brennan: Well, as I understand it that you were already held some quantity, did you not?

Mr. J. William Doolittle: Yes, there were --

Justice William J. Brennan: Because we're not moving to the mail.

Mr. J. William Doolittle: That's right.

There -- that the -- the --

Justice William J. Brennan: And when the restraint was served it would still not move through mails and you --

Justice Felix Frankfurter: I don't understand that, that's my problem, why not --

Mr. J. William Doolittle: Well, I -- I suggest that that's --

Justice Felix Frankfurter: Once the restraining order made it illegal if you send it to the mail, why would you send it through the mail?

Mr. J. William Doolittle: Well, I suggest that that's merely a question of -- of the very closeness of the time.

I -- I would guess that the Postmaster Ge -- the Postmaster in Alexandria may not even have heard that -- that the injunction has been issued until he also heard that the further judicial action was taken.

Justice Felix Frankfurter: (Voice Overlap) that the counsel for petitioner once they learned getting it through the mail during that 24 hours has been heard, these judicial matters (Inaudible)?

Mr. J. William Doolittle: Well, the Judicial Officers, I say, ordered that the General Counsel either file a complaint or ordered the material released.

On the 14th of April, he did file a complaint.

Petitioners responded on the 18th of April.

Hearing was set for the 21st of April and the Judicial Officer, it took three days after the hearings and the Judicial Officer issued his opinion on the 28th of April.

Justice Felix Frankfurter: Was it a contested hearing on the --

Mr. J. William Doolittle: Yes, it was.

It was a full adversary hearing.

I will -- when I'm dealing more specifically with the prior restraint point, I will allude to some other aspects of these proceedings but essentially that's the timing of the proceedings.

The testimony on the character -- characteristics and the impact of these publications was unusually comprehensive.

The Government had two psychiatrists, one of which testified by stipulation only and one psychologist plus several lay witnesses and petitioner had one psychiatrist and one psychotherapist.

The record that was produced by these witnesses makes it clear as to just what the intended and actual audience of these publications was.

The record for example contained concessions by a petitioner's publisher.

I should point out he was not a witness, but evidence that he had admitted that they were designed for and that they were read primarily by homosexual males.

The Government expert, the psycholo -- the psychiatrist and the psychologist testified that the only possible explanation for these magazines considering the way in which they were setup was a purpose to appeal to homosexuals and they testified that in fact the primary audience within their experience would in fact be male homosexuals plus adolescents with some homosexual tendencies.

It was conceded -- I should also point out that these witnesses -- these expert witnesses also testified that these magazines would have no appeal to the average normal man and more particularly, they certainly would not appeal to the prurient interest of the average normal man.

It was conceded not all sides offer that they would appeal to the prurient interest of homosexuals and this, I say, is specifically conceded by the petitioner in this case.

Now, I'm not going to go into detail concerning the testimony of the psychiatrist and psychologist concerning the significance of the various poses, costumes, props and arrangements in these pictures.

We've set that out in some detail at pages 5 to 10 of our brief.

I would, however, like to touch briefly upon the expert testimony concerning the impact of these magazines on their intended audience.

It's rather unusual in an obscenity case as you no doubt appreciate for there to be any sort of specific evidence as to the effect that pornography will have on its audience.

In the case of the average person, they just has not been establish clearly one way or the other that it does or does not have this effect or that and therefore, as I say it's particularly noteworthy that psychiatrists and psychologists were willing to come forward and testify as they did in this case.

I think it's fair to say that there was some disagreement on this -- in this record and I -- I will advert briefly to the extent of that -- that disagreement.

Now, there was testimony in -- in wi -- in light of which all of these facts have to be considered that homosexuals do have less adequate control over their reactions than do the normal person.

The Government witnesses also testified that these magazines could very well stimulate practicing homosexuals to engage in overt and indeed in unlawful homosexual activities.

There was testimony that the magazines would induce adolescents with latent homosexual tendencies to become fixed in a pattern of homosexual behavior and as to both of these categories that is to say adult male homosexuals and adolescents with homosexual tendencies.

The testimony was that the reaction of these magazines would arouse in them would make it more difficult to treat and to cure them.

Now, the -- there was not a significant difference of expert opinion on this -- on these various points to the extent that the defense psychiatrist and psychologist testified, I shouldn't say defense, the petitioner's psychiatrist and psychologist testified.

They merely said that magazines of this character could not turn one who had no homosexual tendencies into a homosexual.

They also said that by and large pictures do not have a great effect on most homosexuals although, they admitted that to the extent that a homosexual is subject to any stress or that -- that he is unable to get any relief from -- from his drives that then they might have some effect on him.

Here again, we've endeavored to set out the divergence to the extent that there is any of this testimony in our brief, but I think it's fair to say that there was not, the -- this testimony that I referred to is not specifically attacked by the petitioner's experts.

The Government's expert also testified that the appeal to the prurient interest of homosexuals was the dominant theme of these magazines.

Indeed, one of them testified that this was the only theme of these magazines and once one understands and appreciates the significance of the various costumes and poses and props in these pictures, this conclusion is fairly obvious just from looking at the magazines.

The Government experts further testified that these magazines had no redeeming qualities of any kind.

For example, they were unable to find any sort of intention to express ideas or to advocate a point of view such as it's apparently the controlling consideration in this Court's decision in One Incorporated against Olesen and Sunshine Publications against Summerfield.

Now, the petitioner has contended in -- in this connection of redeeming qualities that these magazine are -- magazines are physical culture magazines.

As I've indicated at least one commentator has characterized them as pseudo-physical culture magazines and I think it's relevant to notice the American Law Institute comment in the Model Penal Code that appeals to prurient interest should not escape condemnation merely because they circulate onto the banner of some cult.

But in point of fact, again an examination of these publications will, I think, fairly clearly demonstrate that there is very little about them that suggests physical culture.

One particular examper -- example I would cite is that the advertisements that appear in this magazine are invariably for photographs of males.

They -- they don't in any instance advertise physical culture equipment or weightlifting equipment or books as to how to improve your body.

The Government experts specifically denied that these were physical culture magazines in their dominant theme and even the petitioner's experts testified as to the marked and critical differences between these publications and what we might recall to have been -- wha -- what we might have expected the publications of the Charles' Atlas and the Bernarr MacFadden's.

For example, they noted that these magazines were notably lacking in --in text material contrary to these magazines of the past that -- and they noted as -- as a very critical distic -- distinction, the bizarreness and the fact that some of these would be wearing only shoes and that sort of -- that sort of thing.

They noted the general poor taste of the pictures that they say would not probably be found in the traditional physical culture magazines.

They also pointed to something which is fairly unavoidable, if you examine the magazines, and that is that the great many of the models that appear have very undistinguished physiques.

On the basis of this testimony taken as a whole, the Judicial Officer of the Post Office Department found that the dominant theme of the magazines was an appeal to the prurient interests of the actual and intended audience of these publications, namely male homosexuals and adolescents with homosexual tendencies and that they were therefore obscene and non-mailable and the court's below, they both agreed.

Now, this finding and its approval by the courts below, of course, assumed that obscenity is properly judged in relation to the average member of the audience of the publication and not the average person in the community.

And we submit that this was clearly correct.

Indeed, that this is the only test that is possible at the legislative ends of Congress in enacting this legislation and of the States generally in enacting obscenity legislation, are to be upheld.

It is almost universally recognized that the primary purpose of obscenity legislation is to ban material that may lead directly or indirectly to illegal or immoral conduct.

Now, it seems plain that if we are to be concerned with the effect that this sort of material is to have on conduct, we must consider those who are exposed to it and hence maybe affected by it, not to some group that will not come in contact with it at all.

The testimony in this case is, as I have indicated, that homosexuals will see and will be affected by this material whereas the average normal person by and large simply won't buy it.

I should like the Court to consider the anomaly of applying the average normal adult standard to all material irrespective of its audience.

Under the average normal adult standard that petitioners are contending for, pornographic matter appealing to the prurient interest of normal adults can be kept from them in spite of the fact that in relation to abnormal people, they have better defenses against being affected by this sort of thing and furthermore as a general rule or I should say more often than not they have a lawful outlet for any desires that are stimulated by this material or at least they have an outlet that is less socially condemned.

However, under the same average normal adult standard, pornographic matter deemed that's -- at the special tastes and interests of sexual deviants or of adolescents cannot be controlled in spite of the fact that is the evidence in this case, indicated they are more likely to be affected by it.

They have a lower threshold as far as the effect on them is concerned and that they do not by and large have as much of an available outlet for any -- any desires that maybe stimulated.

Thus, those most in need of protection against the pornography of the panders of pornography would be denied it.

I suggest quite the contrary of what Mr. Dietz suggested -- in suggesting that homosexuals are made second class citizens.

There is an analysis that I've gone through, it suggest that the average normal adult would be made second class citizen since he could be kept from pornography, but the homosexual could not.

Now, I do want to cover one point and that is that the adoption of the standard would certainly not be an adoption of the Hicklin Test where all material is to be judged by its effect on the most susceptible person.

We're talking here about material that is aimed at a special audience, that is read by a special audience in matter, that this directed to the average audience as most material is and would of course be judged accordingly.

