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

• Author: Ball, Carlos A.
• Position: II. The First Two Times That Sexual Orientation Issues Came Before the Supreme Court B. MANual Enterprises, Inc. v. Day through Conclusion, with footnotes, p. 279-314

2. Manual Enterprises, Inc. v. Day

   1. The Factual Background.

      Physique magazines, featuring photographs of muscular men and emphasizing the importance of physical fitness, first appeared in this country at the end of the nineteenth century. (261) The historian David Johnson notes that the "magazines were an outgrowth of the tum-of-the-century physical culture movement, which many historians have seen as the result of a crisis in masculinity in a rapidly urbanizing and industrializing America." (262) By the 1930s, a growing number of gay men were buying and sharing the magazines, a phenomenon that made their publishers uneasy. (263) When those publishers a few years later refused to carry advertisements for the selling of "photographs of barely clad men, often in erotic but ambiguous scenarios such as wrestling matches," gay entrepreneurs began publishing their own physique magazines specifically aimed at gay audiences. (264)

      One of those entrepreneurs was Henry Lynn Womack. Before going into the publishing business, Womack, who had a Ph.D. in philosophy, taught at George Washington University and at Mary Washington College. (265) In 1952, he left academia after he bought two printing companies in Washington, D.C. (266) At around this time, Womack, who had been married twice and had a daughter, acknowledged to himself that he was gay. (267)

      Womack was one of the first entrepreneurs in the country to recognize the money- making potential of selling gay erotica. (268) Under the corporate heading of Manual Enterprises, Inc., Womack quickly built a large male erotica business by publishing magazines with titles such as MANual and Manorama, (269) Although the publications billed themselves as traditional physique magazines, it was readily apparent that they aimed for readers who appreciated male physical beauty rather than physical fitness as such. (270) The magazines contained little text other than the models' hobbies and the photographers' names. (271) In addition, the magazines included ads placed by photographers of male erotica informing readers how to purchase additional images from them. (272)

      Womack also operated a separate business, known as Continental Artists, which sold pictures of naked men directly to consumers. (273) As described by a federal district court, "[t]he subjects of the photographs were represented in lascivious and suggestive poses, with the camera obviously being focused so as to emphasize the private organs." (274) In early 1960, Womack was arrested and charged under the federal obscenity statute for mailing obscene photographs. A few months later, he was convicted on twenty-nine counts and was sentenced to serve concurrent sentences of between one and three years in prison. (275)

      Womack was not the only publisher of gay physique magazines who was the victim of government prosecutions. As Johnson notes, "[a]lmost all of the publishers and photographers connected with physique magazines were arrested by the police and tried in court at some point in their careers." (276) It was also not uncommon for purchasers of the magazines to be arrested for possessing obscene materials. (277)

      In Womack's case, the government was not satisfied with the criminal convictions. Four days after he was found guilty, the Post Office refused to mail 405 copies of Womack's magazines (255 copies of MANual, 75 of Trim, and 75 of Grecian Guild Pictorial), claiming they were non-mailable under the federal obscenity statute. (278) A few weeks later, a hearing was held before the Post Office's judicial officer to determine whether the magazine issues were mailable.

      Although Womack claimed that his publications were aimed at readers interested in bodybuilding, the government set out to establish that their purpose was instead to sexually arouse gay men. To prove this point, the government called on a psychiatrist with expertise in treating "homosexual patients." (279) The doctor testified at some length about how the magazines' photographs, many of which showed models wearing G-strings, loincloths, and V-gowns, sexually aroused gay men. (280) The witness expressed concern that not only were the magazines of interest to men who "claimed they are homosexuals," but also to 17 and 18-year olds "who we might classify as borderline sexual cases where they haven't had intercourse with women," and who "have always tried to fight back homosexual tendencies." (281) This group of young men was particularly vulnerable to the lust-inducing effects of the photographs because the images "could very well push them into homosexuality." (282) The doctor then analogized between the psychological harm suffered by vulnerable young men who viewed Womack's magazines and the damage caused to young girls when men exposed themselves to them. (283) In both instances, the result was a reduced interest in marriage and "normal" relationships. (284)

