Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
This is an appeal from a conviction under section 1461 of title 18 U.S.C.*fn1 The subject matter of the section is described in the catch line as "Mailing obscene or crime-inciting matter". The defendants were indicted in a single indictment containing six counts. The case, by stipulation of counsel, was tried by the court without a jury. The judge, as fact finder, found for the defendants on four of the counts and against them on two.
The two counts on which they were found guilty charge that on different dates the defendants knowingly mailed an envelope containing advertisements*fn2 and a notice*fn3 giving information as to where and how obscene pictures and publications might be obtained. It is to be noted that the counts on which the trial judge found the defendants guilty are not those charging the mailing of obscene matter but for mailing advertisements and a notice giving information where and how obscene matter could be obtained. This is one of the matters included in section 1461 above cited.
That section declares certain matter nonmailable and provides punishment for one who knowingly deposits for mailing matter declared by the section to be nonmailable. The fourth paragraph of the section declares nonmailable "[every] written or printed card * * * advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained * * *."
It will be seen that advertising or giving information about any of these nonmailable things, if done by mail, is made a crime in the same fashion as the use of the mails to send any of the prohibited articles.
Did the defendants use the mails for such advertising? The court has made findings of fact which are not disputed. They show the nature of the advertisements which the defendants made. One advertisement was sent out in the name of the Burlesque Historical Company whose only officers are the defendants and who, except for a one day a week stenographer, are the only employees of the company. This advertisement, sent by mail, represents to the recipient that he could secure:
"SEX-sational for the FIRST TIME All Revealing Color Photographs of BURLESQUE QUEENS"
The "actual photographs" promised were to bring out "every Charm of the Female Form Devine." And the female forms were to be shown in the "SEXIEST OF POSES." A sample was enclosed with the circular.
A second advertisement was mailed by defendant Traub to a prospect also under the name of "Burlesque Historical Company." This advertisement went further than the first. The customer was promised "NATURAL BEAUTY IN FULL COLOR," %"better than the marilyn monroe/ CALENDAR." It was stated "These cards cannot be sent through the mail - So this should give you an idea of their nature and what we are talking about! 'Nuff said?" The prospect was warned that the material is not sold to minors and again told that it cannot be sent through the mail.
We have no doubt that the whole tone of both of these advertisements gives the leer that promises the customer some obscene pictures. Indeed, it has been held that under this section the announcement itself is not required on its face to promise obscene material if that is its purpose.*fn4 But here the represented nature of what the customer is to receive is, we think, too clear for argument.
When the case was presented to the court a great deal of the discussion by counsel on each side had to do with whether the specimens of nude or nearly nude "art" fell within the description of obscenity. We do not think that matters. As the Seventh Circuit said in De Gignac v. United States, 1902, 113 F. 197, 201, certiorari denied 1902, 186 U.S. 482, 22 S. Ct. 941, 46 L. Ed. 1266: "The offense here denounced is the giving of information by mail where obscene matter may be obtained. Any communication by mail which does this is actionable. The gist of the offense is the giving of the information by mail. It is not necessary to aver ownership or possession of the obscene matter."
As we have already said, information as to where such obscene matter can be obtained shouts loudly from the words used by the advertising of the defendants. We do not think it is necessary that representations made in these advertisements be true. The statute says "advertisement * * * giving information." The statute does not say that the advertisement must be true or that the information must be accurate. What is forbidden is advertising this kind of stuff by means of the United States mails. We think that the offense of using the mails to give information for obtaining obscene matter is committed even though what is sent in response to the advertisement to the gullible purchasers is as innocent as a Currier and Ives print or a Turner landscape.
It is not, therefore, necessary for us to determine whether these pictures were obscene. The defendants did purport to give information as to where obscene matter could be obtained. That ...