The
MANual Enterprises Court was significantly divided. Since the 1957 decision in
Roth v. United States,
354 U.S. 476 (1957), the Court had struggled to define and refine its approach to obscenity. The widely divergent opinions in
MANual Enterprises may reflect those divisions. The majority opinion was written by Justice
John Marshall Harlan II, and joined by Justice
Potter Stewart. Justice
Hugo Black, who took an
absolutist approach to
First Amendment jurisprudence, concurred in the result but did not join the opinion. Justice Black did not issue an opinion of his own. Justice
William Brennan, joined by
Chief Justice Earl Warren and Justice
William O. Douglas, concurred but would have decided the case on much narrower technical rather than First Amendment grounds. Only Justice
Tom C. Clark dissented, stating "Since in my view the Postmaster General is required by § 1461 to reject nonmailable matter, I would affirm the judgment on the sole ground that the magazines contain information as to where obscene material can be obtained and thus are nonmailable." If the materials lacked that quality, Harlan reasoned that the Court need not consider the question of "audience." Reaching back to the
Hicklin test, Harlan argued that for materials to be obscene requires two distinct elements: patent offensiveness and an appeal to prurient interest. Therefore, Harlan concluded, "The Court of Appeals was mistaken in considering that
Roth made 'prurient interest' appeal the sole test of obscenity." Harlan then approached the
Roth standard which required a determination of the relevant "community." Harlan concluded that since the law in question dealt with the national mail, the relevant community was national. But Harlan struggled to define "prurient appeal." In the end, Harlan merely asserted that the materials were constitutionally protected. "[We] need go no further in the present case than to hold that the magazines in question, taken as a whole, cannot, under any permissible constitutional standard, be deemed to be beyond the pale of contemporary notions of rudimentary decency." In part, Harlan reached this conclusion because the majority believed that the government had overemphasized parts of the materials without taking them as a whole (a significant part of the
Roth test). But more importantly, the majority found that portrayal of the male nude (and, implicitly, portrayal of the homosexual male nude) "cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates." Anticipating a series of cases yet to come, Harlan addressed whether the materials had been rendered obscene by the way in which they were advertised. Section 1461 said that advertising could render materials obscene, and Chief Justice
Earl Warren (concurring in
Roth) had agreed on constitutional grounds. But Harlan, writing for the majority, concluded that the government had not argued that the advertising made the materials obscene. Section 1461, Harlan noted, did not require
scienter, and to impose the requirement that publisher investigate every advertiser in their pages would impose an unconstitutional chilling effect on free speech. Consequently, the majority reversed.
Concurrence Justice Brennan concurred in the result. Brennan's concurrence turned on narrow technical grounds, however. Brennan noted that the Post Office Department General Counsel had initially refused to even hold a formal hearing, wishing to seize the materials without giving Womack a chance for rebuttal. The Post Office Department reversed itself a short time later, and a formal hearing was held. For Brennan, the Post Office Department's entire process raised significant constitutional questions. :We risk erosion of First Amendment liberties unless we train our vigilance upon the methods whereby obscenity is condemned no less than upon the standards whereby it is judged. Questions of procedural safeguards loom large in the wake of an order such as the one before us. Among them are: (a) whether Congress can close the mails to obscenity by any means other than prosecution of its sender; (b) whether Congress, if it can authorize exclusion of mail, can provide that obscenity be determined in the first instance in any forum except a court, and (c) whether, even if Congress could so authorize administrative censorship, it has in fact conferred upon postal authorities any power to exclude matter from the mails upon their determination of its obscene character. For Brennan, this issue surpassed "even the important issue of the standards for judging this material's" obscenity in importance. Brennan, however, found no provision in Section 1461 supporting the establishment of an administrative procedure to censor the mails. Brennan provided a lengthy analysis (including extensive quotations) of the section's legislative history. Based on that evidence, Brennan concluded that there were only two possible constructions of Section 1461: That postmasters could remove matter which they thought, on the face of it, to be obscene, or that postmasters could remove matter only to turn it over to the appropriate authorities. The first construction was constitutionally infirm, Brennan argued. The Post Office Department had not acted in accordance with the second construction. Thus, either way, the Post Office Department's seizure of the magazines, its subsequent investigation of the advertisers, its discovery of allegedly obscene materials at each advertiser's place of business, and additional outcomes of its investigation did not withstand constitutional or statutory scrutiny. Administrative censorship of the mail, Brennan concluded, was not in itself unconstitutional. A variety of means were at the government's disposal, including recently enacted provisions to return the items, deny the use of postal banks, refund of monies collected, and more. None of these remedies seize the materials or make a judgment about their obscene nature. "But the suggestion that Congress may constitutionally authorize any process other than a fully judicial one immediately raises the gravest doubts."
Dissent Justice Clark dissented. Clark would have affirmed the judgment of the district court on the grounds that the magazines contained information about where obscene material could be obtained. Therefore, they were nonmailable and constitutionally seized. Clark rejected Brennan's analysis because the government's authority under Section 1461 was not presented or argued by either the plaintiff or respondent, and thus was not before the Court. Nevertheless, Clark addressed the concurring opinion's analysis. Clark, however, concluded that the legislative history of Section 1461 clearly permitted postmasters to refuse mailed materials which were known to be obscene. Since subsequent investigation by the Post Office Department had confirmed that the advertisers in the magazine sold obscene materials, the materials published by Womack could be seized. For the dissent, the fact that postal regulations had been in existence since 1902 without challenge weighed heavily in favor of this interpretation of the legislative history. Regarding the majority opinion, Clark concluded that Congress had addressed the issue of
scienter in the statute. In Section 1461, Congress made it clear that the act of mailing materials implied
scienter: "Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both . . . ." For these reasons, Clark would have affirmed the judgment of the district court. ==Note about Court composition==