Manual Enterprises, Inc v. Day, 123

• Decision Date: 25 June 1962
• Docket Number: No. 123,123
• Citation: 370 U.S. 478,82 S.Ct. 1432,8 L.Ed.2d 639
• Parties: MANUAL ENTERPRISES, INC., et al., Petitioners, v. J. Edward DAY, Postmaster General of the United States
• Court: U.S. Supreme Court

370 U.S. 478

82 S.Ct. 1432

8 L.Ed.2d 639

MANUAL ENTERPRISES, INC., et al., Petitioners,

v J. Edward DAY, Postmaster General of the United States.

No. 123.

Argued Feb. 26 and 27, 1962.

Decided June 25, 1962.

Stanley M. Dietz, Washington, D.C., for petitioners.

J. William Doolittle, Jr., Washington, D.C., for respondent.

Mr. Justice HARLAN announced the judgment of the Court and an opinion in which Mr. Justice STEWART joins.

This case draws in question a ruling of the Post Office Department, sustained both by the District Court and the Court of Appeals, 110 U.S.App.D.C. 78, 289 F.2d 455, barring from the mails a shipment of petitioners' magazines. That ruling was based on alternative determinations that the magazines (1) were themselves 'obscene,' and (2) gave information as to where obscene matter could be obtained, thus rendering them nonmailable under two separate provisions of 18 U.S.C. § 1461, 18 U.S.C.A. § 1461, known as the Comstock Act.¹ Certiorari was granted (368 U.S. 809, 82 S.Ct. 37, 7 L.Ed.2d 19) to consider the claim that this ruling was inconsistent with the proper interpretation and application of § 1461, and with principles established in two of this Court's prior decisions. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. ²

Petitioners are three corporations respectively engaged in publishing magazines titled MANual, Trim, and Grecian Guild Pictorial. They have offices at the same address in Washington, D.C., and a common president, one Herman L. Womack. The magazines consist largely of photographs of nude, or near-nude, male models and give the names of each model and the photographer together with the address of the latter. They also contain a number of advertisements by independent photographers offering nudist photographs for sale.

On March 25, 1960, six parcels containing an aggregate of 405 copies of the three magazines, destined from Alexandria, Virginia, to Chicago, Illinois, were detained by the Alexandria postmaster, pending a ruling by his superiors at Washington as to whether the magazines were 'nonmailable.' After an evidentiary hearing before the Judicial Officer of the Post Office Department there ensued the administrative and court decisions now under review.

I.

On the issue of obscenity, as distinguished from unlawful advertising, the case comes to us with the following administrative findings, which are supported by substantial evidence and which we, and indeed the parties, for the most part, themselves, accept: (1) the magazines are not, as asserted by petitioners, physical culture or 'body-building' publications, but are composed primarily, if not exclusively, for homosexuals, and have no literary, scientific or other merit;³ (2) they would appeal to the 'prurient interest' of such sexual deviates, but would not have any interest for sexually normal individuals; and (3) the magazines are read almost entirely by homosexuals, and possibly a few adolescent males; the ordinary male adult would not normally buy them.

On these premises, the question whether these magazines are 'obscene,' as it was decided below and argued before us, was thought to depend solely on a determina- tion as to the relevant 'audience' in terms of which their 'prurient interest' appeal should be judged. This view of the obscenity issue evidently stemmed from the belief that in Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, this Court established the following single test for determining whether challenged material is obscene: 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' (Footnote omitted.) On this basis the Court of Appeals, rejecting the petitioners' contention that the 'prurient interest' appeal of the magazines should be judged in terms of their likely impact on the 'average person,' even though not a likely recipient of the magazines, held that the administrative finding respecting their impact on the 'average homosexual' sufficed to establish the Government's case as to their obscenity.

We do not reach the question thus thought below to be dispositive on this aspect of the case. For we find lacking in these magazines an element which, no less than 'prurient interest,' is essential to a valid determination of obscenity under § 1461, and to which neither the Post Office Department nor the Court of Appeals addressed itself at all: These magazines cannot be deemed so offensive on their face as to affront current community standards of decency—a quality that we shall hereafter refer to as 'patent offensiveness' or 'indecency.' Lacking that quality, the magazines cannot be deemed legally 'obscene,' and we need not consider the question of the proper 'audience' by which their 'prurient interest' appeal should be judged.

