MANual Enterprises v. Day
Encyclopedia
MANual Enterprises v. Day, 370 U.S. 478
(1962) is a decision by the United States Supreme Court which held that magazines consisting largely of photographs of nude or near-nude male models are not obscene
within the meaning of . 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 magazine
s, especially those catering to gay
men.
of Washington, D.C.
, published three beefcake magazines
, MANual, Trim and Grecian Guild Pictorial. Although the magazines were aimed at gay men, the content did not explicitly mention homosexuality
. Beginning in 1959, Womack began to publish softcore
photographs showing fully nude men.
On March 25, 1960, six parcels containing 405 copies of the three magazines were seized by the postmaster in Alexandria, Virginia
. After an evidentiary hearing, the Judicial Officer of the Post Office Department found that the magazines (1) were composed primarily, if not exclusively, for homosexuals and had no literary, scientific or other merit; (2) would appeal to the "prurient interest" of "sexual deviates" but would not have any interest for sexually normal individuals; (3) are read almost entirely by homosexuals, and possibly a few adolescent males; and (4) would not ordinarily be bought by normal male adults. 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 (110 U.S. App. D.C. 78
).
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 (289 F.2d 455
).
Womack appealed to the U.S. Supreme Court, which granted certiorari
(368 U.S. 809
) on October 9, 1961.
, 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.
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." Harland 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 case 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
(knowledge of wrongdoing), and to impose the requirement that publisher investigate every advertiser in their pages would impose an unconstitutional chilling effect on free speech.
Subsequently, the majority reversed.
For Brennan, the Post Office Department's entire process raised significant constitutional questions.
For Brennan, this issue surpassed "even the important issue of the standards for judging this material's" obscenity in importance.
Brennan, however, found no provision in Section 1461 supporting the establishment of an administrative procedure to censor the mails. Brennan provided a lengthy analysis (including extensive quotations) of the section's legislative history. Based on that evidence, Brennan concluded that there were only two possible constructions of Section 1461: That postmasters could remove matter which they thought, on the face of it, to be obscene, or that postmasters could remove matter only to turn it over to the appropriate authorities. The first construction was constitutionally infirm, Brennan argued. The Post Office Department had not acted in accordance with the second construction. Thus, either way, the Post Office Department's seizure of the magazines, its subsequent investigation of the advertisers, its discover of allegedly obscene materials at each advertiser's place of business, and additional outcomes of its investigation did not withstand constitutional or statutory scrutiny.
Administrative censorship of the mail, Brennan concluded, was not in itself unconstitutional. A variety of means were at the government's disposal, including recently-enacted provisions to return the items, deny the use of postal banks, refund of monies collected, and more. None of these remedies seize the materials or make a judgment about their obscene nature. "But the suggestion that Congress may constitutionally authorize any process other than a fully judicial one immediately raises the gravest doubts."
Clark rejected Brennan's analysis because the government's authority under Section 1461 was not presented or argued by either the plaintiff or respondent, and thus was not before the Court. Nevertheless, Clark addressed the concurring opinion's analysis. Clark, however, concluded that the legislative history of Section 1461 clearly permitted postmasters to refuse mailed materials which were known to be obscene. Since subsequent investigation by the Post Office Department had confirmed that the advertisers in the magazine sold obscene materials, the materials published by Womack could be seized. For the dissent, the fact that postal regulations had been in existence since 1902 without challenge weighed heavily in favor of this interpretation of the legislative history.
Regarding the majority opinion, Clark concluded that Congress had addressed the issue of scienter
in the statute. In Section 1461, Congress made it clear that the act of mailing materials implied scienter: "Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both . . . ."
For these reasons, Clark would have affirmed the judgment of the district court.
suffered a stroke several months after hearing oral argument in the case, and did not participate in its decision. Frankfurter resigned from the Court on August 28, 1962.
Justice Charles Evans Whittaker
had suffered a nervous breakdown prior to oral argument in the case. At the time of the decision, Justice Whittaker was no longer on the Court. His successor, Justice Byron White
, was confirmed to the Court after oral argument in the case occurred, and did not participate in either its consideration or decision.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1962) is a decision by the United States Supreme Court which held that magazines consisting largely of photographs of nude or near-nude male models are not obscene
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
within the meaning of . It was the first case in which the Court engaged in plenary review of a Post Office Department
United States Post Office Department
The Post Office Department was the name of the United States Postal Service when it was a Cabinet department. It was headed by the Postmaster General....
