Appendix — Ginzburg v. United States

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 14742, 14743, 14744 and 14745

Unitrep States oF AMERICA,

v.

Rate Ginzpurc, Documentary Books, Inc., Eros

Macazine, Inc., anp Liaison News Letter, Inc., Appellants.

Appeals from the United States District Court for the

Eastern District of Pennsylvania

Argued June 16, 1964

Before McLauGcHLiIn, Ka.Lopner and Straey, Circuit Judges

Opinion of the Court

(Filed November 6, 1964)

By McLaveuurn, Circuit Judge.

Appellants were convicted of violating the federal ob-

scenity law, 8 U.S.C. § 1461. All three publications involved

were found to be obscene under the statute. The record

shows that in September, 1962, appellant Eros Magazine,

Inc. of which appellant Ginzburg was editor and publisher,

after a great deal of deliberation endeavored to obtain

what was considered advantageous mailing privileges from

Blue Ball, Pennsylvania. Meeting with no success there, a

similar try was made with the Post Office at Intercourse,

Pennsylvania. Again rejected a final successful effort was

made at the Middlesex, New Jersey Post Office from which

over five million advertisements of Eros were mailed. It is

not disputed that the bulk of the mailings for the three

publications was from Middlesex. In the advertisements

above mentioned, inter alia, appeared the following:

‘The publication of this magazine—which is frankly

and avowedly concerned with erotica—has been

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enabled by recent court decisions * * * to be pub-

lished. ’’

The magazine Eros was thereafter mailed out from Mid-

dlesex. It is with Volume 1, No. 4, 1962 thereof that we

are concerned. Eros is a quarterly. Its price is $25. a

year.

The second publication was mailed in November, 1962.

It was a book which had been originally titled by its author

‘‘The Housewife’s Handbook for Promiscuity’’. That book

so titled had been sold by mail to a selected list by the

author. The title was later changed to read ‘‘ Housewife’s

Handbook on Selective Promiscuity’’. The mailing in this

instance was under the latter title. Its price is $4.95.

The third publication is a biweekly newsletter called

Liaison. According to the witness Darr who was hired

by appellant Ginzburg as editor of Liaison, Ginzburg told

him that ‘‘* * * Liaison was to cover the same scope [as

Eros], in a more newsworthy fashion.’’ Darr was hired

after he had specially written and submitted a piece titled

‘How to Run a Successful Orgy’’. Ginzburg telephoned

him and asked him ‘‘ When can you start to work?’’ The

particular piece in revised form was published in Liaison.

The price of Liaison was $15, later reduced to $4.95.

The advertising material, concededly not obscene of

itself, was admittedly mailed by appellants on the speci-

fied dates with full knowledge of its contents.

The case was tried to the court, a jury trial having

been waived by appellants. The trial consumed five days.

Appellants were found guilty on all counts on June 14,

1963. Later, at the request of the appellants, on August 6,

1963, the court filed special detailed findings of fact. Sum-

ming up those findings, the court said:

‘‘In conclusion, after a thorough reading and re-

view of all the indicted materials, this Court finds that

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said materials are compilations of sordid narrations

dealing with sex, in each case in a manner designed to

appeal to prurient interests. The are devoid of

theme or ideas. Throughout the pages of each can be

found constant repetition of patently offensive words

used solely to convey debasing portrayals of natural

and unnatural sexual experiences. Each in its own

way is a blow to sense, not merely sensibility. They

are all dirt for dirt’s sake and dirt for money’s sake.’’

We have read, examined and considered the publica-

tions involved in this appeal, ‘‘* * * in the light of the

record made in the trial court, * * *.’’ Jacobellis v. Ohio,

— US. — (P. 11, slip op.) (1964). The only important

question before us is whether the publications are obscene

under the federal statute. Since this calls for a consti-

tutional judgment it is our duty to decide it. Under the

obscenity tests laid down by the Supreme Court, the Con-

stitutional status of the publications ‘‘* * * must be deter-

mined on the basis of a national standard.’’ Jacobellis,

supra, p. 10, slip op. This is peculiarly fitting here where

over five million advertisements for the Eros material

were mailed out to prospects in this country.

