GINZBURG ET AL. v. UNITED STATES
No. 42
Supreme Court of the United States
Argued December 7, 1965. Decided March 21, 1966.
383 U.S. 463
Briefs of amici curiae, urging reversal, were filed by Irwin Karp for the Authors League of America, Inc.; by Bernard A. Berkman and Melvin L. Wulf for the American Civil Liberties Union et al.; and by Horace S. Manges and Marshall C. Berger for American Book Publishers Council, Inc.
Briefs of amici curiae, urging affirmance, were filed by Charles H. Keating, Jr., and James J. Clancy for Citizens for Decent Literature, Inc., et al.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
A judge sitting without a jury in the District Court for the Eastern District of Pennsylvania1 convicted petitioner Ginzburg and three corporations controlled by him upon all 28 counts of an indictment charging violation of the federal obscenity statute,
In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the ques-
The three publications were EROS, a hard-cover magazine of expensive format; Liaison, a bi-weekly newsletter; and The Housewife‘s Handbook on Selective Promiscuity (hereinafter the Handbook), a short book. The issue of EROS specified in the indictment, Vol. 1, No. 4, contains 15 articles and photo-essays on the subject of love, sex, and sexual relations. The specified issue of Liaison, Vol. 1, No. 1, contains a prefatory “Letter from the Editors” announcing its dedication to “keeping sex an art and preventing it from becoming a science.” The remainder of the issue consists of digests of two
Besides testimony as to the merit of the material, there was abundant evidence to show that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering—“the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.”7 EROS early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners’ efforts to sell their publications on the basis of salacious appeal;8 the facilities of the
The “leer of the sensualist” also permeates the advertising for the three publications. The circulars sent for EROS and Liaison stressed the sexual candor of the respective publications, and openly boasted that the publishers would take full advantage of what they regarded as an unrestricted license allowed by law in the expression of sex and sexual matters.9 The advertising for the
This evidence, in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners’ publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality—whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. Where the purveyor‘s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply sup-
A proposition argued as to EROS, for example, is that the trial judge improperly found the magazine to be obscene as a whole, since he concluded that only four of the 15 articles predominantly appealed to prurient interest and substantially exceeded community standards of candor, while the other articles were admittedly nonoffensive. But the trial judge found that “[t]he deliberate and studied arrangement of EROS is editorialized for the purpose of appealing predominantly to prurient interest and to insulate through the inclusion of nonoffensive material.” 224 F. Supp., at 131. However erroneous such a conclusion might be if unsupported by the evidence of pandering, the record here supports it. EROS was created, represented and sold solely as a claimed instrument of the sexual stimulation it would bring. Like the other publications, its pervasive treatment of sex and sexual matters rendered it available to exploitation by those who would make a business of pandering to “the widespread weakness for titillation by pornography.”12 Petitioners’ own expert agreed, correctly we think, that “[i]f the object [of a work] is material gain for the creator through an appeal to the sexual curiosity and appetite,” the work is pornographic. In other words, by animating sensual detail to give the publication a salacious cast, petitioners reinforced what is conceded by the Government to be an otherwise debatable conclusion.
A similar analysis applies to the judgment regarding the Handbook. The bulk of the proofs directed to social importance concerned this publication. Before selling publication rights to petitioners, its author had
The decision in United States v. Rebhuhn, 109 F. 2d 512, is persuasive authority for our conclusion.14 That
“. . . [T]he works themselves had a place, though a limited one, in anthropology and in psychotherapy. They might also have been lawfully sold to laymen who wished seriously to study the sexual practices of savage or barbarous peoples, or sexual aberrations; in other words, most of them were not obscene per se. In several decisions we have held that the statute does not in all circumstances forbid the dissemination of such publications . . . . However, in the case at bar, the prosecution succeeded . . . when it showed that the defendants had indiscriminately flooded the mails with advertisements, plainly designed merely to catch the prurient, though under the guise of distributing works of scientific or literary merit. We do not mean that the distributor of such works is charged with a duty to insure that they shall reach only proper hands, nor need we say what care he must use, for these defendants exceeded any possible limit; the circulars were no more than ap-
peals to the salaciously disposed, and no [fact finder] could have failed to pierce the fragile screen, set up to cover that purpose.” 109 F. 2d, at 514-515.
