*1 YORK. MISHKIN NEW 21, 1966. March Argued 1965. Decided December No. argued Emanuel the cause filed a brief Redfield appellant. H. argued Richard Uviller the cause appellee. With him on the Hogan brief were Frank S. and Alan F. Leibowitz.
Edward de Orazia filed a brief for Marshall Cohen al., curiae, et amici urging reversal. curiae,
Briefs of amici urging affirmance, were filed Larkin, Roger Leo A. Arnebergh and Max P. Zall for the City of New al.; York et Jr., Charles H. Keating, Clancy and James J. for Citizens for Literature, Decent Inc., et al. opinion delivered Brennan
Mr. Justice Court. *2 States, ante, p. case, Ginzburg 463,
This like v. United a today, also decided involves convictions under criminal A of of obscenity panel judges three the Court statute. Special City appel of of of Sessions New York found of guilty violating lant 1141 York § of Penal New Law1 by hiring others to prepare books, publish obscene ing books, obscene and possessing obscene books with in tent to sell them.2 26 Misc. 2d 152, 2d 207 N. Y. S. 390
1 pertinent Section 1141 of Law, part, the Penal reads as follows: person “1. A possession sell, who . . . has his with to intent
lend, any obscene, lascivious, distribute lewd, filthy, indecent, . . . sadistic, disgusting or masochistic prints, book ... or who . .. utters, publishes, any manufactures, prepares any or in manner or such or book ... who any manner, hires, employs, permits person
“2. In any or uses doing any thing to do or section, assist act or mentioned in this any them, or guilty of
“Is a misdemeanor .... possession by any “4. person The or six more identical or similar coming provisions articles within the of subdivision one of this sec- presumptive tion is evidence of a violation this section. publication any book, “5. The for magazine sale of pamphlet or designed, composed or appeal illustrated as a whole to to and com- mercially exploit prurient by combining covers, pictures, interest drawings, illustrations, caricatures, cartoons, words, stories and any or advertisements combination or combinations thereof devoted description, portrayal suggestion or sex, deliberate of illicit including adultery, prostitution, fornication, sexual crime and sexual perversion exploitation or to nudity presenta- sex partially figures, posed, tion of or photographed nude nude female or presented provoke pru- otherwise in a manner calculated to or incite interest, any rient or thereof, combination or combinations shall be a violation this section.” 2 charged violating information 159 1141; counts in each single instance single book, although count named a often the same book was counts, alleging the basis of three each one of the
504 aggregating terms prison was sentenced He
(1960). for these in fines $12,000 pay and ordered years three Department, First Division, Appellate crimes.3 Div. 2d 234 App. convictions. those affirmed Appeals affirmed The Court (1962). Y. S. 2d N. Y. 2d 204 N. E. 2d opinion. N. without E. 15 N. Y. 2d 205 N. amended, remittitur (1964), probable jurisdiction. We noted (1965). 2d affirm. S. 960. We U. anything he
Appellant prosecuted was not said he for his role in believed, did, what dominant enterprises engaged producing selling several types these, 11 three of 1141 offenses. Of counts were dismissed *3 prosecutor on motion of the at the outset of trial verdicts the and acquittal of were on of entered seven counts at the end trial. remaining appellant on counts which was convicted are listed Appendix opinion. in the to this Appellant charging was also convicted on 33 counts violations of failing print publisher’s 330 of the General Business Law for to printer’s Appellate and names and addresses on the books. The counts, Division reversed the convictions under these and the Court Appeals sought of affirmed. The State has not review of that decision in this Court. groups purposes The trial court divided the counts into five sentencing. group possession of One consisted of the counts con cerning warehouse; books seized from a basement storeroom in a group possession a second counts concerned books from seized appellant’s bookstore, Outlet; retail Publishers’ the third consisted publishing counts; charging of the the fourth consisted of the counts hiring prepare books, him with others to and the fifth consisted charging of the counts violations the General Business Law. year $3,000 imposed Sentences one and a fine were on one count prison groups; of each of the first four sentences on the first three were consecutive and that on count in fourth made group group. $500 in was made concurrent with that the third A imposed group. fine on one count in the fifth Sentence was suspended suspension on on all other the convictions counts. The invalidity of sentence does not render moot the claims as to convictions on those counts. involved Fifty books are books.