In view of this consideration, most of the enlighten commentators of today have urged that the -- that pornography, that obscenity be judged in terms of its audience.

And I will cite we've referred to in our brief simply the American Law Institute's Model Penal Code, Lockhart and McClure, who are recognized as the leading authorities in this country on obscenity and the law and in addition, the English and their Obscene Publications Act of 1959 also adopted this standard at the urging of lea -- leading literary fi -- figures in England.

We submit further that this standard, judging material in relation to its audience, is entirely consistent with what this Court laid down as the definition of obscenity in the Roth case.

It's significant to note the trial court charge in Roth, which was approved by this Court, was articulated in terms of the effect upon all those whom it is likely to reach.

And of course, in the Roth case, there was no contention that this -- the material in that case was aimed at anything but the general public and therefore, this didn't create any sort of stir but as I say that was in the Roth charge and in addition, in many of the cases cited by this Court in Roth, the standard of the audience to which the publication -- to which the material was directed was the standard used by the Court that we've set out in our brief in page 30 that some of those cases and the language that the Courts used in employing that standard.

I think one further point that is rather important in judging the audience standard is that it has been rather persuasively argued that the adoption of an audience standard as oppose to an average adult standard is perhaps the key to intelligent, liberal and effective judging of obscenity.

This is strongly urged by Lockhart and McClure.

They point out, for example, that such standard would tend to protect works of some literary narrative such as for example, Lady Chatterley's Lover for magazines of some literary merit or ordinarily deemed and consumed primarily by people somewhat more sophisticated than the average normal adult.

On the other hand, employment of this standard does leave open the possibility of proceeding against the pander who goes into the schoolyard to purvey these very same books to young children in order to stimulate their sexual interest.

In short, we strongly urge that where the evidence shows the material was designed primarily for and consumed primarily by a special audience, its obscenity must be judged in relation to that audience and we further urge that in this case, the Judicial Officer and the courts below properly employed that standard in concluding that this material was non-mailable.

Now, if the Court's indulgence in order to make sure that I covered the prior restraint point, I shall not argue the second point in our brief and it's also the second point in the petitioner's brief concerning the second and independent basis for concluding that this material is non-mailable and that is, that it contained information as to where obscene material could be obtained that is, it primarily turns on the facts in both of the brief we've set out the fact in detail and I don't think that anything would be gained by argument on the point here.

Justice John M. Harlan: (Inaudible)

Mr. J. William Doolittle: The -- this material here at Court you mean?

Justice John M. Harlan: Yes.

Mr. J. William Doolittle: Yes it is.

Justice John M. Harlan: (Inaudible)

Mr. J. William Doolittle: That's right.

It relates to material that could be obtained from the advertisers.

That's right.

Justice William J. Brennan: What I understand that --that material was seized rather than --

Mr. J. William Doolittle: Well, part of it was.

Part -- pictures of nude males, completely nude, undraped males were obtained through the mails from some of these advertisers by postal inspectors and also by one private citizen who testified at the hearing.

Beyond that, what the hearing officer -- the Judicial Officer characterized as hardcore pornography an extremely gross material was seized in local police raids, that's right.

Justice John M. Harlan: (Inaudible)

Mr. J. William Doolittle: Well, we -- we believe and we've set out the facts on the basis of -- on which our belief is founded that the petitioners plainly had knowledge or at the very least were chargeable with knowledge of what their advertisers were putting out.

In the first place, they represent in three or four of these magazines.

They represent familiarity with the work of their advertisers and urge the various subscribers to the magazine to send their money into these photographers for pictures.

Secondly, the record is replete with evidence of the involvement of petitioner's publisher with purveyors of homose -- of -- obscenity among homosexuals including his offer to exchange what he calls sucker lists among the various other photographic studios, indeed his own conviction for sending obscenity through the mails such that it -- it defies credulity that he was not aware of what these various studios were doing.

Furthermore, he was warned a number of times that the possibility that the material -- that his advertisers were sending obscene materials through the mail and finally, we suggest that if you just examine these advertisements themselves, you'll see that they rather strongly indicate that obscene material could be obtained just to suggest one example, one of the pictures has a -- one of the magazines in the advertisements has a picture of a young boy with the parts of the picture that would render it objectionable, very obviously retouched, very obviously removed and then the text below the picture offers “an original print of this photo” and is rather clear of what the advertiser had in mind in making that particular offer.

A contention is made and I shall devote the remainder of my argument to it that the procedures followed by the Post Office Department constitute a prior restraint in violation of the First Amendment in that the Postmaster General refused to carry these matters -- these magazines pending a determination of their mailability. After very briefly going through the procedure that was followed, I will argue that the procedure here was required by Congress and that it is not barred by the Constitution.

The procedures are set forth at the back of our brief and I've already indicated to some extent what they consist of.

I would like to add that in this case, a slight variation in the procedures was agreed upon by stipulation in order that they be expedited and I might say that the pro -- that the regulations which do require expedition at each stage of the proceedings expressly provide for waiver of any part of the procedure in order that they be moved along and here, by stipulation, the -- a hearing before a hearing examiner was waived.

Ordinarily, there's a hearing before a hearing examiner and then this is final unless it appealed to the Judicial Officer.

Here by stipulation, the hear -- the hearing was originally held before the Judicial Officer so that one stage of the proceedings was eliminated in order to complete the proceeding as quickly as possible.

Justice Potter Stewart: Mr. Doolittle, am I right in my understanding that this entire administrative apparatus has is its only foundation, this one line in a -- in a criminal statute 18 U.S. Code 1461?

Mr. J. William Doolittle: Well, no, I certainly would not say that's the only basis for it.

Justice Potter Stewart: Where -- where's --

Mr. J. William Doolittle: That's -- well, there is -- there actually there is other statutory basis for it.

It -- it is a consideration of a number of statutes taken together.

The other statute I would cite to you in that regard is set forth on page 61 of our brief where it's provided that non-mailable matter which reaches the opposite devi -- delivery shall be disposed off as the Postmaster General directs indicating, at we think quite directly that Congress intended that such matter be removed from the mail.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of J. William Doolittle

Chief Justice Earl Warren: -- Manual Enterprises, Incorporated, et al., Petitioner, versus J. Edward Day, Postmaster General of the United States.

Mr. Doolittle, you may continue your argument.

Mr. J. William Doolittle: Mr. Chief Justice, may it please the Court.

Before I begin my argument this morning, I should like briefly to clarify the circumstances chronologically concerning the initi -- initiation of these mailability proceedings, particularly in response to questions yesterday of Mr. Justice Frankfurter and Mr. Justice Brennan.

Since these facts are not in the record and since I'm not sure that they're completely clear, I do want to make sure that there's no confusion with respect to them.

Now, you recall as pointed out yesterday that the General Counsel of the Post Office originally informed the mailer, in this case, petitioner, that in his opinion, the matter was nonmailable and also that it was not of sufficient value to warrant a hearing.

Now on the 11th of April, the mailer appealed this decision to the Judicial Officer of the Post Office Department according to regulations, informing him that the magazines that actually been deposited in the mail were not the only thing at issue.

These were only part of the issue of the magazines and that therefore there were great many more that would be affected by a determination of nonmailability and on the basss of that representation, the judicial office held they were sufficient value to warranty hearing.

And he made that decision on the same day, April 11th and it was also on that same day that mailer when into District Court and got ex parte, a temporary restraining order, so that these things all happened on -- on the same day.

And then it was on the morning of April 12, the following day, the Government went in and had this temporary restraining order stayed in order that they might respond and eventually, argument was held and the complaint was dismissed without prejudice to petitioner's going back in if the administrator proceedings were not completed by a date certain.

Now, as we have pointed out in our brief, there is no basis at all in this record for the suggestion that the mailer, the petitioner here, in anyway force the Post Office Department to hold a hearing.

The Post Office regulations provide for a hearing, procedures prescribed in those regulations were followed in every respect in this case.

Chief Justice Earl Warren: What was the date Mr. Doolittle of the mailing, did you say?

Mr. J. William Doolittle: The mailing was actually the 25th of March.

Chief Justice Earl Warren: The 25th of March.

Yes, very well.

Mr. J. William Doolittle: The -- these proceedings did go and did go along in their normal course in this case and neither before the Post Office nor in the courts below did this petitioner ever contend that there was any procedural defect or irregularity of any kind.

Justice John M. Harlan: What you are saying I gather is that the granting of a hearing here was not the result of the injunction that was normal administrative process.

Mr. J. William Doolittle: Quite so Mr. Justice Harlan --

Justice John M. Harlan: And it's just a circumstance that the hearing in the injunction was -- happened on the same day, that's you argument?

Mr. J. William Doolittle: That is right.

Unknown Speaker: That is that the (Inaudible)

Mr. J. William Doolittle: Well, the record doesn't reflect that.

Frankly, I can't state certainly that the Judicial Officer was unaware.

Now as I say, the temporary restraining order which was obtained on the 11th of April was obtained ex parte and the representations that mailer made in his request for a hearing did contribute knowledge to Judicial Officer that would --

Justice Felix Frankfurter: But it presented a new fact, namely that there was --

Mr. J. William Doolittle: Yes, indeed.

