The federal court of appeals in Washington
D.C. ruled on December 16th (1954) that the postmaster general does not have
authority to prevent continued publication of a magazine because certain issues
contained matter adjudged to be obscene.
The court held that orders of the Postmaster
General Summerfield applying to all mail addressed to a group of nudist
magazines. The post office department held that photographs of nude men and
women published with text and on the covers of the magazines were obscene.
Based on this post office department opinion
the postmaster general barred the magazines from the mails, ordered that all
mail addressed to the publications be stamped “unlawful”, and returned to the
senders, and prohibited the payment of any money order drawn in favor of the
magazines which were described in the court's opinion as “nudist magazines
which advocate and explain nudism and the nudist mode of living”.
The complaint of the post office department
did not charge that the text of the magazines was obscene, but only that
photographs of nude men, women and children singly and in groups used to
illustrate the stories and adorn the covers were lewd.
The magazines appealed the postmaster
general's order to the Federal District Court. The court found that the
magazines as a whole were not obscene and granted a permanent injunction
setting aside the order. Summerfield appealed.
The three judges who ruled against the post
office department were Judge George T. Washington and Judge Henry W. Edgerton
who made the majority ruling. Judge John A. Danaher who dissented was the third
member of the three judge appelate court. The majority opinion affirmed the
ruling of the lower court, but went further in limiting the censorship
authority of the postmaster general.
Attorney John Rogge, who was attorney for the
magazines, raised the question on appeal that the postmaster general's
application of the law violated the first amendment of the Constitution, in
that it constituted a prior restraint on freedom of the press. He contended
that the order was based on standards so vague and nebulous as to contravene
the due process clause of the fifth amendment which guarantees that no one
shall be deprived of life, liberty or property without due process of law.
Judge Washington said that the power of the
post office department to exclude material from mails and to intercept mail
addressed to a person or business “touches on basic freedoms”.
“It might even have the effect of a prior
restraint on communication in violation of the first amendment or infliction of
punishment without due process of law which the fifth and sixth amendments
guarantee”.
American Nudist Leader magazine
saluted Ferdinand Magellan who proved that the world is round, and those men,
who, in this instance, proved that the human body is wholesome. We look forward
to the day when the whole country will consider the ancient beliefs of a flat
world and body obscenity as being equally foolish. “Ye shall know the truth and
the truth shall make you free”.
(Source: The Nudist
Newsletter, issue number 38, February, 1955)
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