WHOLE must be considered, not isolated passages. It is the dominant tone which controls!! The intent of the author, and his sincerity and honesty are relevant . . . .'

"The standard must be the likelihood that the work will so much arouse the salacity of the reader to whom it is sent as to outweigh any literary, scientific or other merits it may have in that reader's hands. ." The subjective test of the obscenity of the matter is its effect on the AVERAGE reader, not the EXCEPTIONAL reader."

ARGUMENT: "III. The Magazine Taken as a whole is Not Obscene, Lewd, Lascivious, or Filthy.

"It is established law that the entire publication must be considered, not merely portions thereof The dominant tone of the work

is the controlling factor; incidental stimulation is irrelevant.'

The statute does not bar from the mails an obscene phrase or an obscene sentence. It bars an obscene (book, pamphlet***or other publication***) If a publication as a whole is not stimulating to the senses. of the ordinary reader, it is not within the statute."

"A reading of the entire magazine shows that the magazine as a whole is serious, responsible, sincere. It is true that its serious articles are balanced by fiction and humor, but it is obvious that the serious articles are not merely window dressing.'.

"The dominant tone of the magazine is one of sincerity. It is an attempt to grapple with a social problem of the deepest order in terms comprehensible and palatable to laymen. It strives to create understanding of an extremely knotty social problem.

"Yet an examination of the District Court's opinion clearly shows that his findings of fact and conclusions of law are based, not on the magazine as a whole, but on three isolated excerpts taken out of context . . . .

"It is clear from a reading of the District Court's opinion in this case, also, that the District Judge did not take into account at all the motives or intent of the publishers of ONE . . . .

ARGUMENT: "VI. A Comparison of Other Literature on the Same Subject Offered for Public Sale at the Same Time as the Instant Work and Freely Transmitted in the Public Mails Shows that the Instant Work is Not Obscene, Lewd or Lascivious Under Prevailing Literary Standards.

Appellant has appended to this brief, an Appendix in which are set forth excerpts taken from books and magazines which were being offered for public sale and reading at book stores, drug stores, newsstands and public libraries at or about the same time as the Postmaster refused to transmit the October, 1954 issue of ONE. These excerpts all deal with the same subject matter as is dealt with in the instant work, to wit, homosexuality.

"This writer knows of no official action being taken by the postal authorities to declare any of the magazines or works quoted from to be 'non-mailable.'

"The fact that these books and magazines are offered for public sale, and even carried in public libraries and some of which have the status of minor classics indicates that, under prevailing standards of public