1958: The Year That Writing About Gay Rights Became Legal

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I’m familiar with the usual highlights of the gay rights movement, but not much more. So I found today’s article by David Savage about the 1958 Supreme Court case ONE vs. Olesen pretty interesting. Lower courts had ruled the Los Angeles magazine ONE obscene and therefore illegal to ship by mail, but a young lawyer named Eric Julber persuaded the editors to appeal to the Supreme Court:

By coincidence, the Supreme Court was struggling at the same time with the question of obscenity in a case involving Samuel Roth, a New York book dealer, who was appealing his conviction for selling sexually explicit books….”All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties” of the 1st Amendment, said Justice William J. Brennan in Roth vs. United States, handed down on June 24, 1957. “Sex and obscenity are not synonymous,” he added.

With that ruling fresh in their minds, several Supreme Court law clerks read Julber’s petition — as well as the magazine itself — and advised the justices it was not obscene. “This was an easy one for the liberal justices. It was a speech case,” recalled Norman Dorsen, who was then a law clerk to conservative Justice John Marshall Harlan and would go on to lead the national ACLU from 1976 to 1991. But even the conservatives were not in favor of censorship practiced by the Post Office.

“The conservatives on the court then — Felix Frankfurter, Potter Stewart and Harlan — were not like the real conservatives we have now. They were more tolerant,” he said. Brennan, the author of the Roth opinion, looked at all the petitions on his own. He would have seen the magazine and its supposedly obscene articles. After taking several votes, the justices decided on a simple, one-line ruling issued on Jan. 13, 1958, reversing the 9th Circuit decision.

This is obviously a bit of local color for us Southern Californians, but also an interesting tidbit in the history of gay rights for those of you who, like me, had never heard of it before. Worth a read.