Also we have very much in mind that as the Supreme

Court stated in Roth v. United States, 354 U.S. 484 (1957) :

‘*All ideas having even the slightest redeeming

social importance—unorthodox ideas, controversial

ideas, even ideas hateful to the prevailing climate of

opinion—have the full protection of the guaranties, un-

less excludable because they encroach upon the limited

area of more important interests. But implicit in the

history of the First Amendment is the rejection of

obscenity as utterly without redeeming sovial impor-

tance.’’

The Court went on to say, p. 487, that ‘‘* * * sex and

obscenity are not synonymous”’ and ruled on p. 487 that

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‘‘Obscene material is material which deals with sex in a

manner appealing to prurient interest.’’ It quoted with

approval the American Law Institute, Model Penal Code,

proposed official draft (May 4, 1962), § 251.41(1):

scc# * * A thing is obscene if, considered as a

whole, its predominant appeal is to prurient interest,

i.e., a Shameful or morbid interest in nudity, sex, or

excretion, and if it goes substantially beyond cus-

tomary limits of candor in description or representa-

tion of such matters * * *.’’’

The same necessary quality named in Roth, supra, and

Jacobellis, supra, as affronting current national community

standards is described in Manual Enterprises v. Day, 370

U.S. 478, 482 (1962) as ‘‘ ‘patent offensiveness’ or ‘inde-

cency’’’. At pages 483, 484, the Day opinion, speaking of

the federal obscenity law, notes that ‘‘* * * the statute

since its inception has always been taken as aimed at

obnoxiously debasing portrayals of sex. * * * the statute

reaches only indecent material which, as now expressed in

Roth v. United States, supra, at 489, ‘taken as a whole

appeals to prurient interest’.’’

This brings us to the special circumstances revealed

in the present appeal. We are not dealing with a novel

by a well known novelist, written as and for a work of fie-

tion with a firm base of opposition to well defined then

existing social conditions, which was held mailable be-

cause its ‘‘* * * predominant appeal * * * [was] demon-

strably not to ‘prurient interest’.’’ Grove Press v. Chris-

tenberry, 276 F.2d 433, 437 (2 Cir. 1960). Nor have we in

this appeal anything comparable to the autobiographical

account of the scabrous life of a writer of some preten-

tions, where numerous revolting episodes were part of a

text which the Supreme Court of Massachusetts (184

N.E.2d 328, 334 (1962)) accepted ‘‘* * * as a conscious

effort to create a work of literary art.’

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What confronts us is a sui generis operation on the

part of experts in the shoddy business of pandering to

and exploiting for money one of the great weaknesses of

human being. Appellants’ fundamental objective obvi-

ously was and is to, more or less openly, force their invi-

tations to obscenity upon the American public through the

United States mails. They did this in reliance on their

own ill conceived theory that all barriers to obscenity

have in effect been removed. They were not concerned

with trying to circulate authentic artistic efforts that may

incidentally have four letter words or nudity or sex as an

integral part of a work, whatever art form it may be.

Eros was declared as avowedly concerned with one thing,

what in the prospectus is described as ‘‘erotica’’ and

which, it is stated, has been enabled to be published ‘‘by

recent court decisions.’’? (Emphasis supplied). An unde-

niable example of what was meant by erotica is the content

of Eros, Vol. 1, No. 4.

Seemingly to soften their approach and to pick up what-

ever support that might be available, appellants offer

separate defenses for each of the publications. For Eros

it is claimed in the brief that it ‘thas redeeming social

importance with respect to literary and artistic values’’.

Having in mind the above proclaimed objective, even a

casual reading makes it readily apparent that bits of non-

statutory material have simply been laced into the obscene

structure which is the Eros volume in evidence with the

intent of creating that impression. This seems to us not

just frivolous but a bold attempt to pioneer both in the

elimination of the law itself and in the collection of the

resultant profits. We have not seen nor been referred to

any decision which countenances that sort of brazen

chicanery. If permitted, it would stultify the carefully

wrought formula whereby the basic law guarding the

national community from obscenity is upheld but not

at the expense of honest ideas founded on at least some

social importance even if it be but the slightest.

PEELE PT RL ORES IEE LR Te 5s

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From our own close reading and scrutiny of Eros, its

basic material predominantly appeals to prurient interest;

it is on its face offensive to present day national com-

munity standards, and it has no artistic or social value.

