MANual Enterprises, Inc. v. Day/Opinion of the Court

Mr. Justice HARLAN announced the judgment of the Court and an opinion in which Mr. Justice STEWART joins.

This case draws in question a ruling of the Post Office Department, sustained both by the District Court and the Court of Appeals, 110 U.S.App.D.C. 78, 289 F.2d 455, barring from the mails a shipment of petitioners' magazines. That ruling was based on alternative determinations that the magazines (1) were themselves 'obscene,' and (2) gave information as to where obscene matter could be obtained, thus rendering them nonmailable under two separate provisions of 18 U.S.C. § 1461, 18 U.S.C.A. § 1461, known as the Comstock Act. Certiorari was granted (368 U.S. 809, 82 S.Ct. 37, 7 L.Ed.2d 19) to consider the claim that this ruling was inconsistent with the proper interpretation and application of § 1461, and with principles established in two of this Court's prior decisions. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.

Petitioners are three corporations respectively engaged in publishing magazines titled MANual, Trim, and Grecian Guild Pictorial. They have offices at the same address in Washington, D.C., and a common president, one Herman L. Womack. The magazines consist largely of photographs of nude, or near-nude, male models and give the names of each model and the photographer, together with the address of the latter. They also contain a number of advertisements by independent photographers offering nudist photographs for sale.

On March 25, 1960, six parcels containing an aggregate of 405 copies of the three magazines, destined from Alexandria, Virginia, to Chicago, Illinois, were detained by the Alexandria postmaster, pending a ruling by his superiors at Washington as to whether the magazines were 'nonmailable.' After an evidentiary hearing before the Judicial Officer of the Post Office Department there ensued the administrative and court decisions now under review.

On the issue of obscenity, as distinguished from unlawful advertising, the case comes to us with the following administrative findings, which are supported by substantial evidence and which we, and indeed the parties, for the most part, themselves, accept: (1) the magazines are not, as asserted by petitioners, physical culture or 'body-building' publications, but are composed primarily, if not exclusively, for homosexuals, and have no literary, scientific or other merit; (2) they would appeal to the 'prurient interest' of such sexual deviates, but would not have any interest for sexually normal individuals; and (3) the magazines are read almost entirely by homosexuals, and possibly a few adolescent males; the ordinary male adult would not normally buy them.

On these premises, the question whether these magazines are 'obscene,' as it was decided below and argued before us, was thought to depend solely on a determination as to the relevant 'audience' in terms of which their 'prurient interest' appeal should be judged. This view of the obscenity issue evidently stemmed from the belief that in Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, this Court established the following single test for determining whether challenged material is obscene: 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' (Footnote omitted.) On this basis the Court of Appeals, rejecting the petitioners' contention that the 'prurient interest' appeal of the magazines should be judged in terms of their likely impact on the 'average person,' even though not a likely recipient of the magazines, held that the administrative finding respecting their impact on the 'average homosexual' sufficed to establish the Government's case as to their obscenity.

We do not reach the question thus thought below to be dispositive on this aspect of the case. For we find lacking in these magazines an element which, no less than 'prurient interest,' is essential to a valid determination of obscenity under § 1461, and to which neither the Post Office Department nor the Court of Appeals addressed itself at all: These magazines cannot be deemed so offensive on their face as to affront current community standards of decency-a quality that we shall hereafter refer to as 'patent offensiveness' or 'indecency.' Lacking that quality, the magazines cannot be deemed legally 'obscene,' and we need not consider the question of the proper 'audience' by which their 'prurient interest' appeal should be judged.

