The 1953 and 1954 magazines | One.USC.Edu | 15003
1953, an era when FBI Director J. Edgar Hoover was routing out “sex deviates” from the government and homosexuality was a crime in every state, and … Los Angeles, where volunteer writers and editors launched a new “magazine for homosexuals”.
ONE, as it was called, offered thoughtful articles, defiant editorials and none of the racy photos or sex ads often found in today’s gay press. “The first issue was sold in bars in the Los Angeles area for 25 cents, about the price of a draft beer,” said Michael C. Oliveira, an archivist at the magazine’s archives housed at the USC Library.
The magazine was immediately banned by the U.S. Post Office as “obscene.” The cover story of the first issue censored by the postmaster, asked “Homosexual Marriage?”
ONE vs. Olesen was largely forgotten until recently, but nevertheless scored the first gay rights victory at America’s highest court. Now, the high court is expected to revisit the gay rights issue, deciding soon whether to hear a case to determine whether gays and lesbians have a constitutional right to marry.
Eric Julber, now 90 and living with his wife in Carmel, Calif., is a surprising hero in the ONE saga. A new attorney with an interest in civil liberties, he was asked to write an article for ONE about the threat of government censorship and how to avoid it. His piece, titled “You Can’t Print It!,” became the cover story of the October 1954 issue — and the second target of a postal service seizure.
Julber, who was 30 at the time, promptly agreed to represent the magazine’s editor pro bono.
“I said I would take their case, and I wouldn’t charge a fee,” said Julber, who grew up in Los Angeles, where his musician father worked at a Hollywood studio. “I thought they had a strong case. They were not running a night club. They were writing a magazine. It was a very conservative magazine. It was just the subject matter — homosexuality — that made it ‘obscene.'”
Julber filed suit against Los Angeles Postmaster Otto Olesen, contending the seizure of the magazine violated the constitutional principles of free speech and equal protection. His suit contended ONE was subjected to discriminatory treatment because of prejudice against gays.
The case looked unwinnable in 1953-6. Federal judges in California were not ready to approve this type of magazine. U.S. District Judge Thurmond Clarke in Los Angeles handed down a two-page opinion in March 1956 upholding the Post Office’s decision that ONE was “non-mailable matter.” As evidence of obscenity, he cited one piece of fiction in which a woman recalls an affair with her college roommate and decides to live with the woman rather than marry a high school boyfriend.
Well at least Judge Clarke did actually read the magazines in front of him, even if they were not entirely to his taste. He found as “filthy” a bawdy poem called “Lord Samuel and Lord Montagu” and an ad for a Swiss magazine which could, he said, “lead to the obtaining of obscene matter.” “The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected.”
ONE, whose circulation had reached 2,000, was having trouble delivering issues to its readers. To get around the postal ban, ONE continued to sell copies on news stands and sent copies in brown envelopes from various post offices in other locations.
Julber persuaded ONE’s founding editors, Dale Jennings and Don Slater, to appeal the 9th Circuit’s decision to the Supreme Court. “They agreed to pay my expenses to travel back to Washington. That’s the way you had to do it then. I took along a copy of the magazine,” he recalled.
He told them the rulings by the California-based judges reflected an intense prejudice against homosexual people and predicted the Supreme Court would take a “rational view of the matter.”
His petition was filed on June 13, 1957. 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. In a 6-3 decision, the justices upheld his conviction, but also sharply narrowed the definition of what is considered obscene. In a landmark ruling, “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.”
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.
Julber said he was delighted to win, but disappointed the court had not issued a written opinion explaining its reasons. He was honored at a banquet sponsored by ONE, and he went on to have a long career as a personal injury lawyer, but he never again had a case go to the Supreme Court. He remains proud of his achievement.