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Obscenity, morality, and the First Amendment: the first LGBT rights cases before the Supreme Court.

The Supreme Court decided its first two cases involving LGBT litigants in 1958 and 1962, respectively. Surprisingly, commentators have paid little attention to these early cases despite the fact that the Court in both instances sided with the publishers of gay magazines in the face of the government's claim that the publications were obscene. This Article fills this gap in the literature by exploring how the challengers prevailed before the Supreme Court at a time when the vast majority of Americans strongly disapproved of same-sex sexual relationships and conduct. The Article contends that the best way of understanding the cases is to view them as part of the push by mid-twentieth century courts to "demoralize" the law of obscenity, that is to reject, minimize, or ignore the government's contention that obscenity laws were needed to promote and protect public morality. The Article also explores the historical importance of the first LGBT rights victories before the Supreme Court, explaining how they contributed in important ways to the formation and strengthening of LGBT identities and communities during the early days of the LGBT rights movement. Finally, the Article analogizes between the demoralization of obscenity law under the First Amendment and the demoralization of substantive due process and equal protection law in matters of sexual orientation that resulted from the Court s later cases involving sodomy and marriage laws. In doing so, the Article explains how and why the demoralization of free speech law preceded the demoralization of other areas of constitutional law.

INTRODUCTION

The first case involving the rights of lesbians and gay men to reach the Supreme Court resulted from the Post Office's refusal to distribute one of the first gay magazines to appear in the United States. The Court in 1958, in One, Inc. v. Olesen, summarily reversed a ruling by the U.S. Court of Appeals for the Ninth Circuit that had upheld the Post Office's constitutional authority to deem the publication obscene and therefore "nonmailable" under the federal obscenity statute. (1) Four years later, the Court, in Manual Enterprises, Inc. v. Day, held that the Post Office could not refuse to distribute, on obscenity grounds, three so-called physique magazines, containing pictures of partially naked male models, aimed at gay readers. (2)

By making it clear that the First Amendment did not allow the government to suppress lesbian and gay publications, the Court in these two early cases provided crucial protection to those advocating on behalf of the rights of sexual minorities. Despite their historical importance, however, commentators have paid little attention to the first LGBT rights cases (as we would categorize them today) to reach the Supreme Court. (3) This Article fills this gap in the literature by exploring how it was that the challengers in the two cases, at a time when the vast majority of Americans strongly disapproved of same-sex sexual relationships and conduct, were able to prevail before the Supreme Court. The Article contends that the best way of understanding the rulings is to view them as part of a growing trend among mid-twentieth century American courts to "demoralize" the law of obscenity. By "demoralization," I mean a phenomenon whereby courts rejected, minimized, or ignored the government's contention that obscenity laws were needed to promote and protect public morality. (4)

The demoralization of obscenity law, which took place alongside its constitutionalization under the First Amendment, occurred several decades before the Supreme Court's rulings interpreting the Equal Protection and Due Process clauses in ways that prevent the government from relying on moral considerations to defend the constitutionality of laws and regulations that negatively affect lesbians, gay men, and bisexuals. (5) Indeed, long before the Supreme Court grappled with the question of the proper role that moral judgments and values could play in justifying the differential treatment of sexual minorities under the Equal Protection Clause, as well as restrictions imposed on their sexual liberty under the Due Process Clause, courts were grappling with the intersection of public morality and freedom of speech in the context of obscenity law. As would later happen in equality and due process cases, sexual minorities benefited from judicial rulings that were skeptical of morality-based rationales for the setting of policies that impacted on constitutional rights.

Part I of the Article traces the development of obscenity law in the United States from the early nineteenth century though the 1950s, with an emphasis on the use of public morality as a regulatory justification. (6) While that justification played a foundational role in the early courts' understanding of why the state had the authority to proscribe obscene materials, its importance began to gradually wane with the passage of time. Indeed, by the time the Supreme Court fully constitutionalized the law of obscenity in the late 1950s, considerations of morality played a much-reduced role in this area. (7)

Part II explores the factual backgrounds of One and Manual Enterprises, as well as the legal arguments raised by both the publishers of the gay magazines and by the federal government on the question of what constituted constitutionally proscribable obscenity. (8) It then explains how the demoralization of obscenity law contributed in crucial ways to the Court's decision to side with the publishers in both instances. (9)

Part III explores the social and legal importance of the first LGBT rights victories before the Supreme Court. The fact that the government, after the two rulings, could no longer justify its regulation of gay publications on the notion that homosexuality was immoral, and that it therefore could not constitutionally censor publications on the ground that they promoted same-sex sexual relationships and conduct, meant that those who wanted to publish materials aimed at lesbians and gay men could now do so with considerably less fear of government censorship and harassment. As I explain in Part III, the growing availability of same-sex political and erotic materials during the 1960s contributed in important ways to the formation and strengthening of LGBT identities and communities.

The last section of the article, Part IV, steps back and looks more broadly at questions of public morality and the constitutional rights of sexual minorities. It begins by exploring the similarities between how the Supreme Court handled the question of public morality in its two gay obscenity cases and how that question was addressed by the first federal appellate court to entertain a First Amendment lawsuit brought by an LGBT student group against a public university. It then provides a brief account of how due process and equal protection law, in matters related to sexuality, have gone through a similar process of demoralization. It finishes with some thoughts on the question of why demoralization under the First Amendment preceded the demoralization under the Due Process and Equal Protection clauses.

I. Obscenity and Morality in the Courts from the Early 19th Century until the 1950s

During approximately the first one hundred and twenty years of obscenity prosecutions in the United States (that is, roughly between the 1810s until the 1930s), courts frequently, and without much controversy or disagreement, pointed to the promotion of public morality as the main objective behind obscenity laws. As the twentieth century progressed, however, courts began to focus on considerations beyond public morality such as the social value of the materials in question. The Supreme Court, in the late 1950s, at around the same time that it decided its first two cases implicating the interests of lesbians and gay men, issued two opinions (Roth v. United States (10) and Kingsley International Pictures, Corp. v. Regents of the University of the State of New York (11)) that significantly contributed to the judicial demoralization of obscenity law.

A. The Primacy of Public Morals in Early Obscenity Cases

The first reported obscenity conviction in the United States took place in Philadelphia in 1815. The defendants in Commonwealth v. Sharpless were charged under the common law crime of public indecency (Pennsylvania at the time did not have an obscenity statute) for allowing members of the public, after paying a fee, to enter "a certain house" in order to observe a painting "representing a man in an obscene, impudent and indecent posture with a woman." (12) In upholding the convictions, Chief Justice Tilghman of the Pennsylvania Supreme Court explained that in England actions "were always indictable" if they "tend[ed] to corrupt the public morals." (13) Tilghman further explained that "[w]hat tended to corrupt society, was held to be a breach of the peace and punishable by indictment. The courts are guardians of the public morals.... Hence, it follows, that an offence may be punishable, if in its nature and by its example, it tends to the corruption of morals." (14)

The defendants in Sharpless had argued that they could not be charged with public indecency because the viewing of the painting had taken place in a private home. (15) However, Tilghman rejected this effort to immunize conduct based on a distinction between the private sphere of the home and public morals. The Chief Justice reasoned that "[i]f the privacy of the room was a protection, all the youth of the city might be corrupted, by taking them, one by one, into a chamber, and there inflaming their passions by the exhibition of lascivious pictures." (16)

A concurring opinion by Justice Yeates also focused intently on the moral harm caused by the obscene painting in question. Yeates explained:
   that although every immoral act, such as lying, ... is not
   indictable, yet where the offence charged is destructive of
   morality in general; where it does or may affect every member of
   the community, it is punishable at common law. The destruction of
   morality renders the power of the government invalid, for
   government is no more than public order; it weakens the bands by
   which society is kept together. The corruption of the public mind,
   in general, and debauching the manners of youth, in particular, by
   lewd and obscene pictures exhibited to view, must necessarily be
   attended with the most injurious consequences, and in such
   instances, courts of justice are, or ought to be, the schools of
   morals. (17)


It is clear, then, that the Pennsylvania Supreme Court in Sharpless saw the regulation of obscene materials as essential to the protection of public morals. According to the court, the very ability of society to survive depended on the government's authority to proscribe materials that corrupted public morals. The court, in effect, assumed that obscene materials promoted immorality and that, as such, they constituted a threat to society. (18)