We perceive no threat to First Amendment guarantees in thus holding that in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Roth test.15 No weight is ascribed to the fact that petitioners have profited from the sale of publications which we have assumed but do not hold cannot themselves be adjudged obscene in the abstract; to sanction consideration of this fact might indeed induce self-censorship, and offend the frequently stated principle that commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.16 Rather, the fact that each of these publications was created or exploited entirely on the basis of its appeal to prurient interests17 strengthens the conclusion that the transac-
It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged. Where an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation
Petitioners raise several procedural objections, principally directed to the findings which accompanied the trial court‘s memorandum opinion, Fed. Rules Crim. Proc. 23. Even on the assumption that petitioners’ objections are well taken, we perceive no error affecting their substantial rights.
Affirmed.
MR. JUSTICE BLACK, dissenting.
Only one stark fact emerges with clarity out of the confusing welter of opinions and thousands of words written in this and two other cases today.1 That fact is that Ginzburg, petitioner here, is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal. Since, as I have said many times, I believe the Federal Government is without any power whatever under the Constitution to put any type of burden on speech and expression of ideas of any kind (as distinguished from conduct), I agree with Part II of the dissent of my Brother DOUGLAS in this case, and I would reverse Ginzburg‘s conviction on this ground alone. Even assuming, however, that the Court is correct in holding today that Congress does have power to clamp official censorship on some subjects selected by the Court, in some ways approved by it, I believe that the federal obscenity statute as enacted by Congress and as enforced by the Court against Ginzburg in this case should be held invalid on two other grounds.
Criminal punishment by government, although universally recognized as a necessity in limited areas of conduct, is an exercise of one of government‘s most awesome and dangerous powers. Consequently, wise and good governments make all possible efforts to hedge this dangerous power by restricting it within easily identifiable boundaries. Experience, and wisdom flowing out of that experience, long ago led to the belief that agents of government should not be vested with power and discretion to define and punish as criminal past conduct which had not been clearly defined as a crime in advance. To this end, at least in part, written laws came into being, marking the boundaries of conduct for which public agents could thereafter impose punishment upon people. In contrast, bad governments either wrote no general rules of conduct at all, leaving that highly important task to the unbridled discretion of government agents at the moment of trial, or sometimes, history tells us, wrote their laws in an unknown tongue so that people could not understand them or else placed their written laws at such inaccessible spots that people could not read them. It seems to me that these harsh expedients used by bad governments to punish people for conduct not previously clearly marked as criminal are being used here to put Mr. Ginzburg in prison for five years.
I agree with my Brother HARLAN that the Court has in effect rewritten the federal obscenity statute and thereby imposed on Ginzburg standards and criteria that Congress never thought about; or if it did think about them, certainly it did not adopt them. Consequently, Ginzburg is, as I see it, having his conviction and sentence affirmed upon the basis of a statute amended by this Court for violation of which amended statute he was not charged in the courts below. Such an affirmance we
(a) The first element considered necessary for determining obscenity is that the dominant theme of the material taken as a whole must appeal to the prurient interest in sex. It seems quite apparent to me that human beings, serving either as judges or jurors, could
(b) The second element for determining obscenity as it is described by my Brother BRENNAN is that the material must be “patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. . . .” Nothing that I see in any position adopted by a majority of the Court today and nothing that has been said in previous opinions for the Court leaves me with any kind of certainty as to whether the “community standards”3 referred to are world-wide, nation-wide, section-wide, state-wide,
(c) A third element which three of my Brethren think is required to establish obscenity is that the material must be “utterly without redeeming social value.” This element seems to me to be as uncertain, if not even more uncertain, than is the unknown substance of the Milky Way. If we are to have a free society as contemplated by the Bill of Rights, then I can find little defense for leaving the liberty of American individuals subject to the judgment of a judge or jury as to whether material that provokes thought or stimulates desire is “utterly without redeeming social value. . . .” Whether a particular treatment of a particular subject is with or without social value in this evolving, dynamic society of ours is a question upon which no uniform agreement could possibly be reached among politicians, statesmen, professors, philosophers, scientists, religious groups or any other type of group. A case-by-case assessment of social values by individual judges and jurors is, I think, a dangerous technique for government to utilize in determining whether a man stays in or out of the penitentiary.
