How Did a Gay Magazine Speak for Its Community in Anti-Gay 1950s America? | Stonewall at 50

There was some luck in the outcome, of course, but it played an important part in the development of the LGBT community.

The justices of the U.S. Supreme Court usually know when they are about to make history, and write long, elaborate opinions to match. But on January 13, 1958, all that came out of the courtroom, almost offhandedly, was a sentence of fewer than 30 words — one that did not even carry a signature:

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

The lawyer waiting in Washington did not hear about the ruling right away. Eric Julber, who was handling the case, did not even know that the justices had decided, days earlier, to take up this magazine censorship dispute. Just before he left for Washington, Julber had told Don Slater, a founder of the magazine ONE: "Out of every hundred cases that get appealed, they'll probably hear only one." He reassured Slater: "The justices are going to like this case. This is a chance to rewrite the law."

Word of the win did not reach the magazine's office until the next day. Jim Kepner, a staffer there, put down the phone and hurried to a newsstand, hoping to find some authoritative confirmation. There was nothing in the Los Angeles Times, and nothing in the papers from San Francisco. Finally, in a sidebar on page 35 of the New York Times, he found a passing line: "In one decision, the Supreme Court struck down a ban on a magazine dealing with homosexuality."

This was the chance to rewrite the law that Julber had talked about. In the suit between ONE magazine and the U.S. Post Office Department, which censored the magazine's content, the Supreme Court sided with the magazine, holding that what ONE published was not obscene and could therefore be distributed normally. The ruling protected ONE's right to express opinions and views on homosexuality, and historians today never tire of adding that this was the first time the Supreme Court had handled a case involving homosexuality. "By protecting ONE," said David Cruz, a law professor at the University of Southern California, "the Supreme Court helped homosexual culture and a sense of community flourish, at a time when the federal government was putting pressure on suspected homosexuals."

"[This lawsuit] put the gay community on the road to freedom," said Jonathan Rauch, a researcher at the Brookings Institution, an American think tank.

Back in 1958, no one had expected this. The victory came too fast, and too suddenly. Dale Jennings, another of ONE's founders, took a call at home from a friend with the good news. Jennings lost his temper on the phone: "Listen, stop joking. If this were the year 2000, we might win. But not today."

Jennings had every reason to doubt it. In the 1950s, after the end of World War II, the economy was booming and everything looked to be thriving — but the conservative mood covering the whole of society would not lift until the baby boomers, who had never known the wounds of war, reached their teens. And while traditional values still had America in their grip, Cold War ideological persecution began to eat into the right of homosexuals to make a living.

"In 1950, the federal government began an unprecedented effort to identify and remove homosexuals working in every branch of government," Joyce Murdoch and Deb Price wrote in their book Courting Justice: Gay Men and Lesbians v. the Supreme Court. In the federal government's eyes, homosexuals, like Communists and civil rights activists, were a danger to American democracy as it then stood. J. Edgar Hoover, the FBI's first director, declared in 1960 that "the three groups that pose the greatest danger to America are Communists, Beatniks, and eggheads" — an allusion that took in the whole homosexual community.

Research by John D'Emilio shows that from 1953 on, the federal government ran a systematic campaign to control the homosexual community, and directed the FBI to build a surveillance system aimed at homosexuals. "Local FBI field offices also gathered data on gay bars and compiled lists of other places gay people frequented." The federal government's actions produced a great many victims among homosexuals, and Jennings was one of them.

Dale Jennings left the world two portraits of strikingly different character. In round-framed glasses, his hair slicked back, he looked refined, like a young man who worked at a law firm. Take off the glasses, grow out the beard, and he had something of the American Western cowboy about him. He was born in Texas and grew up around Denver, served in World War II, and after his discharge studied film for two years at the University of Southern California. After three short marriages, he came to see that sexual orientation should not be limited to heterosexual and homosexual. Orientation was a spectrum, he believed, and boxing it in with any single label was dangerous.

