UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ONE, INCORPORATED, a corporation,

VS.

Appollant,

No. 15,139

OTTO K. OLESEN, individually and as Postmaster Feb. 27, 1957. of the City of Los Angeles,

Appellee.

Appeal from the United States District Court for the Southern District of California, Central Division.

Before: BARNES and HAMLEY, Circuit Judges, and ROSS, District Judge.

ROSS, District Judge.

The plaintiff, ONE, INCORPORATED, a Californin corporation, is the publisher of the magazine entitled "ONE", which carries with it the designation, "THE HOMOSEXUAL MAGAZINE", and is published monthly in the City of Los Angeles, California. The defendant, OTTO K. OLESEN, is the POST. MASTER of the City of Los Angeles, California.

Plaintiff delivered to the United States Post Office at Los Angeles, California, for transmission to various parts of the United States, several hundred copies of the October 1954 issue of "ONE", and was subsequently notified by the defendant that all copies so deposited for mailing were being withheld from dispatch for the reason that he considered the October 1954 issue of "ONE" obscene, lewd, lascivious and filthy, and as such constituted non-mailable matter under the provisions of Section 1461 of Title 18 U.S.C.A., and Section 36.2 of Vol. 29, Code of Federal Regulations (1949). Subsequently, all copies of the magazine were returned by the POSTMASTER to the plaintiff.

Plaintiff then commenced this action seeking a judgment declaring the October 1954 issue of "ONE" lawful and mailable, and an injunction against the POSTMASTER, his agents, serv ants and employees enjoining them from in any manner failing or refusing to dispatch in the regular course of mail the October 1954 issue of "ONE."

In the trial court, the parties stipulated that the only issue involved was whether the October 1954 issue of "ONE" is non-mailable matter under the provisions of 18 U.S.C.A. 1461. and that such issue should be determined on the motions for summary judgment and the affidavits filed by each of the parties.

The trial court concluded that the POSTMASTER properly refused to transmit the October 1954 issue of "ONE" in the United States mails because it constitutes non-mailable matter under the provisions of 18 U.S.C.A. 1461. From this adverse judgment, plaintiff appeals and asserts the following specifications of error:

1. The October 1954 issue of "ONE" is not lewd, lascivious, obscene or filthy, under the standards set forth in 18 U.S.C.A. 1461, and the Findings of Fact set forth in Paragraph VI of the trial court's Findings of Fact, Conclusions of Law and Judg ment, are erroneous as a matter of law and fact.

2. That action of the defendant in refusing to transmit said magazine is arbitrary, capricious and an abuse of discretion, unsupported by evidence, deprives plaintiff of equal protection of the laws and constitutes a deprivation of plaintiff's property and liberty without due process of law, and that therefore, the trial court's Conclusions of Law, specifically Paragraph I thereof, are erroneous as a matter of law and fact.

All of the evidence is in writing so we will review the entire evidence, giving due consideration to the findings and conclusions of the trial court. United States v. United States Gypsum Co... 333 U.S. 364, 394, 395, 68 S.Ct. 525, 92 L.Ed. 746: Besig v. United States, 9 Cir. 1953, 208 F2d 142, 144; Orvis v. Higgins, 9 Cir. 1950, 180 F2d 537, 539; Equitable Life Assurance Soc. v. Irelan. 9 Cir. 1941, 123 F2d 462, 464; Rule 52(a) F.R.C.P. 28 U.S.C.A. The trial court in Paragraph 6 of its Findings of Fact, referred to by plaintiff in its specifications of error, made the following findings:

1. The story "Sappho Remembered" appearing on pages 12 through 15, is obscene because lustfully stimulating to the homosexual reader..

2. The poem "Lord Samuel and Lord Montagu", appearing on pages 18 and 19, is obscene because of the filthy language used in it.

3. The advertisement for the Swiss publication The Circle" appearing at the top of page 29, is non-mailable matter because it gives information for the obtaining of obscene matter.

Briefly stated, the specifications of error made by plaintiff. raise but one question, namely: Whether or not the October 1954 issue of "ONE" is non-mailable matter under the provisions of Sec. 1461, Title 18, U.S.C.A.

The pertinent part of Sec. 1461, before the Amendment in 1955, is quoted as follows:

"Every obscene, lewd, lascivious, or filthy book, pamphlet.. picture, paper, letter, writing, print, or other publication of an indecent character; and...

Every written or printed card. letter, circular, book, pamphlet, advertisement, or notice of any kind giving in formation, 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, whether sealed or unsealed: is declared to be non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier..."

Being thus advised we now look into the merits of the appeal. At the outset it is well to dispel any thought that this court is its brothers keeper as to the type of reading to be indulged in. Since the advent of the printing press eminent scholars, includ ing some men of

some men of the bench and bar, have uttered and written imperishable words in defense of the freedom of thought and expression, and the place of a free press in a free world. We need not take issue with this gallant host.

As we view this ense we are only concerned with the proper application of a postal regulation, a prosaic and every day matter of the subministration of the post office department. Section 1461

amounts to no more than that. Approaching the problem in this workaday manner we find that "ONE" has already suffered two reverses in this connection, the first at the hands of the POSTMASTER, the other by reason of the judgment of the District Court sustaining the POSTMASTER'S ruling. At this point it can be observed that there is no dispute on factual matters.

The District Court found that the ruling of the POSTMASTER was reasonable and supported by the proof-the contents of the magazine. Unless we find that the initial order of the POSTMASTER barring the magazine from the mails was arbitrary, or capricious, or an abuse of discretion, or that there are no reasonable grounds in the record to support the District Court in upholding the POSTMASTER'S order, we are required to sustain.

Our problem here is one of the administration of the post office, and that in turn depends on whether or not the matter sought to be mailed, in this instance the October 1954 issue of the magazine "ONE", is obscene, lewd, lascivious, filthy or indecent. These words can only be defined by some disenssion of the moral sense of the public, and it is only to such extent that we are concerned with public morals. In approaching the moral side of the issue here presented we are not unmindful of the fact that morals are not statie like the ever lasting hills, but are like the vagrant breezes to which the mariner must ever trim his sails.

The problem here posed cannot, however, be disposed of in a cavalier manner, for we are dealing with intangibles. Our ultimate conclusion as to whether the magazine is mailable or not must be based upon the effect, or impast, that the wording of the various articles in the magazine have upon the reader. There is no precise pattern for reader reaction, so in determining whether the thought patterns created by the words employed in the magazine articles are obscene, lewd, lascivious, filthy or indecent, we must ascertain how other courts met the problem.

Much is now presented to the public, through eye and car, which would have been offensive a generation ago, but does not today merit a second thought as to propriety. None the less, so long as statutes make use of such words as obscene, lewd,

one