United States Supreme Court
390 U.S. 629
APPEAL FROM THE APPELLATE
TERM OF THE SUPREME COURT OF NEW YORK, SECOND
JUDICIAL DEPARTMENT. No.
Argued January 16, 1968.
Decided April 22, 1968.
Appellant, who operates a
stationery store and luncheonette, was convicted of selling "girlie"
magazines to a 16-year-old boy in violation of 484-h of the New York Penal Law.
The statute makes it unlawful "knowingly to sell . . . to a minor"
under 17 "(a) any picture . . . which depicts nudity . . . and which is
harmful to minors," and "(b) any . . . magazine . . . which contains
[such pictures] and which, taken as a whole, is harmful to minors."
Appellant's conviction was affirmed by the Appellate Term of the Supreme Court.
He was denied leave to appeal to the New York Court of Appeals. Held:
1. The magazines here involved are not
obscene for adults and appellant is not barred from selling them to persons 17
years of age or older. Pp. 634-635.
2. Obscenity is not within the area of
protected speech or press, Roth v. United States, 354 U.S. 476, 485 , and there
is no issue here of the obscenity of the material involved as appellant does
not argue that the magazines are not "harmful to minors." P. 635.
3. It is not constitutionally
impermissible for New York, under this statute, to accord minors under 17 years
of age a more restricted right than that assured to adults to judge and
determine for themselves what sex material they may read and see. Pp. 637-643.
(a) The State has power to adjust the
definition of obscenity as applied to minors, for even where there is an
invasion of protected freedoms "the power of the state to control the
conduct of children reaches beyond the scope of its authority over
adults." Prince v. Massachusetts, 321 U.S. 158, 170 . Pp. 638-639.
(b) Constitutional interpretation has
consistently recognized that the parents' claim to authority in the rearing of
their children is basic in our society, and the legislature could properly
conclude that those primarily responsible for children's well-being are
entitled to the support of laws designed to aid discharge of that
responsibility. P. 639. [390 U.S. 629, 630]
(c) The State has an independent interest
in protecting the welfare of children and safeguarding them from abuses. Pp.
(d) This Court cannot say that the
statute, in defining obscenity on the basis of its appeal to minors under 17,
has no rational relation to the objective of safeguarding such minors from
harm. Pp. 641-643.
4. Subsections (f) and (g) of 484-h are
not void for vagueness. Pp. 643-645.
(a) The New York Court of Appeals, in
Bookcase, Inc. v. Broderick, 18 N. Y. 2d 71, 76, 218 N. E. 2d 668, 671,
construed the definition of obscenity "harmful to minors" in
subsection (f) "as virtually identical to" this Court's most recent
statement of the elements of obscenity in Memoirs v. Massachusetts, 383 U.S.
413, 418 , and accordingly the definition gives adequate notice of what is
prohibited and does not offend due process requirements. P. 643.
(b) Since the New York Legislature's
attention was drawn to People v. Finkelstein, 9 N. Y. 2d 342, 174 N. E. 2d 470,
which defined the nature of scienter for New York's general obscenity statute,
when it considered 484-h, it may be inferred that the reference in provision
(i) of subsection (g) to knowledge of the "character and content" of
the material incorporates the gloss given the term "character" in
People v. Finkelstein. P. 644.
(c) Provision (ii) of subsection (g)
states expressly that a defendant must be acquitted on the ground of
"honest mistake" if he proves that he made "a reasonable bona
fide attempt to ascertain the true age of such minor." P. 645.
Emanuel Redfield argued the
cause for appellant. With him on the brief was Benjamin E. Winston.
William Cahn argued the
cause for appellee. With him on the brief was George Danzig Levine.
Briefs of amici curiae,
urging reversal, were filed by Osmond K. Fraenkel, Edward J. Ennis, Melvin L.
Wulf and Alan H. Levine for the American Civil Liberties Union et al., by
Morris B. Abram and Jay Greenfield for the Council for Periodical Distributors
Associations, Inc., [390 U.S. 629, 631]
by Horace S. Manges and Marshall C. Berger for the American Book
Publishers Council, Inc., and by Irwin Karp for the Authors League of America,
Brief of amicus curiae,
urging affirmance, was filed by Charles H. Keating, Jr., and James J. Clancy
for the Citizens for Decent Literature, Inc.
MR. JUSTICE BRENNAN
delivered the opinion of the Court.
This case presents the
question of the constitutionality on its face of a New York criminal obscenity
statute which prohibits the sale to minors under 17 years of age of material
defined to be obscene on the basis of its appeal to them whether or not it would
be obscene to adults.
Appellant and his wife
operate "Sam's Stationery and Luncheonette" in Bellmore, Long Island.
They have a lunch counter, and, among other things, also sell magazines
including some so-called "girlie" magazines. Appellant was prosecuted
under two informations, each in two counts, which charged that he personally
sold a 16-year-old boy two "girlie" magazines on each of two dates in
October 1965, in violation of 484-h of the New York Penal Law. He was tried
before a judge without a jury in Nassau County District Court and was found
guilty on both counts. 1 The judge found (1) that the [390 U.S. 629, 632] magazines contained pictures which depicted
female "nudity" in a manner defined in subsection 1 (b), that is
"the showing of . . . female . . . buttocks with less than a full opaque
covering, or the showing of the female breast with less than a fully opaque
covering of any portion thereof below the top of the nipple . . .," and
(2) that the pictures were "harmful to minors" in that they had,
within the meaning of subsection 1 (f) [390 U.S. 629, 633] "that quality of . . . representation .
. . of nudity . . . [which] . . . (i) predominantly appeals to the prurient,
shameful or morbid interest of minors, and (ii) is patently offensive to
prevailing standards in the adult community as a whole with respect to what is
suitable material for minors, and (iii) is utterly without redeeming social
importance for minors." He held that both sales to the 16-year-old boy
therefore constituted the violation under 484-h of "knowingly to sell . .
. to a minor" under 17 of "(a) any picture . . . which depicts nudity
. . . and which is harmful to minors," and "(b) any . . . magazine .
. . which contains . . . [such pictures] . . . and which, taken as a whole, is
harmful to minors." The conviction was affirmed without opinion by the
Appellate Term, Second Department, of the Supreme Court. Appellant was denied
leave to appeal to the New York Court of Appeals and then appealed to this
Court. We noted probable jurisdiction. 388 U.S. 904 . We affirm. 2 [390 U.S. 629, 634]
picture magazines involved in the sales here are not obscene for adults, Redrup
v. New York, 386 U.S. 767 . 3 But 484-h does not bar the appellant [390 U.S.
629, 635] from stocking the magazines
and selling them to persons 17 years of age or older, and therefore the
conviction is not invalid under our decision in Butler v. Michigan, 352 U.S.
Obscenity is not within the
area of protected speech or press. Roth v. United States, 354 U.S. 476, 485 .
The three-pronged test of subsection 1 (f) for judging the obscenity of
material sold to minors under 17 is a variable from the formulation for
determining obscenity under Roth stated in the plurality opinion in Memoirs v. Massachusetts,
383 U.S. 413, 418 . Appellant's primary attack upon 484-h is leveled at the
power of the State to adapt this Memoirs formulation to define the material's
obscenity on the basis of its appeal to minors, and thus exclude material so
defined from the area of protected expression. He makes no argument that the
magazines are not "harmful to minors" within the definition in
subsection 1 (f). Thus "[n]o issue is presented . . . concerning the
obscenity of the material involved." Roth, supra, at 481, n. 8.
The New York Court of
Appeals "upheld the Legislature's power to employ variable concepts of
obscenity" 4 [390 U.S. 629,
636] in a case in which the same
challenge to state power to enact such a law was also addressed to 484-h.
Bookcase, Inc. v. Broderick, 18 N. Y. 2d 71, 218 N. E. 2d 668, appeal dismissed
for want of a properly presented federal question, sub nom. Bookcase, Inc. v.
Leary, 385 U.S. 12 . In sustaining state power to enact the law, the Court of
Appeals said, Bookcase, Inc. v. Broderick, at 75, 218 N. E. 2d, at 671:
"[M]aterial which is protected for
distribution to adults is not necessarily constitutionally protected from
restriction upon its dissemination to children. In other words, the concept of
obscenity or of unprotected matter may vary according to the group to whom the
questionable material is directed or from whom it is quarantined. Because of
the State's exigent interest in preventing distribution to children of
objectionable material, it can exercise its power to protect the health,
safety, welfare and morals of its community by barring the distribution to
children of books recognized to be suitable for adults."
Appellant's attack is not
that New York was without power to draw the line at age 17. Rather, his
contention is the broad proposition that the scope of the constitutional
freedom of expression secured to a citizen to read or see material concerned
with sex cannot be made to depend upon whether the citizen is an adult or a
minor. He accordingly insists that the denial to minors under 17 of access to
material condemned by 484-h, insofar as that material is not obscene for
persons 17 years of age or older, constitutes an unconstitutional deprivation
of protected liberty.
We have no occasion in this
case to consider the impact of the guarantees of freedom of expression upon the
totality of the relationship of the minor and the State, cf. In re Gault, 387
U.S. 1, 13 . It is enough for the purposes of this case that we inquire whether
it was [390 U.S. 629, 637]
constitutionally impermissible for New York, insofar as 484-h does so,
to accord minors under 17 a more restricted right than that assured to adults
to judge and determine for themselves what sex material they may read or see.
We conclude that we cannot say that the statute invades the area of freedom of
expression constitutionally secured to minors. 5
Appellant argues that there
is an invasion of protected rights under 484-h constitutionally
indistinguishable from the invasions under the Nebraska statute forbidding
children to study German, which was struck down in Meyer v. Nebraska, 262 U.S.
390 ; the Oregon statute interfering with children's attendance at private and
parochial schools, which was struck down in Pierce v. Society of Sisters, 268
U.S. 510 ; and the statute compelling children against their religious scruples
to give the flag salute, which was struck down in West Virginia [390 U.S. 629,
638] State Board of Education v.
Barnette, 319 U.S. 624 . We reject that argument. We do not regard New York's
regulation in defining obscenity on the basis of its appeal to minors under 17
as involving an invasion of such minors' constitutionally protected freedoms.
Rather 484-h simply adjusts the definition of obscenity "to social
realities by permitting the appeal of this type of material to be assessed in
terms of the sexual interests . . ." of such minors. Mishkin v. New York,
383 U.S. 502, 509 ; Bookcase, Inc. v. Broderick, supra, at 75, 218 N. E. 2d, at
671. That the State has power to make that adjustment seems clear, for we have
recognized that even where there is an invasion of protected freedoms "the
power of the state to control the conduct of children reaches beyond the scope
of its authority over adults . . . ." Prince v. Massachusetts, 321 U.S.
158, 170 . 6 In Prince we sustained the conviction [390 U.S. 629, 639] of the guardian of a nine-year-old girl,
both members of the sect of Jehovah's Witnesses, for violating the
Massachusetts Child Labor Law by permitting the girl to sell the sect's
religious tracts on the streets of Boston.
The well-being of its
children is of course a subject within the State's constitutional power to
regulate, and, in our view, two interests justify the limitations in 484-h upon
the availability of sex material to minors under 17, at least if it was
rational for the legislature to find that the minors' exposure to such material
might be harmful. First of all, constitutional interpretation has consistently
recognized that the parents' claim to authority in their own household to
direct the rearing of their children is basic in the structure of our society.
"It is cardinal with us that the custody, care and nurture of the child
reside first in the parents, whose primary function and freedom include
preparation for obligations the state can neither supply nor hinder."
Prince v. Massachusetts, supra, at 166. The legislature could properly conclude
that parents and others, teachers for example, who have this primary
responsibility for children's well-being are entitled to the support of laws
designed to aid discharge of that responsibility. Indeed, subsection 1 (f) (ii)
of 484-h expressly recognizes the parental role in assessing sex-related
material harmful to minors according "to prevailing standards in the adult
community as a whole with respect to what is suitable material for
minors." Moreover, the prohibition against sales to minors does not bar
parents who so desire from purchasing the magazines for their children. 7 [390 U.S. 629, 640]
The State also has an
independent interest in the well-being of its youth. The New York Court of
Appeals squarely bottomed its decision on that interest in Bookcase, Inc. v.
Broderick, supra, at 75, 218 N. E. 2d, at 671. Judge Fuld, now Chief Judge
Fuld, also emphasized its significance in the earlier case of People v. Kahan,
15 N. Y. 2d 311, 206 N. E. 2d 333, which had struck down the first version of
484-h on grounds of vagueness. In his concurring opinion, id., at 312, 206 N.
E. 2d, at 334, he said:
"While the supervision of children's
reading may best be left to their parents, the knowledge that parental control
or guidance cannot always be provided and society's transcendent interest in
protecting the welfare of children justify reasonable regulation of the sale of
material to them. It is, therefore, altogether fitting and proper for a state
to include in a statute designed to regulate the sale of pornography to children
special standards, broader than those embodied in legislation aimed at
controlling dissemination of such material to adults."
In Prince v. Massachusetts,
supra, at 165, this Court, too, recognized that the State has an interest
"to protect the welfare of children" and to see that they are
"safeguarded from abuses" which might prevent their "growth into
free and independent well-developed men [390 U.S. 629, 641] and citizens." The only question
remaining, therefore, is whether the New York Legislature might rationally
conclude, as it has, that exposure to the materials proscribed by 484-h
constitutes such an "abuse."
Section 484-e of the law
states a legislative finding that the material condemned by 484-h is "a
basic factor in impairing the ethical and moral development of our youth and a
clear and present danger to the people of the state." It is very doubtful
that this finding expresses an accepted scientific fact. 8 But obscenity is not
protected expression and may be suppressed without a showing of the
circumstances which lie behind the phrase "clear and present danger"
in its application to protected speech. Roth v. United States, supra, at
486-487. 9 To sustain state power to exclude material defined as obscenity by
484-h requires only that we be able to say that it was not irrational for the
legislature to find that exposure to material condemned by the statute is
harmful to minors. In Meyer v. Nebraska, supra, at 400, we were able to say
that children's knowledge of the German language "cannot reasonably be
regarded as harmful." That cannot be said by us of minors' reading and
seeing sex material. To be sure, there is no lack of "studies" which
purport to demonstrate that obscenity is or is not "a basic factor in
impairing the ethical and moral development of . . . youth and a clear and
present [390 U.S. 629, 642] danger to
the people of the state." But the growing consensus of commentators is
that "while these studies all agree that a causal link has not been
demonstrated, they are equally agreed that a causal link has not been disproved
either." 10 We do not demand of legislatures [390 U.S. 629, 643] "scientifically certain criteria of
legislation." Noble State Bank v. Haskell, 219 U.S. 104, 110 . We
therefore cannot say that 484-h, in defining the obscenity of material on the
basis of its appeal to minors under 17, has no rational relation to the
objective of safeguarding such minors from harm.
subsections (f) and (g) of 484-h as in any event void for vagueness. The attack
on subsection (f) is that the definition of obscenity "harmful to
minors" is so vague that an honest distributor of publications cannot know
when he might be held to have violated 484-h. But the New York Court of Appeals
construed this definition to be "virtually identical to the Supreme
Court's most recent statement of the elements of obscenity. [Memoirs v.
Massachusetts, 383 U.S. 413, 418 ]," Bookcase, Inc. v. Broderick, supra,
at 76, 218 N. E. 2d, at 672. The definition therefore gives "men in acting
adequate notice of what is prohibited" and does not offend the
requirements of due process. Roth v. United States, supra, at 492; see also
Winters v. New York, 333 U.S. 507, 520 .
As is required by Smith v.
California, 361 U.S. 147, 484 -h prohibits only those sales made
"knowingly." The challenge to the scienter requirement of subsection
(g) centers on the definition of "knowingly" insofar as it includes
"reason to know" or "a belief or ground for belief which
warrants further inspection or inquiry of both: (i) the character and content
of any material described herein which is reasonably susceptible of examination
by the defendant, and (ii) the age of the [390 U.S. 629, 644] minor, provided however, that an honest mistake
shall constitute an excuse from liability hereunder if the defendant made a
reasonable bona fide attempt to ascertain the true age of such minor."