The same concern about morals was behind the first reported obscenity prosecution in the United States for the publishing of a book. (19) The book in question was Memoirs of a Woman of Pleasure, more commonly known as Fanny Hill, which, in telling the story of a young girl who worked at a London brothel in the eighteenth century, provides readers with extensive and detailed accounts of its characters' sexual experiences. (20) The indictment of the book's publisher, upheld by the Massachusetts Supreme Judicial Court in 1821, alleged that the defendant by
   being a scandalous and evil-disposed person, and contriving,
   devising and intending, the morals as well of youth as of other
   good citizens of said commonwealth to debauch and corrupt, and to
   raise and create in their minds inordinate and lustful desires ...
   knowingly, unlawfully, wickedly, maliciously, and scandalously, did
   utter, publish and deliver ... a certain lewd, wicked, scandalous,
   infamous and obscene printed book.... (21)


The understanding of the state's power to regulate obscenity as arising from its authority to protect public morals was further strengthened by the 1868 ruling by the Court of Queen's Bench in Regina v. Hicklin. (22) That case dealt with the application of the Obscene Publications Act, enacted by Parliament a few years earlier, to a pamphlet, The Confessional Unmasked, which was highly critical of the Catholic Church and contended that its tradition of confessions was an excuse to encourage sexual degradation. (23)

Chief Justice Cockburn, in upholding the pamphlet's seizure in Hicklin, adopted a definition of obscenity that greatly influenced American judges for decades to come. (24) Cockburn explained that the "test of obscenity is ... whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." (25)

The element of the Hicklin test that eventually received the most attention, and led to the greatest controversy, was its use of the most vulnerable members of society, such as children, as the appropriate subjects for determining which materials were obscene. But more importantly for our purposes is the aspect of the test that was entirely taken for granted and was assumed for decades to be entirely appropriate, namely the question of whether the publication in question had "immoral influences" on its readers.

Indeed, the defendant in Hicklin argued strenuously that his intent had been to warn the English public of what he took to be the dangers of embracing Catholicism, rather than to promote certain conduct, immoral or otherwise. (26) But according to Cockburn, that was a distinction without legal relevance. If the book in question had "the immediate tendency of demoralizing the public mind," the Chief Justice reasoned, then it did not matter that the intent behind the publication was to attain an unrelated objective such as to warn readers about the supposed perils of Catholicism. (27)

It would be too simplistic to claim that courts in cases such as Sharpless, Memoirs of a Woman of Pleasure, and Hicklin concerned themselves with protecting public morality as an abstract principle. Instead, their primary concern was with the effects, both on society and on individuals, of obscene materials (as shown by their concern with the materials' purported debauching and corrupting influences). (28) What was fundamental about the reasoning of these early courts, and what distinguishes it from that of those a few decades into the twentieth century, was that they largely assumed that obscene materials represented a threat to society because they morally corrupted individuals who read or observed them. In contrast, an important aspect of the process of judicial demoralization of obscenity law that started around the 1930s entailed the growing unwillingness of courts to assume that sexually explicit materials constituted a threat to society. (29)

In 1873, Congress became heavily involved in regulating obscene materials by enacting the so-called Comstock Act. (30) The legislation was largely the result of the lobbying efforts of Anthony Comstock, then an agent of the Young Men's Christian Association of New York and the future Secretary of the New York Society for the Suppression of Vice and obscenity investigator for the U.S. Post Office. (31) The Comstock Act made it a federal crime to use the mails to distribute "obscene, lewd, or lascivious" publications of any kind. (32) In addition to criminalizing the distribution of obscene materials via the mails, the Act authorized the Post Office to refuse to mail obscene materials. (33) (The government relied on this provision, decades later, to refuse to distribute some gay publications via the mails, leading the Supreme Court to decide its first two LGBT rights cases.) (34)

In 1879, the Hicklin test was adopted by a federal appellate court in United States v. Bennett. (35) In doing so, the court upheld the defendant's conviction for violating the Comstock Act after he mailed a pamphlet promoting the view that individuals had the right to engage in sex outside of marriage. (36) The court also followed Hicklin's holding that the defendant's intent was irrelevant as long as the publication had the tendency to corrupt public morals. (37)

It was not just the lower courts that embraced the Hicklin test; the Supreme Court did the same in 1896. (38) In addition, the Court a year later, in an obscenity prosecution brought under the Comstock Act against the owner of a newspaper that had published an advertisement seeming to offer the services of prostitutes, upheld the judge's instructions to the jury which explained that "if the publications were such as were calculated to deprave the morals, they were within the statute." (39) The Court explained that "[t]here could have been no possible misapprehension on [the jury's] part as to what was meant. There was no question as to depraving the morals in any other direction than that of impure sexual relations." (40) It is clear, therefore, that courts throughout the nineteenth century uniformly understood the primary objective behind the legal regulation of obscenity to be the protection of public morality.

The same focus on morality continued well into the twentieth century. For example, in 1928, the publisher Donald Friede was charged with having violated New York's obscenity statute by publishing the lesbian novel The Well of Loneliness. (41) That novel, which had been deemed obscene in England, tells the story of a woman who, from a young age, struggles with her lesbianism only to eventually understand and accept her sexual orientation. (42)

In rejecting the defendant's motion to have the criminal charge dismissed, the magistrate judge reasoned that "the novel is not only anti-social and offensive to public morals and decency," but also written in a way that "attracted] and focus[ed] attention upon perverted ideas and unnatural vices and [was] strongly calculated to corrupt and debase those members of the community who would be susceptible to its immoral influence." (43) The magistrate was particularly concerned about the novel's moral impact on those who might find same-sex sexual conduct appealing. In response to the publisher's argument that the Hicklin test inappropriately relied on the susceptibilities of society's "dullest-witted and most fallible members" to determine what was obscene, the judge noted that this particular novel, which was literary and well-written, was problematic precisely because it aimed to corrupt (what the court believed to be) a higher and better class of people. (44)

The magistrate in People v. Friede added two other important points. First, it refused to rely on the novel's literary value to preclude the obscenity prosecution given that the novel undermined public morality. As the judge explained, "the book's literary merits are not challenged, and the court may not conjecture as to the loss that its condemnation may entail to our general literature, when it is plainly subversive of public morals and public decency, which the statute is designed to safeguard." (45)

Second, the magistrate embraced the notion of "thematic obscenity," that is the idea that a publication was obscene if it presented intimate relationships outside of heterosexual marriage as morally acceptable, even in the absence of explicit depictions of sexual acts. (46) Indeed, the judge was particularly troubled by the fact that the novel portrayed "unnatural and depraved" (i.e., same-sex) relationships as ones that were to be "idealized and extolled"; rather than criticizing these relationships, the book presented the characters "who indulge in these vices ... in attractive terms, and it is maintained throughout that they be accepted on the same plane as persons normally constituted, and that their perverse and inverted love is as worthy as the affection between normal beings and should be considered just as sacred by society." (47) According to the magistrate, the portrayal of same-sex relationships in positive (or, presumably, even neutral) ways violated the state's obscenity statute. Under this view, the book was obscene independent of the degree of explicitness of its descriptions of sexual conduct.

Although a three-judge panel eventually refused to deem the book obscene, (48) obscenity foes in New York City, at around the same time, succeeded in closing down a series of plays with lesbian and gay themes. (49) And in 1927, the New York legislature enacted a law authorizing the police to padlock for a year any theater that contributed "to the corruption of youth or others" by showing plays that depicted or dealt with "sex degeneracy or perversion." (50) That statute was prompted by the Broadway production of a play called The Captive, a work that explored the attraction of a married woman for another woman. (51) An appellate court, in refusing to grant the holder of the rights to the play an injunction seeking to force the owner of the theater to continue the production after the district attorney threatened to bring obscenity charges, concluded that "[i]t cannot be said dogmatically that the morals of youth, or even of adults, would not be affected by presenting a theme of the character here exhibited with the action and dialogue which accompany it." (52)

A few years later, the New York Court of Appeals embraced the notion of thematic obscenity in People v. Wendling, (53) In that case, fifteen defendants were convicted of obscenity for their roles in the production of a play called Frankie and Johnnie, the story of a young man involved in gambling and prostitution. (54) The state high court overturned the convictions because they were based on the play's vulgarity and profanity, which the court deemed to be insufficient to support the obscenity charges. (55) On the particular question of prostitution, the court explained that the mere fact that actors played the roles of prostitutes and their clients was not enough because the play did "not counsel or invite to vice or voluptuousness. It [did] not deride virtue." (56) The crucial question, according to the court, was whether the play presented prostitution in a positive light such that its encouragement or promotion would undermine public morals. (57)

In short, for more than a century after the first obscenity prosecution in the United States, there was wide consensus among courts that the state's authority to regulate obscenity was grounded in its power to protect public morality. Although, as the ultimately unsuccessful prosecutions in Friede and Wendling show, courts sometimes disagreed with the judgment of prosecutors and jurors that particular works were obscene, there was little disagreement that the primary objective of obscenity statutes was to prevent the promotion of immorality. Eventually, that consensus began to break down, a phenomenon driven initially by increasing judicial agitation against the Hicklin test.

