IT IS fashionable in literary circles to snicker at Arthur E. Summerfield, the former Chevrolet dealer who may have produced one of the most publicized cases of poor judgment in the history of criticism. But the Postmaster General merely carried the logic of traditional Post Office procedures to their proper conclusion.

Through the years, these procedures have led to the seizure of Tolstoy’s Kreutzer Sonata, Boccaccio’s Decameron, Aristophanes’ Lysistrata, Hemingway’s For Whom the Bell Tolls and Caldwell’s Tobacco Road as obscene literature, and Sholom Aleichem’s Bewitched Tailor, abolitionist pamphlets, discussions of the French Revolution, the Economist (London), and a Russian chess book as political propaganda.

Vested with these traditional powers of censorship, Summerfield, a man  who admits to reading little fiction, decided that D. H. Lawrence’s Lady Chatterley’s Lover “taken as a whole, is an obscene and filthy work”; literary critics and at least one federal judge decided otherwise. Snickering at this difference in judgment seems like misplaced energy. Rather than examine the critical faculties of Summerfield, it would make more sense to examine the censorship powers of the Post Office.

The Post Office got into the business of checking non-first class mail for obscenity in 1873, when Congress passed the Comstock Law, which still is the chief weapon in the postal war on pornography. The history of censoring propaganda in the mails dates back to the Federalist days, but the present program derives its strength from a regulation set down on the eve of World War II. The scrutiny of mail for obscenity and for propaganda presents similar questions involving civil liberties; but, since they stem from different statutes and different histories, they are best considered separately.

THE COMSTOCK LAW states that anyone who knowingly sends or receives obscene matter through the mails may be punished by five years in jail or a $5,000 fine or both. Congress passed the law after an intensive, one-man lobbying campaign by Anthony Comstock, agent for the New York Society for the Suppression of Vice. A religious zealot who had become incensed over the increased traffic in erotic literature after the Civil War, Comstock wrote that obscene literature “like a canker worm, secretly eats out the moral life and purity of our youth.” The Post Office appointed him a special investigator to enforce the Comstock Law, and he spent many years trying to clean up the mails.

Although the law specifically provides for enforcement only by criminal penalties, the Post Office has inferred that the statute also meant to give it civil powers of enforcement. Postal logic runs this way: if Congress does not want obscene matter in the mail, then the postmaster surely has the power to remove that matter as well as to arrest the men who sent it or asked for it. If, for example, someone sent a time bomb through the mails, you would not expect the postmaster to seek a conviction before getting rid of the bomb. With this reasoning, the Post Office has assumed the power to decide for itself whether mail is obscene and if so to remove it.

The Post Office employs three civil devices in eliminating what it considers obscene matter. The case of Lady Chatterley’s Lover illustrates the first: the impounding of suspicious material, followed by formal hearings to decide whether it is obscene and therefore unmailable. The delay between seizure and the final judicial decision can be financially crippling (although this was not the case with Lady Chatterley’s Lover). Big Table, a little-known literary magazine, was not so fortunate. The Post Office impounded 441 copies of the magazine last March, not bothering to tell editor Paul Carroll about it for a month. By midsummer, the Post Office still had not made an official ruling, and the American Civil Liberties Union, which is defending the magazine, cannot appeal to the courts until a ruling is forthcoming. Even if ultimately the courts uphold Big Table, it is doubtful whether the magazine can wipe out its losses by selling a back-number issue. In this case, the magazine will have escaped conviction, but not the sentence. Under present rules, the Post Office penalizes first and only then seeks to justify the penalty.

In the second civil device used against obscenity, the Post Office impounds first class mail sent to a person who runs a mail-order business in obscene materials. The idea is to cut off his remittances. This device, unlike the others, is detailed in a postal statute which provides that first class mail may be impounded for twenty days while the department tries to prove that the letters should be returned to their senders because the company deals in obscenity and its business, therefore, is unlawful. But the Post Office has found it difficult to prove a business unlawful within twenty days, and it has asked Congress to extend the limit to forty-five days. This request the House approved last month by overwhelming voice vote, the lone dissenter being Representative John V. Lindsay (R., N.Y.). Critics say that the Post Office figures that cessation of receipts for forty-five days will drive a fly-by-night operator out of business even if the department never proves its case. But the Post Office replies that it needs the time for a full and fair hearing.