As to (i), 484-h was passed
after the New York Court of Appeals decided People v. Finkelstein, 9 N. Y. 2d
342, 174 N. E. 2d 470, which read the requirement of scienter into New York's
general obscenity statute, 1141 of the Penal Law. The constitutional
requirement of scienter, in the sense of knowledge of the contents of material,
rests on the necessity "to avoid the hazard of self-censorship of
constitutionally protected material and to compensate for the ambiguities
inherent in the definition of obscenity," Mishkin v. New York, supra, at
511. The Court of Appeals in Finkelstein interpreted 1141 to require "the
vital element of scienter" and defined that requirement in these terms:
"A reading of the statute [ 1141] as a whole clearly indicates that only
those who are in some manner aware of the character of the material they
attempt to distribute should be punished. It is not innocent but calculated
purveyance of filth which is exorcised . . . ." 9 N. Y. 2d, at 344-345,
174 N. E. 2d, at 471. (Emphasis supplied.) In Mishkin v. New York, supra, at
510-511, we held that a challenge to the validity of 1141 founded on Smith v.
California, supra, was foreclosed in light of this construction. When 484-h was
before the New York Legislature its attention was directed to People v.
Finkelstein, as defining the nature of scienter required to sustain the
statute. 1965 N. Y. S. Leg. Ann. 54-56. We may therefore infer that the
reference in provision (i) to knowledge of "the character and content of
any material described herein" incorporates the gloss given the term
"character" in People v. Finkelstein. In that circumstance Mishkin
requires rejection of appellant's challenge to provision (i) and makes it
unnecessary for [390 U.S. 629, 645] us
to define further today "what sort of mental element is requisite to a
constitutionally permissible prosecution," Smith v. California, supra, at
Appellant also attacks
provision (ii) as impermissibly vague. This attack however is leveled only at
the proviso according the defendant a defense of "honest mistake" as
to the age of the minor. Appellant argues that "the statute does not tell
the bookseller what effort he must make before he can be excused." The
argument is wholly without merit. The proviso states expressly that the
defendant must be acquitted on the ground of "honest mistake" if the
defendant proves that he made "a reasonable bona fide attempt to ascertain
the true age of such minor." Cf. 1967 Penal Law 235.22 (2), n. 1, supra.
[For concurring opinion of
MR. JUSTICE HARLAN see post, p. 704.]
APPENDIX A TO OPINION OF THE COURT.
New York Penal Law 484-h as
enacted by L. 1965, c. 327, provides:
484-h. Exposing minors to
1. Definitions. As used in
(a) "Minor" means any person
under the age of seventeen years.
(b) "Nudity" means the showing
of the human male or female genitals, pubic area or buttocks with less than a
full opaque covering, or the showing of the female breast with less than a
fully opaque covering of any portion thereof below the top of the nipple, or
the depiction of covered male genitals in a discernibly turgid state. [390 U.S.
(c) "Sexual conduct" means acts
of masturbation, homosexuality, sexual intercourse, or physical contact with a
person's clothed or unclothed genitals, pubic area, buttocks or, if such person
be a female, breast.
"Sexual excitement" means the condition of human male or female
genitals when in a state of sexual stimulation or arousal.
(e) "Sado-masochistic abuse"
means flagellation or torture by or upon a person clad in undergarments, a mask
or bizarre costume, or the condition of being fettered, bound or otherwise
physically restrained on the part of one so clothed.
(f) "Harmful to minors" means
that quality of any description or representation, in whatever form, of nudity,
sexual conduct, sexual excitement, or sadomasochistic abuse, when it:
(i) predominantly appeals to the
prurient, shameful or morbid interest of minors, and
(ii) is patently offensive to prevailing
standards in the adult community as a whole with respect to what is suitable
material for minors, and
(iii) is utterly without redeeming social
importance for minors.
(g) "Knowingly" means having
general knowledge of, or reason to know, or a belief or ground for belief which
warrants further inspection or inquiry of both:
(i) the character and content of any
material described herein which is reasonably susceptible of examination by the
(ii) the age of the minor, provided
however, that an honest mistake shall constitute an excuse from liability
hereunder if the defendant made a reasonable bona fide attempt to ascertain the
true age of such minor. [390 U.S. 629, 647]
2. It shall be unlawful for
any person knowingly to sell or loan for monetary consideration to a minor:
(a) any picture, photograph, drawing,
sculpture, motion picture film, or similar visual representation or image of a
person or portion of the human body which depicts nudity, sexual conduct or
sado-masochistic abuse and which is harmful to minors, or
(b) any book, pamphlet, magazine, printed
matter however reproduced, or sound recording which contains any matter
enumerated in paragraph (a) of subdivision two hereof, or explicit and detailed
verbal descriptions or narrative accounts of sexual excitement, sexual conduct
or sado-masochistic abuse and which, taken as a whole, is harmful to minors.
3. It shall be unlawful for
any person knowingly to exhibit for a monetary consideration to a minor or
knowingly to sell to a minor an admission ticket or pass or knowingly to admit
a minor for a monetary consideration to premises whereon there is exhibited, a
motion picture, show or other presentation which, in whole or in part, depicts
nudity, sexual conduct or sado-masochistic abuse and which is harmful to
4. A violation of any
provision hereof shall constitute a misdemeanor.
APPENDIX B TO OPINION OF THE COURT.
State obscenity statutes
having some provision referring to distribution to minors are:
Cal. Pen. Code 311-312
(Supp. 1966); Colo. Rev. Stat. Ann. 40-9-16 to 40-9-27 (1963); Conn. Gen. Stat.
Rev. 53-243 to 53-245 (Supp. 1965); Del. Code Ann., Tit. 11, 435, 711-713
(1953); Fla. Stat. Ann. 847.011-847.06 (1965 and Supp. 1968); Ga. Code Ann.
