The Most Important LGTBQ Rights Case You've Never Heard Of

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Matt: The Comstock Act, named after the guy whose official seal of his organization features book burning.

0:00:19 Jenessa: He was in love. This was what all the poets wrote about. But how could he be in love with Paul when Paul was a boy?

0:00:31 Thomas: Hello and welcome to Opening Arguments. This is episode 1183, and this is such a fun one. Real -life immigration attorney and real -life voting rights advocate and attorney, Dr. Jenessa Seymour, have the second in their series on actual good decisions by the Supreme Court. Now, of course, in order to find these, they have to jump in a time machine and go way, way back, because that's just how things work. But I love this series. Upon listening to this episode, I was so jealous that I wasn't there for it, because this is so much fun. This is such a great idea, too. We've spent so much time over the years talking about the bad cases that this series in which Matt and Jenessa are going to be looking at some of the good cases of Supreme Court history is just, it's so perfect in so many ways. We need the uplift. We needs the example of what the Supreme Court was and could again be someday, maybe. And it's also just interesting history and interesting law. So today we have One Ink v. Olesen, which Matt calls the most important LGBTQ rights case you've never heard of. And they're going to be reading us some smut. Some old -timey smut, what could be better? Such a good episode, I'm excited for you to hear it. I'll give you one more reminder about Lotawful Movies on patreon .com slash law for the $2 and above patrons. Lots of great comments on that, that was really fun. Loved doing that Lotawfel Movies. Juror number two was the movie. Me, Lydia, Matt, and Matt's partner, Casey, were on that recording. And of course, Matt and Casey have the really cool prosecutor slash defense attorney duo that gives so much insight to these kinds of things. So a lot of awful movies. Check it out if you haven't already. It was really good. All right. With all that out of the way, let's take a quick break, which you can avoid at patreon .com slash law, and then get on to some old timey smut.

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0:03:53 Matt: Well, it's Sunday night. Let's talk about obscenity. You got any good examples?

0:03:57 Jenessa: I do have some apparently extremely obscene material to read to you, according to some lower courts.

0:04:04 Matt: Content warning if you happen to be listening to this in 1957. Time travelers be advised. This is going to be some pretty shocking stuff for people in the 50s, apparently. We're going to talk about the evolution of obscenities, and we're going to be talking today about the Evolution of Obscenity Law through the lens of what I think is the most important gay rights decision that I'd never heard of, One, Inc. v. Olesen, 1958. Classic Warren Court decision, it turns out. The decision itself is only a sentence, as we'll find, but it's really everything that leads up to that that gets us there. Let's take a little look at One Magazine, which is the center of this particular firestorm. So what do you got? We're going to link to it, but we've got in archive .org has a complete set of One Magazine and it's a great read. I had a lot lot of fun reading it, I've got to tell you.

0:04:46 Jenessa: Yeah. I was really impressed with it. It's ahead of its time in so many ways. The little excerpt I picked out for everybody today is essentially the story you would read your kids today for Love is Love, if you wanted to understand for your straight or maybe not straight kid because you don't necessarily know yet. This was just a story about an interracial teenage gay couple.

0:05:14 Matt: Wow. Well, there's your problem.

0:05:14 Jenessa: Yeah, this is in 1953, the issue I looked at, and it's all about them having that first uh -oh we might be more than friends moment and it's four pages but it ends with this he was in love this was what all the poets wrote about but how could he be in love with Paul when Paul was a boy it was confusing but seemed unimportant there couldn't be another feeling like this in all of life he wanted to shout in the streets that he loved Paul What would his dad say? Would he object? How could he when confronted with such glorious, overpowering emotion? Love was good. Love was pure. God was love. That's what they taught you in Sunday school. But he remembered his dad's face when he had accused him of spending too much time with that Black Hunter family. His dad wasn't religious anyway and might not believe what what they taught in Sunday school. Well, perhaps he would tell his mother as soon as he was alone and ask her advice about telling dad. It was so wonderful. He just had to talk about it. He knew she'd be real glad to hear it. He could already see her smile as he told her.

0:06:30 Matt: Wow, that is depraved.

0:06:33 Jenessa: Yeah, so terrible, right? Like, I like that almost brought me to tears. It It was the sweetest and it's more than just a cute little story. This is like how you would talk to

0:06:35 Matt: Maybe we should get that explicit warning on this episode. I don't know. Ooh. Yeah, no, that's wonderful. Mm -hmm.

0:06:50 Jenessa: A young person about this, like all of those feelings of, uh -oh, I feel like I might be different. Maybe that's okay. Maybe it's not that big a deal. This is 1953 and they're talking about, also this is before Loving v. Virginia. Interracial couples are illegal in many states way ahead of its time and literally the whole story there's like a allusion to making out like that's it and apparently this is porn oh

0:07:21 Matt: Well. Yeah! So One Magazine was actually published by One Inc., which is still the oldest active queer rights organization in the U .S. Pretty cool. Yeah and they started publishing shortly after they were founded in 1952. So you're reading one of the earliest editions. Now, I went back and looked at the October 1954 edition, which is the one that really got them in trouble. And this magazine is a great read. It's a lot of fun. We'll link to the archive. But there's a load of great essays. I actually wanted to highlight, this is actually from the next month, from November of 1954. Check out this depravity. Quite logically, therefore, it seems there could be no program of greater importance for the modern homosexual than to bend every effort toward the positive cultural achievements which can prove the social worth of every human being, irrespective of race, sex, or other material condition. And it talks more about the bonds which can be forged from the realistic sense of brotherhood that in the end can unite all of humanity. Now, the month before that, in October 1954, I think they were trying to push it just a little bit, but if you hear about how they were pushing it, it's really incredible.