Justice Felix Frankfurter: -- that there was new volume of magazines unlike the actual offering that had been made and which had been held at --

Mr. J. William Doolittle: Precisely so Mr. Justice, precisely so.

Now, I should like to argue it first that procedures employed by the Post Office Department were required by Congress, and secondly that they did not constitute an unconstitutional prior restraint.

In 1921, in the dissenting opinion in the Milwaukee Publishing Company against Burleson, Mr. Justice Brandeis made this statement.

As a matter of the administration, the Postmaster General through his subordinates rejects matter offered for mailing or removes matter already in the mail which in his judgment is unmailable.

The existence in the Postmaster General of the power to do this cannot be doubted and we submit that that statement is as valid today that it was 40 years ago when Mr. Justice Brandeis made it.

The 18 U.S.C. 1461, which was first enacted in 1865, unequivocally declares that obscenity and I quote, Is declared to be nonmailable matter and shall not be convey in the mails or deliver it from any Post Office or by any letter carrier.

It seems to me clear from the face of the statute as well as from the legislative history which we have set forth on pages 59 to 61 of our brief.

Justice Felix Frankfurter: Does that -- does that language continue to the --

Mr. J. William Doolittle: Well that's not the language as it originally appeared.

That's the language at the present and as far -- as of the time this (Voice Overlap) --

Justice Felix Frankfurter: Was that the language that was found in the Milwaukee case?

Mr. J. William Doolittle: I am frankly not certain that it was identical.

The original language was very close.

It merely said that this matter is nonmailabe and shall not be admitted to mails.

Justice Felix Frankfurter: That (Voice Overlap) at the time the Milwaukee case, there was not a statute which in terms --

Mr. J. William Doolittle: There was -- there was not a statute in --

Justice Felix Frankfurter: -- anymore that there is today.

Mr. J. William Doolittle: No.

Justice Felix Frankfurter: And the file to which Mr. Justice Brandeis referred was drawn and partly as an implication from the statute as the matters nonmailable therefore, it's not to be mailed and partly also from the powers given to the Postmaster General to make regulations to be effective.

Mr. J. William Doolittle: That is right.

The statute was not significantly different at that time.

In fact, it has not been significantly different at any stage of its history.

Justice Potter Stewart: Title 18 is the -- is the criminal code.

Mr. J. William Doolittle: That's right Mr. Justice although as this statute was originally enacted, it was enacted as one section of a postal law.

It --

Justice Potter Stewart: That -- might -- make a difference -- where was it located at the time that Mr. Justice Brandeis made the remark you posed?

Mr. J. William Doolittle: I do not know frankly --

Justice Potter Stewart: Because it is now part of the criminal code.

Mr. J. William Doolittle: That is correct.

Justice Potter Stewart: -- it's criminal offences.

It's not in anything to do with the Post Office as such.

Mr. J. William Doolittle: Well, but as I say, as -- as enacted, it was a part of a General Postal Law and the revisers of course put it in the code.

I -- it's pointed out to me that that in fact this statute also appears primarily by reference in 39 U.S.C.

There is a general provisions stating that the various items that are declared nonmailable by the various provisions in 18 U.S.C. are declared to be nonmailable.

Unknown Speaker: (Inaudible)

Mr. J. William Doolittle: Yes it does appear in our brief.

We suggest too that this power is confirmed by various other legislations such as Section 39 U.S.C. 4001, which I've already referred to.

Now, 4001 (a) is the provision that declares that various items will be nonmailable and then 4001 (b) provides that mail that is not refused by the post -- local Post Office when it is offered, but managed to reach the offer -- office of delivery shall be disposed of as the Postmaster General shall direct.

Now, furthermore, this provision is part if comprehensives scheme in which a variety of matters, all of which is referred to in Section 4001 (a) by reference and including such items as explosives and disease germs, are declare to be nonmailable matter and precisely the same language.

Justice Potter Stewart: Well now where in -- in Tittle 18 of the code are such things that made criminal offences or are they not?

Mr. J. William Doolittle: The items are referred to were -- in 18 U.S.C. 1760, Sections --

Justice Potter Stewart: Explosives and so on.

Mr. J. William Doolittle: Sir?

Justice Potter Stewart: Explosives and so on?

Mr. J. William Doolittle: That's right.

Justice Potter Stewart: 7 -- 18 U.S.C.

Mr. J. William Doolittle: 18 U.S.C. 17 sir.

Justice Potter Stewart: Thank you.

Justice Felix Frankfurter: Is there Mr. Doolittle, to reflect my recollection or rather inform my ignorance, is there a specific statute authorizing the Postmaster General to exclude the matters used to? (Inaudible) to use the mail or -- scheme to defraud or --

Mr. J. William Doolittle: Yes sir.

Justice Felix Frankfurter: Is that right?

Mr. J. William Doolittle: There -- there are -- there is a specific provision on fraudulent material (Inaudible)

Justice Felix Frankfurter: Saying, you should not carry, fraudulent material?

Mr. J. William Doolittle: Well, in -- in the same terms of this statute --

Justice Felix Frankfurter: But I -- that -- my question was, is there in terms (Voice Overlap) --

Mr. J. William Doolittle: In no more --

Justice Felix Frankfurter: (Voice Overlap)

Mr. J. William Doolittle: In no more terms than this.

Justice Felix Frankfurter: (Inaudible) as to matter promoting fraudulent scheme, is there in terms.

Mr. J. William Doolittle: In no more terms than this statute Mr. Justice.

Justice Felix Frankfurter: I -- I don't follow that in terms.

Term for a hundred years, this file hasn't been challenged from the Second -- from the Postmaster General, but it has never been given to him in terms by Government -- or by in terms I mean specifically.

Mr. J. William Doolittle: By saying the Postmaster General must be give.

Justice Felix Frankfurter: (Voice Overlap)

Mr. J. William Doolittle: Yes, sir.

Justice Felix Frankfurter: It's all drawn from the fact that this matter is mailable.

The Postmaster General be engaged carrying mail, doesn't carry nonmailable --

Mr. J. William Doolittle: Well, we suggest it's a little stronger than just nonmailable.

The statute says it shall not be conveyed in the mails, and shall not be delivered from any Post Office.

We feel that that is clearly a --

Justice Felix Frankfurter: But if the Post -- the Postmaster General is charged with carrying mail and if matters presented that shall not be mailed and shall not be delivered then for my purposes, there isn't any stronger, there isn't any weak and then he'd be told and he shall not carry it.

Isn't that the -- hasn't that been the law for a hundred years?

Mr. J. William Doolittle: That it has been and as far as we know, it's never been challenged.

Justice William O. Douglas: But there are some qualifications made by two cases I think.

Mr. J. William Doolittle: I know of no qualification made by any --

Justice Felix Frankfurter: The qualification is --

Mr. J. William Doolittle: -- decision of this Court.

Justice Felix Frankfurter: The qualification is that in specific instances, he may have exceeded his power because of the nature of the materials or because acting on past nonmailability, he excluded future presentation.

Mr. J. William Doolittle: Well Mr. Justice --

Justice Felix Frankfurter: That's a very different problem.

Mr. J. William Doolittle: Mr. Justice Douglas -- of course, there had been qualifications in the area of granting or denying, second class mailing privileges, but of course that's an entirely different question.

As you may recall from the Hannegan case --

Justice William O. Douglas: I beg pardon.

Mr. J. William Doolittle: -- there you were dealing with something that was conceded to be mailable under these provisions, conceded to be mailable under the -- the nonmailability provisions, but in spite of that fact, a second class mailing privilege was denied and this Court speaking through your opinion said that could not be done.

Now, we submit that if the Post Office authorities are thus require to exclude obscenity from the mails, it must also follow that they must refuse to carry questionable matter pending a determines -- determination as to whether or not it is mailable because the time required for the transmission of mail is always going to be less than the time within which a full and fair hearing with adequate notice can be conducted and if the material must be allowed that can be conducted in the mails during this hearing, the proceedings to determine mailability would variably become moot and the Post Office would be without any power whatsoever to enforce this congressional declaration of nonmailability.

It would also be required not only to violate this requirement of Congress, but also to a -- in the commission of the crime of conducting of sending obscene matter through the mails.

And now, in addition it has always, always been the consistent practice of the Post Office Department to refuse to carry matter deemed to be obscene, unless and until it was authoritatively determined to be mailable and we've set forth the details of that administrative practice in our brief on pages 63 and 64 and this has been true as I say from the very outset.

This longstanding interpretation, developed by those who were charged with the responsibility of administering this law and then in -- interpretation which as we point out in our brief, Congress has been made fully aware of, we submit would be entitled the great weight even if the statute were as clear on its face and in its history as this one is.

And we submit that in view of the wording, the history and the context of 18 U.S.C. 1461 and of Post Office Department's consistent and longstanding administrative interpretation of it, there can be no serious question of the Post Office -- of the Postmaster General's authority to refuse to carry matter deemed obscene pending a determination as to whether it is obscene or not.

I might add that over the years.

In a long serious of case -- cases beginning with ex parte Jackson in 1877, this Court has made clear it manifest assumption that the Postmaster General did have this power.