26-6301 to 26-6309a (Supp. 1967); Hawaii Rev. [390 U.S. 629, 648] Laws 267-8 (1955); Idaho Code Ann. 18-1506
to 18-1510 (Supp. 1967); Ill. Ann. Stat., c. 38, 11-20 to 11-21 (Supp. 1967);
Iowa Code Ann. 725.4-725.12 (1950); Ky. Rev. Stat. 436.100-436.130,
436.540-436.580 (1963 and Supp. 1966); La. Rev. Stat. 14:91.11, 14:92, 14:106
(Supp. 1967); Me. Rev. Stat. Ann., Tit. 17, 2901-2905 (1964); Md. Ann. Code,
Art. 27, 417-425 (1957 and Supp. 1967); Mass. Gen. Laws Ann., c. 272, 28-33
(1959 and Supp. 1968); Mich. Stat. Ann. 28.575-28.579 (1954 and Supp. 1968);
Mo. Ann. Stat. 563.270-563.310 (1953 and Supp. 1967); Mont. Rev. Codes Ann.
94-3601 to 94-3606 (1947 and Supp. 1967); Neb. Rev. Stat. 28-926.09 to 28-926.10
(1965 Cum. Supp.); Nev. Rev. Stat. 201.250, 207.180 (1965); N. H. Rev. Stat.
Ann. 571-A:1 to 571-A:5 (Supp. 1967); N. J. Stat. Ann. 2A:115-1.1 to 2A:115-4
(Supp. 1967); N.C. Gen. Stat. 14-189 (Supp. 1967); N. D. Cent. Code 12-21-07 to
12-21-09 (1960); Ohio Rev. Code Ann. 2903.10-2903.11, 2905.34-2905.39 (1954 and
Supp. 1966); Okla. Stat. Ann., Tit. 21, 1021-1024, 1032-1039 (1958 and Supp.
1967); Pa. Stat. Ann., Tit. 18, 3831-3833, 4524 (1963 and Supp. 1967); R. I.
Gen. Laws Ann. 11-31-1 to 11-31-10 (1956 and Supp. 1967); S. C. Code Ann.
16-414.1 to 16-421 (1962 and Supp. 1967); Tex. Pen. Code, Arts. 526, 527b (1952
and Supp. 1967); Utah Code Ann. 76-39-5, 76-39-17 (Supp. 1967); Vt. Stat. Ann.,
Tit. 13, 2801-2805 (1959); Va. Code Ann. 18.1-227 to 18.1-236.3 (1960 and Supp.
1966); W. Va. Code Ann. 61-8-11 (1966); Wyo. Stat. Ann. 6-103, 7-148 (1957).
[ Footnote 1 ] Appellant
makes no attack upon 484-h as applied. We therefore have no occasion to
consider the sufficiency of the evidence, or such issues as burden of proof,
whether expert evidence is either required or permissible, or any other
questions which might be pertinent to the application of the statute. Appellant
does argue that because the trial judge included a finding that two of the magazines
"contained verbal descriptions and narrative accounts of sexual excitement
and sexual conduct," an offense not charged in the informations, the
conviction must be set aside under Cole v. Arkansas, 333 U.S. 196 . But this
case was tried and the appellant [390 U.S. 629, 632] was found guilty only on the charges of
selling magazines containing pictures depicting female nudity. It is therefore
not a case where defendant was tried and convicted of a violation of one
offense when he was charged with a distinctly and substantially different
offense. The full text of 484-h is attached as Appendix A. It was enacted in L.
1965, c. 327, to replace an earlier version held invalid by the New York Court
of Appeals in People v. Kahan, 15 N. Y. 2d 311, 206 N. E. 2d 333, and People v.
Bookcase, Inc., 14 N. Y. 2d 409, 201 N. E. 2d 14. Section 484-h in turn was
replaced by L. 1967, c. 791, now 235.20-235.22 of the Penal Law. The major
changes under the 1967 law added a provision that the one charged with a
violation "is presumed to [sell] with knowledge of the character and
content of the material sold . . .," and the provision that "it is an
affirmative defense that: (a) The defendant had reasonable cause to believe
that the minor involved was seventeen years old or more; and (b) Such minor
exhibited to the defendant a draft card, driver's license, birth certificate or
other official or apparently official document purporting to establish that
such minor was seventeen years old or more." Neither addition is involved
in this case. We intimate no view whatever upon the constitutional validity of
the presumption. See in general Smith v. California, 361 U.S. 147 ; Speiser v.
Randall, 357 U.S. 513 ; 41 N. Y. U. L. Rev. 791 (1966); 30 Albany L. Rev. 133
(1966). The 1967 law also repealed outright 484-i which had been enacted one
week after 484-h. L. 1965, c. 327. It forbade sales to minors under the age of
18. The New York Court of Appeals sustained its validity against a challenge
that it was void for vagueness. People v. Tannenbaum, 18 N. Y. 2d 268, 220 N.
E. 2d 783. For an analysis of 484-i and a comparison with 484-h see 33 Brooklyn
L. Rev. 329 (1967).
[ Footnote 2 ] The case is
not moot. The appellant might have been sentenced to one year's imprisonment,
or a $500 fine or both. N. Y. Penal Law 1937. The trial judge however exercised
authority under N. Y. Penal Law 2188 and on May 17, 1966, suspended sentence on
all counts. Under 470-a of the New York Code of Criminal Procedure, the judge
could thereafter recall appellant and impose sentence only within one year, or
before May 17, 1967. The judge did not do so. Although St. Pierre v. United
States, 319 U.S. 41 , held that a criminal case had become moot when the
petitioner finished serving his sentence before direct review in this Court,
St. Pierre also recognized that the case would not have been moot had
"petitioner shown that under either state or federal law further penalties
or disabilities can be imposed on him as result of the judgment which has now
been satisfied." Id., at 43. The State of New York concedes in its brief
in this Court addressed to mootness "that certain disabilities do flow
from the conviction." The brief states that among these is "the
possibility of ineligibility for licensing under state and municipal license
laws regulating various lawful occupations . . . ." Since the argument,
the parties advised the Court that, although this is the first time appellant
has been convicted of any [390 U.S. 629, 634]
crime, this conviction might result in the revocation of the license
required by municipal law as a prerequisite to engaging in the luncheonette
business he carries on in Bellmore, New York. Bellmore is an
"unincorporated village" within the Town of Hempstead, Long Island,
1967 N. Y. S. Leg. Man. 1154. The town has a licensing ordinance which provides
that the "Commissioner of Buildings . . . may suspend or revoke any
license issued, in his discretion, for . . . (e) conviction of any crime."
