Before CLARK, WATERMAN, and MOORE, Circuit Judges.
D. H. Lawrence completed the third manuscript version of his novel "Lady Chatterley's Lover" in Italy in 1928, and it was then published in Florence for private distribution. It is this version which has now been published by the plaintiff Grove Press, Inc., in a sumptuous edition selling for $6.00, with a prefatory letter of commendation by Archibald MacLeish, poet, playwright, and Boylston Professor of Rhetoric and Oratory at Harvard University, and with an extensive Introduction and a concluding Bibliographical Note by Mark Schorer, Professor of English Literature at the University of California and a Lawrence scholar.*fn1 The book (together with circulars showing its availability by Readers' Subscription, Inc., the second plaintiff*fn2) has been detained as unmailable by the New York Postmaster and, after a hearing before the Judicial Officer of the Post Office Department and reference to the Postmaster General for final departmental decision, was held by the latter to be "obscene and non-mailable pursuant to 18 U.S.Code § 1461." The Postmaster General wrote a substantial decision, of which these are salient paragraphs:
"The contemporary community standards are not such that this book should be allowed to be transmitted in the mails.
"The book is replete with descriptions in minute detail of sexual acts engaged in or discussed by the book's principal characters. These descriptions utilize filthy, offensive and degrading words and terms. Any literary merit the book may have is far outweighed by the pornographic and smutty passages and words, so that the book, taken as a whole, is an obscene and filthy work."
The plaintiffs then sought a declaratory judgment and an injunction from the court below to reverse this decision. On cross motions for summary judgment, Judge Bryan gave a declaration that the Grove Edition here involved "is neither obscene, lewd, lascivious, indecent nor filthy in content or character, and is not nonmailable matter within the meaning of title 18, Section 1461 of the United States Code." He also held that the bar order of the Postmaster General "is illegal and void and violates plaintiffs' rights in contravention of the Constitution," and entered an order permanently enjoining its enforcement. His complete and reasoned opinion, D.C.S.D.N.Y., 175 F.Supp. 488, with which we are in accord, gives further background, and reference is therefore made to it.
The important question on the merits is whether this now famous book is obscene within the meaning of 18 U.S.C. § 1461. This is a lengthy statute going back to 1876 and 1873 and amended as recently as 1958, which in portions here pertinent provides: "Every obscene, lewd, lascivious, indecent, filthy or vile article * * * is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter."
But before we reach the merits, we must consider the procedural aspects of the issue involved, since the government on this appeal has directed much the greater force of its argument to a reliance upon the principle of administrative law that an agency action supported by substantial evidence is beyond judicial review. Its major contention is that the statute obligates the Post Office Department to prevent the conveyance of obscene matter through the mails and that, since the Postmaster General has made a finding of obscenity based upon substantial evidence, the district court erred in reviewing it. The district court rejected this contention of agency finality, and so do we.
Preliminarily we should note the query whether the statute, being one defining a crime with criminal penalties, may afford justification for the acts of seizure by the Postmaster General in any event, or whether its sanction is not limited to criminal prosecution for crimes already committed. This is an issue which divided the court in Sunshine Book Co. v. Summerfield, 101 U.S.App.D.C. 358, 249 F.2d 114, summarily reversed in 355 U.S. 372, 78 S. Ct. 365, 2 L. Ed. 2d 352. It is one of serious difficulty; but we shall not attempt to resolve it here, since we think the result is clear on other grounds.
Judge Bryan ruled that the issue was one of law fully reviewable by a court of law, since there was no dispute in matters of evidence and hence there was no occasion for the application of the substantial evidence rule. Although this conclusion is vigorously attacked by the government, it is difficult to see why it is not sound, particularly as reinforced by the constitutional overtones implicit in the issue. There can be no doubt that in large areas of postal activity involving the delivery of the mail the Post Office Department exercises discretion not to be controlled by courts. But to determine whether a work of art or literature is obscene has little, if anything, to do with the expedition or efficiency with which the mails are dispatched. And here it is clear that no question of evidence was involved. In fact the Departmental officials considered only the novel itself against the background of the statute and declined to consider the expert opinion proffered by the plaintiffs. The question was thus one starkly of law.*fn3 Moreover, the plaintiffs raised the constitutional issue of freedom of expression, Judge Bryan ruled upon it below, and it can hardly be escaped in this class of cases. See Smith v. People of the State of California, 361 U.S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205; Roth v. United States, 354 U.S. 476, 479-489, 497, 506-508, 511-514, 77 S. Ct. 1304, 1 L. Ed. 2d 1498. Even factual matters must be reviewed on appeal against a claim of denial of a constitutional right. Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S. Ct. 325, 95 L. Ed. 267; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 506, 72 S. Ct. 777, 96 L. Ed. 1098. Both legally and practically the claim of final censorship powers here made for the Postmaster General is extreme.*fn4 Indeed it has received an incisive answer in the public press thus: "And courts, not post offices, are the proper places for a determination of what is and is not protected by the Constitution." Editorial, Lady Chatterley Embattled Again, N. Y. Herald Tribune, Dec. 9, 1959, p. 26.
Passing then to the merits we must of course be cognizant of the risk run by judges in enforcing obscenity statutes such as this and thus perchance condemning what become classics of our intellectual heritage. Some of the present Justices of the Supreme Court revolt against all this supervision as violative of constitutional precepts. But since the statute has been upheld by majority vote, Roth v. United States, supra, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498; and see Smith v. People of the State of California, supra, 361 U.S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205, and Kingsley International Pictures Corp. v. Regents of the University of New York, 360 U.S. 684, 79 S. Ct. 1362, 3 L. Ed. 2d 1512, it remains the duty of those of us who sit in inferior courts to enforce it as best we may. And we need have no illusions but that a large business is done in exploiting "hard core pornography" for money's sake. In general this trash is easily recognized, with its repetitive emphasis (usually illustrated) upon purely physical action without character or plot development; and even if its direct connection with crime or incitement to juvenile or other delinquency is not proven - as many now assert - it cannot arouse sympathy because of its essentially repulsive, as well as fraudulent, character. It is when we come to more genuine works of literature that troublesome issues arise.
At the outset we may well recall the classic warning by a great American judge in probably the leading case on the subject prior to the recent utterances of the Supreme Court, Judge Augustus N. Hand in United States v. One Book Entitled Ulysses by James Joyce, 2 Cir., 72 F.2d 705, 708:*fn5 "The foolish judgments of Lord Eldon about one hundred years ago, proscribing the works of Byron and Southey, and the finding by the jury under a charge by Lord Denman that the publication of Shelley's 'Queen Mab' was an indictable offense are a warning to all who have to determine the limits of the field within which authors may exercise themselves." And he went on to this judgment upon a then disputed book now recognized as classic: "We think that Ulysses is a book of originality and sincerity of treatment and that it has not the effect of promoting lust." Here we have one advantage over our predecessors in that the time which has elapsed since the writing and original publication of this book has been sufficient for the crystallization of at least a literary judgment upon it. And it seems clear without dissent from the expert evaluations presented both in the record and in the introductory material to this edition, as well as in the contemporary literature, that this is a major and a distinguished novel, and Lawrence one of the great writers of the era.*fn6
For present purposes our test must be based upon that prescribed by the majority in Roth v. United States, supra, 354 U.S. 476, 487, 77 S. Ct. 1304, 1310, 1 L. Ed. 2d 1498. Justice Brennan said:
"However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing ...