By a six-to-one vote (Justices Frankfurter and White did not participate), the Supreme Court reversed lower court decisions sustaining the authority of the postmaster general under the Comstock Act to seize and bar from the mails magazines deemed as obscene because they contained photographs of nude or near nude males published by Manual Enterprises for homosexuals (and which contained the addresses of the photographers).
Justice Harlan, applying the Roth standard (Roth v. United States, 354 U.S. 476, 1957), declared that, after ‘‘our own independent examination,’’ the magazines were not obscene. He added, however, a new qualifier to the standard. The post office and lower courts misapplied Roth by making ‘‘prurient interest’’ the sole test of obscenity. Justice Harlan argued that an ‘‘essential’’ element was the ‘‘patent offensiveness’’ of materials and whether the materials were ‘‘so offensive on their face as to affront current community standards of decency.’’ Roth requires two ‘‘distinct’’ elements: patent offensiveness and prurient interests; both must be conjoined before challenged material can be declared obscene and barred from the mails under the Comstock Act. The relevant ‘‘community’’ under the federal statute, Justice Harlan added, was a ‘‘national standard of decency.’’
The Comstock Act also proscribed ‘‘obscene advertising.’’ The secondary issue in the case was scienter— namely, whether the postal authorities could presume Manual Enterprises was aware the thirdparty advertisers whose addresses were included the magazines were in possession of ‘‘hard core’’ photographs. Justice Harlan concluded that actual proof was necessary to establish that the publisher knew the advertisers were offering obscene material.
Justice Brennan’s concurrence stressed that this was the first time the Court had given plenary review to the question of whether the post office could order material ‘‘nonmailable’’ after it determined it to be obscene. Procedural safeguards, he stated, ‘‘loom large in the wake of an order such as the one before us.’’ The factual question at the center of his concurrence was whether Congress had ‘‘in fact conferred upon postal authorities any power to exclude matter from the mails upon their determination of its obscene character.’’ Justice Brennan concluded that legislative history showed that Congress had not granted the postmaster general this authority.
Justice Clark’s dissent proclaimed that the Court’s holding ‘‘requires the U.S. Post Office to be the world’s largest disseminator of smut and Grand Informer of the names and places where obscene material may be obtained.’’ Disagreeing with Justice Brennan, Justice Clark emphasized that the wording of the Comstock Act and subsequent postal regulations clearly authorized the post office to declare material obscene and to bar it from the mails. Clark also declared that facts of the case rendered concerns about the sender’s scienter irrelevant and pointed out that Manual Enterprises was knowledgeable about the purposes of the advertisements in its magazines and that the publishing firm was no ‘‘Jack and Jill’’ operation. The facts were equally evident to the justice (quoting Milton: ‘‘O dark, dark, dark amid the blaze the noon’’) that with ‘‘no social, educational, or entertainment qualities,’’ the magazines, ‘‘designed solely as sex stimulants for homosexuals,’’ were obscene and thus appropriately nonmailable through the post office.
ROY B. FLEMMING
References and Further Reading
Cases and Statutes Cited