LL 21, Town of Hempstead, eff. December 1, 1966, 8.1 (e). In these
circumstances the case is not moot since the conviction may entail collateral
consequences sufficient to bring the case within the St. Pierre exception. See
Fiswick v. United States, 329 U.S. 211, 220 -222. We were not able to reach
that conclusion in Tannenbaum v. New York, 388 U.S. 439 , or Jacobs v. New
York, 388 U.S. 431 , in which the appeals were dismissed as moot. In Tannenbaum
there was no contention that the convictions under the now repealed 484-i
entailed any collateral consequences. In Jacobs the appeal was dismissed on
motion of the State which alleged, inter alia, that New York law did not impose
"any further penalty upon conviction of the misdemeanor here in
issue." Appellant did not there show, or contend, that his license might
be revoked for "conviction of any crime"; he asserted only that the
conviction might be the basis of a suspension under a provision of the
Administrative Code of the City of New York requiring the Department of
Licenses to assure that motion picture theaters are not conducted in a manner
offensive to "public morals."
[ Footnote 3 ] One of the
magazines was an issue of the magazine "Sir." We held in Gent v.
Arkansas, decided with Redrup v. New York, 386 U.S. 767, 769 , that an Arkansas
statute which did not reflect a specific and limited state concern for
juveniles was unconstitutional insofar as it was applied to suppress
distribution of another issue of that magazine. Other cases which turned on
findings of nonobscenity of this type of magazine include: Central Magazine
Sales, Ltd. v. United States, 389 U.S. 50 ; Conner v. City of Hammond, 389 U.S.
48 ; Potomac News Co. v. United States, 389 U.S. 47 ; Mazes v. Ohio, 388 U.S.
453 ; A Quantity of Books v. Kansas, 388 U.S. 452 ; Books, Inc. v. United
States, 388 U.S. 449 ; Aday v. United States, [390 U.S. 629, 635] 388 U.S. 447 ; Avansino v. New York, 388
U.S. 446 ; Sheperd v. New York, 388 U.S. 444 ; Friedman v. New York, 388 U.S.
441 ; Keney v. New York, 388 U.S. 440 ; see also Rosenbloom v. Virginia, 388
U.S. 450 ; Sunshine Book Co. v. Summerfield, 355 U.S. 372 .
[ Footnote 4 ] People v.
Tannenbaum, 18 N. Y. 2d 268, 270, 220 N. E. 2d 783, 785, dismissed as moot, 388
U.S. 439 . The concept of variable obscenity is developed in Lockhart &
McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45
Minn. L. Rev. 5 (1960). At 85 the authors state: "Variable obscenity . . .
furnishes a useful analytical tool for dealing with the problem of denying
adolescents access to material aimed at a primary audience of sexually mature
adults. For variable obscenity focuses attention upon the make-up of primary
and peripheral audiences in varying circumstances, and provides a reasonably
satisfactory means for delineating the obscene in each circumstance."
[ Footnote 5 ] Suggestions
that legislatures might give attention to laws dealing specifically with safeguarding
children against pornographic material have been made by many judges and
commentators. See, e. g., Jacobellis v. Ohio, 378 U.S. 184, 195 (opinion of
JUSTICES BRENNAN and Goldberg); id., at 201 (dissenting opinion of THE CHIEF
JUSTICE); Ginzburg v. United States, 383 U.S. 463, 498 , n. 1 (dissenting
opinion of MR. JUSTICE STEWART); Interstate Circuit, Inc. v. City of Dallas,
366 F.2d 590, 593; In re Louisiana News Co., 187 F. Supp. 241, 247; United
States v. Levine, 83 F.2d 156; United States v. Dennett, 39 F.2d 564; R. Kuh,
Foolish Figleaves? 258-260 (1967); Emerson, Toward a General Theory of the
First Amendment, 72 Yale L. J. 877, 939 (1963); Gerber, A Suggested Solution to
the Riddle of Obscenity, 112 U. Pa. L. Rev. 834, 848 (1964); Henkin, Morals and
the Constitution: The Sin of Obscenity, 63 Col. L. Rev. 391, 413, n. 68 (1963);
Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup. Ct. Rev. 1, 7;
Magrath, The Obscenity Cases: Grapes of Roth, 1966 Sup. Ct. Rev. 7, 75. The
obscenity laws of 35 other States include provisions referring to minors. The
laws are listed in Appendix B to this opinion. None is a precise counterpart of
New York's 484-h and we imply no view whatever on questions of their
[ Footnote 6 ] Many
commentators, including many committed to the proposition that "[n]o
general restriction on expression in terms of `obscenity' can . . . be
reconciled with the first amendment," recognize that "the power of
the state to control the conduct of children reaches beyond the scope of its
authority over adults," and accordingly acknowledge a supervening state
interest in the regulation of literature sold to children, Emerson, Toward a
General Theory of the First Amendment, 72 Yale L. J. 877, 938, 939 (1963):
"Different factors come into play, also, where the interest at stake is
the effect of erotic expression upon children. The world of children is not
strictly part of the adult realm of free expression. The factor of immaturity,
and perhaps other considerations, impose different rules. Without attempting
here to formulate the principles relevant to freedom of expression for
children, it suffices to say that regulations of communication addressed to
them need not conform to the requirements of the first amendment in the same
way as those applicable to adults." See also Gerber, supra, at 848;
Kalven, supra, at 7; Magrath, supra, at 75. Prince v. Massachusetts is urged to
be constitutional authority for such regulation. See, e. g., Kuh, supra, at
258-260; [390 U.S. 629, 639] Comment,
Exclusion of Children from Violent Movies, 67 Col. L. Rev. 1149, 1159-1160
(1967); Note, Constitutional Problems in Obscenity Legislation Protecting
Children, 54 Geo. L. J. 1379 (1966).