0:07:28 Jenessa: They're still around okay

0:08:20 Matt: The cover, it says, you can't print it in quotes, and it's citing one's legal counsel. That's the quote. It's 25 cents, October 1954. And there is a forward from one's legal counsel, which explains the currently controlling definition of obscenity in three pages, which is very interesting because that's kind of where I want to start. And they essentially are saying, we've edited this magazine as the attorneys, and we believe that here are the things we can print and not print. Basically, that they narrowed it down to six things they are sure they can't print, including lonely hearts ads, like Craigslist ad listings, basically.

0:08:53 Matt: Cheesecake art photos. To readers who ask, but what about all the girly magazines? I can only reply that in our society, visual visual stimulation of man by woman is tolerated to a far greater extent than attempted visual stimulation of men by men, which is for law a criminal purpose. Descriptions of sexual acts, descriptions of experiences which might become too explicit, descriptions of homosexuality as a practice with the author encourages and others are waxes too enthusiastic about in the gay magazine. Also number six, fiction with too much physical contact between the characters, I .e. characters cannot rub knees, feel thighs, hold hands, soap backs, or undress.

0:09:28 Jenessa: Feel like hold hands is like a little out of place in that list but okay

0:09:30 Matt: So bad. Note that But also these rules are relaxed somewhat in work dealing with homosexuality among women. Hence the greater freedoms and one's February all women issue. This is merely a reflection of society's attitudes in general based on no particular logic. This is from their attorneys. I love it. I love this magazine. Let me tell you about the three things that the trial court found to be obscene. Because what happened was they tried to mail out the October 1954 edition and the postmaster of LA was like, all right, we've had enough of this magazine, we're seizing it under the Comstock law, which we'll talk about. And they gave it back. That's actually kind of funny. They seize it and they return to the plaintiffs. So it goes before the trial court under the definition of obscenity, controlling at that time, because this is a federal case, right? It's part of the CompStat Act. I'll talk about that definition in a minute, but let me just give you the three things the trial core found to be objectionable. We also have the appellant's brief, which is great, and I'll link to that as well in the notes. So that really helps because they go through, and it's actually hilarious the way they do this. They explain point by point why each one of the things you think is obscene is not obscene. And of course, they're completely right on all of it.

0:10:30 Matt: The story Sappho Remembered, appearing on pages 12 through 15, is obscene because it is lustfully stimulating to the homosexual reader.

0:10:39 Jenessa: Well, what isn't?

0:10:40 Matt: Well, you know, I'm pretty into women myself, and I read this and I was like, there's nothing stimulating about this. Let me read you the most obscene thing in Sappho remembered. The whole concept of Sappho remembered is basically like an older woman seducing a college girl. That's why it's obscene. Remember also the standard of lustfully simulating to the homosexual reader, because that is actually at the time that was an accurate statement of the law. It's not stimulating to the particular reader it's simulating to the general reader you can't narrow it a certain class so that was just wrong the trial court just made a mistake on that

0:11:08 Jenessa: So it had to be lustfully stimulating to at least some sizable group of people, presumably. I mean, everything is to somebody, right? Maybe they wouldn't have said that in the the 50s

0:11:13 Matt: Yeah to the average reader basically right right pavia closed the door of their suite behind them tossed her coat on a chair and gently drew the girl to her forgiven she asked at last she touched the delicate pulse beneath the light golden hair and the childlike temple will there ever be a day when you won't blush when I do that she murmured this was the most obscene thing that I could find in Sappho Remembered, and I was looking. I'm all about smut.

0:11:37 Matt: I would love to find some smut I really thought I was going to get some better stuff here. I am disappointed. But the Ninth Circuit decision, which now the trial court found for the government and the Ninth circuit upheld this finding. This is the Ninh Circuit's characterization of Sappho Remembered. The climax is reached, that makes it sound like a lot more fun is going to happen in this story than does, 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, which is very funny. Like every time you write about homosexuality, you have to have like a footnote to be like, you know, this is historically, you know it's, it's an aberrance or something.

0:12:18 Matt: I don't know what you're supposed to say, but so there's the story of Sappho, remember that's, that's the first obscene thing. The second obscene things, the second obscenes, the first obscenes, the two obscenities, was a silly bit of poetry called Lord Samuel and Lord Montague. And it's a satire and it's about the Montague case in the UK at the time, which was about some UK Air Force members that were convicted of sexual relations with men.

0:12:36 Matt: And so they're giving what I would consider to be, I mean, the poetry is kind of silly, but it's like a very trenchant critique of the way that the British were dealing with. And this is like completely valid criticism of how they were dealing with homosexuality. And some of it's kind of funny. Here's a stanza. Lord Samuel is a legal peer, while real are Monty's curls. Some peers, and a legal peer, of course, a peer of the realm poem as a specific term in British law.

0:13:00 Matt: Some peers are seers, but some are queers, and some boys will be girls. That's about as obscene as this gets. A lot of this poem is incomprehensible to the modern reader because it has all kinds of references and slang that we don't use in British stuff. There's a delightful explanation in the appellant's brief to the Ninth Circuit, where they explain that, from the appELLANT's brief here, he says, the word queer is in common and ordinary usage. It is classed by authorities as slang, not obscenity. And then there's another piece where he talks about, I actually really liked this stanza, for there's blackmail in the the woodpile, and there's blackmail by the fence. But to black male, M -A -L -E, and to white male, M -L .E., it's avoid the public, gents, and like the gents room, the gent's toilet. And the Ninth Circuit brief, and the appellant explains delightfully, the post here makes the comment that he would advise all males to avoid frequenting public restrooms. This is obviously because public restrooms have featured notoriously in the current English vice scandal. This isn't admonition not calculated to arouse sexual desire. It's literally advice to like stop hooking up in in bathrooms.

