The basic law on the subject, the United States Code section 1461, reads as follows:

"Every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character . . . is declared to be nonmailable matter... Whoever knowingly deposits for mailing or delivery (such matter) shall be fined not more than $5000 or imprisoned not more than five years, or both."

Thus the law not only forbids the mailing of "obscene, lewd, lascivious or filthy" matter, it makes an attempted mailing of such matter a Federal crime, with heavy penalties attendant.

This law is enforced by the Postmaster General, and by his assistant Postmasters in each city. It is the duty of each local postmaster to screen mail matter originating in his locale (although he cannot examine sealed matter without a warrant), and use his judgment and discretion in banning nonmailable matter. His judgment is regarded as conclusive, and will only be reversed by a reviewing court of law if it is clearly wrong.

In actuality, what happens is this: if the Postmaster suspects a given publication may be nonmailable, he holds up its transmission, and submits a copy of it to the office of the SolicitorGeneral in Washington. The Solicitor-General is, in effect, the Postmaster's attorney. The SolicitorGeneral renders his opinion to the Postmaster, and then the Postmaster acts accordingly, either releasing or confiscating the matter.

ONE'S readers may remember that last year, ONE'S August issue was detained by Los Angeles postal authorities for three weeks, pending a determination by Washington of its mailability. The Solicitor-General decided that ONE was mailable (or, at least, that the August issue was mailable). This, of course, was an important victory for ONE.

II. WHAT IS "OBSCENE"?

The question of precisely what is "obscene, lewd, lascivious or filthy" has, as is to be expected, plagued lawyers and the courts for many years. It is obvious at once that what is "obscene" is a subjective standard which will vary from society to society, and will change within a society as times goes on. Nevertheless, we live in 20th Century America, and must, therefore, study the standards as laid down by the judges of our past 50 years.

"Obscene, lewd and lascivious" have been variously defined by the American courts as, for example, offensive to the common sense of decency and modesty of the community; as tending to suggest or arouse sexual desires or thoughts in the minds of those who might be corrupted thereby; as nasty, dirty, vulgar, indecent, morally depraving or debasing; impure; calculated to excite lustful and sensual desires in those whose minds are open to such influence; foul; disgusting; or descriptive of dissolute or unchaste acts, scenes or incidents.

It has been said further that in order to bar publication from the mails, the likelihood must be that the work will so much arouse the salacity or lusts of the reader as to outweigh any literary, scientific or other merits in that reader's hands. Note also that by "the reader" is meant the Average Reader, not the actual reader.

Examples of mailed matter which has been declared obscene, and the senders prosecuted criminally, are: a letter to a married woman, proposing a meeting for purposes of intercourse; a letter to an unmarried woman, proposing to pay her travel expense plus five dollars if she would submit to intercourse; a letter, in itself free from obscene language, but offering to sell obscene pictures; and a letter from one man to another, suggesting a meeting for homosexual acts.

It is important to note that the classics themselves are not above suspicion. A case is reported in which the Judge's charge to the jury read, in part:

"The defendant's counsel has read in the course of his argument certain passages from certain well-known authors-from Shakespeare, Sterne, Suetonius, and even from the Bible. The passages read, taken in connection with their context, may be, or may not be, obscene or indecent. You are not trying that question, nor will your verdict decide in this case whether the Bible, Shakespeare, Sterne and Suetonius must be excluded from the mails."

In this connection it is of interest to note that at various times in the past, famous classics have in fact been banned as obscene. Such authors and works as Rabelais, the Arabian Nights, Ovid's Art of Love, Boccaccio's Decameron, Confession of Rousseau, Queen Mab by Shelley, and Ulysses by James Joyce, have all been the subjects of famous lawsuits (and all ultimately declared mailable). On the other hand, certain works, such as Tropic of Capricorn, by Henry Miller, are still held nonmailable.

It may be of further interest to note that of all the material which went into one of ONE'S recent issues, the only work which needed deletion, for purposes of avoiding trouble with the law, was some poetry by Walt Whitman!

50