The First Amendment and the Roots of LGBT Rights Law: Censorship in the Early Homophile Era, 1958-1962

Abstract

Long before substantive due process and equal protection ex- tended constitutional rights to homosexuals under the Fourteenth Amendment, in three landmark decisions by the Supreme Court of the United States, First Amendment law was both a weapon and shield in the expansion of LGBT rights. This Article examines constitutional law and “gaylaw” from the perspective of its
beginning, through case studies of One, Inc. v. Olesen (1958), Sunshine Book Co. v. Summerfield (1958), and Manual Enterprises, Inc. v. Day (1962). In protect- ing free press rights of sexual minorities to use the U.S. mail for mass communications, the Warren Court’s liberalization of obscenity law and protections of free press rights for homosexuals allowed LGBT Americans to develop identity, build communities, and seek social justice during a particularly oppressive time in U.S. history.

Keywords: First Amendment, legal history, LGBT law, constitutional law, obscenity