Mr. Justice Brandeis' statement albeit in dissenting opinion, was but one instance of -- of many and which this Court has indicated its assumption on that point.

We've set forth this --

Justice Felix Frankfurter: Well, you say albeit in the dissenting opinion a fortiori.

Mr. J. William Doolittle: Well, that's true.

That's right and these cases we have set forth and discussed in pages 75 to 79 of our brief.

Now on the point prior restraint, the contention that the procedures involved in this case, did involve a prior restraint go to fact that as I've indicated the Postmaster General refuses to carry matter deemed, obscene pending a determination of its mailability, we submit that this contention is wholly without merit.

In the first place, this procedure does not have prior impact within the meaning of the prior restraint doctrine, and this is principally for the reason that it operates not prior to publication of the material in question, but only after it has been printed and offered to the public.

There is nothing under this procedure that need be submitted to the authorities in advance.

The onus is on the postal officials to initiate any action that is to be taken and the administrative determination involved in these cases has no future effect.

It covers only the material that has already been published, deposited in the mails and then determined to be obscene.

Thus, the procedure employed in these cases is wholly free from the vices that caused this Court condemned the procedures, for example that were issue in Near against Minnesota as prior restraint.

In the second place, we submit that this procedure does not work really a fully effective restraint within the meaning of the cases this Court has decided.

In Kingsley Books against Brown in 354 US, the Court upheld does not involving a prior restraint an injunction against the sale and distribution of allegedly obscene matter pending a determination of its obscenity.

Now, the restraint involved in these cases of course far less severe.

It may -- it -- the allegedly obscene matter in this case is merely denied the use of the mails pending that determination.

The mailer is free to sale and distributes this material in any other way he's able to do free and I suggest this is important, free from the possibility to hazard to contempt prosecution and in this case, we submit that the feasibility of this alternative is really quite clear.

These magazines as the record indicates are not by and large are sent through the mails to individual subscribers.

They are largely sent in bulk to news dealers who then sell them on newsstands and it would seem that they could very easily be shipped by express or some other type of carrier.

Now, we --

Justice John M. Harlan: Can I ask you question at this point?

The pictures that -- if you look at these pictures, look at the magazines on their face, forget this very testimony for a moment and you look at the documents that I asked you about yesterday that were obtained from other purveyors or other obscenely, you might draw a different conclusions just looking at those documents on their face and what I -- the question I want to put to you is your case as far as the magazines are concerned depends basically, does it not, on the interpretation which these psychiatrists or whatever you call, and gave to the real -- the exposure that they gave, that you claim they gave to this (Inaudible) these documents as they might effect this unfortunate class of people in the community.

Mr. J. William Doolittle: Essentially, that's true Mr. Justice.

We -- we do not content that (Voice Overlap) to the average man.

Justice John M. Harlan: (Voice Overlap)

Mr. J. William Doolittle: Well, I think -- I -- I think it would be fair to say that they were somewhat offensive on their face.

Whether or not, they could be said on their face to be obscene, I don't know.

But I --

Justice John M. Harlan: Well, there (Voice Overlap) character than the other one.

Mr. J. William Doolittle: Then -- the pictures that were --

Justice John M. Harlan: The different character than of this miscellaneous picture --

Mr. J. William Doolittle: Oh, quite so.

Justice John M. Harlan: -- from which your opponent disassociates his claim?

Mr. J. William Doolittle: Yes, sir of course.

Justice John M. Harlan: I understand.

Mr. J. William Doolittle: Now, we certainly recognized that there is some measure of restraint involved in denying the use of the mails to this mater -- material pending a determination of its obscenity, but we submit that to the extent at these procedures do involve some restraint on the publisher.

They are surrounded by sufficient procedural safeguards as not to interfere with the free flow of constitutionally protected non-obscene matter.

The guidelines to be applied in attempting to determine whether or not this is so had been largely spelled out by this Court, by the contrast between Marcus against Search Warrants in 367 US and the Kingsley Books case that I have discussed.

Now, I think it's important to point out that in Kingsley, the procedures there were being balanced against and injunction against sell and distribution.

In Marcus, there were being balanced against complete seizure of the materials, here against refusal to carry in the mail.

We submit that while the fact that some restraint is involved does necessitate some safeguards, the facts that it is only refusal to carry in the mails does there significantly on what will constitute reasonable safeguards in this instance.

Now, the Post Office procedures in this case suffer from none of the critical defects that the Court identified in the procedures in the Marcus case.

In Marcus, the proceedings were instituted on the basis of conclusory assertions of a single policeman.

Here, the questionable matter is initially pass on by a local Postmaster and then by legally trained Senior Administrative official, fully schooled in the decisions of this Court and of a lower courts in the law of obscenity, before any mailability action is instituted.

In Marcus, there was no identification of the specific matter being proceeded against.

Here of course, the material that was at was an issue was identified fully and completely from beginning to end and there was not possibility of the findings going beyond the material that actually was in issue.

Justice Hugo L. Black: May I ask you what the -- to your knowledge has been any other evolving, developing class of experts in this line besides psychiatrists?

Mr. J. William Doolittle: Well, beyond psychiatrists and psychologists I know of no other body of -- of experts in determining these particular facts.

Justice William O. Douglas: Has the Post Office developed some experts (Inaudible)?

Mr. J. William Doolittle: I don't believe that they have their own body of expert on this, no.

You mean among psychiatrists and psychologists?

Justice Hugo L. Black: Anybody.

Mr. J. William Doolittle: Well --

Justice Hugo L. Black: What about the FBI?

Doesn't it have some experts to testify on this field?

Mr. J. William Doolittle: I would not suppose on what is obscene.

The FBI might be called upon in an individual case as having developed facts on investigation, but, in point of fact most of the facts that are necessary to be established in this sort of case are established by postal inspectors in point of fact in this case, there was the testimony of one postal -- live postal inspector and then also some stipulated testimony of other postal inspectors.

Justice William O. Douglas: In -- in this case (Inaudible) from Missouri where they (Inaudible) the policeman to --

Mr. J. William Doolittle: A search Warrant, that's right.

Justice William O. Douglas: -- to be presented?

Mr. J. William Doolittle: That's right.

Justice William O. Douglas: How do -- how do you develop (Inaudible)?

Justice John M. Harlan: Could have I put another question to you?

Mr. J. William Doolittle: Yes, sir.

Justice John M. Harlan: Would you -- without expert testimony in regards to magazine, would you think these were excludable?

Could you defend this case on that -- without expert testimony?

Mr. J. William Doolittle: Without any expert testimony --

Justice John M. Harlan: From the magazine, I'm sorry.

Mr. J. William Doolittle: I must say it would be rather difficult.

Perhaps a group of the audience to which these magazines were directed could be brought in to testify on what -- what standards might be appropriate and what effect these things might have, but the difficulties of that are obvious and certainly, the experts' testimony was extremely important in -- in developing the record that was developed here.

Justice Hugo L. Black: What other class of materials are nonmailable besides those described as filthy and indecent and so forth?

Mr. J. William Doolittle: In this particular --

Justice Hugo L. Black: In any field, what other -- are the -- what other classes of literature are declared to be nonmailabe?

Mr. J. William Doolittle: Fraudulent material, material inciting to treason, rebellion.

Justice Hugo L. Black: Now, I suppose in that kind of case, if isn't true on its face, you could use the FBI as experts to show what that meant, couldn't you?

Mr. J. William Doolittle: Well not -- I wouldn't suggest not what it meant Mr. Justice, perhaps something that didn't --

Justice Hugo L. Black: To whom -- to whom it might appeal, which class of the individual it --

Mr. J. William Doolittle: I --

Justice Hugo L. Black: -- might appeal to?

Mr. J. William Doolittle: I can well imagine the case in which that would be appropriated sir, that that -- a part -- particular kinds of incitations might be more significant when directed towrads certain --

Justice Potter Stewart: Example if you were in a foreign language, you might need an interpreter to tell you what it meant.

Mr. J. William Doolittle: Yes sir.

That's what it is.

Justice Hugo L. Black: But this is -- as I understand it then, if there's some kind of political document that they would hold nonmailable, they could look to see if it might and still some -- and still some suppressive desire in somebody and through that by experts.

Mr. J. William Doolittle: Well, as I say, I can imagine the case in which that -- in which that would be appropriate, certainly not in a typically --

Justice Hugo L. Black: How long has it been the custom to relay on so called experts as to whether something was obscene and filthy, rather than relay on the document itself?

Mr. J. William Doolittle: Well, I think there --

Justice Hugo L. Black: Do you know that?

Mr. J. William Doolittle: I think that -- I think that the development of this in the courts generally has taken place over the last 25 or 30 years as -- as any kind of documents has --

Justice Hugo L. Black: Experts on obscenity?

Mr. J. William Doolittle: Well, it's not a question of experts on obscenity.

It's experts on the effects that particular material might have on people.

I don't think it's ever been in case and it certainly it was not case here that the psychiatrists or psychologists said,this material is obscene.

They -- they explained to the Judicial Officer who is charged with making that decision what the effects of these items would be.

They didn't (Voice Overlap) they didn't arrive at any conclusion on the subject.