In 1952, Jennings turned 35. One spring evening, he set out to see a movie. He tried two theaters and found nothing he wanted to watch at either. On his way to a third, he passed a public restroom, and when he came out he found a "big, rough-looking" man watching him. The man followed him all the way into his apartment. Jennings thought at first that he was about to be robbed, then realized this was a police officer entrapping homosexuals. The officer showed his badge and took him back to the station in handcuffs.

Entrapment of homosexuals was routine at the time, and did not ease off until the late 1960s. Most such cases never reached a courtroom. But Jennings was handed to a prosecutor and charged. After ten days of trial, the jury found him not guilty in early July by a vote of 11 to 1, and he was released on the spot — but his anger did not cool.

Jennings belonged at the time to a gay rights organization, the Mattachine Society. He came to see that some of his colleagues, while backing his appeal, did not believe his account of what had happened. And having lived through the case, he also came to feel that the Mattachine Society's work so far had been too closed-off, weighted toward educating the homosexual community itself rather than toward political action addressed to the general public.

In October 1952, a group from the Mattachine Society gathered at a bookstore on Hollywood Boulevard. By the end of the meeting they had decided to start a magazine, to change the stereotypes more people held about homosexuality. Those present would later disagree about whose idea the magazine had been, but in the more widely told version the credit goes to Jennings. Jennings became the magazine's vice president, Slater took the role of secretary, and Martin Block was president. The three of them made up the first editorial board, and Jennings took on the work of editor-in-chief.

In January 1953, drinkers in downtown Los Angeles bars began finding this new magazine on the premises. It was thin, twenty or thirty pages, priced at 20 cents — less than US$2 today — though it was usually marked up and sold for 25 cents, about the price of a beer at the time. The cover of the first issue still looks odd today: on a lead-gray ground, three purple vertical stripes ran across the middle-right of the page, wrapping around the magazine's name, ONE. A few lines of small type below listed the articles inside: "To Be Accused Is To Be Guilty" and "Report to the California Legislature."

In "To Be Accused Is To Be Guilty," Jennings let out his anger and confusion without restraint. "The moment I was arrested, my name lost its good repute. This case will stay in my file, where anyone can see it, for the rest of my life. In a situation where to be accused is to be guilty, a person's good name has no value and no meaning at all." Jennings set ONE's radical, bold early style. Decades later, in a letter to Slater, he admitted that his fierce, contrarian methods at the time had a lot to do with how little he thought of himself.

The first issue of ONE was printed in the basement of Jennings's sister's home, and finding outlets willing to sell the magazine was not easy either. On many nights the founders stood in the street looking for passersby who might be interested, selling copies one by one. But ONE caught on quickly, on the strength of its subject, its searching arguments, its bold editorials, and its consistent design. Within a few months circulation had passed 2,000 copies, reaching 5,000 by the late 1950s. Historians today all count ONE as the first homosexual magazine in America to gain national influence. And as its influence grew, ONE began taking a great many mail subscription orders — and ran headlong, as it had to, into censorship by the Post Office Department.

The United States Post Office Department, founded in the late 18th century, was an independent agency under the federal government, responsible for carrying the mail nationwide. It held the power to censor because in 1873 Congress passed a federal law banning the mailing of "every obscene, lewd, lascivious, and/or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character." The same law authorized an anti-obscenity office inside the Post Office Department. Since a magazine's distribution then depended entirely on the shipping channels the Post Office provided, ONE was bound sooner or later to fall out with it.

In fact, in 1953, the year ONE was founded, the local Los Angeles post office impounded the August issue, because the cover carried the words "Homosexual Marriage?" Although ONE consisted mostly of text and contained no nude images in any sense of the word, the postal authorities held that the very concept of homosexuality was "obscene, disgusting, unacceptable, anti-Christian, and contrary to the American spirit." The Post Office therefore judged the content out of line and indecent. The Los Angeles post office held that batch of magazines for three weeks.