My conclusion is that certainly after the fourteen separate opinions handed down in these three cases today no person, not even the most learned judge much less a layman, is capable of knowing in advance of an ultimate
I close this part of my dissent by saying once again that I think the First Amendment forbids any kind or type or nature of governmental censorship over views as distinguished from conduct.
II.
It is obvious that the effect of the Court‘s decisions in the three obscenity cases handed down today is to make it exceedingly dangerous for people to discuss either orally or in writing anything about sex. Sex is a fact of life. Its pervasive influence is felt throughout the world and it cannot be ignored. Like all other facts of life it can lead to difficulty and trouble and sorrow and pain. But while it may lead to abuses, and has in many instances, no words need be spoken in order for people to know that the subject is one pleasantly interwoven in all human activities and involves the very substance of the creation of life itself. It is a subject which people are bound to consider and discuss whatever laws are passed
I would reverse this case.
MR. JUSTICE DOUGLAS, dissenting.
Today‘s condemnation of the use of sex symbols to sell literature engrafts another exception on First Amendment rights that is as unwarranted as the judge-made exception concerning obscenity. This new exception condemns an advertising technique as old as history. The advertisements of our best magazines are chock-full of thighs, ankles, calves, bosoms, eyes, and hair, to draw the potential buyer‘s attention to lotions, tires, food, liquor, clothing, autos, and even insurance policies. The sexy advertisement neither adds to nor detracts from the quality of the merchandise being offered for sale. And I do not see how it adds to or detracts one whit from the legality of the book being distributed. A book should stand on its own, irrespective of the reasons why it was written or the wiles used in selling it. I cannot imagine any promotional effort that would make chapters 7 and 8 of the Song of Solomon any the less
I.
The Court has, in a variety of contexts, insisted that preservation of rights safeguarded by the First Amendment requires vigilance. We have recognized that a “criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms.” Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). Where uncertainty is the distinguishing characteristic of a legal principle—in this case the Court‘s “pandering” theory—“the free dissemination of ideas may be the loser.” Smith v. California, 361 U.S. 147, 151 (1959). The Court today, however, takes the other course, despite the admonition in Speiser v. Randall, 357 U.S. 513, 525 (1958), that “[t]he separation of legitimate from illegitimate speech calls for . . . sensitive tools.” Before today, due regard for the frailties of free expression led us to reject insensitive procedures1 and clumsy, vague, or overbroad substantive rules even in the realm of obscenity.2 For as the Court emphasized in Roth v. United States, 354 U.S. 476, 488 (1957), “[t]he door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.”
Certainly without the aura of sex in the promotion of these publications their contents cannot be said to be
The Rev. George Von Hilsheimer III, a Baptist minister,4 testified that he has used the book “insistently in
“The book is a history, a very unhappy history, of a series of sexual and psychological misadventures and the encounter of a quite typical and average American woman with quite typical and average American men. The fact that the book itself is the history of a woman who has had sexual adventures outside the normally accepted bounds of marriage which, of course for most Americans today, is a sort of serial polygamy, it does not teach or advocate this, but gives the women to whom I give the book at least a sense that their own experiences are not unusual, that their sexual failures are not unusual, and that they themselves should not be guilty because they are, what they say, sexual failures.”