B. The Demise of Hicklin and the Search for Provable Effects

The first judicial opinion that questioned the advisability of the Hicklin definition of obscenity was penned by Judge Learned Hand in 1913. (58) The defendant in United States v. Kennerley had been indicted for using the mails to distribute a book, called Hagar Revelly, about a young woman who, after being seduced and impregnated by her employer, considers the possibility of becoming a prostitute before accepting the man's offer to become his mistress. (59) In rejecting the defendant's demurrer petition, Hand acknowledged that the book was obscene under Hicklin because two of its pages "might tend to corrupt the morals of those into whose hands it might come and whose minds were open to such immoral influences." (60) Despite ruling for the government, Hand proceeded to criticize the Hicklin test that precedents required him to apply: "I hope it is not improper for me to say that the rule as laid down, however consonant it may be with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time, as conveyed by the words, 'obscene, lewd, or lascivious.'" (61) Hand added that,
   [i]f the time is not yet when men think innocent all that which is
   honestly germane to a pure subject, however little it may mince its
   words, still I scarcely think they would forbid all which might
   corrupt the most corruptible, or that society is prepared to accept
   for its own limitations those which may perhaps be necessary to the
   weakest of its members. (62)


It is important to note that despite Hand's clear discomfort with the Hicklin test, he did not suggest that anything other than moral values be used to determine whether a particular publication was obscene. In other words, there was nothing in Hand's ruling that questioned the wide judicial consensus that obscenity regulations were needed to prevent the dissemination of materials promoting immorality. What Hand's opinion accomplished was to make three other important points about the determination of what constituted obscenity: First, that the moral values that served as the guideposts of obscenity law were not static, but instead changed with the times; (63) second, that juries were best equipped to determine what was obscene because they could best apply contemporary understandings of morality and decency; (64) and third, that in doing so, juries should bring to bear prevailing community standards rather than the susceptibilities of society's most vulnerable members. (65)

Although Learned Hand, as a district court judge, could do little to modify the legal definition of obscenity, the same was not true of appellate courts. For example, the New York Court of Appeals, in its 1922 ruling in Halsey v. New York Society for Suppression of Vice, (66) narrowed the definition of obscenity under New York law in a case arising from a bookseller's sale of Theophile Gautier's Mademoiselle de Maupin, a nineteenth century novel that satirized traditional morality and extolled a vibrant sensuality through detailed descriptions of sexual intimacy. (67)

The bookseller had originally been charged under the state obscenity statute as a result of a prosecution instigated by John Sumner, the secretary of the New York Society for the Suppression of Vice. (68) After the defendant was acquitted, he sued the Society seeking damages for the tort of malicious prosecution. (69) By the time the civil lawsuit reached New York's highest court, the issue was whether the Society had had probable cause to believe that the book was obscene under state law. (70)

In refusing to overturn the jury's verdict finding no probable cause, the Court of Appeals departed from earlier obscenity rulings in several important ways. First, it held that the determination of whether a book was obscene should be made by considering the work as a whole rather than by focusing on a few isolated pages. (71) Second, because the publication had to be assessed as a whole, the literary value of the book, as reflected in the views of critics and reviewers, was relevant to the determination of whether it was obscene. (72) And, finally, like Judge Hand in Kennerley, the court reasoned that jurors, as representatives of the community, were best able to determine whether a publication was obscene. (73)

The Halsey opinion was important not only for what it contained, but also for what it lacked. There was little discussion in Halsey of the purpose of obscenity law, and therefore little discussion of the role of obscenity regulations in protecting public morality. In fact, Halsey was representative of a new trend in the case law, one that culminated in the Supreme Court's 1957 opinion in Roth v. United States, (74) that emphasized issues such as the literary (or social or scientific) value of the materials in question rather than the moral justifications behind obscenity regulations.

This shift in the case law was also reflected in two decisions by the U.S. Court of Appeals for the Second Circuit issued in the early 1930s. The first case, United States v. Dennett, involved the federal government's prosecution of the feminist and birth control advocate Mary Dennett under the Comstock Act for using the mails to distribute a sex education pamphlet. (75) Dennett wrote the pamphlet in order to inform young people, including her sons, of how sexual organs functioned and of the pleasures of sexual intimacy. (76) In overturning Dennett's conviction, Judge Augustus Hand emphasized the pamphlet's educational objective. (77) Although it was the case that "any article dealing with the sex side of life and explaining the functions of the sex organs is capable in some circumstances of arousing lust[,]" that possibility was not enough to render the material obscene, especially since the alternative was to leave the young uninformed about the mechanics and consequences of sexual intimacy. (78) The importance of educating young people about the basic facts of life outweighed whatever tendency the pamphlet might have to sexually arouse some readers.

Four years later, Judge Hand again wrote for the Second Circuit when he rejected the federal government's effort to ban the importation of James Joyce's novel Ulysses on the ground that it was obscene. (79) As in Dennett, Hand focused on the primary purpose of the writings. Although Ulysses contained sexually explicit scenes, they were "relevant to the purpose of depicting the thoughts of the characters and are introduced to give meaning to the whole, rather than to promote lust or portray filth for its own sake." (80) According to Hand, the scenes describing sexual acts and desires were part of a larger effort to convey the full life of the characters rather than to promote or incite lust. (81)

As a doctrinal matter, the Second Circuit's ruling in Ulysses is important because it explicitly refused to follow the Hicklin test. (82) If all that was required before a book was deemed obscene was that it contain a handful of passages that might sexually arouse the most susceptible of readers, then "much of the great works of literature" were legally obscene, a result that Congress could not have intended. (83) The appropriate test in deciding whether a book was obscene, Hand explained, was "its dominant effect." (84) Hand added that, in applying that test, it was necessary to determine whether "the objectionable parts" were relevant to the book's "theme," as well as "the established reputation of the work in the estimation of approved critics, if the book is modern, and the verdict of the past, if it is ancient...." (85)

One of the consequences of rulings like Ulysses was that they shifted the legal focus from conclusions based on the (im)morality of the material as determined by the (in) decency of its language, drawings, or photographs to an assessment of whether "the likelihood that the work will so much arouse the salacity of the reader to whom it is sent ... outweigh[s] any literary, scientific or other merits it may have in that reader's hands." (86)

Dennett and Ulysses represent a crucial shift in the judicial understanding of obscenity in the United States. The federal appellate court in both instances was unwilling to assume, as earlier courts had done, that sexually explicit materials harmed society because they morally corrupted their readers or observers. Instead, the court reasoned that the educational value of the pamphlet in Dennett and the literary value of the novel in Ulysses greatly outweighed whatever speculative harms might result from the fact that they would engender sexual urges and desires in some readers.

Those who advocated in favor of narrow understandings of obscenity statutes soon began demanding evidence of effects beyond the readers' internal mental processes. In particular, they began demanding that obscenity regulations be justified through empirical evidence showing a link between sexually explicit materials and specific social harms such as juvenile delinquency. (87) From this perspective, the fact that certain words or pictures might arouse sexual desires, which had been the main focus of attention in the older cases, was not enough; there had to be some causal link between the materials in question and negative social consequences.

This demand for evidence of cause and effect is reflected in two opinions issued by the Second Circuit in United States v. Roth, the case eventually used by the Supreme Court to delineate the constitutional limitations of obscenity laws. The trial judge had sentenced Roth to five years in prison after a jury convicted him of mailing obscene books, pamphlets, and photographs. (88) Roth appealed his conviction by challenging the constitutionality of the federal obscenity statute. (89) In writing for the appellate court, Judge Charles Clark reasoned that since courts had been upholding convictions under the statute for decades, only the Supreme Court could render it unconstitutional. (90) But Clark also noted that judges had to be careful before striking down the statute given "our own lack of knowledge of the social bearing of this problem [of selling obscenity], or consequences of such an act; and we are hardly justified in rejecting out of hand the strongly held views of those with competence in the premises as to the very direct connection of this traffic with the development of juvenile delinquency." (91)

It turned out, as Judge Jerome Frank explained in a concurring opinion, that there was little empirical evidence showing a link between the consumption of obscenity and juvenile delinquency. (92) Nonetheless, what is important for our purposes is the extent to which Judge Clark's opinion, despite its deferential posture toward the government, deemed the prevention of provable social harms, rather than a generalized need to protect public morals, to be the statute's principal objective.