Justice Hugo L. Black: It claims the judge -- if it's a judge trying the case that although it doesn't seem obscene to him, it might -- doesn't seem like it was (Inaudible) any wrong desires on him if there are certainly types of people that they have experts no it might?

Mr. J. William Doolittle: That's right.

That's exactly the sort of case in which that testimony would be appropriate.

Justice William O. Douglas: These things -- I beg you pardon.

Chief Justice Earl Warren: Mr. Doolittle, but in this case there was the plaintiff not only admitted that he took pride on the fact that this was beamed toward a certain class of deviates, did he not?

Mr. J. William Doolittle: Well, --

Chief Justice Earl Warren: And having -- having done that all it was necessary to show, it seemed to me would be what -- what the effect was on that class of deviates.

Mr. J. William Doolittle: In essence I think that's exactly right.

Chief Justice Earl Warren: And that a -- that experts' testimony would probably be very appropriate (Voice Overlap)

Mr. J. William Doolittle: I think that's right Mr. Chief Justice.

Justice Hugo L. Black: That is given by expert?

Mr. J. William Doolittle: Well once again I -- I emphasize that they themselves are not making this decision.

They merely providing the finders of fact in pointers --

Justice Hugo L. Black: And providing a basis on which the judge can rationalize that.

Mr. J. William Doolittle: On -- on the basis of which he can achieve a ration result I would say.

Justice William O. Douglas: I suppose that make to us the ultimate importance (Inaudible)

Mr. J. William Doolittle: Well, I think that it's necessary for this Court to look very closely at the decisions that are made.

Justice William O. Douglas: We're doing pretty good job (Inaudible)

Justice Felix Frankfurter: Is this testimony by these experts any different than the testimony that these same experts may give in proceedings for the commitment of -- of these people for medical health?

Mr. J. William Doolittle: No, I should say not.

Justice Felix Frankfurter: (Voice Overlap) came up --

Mr. J. William Doolittle: -- indeed this --

Justice Felix Frankfurter: -- appropriate.

Mr. J. William Doolittle: This -- these particular experts were specially qualified in dealing with homosexuals and persons of -- with homosexual tendencies (Voice Overlap) --

Justice Felix Frankfurter: And those determinations are made everyday by the courts all over the United States --

Mr. J. William Doolittle: Of course, they are.

Justice Felix Frankfurter: -- with reference of those issues, on this kind of evidence which a court or a jury may reject.

Mr. J. William Doolittle: Indeed so Mr. Justice.

Justice Hugo L. Black: Would you mind explaining to me in your words how do you analogize this to that situation?

Mr. J. William Doolittle: Well, in any determination, in any court proceeding where the trier must affect human rights on the basis of testimony, on the basis of evidence, he is going to have to have a little bit of help in determining to -- determining exactly what the facts are in case --

Justice Hugo L. Black: Whether person is sane or insane?

Mr. J. William Doolittle: Well that's -- that's the conclusion that he must make in that case.

In this case, the trier must make a determination as to whether or not the matter is obscene or not obscene --

Justice Hugo L. Black: Well certain --

Mr. J. William Doolittle: -- and there are two that need some help.

Justice Hugo L. Black: Well there are certain kinds of pictures will have certain effect on certain kind of people.

Mr. J. William Doolittle: Well, that's the first level of determination.

Of course from that, it must follow that the material is either obscene or not obscene.

Justice Felix Frankfurter: But if a man would admit --

Mr. J. William Doolittle: But I suggest to the Court that that the trier here very much needs some help and it would be -- it seems to me --

Justice Hugo L. Black: What the people need help if the thing is so bad, it's so obscene, it so nasty and so filthy.

They can't look at and tell them.

Do we have to have censorship against them to have every kind of literature tested by experts to see how is going to effect somebody --

Mr. J. William Doolittle: Oh I suggest that it --

Justice Hugo L. Black: Well, do we have a censor, why should we just have open censor without rationalizing it in that fashion?

Mr. J. William Doolittle: Oh I suggest in a great many cases, perhaps even in the bulk of cases, this will not be necessary.

As I pointed out, this is very unusual case in which the average person cannot be expected to appreciate really of the great effect to this kind of material can have on human beings.

Justice Potter Stewart: So where do you stop?

I suppose there are some people who might be adversely affected by picture of the empire state building.

Mr. J. William Doolittle: Were we stop is pretty much determined by the standard that I've argued in favor of and that is we're talking about material that is beamed to a particular audience.

Now, I suppose that if it can be established that material that would be inclined to stimulate that kind person was being intentionally beamed at him in an effort to stimulate him, maybe a good case will be made out, but the point is, we're not talking again about the Regina against Hicklin notion of the most susceptible person in the community.

We're talking about material that is aimed, that is beamed, that is designed for a particular kind of person, just as most material is aimed, beamed and designed at the average public and therefore, maybe judged by the standard to be average public.

But where you've got something that's aimed that is special class, such as the deviates in this case or to children, we submit that then it must be judged in terms of those people at whom it is -- it is actually aimed and by whom that would be actually read.

Chief Justice Earl Warren: I suppose Mr. Doolitte if -- if this was mailed to the universe -- to some university medical school for -- for scientific study in this -- in this area, there would be no right to be --

Mr. J. William Doolittle: No question at all.

Chief Justice Earl Warren: -- there would be no right in -- and the Postmaster General could do it but where -- where it's admitted that this is beamed toward one particular group of -- of deviates that it does come within your rule, is that your position?

Mr. J. William Doolittle: That's right.

The perfect example is the -- is the so called Kinsey case 31 photog -- the United States against 31 photographs which we've cited in brief, where some unquestionably hardcore photography was brought in the -- attempted to be brought in to this country by the Institute for Sex Research that so called Kinsey Institute.

Justice Hugo L. Black: How do you know of some of these were not directed to college professors and isn't true that the -- that the Post Office Department can pick out who shall receive certain literature?

Mr. J. William Doolittle: Well, --

Justice Hugo L. Black: Is that your argument?

Mr. J. William Doolittle: No, no.

It's certainly is not.

In this particular case, it was -- the testimony is really quite extensive as to the purposes to which the institute planned to use --

Justice Hugo L. Black: (Voice Overlap) as I understand you to say that the Postmaster has the right to decide what person might be adversity affected by some picture nor some writings and the decline to deliver that the -- that person because of that fact (Voice Overlap)?

Mr. J. William Doolittle: He has that right Mr. Justice Black only as I've tried to indicate in this case when that material is provably being beamed or aimed at a particular a class, he can't just take the average material that's being sent out and say -- say, I think this is going to hurt little children.

Now, this has been clearly established by this Court that he cannot do that.

Justice Potter Stewart: To whom were these addressed in fact?

Mr. J. William Doolittle: These particular magazines --

Justice Potter Stewart: Yes.

Mr. J. William Doolittle: -- are beamed according to the --

Justice Potter Stewart: To whom where they addressed where they were put in the mail as a matter of fact?

Mr. J. William Doolittle: Well this were -- as the matter of fact --

Justice Potter Stewart: (Voice Overlap)

Mr. J. William Doolittle: These were sent to news dealers.

Justice Potter Stewart: To general news dealers?

Mr. J. William Doolittle: Yes.

Justice William J. Brennan: Well then how do we know that the audience is the buyer to these magazines would be the deviates?

Mr. J. William Doolittle: Because we have concessions on the part of the publishers of these magazines.

Justice Hugo L. Black: What -- what's the concession?

Mr. J. William Doolittle: The -- the testimony in this record shows that the publisher of these magazines admitted to postal authority that these magazines were beamed, designed primarily for homosexuals.

Justice William J. Brennan: Well now -- what -- what precisely --

Mr. J. William Doolittle: Yes.

Justice William J. Brennan: What precisely did he say -- as he (Inaudible).

Mr. J. William Doolittle: Well on page 10 of our brief, we have summarized the testimony out.

The specific items in the record are here on page 57.

This is a postal official -- a postal inspector testifying.

Justice William J. Brennan: 57 (Inaudible)

Mr. J. William Doolittle: That's right and can you state what that comment was?

He was substantially, it was substantially to defect that as adults, we don't have to kid each other.

We know who is getting these magazines and pictures of the type that he was then selling.

Did he say you -- he knew that would buying it, yes and did he say who they would be, homosexuals.

Chief Justice Earl Warren: Didn't -- didn't the publisher also write a letter to that effect --

Mr. J. William Doolittle: Well --

Chief Justice Earl Warren: -- admitting that.

Mr. J. William Doolittle: The letter which appears as exhibit G and in this record is at -- where is that --

Justice William J. Brennan: I take it Mr. Doolittle that in fact the evidence was that all of these were just to go colleges, you wouldn't be here with you?

Mr. J. William Doolittle: I doubted very much it would --

Justice William J. Brennan: Well, I mean would you --

Mr. J. William Doolittle: I -- I don't suppose I would.

Justice William J. Brennan: Well I don't think not.

Mr. J. William Doolittle: I -- I don't know what the physiatrists and psychologists would testify on that point, but I suspect I would not --

Justice William J. Brennan: I mean cannot (Inaudible) to go colleges?

Mr. J. William Doolittle: I -- as I say I suspect you're quite right in that --

Justice Felix Frankfurter: Are these just men?