I would think the Baptist minister‘s evaluation would be enough to satisfy the Court‘s test, unless the censor‘s word is to be final or unless the experts are to be weighed in the censor‘s scales, in which event one Anthony Comstock would too often prove more weighty than a dozen more detached scholars, or unless we, the ultimate Board of Censors, are to lay down standards for review that give the censor the benefit of the “any evidence” rule or the “substantial evidence” rule as in the administrative law field. Cf. Universal Camera Corp. v. Labor Board, 340 U.S. 474 (1951). Or perhaps we mean to let the courts sift and choose among conflicting versions of the “redeeming social importance” of a particular book, making sure that they keep their findings clear of doubt lest we reverse, as
Then there is the newsletter Liaison. One of the defendants’ own witnesses, critic Dwight Macdonald, testified that while, in his opinion, it did not go beyond the customary limits of candor tolerated by the community, it was “an extremely tasteless, vulgar and repulsive issue.” This may, perhaps, overstate the case, but Liaison is admittedly little more than a collection of “dirty” jokes and poems, with the possible exception of an interview with Dr. Albert Ellis. As to this material, I find wisdom in the words of the late Judge Jerome Frank:
“Those whose views most judges know best are other lawyers. Judges can and should take judicial notice that, at many gatherings of lawyers at Bar Association or of alumni of our leading law schools, tales are told fully as ‘obscene’ as many of those distributed by men convicted for violation of the obscenity statute. . . . ‘One thinks of the lyrics sung . . . by a certain respected and conservative member of the faculty of a great law-school which considers itself the most distinguished and which is the Alma Mater of many judges sitting on upper courts.‘”5
Liaison‘s appeal is neither literary nor spiritual. But neither is its appeal to a “shameful or morbid interest in nudity, sex, or excretion.” The appeal is to the ribald
Then there is EROS. The Court affirms the judgment of the lower court, which found only four of the many articles and essays to be obscene. One of the four articles consisted of numerous ribald limericks, to which the views expressed as to Liaison would apply with equal force. Another was a photo essay entitled “Black and White in Color” which dealt with interracial love: a subject undoubtedly offensive to some members of our society. Critic Dwight Macdonald testified:
“I suppose if you object to the idea of a Negro and a white person having sex together, then, of course, you would be horrified by it. I don‘t. From the artistic point of view I thought it was very good. In fact, I thought it was done with great taste, and I don‘t know how to say it—I never heard of him before, but he is obviously an extremely competent and accomplished photographer.”
Another defense witness, Professor Horst W. Janson, presently the Chairman of the Fine Arts Department at New York University, testified:
“I think they are outstandingly beautiful and artistic photographs. I can not imagine the theme being treated in a more lyrical and delicate manner than it has been done here.
. . . . .
“I might add here that of course photography in appropriate hands is an artistic instrument and this particular photographer has shown a very great awareness of compositional devices and patterns that have a long and well-established history in western art.
“The very contrast in the color of the two bodies of course has presented him with certain opportunities that he would not have had with two models of the same color, and he has taken rather extraordinary and very delicate advantage of these contrasts.”
The third article found specifically by the trial judge to be obscene was a discussion by Drs. Eberhard W. and Phyllis C. Kronhausen of erotic writing by women, with illustrative quotations.6 The worth of the article was discussed by Dwight Macdonald, who stated:
“I thought [this was] an extremely interesting and important study with some remarkable quotations from the woman who had put down her sense of love-making, of sexual intercourse . . . in an extremely eloquent way. I have never seen this from the woman‘s point of view. I thought the point they made, the difference between the man‘s and the woman‘s approach to sexual intercourse was very well made and very important.”