      The government's expert also opined, after noting that many of the magazines' photographs had themes associated with warriors and gladiators, that homosexual men frequently attempted to compensate for their sense of weakness and inferiority.285 These men, the expert explained,

      are afraid that they cannot satisfy a woman[, which] makes them turn to their own sex and compensating for their inferiority they have to have fantasies with men of power, men with a whip, men with a sword, gladiators and they identify themselves with these nude pictures and this gives them sexual excitement. And the harm does [sic] is that they remain at this level. They remain as homosexuals, they don't have a Chinaman's [sic] chance of becoming cured as long as they are constantly stimulated by this type of picture. (286) The government called a second expert, a clinical psychologist, who testified that the magazines had no literary, scientific, or educational value and that they would lead male adolescents to "react primarily with instinctual arousal, sexual arousal which would take the form of fantasies, immoral and sexual thoughts," masturbation, and sexual behavior with other males. (287) For his part, attorney Stanley Dietz--the lawyer who had represented Womack in the criminal case and was now representing his company in the matter of the magazines' mailability--called on a psychiatrist who testified that photographs were irrelevant in "the development of homosexuality." (288) The psychiatrist then proceeded to explain, in a way that exemplified the deep misunderstandings of sexual orientation held by even those who seemed sympathetic to lesbians and gay men, that "[w]hat creates the homosexual is an abnormal relationship of the child to the parent and unbalance there in this relationship and emotional imbalance which has nothing to do with pictures." (289) The psychiatrist also opined "that the average normal person would not be interested in this type of publication." (290) A second witness called by Dietz insisted that the magazines highlighted muscular and well-developed physiques from a bodybuilding perspective and were not sexual in nature. (291)

      The judicial officer ruled that the publications were not mailable because they were obscene. He rejected Dietz's legal contention that the correct standard was whether the photographs appealed to the prurient interests of the average person in society. (292) Instead, the officer concluded that the relevant question was whether they appealed to the prurient interests of the average reader of the magazines, which in this case was "the male homosexual." (293) The officer added that the magazines created the additional danger "that the average male adolescent who might be attracted to each of the issues" would be lured "into the abnormal paths of the homosexual." (294)

   2. The Lawsuit.

      After the judicial officer issued his ruling, Dietz filed a lawsuit in federal court asking for an injunction ordering the Post Office to distribute the magazines. (295) The district court denied the injunction, and issued a summary judgment for the government. (296) That ruling was affirmed by the U.S. Court of Appeals for the District of Columbia Circuit. (297) The appellate court pointed to the fact that expert testimony during the hearing supported the conclusion that male "homosexuals" would be sexually aroused by the photographs. (298) In addition, the court was of the view that the magazines were not intended for a body-building audience given "the obvious lack of relationship of the 'posing straps,' heavy boots, helmets, swords, and chains to any interest in body-building." (299) Finally, the court held that since the average reader in the community would not be interested in these magazines, "[t]he proper test ... is the reaction of the average member of the class for which the magazines were intended, homosexuals. The testimony of record was clearly to the effect that these magazines would arouse prurient interest in the average homosexual." (300)

      The Supreme Court granted certiorari, but unlike in One, it asked that briefs be submitted and scheduled the case for oral argument. Attorney Dietz's Supreme Court brief on behalf of Manual Enterprises is historically important because it constituted the first time that an advocate provided the Court with extensive information about matters of sexuality in a case that the Court agreed to hear. (301) Dietz took issue with the notion that the magazines appealed to the prurient interests of "homosexuals" because it was inaccurate to use that term, or the term "heterosexuals," to classify individuals. (302) The lawyer explained that while there were same-sex and different-sex sexual activities, those activities did not translate into distinct classes of individuals. (303) Dietz provided the Court with extensive excerpts from Alfred Kinsey's Sexual Behavior in the Human Male and Sexual Behavior in the Human Female to support the proposition that "'homosexual' is not a characteristic of a small, isolated, group of people, but is a...