Esquire v. Walker, Part 3
The Postmaster General and "The Magazine for Men"
Spring 1990, Vol. 23, No. 1
By Jean Preer
© 1990 by Jean Preer
Mrs. Harvey Wiley, suffragist and widow of the early proponent of food and drug legislation, also appeared for the Post Office. She viewed the cartoons in Esquire as degrading to women and urged that the government regulate harmful literature as it did adulterated food. On cross examination, Bruce Bromley, of Cravath, De Gersdorff, Swaine, and Wood, the firm representing Esquire, questioned Mrs. Wiley about a photograph of a bathing beauty. Mrs. Wiley somewhat reluctantly deemed it indecent and took exception to the young woman's pose. Bromley then identified the swimmer as Annette Kellerman in a photograph taken thirty years earlier.(23) As it happened, Mrs. Wiley was an admirer of Miss Kellerman, who had attempted a swim of the English Channel and had designed the modern one-piece bathing suit. Mrs. Wiley was incensed at the trick, and the local papers had a good laugh at her expense.(24)
Attorneys for Esquire had a field day with the Post Office witnesses, many of whom, like Mrs. Wiley, actually had scant familiarity with the magazine. Bromley evoked Reverend Marshall's praise of Father Flanagan of Boys Town and critic William Lyon Phelps before revealing that both had contributed to Esquire.(25) Father Flanagan, however, submitted a deposition stating that although an article had appeared in Esquire under his name, he had not knowingly contributed to Esquire, did not subscribe to or read the magazine.(26)
Bromley read a series of jokes to Rabbi Solomon Melz of Washington's Adas Israel Congregation.(27) After eliciting the expected disapproval, Bromley revealed that these examples of borderline humor came not from Esquire but from Reader's Digest. A major part of the Esquire strategy, in fact, involved demonstrating that other magazines, such as Life, carried material similar to that in Esquire but had not been challenged by the Post Office.
On its own behalf, Esquire called a parade of thirty-eight nationally known educators, writers, critics, and scientists. "Needless to say," Arnold Gingrich observed, "many of the witnesses we enlisted were neither regular readers of Esquire nor did they by any means approve of everything in its pages, but we appealed to them on the issue of the threat to the freedom of the press implicit in any one man's right to rescind the mailing privileges that would make a life-and-death difference to most magazines."(28)
A star witness for Esquire was editor and lexicographer H. L. Mencken. In the 1920s the Boston Watch and Ward Society had had Mencken arrested for selling the American Mercury and its offending story, "Hatrack," on Boston Common. Upon his acquittal, Mencken sued the Post Office when it banned the magazine from the mails.(29) The author of a highly respected study, The American Language, Mencken explained why such words as "behind," "fanny," and "backside" were neither lewd nor obscene.(30) Arnold Gingrich later reported that Mencken had refused to accept even carfare to pay for his trip from Baltimore to testify. Mencken said that he had enjoyed himself so much he would have paid to get in.(31)
Even the executive secretary of the New England Watch and Ward Society, Louis Croteau, testified that Esquire "is in the spirit of good clean slapstick humor, and we could use a little more of that right now."(32) Securing Croteau as a witness was quite a coup for Esquire. The Post Office records include a letter from the Watch and Ward Society dated May 4, 1943, and signed by Croteau, commending the Post Office's efforts against popular magazines. "We as an organization are endeavouring to prevent such pernicious literature from reaching the homes of our New England families."(33) The society, however, was particularly concerned with police and detective stories and had not complained specifically about Esquire, which Croteau compared to the New Yorker.