Still another article found obscene was a short introduction to and a lengthy excerpt from My Life and Loves by Frank Harris, about which there is little in the record. Suffice it to say that this seems to be a book of some literary stature. At least I find it difficult on this record to say that it is “utterly without redeeming social importance.”7
We took quite a different stance in One, Inc. v. Olesen, 355 U.S. 371 (1958), where we unanimously reversed the decision of the Court of Appeals in 241 F.2d 772 (9th Cir. 1957) without opinion. Our holding was accurately described by Lockhart and McClure, Obscenity Censorship: The Core Constitutional Issue—What Is Obscene? 7 Utah L. Rev. 289, 293 (1961):
“[This] was a magazine for homosexuals entitled One—The Homosexual Magazine, which was definitely not a scientific or critical magazine, but appears to have been written to appeal to the tastes and interests of homosexuals.”9
There are other decisions of ours which also reversed judgments condemning publications catering to a wider range of literary tastes
Man was not made in a fixed mould. If a publication caters to the idiosyncrasies of a minority, why does it not have some “social importance“? Each of us is a very temporary transient with likes and dislikes that cover the spectrum. However plebian my tastes may be, who am I to say that others’ tastes must be so limited and that other tastes have no “social importance“? How can we know enough to probe the mysteries of the subconscious of our people and say that this is good for them and that is not? Catering to the most eccentric taste may have “social importance” in giving that minority an opportunity to express itself rather than to repress its inner desires, as I suggest in my separate opinion in Memoirs v. Massachusetts, ante, at 431-432 (1966). How can we know that this expression may not prevent antisocial conduct?
I find it difficult to say that a publication has no “social importance” because it caters to the taste of the most unorthodox amongst us. We members of this Court should be among the last to say what should be orthodox in literature. An omniscience would be required which few in our whole society possess.
II.
This leads me to the conclusion, previously noted, that the First Amendment allows all ideas to be expressed—whether orthodox, popular, offbeat, or repulsive. I do not think it permissible to draw lines between
I think this is the ideal of the Free Society written into our Constitution. We have no business acting as censors or endowing any group with censorship powers. It is shocking to me for us to send to prison anyone for publishing anything, especially tracts so distant from any incitement to action as the ones before us.
[This opinion applies also to Mishkin v. New York, post, p. 502.]
I would reverse the convictions of Ginzburg and his three corporate co-defendants. The federal obscenity statute under which they were convicted,
The Court recognizes the difficulty of justifying these convictions; the majority refuses to approve the trial judge‘s “exegesis of Roth” (note 3, ante, p. 465); it declines to approve the trial court‘s “characterizations” of the Handbook “outside” the “setting” which the majority for the first time announces to be crucial to this conviction (note 5, ante, p. 466). Moreover, the Court accepts the Government‘s concession that the Handbook has a certain “worth” when seen in something labeled a “controlled, or even neutral, environment” (ante, p. 472); the majority notes that these are “publications which we have assumed . . . cannot themselves be adjudged obscene in the abstract” (ante, p. 474). In fact, the Court in the last analysis sustains the convictions on the
This curious result is reached through the elaboration of a theory of obscenity entirely unrelated to the language, purposes, or history of the federal statute now being applied, and certainly different from the test used by the trial court to convict the defendants. While the precise holding of the Court is obscure, I take it that the objective test of Roth, which ultimately focuses on the material in question, is to be supplemented by another test that goes to the question whether the mailer‘s aim is to “pander” to or “titillate” those to whom he mails questionable matter.