allegedly obscene many guises. Some sexuality They portray case. this more relations, normal heterosexual depict relatively and sado-masochism, fetishism, such deviations depict drawings covers with Many have homosexuality. tortured, or beaten, being whipped, scantily clad women type- photo-offsets if not are Many, most, abused. by and books illustrated authors written written and given instructions according artists to detailed instructions was appellant. Typical in- appellant one author who testified that related sisted that the books be “full sex scenes and lesbian scenes .... sex to very strong, had be it had [T]he rough, be it be clearly spelled had to out. ... I had very very write sex make bluntly, the sex scenes strong. . . . sex scenes be sex had to unusual [T]he scenes between women, men and women, and women and and men and men. . . . wanted scenes which [H]e making women were love with women .... [H]e sex wanted scenes ... in which there were lesbian He call scenes. it lesbian, didn’t but he described women love making to women men . making . . men, love to and there were spankings an scenes—sex abnormal irregular fashion.” Another author testified that him very instructed “to deal graphically with . . . darkening of the flesh under *4 flagella- tion . . .” . Artists testified similar vein ap- as to pellant’s regarding instructions illustrations and covers for the books.
All the books are cheaply prepared paperbound “pulps” with imprinted prices sales that are several thousand percent above costs. All but three were printed by a photo-offset printer who paid was or per copy, depending on whether it was a “thick” or “thin” book. printer by instructed not appellant’s use publisher name as print but to fic- some any name and up “make book, to each on name titious prem- printer’s books on the Appellant stored address.” storage the rent for printer’s part paid ises and appel- at books, printer filled orders space. The retail them to delivering direction, lant’s occasion, shipping and, on Outlet, store, Publishers’ authors, Appellant paid the places. to other books usually at services, printer cash their and artists, his bookstore.
I.
con
face,
attacks
1141 as invalid on its
Appellant
§
tending
it exceeds
Amendment
limitations
First
proscribing publications
merely
that are
or mas
sadistic
are
ochistic, that
terms “sadistic” and “masochistic”
impermissibly vague,
that the term
is also
and
“obscene”
impermissibly vague. We need not decide
merits of
contentions,
first two
for the New York courts held in
this case that
the terms “sadistic”
“masochistic,”
adjectives
well as the other
used in
1141 to
describe
”
proscribed books, are “synonymous with 'obscene.’
Misc.
2d,
154, 207 N. Y. S. 2d, at
conten
tion
term “obscene” is also impermissibly vague
fails
our
under
holding
States,
in Roth v. United
491-492.
Indeed, the definition of “obscene”
adopted by the New York courts in interpreting § 1141
delimits a narrower class of conduct than that delimited
under the Roth definition, People v. Richmond County
Inc.,
News,
9 N. Y.
2d
586-587,
507 Roth, reasonably ascertainable standards provides guilt.5 1141 is as objects applied, invalid
Appellant also of publishing, first, was convicted the books he because possessing to sale are not hiring prepare, others second, proof of scienter because the obscene, and inadequate.
1. The Nature First Material. —The Amend- prosecution prohibits publication ment criminal for the and dissemination of allegedly obscene books that do not Roth satisfy of obscenity. definition States are free to adopt obscenity only other definitions of stay extent adopted those within the bounds set the Roth definition, which the constitutional criteria sense, sensibility. merely not to smacks, fantasy times, It at unreality, perversion of sexual represents, and sickness and accord- ing thoughtful scholar, debauchery one ‘a faculty.’ of the sexual (Murray, Censorship, 394; Literature and 14 393, see, Books on Trial also, McClure, Censorship Obscenity: Lockhart and Develop- ing Constitutional Standards, 5, 65.)” 45 Minn. L. Rev. 2d, 9 N. Y. 587, 2d, 175 N. E. at 686. People Fritch, See also 119, 2d 123, 13 N. Y. 713, 192 N. 2dE. v. (1963): 716 “In foregoing addition to the imposed by tests decisions Supreme Court, interpreted [United this court States] section 1141 People of the Penal Law in County v. Richmond News ... appli- as only cable may properly material which be termed ‘hard-core ” pornography.’ 5 stringent requirement §1141, scienter interpreted People Finkelstein, v. 9 342, 345, N. Y. 2d 174 E. 2d N. (1961), also vagueness eviscerates much of See, claim. infra, pp. Boyce 510-512. Lines, Motor generally, See Inc. v. United States, American 337, 342; 342 U. S. Douds, Communications Assn. v. 382, 412-413; States, Screws v. United 339 U. S. S. U. 101— (opinion of Mr. Justice Ragen, Douglas) United States v. ; States, Gorin v. United 513, 524; 19, 27-28; Hygrade 312 U. S. Sherman, Provision Co. v. 497, 501-503; S.U. Omaechevarria Idaho, S.U. *6 sale of and publication of the regulation the restrict universally tolerated traditionally and to that books society. our obscenity interpreted have York courts
The New pornog- “hard-core only so-called cover 1141 to News, Inc., 9 County Richmond People see v. raphy,” (1961), E. 2d 685-686 586-587, N. Y. 2d N. of ob- definition Since that 4, supra. in note quoted definition, the than the Roth scenity stringent is more criteria are satisfied judgment the constitutional Indeed, application of below. implicit appellant’s regarding the of the sole contention nature prose- material is that some of the books involved in this cution,6 depicting practices, those various sexual deviant such fetishism, as flagellation, lesbianism, do not satisfy the prurient-appeal requirement they because do not appeal prurient to a interest of person” the “average in sex, “instead of stimulating the erotic, they dis- gust and sicken.” reject argument We this being on an founded unrealistic interpretation prurient- of the appeal requirement.
