Update: Kitchen Upheld and Indiana WIns Big

The 10th Circuit Court in a 2-1 decision, issued a broad ruling upholding the District court ruling. A stay was also issued until Certiorari . As a result marriage equality has spread throughout the entire 10th Circuit, but due to the stay, marriages will not be granted, unless the state officials in the other marriage lawsuits dismiss their cases.

Also Indiana surprised everyone when a Federal Judge struck down the state marriage ban. And immediately people were gay married. Like in less than an hour. I mean crap, I couldn't find my birth certificate in less than an hour. So good for them.  Their marriage may have set some new ground speed record or something.

Anyway, to celibate today's wins I have update the map:

So Mazel Tov to the handsome grooms of Indiana.


Liam '14

Obscenity on Trial Part V

This is Part V in a series on One, Inc. v. Olesen, which dealt with obscenity laws.

Click here for Part I, Part II, Part III, Part IV, Part VI

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.

PER CURIAM.  

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.  


Liam '14

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.

Sunday Morning Slander

I have to admit I was kind of struggling this week looking for material for this segment, which for sanity's sake is probably a good thing. But then this morning I saw a video, and I knew then and there I had found the one, my precious douchebag. *Sniffle*

On Thursday around noonish, a bunch of goons from NOM invaded the Capitol steps to tell 'em what they really think.

And then there was Huckleberry Hound Mike Huckabee.

Source. Go visit right wing watch.

I frequently prefer to read an article rather than listen to it, so here is a transcript of what he said:

The President and the Congress are not required to defy natural law.[1] They're not required to redefine marriage.[2] They are required to follow the will of the people, the Constitution, and the law that has given us the greatest nation on earth, a nation that we will lose, if we turn our backs on our origins.[3] There is no doubt in my mind that this country would not exist had it not been for the providential hand of God. I'm also convinced if we reject his hand of blessing we will feel his hand of judgment.[4]

[Break]

And it's time for us as an American people to say to our own government “Enough of you restricting us. Enough of you redefining our institutions.[5] We are not under an obligation to defy God in order to obey you. We are under an obligation to obey God and the law and if necessary to defy an institution that is out of control.”[6]

Ugh, I'm so sick of word salad. That's what I had for dinner last night. Perhaps it's because the video was an excerpt from a longer speech, but little sense making it was.

I will try to break it down into bit size pieces of WTF:

[1] I do not understand what natural law has to do with any of this quite frankly. It's literal a head scratcher due to the way it is worded. Is he trying to say "the President and the Congress are unnecessarily defying natural law"?

[2] Congress and the President are not redefining marriage. To play along with your venacular it's dem court thingys in dem buildins wit dem men folks who haz that there hammer do-hickey dats redefining marriage. The current gay rights movement is seeing it's largest successes through Article III jurisdictions, rather than through the legislative process or administrative law. By the way ain't ya a former governor who really really should know better? Numb-nuts.

[3] "They are required to follow... the Constitution." The judicial system is following the constitution in extending equal protection to all citizens by extending marriage privileges. Also a majority of people are in favor of marriage equality. You were against the tyranny of the minority when it was basically only gays in favor of gay marriage, so let me guess you now will be against the tyranny of the majority/minority. Dumb-ass.

[4] "I'm also convinced if we reject his hand of blessing we will feel his hand of judgment." Congrats Mike you are now as relevant as William Jennings Bryan. Jack-ass.

[5] "And it's time for us as an American people to say to our own government 'Enough of you restricting us.'" Hah hah hahahahahaha aaah haha. Do you hear yourself at all? Dumb-Fuck. Perhaps it's a wrong language thingy. Verstehen Sie, warum das heuchlerisch ist? Homo-Ehe beschränkt nicht die Zivilrechte oder die Freiheit der Mehrheit. Homo-Ehe gibt die Homosexuallen Zivilrechte. Arschloch!

Please don't make me whip out the french.

[6] Huh? I honestly am just perplexed by the rest of the statement. "We are under an obligation to obey God and the law and if necessary to defy an institution that is out of control." So does that mean he is advocating Christianists to not get married? Or defy the government, in which their participation in gay marriages isn't required?  Dick-for-brains.

UPDATE:

I found a longer video:

Liam '14

Obscenity on Trial Part IV

This is Part IV in a series on One, Inc. v. Olesen, which dealt with obscenity laws.

Click here for Part I, Part II, Part III, Part V

In this section I will review the 9th Circuit decision  One, Inc. v. Olesen, 241 F.2d 772 (9th Cir. 1957).