The sham device of seeking to somewhat cloak the con-

tent with non-offensive items falls of its own evil weight.

Cf. Kahm v. United States, 300 F.2d 78 (5 Cir. 1962).

It is asserted that the Handbook has some social-

scientific importance. Testimony along that line was ex-

pressly disbelieved by the trial judge. Our own reading

and examination of this work leads us to the same con-

clusion. The original title to the book gives its real pur-

pose. That title, ‘‘The Housewife’s Handbook for Pro-

miscuity’’ is a fitting capsule description of the content.

The mere change in the title, making it sound like some

sort of a text book or tract, shows the arrogant insistence

of these appellants that raw obscenity is at this time prop-

erly an element of national community life. There is

nothing of any social importance in the Handbook. It is

patently offensive to current national community standards.

Applying those standards to the average person its domi-

nant theme as a whole appeals to prurient interest.

Appellants would have it that the book fits into the

same category as ‘‘Fanny Hill’’, found not obscene by the

New York Court of Appeals in Larkin, et al. v. G. P.

Putnam, — N.Y.2d — (opinion filed July 10, 1964). What-

ever may eventually be the outcome of that litigation, it

has no bearing on this appeal for, inter alia, it was there

specifically held as to the book that ‘‘It has a slight literary

value and it affords some insight into the life and man-

ners of mid-18th Century London.”’

It is argued that Liason, the newsletter, is without

the statute, on the ground that it does not appeal to

prurient interest. As we have seen, according to Ginzburg,

the directing head of all three publications, the purpose

of Liaison was to cover the same scope as Eros, in a more

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newsworthy fashion. Our study of it bears this out. Its

material openly offends current national community stand-

ards in much the same fashion as does Eros. Taken as a

whole, its appeal is directed to the prurient interest of

the average person in the national community. The type

of thing that it is, as visualized from the test given the

successful candidate for its editor, is confirmed by the

material printed in it. There is no pretension that it

has any social significance or literary merit.

There is defense testimony which would have it that

all three publications are not within the reach of the

statute. The trier of the facts was not persuaded by

it nor are we.

Finding, as we do, that Eros, the Handbook and Liaison

are obscene, affirmance of the convictions on the adver-

tising counts follows as of course.

The contentions of appellants that the convictions on

the Eros and Liaison counts must be reversed because the

trial court failed to find those publications guilty within

the statute are without merit. This is clear as to Eros in

the Special Findings of Fact, Nos. 16, 17, 18, 19, the con-

cluding paragraph of the Findings above quoted and also,

though it is not necessary, in the court’s opinion under the

caption ‘‘Eros Vol. 1, Number 4, 1962.’ The Liaison

Findings, which fully substantiate conviction on those

counts, are Numbers 11, 12, 13, 14, 15, the concluding para-

graph of the Findings and also, though it is not necessary,

the court’s opinion under the caption ‘‘Liaison Vol. 1,

No. 1.”

There is no substance to the complaint regarding the

time of filing of the Special Findings of Fact. Rule of

Criminal Procedure 23(a) provides that: ‘‘In a case tried

without a jury the court shall make a general finding and

shall in addition on request find the facts specially.’’

Rar SSRI He eager RR poe aE RS

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The trial court’s comment in its opinion on this point

which is in strict accord with the record, is as follows:

‘‘During the trial the Court made it clear to counsel

on more than one occasion that the entry of special

findings would be delayed beyond the entry of a gen-

eral finding if a general finding of guilty was to be

entered on any of the counts. There were no objec-

tions by defendants’ counsel to this proposed pro-

cedure. Thus, any objection to the delayed entry of

special findings was waived by silence on the record.

Likewise after verdict was rendered by the Court, no

objections were stated for the record at that time.

‘‘On the merits, this was not an ordinary criminal

case where fundamental operative facts had to be de-

termined. Most of the facts are not clear and precise

but instead are mixed with questions of law. This is

the nature of the case. It is necessary in such a case

for the Court to carefully consider all the legal ramifi-

cations of the factual setting, which is really largely

agreed upon. Such careful consideration requires de-

tailed legal research and assistance of counsel. Conse-

quently, the Trial Court requested proposed findings

and such other assistance as counsel could offer. De-

fendants were not precluded from submitting findings

but apparently chose not to do so. We find no merit

in this issue raised by them, apparently as an after-

thought.’’

