Obscenity on Trial Part II

This is Part II in a series of posts covering One, Inc. v. Olesen, which dealt with obscenity laws.

Click for Part I, Part III, Part IV, Part V, Part VI


The basis of the dispute between One, Inc. and the Postmaster of Los Angeles through the interpretation of 18 U.S.C § 1461 which states:

Mailing obscene or crime-inciting matter 

Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and[...]

[...]Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose...  

[...]Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

.Whoever knowingly uses the mails for the mailing,[...]shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

Q: So why is the mailman going through my mail? A: To see if I have written any hyper-gay erotica to my lovers of all the times I have been fisted... I mean obviously that's the case.

In applying the operative statute to the materials presented in the 1954 October issue of One Magazine, it is of little surprise that in 1954 a seemingly innocuous, yet pro-homophile magazine would be considered lewd. 

After all, it wasn't until 1967 that the Supreme Court overturned anti-miscegenation laws with Loving. Seriously, fuck the 1950s (although it wasn't until 1994 that a majority of Americans supported interracial marriage.)

One thing disappointing with One Magazine having been deemed obscene is that the obscenity label was applied without any overt references to sex. Simply being gay is the same as having gay sex. In other words the penis and the anus become metonymic concepts for gay men. It is literally dehumanizing for the law to function in this fashion.

Perhaps the most bizarre portion of this article is that the statutes I cited is the current version. There have been so many cases between Roth v. U.S. and now that the obscenity laws hardly exist. But they exist.

Obviously, as is the case with every legal scenario, how the terms of the statute are define determines the implementation of the law.

Words like obscene, lewd, lascivious, indecent, filthy and vile need to be defined in order to give the statute breadth.

In the next part, I will be diving into the court decisions to find how those words are defined by the courts (Hint: the answer is largely unsatisfactory to free speech advocates.)

Liam '14

Part I, Part III, Part IV, Part V, Part VI