Evening star., 1946-02-10
Mails Remain Barred
To Obscene MoteriuI
High Court Ruling in Esquire
Case Viewed as Limited
By J. A. For

In the Esquire case decision permit
ting the Varga girls to continue their
gambols unfettered by Federal edict, the
Supreme Court struck blow at censor
ship, but at the same time seemingly
made it clear that postal authorities are
not to be hindered in efforts to bar from
the mails obscene and other matter of
related nature.
In proposing to withdraw the second
class mailing rates from Esquire move
which would have added $500,000 an
nually to the publications carrying
costs-former Postmaster General Frank
G. Walker did not allege that 1t was nom
mailable, the category in which obscene,
seditious and fraudulent printed matter
falls. Had that been the departments
contention, the case would have shaped
up differently, involving criminal sane
tions along with denial of the use Of the
mails. AS Justice Douglas pointed out,
the former Postmaster General simply
argued that the sophisticated Esquire
was not devoted to the kind of 1itera-
ture' or art which may claim the sub
sidy of second-class matter; its mail
ability was not at issue.
The law covering second-class mail,
Justice Douglas said, plainly adopted
strictly objective test and left no discre-
tion to the postal authorities to with
hold the second-class privilege from a
mailable newspaper or periodical because
it failed to meet some standard of worth
or value or propriety."
Going a step further, the court in
terpreted the literature" and art"
standards set out in the postal statutes
as relating solely ito the formal of
the publication and to the nature of
its contents, but not to their quality.
worth or value" and as meaning mo
more than publications which convey
ideas by words, pictures or drawings"
1t was on this premise that the
court said that to uphold the order re-
voking the publications second-class
rating would grant the Postmaster Gen.
eral "a power of censorship" power
which was characterized as so abb
horrent to our traditions that pur-
pose tby Congress) to grant it should
not easily be inferred"
"a requirement that literature or aW
conform to some form prescribed by an
official smacks of an theology foreign
to our system" the court continued
THE basic values implicit in the re-
quirements (of the law can be served
only by uncensored distribution of lit
erature. From the multitude of COM
peting offerings the public will pick
and choose. What seems to one to be
trash may have for others fieeting or
even enduring values.
But to withdraw the second Glass
rate from this publication today because
its contents seemed to one official not
good for the public would sanction with
drawal of the second-class rate to-
morrow from another periodical whose
social or economic view seemed harm
full to another official. The validity
of the obscenity laws is recognition that
the mails may not be used to satisfy
all tastes, no matter how perverted.
But Congress has left the Postmaster
General with no power to prescribe
standards for the literature or art which
a mailable periodical disseminates.
It is because the court, whose decision
was reached unanimously, laid repeated
emphasis on the fact that it was deal
ing with a mailable publication that
postal authorities take the view that by
implication, at least. their authority in
controlling the flow of nonmailable
matter has been strengthened rather
than weakened by the judicial defeat.
The machinery for determining if
matter is nonmailable is the same as
that used in the Esquire case board
created by the Postmaster General holds
hearing. and its findings are review
ed by that official. The Postmaster
General is the court of last resort with
in the department, and it is interesting
to recall in this connection that Mr..
Walker overruled his board in revok-
ing Esquire's second-class rates.
While there has been substantial
body of law built up by litigation in
volving nonmailable publications, the
Esquire case was the first of Its kind
to get into the courts, and the decision,
consequently, establishes precedent. OBJ
servers who had watched its progress
had thought 1t possible the Supreme
Court might take the opportunity Offer
ed to expound its views on the rights
Of publications generally to enjoy Sec
ond-class rates, because of the cele-
brated decision in the Milwaukee Pub
fishing Co. case two decades ago.
when the court said that the use of the
mails is privilege which may be ex-
tended or withheld on any grounds
whatever. This ruling, which denied
the mails to the newspaper published
by Victor Berger, socialist leader, under
the World War Espionage Act, drew
vigorous dissent from Justices Holmes
and Brandeis, and Justice Douglas re-
ferred to this. The Esquire decision
however, went no further than to stress
that such principle could not be fol-
lowed in the present instance.
The German EIae+