0:13:58 Jenessa: Sounds like classic political speech right like this is commenting on a current political issue

0:14:02 Matt: Yeah, it's satire. It's straight up easy satire, and if it were about a scandal involving a man and a woman, nobody would think twice about it. Finally, third, the trial court found that there was an advertisement for a Swiss publication called The Circle, which appears at the top of page 29, and this makes the entire magazine non -mailable under the Comstock Act because it gives information for the obtaining of obscene matter. And I have a screenshot here of the ad, and it does indeed tell you how to buy The Circle from Switzerland. And they went and inspected the circle. And it does actually have photos, which the one magazine doesn't, but you know, nothing. I don't know. I didn't look at it, but I assume it's again, not that obscene by today's standards.

0:14:43 Matt: We'll talk a little bit about Roth in a second and about what was considered obscene at the time. And It's still unbelievable to me, but I just wanted to set this up. So you know what we're talking about up front is one magazine and that this is a literary magazine. This is a leading voice of gay rights in the United States, an amazing source of anti -gay activism, carefully thought out, also beautiful thoughts all the way through. Really appreciate the 50s fonts. Love the aesthetic. Obviously, the trial court and the Ninth Circuit didn't agree with me on any of the aesthetics. What happens is we have to back up a little bit and talk about the history of obscenity law before we can get to what actually happened with One Egg. At the time when all this was on appeal, a case called Roth was coming before the Supreme Court. And Samuel Roth was a pretty cool guy. And he was like a lot of these sort of free speech warriors at this time. He was willing to go to jail for the things he wanted to publish. Publish. He was a New York bookseller and publisher, and he published something called American Aphrodite, which, again, is also on archive .org. I found it to be delightful. It's a good read. It has got a lot of topless women in it and photos and stories and things. So it's actually, I would think, more obscene because it has visual representations of things.

0:15:46 Matt: And it was, just to spoil this, it was actually ultimately upheld as obscene by the Supreme Court. And I guess I might have missed an issue or two that didn't have the really obscene stuff in it. But the important thing, though, is in Roth, at the time that the Roth case is in front of the Supreme Court, we don't have a definition of obscenity at the federal level.

0:16:01 Matt: There's a bunch of state laws, but what we're using at the level at this point to interpret obscenities is the Comstock Act. It was passed by Anthony Constock. We'll talk about that in a second. But the actual legal standard the Comstocks Act was judged in after it was passed was a common law British standard of Regina v. Hicklin from 1868.

0:16:20 Matt: And that's what they were still looking at in Roth. It's amazing to see if it was okay to have essentially obscenite statutes. They're looking looking at the Hicklin v. Roth standard. So I went down too many rabbit holes with all this because there's so many good old -timey obscenities that you can enjoy. Regina v. Hicklun featured a book called The Confessional Unmasked, showing the depravity of the Romish priesthood, the iniquity of the confessional, and the questions put to females in confession. I actually remember reading something like this when I was growing up about how priests were actually complete pervs who just asked all kinds of sexy questions to women when they were in the confession.

0:16:54 Matt: Now, in this case, as Hicklin argued to the court in 1868, that he was just trying to expose the depravity of the Catholic church. He was not trying to be obscene. He Was just trying To make a point. But they found that it was obscene in fact, because of the stuff he put in there, because the questions the priests were asking or whatever. And that's it. End of analysis. So they didn't care about the social value. And the standard they came up with was anything that would deprave and corrupt those whose minds are open to such immoral influences. So regardless of any artistic or literary merit. So that's a pretty bad standard, obviously.

0:17:23 Jenessa: Yeah I guess some Some of us are immune, but for those of us who aren't.

0:17:28 Matt: Well, I don't want to meet you if you are, but it doesn't sound like you're much fun at parties.

0:17:32 Jenessa: Okay, I always mix these two up. You have a First Amendment right to speech, yada yada. Some speech is more protected than others. Is obscenity the one that's like less protected than, is it profanity? What's the other one? There's another one that is less protected.

0:17:48 Matt: Obscenity and commercial speech are both exceptions to the First Amendment. They're just not. Yeah, basically.

0:17:54 Jenessa: They're way less protected political speech would get like rational basis or something.

0:17:58 Matt: And yeah, it was Roth that determined that obscenity could be outside the First amendment. This is a huge, yeah.

0:18:03 Jenessa: Oh, oh, this is the one. Oh, I get it now. Okay, I'm following.

0:18:08 Matt: Now I should just say the Comstock Act of 1873 was promoted by Anthony Comstock. I don'T know if you know the man, but he was the original vice crusader, like the biggest vice crusador in U .S. history. He actually created the New York Society for the Suppression of Advice, and I'm going to send you their logo because you have to describe the logo.

0:18:25 Matt: It's so good. It's amazing. This is like the parody version of what you would think the logo would be for an organization like this.

0:18:31 Jenessa: We have the New York Society for the Suppression of Vice. And on the right, we have a book burning.

0:18:38 Matt: A literal book burning. A man in a top hat burning books.

0:18:42 Jenessa: Way too close to the fire. And on the left, we have a man being arrested for unclear.

0:18:44 Matt: The books, probably.

0:18:49 Jenessa: Not for burning the books.

0:18:50 Matt: Anthony Comstock was very proud of himself. He burned about 15 tons of material in his lifetime and got hundreds of people arrested, inspired at least 15 suicides. Very proud of that. He really persecuted people and he wanted to make sure that Congress passed an actual vice statute. So the Comstock Act is still in effect. It's been amended several times.

0:19:11 Matt: They were looking at the version that was in effect at the time. It has been amended since then, but it was originally found constitutional in 1879 using the Hicklin test I was just telling you about. I also just want to note that India used this test, the HICKLIN test, until 2014. 2014. It was not replaced with a community standards test like we have now until 2014.

0:19:31 Jenessa: Because India, would they also be using British common law?

0:19:34 Matt: Yeah, just one of those things. I never got around to it, I guess. So Roth is selling American Aphrodite, colon, a quarterly for the fancy free. Again, fun read. It's on archive .org. Roth is really an interesting person, but he actually, one of the first people to campaign against him was actually James Joyce, because Roth is one ofthe first people to reprint sections of Ulysses. And I don't know if you know about UlySSes, but Ulyssen is definitely obscene. Not by my standards, but certainly in 1927, it was obscene, It describes, among other things, a female orgasm, which you can't do in 1927 in print. Joyce got mad because Roth reprinted his stuff without permission, not because he didn't want him to print it.

0:20:09 Matt: That's because it was obscene. And I thought that was pretty funny. So Roth takes this case to the Supreme Court, and they come up with a new standard. They review all the standards that were in existence. They look at the state law. They make the point they're not looking at the jury instructions. They're not looking at how the state applies to anything else. They just want to look at constitutionality of how we define what is obscene and whether obscenity is actually outside the First Amendment entirely. And the standard they come come up with in this case, and they do refine it later, is whether to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. The prurient interest, that's a big factor in these.

0:20:43 Matt: And then it was sort of elaborated in this and then sort of codified later that the dominant team of the material taken is a whole appears appeals to the prurient interest, the material is patently offensive because it affronts contemporary community standard, especially really the description of or representation of sexual matters. And here's the important part, the material is utterly without redeeming social value.

0:21:04 Jenessa: That's our exception for like medical texts and that kind of thing right

0:21:09 Matt: Well, we're getting to the Miller test later about where they actually did refine this. But yeah, at the time, this is kind of their first shot at the Roth test.

0:21:12 Jenessa: Oh that's separate okay okay

0:21:18 Matt: The Roth test was later reviewed several times. One of my favorites was in Memoirs v. Massachusetts. And I just want to point out, MemoirS v. Massachusets was actually a reboot of a previous obscenity case. The first obscenities case in US history, no surprise, was out of of Massachusetts. I'm not at all surprised about that. But it was in 1821 to stop publication of Memoirs of a Woman of Pleasure. That book is from 1749. Here's the amazing punchline to what I'm about to tell you. Because that case was 1821, Commonwealth v. Holmes.

0:21:46 Matt: And then again, in 1963, Massachusetts tried to stop the publication of this book from 1748. And I went looking for, you know, again, for some good smut. And it's almost incomprehensible because it's written in Elizabethan English.

0:21:51 Jenessa: Come on have these people not read like I mean books there's stuff we read in english class that had like vague sex scenes and I like

0:22:02 Matt: Anything fun? My man, William Douglas, who, you know, one of the great derpics of Supreme Court history, has a wonderful dissent, as he has lots of great dissents in these cases. But I just wanted to read from memoirs before we go on his dissent where he wrote, the Commonwealth of Massachusetts instituted the suit that ultimately found its way here, praying that the book be declared obscene so that the citizens of Massachusetts might be spared the necessity of determining for themselves whether or not to read it. I love that.

0:22:33 Jenessa: What but if you ban it then they can't decide whether or not to read it. Oh, I didn't get the joke. I thought it was literal. Okay.

0:22:36 Matt: That's the the joke. Yeah. Right. Okay. They had all of these experts come out to say this is like a literary work. It actually has social and historical value. It's very important. And of course the court found that it did have at least some minimal literary value, but Douglas was saying, we don't think we shouldn't even decide it on that. We should just say that it's not even close, that it has like actual social importance. And I will say that Douglas had a dissent in Roth as well. And remember Roth is 1957. This is the original case. This was going going to lead into the one case that we're going to talk about. I really appreciated Douglas's dissent in Roth, in which he basically said, we need to be really careful about the whole concept of defining obscenity, because this is going to be abused pretty badly. It gives the censor free range over a vast domain. To allow the state to step in and punish mere speech or publication that the judge or jury thinks has an undesirable impact on thoughts, but is not shown to be part of unlawful action, is drastically to curtail the First Amendment. He also has a delightful section about how there's no known connection between reading and juvenile delinquency he makes the point that delinquents are much less likely to read per the

0:23:41 Matt: Literature per the research studies in effect at the time but yeah I thought that was really funny

0:23:45 Jenessa: That definition of, first of all, I can never say that word because it's got two R's right next to each other. Prurient interests. And I tried in law school, we got that definition. I was like, appeals to the prurient interest. I don't think I've ever ever seen that word. I looked it up and it was such a circular definition of the interests that are, don't worry about it. Nobody can give me a good definition of what that is. It's all very confusing. It just seems to be what some judge thinks is going to turn other people on, which is a whole other level of weird.

0:23:52 Matt: Print yeah no right right the douglas dissent in roth is great and douglass of course standing up for the idea that juries can't just go censoring and punishing what they don't like provided the matter relates to sexual impurity or has a tendency to excite lustful thoughts completely unrelated footnote that justice Justice William Douglas is one of the only people known to have had sex in the Supreme Court. Moving on.

0:24:30 Jenessa: What? Wait, what do you mean? In the building or?

0:24:42 Matt: So in his office, yeah, he was, like I said, kind of a dirtbag. One of my favorite writers in legal history. And, you know, he didn't work the way the justices worked, but he had a lot of fun doing it. And this was during the golden era of obscenity cases. The Warren Court had to consider all kinds of obsenity through the 50s and 60s. As we'll talk about at the end here, once we wrap things up, the legacy of Roth did did open things up into the 60s and 70s so that there was a lot more opportunity for things that might have been determined to be obscene before. Stuff that made American Aphrodite look as tame as it is. This is how we get to one ink, because in Roth, the court determines that it needs to have its own American standard of obscenity, and it creates the one I just told you about.

0:25:26 Matt: And then in 1958, just months later, one ink is before the court after the Ninth Circuit is determined that the trial court should be upheld and that this was indeed obscene. And in one one sentence, the Supreme Court overturns the Ninth Circuit. The petition for writ of certiorari is granted, and the judgment of the United States Court of Appeals to the Ninths Circuit is reversed. And then it just cites Roth. So yeah, one sentence per curiam.

0:25:46 Jenessa: Did they even have an oral argument wow

0:25:50 Matt: I believe they did, but yeah, that was it. Because they just found that Roth controlled and that this was not obscene. And when you look at the magazines we're talking about, of course, obviously it does have redeeming social value.

0:25:59 Jenessa: So they didn't even feel a need to explain like this court would have spent 80 pages explaining why this has some redeeming value and how to define redeeming valor and citing miriam webster and they just assumed we all all have a brain in our heads and can understand this

0:26:16 Matt: They didn't even cite the language of the Roth test to remind you. They were so lazy. They're just like, yeah, just look at Roth. It's fine. At this, there are actually a series of Supreme Court cases that hit up against Roth where the appellate courts didn't quite understand Roth, I think. And there were quite a number of these that were just reversed on the basis of Roth without too much explanation.

0:26:38 Matt: That's a major breakthrough though, just this one sentence for gay rights in the United States, because the point that was being made was inherently talking about homosexuality, promoting homosexuality is obscene.

0:26:47 Matt: That was the government's position. And as of this case, the Supreme Court of the United States confirmed that just talking about being gay is not obscene, so we should take quick break and come back and maybe we can talk about the impact of being able to talk about your own sexuality so

0:26:47 Jenessa: All right yeah

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0:28:38 Matt: Uh just for some social context for some psychological context how was homosexuality being treated by the scientific community in 1958 wouldn't

0:28:46 Jenessa: So not great um at that time being gay is still in the diagnostic and statistical manual the dsm of the american psychiatric association but it gets removed in the 70s I want to say and we talked about in In the episode 1141, how gender identity disorder has also been removed, has been replaced with gender dysphoria and why that may make some sense that dysphoria is disruptive to your life. It's something that is distressing, but there's been this push to take identities out in recent history to say that like, who you are as a person is not a problem inherently. It's become more and more clear with research that whenever we saw mental health discrepancies among all kinds of oppressed groups, it's society. When you have a gay person or a trans person, if they are raised in an accepting household, living in an accepted community, they're doing okay. It's really the social pressures. But at the time, they're looking at data showing that people who are gay are having worse mental health outcomes and worse outcomes in general. And they're saying, see, it's a disorder and you need to be treated. And we're going to do conversion therapy. And that was not the way that it is today. Completely rejected, opposed. There is a clear scientific consensus. Conversion therapy is just torture. I hesitate to even say it doesn't work because like, yeah, of course you can't change somebody's identity, but that would also imply that if you could, then that would somehow be okay. And of course it isn't. But at the time, it's happening a lot and it's not being opposed by medical organizations. Conversations, this idea that we're going to somehow change your sexuality. People have probably heard of conversion therapy, but they may not have heard the worst of just how bad it could be. It's not necessarily just like, we're gonna try to talk you out of being gay. They were doing torture to people like, oh, let's have you watch Gay Porn and take emetic drugs to throw up during it. Let's see if we can classically condition you that this is bad and this will will make you feel bad, and all that really does is torture somebody without changing their identity and makes their whole identity even worse for them to experience in an unaccepting society.

0:29:03 Matt: Think sure

0:31:23 Jenessa: This is just bad top to bottom. It's a rough time out there. Obviously like gay marriage is not legal. Being gay is just like vaguely illegal, like, and

0:31:33 Matt: Well yeah I was gonna say I mean that the one ink makes the point that like what we're talking about could be seen as inherently obscene just because it is a crime in every state to commit homosexual acts essentially and of course I think listeners need to remember that in 1986, the Supreme Court found at Bowers v. Hardwick that there is no actual right to be gay. It's okay for the states to criminalize sodomy. And it wasn't until 2003 in Lawrence v. Texas that the Supreme court of the United States, when I was in law school, the supreme court of United States finally determined that we should not have the crime of sodomay. It just shouldn't exist.

0:32:09 Jenessa: It wasn't unanimous.

0:32:10 Matt: No, exactly. Yeah, there was a very intense Scalia dissent, of course.

0:32:14 Jenessa: Imagine caring that much yeah

0:32:18 Matt: In Bowers v. Hardwick, they specifically found that there's no constitutional fundamental right to engage in homosexual acts. So it was okay to criminalize. So you have to remember, of coarse, all this time, it makes sense that the medical community sees, I mean, it doesn't make sense now, but you can see the consistent logic that society deems it's a crime. The psychological medical establishment has deemed it its deviance. For immigration purposes, you could be denied a visa right up until 1990 for being a deviant. That's how they saw it. They could also be found to be essentially a psychopath if you were an admitted homosexual or in any way identifying as the gender other than the one in your birth certificate. No, this is obviously the stuff that goes way back and is only recently, finally coming around.

0:32:55 Matt: We're not doing the thing of like, well, it was okay at the time. It was never okay. Certainly, conversion therapy is never okay, criminalizing who you are is never okay, but this is the landscape that one magazine was publishing in, which is really impressive. The Ninth Circuit case I meant to mention before, really one of the most disingenuous appeals court decisions I've ever read. It starts out with this really magnanimous language it's just so like at the outside it is well to dispel any thought that this court is its brother's keeper as the type of reading to be indulged in since the advent of the printing press eminent scholars including some men of the bench and bar have uttered and written imperishable words in the defense of freedom of thought etc etc as we view this case we were only concerned with the proper application of a postal regulation it's so gross they're like yeah we're just you know basically the trial court court found this violated the Compact Act, and we agreed. And the Compstact Act of course, at the time, I wanted to make sure that we mentioned that before we continue on about the social context. As of the time that one was publishing, it was every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character. Not only that, but also anything, and this came up of course in the one case, which gave people the means to buy that kind of information or to find it or obtain it, right? So that was very important.

