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

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United States Supreme Court

370 U.S. 478

MANUAL ENTERPRISES, INC., et al., Petitioners,  v.  J. Edward DAY, Postmaster General of the United States.

 Argued: Feb. 26 and 27, 1962. --- Decided: June 25, 1962

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. [1] 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. [2]

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; [3] (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, [4] the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. [5] 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. [6] 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 * * *.' [7] 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.) [8]

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. [9] 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 [10] 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, [11] 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 [12] 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. [13] 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. [14]

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, [15] 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. [16] 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. [17]

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.

Notes[edit]

^1  Section 4161 of 18 U.S.C., 18 U.S.C.A. § 1461, provides in part:

'Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and-

'Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made * * *

'Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

'Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years * * *.'

^2  Because of our view of the case, we need not reach petitioners' third contention that, as applied in this instance, these Post Office procedures amounted to an unconstitutional 'prior restraint' on the publication of these magazines. The petitioner in this case has not questioned the Post Office Department's general authority under § 1461 to withhold these magazines from the mails if they are obscene. If that question, discussed in the opinion of MR. JUSTICE BRENNAN, 370 U.S., p. 495, 82 S.Ct., p. 1441, may still be deemed open in this Court, see United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 421-422, 41 S.Ct. 352, 65 L.Ed. 704 (Brandeis, J., dissenting); cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586, we do not think it should be decided except upon full-dress argument and briefing, which have not been afforded us here.

^3  The Judicial Officer found that 'the publisher has admitted that the magazines are knowingly published to appeal to the male homosexual group,' and that 'The publisher of the issues here involved has deliberately planned these publications so that they would appeal to the male homosexual audience * * *.'

^4  The words of the statute are defined in Webster's New International Dictionary (unabridged, 2d ed., 1956) as follows:

obscene

'1. Offensive to taste; foul; loathsome; disgusting.

'2. a Offensive to chastity of mind or to modesty; expressing or presenting to the mind or view something that delicacy, purity, and decency forbid to be exposed; lewd; indecent; as, obscene language, dances, images.'

lewd

'4. Lustful; libidinous; lascivious; unchaste * * *.

'Syn.-Licentious, lecherous, dissolute, sensual; debauched, impure; obscene, salacious, pornographic.' lascivious

'1. Wanton; lewd; lustful.

'Syn.-Licentious, lecherous, libidinous, salacious.' indecent

'Not decent; specif.: a Unbecoming or unseemly; indecorous * * *

Syn.-Immodest, impure; gross, obscene.'

filthy

'1. Defiled with filth, whether material or moral; nasty; disgustingly dirty; polluting; foul; impure; obscene.

'Syn.-Squalid, unclean, gross, licentious.'

vile

'2. Morally contaminated; befouled by or as if by sin; morally base or impure; wicked; evil; sinful * * *.

'3. * * * unclean; filthy; repulsive; odious * * *.

'Syn.-Cheap (despicable), debased; depraved; corrupt, sordid, vicious; disgusting, loathsome, foul.' To the same effect see Webster's New International Dictionary (unabridged, 3d ed. 1961).

^5  The first federal statute bearing on obscenity was the Tariff Act of 1842 which forbade the importation of 'indecent and obscene' pictorial matter and authorized confiscation. 5 Stat. 566 567. In 1865 the Congress passed the first Postal Act touching on the mailing of obscene matter, making it a crime to deposit an 'obscene book * * * or other publication of a vulgar and indecent character' in the mails. 13 Stat. 507.

The reenactment of the 1865 Act in the codification of the postal laws in 1872 did not change the several adjectives describing the objectionable matter. 17 Stat. 302. The Comstock Act, 17 Stat. 598, added the descriptive terms 'lewd' and 'lascivious' so that the proscription then included any 'obscene, lewd, or lascivious book * * * or other publication of an indecent character,' but this Court in Swearingen v. United States, 161 U.S. 446, 450, 16 S.Ct. 562, 563, 40 L.Ed. 765, held that the words 'obscene, lewd or lascivious' described a single offense. In 1909 the phrase 'and every filthy' as well as the word 'vile' were included in the provisions of the Comstock Act, 35 Stat. 1129. In 1955 the words were arranged in their present order. 69 Stat. 183. The Court of Appeals for the First Circuit noted that the words 'indecent, filthy or vile' are limited in their meaning by the preceding words 'obscene, lewd, lascivious,' and that all have reference to matters of sex. Flying Eagle Publications, Inc. v. United States, 273 F.2d 799, 803.

