The opinion
FAHY, Circuit Judge,
concurring.
In addition to making it a crime tmail the matter it describes, the statute, 18 U.S.C. § 1461 (1952), declares the *120 matter to be nonmailable, and provides that it shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Thus, as it seems to me, the statute is not solely a criminal one but is also one which closes the mail to obscene matter. This is not inconsistent with the First Amendment, Roth v. United States, 354 U.S. 476 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 or beyond the federal power; so that even though there has been no conviction of crime, there is reached the question whether the matter is of the kind the statute describes as nonmailable. The standards for determining this have been laid down by the Supreme Court, and the Department was here governed by equivalent standards; the Department applied the standards of the “dominant theme” and of the “contemporary community.”
I do not disagree with the conclusion reached. Pictures permeate the magazine and the pictures are dominated by those which the contemporary community deems indecent. If this is so it cannot be but immaterial that much innocent text also appears in the magazine.
This leaves the question whether the departmental procedure met the requirements of due process. In Kingsley Books, Inc. v. Brown, 354 U.S. 436 , 77 S.Ct. 1325, 1326 , 1 L.Ed.2d 1469 , the Court sustained the New York “limited injunctive remedy” under the Fourteenth Amendment, applicable to state statute. I think the prompt and speedy administrative process accorded in the present case cannot be distinguished on a Fifth Amendment level, applicable to federal statute, from the procedure sustained in Kingsley Books. After the magazine was held, a longer time elapsed here than in that case before the nonmailable decision was reached; but the Department moved expeditiously — in fact appellant requested additional time. 1
Further congressional attention to procedure might be desirable, but this is not to say that the courts should hold invalid the procedure here followed, unless it is to be held that only a court or jury is capable under the Constitution of determining in the first or preliminary instance the question of obscenity.
. In Walker v. Popenoe, 80 U.S.App.D.C. 129 , 149 F.2d 511 , the order barring the pamphlet from the mails was issued without notice or hearing.