While Clark was willing to side with the government as long as there was a reasonable disagreement among experts about the effects of obscenity on delinquency, Judge Frank's concurrence took the position' that, under the Supreme Court's free speech cases, the statute should not be presumed to be constitutional and that therefore the government had the burden of showing that the distribution of obscene materials constituted a clear and present danger. (93) As Frank explained,
   [t]he troublesome aspect of the federal obscenity statute ... is
   that (a) no one can now show that, with any reasonable probability
   obscene publications tend to have any effects on the behavior of
   normal, average adults, and (b) that under that statute, as
   judicially interpreted, punishment is apparently inflicted for
   provoking, in such adults, undesirable sexual thoughts, feelings,
   or desires--not overt dangerous or anti-social conduct, either
   actual or probable. (94)


In Judge Frank's view, the Constitution demanded a search for evidence of actual harm. Under this approach, the fact that materials might create lust in the minds of their readers was not enough to justify, under the First Amendment, legislation that prohibited the distribution of books and magazines. The government could not, consistently with the Free Speech Clause, paternalistically try to prevent individuals from having certain thoughts unless those thoughts led to behaviors that caused social harm. As Frank asked rhetorically, "[i]f the government possesses the power to censor publications which arouse sexual thoughts, regardless of whether those thoughts tend probably to transform themselves into anti-social behavior, why may not the government censor political and religious publications regardless of any causal relation to probable dangerous deeds?" (95)

For Frank, the problem with the prevailing obscenity test, even as it had been modified by cases such as Ulysses, was that it focused exclusively on the apparent internal responses of those who read or saw the materials in question to try to determine whether they promoted sexual desires and feelings. But the inducement of lustful desires was not enough to justify censorship in the absence of "some moderately substantial reliable data showing that reading or seeing those publications probably conduces to seriously harmful sexual conduct on the part of normal adult human beings.... [W]e have no such data." (96)

Judge Frank's concurring opinion in Roth, and to a lesser extent Judge Clark's ruling on behalf of the court, reflected a new perspective in obscenity law, one that focused on the need to establish a causal connection between obscenity and social harm, a requirement that arose explicitly from the First Amendment. (97) But Frank agreed with Clark that only the Supreme Court could strike down the federal obscenity statute. (98) It is for that reason that those who believed that the statute was unconstitutional were delighted when the Court, a few months later, granted certiorari in Roth in order to determine the provision's constitutionality.

C. The Supreme Court Weighs in on the Question of Obscenity

After deciding three obscenity cases at the end of the nineteenth century, the Supreme Court barely paid attention to the issue in the decades that followed. (99) The Court returned to questions related to obscenity in 1948 with two rulings. In the first, it struck down, on vagueness grounds, a New York statute that deemed publications to be obscene if they consisted principally of "deeds of bloodshed, lust, or crime." (100) But the Court, in the second ruling, by an evenly divided vote and without issuing an opinion, affirmed an obscenity conviction under another New York statute based on the publication of a collection of interrelated short stories written by Edmund Wilson, a highly regarded literary critic, containing graphic sexual descriptions. (101) Nine years later, the Supreme Court granted certiorari in Roth v. United States, as well as in Alberts v. California, a consolidated case that arose from an obscenity conviction under California law, with the objective of determining the constitutionality of obscenity laws. (102)

It is important to note that the Supreme Court's ruling in Roth marked the beginning of an intense constitutionalization of obscenity law in the United States. It was rare, prior to Roth, for courts in obscenity cases to grapple directly with the regulatory limitations imposed on the state by the Free Speech and Free Press clauses, (103) even when defendants who confronted obscenity prosecutions raised constitutional claims. (104) Although, as we have seen, courts had for decades been struggling with the proper definition of obscenity, they had done so generally without accounting for constitutional principles of free speech. Indeed, there are no references to the First Amendment even in speech-friendly rulings, such as Judge Learned Hand's in Kennerley and Judge Augustus Hand's in Ulysses. (105) It is not until later opinions, such as Judge Frank's concurring opinion in Roth, that judges began to weave extended discussions of constitutional doctrine into their obscenity analysis. This phenomenon likely reflected a growing unwillingness on the part of some judges to accept as a given the government's contention that sexually oriented materials intrinsically corrupted their readers or observers.

The Roth and Alberts appeals arrived before the Supreme Court squarely as constitutional cases, with the former addressing the constitutionality of the federal government's regulation of obscenity, and the latter doing the same for a state law. (106) Not surprisingly, there was much disagreement among the parties on the appropriate constitutional analysis of obscenity laws. The federal government in Roth followed the traditional approach by claiming that the "public interest served by the [obscenity statute was] the preservation of public morality...." (107) The government's brief argued that "[t]he interest in the preservation of public morality has long been recognized by this Court, and long regarded as an adequate basis for legislation. Legislation has ranged from controlling lotteries, preventing gambling, or keeping children off the streets, to preventing trains from running on Sundays. In each instance, the interest in public morality has justified the restraint." (108)

The government further claimed that "public morality is an indivisible whole" and that it was therefore not possible to distinguish the state's interest in promoting sexual morality from its interests in other forms of morality. (109) The brief warned the Court that "[i]t is the moral force behind the laws, not the pieces of paper [in which they are written], which in fact is the constitutional framework of organized society. The breaking down of the respect for morality weakens the 'morale' and the entire fabric of respect for law." (110)

At the same time, perhaps bowing to the growing agitation by some lower courts for evidence that obscenity caused social harms, the federal government argued that it was reasonable to assume that the distribution of obscene materials via the mails would lead to "criminal or perverted sexual conduct," even if it was not possible to establish precisely how much of such conduct was directly caused by the publications. (111) Since obscene materials corrupted the morals of the average person, their distribution contributed to the breaking down of moral restraints, which in turn led to increases in "prohibited conduct" over time. (112) The government urged the Court to apply the clear and present danger test, which it claimed only required that it be likely that the cumulative effect of obscenity distribution would corrupt morals and therefore create a risk of "bad conduct." (113)

For its part, the state of California, in defending the constitutionality of its statute in Alberts, the case consolidated with Roth, claimed that the state's police "power may be exerted to preserve the public morals by regulating and preventing such acts, practices and occupations as are in themselves immoral or indecent or have a tendency to promote immorality and indecency." (114) According to California, there were certain "elements]" of society "whose lack of restraint would, by subverting the common morality, weaken the foundations of an approved social order," thus making it necessary for the legislature to enact laws with the purpose of defending that order. (115)

In contrast, the defendants in both cases insisted that the First Amendment imposed a significant burden of proof on the government that could not be met through generalized or speculative concerns about the need to protect public morality. According to Roth, the federal obscenity statute did not satisfy the clear and present danger test because "there is no reliable evidence that obscene publications or pictures have any appreciable effect on the conduct of human beings." (116) For his part, Alberts reasoned that while California had the authority to protect public morals by discouraging harmful conduct, the First Amendment barred the state from trying to discourage certain "ideas, thoughts and desires." (117) What was at issue in the regulation of obscenity, Alberts claimed, was the government's effort "to maintain the status quo in sex attitudes.... The attempt is to coerce unanimity of opinion by authority who assumedly [sic] has divined the 'truth' concerning sex morality and attitudes." (118)

Despite the arguments raised by the parties, the Supreme Court refused to address the question of whether the protection of public morality was a sufficient justification for obscenity regulations or whether, alternatively, the government had to show proof of a causal connection between the reading or viewing of allegedly obscene materials and anti-social conduct. (119) Instead, the Court in Roth, speaking through Justice Brennan, made three other points. First, it held that obscene materials were simply not constitutionally protected 114 115 116 117 118 119 by the First Amendment. (120) It reached that conclusion after a rather cursory review of the historical record, finding evidence that at the time the Amendment was adopted, it was generally understood that the government had the authority to regulate obscenity. (121) Second, what was constitutionally relevant was whether the materials subject to government regulation had some social value. (122) According to Brennan, "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." (123)

Third, the Court emphasized that sex did not equal obscenity. The mere portrayal or depiction of sexual acts was not enough to render materials obscene, and therefore constitutionally unprotected. (124) Focusing once again on the question of the publications' social value, Brennan explained that sex is one of the great mysteries of life and, as such, "one of the vital problems of human interest and public concern." (125) As a result, it was crucial to distinguish between the artistic, literary, and scientific (i.e., valuable) portrayals of sex from depictions that treated it "in a manner appealing to prurient interest." (126) Only publications with dominant themes that appealed to prurient interests were obscene, and it was therefore only they that were constitutionally unprotected.