As an expert on such matters, Croteau commented on some of Esquire's objectionable cartoons. One that depicted wartime changes showed a husband, wearing an apron, saying to the milk delivery woman, "Come back later, sweet, my wife hasn't left for the factory yet."(34) Croteau described this as "corny as the hills. The only new feature about it is the subject has been reversed. The husband is playing the part of the wife and vice versa. It has not been considered obscene for probably a hundred years and I don't see how it can be."(35)
A controversial photo featured a staged beach scene in which a young woman sat on the shoulders of a sailor. His face had been replaced with a blank oval, and the reader was invited to "Paste Your Face Here."(36) When counsel for the Post Office alluded to the nasty implications of the picture, Croteau disagreed. "Well," he observed, "of course if one is possessed with a degenerative, moronic mind, I suppose so, but to the average individual who is normal, why I can't conceive that that is the reaction to that particular subject."(37)
With Croteau's testimony on behalf of Esquire, the Post Office changed the thrust of its case. If the head of the Watch and Ward Society failed to find the magazine obscene, postal authorities would be hard pressed to proceed under the Comstock Act. Over the weekend following Croteau's appearance, the Post Office Department amended its charge. Even if the magazine were not obscene, lewd, or lascivious under the 1873 postal obscenity statute, it could be denied second-class mailing privileges for failing to make a positive contribution to the public good under the 1879 postal classification act. Such a finding would force its publisher to mail Esquire at first-class rates, an additional expense estimated to be $500,000 a year.
On November 11, 1943, two of three members of the hearing board found that neither statute could be used to keep Esquire from the mails.(38) The charges of obscenity had not been supported or proved. "The proof was overwhelming that Esquire did not offend or violate the standards or the mores of our days." Furthermore, the majority found that Esquire had not failed to comply with the fourth condition for second-class mailing privileges; it rejected Postmaster General Walker's interpretation that a publication not only had to refrain from disseminating obscene material but was bound to contribute to the public good.
In an appendix, the majority members commented on every item that postal authorities had found objectionable.(39) For example, it observed that the cartoon "She came directly from the wedding" "seems silly to the Board and we certainly do not think it obscene." "Goldbricking with Esquire," it concluded, "is a reproduction of alleged jokes and sayings from army newspapers. On to each item is cited the paper from which it was reprinted. In the setting the Board cannot see anything obscene in the material cited." Only one item continued to trouble them. The board considered that "Paste Your Face Here" had definite obscene connotations but did not by itself provide grounds for rescinding Esquire's second-class mailing privileges.
Third Assistant Postmaster General Tom Cargill submitted a minority report contending that much of the objectionable material was, in fact, obscene. He urged that the August issue, containing "Paste Your Face," be declared unmailable and submitted to the U.S. attorney for prosecution. Otherwise, he warned, the use of such pictures would become an accustomed practice "aped by other borderline publications who look to Esquire as the pacesetter."(40)
The advice of the majority of the hearing board should have ended the matter. Contrary to its findings, however, Postmaster General Frank Walker decided to proceed with the revocation of Esquire's second-class mailing privileges. On December 31, 1943, presumably when Esquire readers were busy preparing for New Year's Eve, the Post Office issued a press release announcing Walker's decision, effective February 28, 1944.(41) Walker was particularly troubled by "writings and pictures in that obscure and treacherous borderland zone where the average person hesitates to find them technically obscene, but may still see ample proof that they are morally improper and not for the public welfare and good." Esquire's lawyers immediately filed suit in the federal district court in Washington, D.C., seeking to enjoin the revocation order.
The Post Office hearing board had determined that Esquire's risque humor did not offend contemporary mores. The judge in the federal district court for the District of Columbia, T. Whitfield Davidson, visiting the D.C. bench from Texas, however, tested Esquire by the standards of the late nineteenth century. According to Judge Davidson, the congressmen who created the second-class mail rate had been raised on the morality tales of William McGuffey's readers. "In the primer, about every fourth lesson was one that taught children how to live. He must not lie, and there followed the story of Washington and the cherry tree. He must be honest and just, and there followed the story of the broken window and the silver dollar. . . . These environments created a standard of ethics and morals which ruled the America of our fathers. It was the Victorian era translated to the American conception. . . . It was men of this type, brought up under the standards of this period, who wrote in 1879, Section 226, Title 39 of the U.S.C.A. giving a low rate to newspapers and like publications. May the Postmaster General, therefore, have not been warranted in reaching his conclusions that the literature referred to was literature of desirable type of an educational value?"(42) As Arnold Gingrich observed, "It is hard to conceive of a 20th century magazine that could have measured up."(43) Finding that the postmaster had not acted in an arbitrary and capricious manner, Judge Davidson denied the injunction and dismissed the complaint.
