Roth v. Goldman , 172 F.2d 788 ( 1949 )

PER CURIAM.

This injunction action serves to bring up for review the validity of five orders of the Postmaster General, entered after administrative proceedings and hearings, excluding from the mails three books published by plaintiff under various trade names. The vagaries of censorship are perhaps suggested by the fact that only one of these books was excluded as “obscene, lewd, or lascivious,” 18 U.S.C.A. §§ 334, 339 [now §§ 1461, 1342], 39 U.S.C.A. § 255, while all material concerning the others was held unmailable because of the steps taken to secure mail orders for them by fraudulently advertising them to be salacious when they were not. 39 U.S.C.A. §§ 259, 732. The orders involving these latter books actually cause us the less difficulty just because the standards of fraud are at least somewhat clearer than those of obscenity. There can be little doubt of the misleading character of the condemned advertising or of the sufficiency of the evidence to sustain these administrative findings.

The other order, based upon a finding of obscenity as to a single book, naturally presents more of a problem because of the imprecise judicial meaning of the statutory terms and the many doubts now held as to the feasibility of administrative or judicial review of book publishing mores and standards. Involved here is a collection of some ninety-six “waggish tales,” supposed to have been brought down to us from another era and another clime, and sold through the mails at the special discount of $10 from the listed $20 per volume. Our task is not made easier, however, when we discover them to be American-made or shared smoking room jests and stories, obscene or offensive enough by any refined standards and only saved, if at all, by reason of being both dull and well known. It is urged that such material is not of the sort to stimulate lust. Waiving the question how a court may test such a claim, we may suggest the curious dilemma involved in a view that the duller the book, the more its lewdness is to be excused or at least accepted. If under existing decisions, however, there be some reason to suppose that only books which are dull and without substantial literary merit will be suppressed, it may be answered that within limits it perhaps is not unreasonable to stifle compositions that clearly have little excuse for being beyond their provocative obscenity and to allow those of literary distinction to survive. But in any event, decision under the law here applicable is committed in the first instance to an administrative official; and under normal rules, therefore, judicial review channelled within the confines of a plea for an injunction should not be overextensive. Certainly material such as this does not afford much stimulus or basis for a finding of abuse of administrative discretion or power

Affirmed.