[ Footnote 7 ] One
commentator who argues that obscenity legislation might be constitutionally
defective as an imposition of a single standard of public morality would give
effect to the parental role and accept [390 U.S. 629, 640] laws relating only to minors. Henkin, Morals
and the Constitution: The Sin of Obscenity, 63 Col. L. Rev. 391, 413, n. 68
(1963): "One must consider also how much difference it makes if laws are
designed to protect only the morals of a child. While many of the
constitutional arguments against morals legislation apply equally to legislation
protecting the morals of children, one can well distinguish laws which do not
impose a morality on children, but which support the right of parents to deal
with the morals of their children as they see fit." See also Elias, Sex
Publications and Moral Corruption: The Supreme Court Dilemma, 9 Wm. & Mary
L. Rev. 302, 320-321 (1967).
[ Footnote 8 ] Compare
Memoirs v. Massachusetts, 383 U.S., at 424 (opinion of DOUGLAS, J.) with id.,
at 441 (opinion of Clark, J.). See Kuh, supra, cc. 18-19; Gaylin, Book Review,
77 Yale L. J. 579, 591-595 (1968); Magrath, supra, at 52.
[ Footnote 9 ] Our
conclusion in Roth, at 486-487, that the clear and present danger test was
irrelevant to the determination of obscenity made it unnecessary in that case
to consider the debate among the authorities whether exposure to pornography
caused antisocial consequences. See also Mishkin v. New York, supra; Ginzburg
v. United States, supra; Memoirs v. Massachusetts, supra.
[ Footnote 10 ] Magrath,
supra, at 52. See, e. g., id., at 49-56; Dibble, Obscenity: A State Quarantine
to Protect Children, 39 So. Cal. L. Rev. 345 (1966); Wall, Obscenity and Youth:
The Problem and a Possible Solution, Crim. L. Bull., Vol. 1, No. 8, pp. 28, 30
(1965); Note, 55 Cal. L. Rev. 926, 934 (1967); Comment, 34 Ford. L. Rev. 692,
694 (1966). See also J. Paul & M. Schwartz, Federal Censorship: Obscenity
in the Mail, 191-192; Blakey, Book Review, 41 Notre Dame Law. 1055, 1060, n. 46
(1966); Green, Obscenity, Censorship, and Juvenile Delinquency, 14 U. Toronto L.
Rev. 229, 249 (1962); Lockhart & McClure, Literature, The Law of Obscenity,
and the Constitution, 38 Minn. L. Rev. 295, 373-385 (1954); Note, 52 Ky. L. J.
429, 447 (1964). But despite the vigor of the ongoing controversy whether
obscene material will perceptibly create a danger of antisocial conduct, or
will probably induce its recipients to such conduct, a medical practitioner
recently suggested that the possibility of harmful effects to youth cannot be
dismissed as frivolous. Dr. Gaylin of the Columbia University Psychoanalytic
Clinic, reporting on the views of some psychiatrists in 77 Yale L. J., at
592-593, said: "It is in the period of growth [of youth] when these
patterns of behavior are laid down, when environmental stimuli of all sorts
must be integrated into a workable sense of self, when sensuality is being
defined and fears elaborated, when pleasure confronts security and impulse
encounters control - it is in this period, undramatically and with time, that
legalized pornography may conceivably be damaging." Dr. Gaylin emphasizes
that a child might not be as well prepared as an adult to make an intelligent
choice as to the material he chooses to read: "[P]sychiatrists . . . made
a distinction between the reading of pornography, as unlikely to be per se
harmful, and the permitting of the reading of pornography, which was conceived
as potentially destructive. The child is protected in his reading of
pornography by the knowledge that it is pornographic, i. e., disapproved. It is
outside of parental standards and not a part of his identification [390 U.S.
629, 643] processes. To openly permit
implies parental approval and even suggests seductive encouragement. If this is
so of parental approval, it is equally so of societal approval - another potent
influence on the developing ego." Id., at 594.
MR. JUSTICE STEWART,
concurring in the result.
A doctrinaire, knee-jerk
application of the First Amendment would, of course, dictate the nullification
of [390 U.S. 629, 649] this New York
statute. 1 But that result is not required, I think, if we bear in mind what it
is that the First Amendment protects.
The First Amendment
guarantees liberty of human expression in order to preserve in our Nation what
Mr. Justice Holmes called a "free trade in ideas." 2 To that end, the
Constitution protects more than just a man's freedom to say or write or publish
what he wants. It secures as well the liberty of each man to decide for himself
what he will read and to what he will listen. The Constitution guarantees, in
short, a society of free choice. Such a society presupposes the capacity of its
members to choose.
When expression occurs in a
setting where the capacity to make a choice is absent, government regulation of
that expression may co-exist with and even implement First Amendment
guarantees. So it was that this Court sustained a city ordinance prohibiting
people from imposing their opinions on others "by way of sound trucks with
loud and raucous noises on city streets." 3 And so it was that my Brothers
BLACK and DOUGLAS thought that the First Amendment itself prohibits a person
from foisting his uninvited views upon the members of a captive audience.