With the boom in magazines in the 1930s and the huge number of periodicals taking advantage of cheaper second-class rates (estimated at about 25,000 in 1940), the Esquire case worried publishers. If Esquire, with a circulation of 695,000 (which grew steadily as the case progressed) and some of the nation's foremost writers and critics, could be threatened, what magazine was safe? Davidson's decision made clear the economic dimensions of the problem. While first-class mail actually generated revenue (approximately $146 million in 1941), second-class mail created a deficit of more than $80 million. Most magazines would be put out of business by first-class mail rates. Furthermore, army camps would only distribute magazines that qualified for second-class mailing privileges, in effect making the rate a governmental seal of approval. Counsel for Esquire filed a subpoena demanding that the Post Office turn over its records of all the other magazines whose second-class mailing privileges had been challenged.(44) Among the fifty titles listed were Hobo News, Laff, Army and Navy Fun Parade, All-American Comics, and New Love Magazine.
As the case moved to the federal courts, Esquire was supported by amicus briefs from the American Civil Liberties Union and the publishing industry. Curtis Publishing and the Reader's Digest, who published the popular periodicals Mrs. Harvey Wiley said she read, lined up with Esquire. The American Newspaper Publishers Association argued that no one man or small group of men should control the policies of any large proportion of the nation's newspapers or magazines. It noted the peculiarly political aspect of the office of the postmaster general. "Since the turn of the century no President has named as Postmaster General any person who did not actively participate in the campaign of the successful nominee. The Postmaster General who issued this order is not an exception. He was long treasurer of the Democratic National Committee and only recently resigned the chairmanship of that committee."(45) The Pennsylvania Newspaper Publishers Association linked the postmaster's censorship powers to the war effort. "In the present emergency, how easy it would be for the Postmaster General to persuade himself that a newspaper which did not obey every order of the numerous war boards would lose its mailing privileges because it was not contributing 'to the public good and the public welfare.'"(46)
Appealing to the Court of Appeals for the District of Columbia Circuit, Esquire's lawyers faced an entirely different kind of judge. Sophisticated and urbane, former law professor and New Dealer Thurman Arnold wrote the opinion for himself and Judges Miller and Edgerton. Reversing the lower court's dismissal of Esquire's complaint, Arnold rejected the postmaster's contention that Esquire was required to meet some standard of public good in order to qualify for second-class mailing privileges. Noting the cost of the revocation order to Esquire in increased mail rates, Arnold declared that second-class privileges were not "an award for resisting the temptation to publish material which offends persons of refinement."(47)
Arnold included portions of the hearing record in his opinion "as a useful reminder of mental confusion which always accompanies such censorship." He used Mrs. Wiley's encounter with the photograph of Annette Kellerman to raise "the age old question when a scantily clad lady is art and when she is highly improper." And he quoted the cross-examination of H. L. Mencken to show how officials can bind modern periodical literature to the standards of a former generation. Noting the sincerity of counsel for the Post Office in undertaking such an impossible task, Arnold concluded, "But their very sincerity makes the record useful as a memorial to commemorate the utter confusion and lack of intelligible standards which can never be escaped when that task is attempted. We believe that the Post Office officials should experience a feeling of relief if they are limited to the more prosaic function of seeing to it that 'neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds.'"(48) The editors of the Saturday Review of Literature considered Arnold's ruling the most important American legal opinion on censorship since the Ulysses decision in 1933 and reprinted the complete text in its June 16, 1945, issue.(49)
Postal authorities decided to appeal Arnold's decision to the United States Supreme Court. By fall 1945, when the case was argued, World War II had ended, and Frank Walker had been replaced as postmaster general by another chairman of the National Democratic Committee, Robert Hannegan. Hearing essentially the same arguments as the appeals court, the eight sitting justices ruled unanimously in favor of Esquire. Justice William O. Douglas wrote the opinion for the court and addressed the role of the postmaster general as the national arbiter of taste. "An examination of the items makes plain, we think, that the controversy is not whether the magazine publishes 'information of a public character' or is devoted to 'literature' or to the 'arts.' It is whether the contents are 'good' or 'bad.' To uphold the order of revocation would therefore grant the Postmaster General a power of censorship. Such a power is so abhorrent to our traditions that a purpose to grant it should not be easily inferred."(50)
As the postal obscenity statute made plain, however, Congress had given the postmaster general the power of censorship over material that was obscene, lewd, and lascivious. The law provided that such material be banned from the mails altogether and specified criminal proceedings for offenders. What the Esquire decision made clear was that what the Post Office could not accomplish directly under the postal obscenity statute it could not achieve indirectly using the postal classification act.