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 magazine
Pornographic magazine
Pornographic magazines, sometimes known as adult magazines, sex magazines or top-shelf magazines are pornographic magazines that contain content of a sexual nature. Adult magazines are mainly aimed towards men, and in some parts of the world, many men's first sight of a naked woman has been in an...
s, especially those catering to gay
Gay
Gay is a word that refers to a homosexual person, especially a homosexual male. For homosexual women the specific term is "lesbian"....
men.
Background
In the 1950s, Herman Lynn WomackH. Lynn Womack
Dr. H. Lynn Womack was the founder of Guild Press , a publishing house that catered almost exclusively to a gay male audience and played a major role in expanding the legal protections for gay publications against obscenity laws in the United States.- Biography :Born in Hazelhurst, Mississippi...
of Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
, published three beefcake magazines
Beefcake magazines
Beefcake magazines were magazines published in North America in the 1930s to 1960s that featured photographs of attractive, muscular young men in athletic poses...
, MANual, Trim and Grecian Guild Pictorial. Although the magazines were aimed at gay men, the content did not explicitly mention homosexuality
Homosexuality
Homosexuality is romantic or sexual attraction or behavior between members of the same sex or gender. As a sexual orientation, homosexuality refers to "an enduring pattern of or disposition to experience sexual, affectional, or romantic attractions" primarily or exclusively to people of the same...
. Beginning in 1959, Womack began to publish softcore
Softcore
Softcore pornography is a form of filmic or photographic pornography or erotica that is less sexually explicit than hardcore pornography. It is intended to tickle and arouse men and women. Softcore pornography depicts nude and semi-nude performers engaging in casual social nudity or non-graphic...
photographs showing fully nude men.
On March 25, 1960, six parcels containing 405 copies of the three magazines were seized by the postmaster in Alexandria, Virginia
Alexandria, Virginia
Alexandria is an independent city in the Commonwealth of Virginia. As of 2009, the city had a total population of 139,966. Located along the Western bank of the Potomac River, Alexandria is approximately six miles south of downtown Washington, D.C.Like the rest of northern Virginia, as well as...
. After an evidentiary hearing, the Judicial Officer of the Post Office Department found that the magazines (1) were composed primarily, if not exclusively, for homosexuals and had no literary, scientific or other merit; (2) would appeal to the "prurient interest" of "sexual deviates" but would not have any interest for sexually normal individuals; (3) are read almost entirely by homosexuals, and possibly a few adolescent males; and (4) would not ordinarily be bought by normal male adults. 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
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
granted the motion and sustained the administrative ruling (110 U.S. App. D.C. 78
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
).
Womack appealed to United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
. On February 13, 1961, the court of appeals affirmed the district court's ruling (289 F.2d 455
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
).
Womack appealed to the U.S. Supreme Court, which granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
(368 U.S. 809
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
) on October 9, 1961.
Decision
The MANual Enterprises Court was significantly divided. Since the 1957 decision in Roth v. United StatesRoth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
, 354 U.S. 476
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(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
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
, and joined by Justice Potter Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
. Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
, who took an absolutist
Strict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
approach to First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, concurred in the result but did not join the opinion. Justice Black did not issue an opinion of his own.
Justice William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
, joined by Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
and Justice William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
, concurred but would have decided the case on much narrower technical rather than First Amendment grounds.
Only Justice Tom C. Clark
Tom C. Clark
Thomas Campbell Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States .- Early life and career :...
dissented.
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
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...
, 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." Harland 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. "
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 case 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
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
(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
Scienter
Scienter is a legal term that refers to intent or knowledge of wrongdoing. This means that an offending party has knowledge of the "wrongness" of an act or event prior to committing it. For example, if a man sells a car to his friend with brakes that do not work, and he does not know about the...
(knowledge of wrongdoing), and to impose the requirement that publisher investigate every advertiser in their pages would impose an unconstitutional chilling effect on free speech.
