478

CLARK, J., dissenting.

these parts ...." Because of this content the magazines do "not appeal to the ordinary male adult,

...

...

[who] would have no interest in them and would not buy them under ordinary circumstances and [therefore] the readers of these publications consist almost entirely of male homosexuals and possibly a few adolescent males...." The publishers freely admit that the magazines are published to appeal to the male homosexual group. The advertisements and photographer lists in such magazines were quite naturally "designed so as to attract the male homosexual and to furnish him with names and addresses where nude male pictures in poses and conditions which would appeal to his prurient interest may be obtained." Moreover, the advertisements themselves could leave no more doubt in the publishers' minds than in those of the solicited purchasers. To illustrate: some captioned a picture of a nude or scantily attired young man with the legend "perfectly proportioned, handsome, male models, age 18-26." Others featured a photograph of a nude male with the area around the privates obviously retouched so as to cover the genitals and part of the pubic hair and offered to furnish an "original print of this photo." Finally, each magazine specifically endorsed its listed photographers and requested its readers to support them by purchasing their products. In addition, three of the four magazines involved expressly represented that they were familiar with the work of the photographers listed in their publications.

Turning to Womack, the president and directing force of all three corporate publishers, it is even clearer that we are not dealing here with a "Jack and Jill" operation. Mr. Womack admitted that the magazines were planned for homosexuals, designed to appeal to and stim

* The magazines were offered in six bundles, apparently with copies of each of the four magazines intermingled among the bundles.

CLARK, J., dissenting.

370 U. S.

ulate their erotic interests. To improve on this effect, he made suggestions to photographers as to the type of pictures he wanted. For example, he informed one of the studios listed in his publications that "physique fans want their 'truck driver types' already cleaned up, showered, and ready for bed ... [and] it is absolutely essential that the models have pretty faces and a personality not totally unrelated to sex appeal." Womack had also suggested to the photographers that they exchange customer names with the hope of compiling a master list of homosexuals. He himself had been convicted of selling obscene photographs via the mails. Womack v. United States, 111 U. S. App. D. C. 8, 294 F. 2d 204 (1961). More recently he has pleaded not guilty by reason of insanity to like charges. Washington Post, Feb. 1, 1962, p. D-3. Furthermore, he was warned in March, April, and July of 1959 that a number of his photographer advertisers were being prosecuted for mailing obscene matter and that he might be violating the law in transmitting through the mails their advertisements. However, he continued to disseminate such information through the mails, removing photographers from his lists only as they were convicted. Finally, through another controlled corporation not here involved, he filled orders for one of his advertisers sent in by the readers of his magazines. This material was found to be obscene and like all of the above facts and findings it is not contested here.

The corporate petitioners are chargeable with the knowledge of what they do, as well as the knowledge of their president and leader. How one can fail to see the obvious in this record is beyond my comprehension. In the words of Milton: "O dark, dark, dark amid the blaze of noon." For one to conclude that the above undisputed facts and findings are insufficient to show the required scienter, however stringently it may be defined, is in effect

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to repeal the advertising provisions of § 1461. To condition nonmailability on proof that the sender actually saw the material being sold by his advertisers is to portray the Congress as the "mother" in the jingle, "Mother, may I go out to swim? Yes, my darling daughter. Hang your clothes on a hickory limb and don't go near the water."

For these reasons I would affirm the decision below.

Syllabus.

370 U. S.

GLIDDEN COMPANY v. ZDANOK ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 242. Argued February 21, 26, 1962. Decided June 25, 1962.* The Court of Claims and the Court of Customs and Patent Appeals are courts created under Article III of the Constitution; and their judges, including retired judges, may validly serve, by designation and assignment by the Chief Justice of the United States under 28 U. S. C. §§ 293 (a) and 294 (d), on United States District Courts and Courts of Appeals. Pp. 531-589.

288 F. 2d 99; 111 U. S. App. D. C. 238, 296 F. 2d 360, affirmed.

Chester Bordeau argued the cause for petitioner in No. 242. With him on the briefs was William, P. Smith. Morris Shapiro argued the cause for respondents in No. 242. With him on the briefs was Harry Katz.

Solicitor General Cox argued the cause for the United States, as intervenor, in No. 242. With him on the brief were Assistant Attorney General Miller, Oscar H. Davis and Philip R. Monahan.

By special leave of Court, 368 U. S. 973, Francis M. Shea argued the cause in No. 242 for the Chief Judge and Associate Judges of the United States Court of Claims, as amici curiae, urging affirmance. With him on the briefs was Richard T. Conway.

Briefs of amici curiae, in support of the petition in No. 242, were filed by William B. Barton for the Chamber of Commerce of the United States; John E. Branch for the Georgia State Chamber of Commerce; Henry E. Seyfarth for the Illinois State Chamber of Commerce;

530

Opinion of HARLAN, J.

Edward C. First, Jr. and Gilbert Nurick for the Pennsylvania State Chamber of Commerce; Frank C. Heath for the Chamber of Commerce of the City of Cleveland, Ohio; Charles H. Tuttle for the American Spice Trade Association; Carl M. Gould for the California Manufacturers Association; Ashley Sellers and Jesse E. Bashette for the National Association of Margarine Manufacturers; and Daniel S. Ring for the National Paint, Varnish and Lacquer Association, Inc.

Eugene Gressman argued the cause and filed briefs for petitioner in No. 481.

Solicitor General Cox argued the cause for the United States in No. 481. With him on the brief were Assistant Attorney General Miller, Oscar H. Davis, Beatrice Rosenberg and Philip R. Monahan.

By special leave of Court, Roger Robb argued the cause and filed a brief in No. 481 for the Chief Judge and Associate Judges of the United States Court of Customs and Patent Appeals, as amici curiae, urging affirmance.

MR. JUSTICE Harlan announced the judgment of the Court and an opinion joined by MR. JUSTICE BRENNAN and MR. JUSTICE STEWART.

In Ex parte Bakelite Corp., 279 U. S. 438, and Williams v. United States, 289 U. S. 553, this Court held that the United States Court of Customs and Patent Appeals and the United States Court of Claims were neither confined in jurisdiction nor protected in independence by Article III of the Constitution, but that both had been created by virtue of other, substantive, powers possessed by Congress under Article I. The Congress has since pronounced its disagreement by providing as to each that "such court is hereby declared to be a court established under article III of the Constitution of the United