0:33:12 Jenessa: Get out of here

0:34:06 Matt: And then also, of course the Compctact Act just incidentally includes a the Board of Fashions, and that's actually how it came up in the Matthew Kaczmarek -Miffa -Bristone's case. And actually, part of Project 2025 specifically mentioned that we should use the Comstock Act to stop that stuff again.

0:34:19 Jenessa: If we need a reminder get bad laws off the books like do not trust that because a supreme court decision made it illegal it's fine that it's just sitting there someone will bring this thing back to life if you don't kill

0:34:35 Matt: Bad laws, bad law. And again, the Comstock Act, named after the guy whose official seal of his organization features book burning. Just to get that back in. I can only imagine how liberating this must have been to be able to buy a magazine that talked so frankly about your sexuality, that had some of the leading gay rights thinkers in the country, being as bold and as brave as they were writing about themselves, writing about the world they wanted to live in, writing very innocuous fiction about people of the same gender getting together. It's such a good read. Psychologically, what is the effect of being able to have access to something like this and to be able to speak so openly about your own sexuality, especially in a time like 1958?

0:34:43 Jenessa: It god yeah yeah it's so much more than just free speech for the sake of free speech what we're looking at here is a chance for people to connect even if that's you know we're not talking about the internet right you're not Talking to each other but a chance for people to have connection with community, especially if you're somebody in a very rural area, in a conservative area where you don't feel free being open. Most people didn't back then. To be able to see how other people are feeling the same way, that you are not weird, you are not a problem. I'm sure everybody's had the experience at some point in their life of of feeling like you don't belong in a particular setting. Yeah, obviously, if you feel that all day every day, that is extremely distressing. So having this outlet is going to be huge, right? And I have some data. It may be a little outdated from the last time I looked at this, but the important part is the context of all these pieces together at that time period. This was comparing gay men and lesbians to bisexual people. And at the time this survey was done, they were among many questions. They were asking, are you out to all or almost all of the most important people in your life? So presumably like friends and family you're close to. Yeah, you don't have to be out to everyone you bump into on the street. Right. At the time this survey was done, that was 77 percent of gay men said that 71 percent of lesbians and only 28 percent of bisexual people. And at that same time, we're seeing among bisexual people higher rates of depression, higher rates of anxiety, higher weights of domestic violence, higher rate of sexual assault, all kinds of negative outcomes in life in general and in relationships as well, where people are feeling vulnerable, they're feeling unable to reach out to their community, to their friends and family. You can't talk about your relationship, so you're not getting that feedback about get out of this situation. That is something, having a support network is one thing that really helps people get out of domestic violence. So we're seeing at a time when gay men and lesbians, about three quarters are out to most of the people in their life. And for bisexual people, about Three Quarters are not way worse mental health outcomes for bisexual People. And a lot of pressure that bisexual people are expressing around like, yeah, you know, I can't tell anybody there's a really common trope that I see of like even today if you come out as gay it's like oh okay great you told us and when people come out is bi especially if they're in a relationship at that time it's like well why are you telling me I I don't need to know that that's gross why are telling me what you do in the bedroom and it's like if you think about sexuality as like just a thing you do sometimes that's where where this attitude is coming from. And this can be really harmful. But if you think about it as part of someone's identity, I think it becomes more obvious why people do need to be out. Even if you are dating someone at the time, even if you were married at the same time, you're still, you don't become straight or gay when you date someone. It's not like bi people exist in a quantum superposition of not

0:38:28 Matt: Right. Right? That's it's personal yeah sure sure

0:39:05 Jenessa: Having a sexuality until you're partnered. So the importance of this becomes very clear when you look at that data. The like, oh, why are you telling me gross? I don't need to know about your bedroom. Actually, you do. They do need to be able to tell you about a core part of their identity in order to create mental well -being and safety. I know I didn't come out until I was 26 and my whole life I just kind of felt like I was keeping a dirty secret and like as we don't keep secrets when it's not bad right like even if we don'T think it's morally bad like diarrhea doesn't make you a bad person but like we keep it secret because it's gross and I don't want to hear about it like there's always going to be this feeling if you are keeping something back that it's gross and bad and embarrassing and weird and you're not sharing because it's bad and so the mere act of sharing is just like this weight off your shoulders of like oh I'm not lying anymore and I'm Not keeping secrets and i'M not gross actually i'M just me it's so important for people. So take that same context. These surveys were done in the like 20 teens, late 20 teens early 2020 era. Go back to 1950. What percent of people do you think were out to all or almost all of the people in their life?

0:40:33 Jenessa: Like nobody? Because it's not safe then. The importance of this cannot not be overstated that some kid who is feeling like, oh my God, oh my God. Oh my God there's something wrong with me. Oh, my God is going to be able to have access to adults who are saying hi, I'm alive. I'm happy. I am healthy. I live my life. I am normal. This is normal. You are okay. That is huge and the extent to which that empowers anyone to come out is life Life saving, life affirming.

0:40:33 Matt: Sure yeah sure no no doubt no doubt

0:41:11 Jenessa: I think it's really important to emphasize that like a lot of times we talk about free speech things. It's like, well, you have a right to say like most of my textbook in law school was like, I swear to God, it was like three quarters of the cases felt like they were all about the Klan. Like just, well, they have a right to say, and it's like, this is one I never learned about, but this is so socially important that you be able to express. I don't think it's important that you be able to burn a cross, but it seems pretty important that you be able to share who you are. The data is making that clear for us. Yeah?

0:41:44 Matt: Right and this came up as recently as Scrimeti just in the last term where I mean chase strangio arguing obviously for the aclu got some heat because of like so I mean this was painful and this is already cringe but it's going to be so cringe and just I I have to think in just a few few years about the difference between risk of suicide and actual attempted suicide and actual carried out suicide. And they're like getting into the fine points of like how suicidal you're going to be if someone doesn't accept your gender identity. It's like, why are we even arguing about this? This is horrible. I mean, like, it's so obvious that if a kid doesn't feel like they're supposed to be the thing that they are, the person that they're at risk of massive mental health problems. I don't have to be a mental health professional to know that. These people pretending like they want to split these hairs. I mean it's just so offensive. Yeah.