By focusing so intently on issues related to the artistic, literary, and scientific value of sexually explicit materials, the Court in Roth refused to assume, as courts had done consistently in prior decades, that society was inevitably harmed by the distribution of materials that incited sexual desires. Rather than understanding such materials as ones that uniformly represented threats to society because of their purported immorality, the Court in Roth took the position that sexually explicit materials sometimes had social value.

The Roth Court did give a nod to the government's interest in promoting morality by quoting from a famous passage in Chaplinsky v. New Hampshire--its case holding that "fighting words" are constitutionally unprotected (127)--distinguishing between protected and unprotected speech:
   There are certain well-defined and narrowly limited classes of
   speech, the prevention and punishment of which have never been
   thought to raise any Constitutional problem. These include the lewd
   and obscene.... It has been well observed that such utterances are
   no essential part of any exposition of ideas, and are of such
   slight social value as a step to truth that any benefit that may be
   derived from them is clearly outweighed by the social interest in
   order and morality.... (128)


Commentators sometimes point to this passage to support the view that the Court in Roth viewed the promotion of public morality as constituting a legitimate purpose behind obscenity law. (129) But I find more relevant the fact that, other than the quotation from Chaplinsky, the Court in Roth failed to mention, much less grapple with, the question of state objectives (whether moral or otherwise) behind obscenity regulations. (130) I believe Roth therefore represented another step toward the judicial demoralization of obscenity law.

It is true that the obscenity test adopted by the Court required that the determination of whether particular materials appealed to the prurient interests of readers be made according to "contemporary community standards." (131) It is often assumed that the Court, by referencing such standards, invited lower courts and juries to incorporate notions of morality into the obscenity analysis. In actuality, however, courts had for some time been pushing for the "community standards" test as an alternative to the Hicklin test; the former was increasingly appealing precisely because it was narrower. (132) It was less likely that materials would be found obscene if the assessment was based on broad community standards, rather than on the sensitivities of society's most vulnerable members. (133) When Roth is viewed in its proper historical context, therefore, it represented not a move toward the incorporation of public morality into obscenity law, but a move away from it.

Admittedly, Roth's contribution to the demoralization of obscenity law was more implicit than explicit. The Court could have adopted the defendants' (and Judge Frank's) contention that the First Amendment did not allow the state to ban publications solely on the basis of public morality, requiring instead the showing of a causal link between the materials and harmful behaviors. If the Court had so held, it would have explicitly rejected the need to promote public morality as a justification for obscenity regulations.

What the Court did instead was to focus on the purported social value of the materials in question, a focus that indirectly helped to move obscenity law further away from the sphere of morality. The crucial analytical point after Roth was not whether the state had legitimate interests (moral or otherwise) for adopting obscenity regulations, but instead whether the materials in question had some social value. (134) The Court's focus, in other words, was not on the government's interests behind the regulations but on the nature and content of the materials themselves. Whatever difficulties inhered in distinguishing between publications that had some social value from those that did not-difficulties clearly reflected in the rash of fractured Supreme Court obscenity cases that followed Roth (135) and in Justice Stewart's famous claim that, while it might not be possible to come up with an articulable definition of obscenity, he knew pornography when he saw it (136)--the judicial review of obscenity regulations after Roth was significantly removed from the considerations of public morality that had dominated the legal analysis in decades past. (137)

D. The Court Rejects Thematic Obscenity

In addition to Roth, the Supreme Court decided two other obscenity cases in 1957. A few months before Roth, the Court in Butler v. Michigan closed the book on whatever remained of the original Hicklin test by holding that the government could not deem as obscene materials available to adults on the basis that they might have deleterious effects on minors. (138) The Court explained, rather colorfully, that the notion that the state could promote the general welfare by keeping from adults materials that were "not too rugged" for them "in order to shield juvenile innocence" was "to burn the house to roast the pig." (139) However, the Court sided with the government in Kingsley Books v. Brown, issued on the same day as Roth, by rejecting the contention that a civil statute allowing for the seizure and destruction of materials deemed obscene outside of criminal proceedings constituted a form of constitutionally impermissible prior restraint. (140) Roth and Kingsley Books constituted the last two important rulings by the Court in favor of the government in obscenity cases for almost a decade. (141)

In early 1958, the Court overturned two obscenity convictions in one-sentence rulings that cited only to Roth. One of those cases involved two nudist magazines. (142) The other appeal involved the gay publication ONE. We will explore the details of the latter case in the next section.

The following year, the Court issued two additional obscenity rulings. In Smith v. California, the justices held that it was unconstitutional to impose strict criminal liability on a seller of books without establishing that he knew, or had reason to believe, that the materials in question were obscene. (143) But it was the Court's second obscenity case from 1959, Kingsley International Pictures Corporation v. Regents of the University of the State of New York, which is particularly important for our purposes. (144)

At issue in Kingsley Pictures was a New York statute granting the state, acting through the Board of Regents ("the Regents") of the state university, the authority to deny licenses to movies portraying "acts of sexual immorality, perversion or lewdness ... as desirable, acceptable or proper patterns of behavior." (145) The Regents had relied on that statutory authority to deny a license for the public showing of the movie Lady Chatterley's Lover. (146) The movie, based on the 1928 novel by D.H. Lawrence, told the story of a young woman who, after her husband is paralyzed while fighting in World War I, has a deeply satisfying relationship with a man whom she plans to marry after divorcing her husband. (147)

The Regents' denial of the license had been upheld by the New York Court of Appeals in a ruling that represented one of the last judicial manifestations of the traditional understanding of obscenity regulations, one that viewed them as arising directly from the government's authority to protect society through the promotion of morality. (148) As the New York court saw it, the purpose of the statutory language in question was to prevent the showing of movies that, while not characterized by "rank obscenity," nonetheless depicted "sexually immoral acts" as acceptable forms of behavior. (149)

The Court of Appeals was deeply troubled by the fact that the movie exalted an adulterous relationship and presented it as a morally acceptable one. It was one thing to portray such a relationship as a morally compromised one; it was quite another, as Lady Chatterley's Lover did, to celebrate a relationship that was "in derogation of the restraints of marriage." (150)

For the state court, it was beyond dispute that the people of New York, like most right-thinking citizens throughout the country, considered adultery to be "immoral and illegal.... The determination by the Board of Regents ... that this picture is utterly immoral in its theme, and that it presented adultery as proper behavior, was entirely correct as measured by the standards of our community." (151) To the contention, raised by the movie's distributor, that the film should not be banned in the absence of evidence that it presented a clear and present danger to society, the court responded by claiming that such a showing was unnecessary because the debasing of "fundamental sexual morality" inherently undermined society by corrupting public morals. (152) The New York court believed that it could bypass the clear and present danger standard altogether because, as with "rank pornography," materials that were "clearly approbatory" of sexual immorality could be banned because of their "corrosive effect" on public morality. (153) The court was confident that there was nothing in the First Amendment that required "this State and this nation [to] sacrifice themselves to the ravages of moral corruption. Our Constitution is a document for government, not a tool for anarchy or a license for corruption." (154)

The New York court emphasized that society had the right to protect itself against the promotion of immoral conduct: "[T]he Constitutional right freely to express one's thoughts has never been thought to divest society of its right and duty to preserve fundamental public sexual morality." (155) The court saw the New York statute, and its own constitutional approval of it, as a last remaining bulwark protecting society from anarchy. As the court explained,
   [w]e are disturbed by the increasing marks of moral laxity. Sex
   crimes occur daily. Advertising appeals more and more to the sexual
   appetite. Sexual immorality and obscenity appear in books,
   pamphlets, voice recordings, motion pictures, photographs, prints,
   and in every other form which the imagination of those bent upon
   immorality and filth can devise. Sadly enough, we could go on. But
   this much is sufficient to demonstrate that our public morality,
   possibly more than ever before, needs every protection which
   government can give. We are unable to look upon moral
   disintegration as a mere change in custom. (156)