The words of § 1461, 'obscene, lewd, lascivious, indecent, filthy or vile,' connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed.Cas. p. 1093, No. 14571, put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, 354 U.S. at 489, 77 S.Ct. at 1311, 'taken as a whole appeals to prurient interest.' This 'effect' element, originally cast in somewhat different language from that of Roth (see 354 U.S., at 487, 489, 77 S.Ct. at 1310, 1311), was taken into federal obscenity law from the leading English case of Regina v. Hicklin, (1868) L.R. 3 Q.B. 360, of which a distinguished Australian judge has given the following illuminating analysis:

'As soon as one reflects that the word 'obscene,' as an     ordinary English word, has nothing to do with corrupting or      depraving susceptible people, and that it is used to describe      things which are offensive to current standards of decency      and not things which may induce to sinful thoughts, it      becomes plain, I think, that Cockburn, C.J., in *  *  * R. v.      Hicklin *  *  * was not propounding a logical definition of the word      'obscene,' but was merely explaining that particular      characteristic which was necessary to bring an obscene      publication within the law relating to obscene libel. The     tendency to deprave is not the characteristic which makes a      publication obscene but is the characteristic which makes an      obscene publication criminal. It is at once an essential     element in the crime and the justification for the      intervention of the common law. But it is not the whole and     sole test of what constitutes an obscene libel. There is no     obscene libel unless what is published is both offensive      according to current standards of decency and calculated or      likely to have the effect described in R. v. Hicklin *  *  * .'       Regina v. Close, (1948) Vict.L.R. 445, 463, Judgment of      Fullagar, J. (Emphasis in original.)

The thoughtful studies of the American Law Institute reflect the same two-fold concept of obscenity. Its earlier draft of a Model Penal Code contains the following definition of 'obscene': 'A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest * *  * and if it goes substantially beyond customary limits of candor in description or representation of such matters.' A.L.I., Model Penal Code, Tent. Draft No. 6 (1957), § 207.10(2). (Emphasis added.) The same organization's currently proposed definition reads: 'Material is obscene if, considered as a whole, its predominant appeal is to prurient interest * *  * and if in addition it goes substantially beyond customary limits of candor in describing or representing such matters.' A.L.I., Model Penal Code, Proposed Official Draft (May 4, 1962), § 251.4(1). (Emphasis added.)

Obscenity under the federal statute thus requires proof of two distinct elements: (1) patent offensiveness; and (2) 'prurient interest' appeal. Both must conjoin before challenged material can be found 'obscene' under § 1461. In most obscenity cases, to be sure, the two elements tend to coalesce, for that which is patently offensive will also usually carry the requisite 'prurient interest' appeal. It is only in the unusual instance where, as here, the 'prurient interest' appeal of the material is found limited to a particular class of persons that occasion arises for a truly independent inquiry into the question whether or not the material is patently offensive.

The Court of Appeals was mistaken in considering that Roth made 'prurient interest' appeal the sole test of obscenity. Reading that case as dispensing with the requisite of patently offensive portrayal would be not only inconsistent with § 1461 and its common-law background, but out of keeping with Roth's evident purpose to tighten obscenity standards. The Court there both rejected the 'isolated excerpt' and 'particularly susceptible persons' tests of the Hicklin case, 354 U.S., at 488-489, 77 S.Ct., at 1310-1311, and was at pains to point out that not all portrayals of sex could be reached by obscenity laws but only those treating that subject 'in a manner appealing to prurient interest.' 354 U.S., at 487, 77 S.Ct., at 1310. That, of course, was but a compendious way of embracing in the obscenity standard both the concept of patent offensiveness, manifested by the terms of § 1461 itself, and the element of the likely corruptive effect of the challenged material, brought into federal law via Regina v. Hicklin.

To consider that the 'obscenity' exception in 'the area of constitutionally protected speech or press,' Roth, at 485, 77 S.Ct. at 1309, does not require any determination as to the patent offensiveness vel non of the material itself might well put the American public in jeopardy of being denied access to many worth-while works in literature, science, or art. For one would not have to travel far even among the acknowledged master-pieces in any of these fields to find works whose 'dominant theme' might, not beyond reason, be claimed to appeal to the 'prurient interest' of the reader or observer. We decline to attribute to Congress any such quixotic and deadening purpose as would bar from the mails all material, not patently offensive, which stimulates impure desires relating to sex. Indeed such a construction of § 1461 would doubtless encounter constitutional barriers. Roth, at 487 489, 77 S.Ct. at 1310-1311. Consequently we consider the power exercised by Congress in enacting § 1461 as no more embracing than the interdiction of 'obscenity' as it had theretofore been understood. It is only material whose indecency is self-demonstrating and which, from the standpoint of its effect, may be said predominantly to appeal to the prurient interest that Congress has chosen to bar from the mails by the force of § 1461.