The Los Angeles post office struck again the next year, at the October issue. Some accounts hold that the real trigger was a U.S. senator who, on seeing ONE's March 1954 issue, was so enraged that he wrote to the Postmaster General, charging that letting a magazine about homosexuality circulate in America violated moral standards, corrupted young minds, and harmed national security. Others believe what angered the Post Office was the October cover: "You Can't Print It." That line, together with several cartoons inside and a mild article about lesbians, was read as a direct provocation aimed at the censors. Otto Olesen, the Los Angeles postmaster, made up his mind and banned ONE outright.

Julber, the lawyer, was a young man of 30 at the time, working mainly on criminal cases. He met ONE's founders in 1952, when they were looking for a lawyer to help draft the charter of the corporation that would compile and publish the magazine. Not many lawyers were willing to work for a magazine that spoke for the homosexual community, but Julber's interest in civil rights led him to take the job. He was, in fact, the author of "You Can't Print It," the piece on the October cover, in which he set out, from a legal standpoint, several ways ONE could work around the risk of postal censorship. In that sense it followed naturally that Julber became ONE's legal representative and sued Olesen, charging that the Post Office Department had violated the free speech clause of the U.S. Constitution.

Few in the legal profession approved of what Julber was doing; they thought it was a moth flying into the flame. But he later explained his reasoning: "I thought this was a very winnable case. They weren't running a nightclub. They were just putting a magazine together. It's a very conservative magazine. It's only that its subject — homosexuality — makes it look a bit 'explicit.'" So along with accusing the Post Office Department of violating free speech, he also accused it of discriminating against the homosexual community.

Julber was being somewhat naive. In March 1956, the Los Angeles district court upheld the Post Office's ban. In February 1957, the Ninth Circuit Court of Appeals in San Francisco again sided with the Post Office.

Judge Thurmond Clarke of the Los Angeles court put a textbook set of prejudices and stereotypes about homosexuals on display in his opinion. Citing a piece of fiction in the magazine, in which a woman remembers falling in love with her roommate and then decides not to marry the boyfriend she has known since high school, Clarke held: "[This passage] was obviously written to arouse the lust of the homosexual reader." He also wrote in the opinion: "This court does not support the claim that homosexuals should be recognized as a group within society."

Slater and Jennings were badly shaken when they read the ruling. ONE could still be distributed outside the postal system, sold at newsstands on the street, but the court's decision was a serious threat to the whole homosexual community. Julber tried to persuade the two founders to take the case further, to the Supreme Court. On June 13, 1957, the case, along with a nine-page appeal Julber had written, arrived at the offices of the Supreme Court justices. And no one could have foreseen that another case then before the Court would carry hope of victory to ONE.

That case was Roth v. United States.

Samuel Roth was born in 1893 in a mountain village in Austria-Hungary. At 11, he boarded a ship bound for New York with his parents and 200 other immigrants. He loved literature, and the poetry of Keats, Shelley, and Swinburne. At 23, on the strength of poems and essays he had published, he won a scholarship to Columbia University. A few years later he persuaded his wife, who ran a small bookstore in New York, to start a business with him publishing literary magazines and mail-order books, specializing in "soft erotica by writers such as Zola, Balzac, Maupassant, and Flaubert."

"Later, perhaps fed up with moral standards and with being poor, and hoping too to make up for the money his wife had lost, Roth boldly moved into the underground literature business," Gay Talese wrote in his nonfiction book Thy Neighbor's Wife. "He hoped to make his fortune selling erotic works from the past, such as the 14th-century Arabic sex manual The Perfumed Garden, whose illustrations showed 237 possible positions in which a man and a woman might 'meet.'"

From the 1930s on, Roth suffered for his business. First he was sentenced to three months of hard labor on Welfare Island, now Roosevelt Island; then, in 1936, he was sent to a prison in Pennsylvania for three years. In 1954 his office was raided and more than 50,000 books and magazines were seized as obscene. In 1955 he was caught up in another federal case. This time, after appeal upon appeal, Roth's case finally came before the Supreme Court.