With its final civil device, the Post Office denies second class mailing rights to any periodical that, in its opinion, continually prints obscenity. In the Esquire case of 1946, the Supreme Court implied doubt that the department had the power to punish future issues of a magazine without examining them, but the practice has continued.

Besides these civil sanctions, the Post Office also invokes the criminal provisions of the Comstock Law. But the Justice Department has not been able to get many convictions in these cases. “In some cities, courts interpret obscenity so liberally that getting indictments is very difficult,” the Postal Service News complained in its June issue. The official department magazine is particularly critical of juries in New York, whose standards “may be vastly different from those in the smaller, less blasé, cities and towns in which so many of us live.” These complaints, however, tend to reflect more on the department’s judgment than on New York juries.

THE Post Office Department reports having received more than 50,000 complaints about obscene matter last year from parents, clergymen, school officials, parent-teacher groups and newspaper executives. Since World War II, the market in pin-ups, strip-sets, lust-ridden books and pure pornography has increased. While no scientific evidence pinpoints this as a cause of the accompanying increase in juvenile delinquency, many parents are convinced that common sense pinpoints it. In any event, they do not want their children receiving the stuff, and have joined church and community groups that demand help from the Post Office. There is no doubt that Summerfield’s “war on muck” would have continued free of public criticism if he had not slipped on Lady Chatterley’s Lover. Congress, of course, also feels this public pressure, and its committees studying pornography apparently sympathize with the position of the Post Office.

Thus the federal courts remain the only obstacle to the Post Office’s exercise of its assumed censorship powers. In the Roth case of 1957, the Supreme Court said that the First Amendment does not protect obscenity at all, for obscenity, as Justice William J. Brennan, Jr. put it, is “utterly without redeeming social importance.” But the court also defined the standard of obscenity: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” It is this standard that Summerfield seems to misunderstand when he asks newsmen if they would read Lady Chatterley’s Lover aloud to their children. Judge Frederick vanPelt Bryan simply read the book and, applying the Supreme Court standard, decided it was not obscene. He did not rule at all on the Constitutionality of postal censorship procedure, although he did imply that he felt it conflicted with the First Amendment.

The Constitutionality of postal procedure probably will not be settled until the Supreme Court, confronted with an obviously obscene book, has to consider the method of seizure, rather than the book’s content. Professors of Law James C. N. Paul of the University of Pennsylvania and Murray L. Schwartz of UCLA, culling the opinions of Justices from past obscenity cases, find that Justices Hugo Black and William 0. Douglas oppose any suppression of sex material unless there is clear and present danger of harm, Justice John M. Harlan opposes all federal control of obscenity, Justice Brennan demands jury trials in censorship cases, and Chief Justice Earl Warren feels that the conduct of the person selling the material, not the material alone, should be judged. In short, at least five members of the Supreme Court probably would rule that the present Post Office system of censoring obscenity is unconstitutional.

But it is not certain that the Post Office plans to maintain its present questionable system. Under the guidance of a dynamic, new general counsel, Herbert B. Warburton, the department is studying ways of revising its procedures to meet the objections of book publishers and civil-liberties groups. Warburton hopes to ask Congress for legislation that would put the power of judging obscenity increasingly in the hands of the courts.

The Constitutionality of the current campaign against propaganda also seems doubtful. Working with the Post Office, the Federal Customs Bureau checks foreign non-first class mail as it enters the United States. If translators and inspectors decide that the mail contains foreign political propaganda, the Post Office usually holds it up and notifies the addressee that “such matter ordinarily would be treated as non-mailable,” but that he may receive it by signing a form stating that he ordered, subscribed to, or desires the publication. Less than half the addressees sign, and the Post Office destroys the unclaimed material.