Mr. J. William Doolittle: Pardon me.

Justice Felix Frankfurter: Are these pictures just men?

Unknown Speaker: Yeah, sure.

Justice Felix Frankfurter: I know there are males but are they just males in sense in which (Voice Overlap)

Mr. J. William Doolittle: Well, they're males in -- in particular posses and particular customs and particular prost.

Justice Felix Frankfurter: Is that for all -- (Voice Overlap) goods so long as you got a mail buddy to mail buddy, is that it?

Chief Justice Earl Warren: Mr. Doolittle, where -- where -- where is that letter?

I know there is one in the record --

Mr. J. William Doolittle: The letter is at page 88 --

Chief Justice Earl Warren: Page 88.

Mr. J. William Doolittle: -- of the record here, that's right Mr. Justice and the materials that I've presumed you are referring to appears more particularly on page 89.

There were -- here at page 664 of the record also a -- an official in the Post Office Department that is not the postal inspector that I was referring to before stated, I recall clearly referring to a statement made by the publisher he said, Well, let's not kid ourselves.

We know who is buying this magazine and that is homosexuals, but when I made the suggestion that it was homosexuals who were buying it.

Mr. Chief Justice, I find that my time has expired.

Chief Justice Earl Warren: Yes, yes.

Mr. Dietz.

Argument of Stanley M. Dietz

Mr. Stanley M. Dietz: Thank you Mr. Chief Justice, may it please the Court.

If I might in response to the light that the Court was following, continue right along with that at page 63 of the record.

Now, I was present when these statements were made to the gentlemen of the Post Office Department, General Counsel's Office by the publisher and it appears on page 63 of the record.

This Dr. Womack, he had a lot of fun baiting the Post Office Department with this type of statement.

Justice Felix Frankfurter: Are you now testifying as an expert --

Mr. Stanley M. Dietz: No this is it --

Justice Felix Frankfurter: -- well, Dr Womack might meant when he said things?

Mr. Stanley M. Dietz: This is in the record Your Honor, this is in the record.

Justice Felix Frankfurter: What --

Mr. Stanley M. Dietz: Where is in the --

Justice Felix Frankfurter: He's a lot of fun.

Mr. Stanley M. Dietz: (Voice Overlap)

Justice Felix Frankfurter: Did it say he has a lot of fun?

Mr. Stanley M. Dietz: Well no, that -- that --

Justice Felix Frankfurter: Is that what he meant, that he was baiting.

I just want to know whether you're an expert on the inside of Dr. Womack's (Inaudible), that's what I want to know.

Mr. Stanley M. Dietz: No, I'm not expert on that Mr. Justice.

Justice Hugo L. Black: Well, he was an expert on the inside of any people's brain, wasn't he?

Mr. Stanley M. Dietz: Yes -- he was.

Justice Felix Frankfurter: Then he disclosed it, didn't he?

Mr. Stanley M. Dietz: He -- he was --

Justice Felix Frankfurter: I don't mind disclose it, but I just don't want to find that expertise.

Mr. Stanley M. Dietz: Alright.

He disclosed it in a way -- to say well, have you ever heard (Inaudible), what does that mean?

This doctor is legal.

That's the way he disclosed it.

Justice Felix Frankfurter: But are you denying that he said was --

Mr. Stanley M. Dietz: I don't deny --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Stanley M. Dietz: I don't deny this I -- I'm --

Justice Felix Frankfurter: -- denying but you have not telling us what was really inside his mind when he said that, isn't that right?

Mr. Stanley M. Dietz: I'm setting -- no, I am not telling you what was really inside his mind --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Stanley M. Dietz: -- I'm telling the -- the setting that this statement was made in, he walked in to the Lion's Den, they admit and admitted on cross-examination that they were trying to bring this out from him, he knew this in advance.

Justice Felix Frankfurter: Was that a wicked thing to do?

Mr. Stanley M. Dietz: What, to investigate this case?

I'm not saying --

Justice Felix Frankfurter: (Voice Overlap) we could think to cross examine of person.

Mr. Stanley M. Dietz: Oh no.

Justice Felix Frankfurter: To find out his intention?

Mr. Stanley M. Dietz: No.

Justice Felix Frankfurter: So why is that a Lion's Den?

Mr. Stanley M. Dietz: Well, let's put at this way.

He was not required to go down there and make these statements.

He went in there intentionally for a purpose and the purpose was to bait the Post Office.

Chief Justice Earl Warren: He was proud of the fact that this (Voice Overlap)

Mr. Stanley M. Dietz: He was very proud at the fact --

Chief Justice Earl Warren: -- proud that he was going to homosexuals.

Mr. Stanley M. Dietz: No, he was very proud the fact that he could send this material and that the Post Office couldn't touch him according to him.

Now that was his -- his complete statement.

Chief Justice Earl Warren: Let me ask you this Mr. Dietz.

Have you conceded or was it conceded in the -- in this case that these magazines were beamed toward homosexuals?

Mr. Stanley M. Dietz: Never Your Honor I we'll explain --

Chief Justice Earl Warren: Do -- do you think --

Mr. Stanley M. Dietz: -- that fully.

Chief Justice Earl Warren: -- the record will not support that.

Mr. Stanley M. Dietz: Yes.

And -- and I will explain the record.

Chief Justice Earl Warren: Very well.

Mr. Stanley M. Dietz: I have planned to argue that point.

Chief Justice Earl Warren: Yes (Voice Overlap) --

Mr. Stanley M. Dietz: I think that appears on pages 27 and 28, but may I conclude what I have in my mind now?

Chief Justice Earl Warren: Yes, you may.

Mr. Stanley M. Dietz: As far as -- as far as Dr. Womack was concerned, please remember that he had been investigated and this is all in the record, he had been investigated several times by postal inspector Harry Simon coming around to his place with these magazines were printed over a period of time.

And each time, it was always persisting questioning, is this stuff going to homosexuals, going to homosexuals, tended for homosexuals.

And it got to the point were Womack actually felt so secure that he attempted to tease everyone that inquire about this, but if you will further into the record, you will see that Womack at every point has said.

These magazines are sold to newsstands and no one really knows who the purchasers might be and there is over 40,000 of them sold a month.

Chief Justice Earl Warren: Now may I ask, are you quoting from the record --

Mr. Stanley M. Dietz: From the record --

Chief Justice Earl Warren: But no.

When you -- when you say that the inspectors had seen time him after time and had said to him, this is homosexual, that's homosexual and the --

Mr. Stanley M. Dietz: I believe --

Chief Justice Earl Warren: -- that he finally -- that he finally made this statement, that's all in the record.

Mr. Stanley M. Dietz: Yes, I believe that on three occasions, testimony of Harry Simon, the postal inspector is on three different occasions he came to Womack's close -- place of business to discuss this with him and that Womack would give these answers.

Chief Justice Earl Warren: Yes.

But not just to say each time, but they were there though and that they -- they said to him, Now, this is homosexual and so forth and kept repeating it to him until he finally came to this -- this state of mind in his testimony or aren't -- is that you conclusion.

Mr. Stanley M. Dietz: Oh no.

This is my recollection on the testimony.

Chief Justice Earl Warren: Yes, very well.

Justice Felix Frankfurter: Are you now saying that he was really ironic when he said that, that's what I get from your remark?

Mr. Stanley M. Dietz: Ironic --

Justice Felix Frankfurter: But they asked him -- yes, but he was kidding them.

Mr. Stanley M. Dietz: They never asked him --

Justice Felix Frankfurter: But you just said that --

Mr. Stanley M. Dietz: I --

Justice Felix Frankfurter: -- they constantly (Inaudible) him with inquires or with the declaratory statements that this is directed to homosexual.

Finally, he just teased them.

I said that he was ironic and you said yes if that the way that you should just to kid you, is that what you said?

Mr. Stanley M. Dietz: He -- he never came right out and said that I am saying these things just at to -- to kid you, but in the testimony of the counsel for the Government, who was asked him, he says himself that I kept asking him --

Justice Felix Frankfurter: Is that --

Mr. Stanley M. Dietz: -- whether it's what for homosexual.

Justice Felix Frankfurter: -- I'm not concerned what the Government agent asked him, but what his answers were.

Are you saying that when he said yes, that directed me, that he was fooling, that he was teasing, that he was ironic, that he didn't mean that he meant the opposite, is that what you say?

Mr. Stanley M. Dietz: I use -- I use fooling, teasing. I wouldn't say that he did mean it.

Justice Felix Frankfurter: Well then he did mean it?

Mr. Stanley M. Dietz: I believe that in part, he meant it, in part.

Justice Hugo L. Black: What is (Inaudible) we've been so far we --

Mr. Stanley M. Dietz: The answer --

Justice Hugo L. Black: (Voice Overlap) but I don't know what is he meant.

Mr. Stanley M. Dietz: The answer Mr. Justice is that nobody really knows.

Justice Hugo L. Black: Knows what?

Mr. Stanley M. Dietz: Who -- whom the purchasers of these magazines are, because they have sold through newsstands and there is no human being who could honestly, truthfully say that X, Y, Z, class of people are the only purchasers of this magazine and that is the only --

Justice Hugo L. Black: I saw in one of articles Reader's Digest, (Inaudible)

Mr. Stanley M. Dietz: I -- I don't understand the question.

