Moving from the 9th Circuit decision, it's funny how a longer decision such as the 9th Circuit's can be reversed by so few words. One, Inc. v. Olesen, 355 U.S. 371 (1958) states:
Eric Julber for petitioner.
Solicitor General Rankin, Acting Assistant Attorney General Leonard and Samuel D. Slade for respondent.
The petition for writ of certiorari is granted and the judgment of the United States Court of Appeals for the Ninth Circuit is reversed. Roth v. United States, 354 U.S. 476.
And that's it. The Supreme Court here is referring to the Roth test which states:
"whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."In other words, does the average person see it as directly sexual. And in One's case, nope.
While Roth does go mostly uncommented, the 9th Circuit didn't entirely ignore Roth:
The poem 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. Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765; United States v. Limehouse, 285 U.S. 424, 426, 52 S.Ct. 412, 76 L.Ed. 843; Tyomies Publishing Co. v. United States, 6 Cir., 1914, 211 F. 385, 390; United States v. Roth, 2 Cir., 237 F.2d 796, 799, 800.So it would appear the consequence of One, Inc. v. Olesen is that depictions of homosexuality is not per se obscene. That simple though is so short, but it was the first pro-gay ruling in American History. Without this ruling there may not have been a gay rights movement. No communication, no organization.
Stay tune for the conclusion of this series which examines the Miller test, which comes out of Miller v. California. The Miller test is the current obscenity test.
Part I, Part II, Part III, Part IV, Part VI
To fulfill my obscenity and obligatory masturbation joke quota, if you disagree with any position expressed here, you can go finger yourself, super-deep like a sock puppet.