Eric Rasmusen’s Weblog

Over at
Volokh Conspiracy there was discussion of the recent arrest of someone in
England for passing out anti-homosexual passages from the Bible. Clayton Cramer
asked, in the comments, whether anyone ever had heard, at any time in history,
of someone being prosecuted for advocating pro-homosexual views. I’ve wondered
about that too. It’s quite plausible that somebody was— but I’ve never heard
of an actual example. Another comment purported to find one in the case of ONE
magazine in the 1950′s, a magazine advocating homosexuality. It turns out, though that the ONE case is just an obscenity case, and doesn’t involve non-obscene speech.

Here is what the
comment said:

Once issued, however, The US Post Office siezed 600 hundreds copies of the first
issue, declared it obsene. J. Edgar Hoover, head of the FBI, became obsessed
over the issue, and was determined to crush ONE, and began investigations on any
criminal sanctions that could be imposed on the mag or the people behind it. ONE
filed a lawsuit, lost at every level, but finally the SCOTUS ruled in its favor.
One v. Olesen (1958). Part of the reason SCOTUS ruled it favor of One is
specifically because the mag merely talked about homosexuality, and did not
ADVOCATE in favor of it. Had the mag taken the step of advocacy, the ruling may
well have turned out differently.
In any case, it is clear that in 1958, mere advocacy of homosexuality would get
you introuble with the FBI, the Post Office and possibly many other
instutitions. (Source: Courting Justice: Gay Men and Lesbians v. the Supreme
Court, by Joyce Murdock and Deb Price). Deb Price is a columnist for the Detroit
Free Press.

Actually, that’s wrong. Apparently one can’t trust pro-homosexual sources.
Clayton Cramer, in another comment, points out the Supreme Court reversed with a
very short per curiam opinion that merely cited its Roth decision
without further explanation. Lack of advocacy was not part of the reasoning. The
entire opinion in One v. Olesen, 355 U.S. 371 (1958) is two sentences long:

PER CURIAM.

The petition for writ of certiorari is granted and the judgment of the
United States Court of Appeals for the Ninth Circuit is reversed. Roth v. United
States, 354 U.S. 476.

Well, but how about all the lower courts? I found the 9th Circuit opinion, and
we learn that what the case was all about was the sending of obscene material
by U.S. mail. It turns out that there was no prosecution of the magazine at
all. Rather, the lawsuit was started by the magazine, which asked the
court to issue an injunction forcing Postmaster-General Olesen to send the
magazine by U.S. mail, contrary to his claim that the magazine contained some
obscene pages.
One v. Olesen, 241 F.2d 772 (1957, 9th Circuit). Moreover, the obscenity
was not related to the advocacy of homosexuality, but rather involved
such things as a short story, a poem, and an advertisement. Here are some
excerpts from the opinion:

In the trial court, the parties stipulated that the only issue involved was
whether the October 1954 issue of ‘One’ is non-mailable matter under the
provisions of 18 U.S.C.A. § 1461 , and that such issue should be determined on
the motions for summary judgment and the affidavits filed by each of the
parties….

The trial court in Paragraph 6 of its Findings of Fact, referred to by plaintiff
in its specifications of error, made [**4] the following findings:

1. The story ‘Sappho Remembered’ appearing on Pages 12 through 15, is obscene
because lustfully stimulating to the homosexual reader.

2. The poem ‘Lord Samuel and Lord Montagu’, appearing on pages 18 and 19, is
obscene because of the filthy language used in it.

3. The advertisement for the Swiss publication ‘The Circle’ appearing at the top
of page 29, is non-mailable matter because it gives information for the
obtaining of obscene matter….

Plaintiff, as publisher, states on the second page of the magazine that it is
published for the purpose of dealing primarily with homosexuality from the
scientific, historical and critical point of view — to sponsor educational
programs, lectures and concerts for the aid and benefit of social variants and
to promote among the general public an interest, knowledge and understanding of
the problems of variation. The story ‘Sappho Remembered’, appearing on pages 12
to 15 of the magazine, the poem ‘Lord Samuel and Lord Montagu’ on pages 18 and
19, and the information given [**13] on page 29 as to where to obtain ‘The
Circle’, a magazine ‘with beautiful photos’, do not comport with the lofty
ideals expressed on page 2 by the publishers.

The article ‘Sappho Remembered’ is the story of a lesbian’s influence on a young
girl only twenty years of age but ‘actually nearer sixteen in many essential
ways of maturity’, in her struggle to choose between a life with the lesbian, or
a normal married life with her childhood sweetheart. The lesbian’s affair with
her room-mate while in college, resulting in the lesbian’s expulsion from
college, is recounted to bring in the jealousy angle. The climax is reached 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.

The poem ‘Lord Samuel and Lord Montagu’ is about the alleged homosexual
activities of Lord Montagu and other British Peers and contains a warning to all
males to avoid the public toilets while Lord Samuel is ‘sniffing round the
drains’ of Piccadilly (London). The poem pertains to [**14] sexual matters of
such a vulgar and indecent nature that it tends to arouse a feeling of disgust
and revulsion. It is dirty, vulgar and offensive to the moral senses….

Plaintiff contends that the magazine ‘One’ when read as a whole is not obscene
or filthy within the meaning of these words. In Besig v. United States, supra,
we held that the book as a book must be obscene to justify its libel and
destruction, but we also [**17] held that neither the number of the
‘objectionable’ passages nor the proportion they bear to the whole book are
controlling. 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 persons 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.

So: has anyone heard of any cases of anyone ever being prosecuted for pro-homosexual speech, or even for, say, being fired from a college job for it, ever?
I’m sincerely interested.

This entry was posted on Wednesday, September 13th, 2006 at 8:48 pm and is filed under Law, Social Reg, Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.