Roth saw himself as a defender of freedom. Talese wrote: "Anyone who tried to restrict reading or writing was Roth's enemy, and so he let his whole life pass in conflict and retaliation." The Supreme Court did not share his view of himself. In April 1957 the justices heard both sides. The decision came two months later. By 6 to 3, the majority upheld Roth's conviction; Chief Justice Earl Warren was especially angry at Roth, holding him a man who pandered to the public with cheap advertising, even if the books he published were not themselves obscene. Roth's five-year sentence stood, and those who favored the censorship of obscene material rejoiced.

Yet the subtlety of the law lies here: although Roth v. United States was, for Roth himself, a bad and tragic outcome, in the majority opinion Justice William Brennan laid down a standard for obscenity: "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest."

American lawyers came to call this the Roth test. Like many legal figures of the time, Talese believed the Roth test meant that "a book or a film, so long as it offered even a shred of 'social value,' could escape censorship… As the Supreme Court overturned one obscenity conviction after another, banned novels and green art films were suddenly rescued by the Roth test."

The actual course of history was, of course, more tangled than Talese described. What counted as pornography and what should be banned stayed contested throughout the American legal system, and the Supreme Court's justices went back and forth on it more than once. But at the time, the Roth test did mean that obscenity charges became harder and harder to make stick. That may also explain why the Supreme Court treated the ONE case with a certain carelessness: the Court as a whole believed the Roth test was enough to establish that ONE was not obscene, even though the nine justices plainly still disagreed about the case, and the vote, not made public at the time, was in fact only 5 to 4.

In this case the outcome did more work than the process. The most direct result, as Courting Justice puts it, was that "even as other parts of the federal government held strong hostility toward the homosexual community, homosexual content in a publication was not inherently the same as obscenity. A homosexual magazine could legally be distributed through the U.S. mail." In other words, the homosexual community had won a legal place to exist and to be heard in public debate. Two months after the ruling, FBI director Hoover, who had used the Justice Department and the Post Office to try to force ONE to close, stopped all such moves.

Fifty years later, Julber said: "I believe this was an important case, because it told the homosexual community that they had the right to express their own views, and the right to write their own history." From 1958 until 1967, when internal splits closed it down, the magazine spoke for the homosexual community throughout.

The most recent research, by historian David Johnson, argues further that ONE, together with the more commercial and entertainment-minded physique magazines of the time, made up the earliest homosexual community consciousness. ONE's readers wanted more practical information — pen pals, bar gatherings and the like. The physique magazines, for their part, told readers about the serious reporting and commentary on homosexuality that ONE carried. Both kinds of need were indispensable parts of that community consciousness.

In the new issue of ONE published in February 1958, Slater looked greatly heartened by the Supreme Court's ruling. "With this victory, ONE has not only made history, it has made law. This will change the future of homosexuals in America." In private, though, everyone stayed cautious.

Jennings said: "God, this came so fast. I thought I'd be old before I saw a result like this." And remembering that day, January 14, 1958, near the end of his life, Slater said the whole editorial office was only a little more excited than usual, because they all broadly understood that the Supreme Court's decision "was, in a way, out of step with the wider climate of the time."

"Of course we did breathe a sigh of relief. We could be freer in what we wrote and how we edited," Slater said. "It wasn't long before our cry for gay rights broke out."

At that point, the Stonewall riots were eleven years and six months away.

In our next installment, we turn to Greenwich Village in New York, home of the Stonewall Inn. Why did this neighborhood become a refuge for the whole LGBT community of the day, and the cradle of the modern LGBT movement?

References:

Vern L. Bullough: Before Stonewall: Activists for Gay and Lesbian Rights in Historical Context

John D'Emilio: Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940-1970

George Haggerty: Gay Histories and Cultures

David Johnson: Buying Gay: How Physique Entrepreneurs Sparked a Movement

Joyce Murdoch, Deb Price: Courting Justice: Gay Men And Lesbians V. The Supreme Court

Gay Talese: Thy Neighbor's Wife

Whitney Strub: Obscenity Rules: Roth v. United States and the Long Struggle over Sexual Expression