Subsequently, the majority reversed.
Concurrence
Justice Brennan concurred in the result. Brennan's concurrence turned on narrow technical grounds, however. Brennan noted that the Post Office Department General Counsel had initially refused to even hold a formal hearing, wishing to seize the materials without giving Womack a chance for rebuttal. The Post Office Department reversed itself a short time later, and a formal hearing was held.For Brennan, the Post Office Department's entire process raised significant constitutional questions.
- We risk erosion of First Amendment liberties unless we train our vigilance upon the methods whereby obscenity is condemned no less than upon the standards whereby it is judged. Questions of procedural safeguards loom large in the wake of an order such as the one before us. Among them are: (a) whether Congress can close the mails to obscenity by any means other than prosecution of its sender; (b) whether Congress, if it can authorize exclusion of mail, can provide that obscenity be determined in the first instance in any forum except a court, and (c) whether, even if Congress could so authorize administrative censorship, it has in fact conferred upon postal authorities any power to exclude matter from the mails upon their determination of its obscene character.
For Brennan, this issue surpassed "even the important issue of the standards for judging this material's" obscenity in importance.
Brennan, however, found no provision in Section 1461 supporting the establishment of an administrative procedure to censor the mails. Brennan provided a lengthy analysis (including extensive quotations) of the section's legislative history. Based on that evidence, Brennan concluded that there were only two possible constructions of Section 1461: That postmasters could remove matter which they thought, on the face of it, to be obscene, or that postmasters could remove matter only to turn it over to the appropriate authorities. The first construction was constitutionally infirm, Brennan argued. The Post Office Department had not acted in accordance with the second construction. Thus, either way, the Post Office Department's seizure of the magazines, its subsequent investigation of the advertisers, its discover of allegedly obscene materials at each advertiser's place of business, and additional outcomes of its investigation did not withstand constitutional or statutory scrutiny.
Administrative censorship of the mail, Brennan concluded, was not in itself unconstitutional. A variety of means were at the government's disposal, including recently-enacted provisions to return the items, deny the use of postal banks, refund of monies collected, and more. None of these remedies seize the materials or make a judgment about their obscene nature. "But the suggestion that Congress may constitutionally authorize any process other than a fully judicial one immediately raises the gravest doubts."
Dissent
Justice Clark dissented. Clark would have affirmed the judgment of the district court on the grounds that the magazines contained information about where obscene material could be obtained. Therefore, they were nonmailable and constitutionally seized.Clark rejected Brennan's analysis because the government's authority under Section 1461 was not presented or argued by either the plaintiff or respondent, and thus was not before the Court. Nevertheless, Clark addressed the concurring opinion's analysis. Clark, however, concluded that the legislative history of Section 1461 clearly permitted postmasters to refuse mailed materials which were known to be obscene. Since subsequent investigation by the Post Office Department had confirmed that the advertisers in the magazine sold obscene materials, the materials published by Womack could be seized. For the dissent, the fact that postal regulations had been in existence since 1902 without challenge weighed heavily in favor of this interpretation of the legislative history.
Regarding the majority opinion, Clark concluded that Congress had addressed the issue of scienter
Scienter
Scienter is a legal term that refers to intent or knowledge of wrongdoing. This means that an offending party has knowledge of the "wrongness" of an act or event prior to committing it. For example, if a man sells a car to his friend with brakes that do not work, and he does not know about the...
in the statute. In Section 1461, Congress made it clear that the act of mailing materials implied scienter: "Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both . . . ."
For these reasons, Clark would have affirmed the judgment of the district court.
Note about Court composition
Justice Felix FrankfurterFelix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
suffered a stroke several months after hearing oral argument in the case, and did not participate in its decision. Frankfurter resigned from the Court on August 28, 1962.
Justice Charles Evans Whittaker
Charles Evans Whittaker
Charles Evans Whittaker was an Associate Justice of the United States Supreme Court from 1957 to 1962.-Early years:...
had suffered a nervous breakdown prior to oral argument in the case. At the time of the decision, Justice Whittaker was no longer on the Court. His successor, Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
, was confirmed to the Court after oral argument in the case occurred, and did not participate in either its consideration or decision.