Observers at the time of the Esquire case questioned whether Postmaster General Walker's strong ties to the Catholic church influenced his administration of the postal obscenity laws.(51) Esquire editor Arnold Gingrich later commented, however, that "we were never able to find out whether his animus in the Esquire Post Office case was political or religious,"(52) and the chairman of the National Organization for Decent Literature, Bishop John Francis Noll, denied any connection. Time magazine quoted Bishop Noll, "Esquire [was] not even on our disapproved list for a year. . . . [There was] no confusion, no correspondence. . . . As far as I know, [the postmaster general] doesn't think of me in connection with this Esquire business."(53)
In some respects, Walker followed the practices of his predecessors, and it may be that faced with conflicting advice from his staff, he sought to pursue the Esquire matter as a test case to clarify the law once and for all. Until the Esquire case, postal authorities had negotiated with editors behind the scene, forcing magazines to change text and remove ads. The Esquire case brought the question of mailability and contemporary standards into the open. With its huge circulation, its conspicuous involvement in the war effort, and its retinue of literary contributors, Esquire helped to redefine the limits of permissibility. With the support of public opinion and the publishing community, Esquire helped to curb the role of the postmaster general as a national censor and to gauge taste by the wartime values of the 1940s, not the fondly remembered values of 1879.
Esquire v. Walker, Part 1
Esquire v. Walker, Part 2
l. Case File Relating to Esquire Magazine, 1943-1946, Central Numeric File, Entry 46, Records of the Postmaster General, Records of the U.S. Postal Service, Record Group 28, National Archives and Records Administration, Washington, DC (hereinafter cited as case file, . . . , RG 28, NA).
2. Transcript of Proceedings Before Post Office Department Hearing Board on Order No. 23,459 (hereinafter cited as Hearing Board transcript), case file, box 2, Vol. II, p. 983, RG 28, NA.
3. Ad for Bedside Esquire, Post Office Exhibit 30, case file, box 1, RG 28, NA. Arnold Gingrich claimed that the book's publisher and not Esquire had been responsible for this advertisement. Hearing Board transcript, case file, box 2, Vol. III, p. 1298, RG 28, NA.
4. 13 Stat. L. 507 (1865).
5. 17 Stat. L. 283 (1873).
6. 20 Stat. L. 359 (1879).
7. 39 U.S.C. 221, 224, 225, 226.
8. Vincent Miles to Arnold Gingrich, Nov. 1, 1940, case file, box 1; Hearing Board transcript, case file, box 2, Vol. III, p. 1257, RG 28, NA.
9. Hearing Board transcript, case file, box 2, Vol. III, p. 1262, RG 28, NA.
10. Arnold Gingrich, Nothing But People (1971), p. 158.
11. George Dixon, "Dixon's Alabaster Cheeks Stay Pale After Reading (Hush) Esquire in a Dentist's Office," Washington Times-Herald, Nov. 11, 1943, p. 13.
12. May 3, 1943, Congressional Record, 78th Cong., 1st sess., 89:3820-3824 (remarks of Senator Langer); May 13, 1943, Cong. Rec., 78th Cong., 1st sess., 89: 4328-4334 (remarks of Senator Langer).
13. Vincent Miles to Arnold Gingrich, May 21, 1942, Post Office Exhibit 58, case file, box 1, RG 28, NA.
14. Winterwear foldout of submarine launch, Esquire, Feb. 1943, pp. 31-32, case file, box "Bundle 13A," RG 28, NA.
15. "Are Varga Girls Vicious?" Time, Sept. 27, 1943, pp. 95-96.
16. Varga girl calendar, Dec. 1943, Esquire, Jan. 1943, p. 108, case file, box "Bundle 13A," RG 28, NA.
17. Gingrich, Nothing But People, p. 157.
18. Hearing Board transcript, case file, box 2, Vol. II, p. 1217, RG 28, NA; Hannegan v. Esquire, Brief for the Postmaster General, U.S. Supreme Court, Records and Briefs, Vol. 327, p. 43.
19. Hearing Board transcript, case file, box 2, Vol. II, pp. 1225 1226, RG 28, NA.
20. "Bishop Hughes 'Meets' a Varga Girl," Washington Times-Herald, Nov. 6, 1943, case file, box 3, RG 28, NA.