The trial court in Paragraph 6 of its Findings of Fact, referred to by plaintiff in its specifications of error, made the following findings: 

1. The story "Sappho Remembered" appearing on pages 12 through 15, is obscene because lustfully stimulating to the homosexual reader. 

Yes, who couldn't help but notice the cum stains on the decision from the judge ferociously fapping to Sappho Remembered.

2. The poem "Lord Samuel and Lord Montagu", appearing on pages 18 and 19, is obscene because of the filthy language used in it. 

Actually, no, that's not what the judge found. The judge found the poem as a whole to be "filthy and obscene."  He did not mention the language, in which it was not at all filthy.

3. The advertisement for the Swiss publication "The Circle" appearing at the top of page 29, is non-mailable matter because it gives information for the obtaining of obscene matter.
Briefly stated, the specifications of error made by plaintiff, raise but one question, namely: Whether or not the October 1954 issue of "One" is non-mailable matter under the provisions of Sec. 1461, Title 18 U.S.C.A.***

As we view this case we are only concerned with the proper application of a postal regulation, a prosaic and every day matter of the administration of the post office department. Section 1461 amounts to no more than that. Approaching the problem in this workaday manner we find that "One" has already suffered two reverses in this connection, the first at the hands of the Postmaster, the other by reason of the judgment of the District Court sustaining the Postmaster's ruling.

So if the lower court agrees with the postmaster, it's game-over? So two people found it filthy, so it is filthy done?

At this point it can be observed that there is no dispute on factual matters. 

The District Court found that the ruling of the Postmaster was reasonable and supported by the proof — the contents of the magazine.

 Ummm really? The District Court didn't once quote the magazine.

Unless we find that the initial order of the Postmaster barring the magazine from the mails was arbitrary, or capricious, or an abuse of discretion, or that there are no reasonable grounds in the record to support the District Court in upholding the Postmaster's order, we are required to sustain. 

 Are there any guidelines for what constitutes obscenity? If it is "I know it when I see it," then that by definition is arbitrary.

Our problem here is one of the administration of the post office, and that in turn depends on whether or not the matter sought to be mailed, in this instance the October 1954 issue of the magazine "One", is obscene, lewd, lascivious, filthy or indecent. These words can only be defined by some discussion of the moral sense of the public, and it is only to such extent that we are concerned with public morals. In approaching the moral side of the issue here presented we are not unmindful of the fact that morals are not static like the everlasting hills, but are like the vagrant breezes to which the mariner must ever trim his sails.

And this is in no way an arbitrary law? How is every piece of mail going to be judged?

***The words of the statute, "obscene", "lewd", lascivious", "filthy" and "indecent", are words of common usage and meaning. In considering the scope and meaning of the words the courts have, through the course of the years, given to such words legal definitions and distinctions, following very closely, if not precisely, the definitions and distinctions found in the recognized standard dictionaries. 

So these words are of common usage and shouldn't be defined. Thus it is up to the mailman to decide what is fit to deliver? How is that not arbitrary?

Mr. Justice Harlan in delivering the opinion of the court in Rosen v. United States, 161 U.S. 29, 43, 16 S.Ct. 434, 438, 40 L.Ed. 606, said, "Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd, and lascivious." In that case the court approved the following test of obscenity given in an instruction of the trial court: "The test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influence and into whose hands a publication of this sort may fall." "Would it * * * suggest or convey lewd thoughts and lascivious thoughts to the young and inexperienced?" 

What utter bullshit. So a subscription based magazine which is delivered exclusively to gays would corrupt, I don't fucking know, let's say 2 year old Mormons? So fucking dumb. Stupid. Stupid. Stupid. I mean the first quote is good, "The test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influence and into whose hands a publication of this sort may fall." A magazine geared at horny 40 year old men, such as Hustler, is appropriate for horny 40 year old men. And mailing poorly xeroxed pictures of your balls to random strangers is not appropriate. The postal service could set non-arbitrary standards around that and remove the arbitrary nature which would actually protect people's "sensibilities" without overly intruding in on free speech.