Where the is designed material primarily dis- clearly seminated to a defined deviant group, sexual rather than public at large, the prurient-appeal re- quirement of the Roth test is if satisfied the dominant theme the material taken as a whole appeals to the prurient interest in sex of the members of that group. The reference to the “average” or person “normal” Roth, 354 S.,U. at 489-490, does not foreclose this hold- ing.7 In regard to the prurient-appeal requirement, 6It could plausibly not be maintained that all of books, including those by descriptions dominated relatively normal heterosexual relationships, are requisite devoid prurient appeal. 7See Manual Enterprises, Day, Inc. v. (opinion of Harlan, J.); Lockhart and McClure, Censorship Obscenity: em- person “normal” “average” of the concept negative essentially purpose in Roth to serve the ployed Hicklin aspect of that expressing rejection our test, Regina Hicklin, [1868] L. R. Q.3 B. 360, that impact susceptible person on the most determi- made the requirement We adjust prurient-appeal native. appeal type of this permitting social realities material to be assessed in terms of the sexual interests probable group; its our recipient intended and since *7 holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons,8 it also inadequacy avoids the most- susceptible-person facet of the Hicklin test.
No claim substantial is made depicting that the books sexually practices deviant are of prurient devoid appeal to sexually groups. deviant fully estab- evidence lishes that these books specifically were conceived and marketed such groups. Appellant instructed his authors and prepare artists to the books expressly to induce their purchase by persons who probably would be sexually stimulated them. It was for this reason that appellant “wanted an emphasis on beatings and fetishism and clothing irregular clothing, and that sort of thing, — Developing Constitutional Standards, 45 5, Minn. L. Rev. (1960). 72-73 It is true that some of the material California, Alberts v. Roth,
decided with resembled the deviant material involved here. But no involving issue obscenity of the material was us before S., either case. 354 TJ. question n. The basic for deci- sion there was publication whether the of obscenity, sale how- ever defined, criminally could punished be light of First Amend- guarantees. ment Our discussion of definition was not intended to develop all nuances required by a definition the constitutional guarantees. generally, See 1 American Psychiatry Handbook of 593-604 (Arieti 1959), ed. description pertinent for a types of deviant groups. sexual sex scenes women; always again sex scenes between that authors strong.” And be certain very to
had to be
with
furnished them
purpose,
his
fulfilled
in Sexual
Caprio,
Variations
materials
such source
Sexualis. Not
Krafft-Ebing, Psychopathia
Behavior,
appeal,
prurient
the books’
only
proof
was there
(C. A. 2d
Klaw,
counts. appeal defining first required Finkelstein the scienter 1141 was decided tried, after this Ap case was but before the pellate Division Appeals and Court of affirmed these convictions. We appellate therefore conclude that the state courts were satisfied that the requirement correctly scienter applied at trial. *9 1141 counts allege knowledge did not § of the appellant character of the books, but argued, has not below or here, that this omission renders the information constitutionally inadequate. amply This evidence the books. on marked prices
tant of the character was “aware appellant that shows innocent but activity was “not his material” of filth.” purveyance calculated
II. were the books one of that all but claims Appellant fruits they were because evidence admitted improperly capable not This claim is and seizures. illegal of searches only by appeal, here being brought of itself under 28 S. C. a writ of certiorari U. a for petition a setting up federal ed.) specifically as (3) (1964 § 1257 chal since right.12 Nevertheless, constitutional in this constitutionality prosecution, of 1141 lenged the case statute, sustained the York courts and the New notation appeal, here on and our unrestricted properly is briefing of probable jurisdiction justified appellant’s Weiner, Flournoy v. and seizure issue. search Cheek, 263; Prudential Ins. Co. v. S. U. S. 259 U. nonappealable treated, however, issue in a petition certiorari, as if contained for see 28 writ (1964 S. C. 2103 ed.), U. unrestricted notation probable jurisdiction appeal is to be understood a grant of the writ on issue. The issue thus remains within our