21. "Peace, It's Wonderful," Esquire, Apr. 1943, pp. 3738, case file, box "Bundle 13A," RG 28, NA.
22. Hearing Board transcript, case file, box 2, Vol. III, p. 1578, RG 28, NA; "Purity of Womanhood Becomes Involved in Esquire Hearings" and "Army Nurses Are in Front Lines, Too," Washington Evening Star, Nov. 4, 1943, p. A6.
23. Hearing Board transcript, case file, box 2, Vol. III, pp. 1680-1689, RG 28, NA.
24. "The Shapely Annette Shocks, Unshocks a Feminist Leader," Washington Daily News, Nov. 6, 1943, p. C4, case file, box 3; George Dixon, "Esquire Pulls Old Trick, But Proves a Point," Washington Times-Herald, Nov. 6, 1943, case file, box 3, RG 28, NA.
25. Hearing Board transcript, case file, box 2, Vol. III, p. 1567, RG 28, NA.
26. Deposition of Rt. Rev. Msgr. Edward J. Flanagan, Nov. 5 1943, case file, box 2, RG 28, NA. Librarians at the Hail of History at Boys Town were unable to identify any contribution to Esquire by Father Flanagan.
27. Hearing Board transcript, case file, box 2, Vol. III, p. 1593, RG 28, NA.
28. Gingrich, Nothing But People, p. 161.
29. For Mencken's own account of the "Hatrack" episode, see The Editor, the Bluenose and the Prostitute: H. L. Mencken's History of the "Hatrack" Censorship Case, ed. Carl Bode (1988).
30. Hearing Board transcript, case file, box 2, vol.111, pp. 1144 1146, RG 28, NA.
31. Gingrich, Nothing But People, p. 161. For Mencken's account of his testimony in the Esquire case, see Diary of H. L. Mencken, ed. Charles A. Fecher (1989), pp. 278-279.
32. "The Experts Fail to Blush," Time, Nov. 1, 1943.
33. Charles H. Fleming and Louis J. Croteau to Postmaster General Frank Walker, May 4, 1943, Post Office Exhibit 25, case file, box 1, RG 28, NA.
34. Milkmaid Cartoon, Esquire, Sept. 1943, p. 65, case file, box "Bundle 13A," RG 28, NA.
35. Hearing Board transcript, case file, box 2, Vol. I, pp. 431-432, RG 28, NA.
36. "Paste Your Face Here," Esquire, Aug. 1943, p. 89, case file, box "Bundle 13A," RG 28, NA.
37. Hearing Board transcript, case file, box 2, Vol. I, p. 433, RG 28, NA.
38. Memorandum to the Third Assistant Postmaster General, Nov. 11, 1943, case file, box 3, RG 28, NA.
39. Memorandum to the Third Assistant Postmaster General, Nov. 11, 1943, appendix A, case file, box 3, RG 28, NA.
40. Memorandum to the Third Assistant Postmaster General from Tom C. Cargill, member of the board, Nov. 12, 1943, p. 3, case file, box 3, RG 28, NA.
41. Press release, Dec. 31, 1943, Information Service, Post Office Department, case file, box 1, RG 28, NA.
42. Esquire v. Walker, 55 F. Supp. 1015 (D.D.C. 1944) at 1019.
43. Gingrich, Nothing But People, p. 164.
44. Subpoena Ad Test, District Court of the United States for the District of Columbia, Esquire v. Walker, Civil Action No. 22822, case file, box 3, RG 28, NA.
45. "Publishers Assail Curb on Esquire," New York Times, June 9, 1944, p. 13.
46. "Pennsylvanians Join Fight on Esquire Ban," New York Times, June 10, 1944, p. 13.
47. Esquire v. Walker, 151 F.2d 49 (D.C. Cir. 1945) at 51.
48. 151 F.2d at 55.
49. U.S. v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir. 1933).
50. Hannegan v. Esquire, 327 U.S. 146 (1946) at 151.
51. "Postmaster General Penalizes 'Esquire,'" The Christian Century, Jan. 12, 1944, p. 37.
52. Gingrich, Nothing But People, p. 159.
53. "Esquire Banned," Time, Jan. 10, 1944, p. 46.
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