We come then to what we consider the dispositive question on this phase of the case. Are these magazines offensive on their face? Whether this question be deemed one of fact or of mixed fact and law, see Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 114-115 (1960), we see no need of remanding the case for initial consideration by the Post Office Department or the Court of Appeals of this missing factor in their determinations. That issue, involving factual matters entangled in a constitutional claim, see Grove Press, Inc., v. Christenberry, 276 F.2d 433, 436, is ultimately one for this Court. The relevant materials being before us, we determine the issue for ourselves.

There must first be decided the relevant 'community' in terms of whose standards of decency the issue must be judged. We think that the proper test under this federal statute, reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency. We need not decide whether Congress could constitutionally prescribe a lesser geographical framework for judging this issue which would not have the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency. Cf. Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412.

As regards the standard for judging the element of 'indecency,' the Roth case gives little guidance beyond indicating that the standard is a constitutional one which, as with 'prurient interest,' requires taking the challenged material 'as a whole.' Roth, at 489, 77 S.Ct. at 1311. Being ultimately concerned only with the question whether the First and Fourteenth Amendments protect material that is admittedly obscene, the Court there had no occasion to explore the application of a particular obscenity standard. At least one important state court and some authoritative commentators have considered Roth and subsequent cases to indicate that only 'hard-core' pornography can constitutionally be reached under this or similar state obscenity statutes. See, People v. Richmond County News, Inc., 9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 681; Lockhart and McClure, supra, at 58-60. Whether 'hard-core' pornography, or something less, be the proper test, we need go no further in the present case than to hold that the magazines in question, taken as a whole, cannot, under any permissible constitutional standard, be deemed to be beyond the pale of contemporary notions of rudimentary decency.

We cannot accept in full the Government's description of these magazines which, contrary to Roth (354 U.S., at 488-489, 77 S.Ct. 1310-1311), tends to emphasize and in some respects overdraw certain features in several of the photographs, at the expense of what the magazines fairly taken as a whole depict. Our own independent examination of the magazines leads us to conclude that the most that can be said of them is that they are dismally unpleasant, uncouth, and tawdry. But this is not enough to make them 'obscene.' Divorced from their 'prurient interest' appeal to the unfortunate persons whose patronage they were aimed at capturing (a separate issue), these portrayals of the male nude cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates. Of course not every portrayal of male or female nudity is obscene. See Parmelee v. United States, 72 App.D.C. 203, 206 208, 113 F.2d 729, 732-734; Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352; Mounce v. United States, 355 U.S. 180, 78 S.Ct. 267, 2 L.Ed.2d 187. Were we to hold that these magazines, although they do not transcend the prevailing bounds of decency, may be denied access to the mails by such undifferentiated legislation as that before us, we would be ignoring the admonition that 'the door * *  * into this area (the First Amendment) cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests' (footnote omitted). Roth, at 488, 77 S.Ct. at 1311.

We conclude that the administrative ruling respecting nonmailability is improvident insofar as it depends on a determination that these magazines are obscene.

There remains the question of the advertising. It is not contended that the petitioners held themselves out as purveyors of obscene material, or that the advertisements, as distinguished from the other contents of the magazines, were obscene on their own account. The advertisements were all by independent third-party photographers. And, neither with respect to the advertisements nor the magazines themselves, do we understand the Government to suggest that the 'advertising' provisions of § 1461 are violated if the mailed material merely 'gives the leer that promises the customer some obscene pictures.' United States v. Hornick, 3 Cir., 229 F.2d 120, 121. Such an approach to the statute could not withstand the underlying precepts of Roth. See, Poss v. Christenberry, D.C., 179 F.Supp. 411, 415; cf. United States v. Schillaci, D.C., 166 F.Supp. 303, 306. The claim on this branch of the case rests, then, on the fact that some of the third-party advertisers were found in possession of what undoubtedly may be regarded as 'hard-core' photographs, and that postal officials, although not obtaining the names of the advertisers from the lists in petitioners' magazines, received somewhat less offensive material through the mails from certain studios which were advertising in petitioners' magazines.