^6  'Obscene libel' in English usage simply means obscene material, being derived from libellus, 'little book.' See St. John-Stevas, Obscenity and the Law, 24.

^7  The passage referred to in Regina v. Hicklin was the following: 'I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. Now, with regard to this work, it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.' (1868) L.R. 3 Q.B., at 371.

The quotations from Regina v. Close and the Hicklin case are not intended to signify our approval of either the 'tendency to deprave' or 'sexual thoughts' test, but only to emphasize the two elements in the legal definition of 'obscene.'

^8  This definition was approved by the Institute, as part of the 'Proposed Official Draft,' at its annual meeting in Washington, D.C., in May 1962.

^9  It is also evident that the Judicial Officer of the Post Office Department and its counsel entertained the same mistaken view of Roth. The Report of the Judicial Officer did not address itself directly to the inherent indecency aspect of the magazines, except to the extent that such factor was tangentially involved in the findings already summarized (supra, 370 U.S., p. 481, 82 S.Ct., p. 1434). The same is true of the expert testimony adduced by government counsel at the administrative hearing.

^10  The 1958 amendments to 18 U.S.C. § 1461, 72 Stat. 962, 18 U.S.C.A. § 1461, authorizing criminal prosecution at the place of delivery evince no purpose to make the standard less than national.

^11  No issue was presented in Roth as to the obscenity of any of the materials involved. 354 U.S., at 481, n. 8, 77 S.Ct. at 1306.

^12  See cases cited, 370 U.S., p. 490, 82 S.Ct., p. 1438.

^13  'The magazines contained little textual material, with pictures of male models dominating almost every page * * *. The typical page consisted of a photograph, with the name of the model and the photographer and occasional references to the model's age (usually under 26), color of eyes, physical dimensions and occupation. The magazines contained little, either in text or pictures, that could be considered as relating in any way to weight lifting, muscle building or physical culture * * *.

'Many of the photographs were of nude male models, usually posed with some object in front of their genitals * * *; a number were of nude or partially nude males with emphasis on their bare buttocks * * *. Although none of the pictures directly exposed the model's genitals, some showed his pubic hair and others suggested what appeared to be a semi-erect penis * * *; others showed male models reclining with their legs (and sometimes their arms as well) spread wide apart * * *. Many of the pictures showed models wearing only loin cloths, 'V gowns,' or posing straps * * *; some showed the model apparently removing his clothing * * *. Two of the magazines had pictures of pairs of models posed together suggestively * * *.

'Each of the magazines contained photographs of models with swords or other long pointed objects * * *. The magazines also contained photographs of virtually nude models wearing only shoes, boots, helmets or leather jackets * * *. There were also pictures of models posed with chains or of one model beating another while a third held his face in his hands as if weeping * * *.'

^14  Since Congress has sought to bar from the mails only material that is 'obscene, lewd, lascivious, indecent, filthy or vile' and it is within this statutory framework that we must judge the materials before us, we need not consider whether these magazines could constitutionally be reached under 'a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger.' Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213.

^15  A number of such photographs were seized by the police, possessing search or arrest warrants, but knowledge that these advertisers were selling, or would sell, such photographs was never brought home to any of these petitioners.

^16  Grecian Guild Pictorial carried a notice that it 'does not knowingly use the work of any studio which takes or sells nude, undraped front or side view photographs. The photographers listed above do not offer such photographs.' To be sure this magazine, as did the others, also carried a notation that the publisher was familiar with the work of the advertisers and urged the reader to support them; but this cannot well be taken as an admission of knowledge that the advertisers' works were obscene.

^17  We do not think it would be appropriate at this late stage to remand the case for further proceedings on the issue of scienter. Although suggesting that '(it) is arguable' that scienter is not a necessary element under this part of the statute, the Government undertakes to defend this aspect of the judgment primarily on the premise that it was. The record shows that at the administrative hearing government counsel sought to fasten the petitioners with knowledge that the third-party advertisers were selling 'obscene' material. The Judicial Officer indeed rejected the petitioners' proposed findings that 'the publishers of each of the magazines in evidence * * * had no personal knowledge of the material sold by the advertisers * * *.' To be sure, the record does not disclose whether this was because 'knowledge' was deemed proved rather than that such element was not considered relevant. But on the cross motions for summary judgment, based upon the administrative record, the Government did not undertake to controvert petitioners' allegations that scienter was a necessary element under this part of the statute.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).