Justice Hugo L. Black: I saw one reprinted from the Reader's Digest, how did he get it, an article?

Mr. Stanley M. Dietz: I'm not aware of what you referring, you mean in -- oh in our magazine.

Justice Hugo L. Black: Yes, one of this magazines.

It said reproduced from the Reader's Digest.

Mr. Stanley M. Dietz: Well if it said that then it was reproduced from Reader's Digest I assume.

I'm not -- I'm not aware of which one.

Justice Hugo L. Black: I don't -- I -- it was three or four of my head.

I saw that.

Mr. Stanley M. Dietz: There is a --

Justice Hugo L. Black: Go ahead.

Justice Felix Frankfurter: Mr. Dietz, let me get back to the purpose that got you on your feet which you expressed, the purpose that you expressed, namely you said you want it follow the line of -- follow questions put from the bench.

The Chief Justice then read to you that purported to be a statement by the petitioner, namely that this was beamed to use the phrase you have used, the Chief Justice's question was, Did he not say that?

Isn't that right?

Mr. Stanley M. Dietz: Maybe I misunderstood the Chief Justice, Mr. Justice Frankfurter.

Justice Felix Frankfurter: Well, that was for the statement --

Mr. Stanley M. Dietz: He asked me if I conceded or at any point if I conceded that this was beamed to the homosexuals.

Justice Felix Frankfurter: (Voice Overlap).

There was the statement by him in which he said that indeed this were aimed at a homosexual market, is that right?

Mr. Stanley M. Dietz: By Dr. Womack, yes, yes it was.

Justice Felix Frankfurter: You then under took to explain that by saying that he was really faded by the baited people or whether they were constantly applied then with question, wasn't this directed or to homosexual matter or whatever the phrase was.

And as you said, he finally -- he finally having been badgered, he finally yielded as to that and said, Yes, that's true.

Then you started to explain it namely, that why -- that this was -- which led me to ask you was the ironic and you didn't care for that adjective, I don't blame.

I didn't try put it in the vernacular and said was he kidding, didn't he mean it.

Did he mean in fact that opposite?

Now, we have back there.

Are you saying now that he did mean it or he didn't mean it, which are you saying.

Mr. Stanley M. Dietz: Well, as you asked me the question Mr. Justice, I'm not an expert on the inside of his mind, but in my opinion, I would say that he meant it in part.

Justice Felix Frankfurter: Alright.

Mr. Stanley M. Dietz: Because he meant certainly to say these things if there no other reason then to get back at the interrogated from the Post Office Department and teased them.

And I believe further -- I'll -- I'll take a step and go away out on the lame, I believe further that he might have actually meant this to be true.

In his own mind, he might have believed that all of these magazines --

Justice Felix Frankfurter: Alright.

Mr. Stanley M. Dietz: -- would be purchased by homosexuals.

I'll go that far, but that's just his belief.

It's still cannot -- you just cannot get around the fact that all of these magazines are sold from newsstands and no matter what he believes, no matter what I believe, no matter what I believe, no matter what any individual member this Court might believe, they are still sold from newsstands and no one knows for sure.

Justice Felix Frankfurter: Well if -- it's a -- it's a matter of common human experience that the chances of something that we believe toward which we direct action is more likely to be connected with our action than if we didn't believe it.

Mr. Stanley M. Dietz: I wouldn't argue against that.

Chief Justice Earl Warren: Who is the Lynn, L-Y-N-N --

Mr. Stanley M. Dietz: That is --

Chief Justice Earl Warren: -- is the writer of the letter on the --

Mr. Stanley M. Dietz: That is Dr. Womack.

Chief Justice Earl Warren: That's Dr. Womack.

Mr. Stanley M. Dietz: His name is Herman Lynn Womack.

Chief Justice Earl Warren: What is your explanation of that letter, what does that letter indicate to you?

Mr. Stanley M. Dietz: That letter, I don't even have to read it.

I've seen that letter.

That's the one where is -- I think it's written to a Mercury Studios --

Chief Justice Earl Warren: This is suppose to be a photograph (Voice Overlap)

Mr. Stanley M. Dietz: -- and that's the one were it says in 1958, we want a truck driver type, it's all showered up, clean and ready for bed.

That letter was directed to one particular photographer who submitted photographs that we used in this magazine and apparently, this particular photographer's work was models who were rough and tough and dirty looking and this was an attempt to get the models to be better appearance.

Chief Justice Earl Warren: For what purpose.

Mr. Stanley M. Dietz: To use in the magazines.

Chief Justice Earl Warren: For yes, but for what kind of -- what kind of viewer.

Mr. Stanley M. Dietz: Well --

Chief Justice Earl Warren: You don't think this letter implies any such thing You don't think --

Mr. Stanley M. Dietz: Well --

Chief Justice Earl Warren: -- this letter implies --

Mr. Stanley M. Dietz: -- let's -- let's say this --

Chief Justice Earl Warren: -- that this is to go --

Mr. Stanley M. Dietz: Let say that -- that it was --

Chief Justice Earl Warren: -- even the homosexual.

Mr. Stanley M. Dietz: -- for homosexuals.

Chief Justice Earl Warren: I beg pardon.

Mr. Stanley M. Dietz: Let's say that it was intended to get this particular photograph for use to appeal to a homosexual.

Chief Justice Earl Warren: Yes, well that is -- it is the fact, is it -- it fairly imports that does it not?

Mr. Stanley M. Dietz: I won't argue that.

Chief Justice Earl Warren: Very well.

Mr. Stanley M. Dietz: I won't argue against that.

Chief Justice Earl Warren: Yes.

Well that in -- is something of a concession is it not on the part of the publisher that this was beamed as they say to -- to homosexuals?

Mr. Stanley M. Dietz: Well, let's say it's a concession that he wasn't in looking, overlooking any part of the American market in his attempt to sell his magazines.

Chief Justice Earl Warren: Well, what part of the letter would indicate that?

Mr. Stanley M. Dietz: That he was not overlooking any part of this portion --

Chief Justice Earl Warren: Yes, that it was --

Mr. Stanley M. Dietz: Well, this -- this is just one photographers worked Mr. Chief Justice.

You will notice in the back of directory of the magazines, there are some 40 or so names listed as contributing photographers to these magazines, but, this -- this counsel has trouble in my own mind, with this -- this problem.

I -- I mentioned that yesterday, even if these magazines are beamed -- magazines which are at homosexuals, if there's such a thing as a class of people named homosexuals, if these magazines are beamed off, then what does this One, Inc. versus Olesen case stand for?

Are homosexuals allow to receive the pick ups or literature that they may chose to purchase or -- or they to be censored out of that because we, as so called normal people don't like homosexuals.

It's not --

Chief Justice Earl Warren: Your principle argument is Mr. Dietz, is it not that these publishers have -- have the right to -- to beam to the homosexuals of the country, these things that appeal peculiarly their prurient interest and that if we do not do that -- if we do not permit that, we are denying to them that which is given to -- to other people because some other things that are in circulation do appeal perhaps to -- to the sex motives of -- of those people.

Mr. Stanley M. Dietz: I don't go quite as far as the Chief Justice's question.

Chief Justice Earl Warren: Yes.

Mr. Stanley M. Dietz: When you say where that there -- to go to homosexuals to appeal to their prurient interest.

I don't go this far, you see because I don't -- as I see the testimony and the psychiatrists, I don't feel that it holds that far.

Now, the Government -- I didn't want to get in to this particular -- you put me on the spot, but --

Chief Justice Earl Warren: I thought you will figure this in your opening argument that we were denying --

Mr. Stanley M. Dietz: I didn't want --

Chief Justice Earl Warren: -- we were denying to homosexuals the right to have what's comparable with other people to pin up, pin up girls and -- and you said that if we did that, if we took away from them the right to have something that it would appeal to them in the same way that the so called girlie magazines appeal to the -- to the normal persons that we would depriving them of something to which they were lawfully entitled.

Now, that's the way I understood your argument.

Mr. Stanley M. Dietz: You are exactly correct in that premise, but I think in your question, you went a little bit further and said these magazines are going to arouse -- and maybe I miss understood your question.

Chief Justice Earl Warren: Well, no.

Mr. Stanley M. Dietz: Well, arouse some prurient interest in the homosexual.

Chief Justice Earl Warren: I -- I did use that.

I did use that word, yes.

Mr. Stanley M. Dietz: Well, my argument is that these -- these magazines are not going to cause any unlawful actions.

Now, may I say --

Justice William J. Brennan: Well what you -- I thought what you really argued was that even assuming these were beamed at the homosexual market, they are not obscene publications within the law of definition.

Mr. Stanley M. Dietz: That is one part of my argument Mr. Justice Brennan.

Justice William J. Brennan: One part of you -- now that was the --

Mr. Stanley M. Dietz: No that's just one part it.

Justice William J. Brennan: Alright.

What's the other part of it?

Mr. Stanley M. Dietz: The other part is that these magazines could not in -- if they were just purchased by homosexuals, these magazines could not clause the unlawful actions that the psychiatrists claim they could.