Although it is not clear whether the majority views the panderer test as a statutory gloss or as constitutional doctrine, I read the opinion to be in the latter category.1 The First Amendment, in the obscenity area, no longer fully protects material on its face nonobscene, for such material must now also be examined in the light of the defendant‘s conduct, attitude, motives. This seems to me a mere euphemism for allowing punishment of a person who mails otherwise constitutionally protected material just because a jury or a judge may not find him or his business agreeable. Were a State to enact a “panderer” statute under its police power, I have little doubt that—subject to clear drafting to avoid attacks on vagueness and equal protection grounds—such a statute would be constitutional. Possibly the same might be true of the Federal Government acting under its postal or commerce powers. What I fear the Court has done today is in effect to write a new statute, but without the sharply focused definitions and standards necessary in such a sensitive area. Casting such a dubious gloss over a
It seems perfectly clear that the theory on which these convictions are now sustained is quite different from the basis on which the case was tried and decided by the District Court and affirmed by the Court of Appeals.2 The District Court found the Handbook “patently offensive on its face” and without “the slightest redeeming social, artistic or literary importance or value“; it held that there was “no credible evidence that The Handbook has the slightest valid scientific importance for treatment of individuals in clinical psychiatry, psychology, or any field of medicine.” 224 F. Supp. 129, 131 (E.D. Pa. 1963). The trial court made similar findings as to Eros and Liaison. The majority‘s opinion, as I read it, casts doubts upon these explicit findings. As to the Handbook, the Court interprets an offhand remark by the government prosecutor at the sentencing hearing as a “concession,” which the majority accepts, that the prosecution rested upon the conduct of the petitioner, and the Court explicitly refuses to accept the trial judge‘s “characterizations” of the book, which I take to be an implied rejection of the findings of fact upon which the conviction was in fact based (note 5, ante, p. 466). Similarly as to Eros, the Court implies that the finding of obscenity might be “erroneous” were it not supported “by the evidence of pandering” (ante, p. 471). The Court further characterizes the Eros decision, aside from pandering, as “an otherwise debatable conclusion” (ante, p. 471).
If there is anything to this new pandering dimension to the mailing statute, the Court should return the case
If a new trial were given in the present case, as I read the Court‘s opinion, the burden would be on the Government to show that the motives of the defendants were to pander to “the widespread weakness for titillation by pornography” (ante, p. 471). I suppose that an analysis of the type of individuals receiving Eros and the Handbook would be relevant. If they were ordinary people, interested in purchasing Eros or the Handbook for one of a dozen personal reasons, this might be some evidence of pandering to the general public. On the other hand, as the Court suggests, the defendants could exonerate themselves by showing that they sent these works only or perhaps primarily (no standards are set) to psychiatrists and other serious-minded professional people. Also relevant would apparently be the nature of the mailer‘s advertisements or representations. Conceivably someone mailing to the public selective portions of a recognized classic with the avowed purpose of titillation would run the risk of conviction for mailing nonmailable matter. Presumably the Post Office under this theory might once again attempt to ban Lady Chatterley‘s Lover, which a lower court found not bannable in 1960 by an abstract application of Roth. Grove Press, Inc. v. Christenberry, 276 F.2d 433 (2d Cir. 1960). I would suppose that if the Government could show that Grove Press is pandering to people who are interested in the book‘s sexual passages and not in D. H. Lawrence‘s social theories or literary technique
In the past, as in the trial of these petitioners, evidence as to a defendant‘s conduct was admissible only to show relevant intent.3 Now evidence not only as to conduct, but also as to attitude and motive, is admissible on the primary question of whether the material mailed is obscene. I have difficulty seeing how these inquiries are logically related to the question whether a particular work is obscene. In addition, I think such a test for obscenity is impermissibly vague, and unwarranted by anything in the First Amendment or in
I would reverse the judgments below.
MR. JUSTICE STEWART, dissenting.
Ralph Ginzburg has been sentenced to five years in prison for sending through the mail copies of a magazine,
Censorship reflects a society‘s lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or for worse, in the enlightened choice of the people, free from the interference of a policeman‘s intrusive thumb or a judge‘s heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself.1
Because such is the mandate of our Constitution, there is room for only the most restricted view of this Court‘s decision in Roth v. United States, 354 U. S. 476. In that case the Court held that “obscenity is not within the area of constitutionally protected speech or press.”