certiorari jurisdiction, and we may, good reason, even at this stage, decline to decide the merits of the much as issue, we would dismiss a writ of certiorari as improvidently granted. We think that this is a case for such an exercise of our discretion. The far-reaching important questions tendered sufficient, this claim are not presented by the record with here, Unlike the claim challenges appeals decided in Marcus Warrant, v. Search 717, and Quantity Copies A Kansas, Books v. 205, implicated 378 U. S. the constitutional validity statutory establishing procedures schemes seizing books. *10 Appellant’s their decision. justify or clarity require the seizures is regard the claim in to all standing to assert finding on the entirely there is no extent clear; not in the Main Stem stores, nature of his interest two book Midget Shop, Book in which some Shop Book the justify the were seized. The State seeks to books in seizure, storeroom on the basis of the part, basement no consent of the there were printer-accomplice; findings authority printer as to the of the the access over alleged storeroom, or as to the voluntariness his consent. It also maintained is seizure warrant; authority storeroom was made on the search yet upon neither the which the warrant issued affidavit Finally, nor warrant itself is in the while record. the search and seizure issue has a Amendment First aspect alleged quality because of the massive Kansas, seizures, Quantity see A Copies Books v. Brennan, (opinion J.); U. S. Marcus Warrant, Search v. record this regard inadequate. neither nor There is evidence how findings many copies of the total available the books the various bookstores seized and were it is impossible to determine whether the books seized storeroom were on the threshold of basement dissemina tion. First Indeed, aspect apparently this Amendment presented not or considered courts, was state nor was it raised in jurisdictional statement; appeared it for the first time in his brief on the merits. light
In of these circumstances, which were fully not apprehended the time we took the case, we decline to reach the merits of the search and seizure claim; insofar as probable jurisdiction notation of may be re- garded grant as a of the certiorari writ on the search issue, seizure that writ is dismissed as improvidently granted. “Examination of a case on the merits . . . may bring ‘proper into focus’ a consideration which . . . improvident.” grant indicates
later S. Black, 359 U. Carbon Monrosa
Affirmed. *11 see Douglas, MR. dissenting opinion Justice [For ante, p. 482.] THE COURT. OF TO OPINION
APPENDIX REVIEWED. BEING THE CONVICTIONS Naming 1141 Counts the Book Hiring Pub- lishing Others Possession Title of Book 111 1 63 Go Around Chances H 112 2 64 Impact (N 65 113 3 Female Sultan M 4 Satin Satellite rH 67 115 5 Highness Her lO 68 6 116 of Leather Mistress CO 69 117 Educating 7 Edna N 8 118 70 Strange Passions 119 71 Whipping Girls 9 The Chorus Day Bound Order Of 10 72 120 Maritally 11 121 Whip 73 11 Dance the Dominant With 12 122 74 12 Spankers Cult Of The 75 123 13 13 Confessions 76 124 14 & 40 46 The Hours Of Torture 14 & 125 77 In 15&41 15&47 Bound Rubber Training Figure 48 Arduous 16 & 78 126 16&42 Bondhaven 127 17&43 79 To Fetterland 17&49 Return Visit 80 128 In 18 18 Fearful Ordeal Restraintland 81 129 19&44 19 50 In Distress & Women 1 20&48 82 130 54 Pleasure Parade No. 20 & 86 21 51 134 Screaming & 21 57 Flesh & 22 Fury & 52 22 58& Fully 87 135 Firm Packed 23 23 So So Try Anything 24 24 I’ll Twice 25 Masque & 53 25 & 59 26 26 Catanis
515 Naming 1141 Counts Book Hiring Pub- lishing Book Possession Others Title of 27 89 137 The Violated Wrestler Betrayal 28 29 90 138 Swish Bottom 30 91 139 Raw Dames Strap 140 31 92 Returns 93 141 Dangerous Years 32 Agony 95 144 37 Columns 96 145 The Tainted Pleasure 38 39 97 146 Intense Desire 85 Pleasure Parade No. 4 45 133 46 84 132 Pleasure Parade No. 3 Parade No. 2 47 83 131 Pleasure Sorority Stringent Girls Initiation At The Museum 50 Terror Bizarre Temptation *12 101
Peggy’s 58 150 Distress On Planet Venus Ways Discipline 102 151 59 Tyrant’s Finishing 152 Mrs. School 60 103 Assignment 61 104 153 Perilous Correspondence Bondage 107 156 Impelled 106 155 Woman Eye 157 Witness Stud Broad no- Queen Bee Mr. concurring. Justice Harlan, I obscenity On the concur in judgment issue premises my dissenting of affirmance stated in opinion on Ain Book “John Named Cleland’s Memoirs Woman Attorney Massachusetts, ante, General Pleasure” v. I p. respects agree join 455. In other with and all Court’s opinion.