A question of law must first be dealt with. Should the 'obscene-advertising' proscription of § 1461 be construed as not requiring proof that the publisher knew that at least some of his advertisers were offering to sell obscene material? In other words, although the criminal provisions of § 1461 do require scienter (note 1, supra), can the Post Office Department in civil proceedings under that section escape with a lesser burden of proof? We are constrained to a negative answer. First, Congress has required scienter in respect of one indicted for mailing material proscribed by the statute. In the constitutional climate in which this statute finds itself, we should hesitate to attribute to Congress a purpose to render a publisher civilly responsible for the innocuous advertisements of the materials of others, in the absence of any showing that he knew that the character of such materials was offensive. And with no express grant of authority to the Post Office Department to keep obscene matter from the mails (see note 2, supra), we should be slow to accept the suggestion that an element of proof expressly required in a criminal proceeding may be omitted in an altogether parallel civil proceeding. Second, this Court's ground of decision in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, indicates that a substantial constitutional question would arise were we to construe § 1461 as not requiring proof of scienter in civil proceedings. For the power of the Post Office to bar a magazine from the mails, if exercised without proof of the publisher's knowledge of the character of the advertisements included in the magazine, would as effectively 'impose a severe limitation on the public's access to constitutionally protected matter,' 361 U.S., at 153, 80 S.Ct. at 218, as would a state obscenity statute which makes criminal the possession of obscene material without proof of scienter. Since publishers cannot practicably be expected to investigate each of their advertisers, and since the economic consequences of an order barring even a single issue of a periodical from the mails might entail heavy financial sacrifice, a magazine publisher might refrain from accepting advertisements from those whose own materials could conceivably be deemed objectionable by the Post Office Department. This would deprive such materials, which might otherwise be entitled to constitutional protection, of a legitimate and recognized avenue of access to the public. To be sure, the Court found it unnecessary in Smith to delineate the scope of scienter which would satisfy the Fourteenth Amendment. Yet it may safely be said that a federal statute which, as we construe it, required the presence of that element is not satisfied, as the Government suggests it might be, merely by showing that a defendant did not make a 'good faith effort' to ascertain the character of his advertiser's materials.

On these premises we turn to the record in this case. Although postal officials had informed petitioners' president, Womack, that their Department was prosecuting several of his advertisers for sending obscene matter through the mails, there is no evidence that any of this material was shown to him. He thus was afforded no opportunity to judge for himself as to its alleged obscenity. Contrariwise, one of the government witnesses at the administrative hearing admitted that the petitioners had deleted the advertisements of several photographic studios after being informed by the Post Office that the proprietors had been convicted of mailing obscene material. The record reveals that none of the postal officials who received allegedly obscene matter from some of the advertisers obtained their names from petitioners' magazines; this material was received as a result of independent test checks. Nor on the record before us can petitioners be linked with the material seized by the police. Note 15, supra. The only such asserted connection-that 'hard core' matter was seized at the studio of one of petitioners' advertisers-falls short of an adequate showing that petitioners knew that the advertiser was offering for sale obscene matter. Womack's own conviction for sending obscene material through the mails, Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204, is remote from proof of like conduct on the part of the advertisers. At that time he was acting as president of another studio; the vendee of the material, while an advertiser in petitioners' magazines, had closed his own studio before the present issues were published. Finally, the general testimony by one postal inspector to the effect that in his experience advertisers of this character, after first leading their customers on with borderline material, usually followed up with 'hardcore' matter, can hardly be deemed of probative significance on the issue at hand.

At best the Government's proof showed no more than that petitioners were chargeable with knowledge that these advertisers were offering photographs of the same character, and with the same purposes, as those reflected in their own magazines. This is not enough to satisfy the Government's burden of proof on this score.

In conclusion, nothing in this opinion of course remotely implies approval of the type of magazines published by these petitioners, still less of the sordid motives which prompted their publication. All we decide is that on this record these particular magazines are not subject to repression under § 1461.

Reversed.

Mr. Justice BLACK concurs in the result.

Mr. Justice FRANKFURTER took no part in the decision of this case.

Mr. Justice WHITE took no part in the consideration or decision of this case.