In Dunlop v. United States, 165 U.S. 486, 500, 501, 17 S.Ct. 375, 380, 41 L.Ed. 799, the Supreme Court approved the following instruction: 

"Now what are obscene, lascivious, lewd, or indecent publications is largely a question of your own conscience and your own opinion; but it must come — before it can be said of such literature or publication — it must come up to this point: that it must be calculated with the ordinary reader to deprave him, deprave his morals, or lead to impure purposes. * * * It is your duty to ascertain, in the first place if they are calculated to deprave the morals; if they are calculated to lower that standard which we regard as essential to civilization; if they are calculated to excite those feelings which, in their proper field, are all right, but which, transcending the limits of that proper field, play most of the mischief in the world." 

So if this is your test for obscenity, you are claiming same-sex attraction is per se morally depraved and  is "lower[ing] that standard which we regard as essential to civilization." To which I retort, you can go suck a dick, you worthless, shit-eating bastard.

***The Sixth Circuit in Tyomies Publishing Co. v. United States, 211 F. 385, at page 390, defined the word "filthy" as meaning "`that which is nasty, dirty, vulgar, indecent, offensive to the moral senses, morally depraving and debasing.'" 

So Stars and Stripes, a military newspaper, is in line with morality, yet one that depicts gay people (not gay sex) is filthy. I'm glad to see your morals are in order.

Judge Pope, in Burstein v. United States, 9 Cir., 178 F.2d 665, 666, approved the following instruction defining obscene, lewd, or lascivious: 

"Matter is obscene, lewd, or lascivious, within the meaning of the quoted statute, if it is offensive to the common sense of decency and modesty of the community, and tends to suggest or arouse sexual desires or thoughts in the minds of those who by means thereof may be depraved or corrupted in that regard.

 To break down the Burstein Test:

1. Is it offensive to the common sense of decency and modesty of the community?
2. and does it tend to suggest or arouse sexual desire or thoughts in the minds of those who by means thereof may be depraved or corrupted in that regard?

So unless the judge was fapping away like it was the first time he ever saw the lingerie section of a Sears-Roebuck catalogue, then even by their own prudish test One should have been delivered.

***Plaintiff, as publisher, states on the second page of the magazine that it is published for the purpose of dealing primarily with homosexuality from the scientific, historical and critical point of view — to sponsor educational programs, lectures and concerts for the aid and benefit of social variants and to promote among the general public an interest, knowledge and understanding of the problems of variation. The story "Sappho Remembered", appearing on pages 12 to 15 of the magazine, the poem "Lord Samuel and Lord Montagu" on pages 18 and 19, and the information given on page 29 as to where to obtain "The Circle", a magazine "with beautiful photos", do not comport with the lofty ideals expressed on page 2 by the publishers.

The article "Sappho Remembered" is the story of a lesbian's influence on a young girl only twenty years of age but "actually nearer sixteen in many essential ways of maturity", in her struggle to choose between a life with the lesbian, or a normal married life with her childhood sweetheart. The lesbian's affair with her room-mate while in college, resulting in the lesbian's expulsion from college, is recounted to bring in the jealousy angle. The climax is reached when the young girl gives up her chance for a normal married life to live with the lesbian. This article is nothing more than cheap pornography calculated to promote lesbianism. It falls far short of dealing with homosexuality from the scientific, historical and critical point of view. 

Fap Fap Fap Fap. "Honey we're out of hand lotion again." At least this time it is obvious the Judge has read the magazine; however Sappho Remembered is not cheap pornography. It may not be worthy of the New Yorker literary section, but it still is literature.

Also the argument that "it falls far short of dealing with homosexuality from the scientific, historical and critical point of view" is arbitrary and fucking pointless. I would argue that the story is a "critical point of view" of the heteronormative hegemony that dictates (through this case in fact) a woman's place is to get married to a man. But regardless, a magazine is not obligated to follow their own mission statement.

The poem "Lord Samuel and Lord Montagu" is about the alleged homosexual activities of Lord Montagu and other British Peers and contains a warning to all males to avoid the public toilets while Lord Samuel is "sniffing round the drains" of Piccadilly (London). 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. 

Come on and use your big boy words and point out where and how it is vulgar. Secondly, ummm if you feel disgusted, then isn't it bad at recruiting the gays? Shouldn't that sound off warning bells in your tiny stupid fucking head that something else is happening. Or is it that you are so morally superior to everyone else. Fucking Prick.

An article may be vulgar, offensive and indecent even though not regarded as such by a particular group of individuals constituting a small segment of the population because their own social or moral standards are far below those of the general community.

Hurrah! I would take offense, but since I made it this far I am reveling in his disdain.