The New York Court of Appeals' objection to the movie was clearly based on the idea of thematic obscenity, the notion that some materials are obscene because of their immoral sexual themes, independently of their depictions of sexual acts. (157) If the Supreme Court in Kingsley Pictures had followed the state court's embrace of thematic obscenity, it would have provided the government with the constitutional authority to regulate materials with same-sex sexual themes, given that prevailing social mores clearly deemed same- sex sexual relationships and conduct, like adultery, to be morally unacceptable. Instead, the Supreme Court rejected out of hand the notion that a movie could be constitutionally banned because it encouraged individuals to enter into sexual relationships that society considered to be immoral. In writing for the Court, Justice Stewart reasoned that refusing to license a movie because of its approbatory treatment of adultery was essentially to refuse the license because of its advocacy of an idea, something the government could not do without violating the First Amendment's core purpose. (158) Stewart explained that the proposition that the government could deny a license to a movie on the need to protect public morals
   misconceives what it is that the Constitution protects. Its
   guarantee is not confined to the expression of ideas that are
   conventional or shared by a majority. It protects advocacy of the
   opinion that adultery may sometimes be proper, no less than
   advocacy of socialism or the single tax. And in the realm of ideas
   it protects expression which is eloquent no less than that which is
   unconvincing. (159)


While Roth's contribution to the demoralization of obscenity law was implicit-- by focusing on the social value of the materials in question rather than on the state's interest in promoting public morality--Kingsley Pictures' contribution was direct: The Court explicitly held that the state could not constitutionally regulate the distribution of materials on the ground that they promoted sexual immorality. (160) As two leading commentators on obscenity law noted in 1960, "[t]he main thrust of the opinion in Kingsley Pictures is a strong declaration of the constitutional right to advocate unconventional ideas and behavior 'immoral' by current standards, and to do so in effective and dramatic ways." (161)

It bears noting that the holding in Kingsley Pictures was limited to materials that, while positively portraying sexual relationships outside of marriage, did not contain extensive and explicit depictions of sexual activities. When it came to materials containing such depictions, the Court continued to grapple with the state's constitutional authority to proscribe obscenity for years to come.

In the 1960s, some members of the Court called for a narrowing of the definition of obscenity. (162) In addition, the Court in 1969 unanimously held in Stanley v. Georgia that the possession of obscene materials in the home could not be criminalized. (163) In doing so, the Court rejected the state's contention that it had the authority to "protect the individual's mind from the effects of obscenity." (164) As the justices explained, "[w]e are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person's thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment." (165) The Court added that "[w]hatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." (166)

Although the Court, a few years later, broadened the definition of obscenity in Miller v. California by inter alia making it clear that the government did not have to prove that the materials in question were "utterly without redeeming social value," it did so without explicitly contending that the state had the authority to promote public morality. (167) And, when the Court in Paris Adult Theater v. Slaton held that Stanley was limited to the possession of obscenity in the privacy of the home, and therefore did not apply to the showing of obscene films in movie theaters, it sent mixed signals on the sufficiency of public morality as a justification for obscenity regulations. (168) On the one hand, the Court emphasized the government's interest in prohibiting the commercial exploitation of materials that have "a tendency to injure the community as a whole ... or to jeopardize [the ability] to maintain a decent society." (169) On the other hand, the Court described the government's authority to make these judgments as "a morally neutral" one. (170) The Court also elaborated on morally neutral interests behind the regulation of adult theaters, including "the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself." (171)

It was by no means the case, therefore, that the Supreme Court, by the time it decided its first two LGBT rights cases (or in the years that followed), had settled once and for all the question of whether public morality constituted a proper basis for the regulation of obscenity. What is clear is that around the time the Court decided those two cases, it was contributing in crucial ways to the ongoing judicial demoralization of obscenity law. It did this by either paying little attention to the sufficiency of the government's interest in morality (Roth) or by holding, in the context of materials that lacked explicit depictions of sexual acts but were deemed by the government to promote sexually immoral relationships, that the interest was insufficient to trump free speech considerations (Kingsley Pictures).

II. The First Two Times that Sexual Orientation Issues Came Before the Supreme Court

Only three years after Brown v. Board of Education, (172) the first case that directly implicated the interests of lesbians and gay men came before the Supreme Court. (173) Unlike questions related to discrimination against African Americans and the constitutional viability of de jure racial segregation, which the justices had been addressing for years, (174) the Court had had no exposure to, or expressed any interest in, issues related to sexual orientation. As we have seen, however, the justices were developing a growing interest in the constitutionality of obscenity regulations. It was from that perspective that the Court approached the first two LGBT rights cases to reach it.

A. One, Inc. v. Olesen

1. The Factual Background.

The national mobilization caused by World War II helped to create the conditions that allowed for the emergence of the homophile movement (as the early LGBT rights movement called itself). (175) The war, for the first time, brought together millions of men and women in single-sex environments, leading some to realize that they were not alone in experiencing same-sex attraction. (176) After the war, many of these individuals chose not to return to their places of origin, and instead relocated to large urban areas where others with similar sexual and romantic interests lived. (177)

The publication of Alfred Kinsey's books on the sexual practices of Americans also contributed to the formation of the homophile movement. The empirical findings in Sexual Behavior in the American Male and in Sexual Behavior in the American Female, based on interviews with more than 10,000 individuals, suggested that there was much greater diversity in the sexual practices and experiences of Americans than might first appear given the conservative sexual mores prevalent at the time. Kinsey found that not only were his subjects engaging in large amounts of premarital and extramarital heterosexual intercourse, but a surprisingly large percentage of them reported same-sex sexual attraction and experiences. (178) The Kinsey books, which were bestsellers and received an immense amount of media attention, contributed to the growing sense by many lesbians and gay men that they were not alone and that they belonged to a distinct group of individuals who shared sexual and romantic interests in others of the same sex. (179)

The post-war years were also characterized by repression of sexual non- conformity. This repression was perhaps most clearly reflected in the so-called lavender scare of the 1950s in which the federal government moved to purge from its ranks those whom it suspected were gay or lesbian, viewing them, as it did suspected communists, as threats to national security and well-being. (180) The government witch-hunt aimed at sexual minorities began in earnest in 1950 when a committee of the U.S. Senate issued a report titled Employment of Homosexuals and other Sex Perverts in Government that called on agencies of the federal government to investigate the presence of lesbians and gay men among their work forces. (181) This was followed three years later by an executive order issued by President Eisenhower listing "sexual perversion" as an automatic reason for firing federal employees. (182) In the sixteen months following the order's issuance, the dismissal rate on "perversion grounds" averaged about forty a month. (183) At around the same time, the military intensified its efforts to search for lesbians and gay men in the armed services in order to expel them. (184)

The repression of sexual nonconformity was also reflected in the targeting of gay men, ostensibly to protect young boys, through sexual psychopath laws; (185) in the growing number of arrests of men for soliciting other men to have sex; (186) and in the repeated police raids across the country of lesbian and gay bars. (187)

Although the repression caused much suffering, it also encouraged a band of brave activists to come together to do what they could to protect their communities and themselves from government coercion and discrimination. The first homophile organization, the Mattachine Society, was formed in Los Angeles in 1951 by a handful of men, most of whom were former members of the Communist Party. (188)

Infighting and a penchant for secrecy characterized the early years of the Mattachine Society. (189) This led a group of dissatisfied members, both men and women, to create a new organization with the goal of publishing a magazine that would advocate for equality more openly. (190) The purpose of the magazine, as expressed in the articles of incorporation of the nonprofit entity that published it, was to "deal[] primarily with homosexuality from the scientific, historical and critical point of view, and to aid in the social integration and rehabilitation of the sexual variant." (191) The founders called their magazine ONE (letters capitalized), based on the nineteenth-century Scottish writer Thomas Carlyle's declaration that "a mystic bond of brotherhood makes all men one." (192) (After a few months, the editors changed the publication's name to ONE: The Homosexual Magazine.) (193)

ONE was the second homosexual magazine in the United States, appearing six years after a Los Angeles woman, whose pseudonym was Lisa Ben (an anagram for "lesbian"), self-published nine issues of a publication (more of a newsletter than a magazine) called Vice Versa. (194) The first issue of ONE, published in January 1953, included an account by Dale Jennings, a founder of both the Mattachine Society and ONE, of his arrest and trial in Los Angeles for allegedly soliciting a male undercover vice squad police officer to commit a sexual act. (195) Early issues also included poetry, fiction, and news stories about gay people. (196) In addition, several of the articles decried the treatment of lesbians and gay men by police authorities and called for an end to the entrapment tactics of vice squads. (197)

At first, newsstand operators refused to carry the magazine, but after sales in gay bars in Los Angeles proved that there was a market for it, some newsstands agreed to carry the publication. (198) As for those who subscribed, most paid extra to have the magazine sent to them first class, in sealed envelopes without a return address. (199)