The Government --

Justice William J. Brennan: Your time is running out.

I frankly don't see how that's only different to the proposition I just posed.

Mr. Stanley M. Dietz: My time is running out.

Mr. Justice -- Mr. Chief Justice, you asked me a question whether I had at anytime conceded that these magazines were homosexual magazines.

I've never conceded that --

Chief Justice Earl Warren: Yes.

Mr. Stanley M. Dietz: -- 27 -- the Government claims that I give in the record on page 28, but if you will examine page 27 of the record, you will see that when I was questioning this witness, I started all my questions as appear on 28 were of the magazine -- using the magazine One Incorporated, which this Court had ruled upon in its prior case One Inc. versus Olesen.

I had used this magazine to show, to compare with the psychiatrists in my cross-examination of him.

I showed them the magazine, this picture in the magazine, Is this worst in the pictures in our magazine?

He said, Yes wanted appeal --

Chief Justice Earl Warren: Yes.

Mr. Stanley M. Dietz: I also showed him the Sunshine & Health Magazine.

This is also in the record, which this Court had ruled to be not obscene or at least mailable and the photographs that were therein contained and in that magazine and he also testified and it's in the record that that these magazines would be -- even more appealing to the prurient interest of a homosexual because of a complete nudity of the particular model.

And Mr. -- Mr. Justice Stewart hit the nail right on the head when he said that he assumes at the Empires State building would appeal to some erotic interest in some people.

Well, this was my argument and it appears in the record that there was so many myriad of different things that would appeal to homosexual that you could not possibly have any sort of a photographic magazine without appealing to -- to some different face of homosexuals which goes back to what I argued to the Chief Justice yesterday that you cannot have any standards, because there was so many different degrees in this category of people and Mr. Kinsey phrased that out and we've argued that in our -- in our brief.

Justice Felix Frankfurter: Suppose -- suppose that mail matter is written in Sanskrit.

Mr. Stanley M. Dietz: In -- in.

Justice Felix Frankfurter: In Sanskrit and addressed to Sanskrit Community of the United States or maybe such or some article of non-populous foreign tongue, could the Post Office have that translated into English Suppose there's a publication in some (Inaudible) language --

Mr. Stanley M. Dietz: There is -- there is right mail Your Honor.

There is right mail being imported in this country -- The Christ, The Christ is a magazine.

It comes from Germany.

It's in German and it's a nudist magazine and the Post Office every time -- every time they catch it, well, they have -- they try to stop it.

Justice Felix Frankfurter: What I'm -- I'm asking you, could -- could matter written in a foreign non-English tongue to be translated into English in order to understand what it means considering the market to which it was directed, could it?

Mr. Stanley M. Dietz: Mr. Justice Frankfurter, you picked the full one of the questions --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Stanley M. Dietz: No, well I'm -- I'm against -- I'm against the Post Office stop at anything in the mail (Voice Overlap)

Justice Felix Frankfurter: I understand that.

You are not alone in that.

I understand that.

I'm asking you the constitution of the laws of United States being what they are and the decisions of this Court being what they are could matter in a foreign language be translated into English in order to find out what it means to those, to whom it is directed, what's the answer to that?

Mr. Stanley M. Dietz: Well, how --

Justice Felix Frankfurter: I'm not asking (Voice Overlap)

Mr. Stanley M. Dietz: If you follow -- if follow that --

Justice Felix Frankfurter: -- law.

Mr. Stanley M. Dietz: If you follow the -- the Government's view yes, if you follow all you know --

Justice Felix Frankfurter: I'm asking (Voice Overlap)

Mr. Stanley M. Dietz: I say no.

Justice Felix Frankfurter: Well, you say no because you think nothing can be excluded.

Mr. Stanley M. Dietz: I don't think that -- in this particular case or that you have mentioned, I don't think that the Post Office would have that right.

Justice Felix Frankfurter: It was merely because in the foreign language?

Mr. Stanley M. Dietz: Well, it's not going to appeal to prurie -- prurient interest --

Justice Felix Frankfurter: I have reach to that point.

I'm asking you whether they could find out what the -- what the -- what the figures or holographic are which are in the foreign script.

Could it translated into English, could it be translated?

But if you don't want to answer, that's alright too.

Mr. Stanley M. Dietz: I -- I'd like to be able to answer.

Let's say that they --

Justice Felix Frankfurter: Suppose the equipment is French, suppose a lot of French stuff comes in, can the Post Office in order to find out what the contents are have the French translated into English?

Well, that seems to be too difficult a question I (Inaudible).

Chief Justice Earl Warren: Mr. -- Mr. Dietz, is the question of prior restraint properly before us here?

Mr. Stanley M. Dietz: We feel that it is.

The Government deems it is not.

Chief Justice Earl Warren: Did you raise it -- did you raise it in the administrative procedure?

Mr. Stanley M. Dietz: No Your Honor, I did not.

Chief Justice Earl Warren: Did you raise it in the court below?

Mr. Stanley M. Dietz: No I did not and I did not -- I did not ask for a jury trail in the administrative proceeding.

It wasn't provided in their rules as I said yesterday.

I tried to play ball by their rules even though they didn't play ball by their rules and I see all a lights are flashing on me but --

Chief Justice Earl Warren: Could you answer my question?

Mr. Stanley M. Dietz: I would like to -- I did like to -- all the Justices seem interested on the Government's examination, the Government's argument, about the sequence of events here.

Well, now I have before me and it's in the record, the letters of April 5th and April 7th and of course the letter of March 1st which was the first one that we had received.

As I stated yesterday, they stopped our issue.

Now, Mr. Justice Brennan asked question yesterday about Womack's conviction.

Womack was convicted in the end of January of 1960, I believe it was a 28th and 29th.

The next week, these magazines which would have hit the mail to the first week in February, they were stopped, although we were not notified of it until March 1st 1960 is the letter that we've received notifying us that these magazines -- that some of these magazines had been stopped, not all.

They were withdrawn from the mail.

That -- that was the first part of it.

And in that -- and it's very interesting that the Government did never rely on any other section of the code in any of these proceedings except Section 1461 and each time if they stop any raw material, they give us some of Section 1461 along with the rules of procedure.

Now, on April 5th and April 7th, they wrote to us and of course April 5th, they told us that they had stopped these magazines which had been mailed on the 25th of March and then they gave us 10 days in which to come in and object to their procedure, they -- and -- just time sequence.

So actually what we did was we went to the District Court and in the District Court, Mr. Justice Frankfurter asked yesterday why we didn't flood the mail with materials during the day and a half or two days that we had on temporary restraining order, in that case Mr. Justice Frankfurter, all that we went in to the District Court and asked for was an administrative hearing, which by the -- they -- they were apparently trying to deny us this hearing.

We were not trying to get around the hearing.

We came in to court and asked for a hearing.

And I have the original complaint here, the motion for the first --

Justice Felix Frankfurter: You had a restraining -- you had a restraining order --

Mr. Stanley M. Dietz: We've got a restraining order.

Justice Felix Frankfurter: -- and therefore frees from what is called censorship, but Mr. Doolittle made clear that you didn't have the time within which to do any of --

Mr. Stanley M. Dietz: Well, Mr. Doolittle possibly made it clear to your mind but not to mine.

We had the time, but --

Justice Felix Frankfurter: Well, in the difference position, you see (Voice Overlap) --

Mr. Stanley M. Dietz: We didn't -- yes.

We didn't -- we didn't attempt to.

We didn't attempt to evade anything.

We just wanted to get the hearing.

And --

Chief Justice Earl Warren: Mr. Dietz --

Mr. Stanley M. Dietz: You asked the question --

Chief Justice Earl Warren: -- I've looked over the magazine again and the Reader's Digest article was not (Inaudible)

Mr. Stanley M. Dietz: I didn't think so because I am very familiar for me with these magazines, although the gentlemen at the Post Office and this appears in the record, all -- the expert so forth call the experts on obscenity to Post Office (Inaudible) read one word to text for many of magazines.

Even the psychiatrist who testified that the use to change was supposed to have been so bad because it appealed to some advocates that wants to be changed up and beaten to the death.

This use to change in that photograph was illustrating an article pernicious.

I asked to gentleman -- the doctor, was he is ever heard a pernicious, know anything about it and this was article in our book and he confessed complete ignorance and then said that he -- he's not -- he's not expert on those kind of matters.

And then you also asked a question Mr. Justice Black which -- whether there are such things as the experts on obscenity, Mr. Justice Frankfurter wrote in his concurring opinion in Smith versus California, a very strong concurring opinion which I have attempted to use in other case to get courts to listen to experts, but apparently, they don't follow this particularly.

They hold there's no such thing as expert.

Chief Justice Earl Warren: Very well Mr. Dietz I think, we (Voice Overlap)

Mr. Stanley M. Dietz: I beg --

Chief Justice Earl Warren: I think we better get to rest --

Mr. Stanley M. Dietz: I know I gone over my time, so I want to thank you.

I --

Chief Justice Earl Warren: It's alright.

Mr. Stanley M. Dietz: I also didn't finish half things I wanted to say.

Chief Justice Earl Warren: I'm sure of that.