Social standards are fixed by and for the great majority and not by or for a hardened or weakened minority. As this Court said in Besig v. United States, 208 F.2d 142, at page 145: 

"It is of course true that the ears of some may be so accustomed to words which are ordinarily regarded as obscene that they take no offense at them, but the law is not tempered to the hardened minority of society. The statute forbidding the importation of obscene books is not designed to fit the normal concept of morality of society's dregs, nor of the different concepts of morality throughout the world, nor for all time past and future, but is designed to fit the normal American concept in the age in which we live. It is no legitimate argument that because there are social groups composed of moral delinquents in this or in other countries, that their language shall be received as legal tender along with the speech of the great masses who trade ideas and information in the honest money of decency." 

Quick get Scalia on the phone. We can out law the gays because of morals, and that's definitely in the constitution.

It is difficult to determine if the article contained on page 29 under the caption "Foreign Books and Magazines That Will Interest You", is an advertisement for the magazine "The Circle" or is merely information given by the publisher of "One" to its readers as to where to obtain other books and magazines that may be of interest. Regardless, the situation is the same, if information is given as to where, or how, or from whom, or by what means, obscene or filthy material may be obtained. Although on its face the information in this article appears harmless, it cannot be said that the purpose is harmless. It is for the information of those who read the magazine and particularly the homosexuals. It conveys information to the homosexual or any other reader as to where to get more of the material contained in "One." 

An examination of "The Circle" clearly reveals that it contains obscene and filthy matter which is offensive to the moral senses, morally depraving and debasing, and that it is designed for persons having lecherous and salacious proclivities. 

Fap Fap Fap "Honey why didn't you get the Jergens lotion that I requested. I'm all chafed now."

The picture and the sketches are obscene and filthy by prevailing standards. The stories "All This and Heaven Too", and "Not Til the End", pages 32-36, are similar to the story "Sappho Remembered", except that they relate to the activities of the homosexuals rather than lesbians. Such stories are obscene, lewd and lascivious. They are offensive to the moral senses, morally depraving and debasing. Such literature cannot be classed as historical, scientific and educational for any class of persons. Cheap pornography is a more appropriate classification.

 So fucking what. Once again a magazine's mission statement is not a legal standard.

And secondly if it's "cheap pornography" where is the fucking fucking, you fucking twat.

Plaintiff contends that the magazine "One" when read as a whole is not obscene or filthy within the meaning of these words. In Besig v. United States, supra, we held that the book as a book must be obscene to justify its libel and destruction, but we also held that neither the number of the "objectionable" passages nor the proportion they bear to the whole book are controlling. The magazine under consideration, by reason of the articles referred to, has a primary purpose of exciting lust, lewd and lascivious thoughts and sensual desires in the minds of the persons reading it. Moreover, such articles are morally depraving and debasing. The articles mentioned are sufficient to label the magazine as a whole, obscene and filthy***

Plaintiff's contention that there has been a denial of due process of law is without merit. Plaintiff commenced this action in the trial court and stipulated that the only issue in the case should be determined by the court on the motions for summary judgment and the affidavits filed by each of the parties. There has been a full and fair trial upon proper notice and the issues presented. It does not appear from the record that plaintiff has been deprived of property or liberty without due process of law.

Based upon our comments and observations heretofore given we hold that the record discloses no prejudicial error and the judgment appealed from is affirmed.

In conclusion, the definition of obscene is if "it suggest[s] or convey lewd thoughts and lascivious thoughts to the young and inexperienced." Regardless of target audience the content should be no more mature than a Highlights Magazine.

Furthermore based on analysis of the magazine One, same sex attraction (not even sexual behavior) was per se obscene. Nothing labeled homosexual or homophile could pass the obscenity test, no matter the content.

Now that's obscene.

The next post will deal with the Supreme Court Decision,  One, Inc. v. Olesen, 355 U.S. 371 (1958). And there will be fewer masturbation jokes this time.

I created this image just for fun. I'll probably use this from now on as a placeholder instead of outright calling a judge a dickhead.

Congrats 9th Circuit. You earned it.

Liam '14

Part I, Part II, Part III, Part V

Obscenity on Trial Part III

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

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

Moving from the statutes into the actual District Court decision, it is important to remember that this is an unpublished decision. More or less, it was never intended to give guidance or to define the terms for the public.

Here is the body of the decision with my own annotations:

The motion of the defendant for summary judgement is granted.  The publication of the plaintiff entitled "One, The Homosexual Magazine" is non-mailable matter within the meaning of 18 U.S.C.A. 1461.  "Sappo Remembered" and other stories are obviously calculated to stimulate the lust of the homosexual reader.  

