One, Incorporated us.

lascivious, filthy and indecent, we are compelled to define such expressions in the light of today's moral dictionary, even though the definition is at best a shifting one.

The words of the statute, obscene", "lewd", "lascivious". "filthy" and "indecent", are words of common usage and meaning. In considering the scope and meaning of the words the courts have, through the course of the years, given to such words legal definitions and distinctions, following very closely, if not precisely, the definitions and distinctions found in the recognized. standard dictionaries.

Mr. Justice Harlan in delivering the opinion of the court in Rosen v. United States, 161 U.S. 29, 43, 16 S. Ct. 434, 40 L. Ed. 606, said, "Every one who uses the mails of the United States. for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd, and lascivious." In that ease the court approved the following test of obscenity given in an instruction of the trial court: The test of obscenity is whether the tendency of the matter is to deprave: and corrupt the morals of those whose minds are open to such influence and into whose hands a publication of this sort may fall," Would it suggest or convey lewd thoughts and lascivious thoughts to the young and inexperienced ?"

In Dunlop v. United States, 165 U.S. 486, 500, 501, 17 S.Ct. 375, 41 L. Ed. 799, the Supreme Court approved the following instruction:

"Now, what are obscene, lascivious, lewd or indecent publications is largely a question of your own conscience and your own opinion, but it must come before it can be said of such literature or publication--it must come up to this point: that it must be calculated with the ordinary reader to deprave him, deprave his morals, or lead to impure purposes. It is your duty to ascertain in the first place if they are calculated to deprave the morals; if they are calculated to lower that standard which we regard as essential to civilization; if they are calculated to exeite those feelings which, in their proper field, are all right, but which, transcending the limits of that proper field, play most of the mischief in the world.”

In Swearingen v. United States, 161 U. S. 446, 16 S. Ct. 562, 40 L. Ed. 765, the Supreme Court in distinguishing matter which is coarse and vulgar, from obscene, lewd and lascivious matter. held that coarse and vulgar language is not within the meaning of the words, obscene, lewd and lascivious. It was said that the words "obscene", "lewd" and "lascivious", as used in the Statute, signify that form of immorality which has relation to sexual impurity, and that it could not perceive of anything in the coarse and vulgar language used in the questioned letter, which was of a lewd, lascivious and obscene tendeney, calculated to corrupt and debauch the mind and morals of those into whose hands it might fall.

The Supreme Court in United States v. Limehouse, 285 U. S. 424, 52 S. Ct. 412, 76 L. Ed. 843, distinguished filthy matter from obscene, lewd or lascivious matter in holding that filthy material constituted a new class of non-mailable matter.

The Sixth Circuit in Tyomies Publishing Co. v. United States, 211 F. 385, p. 390, defined the word "filthy" as meaning "that which is nasty, dirty, vulgar, indecent, offensive to the moral senses, morally depraving and debasing."

This Court in Magon v. United States, 248 F 201, noted it had been uniformly held in construing the word "obscene", as used in the particular statute, that if the matter were of such nature as would tend to corrupt the morals of those whose minds are open to such influences by arousing or implanting in such minds lewd or lascivious thoughts or desires, it is within the prohibition of the statute.

In Duncan v. United States, 48 F2d 128, on page 132. we stated that the test is whether or not the language alleged to be obscene would arouse lewd or lascivious thoughts in the minds of those hearing or reading the publication. The definition and meaning of the words obscene, lewd and lascivious were again considered by this court in Burstein v. United States (1949), 178 F 2d 665, and in Besig r. United States (1953), 208 F2d

142.

Judge Pope, in Burstein v. United States, 178 F2 665, 9th Cir., approved the following instruction defining obscene, lewd, or lascivious:

Otto K. Olesen

"Matter is obscene, lewd, or lascivious, within the meaning of the quoted statute, if it is offensive to the common sense of decency and modesty of the community, and tends to sug gest or arouse sexual desires or thoughts in the minds of those who by means thereof may be depraved or corrupted in that regard. The true inquiry in this case is whether or not the publication charged to have been obscene was in fact of that character, and if it was, and the defendant knew its contents at the time he deposited it in the mail, it is not material that he, himself, did not regard it as obscene... The true test to determine whether a writing is nonmailable as obscene, lewd, or lascivious is whether its language has a tendency to deprave or corrupt the morals of those whose minds are open to such influences and into whose hands it may fall by allowing or implanting in such minds obscene, lewd, or lascivious thoughts or desires."

For another definition of the words obscene, lewd, lascivious, filthy and indecent, and an attempted differentiation, see Sunshine Book Company v. Summerfield, 128 FS 564. There the court said:

"These definitions are the beacons by which the legal channel is lighted for the court..."

When the approved definitions and tests are applied to certain articles in the "ONE" magazine, it is apparent that the magazine is obscene and filthy and is therefore non-mailable matter.

Plaintiff, as publisher, states on the second page of the magazine that it is published for the purpose of dealing primarily with homosexuality from the scientific, historical and critical point of view-to sponsor educational programs, lectures and concerts for the aid and benefit of social variants and to promote among the general public an interest, knowledge and understand. ing of the problems of variation The story Sappho Remem bered", appearing on pages 12 to 15 of the magazine, the poem Lord Samuel and Lord Montan", on pages 18 and 19, and the information given on page 29 as to where to obtain "The Circle", a magazine "with beautiful photos", do not comport with the lofty ideals expressed on page 2 by the publishers.

The article "Sappho Remembered" is the story of a lesbian's influence on a young girl only twenty years of age but "actually nearer sixteen in many essential ways of maturity", in her struggle to choose between a life with the lesbian, or a normal married life with her childhood sweetheart. The lesbian's affair with her room-mate while in college, resulting in the lesbian's expulsion from college, is recounted to bring in the jealousy angle. The climax is reached when the young girl gives up her chance for a normal married life to live with the lesbian. This article is nothing more than cheap pornography calculated to promote lesbianism. It falls far short of dealing with homosexuality from the scientific, historical and critical point of view.

The poem "Lord Samuel and Lord Montagu" is about the alleged homosexual activities of Lord Montagu and other British Peers and contains a warning to all males to avoid the public toilets while Lord Samuel is "sniffing round the drains" of Piccadilly (London). The poem pertains to sexual matters of such a vulgar and indecent nature that it tends to arouse a feeling of disgust and revulsion. It is dirty, vulgar and offensive to the moral senses. Swearingen v. United States, 161 U. S. 446, 16 S. Ct. 562, 40 L. Ed. 765; United States v. Limehouse, 285 U. S. 424, 426, 52 S. Ct. 412, 76 L. Ed. 843: Tyomics Pub. Co. r. United States, 6 Cir. (1914) 211 F 385, 390; United States v. Roth, 237 F2d 796, 799, 800.

An article may be vulgar, offensive and indecent even though not regarded as such by a particular group of individuals constituting a small segment of the population because their own social or moral standards are far below those of the general community. Social standards are fixed by and for the great majority and not by or for a hardened or weakened minority. As this Court said in Besig v. United States, 208 F2d 142, p. 145:

"It is of course true that the ears of some may be so accustomed to words which are ordinarily regarded as obscene that they take no offense at them, but the law is not tempered to the hardened minority of society. The statute forbidding the importation of obscene books is not designed to fit the normal concept of morality of society's dregs, nor of the different concepts of morality throughout the world, nor for