Mr. Black, dissenting. Justice prison The Court here affirms convictions and sentences aggregating years plus three fines totaling $12,000 im- charges on state Mishkin based
posed on books and publish obscene prepare others he hired This Court such books. possessed himself that Mishkin Amendment many Fourteenth has in cases held See for illus- to the States. applicable makes the First in my concurring opinion in tration cases collected Randall, Consequently S. Speiser v. U. a five-year I from upon grounds that the same dissented ante, in No. upon Ginzburg imposed federal sentence sending printed through matter p. “obscene” I affirmance of this mails dissent from United States imposed on Mishkin. Neither three-year state sentence Ginzburg alleged I nor in read the this case have matter. This is because I believe reasons obscene my Ginzburg many dissent other stated prior power cases that this Court without constitutional regardless speech press particular to censor I think the subject judiciary discussed. federal because appropriate it is for life is the most tribunal appointed interpret that could be selected to Constitution and government thereby mark boundaries of what agencies can and cannot do. But because of life tenure, well the federal reasons, judiciary as other is the least government branch of to take over appropriate censor- by deciding ship- responsibilities pictures what and writ- throughout ings permitted the land can be see people particularized this Court makes read. When rules on can see and it which people read, what determines *13 policies right, thereby are reasonable and performing legislative directly classical function bodies responsible I people. Accordingly, wish once more express to my saddling to this with objections Court the irksome inevitably and unpopular and unwholesome task of finally deciding by case-by-case, sight-by-sight personal judgment of the members this Court pornog- what raphy means) is (whatever that too hard core for people any or about sex censorship If of views to or read. see com- reluctantly I am constitutional then subject other time-consuming tedious, say I believe pelled to finally deciding what responsibility and unwelcome suppressed be or must opinions discussions particular this and of good for the Court should, country, this institution governmental Nation, be vested some than Court. or institutions other this three-year sen- convictions. reverse these I would five-year on Mishkin sentence and imposed tence expressing views about sex are Ginzburg imposed on lengthy with those sentences comparison minor in more to follow in and federal inexorably that are bound state grow and and pressures prejudices courts as increase more they it a powerful, which course will. isNor sufficient assuredly ever-increasing answer these punishments to to on rely power this Court’s to strike down “cruel punishments” unusual under the Eighth Amendment. Distorting stretching by reading Amendment it granting power unreviewable perform to this Court to legislative fixing function of punishments for all state and national sadly offenses offers a inadequate solution to problems multitudinous generated I by what con- sider to be the un-American policy censoring the thoughts opinions of people. The only practical answer to these concededly almost prob- unanswerable lems I is, think, for this Court to decline act as a national board censors over speech press in- stead to stick to its clearly authorized constitutional duty adjudicate cases over things and conduct. Halfway censorship methods, no matter how laudably motivated, cannot in my judgment protect our cherished First Amendment freedoms from the aggressions destructive of both state and government. national I would reverse this case and announce that the First and Fourteenth Amendments together taken command that neither Con- *14 any manner which laws pass shall the States nor
gress the sub- press and speech abridge freedom of —whatever our Nation the Founders I think discussed. jects precisely meant Amendment First adopting regulating law” “no pass should Government Federal to the legislation its should confine but press speech of the First policy too, that conduct. So regulation Four- by the the States applicable to made Amendment regulate conduct power to vast teenth, leaves the States expres- make the my judgment, all, at power no a crime. sion views Stewart, dissenting.
Mr. Justice years prison was sentenced to three tawdry However those publishing numerous books. may they are not hard-core be, pornography, books publication is, therefore, protected their First States, Ginzburg v. United Fourteenth Amendments. ante, p. (dissenting opinion). The judgment should be reversed.* Ginzburg States, p. ante,
*See
v. United
at
note 3
(dissenting opinion). Moreover, there
nowas
evidence at all that
any
equivalent
pornography
the books are the
of hard-core
in the
any
eyes
particularized group
of readers. Cf. United States v.
Klaw,
(C.
Cir.).
Although Appeals purported the New York Court has to inter- pret only 1141 to pornography,” cover what it calls “hard-core abundantly phrase this case makes clear that that has no means clearly been York limited in New identifiable and distinct Ginzburg States, ante, class of I material have described in United p. 497, (dissenting opinion). note 3