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

Author:Ball, Carlos A.
Position:Introduction through II. The First Two Times That Sexual Orientation Issues Came Before the Supreme Court A. One, Inc. v. Olesen, p. 229-278

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.


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.

  1. 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.

    1. 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...

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