Under the facts the findings were filed promptly and

properly within the above rule.

It is also asserted that the trial court converted evi-

dence of criminal intent admissible against one defendant

into proof of criminal intent on the part of all defendants.

This concerns the two unsuccessful attempts to mail out

Eros advertising material. The successful mailings from

Middlesex were for all three publications. The point is

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de minimis in any event. The stipulation between counsel

for the parties and approved by the court states that the

advertising material was mailed by the defendants on the

occasions alleged in the indictments with full knowledge

of the contents thereof. We do not find the slightest indi-

cation of any substantial confusion on the part of the

trial judge with reference to the attempted mailings and

mailings of the material involved in the appeal.

Appellants object to the admission of the rebuttal testi-

mony of Government witness, Dr. Frignito. This testi-

mony was rightfully presented and received as rebuttal

evidence. The witness’ complete answer as to the effect

of the Handbook makes it evident that he was considering

the book’s effect on the entire community, not some group

| thereof. We find no error in this connection.

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Appellants claim error because at the time of the de-

fense motions for dismissal of the indictment and for

acquittal at the end of the Government’s case, the trial

judge who had read the indictment, as he says in his

opinion, had not read at that time ‘‘* * * each and every

word or sentence of each of the indicted materials * * *’’

but, as he further said, ‘‘* * * the Court read enough of

the indicted materials to be able to rule as a matter of

law that the Government had made out a prima facie

ease.’? There is no prejudicial error in this incident.

Finally, appellants urge that the court erred in strik-

ing the affidavit and exhibits in support of the defense

motion to dismiss the indictment. The defense on that

motion was correctly limited by the court to the face of

the indictment and whether it accurately charged the named

offenses and gave adequate notification thereof to the de-

fendants. The defense attempted by the affidavit and let-

ters to put before the court in ex parte form, opinions from

various sources favorable to the Handbook. These were

trial matters and so held by the judge.

The district judge was acutely aware of the issue of con-

stitutional law raised in this action. He was conversant

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with the Supreme Court’s views on the federal obscenity

statute and was guided accordingly. Our study of the

record, including the transcript and convicted materials,

establishes that he tried it fairly, carefully and compe-

tently. He made no substantial errors of law. We are

convinced that, under the evidence, he was justified in

finding the defendants guilty on all counts. As we have

indicated, we have independently arrived at that same

conclusion.

The judgments of the district court will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit.

APPENDIX B

Constitutional Provisions Involved:

First Amendment: Congress shall make no law * * *

abridging the freedom of speech, or of the press * * *.

Fifth Amendment: No person shall be held to answer

for a capital or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, * * * nor be

deprived of life, liberty, or property, without due process

“<a ©,

Sixth Amendment: In all criminal prosecutions, the ac-

cused shall * * * be informed of the nature and cause of

the accusation * * *.

Statute Involved:

§ 1461. Mailing obscene or crime-inciting matter:

Every obscene, lewd, lascivious, indecent, filthy or vile

article, matter, thing, device, or substance; and—

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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; and

Is declared to be nonmailable matter and shall not be

conveyed in the mails or delivered from any post office or

by any letter carrier.

Whoever knowingly uses che mails for the mailing, car-

riage in the mails, or delivery of anything declared by

this section to be nonmailable, or knowingly cavses to be

delivered by mail according to the direction thereon, or at

the place at which it is directed to be delivered by the per-

son to whom it is addressed, or knowingly takes any such

thing from the mails for the purpose of circulating or dis-

posing thereof, or of aiding in the circulation or disposi-

tion thereof, shall be fined not more than $5,000 or im-

prisoned not more than five years, or both, for the first

such offense, and shall be fined not more than $10,000 or

imprisoned not more than ten years, or both, for each

such offense thereafter.

The term ‘‘indecent’’, as used in this section includes

matter of a character tending to incite arson, murder, or

assassination.

Rule Involved:

Federal Rules of Criminal Procedure. Rule 23. Trial

by Jury or by the Court:

* * *

(c). Trial Without a Jury. In a case tried without a

jury the court shall make a general finding and shall in

addition on request find the facts specially.