Manual Enterprises v. Day

Jump to content

From Wikipedia, the free encyclopedia

(Redirected from Manual Enterprises v. Day )

1962 United States Supreme Court case

English Wikisource has original text related to this article:

**MANual Enterprises, Inc. v. Day **

MANual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), is a decision by the Supreme Court of the United States in which the Court held that magazines consisting largely of photographs of nude or near-nude male models are not considered "obscene " within the meaning of 18 U.S.C.  § 1461 , which prohibits the mailing of obscene material. It was the first case in which the Court engaged in plenary review of a Post Office Department order holding obscene matter "nonmailable".

The case is notable for its ruling that photographs of nude men are not obscene, an implication which opened the U.S. mail to nude male pornographic magazines , especially those catering to gay men.

Background

[(https://en.wikipedia.org/w/index.php?title=Manual_Enterprises,_Inc._v._Day&action=edit&section=1 "Edit section: Background")
]

H. Lynn Womack of Washington, D.C., was the publisher of several major physique magazines beginning in the late 1950s. Physique magazines, a genre which existed largely from the early 1950s until the mid 1960s, featured photos of nude or partially nude young men. They operated under the alibi of being for exercise enthusiasts or art students, but it was generally well understood that they were actually produced for and mostly read by gay men. Physique publishers and photographers frequently faced legal troubles, particularly from postal inspectors, who vigorously enforced the Comstock laws ' prohibitions against transmitting obscene materials through the mail. Womack's case was the first involving the physique trade (or any sort of gay content) to reach the Supreme Court.

On March 25, 1960, the postmaster in Alexandria, Virginia , seized six parcels containing 405 copies of three physique magazines published by Womack: MANual, Trim, and _Grecian Guild Pictorial _. After an evidentiary hearing, the Judicial Officer of the Post Office Department found that the magazines were aimed at and primarily read by homosexual men, and that they would appeal to their "prurient interest" (but would not appeal to "sexually normal individuals"). These facts were largely accepted by both parties. The Judicial Officer concluded the magazines were obscene and therefore "nonmailable."

Womack sued in federal district court for injunctive relief. However, the government moved for summary judgment. The district court granted the motion and sustained the administrative ruling.

At each step, the magazines were found to be nonmailable for two reasons: that they contained obscene content, and that they included advertisements that enabled customers to procure obscene materials. While Womack's magazines did not include frontal nudity, a postal inspector testified that by sending away to a photography studio advertised in the pages of one of the magazines, he received photographs that exposed the "pubic area" of nude men. Investigators also found photographs of nude men "engaged in homosexual activities" at such studios.

Womack appealed to United States Court of Appeals for the District of Columbia Circuit . On February 13, 1961, the court of appeals affirmed the district court's ruling.

Womack appealed to the U.S. Supreme Court, which granted certiorari on October 9, 1961.

Decision

[(https://en.wikipedia.org/w/index.php?title=Manual_Enterprises,_Inc._v._Day&action=edit&section=2 "Edit section: Decision")
]

The MANual Enterprises Court was significantly divided. Since the 1957 decision in _Roth v. United States _, 354 U.S. 476 (1957), the Court had struggled to define and refine its approach to obscenity. The widely divergent opinions in MANual Enterprises may reflect those divisions.

The majority opinion was written by Justice John Marshall Harlan II , and joined by Justice Potter Stewart . Justice Hugo Black , who took an absolutist approach to First Amendment jurisprudence , concurred in the result but did not join the opinion. Justice Black did not issue an opinion of his own.

Justice William Brennan , joined by Chief Justice Earl Warren and Justice William O. Douglas , concurred but would have decided the case on much narrower technical rather than First Amendment grounds.

Only Justice Tom C. Clark dissented, stating "Since in my view the Postmaster General is required by § 1461 to reject nonmailable matter, I would affirm the judgment on the sole ground that the magazines contain information as to where obscene material can be obtained and thus are nonmailable."

Majority opinion

[(https://en.wikipedia.org/w/index.php?title=Manual_Enterprises,_Inc._v._Day&action=edit&section=3 "Edit section: Majority opinion")
]

Writing for the majority, Justice Harlan crafted a revision of the Court's view of what constituted obscenity. Both lower courts had argued that the intended audience of the magazines (homosexuals) rendered the material obscene.

Harlan focused on whether the materials were "so offensive on their face as to affront current community standards of decency — a quality that we shall hereafter refer to as 'patent offensiveness' or 'indecency.' " If the materials lacked that quality, Harlan reasoned that the Court need not consider the question of "audience."

Reaching back to the Hicklin test , Harlan argued that for materials to be obscene requires two distinct elements: patent offensiveness and an appeal to prurient interest.

Therefore, Harlan concluded, "The Court of Appeals was mistaken in considering that Roth made 'prurient interest' appeal the sole test of obscenity."

Harlan then approached the Roth standard which required a determination of the relevant "community." Harlan concluded that since the law in question dealt with the national mail, the relevant community was national.

But Harlan struggled to define "prurient appeal." In the end, Harlan merely asserted that the materials were constitutionally protected. "[We] need go no further in the present case than to hold that the magazines in question, taken as a whole, cannot, under any permissible constitutional standard, be deemed to be beyond the pale of contemporary notions of rudimentary decency." In part, Harlan reached this conclusion because the majority believed that the government had overemphasized parts of the materials without taking them as a whole (a significant part of the Roth test).

But more importantly, the majority found that portrayal of the male nude (and, implicitly, portrayal of the homosexual male nude) "cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates."

Anticipating a series of cases yet to come, Harlan addressed whether the materials had been rendered obscene by the way in which they were advertised. Section 1461 said that advertising could render materials obscene, and Chief Justice Earl Warren (concurring in Roth) had agreed on constitutional grounds. But Harlan, writing for the majority, concluded that the government had not argued that the advertising made the materials obscene. Section 1461, Harlan noted, did not require _scienter _, and to impose the requirement that publisher investigate every advertiser in their pages would impose an unconstitutional chilling effect on free speech.

Consequently, the majority reversed.

Concurrence

[(https://en.wikipedia.org/w/index.php?title=Manual_Enterprises,_Inc._v._Day&action=edit&section=4 "Edit section: Concurrence")
]

Justice Brennan concurred

…