How much do you want to bet the judge was stimulated himself by the story? Fap, Fap, Fap. "Yes, you are a filthy, dirty dirty girl." Fap. Fap. Fap.

Pervert!

The poem "Lord Samuel and Lord Montagu" in particular, is filthy and obscene.

How is it filthy or obscene. Please cite your sources and explain how it is obscene, otherwise you're just making shit up, or worse you're banning something for simply not liking it which is antithetic to Free Speech.

Once again, the poem is fairly innocuous. It's obvious that the judge simply found homosexuals to be intolerable and who shouldn't be recognized as a segment of the population.

 Many of the advertisement for the Swiss publication "The Circle" lead to the obtaining of obscene matter. For these reasons, the injunction against the plaintiff should remain in force. 

So the magazine doesn't show dirty things, only where you can get something else that may or may not be dirty.

The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected.

Ha. Called it. What an asshole.

Besides for name calling, an yelling hysterically at the denizens of the 1950s for being bigots, what can we take away from this decision?

Obscenity can be defined as whatever the judge dislike or finds to be filthy. Obscenity needs no perimeters. I cannot even be for certain that the judge actually looked at the magazine because so little evidence is presented.

It is also important to remember this case as history and to marvel at how far the LGBT community has come since this decision. It would now be unconscionable for a judge to write, "The suggestion advanced that homosexuals should be recognized as a segment of our people." And yes this was 60 years ago, but at the same time it was only 60 years ago.

Please notice the accidental ruling in favor of One Inc.  Woops.

Next in these series is I will cover the 9th Circuit Court decision. **Spoilers: there will be more masturbation jokes.**


Liam '14

Part I, Part II, Part IV, Part V, Part VI

Thanks to the Mattachine Society, homophiles such as myself can view our share history. In this case its One, Inc. v. Olesen.

Sunday Morning Slander

I am in too good of a mood to make this a longer post. The sun's up, the birds are out, and focusing in on dickheads rather than dick seems like a waste.

I was originally going to write a short post about Rob Schlein, the Texas Log Cabin Republican who was fisted on stage introduced ex-gay therapy into the Texas Republican Platform.

[Insert snark here.]

The problem with that story is the statement speaks for itself and therefore can go un-annotated.

So that leaves BJ JB Van Hollen, front guitarist for the world's worst Van Halen tribute-band, Attorney General for Wisconsin. In an article written by Andy Towle at the eponymous blog Towleroad, MMF JB Van Hollen is quoted:

I am very pleased that Judge Crabb has followed the lead of courts across the country, including the United States Supreme Court, and fully stayed her ruling. By staying this ruling, she has confirmed that Wisconsin’s law regarding same-sex marriage remains in full force and effect. The state and all of its agencies and subdivisions must follow and enforce Wisconsin’s marriage law.  County clerks do not have authority under Wisconsin law to issue same-sex marriage licenses.  Judge Crabb’s stay makes this abundantly clear.

Please read the rest of the article, as there is a quote by the always calm, the always gracious, the ever fantastic, Senator Tammy Baldwin.

See Double Anal JB is ecstatic, so that's all that matters.

The reason, Judge Crabb isn't being slandered by myself, is because her hands are tied (it is also better to play it safe so that the 7th Circuit has less to criticize her for; acting rashly now could invite unwarranted criticism into her decision in Wolf v. Walker):

After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer. However, a federal district court is required to follow the guidance provided by the Supreme Court.

60 Counties and 555 marriage licenses, in one week. Tell me that people are not hungry for those rights that are fundamental to the human condition. Tell me that is not a cause for celebration.

JB Van Hollen, you sir are a hypocrite, an asshole, and a bigot. You sir are the only one in this ordeal over-joyed by continuing discrimination. You sir are the only one who could have ended this immediately when offered a chance.You sir refused to defend the law offering minor yet fundamental protection to gay couples, because you sir believe it to violate the constitution. Yet you sir continue to defend a unconstitutional ban on marriage, even after it has been demonstrated by a court of law to be unconstitutional (repeatedly.)

Fuck You Sir!

If one couple is denied hospital visitation rights, or has power of attorney stripped away because they're not a real couple, or is denied tax benefits, or has survivorship property rights taken away, that is on you, you fucking piece of shit.

I made this to bring this post back into a lighthearted mood. The really sad thing is I didn't even have to slander him. He kind of did it to himself.


Liam '14

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