By July 1953, the magazine's paid circulation had reached 2,000, with a readership that was considerably larger given that copies were frequently circulated among friends. (200) Letters to the editors indicated that the magazine was being read across the country. (201) (The fear of being identified as gay or lesbian meant that the letters were often published without accompanying names, sometimes with the only identifying information being "m" for men and "f" for women, in addition to the name of the town and state where the writer lived.) (202) Despite the rather quick growth in ONE's circulation, the magazine remained a shoestring operation. (203) Only one staff member, the business manager, was put on a salary, and even he was paid only when there was enough money left over after covering production and mailing costs, which was not very often. (204) Most staff writers used pen names, both to hide their identities and to make it seem as if the group of contributors was larger than it truly was. (205)

Although staff members did not know it at the time, three months after the magazine was first published, FBI agents in Los Angeles began reading it in search for obscene or subversive material. (206) In July 1953, the FBI opened a formal investigation of the magazine, which included mailing each issue to FBI headquarters in Washington for further review. (207) A few weeks later, local postal authorities seized copies of ONE's August 1953, issue pending review by postal officials in Washington to determine whether it was mailable under the federal obscenity statute. (208) That particular issue, with a cover titled "Homosexual Marriage?," included an essay discussing whether lesbians and gay men should seek the right to marry, and if they did so, how that would affect their lives. (209) Only after officials in Washington determined that the issue was mailable did the Post Office distribute the copies, three weeks after it seized them. (210)

The magazine's perseverance in the face of threatened censorship led its editors to proclaim on the next issue's cover that "[w]e have been pronounced respectable. The Post Office found that ONE is obscene in no way.... Never before has a government agency of this size admitted that homosexuals not only have legal rights but might have respectable motives as well." (211) At the same time, the editors expressed anger at the fact that authorities continued to harass and intimidate lesbians and gay men across the country:
   As we sit around quietly like nice little ladies and gentlemen
   gradually educating the public and the courts at our leisure,
   thousands of homosexuals are being unjustly arrested, blackmailed,
   fined, jailed, intimidated, beaten, ruined, and murdered. ONE's
   victory might seem big and historic as you read of it in the comfort
   of your home (locked in the bathroom? hidden under a stack of other
   magazines? sealed first class?). But the deviate hearing of our late
   August issue through jail bars will not be overly impressed. (212)


The brush with government censors led the magazine's editors to ask Eric Julber, their unpaid attorney who had graduated from law school only a few years before, to read everything scheduled for publication to make sure there were no violations of obscenity laws. (213) In the months that followed, Julber recommended that certain passages from Walt Whitman's poetry be removed from an article exploring whether the poet was gay. (214)

In response to complaints from some readers that the magazine was too tame, (215) the editors also asked Julber to write an essay, published in the October, 1954, issue--the same issue that postal officials later seized after deeming it obscene, leading to the litigation that ended before the Supreme Court--detailing how the magazine determined what it could publish in order to steer clear of obscenity laws. (216) Julber explained to readers that "it has long been the law that the Government can exclude from the mails any matter it deems contrary to public welfare or morals." (217) Julber opined that ONE did not run afoul of the federal obscenity statute as long as the published material was limited to "the discussion of the social, economic, personal and legal problems of homosexuals, for the purpose of better understanding of and by society...," (218) But the magazine had to stay away from materials that "appealed to the lusts or salacity or sexual appetites ... of ONE's readers ... ONE, in other words can appeal to the heads, but not the sexual desires, of its readers." (219)

Julber then proceeded to provide examples of the kinds of contributions that could not be published:
   (1) Lonely hearts ads, seeking pen pals or meetings. (2)
   "Cheesecake" art or photos .... (3) Descriptions of the sexual acts
   or the preliminaries thereto .... (4) Descriptions of experiences
   which become too explicit. I.e., permissible: "John was my friend
   for a year." Not permissible: "That night we made mad love." (5)
   Descriptions of homosexuality as a practice which the author
   encourages in others, or waxes too enthusiastic about. (6) Fiction
   with too much physical contact between the characters. I.e.,
   characters cannot rub knees, feel thighs, hold hands, soap backs,
   or undress before one another. (220)


The attorney made two additional points. First, that the same material that would pass censorship muster if it referred to different-sex sexual relationships would be deemed obscene if written about same-sex ones. (221) The obscenity threshold, in other words, was considerably lower for same-sex than for different-sex sexual content. Second, that the publication rules could be relaxed somewhat when they referred to "homosexuality among women," as had been done in a recent issue of ONE that was dedicated entirely to women's lives, because of society's less harsh attitudes toward lesbianism than male homosexuality. (222)

Ironically, postal authorities refused to mail the approximately six hundred copies of the issue--sardonically titled "You can't print that!"--containing Julber's explanations of ONE's obscenity prevention policies. (223) In justifying its conclusion that the issue was "non-mailable mailable" under the federal obscenity statute because it was obscene, postal authorities emphasized three of its contents: a short story, a poem, and an advertisement. (224) The short story was titled "Sappho Remembered" and written by the novelist and playwright James Barr using the pseudonym "Jane Dahr." (225) (Although the editors wanted the magazine to appeal to both lesbians and gay men, they were not receiving many submissions by women, therefore creating the need for men to sometimes write under female pseudonyms.) (226) The short story was about a "helplessly young" woman of twenty who turns down her boyfriend's proposal of marriage in order to stay with the older women whom she loves. (227) The story contained several references to physical contact between the two women, including the pressing of knees together while sitting in the back of a car and the caressing, by the older woman, of the younger woman's "child-like temple." (228)

The poem, written by a Canadian professor and titled "Lord Samuel and Lord Montagu," poked fun at a recent article by a British lord complaining "that the vices of Sodom and Gomorrah [are] rife among us." (229) The poem told of another British lord who was imprisoned for a year for having sex with "Scouts" and "airmen" and of a member of Parliament who was fined for "importuning." (230) The poem added that "some peers are seers but some are queers--/And some boys WILL be girls." (231) It then ended with references to the dangers lurking for men who search for sex in London's public bathrooms:
   And if you wish to Pick a Dilly
   When you're strolling out at night,
   Just make sure it's not a "Lily"
   Or a male transvestite.

   For there's blackmail in the woodpile
   And there's blackmail by the fence,
   But to black male and to white male
   It's: AVOID THE PUBLIC "GENTS"! (232)


In addition to the short story and the poem, postal officials claimed that the ONE issue was not mailable because of an advertisement placed by the gay Swiss magazine Der Kreis ("The Circle"), a publication that the government contended was itself obscene. (233)

2. The Lawsuit.

Several months after the Post Office seized their issue, ONE's editors authorized Julber to file a lawsuit in federal court challenging the government's action. (Julber asked the American Civil Liberties Union for assistance, but the organization turned down the request because the magazine was a gay one.) (234) After both sides filed motions for summary judgment, the trial court ruled in the government's favor. 235 * According to the court,
   "Sappo [sic] Remembered" and other stories are obviously calculated
   to stimulate the lust of the homosexual reader. The Poem "Lord
   Samuel and Lord Montagu" in particular, is filthy and obscene. Many
   of the advertisements contained in the publication, including the
   advertisement for the Swiss publication "The Circle[,]" lead to the
   obtaining of obscene material. (236)


The court added that "[t]he suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected." (237)

A year later, the U.S. Court of Appeals for the Ninth Circuit affirmed the trial court's ruling. The appellate court began by explaining that whether material was obscene under the statute could only be determined "by some discussion of the moral sense of the public." (238) Recognizing that "morals are not static," the judges reasoned that it was necessary to define the statutory terms "in the light of today's moral dictionary." (239) According to the court, the story "Sapho Remembered" was obscene because its main character, after struggling between lesbianism and "a normal married life," chose the former. (240) In the court's view, the story was "nothing more than cheap pornography calculated to promote lesbianism." (241) Similarly, the poem about the same-sex sexual interests of some members of the British aristocracy, and the searching for sexual partners in London's public bathrooms, "pertains to sexual matters of such a vulgar and indecent nature that it tends to arouse a feeling of disgust and revulsion. It is dirty, vulgar and offensive to the moral senses." (242) Finally, the Court of Appeals concluded that the advertisement for The Circle rendered the issue of ONE nonmailable because its examination of the Swiss publication "clearly reveals that it contains obscene and filthy matter which is offensive to the moral senses, morally depraving and debasing, and that it is designed for persons having lecherous and salacious proclivities." (243)

In discussing the poem, the court elaborated on the doctrinal point that in establishing what was offensive to morals, the correct approach was to use the standards of the community at large, rather than those of "a small segment of the population [whose] own social or moral standards are far below those of the general community. Social standards are fixed by and for the great majority and not by or for a hardened or weakened minority." (244) Whether the views of the broader community or those of the targeted audience constituted the appropriate standard against which to assess the materials mattered because it was much less likely that buyers of ONE considered it to be obscene. (245)

There are two other doctrinal points that bear emphasis in analyzing the Court of Appeals' ruling. First, the court embraced the traditional approach to obscenity by using public morality as its polestar in determining whether the magazine issue was mailable. Although the court acknowledged that moral standards changed with the times, it nonetheless saw public morality as setting the standards of decency against which the materials in question had to be assessed.