0:42:29 Jenessa: Why would we ever play with what percent of kids dying by suicide is acceptable? Like, how about zero is a thought I have. Every one of those deaths is preventable.

0:42:37 Matt: And what about the parents, right, to support them and to do, you know, the thing that is best for them and then their doctors, right? To advise them, right. And I know that was important in Scrimeti, right ? That's just, I didn't even really think about this when we started recording that we can tie in this very important gay rights case to an unfinished matter of queer rights in this country and really one of the most important civil rights issues of our time. This work is not done yet. It's still continuing, but at the same time, we're here to celebrate good Supreme Court cases, not to talk about the bad ones.

0:43:10 Matt: We've already talked about Scrimeti for multiple episodes, as important as it is. And I just want to point out that this 1958 decision, this simple one -sentence finding that the Roth test covers and that it wins under the Roth Test, which is very funny to me because the pictures of topless women, and again, I didn't go through every issue of Aphrodite, which, you know, maybe I'll go back and check it out later.

0:43:30 Jenessa: Report back.

0:43:32 Matt: I mean, it definitely had much more visual stimulation going on.

0:43:36 Jenessa: I didn't see any of that in the little bit of one magazine I flipped through

0:43:41 Matt: They were very careful. They really knew what they were doing. And you can tell from their legal counsel's foreword here.

0:43:45 Jenessa: So does that mean the because they were sued or well because they sued over that particular issue does that means their attorney's opinion statement on that was like evidence essentially oh fun clearly

0:44:00 Matt: It's amazing. That's the other part of this I meant to mention, is since we're talking about the Ninth Circuit decision, which is, again, we can learn a lot more from the Ninth Circuit decision than we can from the Supreme Court decision, because there is no Supreme Court Decision, which is fine. They're taking up the argument that, well, obviously, even if you think, and you're wrong, but even if you think that this Sappho -remembered story is obscene, what about the fact that this is obviously a magazine that is extremely highbrow, it is intellectual, it for people to read and understand a misunderstood portion of society, right? Like, doesn't it have social value? And they make the point that it doesn't matter, that as long as they're objectionable passages, it doesn'T matter the proportion they bear. 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 person 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. Filthy. Filthy actually had a legal meaning at the time. And I will point out the little thing, a little boilerplate they have at the beginning of one magazine, describes it as a non -profit corporation formed to publish a magazine dealing primarily with homosexuality from the scientific, historical, and critical point of view. Now again, that's just what they say about themselves. To research and promote the integration into society of such persons whose behavior and inclinations vary from current moral and social standards. It's beautiful. It is perfectly written. Again, lawyers vetting the whole thing.

0:45:25 Matt: And they still end up being seized by the postmaster and saying this is non-mailable material under the Comstock Act. Again, major progress since 1958 that you can openly talk in print about being gay and discuss gay issues. We have a long way to go, obviously, but let's talk about what happened after Roth, sort of the development of obscenity law. And as I said, throughout the 50s and 60s, now, of course, the Roth standard opened up a new possibility of publication. And so there's all kinds of stuff that started to come out. We've joked about this before on the show, but the Supreme Court did actually have regular viewings at one point when they started getting all these obscenities cases. They started trying to consolidate them. They had to go into the basement and watch this stuff.

0:46:00 Matt: It was that very famous Scandinavian porno that's like yellow is the color or whatever. It's pretty tame by today's standards as well, but they had to sit there and watch it.

0:45:58 Jenessa: Women at on the court at this point by the way important to note no.

0:46:10 Matt: Yeah, just a bunch of dudes on a Friday night hanging out watching 70s porn. Yeah. The Miller test is the one that people know about for obscenity. The Roth test did not survive quite as much. Now, the Roth test, it did survive mostly intact, but there was a very important part of it. The utterly without redeeming social importance didn't really cut it. That's not a good test.

0:46:29 Jenessa: What does that mean?

0:46:31 Matt: Right. And Miller actually involved another bookseller, and the brochures in question that got him in trouble and prosecuted for obscenity advertised four books entitled, quote, Intercourse, Man-Woman, Sex Orgies Illustrated, never miss an issue of that, and a film entitled Marital Intercourse. While the brochure contains some very descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities with genitals, often prominently displayed. So the Miller test decided that they needed to go a little further and they needed to add to this definition, whether the work taken as a whole, lacks serious literary, artistic, political or scientific value. I think that's the one you're thinking of, you know, whether it's just trying to be prurient, whether just being completely perverted or not. A lot of these things, obviously, because we're talking about community standards, we got into a whole new world when it got to be the internet, because there was a companion case to Roth, it was called Alberts, which determined that the federal our government can have a much looser definition of obscenity. The states are allowed to have a stricter definition, which is the way the First Amendment works.

0:47:34 Matt: But when you start to get into this community standards thing and you open it up to the entire internet, you're no longer talking about the community standards of Temecula, California or Westford, Massachusetts.

0:47:41 Jenessa: The internet, which has no standards at all, basically. Ugh.

0:47:47 Matt: That's right. So it really threw the door wide open. And obviously, community standards have changed. And the way that we talk about things have changed, and even just the concept of talking about homosexuality in public has changed. So now, obscenITY at this point is limited, I think, in a very good way, in the way I think that William Douglass would appreciate and the other dissenters in these cases who were arguing that we should not be leaving it to community standards because juries can be pretty biased in some places against some pretty basic stuff. Now we have things like the animal crushing videos. I don't know about this whole thing.