The words of § 1461, 'obscene, lewd, lascivious, indecent, filthy or vile,' connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning,⁴ the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex.⁵ Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed.Cas. p. 1093, No. 14571, put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, 354 U.S. at 489, 77 S.Ct. at 1311, 'taken as a whole appeals to prurient interest.' This 'effect' element, originally cast in somewhat different language from that of Roth (see 354 U.S., at 487, 489, 77 S.Ct. at 1310, 1311), was taken into federal obscenity law from the leading English case of Regina v. Hicklin, (1868) L.R. 3 Q.B. 360, of which a distinguished Australian judge has given the following illuminating analysis:

'As soon as one reflects that the word 'obscene,' as an ordinary English word, has nothing to do with corrupting or depraving susceptible people, and that it is used to describe things which are offensive to current standards of decency and not things which may induce to sinful thoughts, it becomes plain, I think, that Cockburn, C.J., in * * * R. v. Hicklin * * * was not propounding a logical definition of the word 'obscene,' but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel.⁶ The tendency to deprave is not the characteristic which makes a publication obscene but is the characteristic which makes an obscene publication criminal. It is at once an essential element in the crime and the justification for the intervention of the common law. But it is not the whole and sole test of what constitutes an obscene libel. There is no obscene libel unless what is published is both offensive according to current standards of decency and calculated or likely to have the effect described in R. v. Hicklin * * *.'⁷ Regina v. Close, (1948) Vict.L.R. 445, 463, Judgment of Fullagar, J. (Emphasis in original.)

The thoughtful studies of the American Law Institute reflect the same two-fold concept of obscenity. Its earlier draft of a Model Penal Code contains the following definition of 'obscene': 'A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest * * * and if it goes substantially beyond customary limits of candor in description or representation of such matters.' A.L.I., Model Penal Code, Tent. Draft No. 6 (1957), § 207.10(2). (Emphasis added.) The same organization's currently proposed definition reads: 'Material is obscene if, considered as a whole, its predominant appeal is to prurient interest * * * and if in addition it goes substantially beyond customary limits of candor in describing or representing such matters.' A.L.I., Model Penal Code, Proposed Official Draft (May 4, 1962), § 251.4(1). (Emphasis added.)⁸

Obscenity under the federal statute thus requires proof of two distinct elements: (1) patent offensiveness; and (2) 'prurient interest' appeal. Both must conjoin before challenged material can be found 'obscene' under § 1461. In most obscenity cases, to be sure, the two elements tend to coalesce, for that which is patently offensive will also usually carry the requisite 'prurient interest' appeal. It is only in the unusual instance where, as here, the 'prurient interest' appeal of the material is found limited to a particular class of persons that occasion arises for a truly independent inquiry into the question whether or not the material is patently offensive.

The Court of Appeals was mistaken in considering that Roth made 'prurient interest' appeal the sole test of obscenity.⁹ Reading that case as dispensing with the requisite of patently offensive portrayal would be not only inconsistent with § 1461 and its common-law background, but out of keeping with Roth's evident purpose to tighten obscenity standards. The Court there both rejected the 'isolated excerpt' and 'particularly susceptible persons' tests of the Hicklin case, 354 U.S., at 488—489, 77 S.Ct., at 1310—1311, and was at pains to point out that not all portrayals of sex could be reached by obscenity laws but only those treating that subject 'in a manner appealing to prurient interest.' 354 U.S., at 487, 77 S.Ct., at 1310. That, of course, was but a compendious way of embracing in the obscenity standard both the concept of patent offensiveness, manifested by the terms of § 1461 itself, and the element of the likely corruptive effect of the challenged material, brought into federal law via Regina v. Hicklin.

To consider that the 'obscenity' exception in 'the area of constitutionally protected speech or press,' Roth, at 485, 77...