LOCATION: South Carolina State House
DOCKET NO.: 123
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 370 US 478 (1962)
ARGUED: Feb 26, 1962 / Feb 27, 1962
DECIDED: Jun 25, 1962
Facts of the case
Media for Manual Enterprises, Inc. v. DayAudio Transcription for Oral Argument - February 27, 1962 in Manual Enterprises, Inc. v. Day
Audio Transcription for Oral Argument - February 26, 1962 in Manual Enterprises, Inc. v. Day
Number 123, Manual Enterprises, Incorporated, et al, Petitioner, versus Day, Postmaster General of United States.
Stanley M. Dietz:
Thank you, Mr. Chief Justice, may it – may it please the Court?
The first argument, which I would set forth to this Court, I would divide into three parts.
I feel, since this is basically a question of obscenity, I feel the first point that I must cover is strictly factual.
You have four magazines before the Court and just a question of looking at these magazines as judges to see whether in the opinion of the Court, these magazines would revoke to the Court's definition, as laid down by Mr. Justice Brennan for the Court in its opinion in Roth versus United States.
This was not a criminal prosecution.
This is an exclusion from the mail case, is it not?
Stanley M. Dietz:
This, Mr. Justice, is a civil case based upon a criminal statute.
It is not criminal prosecution.
It is exclusion from the mails under the provisions of Title 18 1461 saying, “All obscene material is non-mailable.”
And then -- and then the same statute proceeds to make a criminal offense and make it a criminal offense for anybody who does mail it.
Stanley M. Dietz:
The same statute continues to place a penalty of five years imprisonment or a fine upon anyone who uses the mails to transit of obscene material.
And I think that you will find in the Government's briefs some argument even to the point that it wou -- it would be even a crime for the postman to carry it, according to their interpretation which I don't agree with the Government's brief, but looking at the individual exhibits, I have gone over each one, each page as indicated in the record from the testimony given by the Government's doctors and I have covered it very fully in my brief.
The first exhibit manual, April 1960 issue, the psychiatrist for the Government testified as to 16 bad pages out of possibly 48, one-third of the total context in the second exhibit, six out of 48 pages were covered, in the third, five out of 48 and in the last exhibit only four out of 48.
Now, in the Government's brief, they have outlined nearly something that they feel is wrong or revolting to the statute of -- in nearly every page.
I cannot go along with this.
I say that if this was so then this was something that psychiatrist should have testified to and not the Government's brief.
This brings us to a question of just what is meant by this Court in its definition in the Roth case.
The Post Office has picked it up.
As I understand it, the definition says that as to the average person, applying contemporary community standards, the dominant theme of the material considered as a whole must appeal to the prurient interest and the Government would argue that it's not to the average person.
I think they argue even further to this Court that this Court did not, in its opinion, intend to mean that obscenity must be judged on its effect upon the average person but only upon the average reader that is expected to receive or be the recipient of this material.
In the Post Office, they have changed this definition or this test of obscenity that this Court has laid down to one in which material is obscene if it would appeal to the prurient interest of a homosexual because they contain this material is deemed act homosexuals and only produced for homosexuals.
Of course this is one point that I would gladly argue.
We contend these magazines, if you examine them and see by volume, if nothing more the context is not for homosexuals, but is basically for the body builder, the person who is interested in large muscles and you may view each and every photograph in the magazine.
But this brings us to the second consideration, just what is this so-called homosexual audience?
What are they composed of?
I argue in my brief and to this Court that this is the word itself, homosexual is incorrectly used, homosexual, the word, the term.
This does not describe people.
This is a term that describes things that people do and therefore, the way that it's used by the Post Office, itself, makes a definition inherently vague and indefinite.