One, Incorporated vs.

all time past and future, but is designed to fit the normal. American concept in the age in which we live. It is no legitimate argument that because there are social groups composed of moral delinquents in this or in other countries, that their language shall he received as legal tender along with the speech of the great masses who trade ideas and information in the honest money of decency."

It is difficult to determine if the article contained on page 29 under the caption "FOREIGN BOOKS AND MAGAZINES THAT WILL INTEREST YOU", is an advertisement for the magazine "The Circle" or is merely information given by the publisher of "ONE" to its readers as to where to obtain other books and magazines that may be of interest. Regardless, the situation is the same, if information is given as to where, or how, or from whom, or by what means, obscene or filthy material may be obtained. Although on its face the information in this article appears harmless, it cannot be said that the purpose is harmless. It is for the information of those who read the magazine and particularly the homosexuals. It conveys information to the homosexual or any other reader as to where to get more of the material contained in "ONE."

An examination of "The Circle" clearly reveals that it contains obscene and filthy matter which is offensive to the moral senses, morally depraving and debasing, and that it is designed for persons having lecherous and salacious proclivities.

The picture and the sketches are obscene and filthy by prevailing standards. The stories All This and Heaven Too", and "Not Til the End", pages 32-36. are similar to the story "Sappho Remembered, except that they relate to the activities of the homosexuals rather than lesbians. Such stories are e obscene, lewd and lascivious. They are offensive to the moral senses, morally depraving and debasing. Such literature cannot be classed as historical, scientific and educational for any class of persons. Cheap pornography is a more appropriate classification.

Plaintiff contends that the magazine "ONE" when read as a whole is not obscene or filthy within the meaning of these words. In Besig v. United States, supra, we held that the book as a book must be obscene to justify its libel and destruction, but

we also held that neither the number of the "objectionable" passages nor the proportion they bear to the whole book are controlling. The magazine under consideration, by reason of the articles referred to, has a primary purpose of exciting lust, lewd and lascivious thoughts and sensual desires in the minds of the persons reading it. Moreover, such articles are morally depraving and debasing. The articles mentioned are sufficient to label the magazine as a whole, obscene and filthy.

In Parmelee v. United States, 113 F2d 729, speaking of the "book as a whole" doctrine, the court having before it a related problem, said:

"Although the word (obscene) has been variously defined, the test in many of the earlier cases was that laid down by Lord Chief Justice in Regina v. Hicklin (3 Q.B. 350. 369, 1868), as follows: 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. And the rule was applied to those portions of the book charged to be obscene rather than to the book as a whole. But more recently this standard has been repudiated, and for it has been substituted the test that a hook must be considered as a whole, in its effect, not upon any particular class, but upon all those whom it is likely to reach."

The point that the action of the defendant in refusing to transmit the magazine in the United States mails, is arbitrary, capricious, an abuse of discretion and unsupported by the evidence, is without merit. The only argument to sustain this point is that the magazine is not obscene or filthy under the standards set forth in 18 U.S.C.A. 1461. We have decided otherwise.

Plaintiff also contends that it has been deprived of the equal protection of the laws. In the trial court, plaintiff 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. There is nothing in the record to show that plaintiff has been denied the equal protection of the laws. Section

Otto K. Olesen

1461 Title 18 U.S.C.A. is applicable to all matter declared by: the statute to be non-mailable, without regard to the character of the persons or class of persons seeking to use the mails for the dissemination of non-mailable matter.

Plaintiff's contention that there has been a denial of due process of law is without merit. Plaintiff commenced this action in the trial court and stipulated that the only issue in the case should be determined by the court on the motions for summary judgment and the affidavits filed by each of the parties. There has been a full and fair trial upon proper notice and the issues presented. It does not appear from the record that plaintiff has been deprived of property or liberty without due process of law. Based upon our comments and observations heretofor given we hold that the from is affirmed. the record discloses no prejudicial error and the judgment appealed:

(Endorsed:) Opinion. Filed Feb. 27, 1957.

Paul P. O'Brien, Clerk.

PERNAU-WALSH PRINTING CO., SAN FRANCISCO 2-28-57-160

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