There does exist a distinct and easily identifiable class of material in which all of these elements coalesce. It is that, and that alone, which I think government may constitutionally suppress, whether by criminal or civil sanctions. I have referred to such material before as hardcore pornography, without trying further to define it. Jacobellis v. Ohio, 378 U. S. 184, at 197 (1964) (concurring opinion). In order to prevent any possible misunderstanding, I have set out in the margin a description, borrowed from the Solicitor General‘s brief, of the kind of thing to which I have reference.3 See also Lockhart and
Although arguments can be made to the contrary, I accept the proposition that the general dissemination of matter of this description may be suppressed under valid laws.4 That has long been the almost universal judgment of our society. See Roth v. United States, 354 U. S., at 485. But material of this sort is wholly different from the publications mailed by Ginzburg in the present case, and different not in degree but in kind.
The Court today appears to concede that the materials Ginzburg mailed were themselves protected by the First Amendment. But, the Court says, Ginzburg can still be sentenced to five years in prison for mailing them. Why? Because, says the Court, he was guilty of “commercial exploitation,” of “pandering,” and of “titillation.” But Ginzburg was not charged with “commercial exploitation“; he was not charged with “pandering“; he was not charged with “titillation.” Therefore, to affirm his conviction now on any of those grounds, even if otherwise valid, is to deny him due process of law. Cole v. Arkansas, 333 U. S. 196 (1948). But those grounds are not, of course, otherwise valid. Neither the statute under which Ginzburg was convicted nor any other federal statute I know of makes “commercial exploitation” or “pandering” or “titillation” a criminal offense. And any criminal law that sought to do so in the terms so elusively defined by the Court would, of course, be unconstitutionally vague and therefore void. All of these matters are developed in the dissenting opinions of my Brethren, and I simply note here that I fully agree with them.
I dissent.
Notes
“Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and—
“Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters . . . may be obtained . . . .
“Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
“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 the first such offense . . . .”
As I understand all of the opinions in this case and the two related cases decided today, three things must be proven to establish material as obscene. In brief these are (1) the material must appeal to the prurient interest, (2) it must be patently offensive, and (3) it must have no redeeming social value. MR. JUSTICE BRENNAN in his opinion in Memoirs v. Massachusetts, ante, p. 413, which is joined by THE CHIEF JUSTICE and MR. JUSTICE FORTAS, is of the opinion that all three of these elements must coalesce before material can be labeled obscene. MR. JUSTICE CLARK in a dissenting opinion in Memoirs indicates, however, that proof of the first two elements alone is enough to show obscenity and that proof of the third—the material must be utterly without redeeming social value—is only an aid in proving the first two. In his dissenting opinion in Memoirs MR. JUSTICE WHITE states that material is obscene “if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor.” In the same opinion MR. JUSTICE WHITE states that the social importance test “is relevant only to determining the predominant prurient interest of the material.” Butler v. Michigan, 352 U.S. 380 (1957); Smith v. California, 361 U.S. 147 (1959); Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962) (opinion of HARLAN, J.). Although at one point in its opinion the Court of Appeals referred to “the shoddy business of pandering,” 338 F. 2d 12, 15 (3d Cir. 1964), a reading of the opinion as a whole plainly indicates that the Court of Appeals did not affirm these convictions on the basis on which this Court now sustains them. It is not accurate to say that the Roth opinion “fashioned standards” for obscenity, because, as the Court explicitly stated, no issue was there presented as to the obscenity of the material involved. 354 U.S., at 481, n. 8. And in no subsequent case has a majority of the Court been able to agree on any such “standards.”“The COURT. Who signed the letter?
“Mr. CREAMER. It is signed by Frank R. Brady, Associate Publisher of Mr. Ginzburg. It is on Eros Magazine, Incorporated‘s stationery.
“The COURT. And your objection is—
“Mr. SHAPIRO. It is in no way relevant to the particular issue or publication upon which the defendant has been indicted and in my view, even if there was an identification with respect to a particular issue, it would be of doubtful relevance in that event.