An Alice in Wonderland quality surrounds this procedure, which is not outlined in any statute, but is derived from an Attorney General’s interpretation. In 1940, Attorney General Robert H. Jackson ruled that the Post Office could seize several large shipments of Nazi propaganda, and he justified his ruling in these steps: (1) the Espionage Act of 1917 says that no one may mail material that is treasonable or is used to violate any law of the United States; (2) the Foreign Agents Registration Act of 1938 says that all persons in the United States acting as agents for a foreign government must register with the Federal Government; (3) if someone in the United States mailed foreign propaganda but did not register, he would be breaking the registration law; (4) this propaganda then would be material used to violate a law of the United States — the Registration Act — and, under the Espionage Act, would be non-mailable; (5) if a person living outside the United States uses its mails to spread foreign propaganda, he should be considered the same as a foreign agent living in the United States; (6) since the mailer in Moscow or Berlin or Prague has not registered as an agent with the U.S. Government, he has violated the Foreign Agents Registration Act; (7) under the Espionage Act, his material is non-mailable.

Under this labyrinthine theory, the Post Office may destroy all foreign propaganda without giving the addressee a chance to sign a form requesting it, or even without telling him about it. This is exactly what the department did during the Korean War when, pressured by the House Un-American Activities Committee and the Senate Internal Security Subcommittee to stop the influx of Communist mail, it revived the Jackson opinion. The current system of notifying the addressee, initiated as an experiment this year, actually represents an attempt by Warburton, the new general counsel, to bring some intelligence and fairness into a program that had been mostly chaos for several years.

Chaos erupted because the Post Office and Customs Bureau set after propaganda without much advance, preparation and without a set of rules of procedure that the public could read. On one occasion, a non-Russian-speaking Customs worker in St. Paul was handed a Russian-English dictionary and told to check through a warehouse of material and pull out all items that contained Communist propaganda. Procedures such as these resulted in the confiscation of a Soviet book titled Chess for Beginners, German-language editions of the works of Karl Marx, Pravda, and Catholic Imperialism and World Freedom, an anti-Church book published in England. Universities, libraries, political scientists and journalists soon discovered that important Russian journals and newspapers were not reaching them. Mathematical Review, for example, received no Russian mathematical publications for a year. In 1955, the American Friends Service Committee discovered that the Post Office had destroyed 500 copies of an English pamphlet, written by a member of Parliament, which condemned the United States for its part in the Guatemalan revolution.

Complaints descended upon the Post Office, and it gradually revised procedures until the present program evolved. In the main, the department now apparently holds up only Communist propaganda coming from behind the Iron Curtain and releases most of it to anyone who signs a form. Propaganda sent in bulk, however, is destroyed. But, ironically, a registered foreign agent in the United States can receive all the Communist propaganda he wants without any trouble at all. The Jackson opinion, in its acrobatic weaving of the Espionage and Foreign Agents Registration acts, fails to cover registered Communist agents.

Security is the main rationale for the postal anti-propaganda program. Proponents argue that it is dangerous to allow subversive propaganda to reach the foreign-born in the United States, especially when it is written in their native tongue. At the very least, they say, the Post Office should identify it as propaganda. But this puts the Federal Government in the business of deciding what opinions are fit for an American to read. When you require a man to state that he desires Communist mail, for whatever purpose, he can easily interpret that requirement as a form of intimidation, and is quite likely to do so.

The American Civil Liberties Union has started a suit in behalf of the managing editor of the American Journal of Sociology, who refused to sign the forms for delivery of two Czech magazines. It is possible that General Counsel Warburton welcomes the suit as one way of clearing up the question of the program’s Constitutionality and legality.

AT PRESENT the Post Office’s administrative procedures have no solid authorization from Congress. This is true of its campaigns against both obscenity and foreign political propaganda.

Congress, of course, might not be averse to granting the Post Office direct authorization if called upon, especially in the field of obscenity. But, at the very least, Congressional review would expose postal procedures in these fields to public scrutiny for a while. The Post Office, on shaky Constitutional ground, often censors mail out of the public gaze. This activity receives attention only when some official loses his discernment in zeal and mistakes a chess book for a political tract or a classic for a French post card. In fact, until the courts or Congress act, poor judgment, like that of Postmaster General Summerfield, is all that keeps the problems and procedures of postal censorship in public view.

STANLEY MEISLER is a Washington newspaper man and occasional contributor to critical and political journals.