0:48:13 Matt: It's horrible. I know. I hate to have to talk about it. This is actually the most obscene thing we're going to talk about today, the fact that there were these videos where, you know, women were crushing animals on high heels. And that was deemed obscene, obviously, because it's animal abuse. Obviously, child pornography is obscene. Anything involving children is obscene in this kind of way, if it's for the prurient interest. So we still do have these things that are outside the bounds of, you know, beyond the pale of what we accept in society. And you can be prosecuted for things that feature animal and child abuse, as you should be, because you're just, that's visual representation of a crime. And that to me is about as far as obscenity should go. I don't think that there should be anything else. You might remember the last gasp of trying to prosecute obscenities was under John Ashcroft, the Bush administration. Ashcroft Free Speech Coalition in 2002 struck down two overbroad provisions of the Child Pornography Prevention Act of 1996, because it did include a lot of protected speech. Some of the people involved included somebody who painted nudes and a photographer specializing in erotic images, but not necessarily specifically involving children. The court already had held long ago at that point that it was okay to criminalize child pornography, which nobody can really disagree with. But Ashcroft was all about this sort of broader definition. Anything that conveys the oppression that you're talking about, like teenagers involved in sex, the Supreme Court pointed out that Romeo and Juliet is about teenagers involved in sex, right? So the artistic merit of a work does not depend on the presence of a single explicit scene, which is certainly something that the Ninth Circuit could have learned from in One Ink. We're at the point now, I think we've gone through quite a lot in American obscenity law, but I think we've reached the point where there's a pretty good balance, where the stuff that has any chance of being prosecuted as obscene has to be completely outside the bounds of humanity, basically, of what human decency, not just like stuff that some people think is offensive or gross.

0:49:55 Jenessa: So it's not like mere pornography does not count.

0:50:00 Matt: As of now, of course, Project 2025 specifically was saying that they think that pornography should be criminalized again, and it's time to start actually prosecuting people for making pretty standard depictions of sexuality. So these people are still out there. They still want this stuff to be a crime. We're not past it. But I'm still very impressed with the work and the progress that One Ink was able to make with their publication and with everything that we've been talking about today, sort of pushing things forward. We need these people to make sure that we stand up to these laws and preserve the First Amendment as it is.

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0:51:57 Ad: [Ad break 3 — ad music]

0:51:57 Matt: So I thought this was a really good place to talk about the Warren Court's obscenity sort of progression, because it was a real important part of 20th century constitutional law. It's the kind of stuff you, like, everybody knows by the time you're done with law school, you know the Miller test. I remember reading about Roth as well, but I'd never heard about this one. So I just thought it was an interesting little footnote in, I mean, it's not really a footnote of gay rights history. It is a very important part in all of this, but it is sort of a footnote in legal history because it's really not an opinion you're going to cite or think about very often. But just the way it got to the court and what it actually means for society and what it means for people who need to be able to be themselves and talk about being themselves, I think it's really important. So yeah, I was pretty excited about this one. Yeah. Any other closing thoughts?

0:52:36 Jenessa: It's just nice to see a court say every once in a while see this other decision it's really obvious not sure what you guys miss

0:52:41 Matt: Yeah. Did we stutter? Yep. There it is. Well, I'll just read from this before we close here from the essay that I was talking about from One Ink here.

0:52:45 Jenessa: Yeah

0:52:54 Matt: Along with all other self-respecting human beings, there are a great many homosexuals who seek spiritual dignity and social usefulness. To the extent that we achieve these, we'll find not only the ties which can lead us onward toward the solution of common problem, but we'll also discover deeper bonds, bonds of mutual respect and self-esteem, which reach through all barriers of misunderstanding, wherever those may exist. Bonds from which can be forged the realistic sense of brotherhood that in the end can unite all of humanity. It's a very nice thought and something that wouldn't be possible if the Supreme Court had determined that just talking about being gay is obscene. I know this is very much in the category of, we can't really give them an A for this, but that's

0:52:53 Jenessa: Hmm yeah right hey it had to happen sometime somebody had to say

0:53:32 Matt: Right. And, you know, as somebody who clearly remembers in law school, when the Supreme Court finally found that it was legal to be gay in America, I was surprised to learn that in 1958, they found it was illegal to talk about being gay at a time when it was still a crime in so many places. There are so many people who came before us and generations before us that made so many of these advances possible and that suffered pretty badly. And I think it's important to remember them and to honor the heroes that put together One Ink and the writers and editors and everybody who put themselves out there, the lawyers who helped to contribute to it, right, to push things forward. And this is many, many decades before I think there was a serious consideration that they were going to be able to marry, that they would be able to receive legal benefits and legal rights. But this is a world that they could see in view. And it's really inspiring to me to think about as somebody who is trying to fight for a world that I think we can still see in view, even in the middle of everything that's going on right now. And as I always say, the abolition is about what's coming after us, not

0:54:23 Jenessa: Yes

0:54:23 Matt: Necessarily what's going to be in our generation, but we can still see a lot of the benefits today. But I think that it's amazing to read these stories about these people like Samuel Roth, who were pushing things forward, and about winning. Good for them, still being out there. Probably deserve a donation. These are true legal heroes, and I think it's great to highlight in a time like this to remember their contributions. So this is fun.

0:54:41 Matt: We'll be back next week with another fun Supreme Court case. I don't think we've narrowed it down yet, but we've got so many good options. Cases you may or may not have heard of. We will get to a couple that you have heard of sometime soon that maybe take a different look at some of the more famous Warren Court-era cases. I thought it was fun to start out with things like Timothy Leary and One Ink that people really haven't thought about.

0:54:58 Jenessa: Yeah, definitely. I never learned about this one and I wish we had talked about it and made everyone in the room uncomfortable.

0:55:43 Matt: I'm all about smut. I would love to find some smut. Sex Orgies Illustrated. Never miss an issue of that.