Box Turtle Bulletin

Today In History, 1962: Supreme Court Rules Physique Magazines Are Not Pornographic

In the 1950s, Herman L. Womack published three beefcake magazines: MANual, Trim and Grecian Guild Pictorial. Although the magazines were marketed to gay men, they made no mention whatsoever of homosexuality, instead presenting themselves as bodybuilding and physique magazines. In 1960, the postmaster in Arlington Virginia seized a shipment of the three magazines and declared that because the magazines were marketed to gay men, they were obscene and therefore “nonmailable,” even though the magazines contained no actual nudity. (Models wore “posing pouches” to conceal their genitalia.) In other words, it wasn’t that the photos themselves were pornographic, but that the gay audience made the photos pornographic and therefore illegal. Womack sued in federal court, but after the court granted the government’s move for summary judgment, he appealed all the way to the Supreme Court.

On June 25, 1962, the U.S. Supreme Court ruled in MANual Enterprises v. Day that the materials in question were not pornographic. Writing for the majority, Justice John Marshall Harlan II wrote that the photos themselves were not “patently offensive” or “indecent.”  “[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.” And since the magazines didn’t reach that level of indecency, it didn’t matter who the materials were being marketed to. The mere portrayal of the male nude — even if it happens to be the portrayal of the gay male nude — “cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates.” If nude or semi-nude photos marketed to straight men weren’t pornographic (Playboy had already been around since 1953), then similar photos marketed to gay men couldn’t be pornographic either.

This was not the first time the Supreme Court weighed in on a case that was directly connected to gay rights. It wasn’t even the first time that the Supreme Court ruled that materials dealing with homosexuality could be legally sent through the mails. In 1958, the high court ruled that the Los Angeles Post Office had no authority to prevent ONE magazine from being sent through the mails (Jan 13). But that ruling was an unsigned one with a simple reference to another court ruling , consisting of a single sentence overturning a lower court ruling and instructing the lower courts to follow a 1957 ruling that narrowed considerably what could be considered pornographic. What sets MANual Enterprises v. Day apart from the ONE case is that  the MANual was a signed one, and the Supreme Court directly curtailed the post office’s discretion to decide what was porn and what wasn’t, and its ability to do so based solely on the intended audience.

MANual was not a particularly hot topic that day. As it happened, the bigger news was that the Supreme Court, on January 25, also released its landmark decision in Engel v. Vitale, which declared public school prayer an unconstitutional infringement on the First Amendment’s religious establishment clause. But Newsweek saw a connection between the two, complaining “Many citizens were infuriated by the fact that in the same prayer-banning session, the Supreme Court had restored postal privileges to three homosexual magazines.”