“The COURT. Anything else to say?
“Mr. CREAMER. If Your Honor pleases, there is a statement in this letter indicating that it would be advantageous to this publication to have it disseminated through Blue Ball, Pennsylvania, post office. I think this clearly goes to intent, as to what the purpose of publishing these magazines was. At least, it clearly establishes one of the reasons why they were disseminating this material.
“The COURT. Admitted.”
See Krafft-Ebing, Psychopathia Sexualis, p. 89 et seq. (1893); Eisler, Man Into Wolf, p. 23 et seq. (1951); Stekel, Sadism and Masochism (1929) passim; Bergler, Principles of Self-Damage (1959) passim; Reik, Masochism in Modern Man (1941) passim.“Eros is a child of its times. . . . [It] is the result of recent court decisions that have realistically interpreted America‘s obscenity laws and that have given to this country a new breadth of freedom of expression. . . . EROS takes full advantage of this new freedom of expression. It is the magazine of sexual candor.”
In another, more lavish spread:
“EROS is a new quarterly devoted to the subjects of Love and Sex. In the few short weeks since its birth, EROS has established itself as the rave of the American intellectual community—and the rage of prudes everywhere! And it‘s no wonder: EROS handles the subjects of Love and Sex with complete candor. The publication of this magazine—which is frankly and avowedly concerned with erotica—has been enabled by recent court decisions ruling that a literary piece or painting, though explicitly sexual in content, has a right to be published if it is a genuine work of art.
“EROS is a genuine work of art. . . .”
An undisclosed number of advertisements for Liaison were mailed. The outer envelopes of these ads ask, “Are you among the chosen few?” The first line of the advertisement eliminates the ambiguity: “Are you a member of the sexual elite?” It continues:
“That is, are you among the few happy and enlightened individuals who believe that a man and woman can make love without feeling pangs of conscience? Can you read about love and sex and discuss them without blushing and stammering?
“If so, you ought to know about an important new periodical called Liaison.
. . . . . .
“In short, Liaison is Cupid‘s Chronicle. . . .
“Though Liaison handles the subjects of love and sex with complete candor, I wish to make it clear that it is not a scandal sheet and it is not written for the man in the street. Liaison is aimed at intelligent, educated adults who can accept love and sex as part of life.
“. . . I‘ll venture to say that after you‘ve read your first biweekly issue, Liaison will be your most eagerly awaited piece of mail.”
The Court of Appeals summarized the contents as follows: “The article ‘Sappho Remembered’ is the story of a lesbian‘s influence on a young girl only twenty years of age but ‘actually nearer sixteen in many essential ways of maturity,’ in her struggle to choose between a life with the lesbian, or a normal married life with her childhood sweetheart. The lesbian‘s affair with her roommate while in college, resulting in the lesbian‘s expulsion from college, is recounted to bring in the jealousy angle. The climax is reached when the young girl gives up her chance for a normal married life to live with the lesbian. This article is nothing more than cheap pornography calculated to promote lesbianism. It falls far short of dealing with homosexuality from the scientific, historical and critical point of view. “The poem ‘Lord Samuel and Lord Montagu’ is about the alleged homosexual activities of Lord Montagu and other British Peers and contains a warning to all males to avoid the public toilets while Lord Samuel is ‘sniffing round the drains’ of Piccadilly (London). . . . “The stories ‘All This and Heaven Too,’ and ‘Not Til the End,’ pages 32-36, are similar to the story ‘Sappho Remembered,’ except that they relate to the activities of the homosexuals rather than lesbians.” 241 F.2d 772, 777, 778.“. . . [the author] was distributing . . . only to physicians; she never had widespread, indiscriminate distribution of the Handbook, and, consequently, the Post Office Department did not interfere. . . . If Mr. Ginzburg had distributed and sold and advertised these books solely to . . . physicians . . . we, of course, would not be here this morning with regard to The Housewife‘s Handbook. . . .”