Second, the Court of Appeals in effect embraced the concept of thematic obscenity. Although it deemed the magazine as one that peddled "cheap pornography," (246) the issue in question contained no explicit descriptions of sexual acts. This strongly suggests that the finding of obscenity was based on the magazine's portrayal of homosexuality in a positive light, comparable to heterosexuality. The Court of Appeals essentially concluded that any portrayal of same-sex sexual relationships and attraction that presented them as acceptable and worthy of social respect was intrinsically salacious and indecent.

ONE responded to the Court of Appeals' decision with an angry and pugnacious editorial explaining that the magazine saw itself as fighting for the free speech rights of all Americans and that, in some ways, the Post Office had done it a favor by raising the issue of its rights under the First Amendment: "Events may prove that in no other way could the rights of homosexual American citizens be adequately and finally tested, and the legal and social problems of the homosexual be thoroughly and publicly aired." (247) The editorial also complained that lesbians and gay men were permitted very few outlets of expression and that whenever someone wrote realistically about "homosexual attachment--the spectre of Obscenity stands ready with fangs bared." (248) The editorial ended with a promise: "ONE intends to fight to ... insure for homosexuals the right to speak for themselves, to publish and disseminate literature wherein the homosexual may answer the prejudice and false charges against him with facts and forthright statements. In simple words, ONE rightfully demands the 'Freedom of the Press.'" (249)

Julber, in his petition for certiorari to the Supreme Court, argued that the magazine's primary purpose was not to advocate on behalf of homosexuality, but was instead to discuss the "problems, social, economic, and personal, which confront those persons possessed of that particular neurosis, or complexion [i.e., homosexuality]." (250) Neither the issue in question, nor any of the magazine's other issues, Julber told to the Supreme Court, contained "any advocacy of homosexuality as a way of life." (251)

Although Julber's effort to distinguish between general discussions of homosexuality and advocacy of homosexuality was an understandable strategic choice given the times, the claim that ONE was not an advocacy magazine was not particularly persuasive. The taboo against any mention of homosexuality other than to decry its existence was so strong, and the stigma that attached to being lesbian or gay was so pervasive, that a magazine dedicated to bringing greater visibility to the needs and interests of lesbians and gay men could not be understood as anything other than a vehicle to express the view, radical for its time, that society should tolerate individuals with a same-sex sexual orientation. In this sense, the Court of Appeals' understanding of the purpose of ONE--as a magazine that took the position that there was nothing wrong with being lesbian or gay--was a more accurate one than Julber's account of the magazine's objectives.

The crucial issue, then, was not whether the magazine sought to send the message that homosexuality was an acceptable form of human sexuality (it clearly did); instead, the crucial issue was whether the Court of Appeals was correct that such content rendered the publication obscene under federal law.

3. The Supreme Court's Ruling and the Further Demoralization of Obscenity Law.

The Supreme Court granted the certiorari petition, but rather than asking for briefs and scheduling oral arguments, it instead summarily reversed the Court of Appeals in a one-sentence, unanimous, and per curiam opinion that cited to Roth. (252) It was not surprising that the Supreme Court, in reversing the lower court's ruling, cited Roth, its most important obscenity decision to date, issued several months after the federal appellate decision in One and several weeks before Julber filed his certiorari petition. Clearly, the Supreme Court did not believe that the October, 1954, issue of the gay magazine was obscene under Roth. The question that remains unanswered--and will likely never be definitively answered given its summary reversal in One--is precisely why the Court so believed.

Despite the unavoidable uncertainty that accompanies one-sentence rulings, it is possible, in looking at One and Roth together, to reach reasonable conclusions about the Court's prevailing views on obscenity as they applied to a gay publication. First, the Court likely concluded, after presumably engaging in an independent analysis of the magazine's content, that it did not sufficiently appeal to prurient interests to qualify as obscene under Roth. Even assuming that Julber was correct that the titillation threshold was significantly lower for gay publications than for heterosexual ones--that is, that it took significantly less for lesbian and gay content to be sufficiently sexually explicit in order to be deemed obscene--the Court, it is reasonable to believe, concluded that the magazine lacked the minimum degree of explicit sexual content required to support a finding that its primary objective was to appeal to the prurient interests of its readers.

At the same time, however, the magazine did have some sexual content. The issue in question, after all, included a story about a romantic relationship between two women; a sardonic poem about the same-sex interests of some British peers and the visit to public bathrooms by men looking for sex with other men; and an advertisement by a Swiss magazine that, in addition to publishing political and sociological articles, contained erotic pictures. (253) But, as we have seen, the Court made clear in Roth that "sex and obscenity are not synonymous." (254) What distinguished permissible from impermissible depictions and references to sex under Roth was the material's social value. (255) The second reasonable conclusion that we can reach when interposing the two cases, therefore, is that, in the Court's view, the gay magazine's content had sufficient social value to render it nonobscene.

It is in many ways astounding that the Court, in 1958, was willing to recognize that a magazine dedicated to the needs and interests of lesbians and gay men had sufficient social value--despite containing some sexual content--to reverse the lower court's finding of obscenity. In thinking about what the Court did in One, it is essential to keep in mind the social consensus, prevalent at the time, that same-sex sexual relationships and conduct were pathological and immoral. As two leading commentators on obscenity law noted at the time, "[i]t could scarcely be said that One, The Homosexual Magazine enjoys any substantial degree of public acceptance in the nation or that it comports with contemporary standards of the average or majority of the national community[.]" (256)

The outcome in One strongly suggests that the Court believed that, for purposes of determining the scope of First Amendment protections, the judicial assessment of the social value of publications deemed by the government to be obscene had to be conducted independently of majoritarian judgments about the morality of the sexual relationships and conduct depicted therein. Indeed, One reflects the extent to which the Supreme Court by the late 1950s had embraced the idea that majoritarian moral objections to particular kinds of sexual relationships and acts had little to do with the determination of whether particular materials were legally obscene. If the Court in One had accepted the federal appellate court's reasoning that whether the sexual relationships in question were immoral under contemporary social standards was a crucial factor in assessing whether the materials were legally obscene, it would not, in all likelihood, have protected the gay magazine under the First Amendment.

One constituted the second time in less than a year (the first being Roth) in which the Court was invited to link the government's authority to regulate obscenity to the preservation of public morals. The fact that the Court declined to do so shows that, rather than viewing the promotion of public morality as the sine qua non of obscenity regulation--as contended by the government in Roth (257) and by the Court of Appeals in One (258)--the Supreme Court instead understood the need to protect society through the promotion of public morality as an insufficient basis upon which to support a finding of obscenity. In this sense, the justices' summary reversal in One foreshadowed their holding the following year in Kingsley Pictures that the government could not constitutionally prevent the distribution of materials on the ground that they promoted sexual immorality. (259)

As we will see in Part IV, the Court several decades later, as society became more tolerant of sexual minorities, also held that the promotion of majoritarian morality constituted an insufficient ground upon which to justify the regulation of same-sex sexuality, as well as laws that classify on the basis of sexual orientation. (260) What is remarkable about the demoralization of obscenity law that is reflected in the Court's ruling in One is that it took place many years before the nation was engulfed in political, legal, and cultural debates about the proper place in society of lesbians, gay men, and bisexuals. That demoralization had everything to do with changing judicial understandings of obscenity law and little or nothing to do with judicial (or social) views of same-sex sexual relationships and conduct.

After One, it became clear that the government could not censor a publication dedicated to exploring the place of sexual minorities in society, even if most Americans deemed same-sex sexual relationships and conduct to be morally reprehensible. What was not so clear was whether the First Amendment provided protection to publications that had significant same-sex erotic content. It was that question which the Court addressed in the second LGBT rights case to reach it.
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Title Annotation:Introduction through II. The First Two Times That Sexual Orientation Issues Came Before the Supreme Court A. One, Inc. v. Olesen, p. 229-278
Author:Ball, Carlos A.
Publication:Columbia Journal of Gender and Law
Date:Jan 1, 2015
Words:14375
Previous Article:A conversation with Edie Windsor.
Next Article:Obscenity, morality, and the First Amendment: the first LGBT rights cases before the Supreme Court.
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