MANual Enterprises v. Day, the 1962 Supreme Court case that opened the mail to male nudes

In 1960 the Post Office stopped 405 physique magazines at Alexandria, Virginia, and declared them obscene because they were made for gay men. Two years later the Supreme Court called them dismally unpleasant, uncouth and tawdry, and ruled that the mail had to carry them all the same.

Washington, 28 April 1960. In an office of the Post Office Department, the department's Judicial Officer hands down his ruling on three small magazines, MANual, Trim and Grecian Guild Pictorial. They are not bodybuilding publications, he finds, but magazines composed for homosexuals, read almost entirely by homosexuals "and possibly a few adolescent males", with no literary or scientific merit. They are obscene, and they cannot travel by mail. It is one month and three days since 405 copies were stopped at the post office in Alexandria, Virginia¹.

The case that began that spring, MANual Enterprises v. Day, reached the Supreme Court two years later and ended with the first ruling by the highest court in the United States on pictures made for gay men. The justices did not like the magazines. They decided, all the same, that the government could not keep them out of the mail. This is the full story of the case: the publisher, the procedure, the opinions and what the ruling changed.

A philosopher in the printing trade

The three magazines belonged to three corporations that shared an office in Washington and a president, Herman Lynn Womack¹. Born in Mississippi in 1923, Womack had a doctorate in philosophy from Johns Hopkins and had taught the subject at George Washington University before buying a printing plant in the late 1950s and going into physique publishing².

He was not a cautious man. He was prosecuted separately for mailing obscene photographs, convicted in 1960, and spent time not in prison but at St Elizabeths, the federal psychiatric hospital in Washington. Rodger Streitmatter and John C. Watson, who wrote the first scholarly study of him, call him a pornographer who became a First Amendment pioneer³.

The magazines were small and sold well. According to the Court, the three titles claimed a combined circulation of about 25,000, roughly half of it distributed by mail¹.

Thirty-four days

The parcels were posted on 25 March 1960 as second-class mail, bound for the publishers' agent in Chicago. Because second-class mail travelled unsealed, the Alexandria postmaster could look inside. He thought the magazines might be obscene, held them back and sent samples to the department's General Counsel in Washington¹.

On 5 and 7 April the General Counsel told the publishers that the magazines were being withheld, and that there would be no formal hearing because too little money was at stake. On 11 April Womack's companies asked for a hearing and went to the federal court in Washington for an injunction. The same day the Judicial Officer overruled the General Counsel and ordered a hearing, which began on 21 April¹.

Exactly a week later came the ruling. The magazines were obscene in themselves, and they also broke a second clause of the Comstock Act, the 1873 law against obscene mail, because they carried advertisements from photographers who, the Post Office said, sold obscene pictures¹.

The publishers sued again on 13 May. The District Court dismissed their complaint without an opinion. The Court of Appeals for the District of Columbia agreed with the Post Office: under the test the Supreme Court had set in Roth v. United States in 1957, material was obscene if it appealed to prurient interest, and for magazines like these, the judges reasoned, the person whose interest counted was the average homosexual¹.

What the government saw

The government's description of the magazines, preserved in a footnote of the final opinion, is the most detailed official account of a physique magazine ever written. It noted that there was hardly any text and almost nothing about weightlifting or physical culture. A typical page was a photograph with the model's name, the photographer, and occasionally his age, usually under twenty-six, his eye colour and his measurements¹.

The models were nude or nearly nude, usually posed with some object in front of their genitals. Some wore only posing straps or loincloths, others only boots, helmets or leather jackets. There were swords and long pointed objects, chains, pairs of models posed together, and one picture of a model beating another while a third hid his face in his hands. None, the description admitted, directly exposed the genitals¹.

Two tests, not one

The Supreme Court heard the case on 26 and 27 February 1962. Stanley M. Dietz argued for the publishers, J. William Doolittle Jr. for the Postmaster General, J. Edward Day¹.

The decision came on 25 June. Justice John Marshall Harlan, writing for himself and Justice Potter Stewart, accepted the Post Office's findings about who read the magazines and why. He simply refused to stop there¹.

Obscenity, he wrote, needed two things, not one. The material had to appeal to prurient interest, as Roth said, and it also had to be "patently offensive", so indecent on its face that it affronted current community standards of decency. Roth had not abolished that second requirement, and without it many acknowledged masterpieces could be banned as arousing¹.

The community, for a federal law that covered the whole country, was the nation. Judged by a national standard, the magazines did not cross the line. The most that could be said of them, Harlan wrote, was that they were "dismally unpleasant, uncouth, and tawdry", and that was not enough¹.

Then came the sentence that mattered most to the physique trade. Leaving aside the question of who they were meant to excite, these portrayals of the male nude could not fairly be regarded as more objectionable than many portrayals of the female nude that society tolerated¹.

The advertisements

That left the second charge. Some of the photographers who advertised in the magazines had been found with what the Court accepted as hard-core pictures. The question was whether that made the magazines illegal too¹.

Harlan said no, unless the government proved that the publishers knew what their advertisers were selling. Postal officials had told Womack that several of his advertisers were being prosecuted, but had never shown him the material, and the magazines had dropped advertisers once they were convicted. A publisher could not be expected to investigate every studio that bought a column, and the fear of losing a whole issue would push magazines into censoring themselves¹.

The opinion ended with a disclaimer of its own. Nothing in it, Harlan wrote, remotely implied approval of the magazines, still less of the "sordid motives" behind them. The Court decided only that these particular magazines could not be suppressed under that law¹.

A court split three ways

Harlan spoke for only two justices. Justice William Brennan, joined by Chief Justice Earl Warren and Justice William O. Douglas, voted to reverse for a different reason: Congress had never given the Post Office the power to ban mail as obscene on its own authority, without a court. Justice Hugo Black agreed with the result without writing. Justices Felix Frankfurter and Byron White took no part¹.

Brennan's opinion quoted the Post Office's own Solicitor, testifying to Congress in 1952 about the department's informal censorship of the mail. "We just hope that we get by with it as long as we can," he had said¹.

Justice Tom Clark dissented alone. The ruling, he wrote, made the Post Office "the world's largest disseminator of smut and Grand Informer of the names and places where obscene material may be obtained". He quoted from Womack's own letters to photographers, asking for "truck driver types" who were "cleaned up, showered, and ready for bed", and compared the majority to the mother in an old rhyme who lets her daughter swim but forbids her to go near the water¹.

After the ruling

For Womack, the decision was a licence to grow. His Guild Press went on to publish books, newspapers and mail-order catalogues for gay men through the 1960s, until federal prosecutions at the start of the 1970s forced him out of the business².

For the law, Harlan's idea outlived the case. In 1966 the Supreme Court's plurality in Memoirs v. Massachusetts made patent offensiveness one of the elements of obscenity, and in 1973 Miller v. California kept it in the test that still applies today⁴.

The national standard did not survive. Miller replaced it with the standards of the local community, so that what passed in New York might be prosecuted elsewhere⁵.

For gay readers the meaning was simpler. For the first time the highest court in the country had looked at magazines made for them and ruled that the mail had to carry them, which is why Streitmatter and Watson call their publisher a First Amendment pioneer³. The wider story is told in the chapter on the physique era.