I think a State may
permissibly determine that, at least in some precisely delineated areas, a
child 5 - like someone in a captive audience - is not possessed of that [390
U.S. 629, 650] full capacity for
individual choice which is the presupposition of First Amendment guarantees. It
is only upon such a premise, I should suppose, that a State may deprive
children of other rights - the right to marry, for example, or the right to
vote - deprivations that would be constitutionally intolerable for adults.
I cannot hold that this
state law, on its face, 7 violates the First and Fourteenth Amendments.
[ Footnote 1 ] The First
Amendment is made applicable to the States through the Fourteenth Amendment.
Stromberg v. California, 283 U.S. 359 .
[ Footnote 2 ] Abrams v.
United States, 250 U.S. 616, 630 (dissenting opinion).
[ Footnote 3 ] Kovacs v.
Cooper, 336 U.S. 77, 86 .
[ Footnote 4 ] Public
Utilities Comm'n v. Pollak, 343 U.S. 451, 466 (dissenting opinion of MR.
JUSTICE BLACK), 467 (dissenting opinion of MR. JUSTICE DOUGLAS).
[ Footnote 5 ] The
appellant does not challenge New York's power to draw the line at age 17, and I
intimate no view upon that question.
[ Footnote 6 ] Compare
Loving v. Virginia, 388 U.S. 1, 12 ; Carrington v. Rash, 380 U.S. 89, 96 .
[ Footnote 7 ] As the Court
notes, the appellant makes no argument that the material in this case was not
"harmful to minors" within the statutory definition, or that the
statute was unconstitutionally applied.
MR. JUSTICE DOUGLAS, with
whom MR. JUSTICE BLACK concurs, dissenting.
While I would be willing to
reverse the judgment on the basis of Redrup v. New York, 386 U.S. 767 , for the
reasons stated by my Brother FORTAS, my objections strike deeper.
If we were in the field of
substantive due process and seeking to measure the propriety of state law by
the standards of the Fourteenth Amendment, I suppose there would be no
difficulty under our decisions in sustaining this act. For there is a view held
by many that the so-called "obscene" book or tract or magazine has a
deleterious effect upon the young, although I seriously doubt the wisdom of
trying by law to put the fresh, evanescent, natural blossoming of sex in the
category of "sin."
That, however, was the view
of our preceptor in this field, Anthony Comstock, who waged his war against
"obscenity" from the year 1872 until his death in 1915. Some of his
views are set forth in his book Traps for the Young, first published in 1883,
excerpts from which I set out in Appendix I to this opinion. [390 U.S. 629,
The title of the book
refers to "traps" created by Satan "for boys and girls
especially." Comstock, of course, operated on the theory that every human
has an "inborn tendency toward wrongdoing which is restrained mainly by
fear of the final judgment." In his view any book which tended to remove
that fear is a part of the "trap" which Satan created. Hence,
Comstock would have condemned a much wider range of literature than the present
Court is apparently inclined to do. 1
It was Comstock who was
responsible for the Federal Anti-Obscenity Act of March 3, 1873. 17 Stat. 598.
It was he who was also responsible for the New York Act which soon followed. He
was responsible for the organization of the New York Society for the
Suppression of Vice, which by its act of incorporation was granted onehalf of
the fines levied on people successfully prosecuted by the Society or its
I would conclude from
Comstock and his Traps for the Young and from other authorities that a
legislature could not be said to be wholly irrational 2 (Ferguson [390 U.S.
629, 652] v. Skrupa, 372 U.S. 726 ; and
see Williamson v. Lee Optical Co., 348 U.S. 483 ; Daniel v. Family Ins. Co.,
336 U.S. 220 ; Olsen v. Nebraska, 313 U.S. 236 ) if it decided that sale of
"obscene" material to the young should be banned. 3
The problem under the First
Amendment, however, has always seemed to me to be quite different. For its
mandate (originally applicable only to the Federal Government but now
applicable to the States as well by reason of the Fourteenth Amendment) is
directed to any law "abridging the freedom of speech, or of the
press." I appreciate that there are those who think that [390 U.S. 629,
653] "obscenity" is impliedly
excluded; but I have indicated on prior occasions why I have been unable to
reach that conclusion. 4 See Ginzburg v. United States, 383 U.S. 463 , [390
U.S. 629, 654] 482 (dissenting
opinion); Jacobellis v. Ohio, 378 U.S. 184, 196 (concurring opinion of MR.
JUSTICE BLACK); Roth v. United States, 354 U.S. 476, 508 (dissenting opinion).
And the corollary of that view, as I expressed it in Public Utilities Comm'n v.
Pollak, 343 U.S. 451, 467 , 468 (dissenting opinion), is that Big Brother can
no more say what a person shall listen to or read than he can say what shall be
This is not to say that the
Court and Anthony Comstock are wrong in concluding that the kind of literature
New York condemns does harm. As a matter of fact, the notion of censorship is
founded on the belief that speech and press sometimes do harm and therefore can
be regulated. I once visited a foreign nation where the regime of censorship
was so strict that all I could find in the bookstalls were tracts on religion
and tracts on mathematics. Today the Court determines the constitutionality of
New York's law regulating the sale of literature to children on the basis of
the reasonableness of the law in light of the welfare of the child. If the
problem of state and federal regulation of "obscenity" is in the
field of substantive due process, I see no reason to limit the legislatures to
protecting children alone. The "juvenile delinquents" I have known
are mostly over [390 U.S. 629, 655] 50
years of age. If rationality is the measure of the validity of this law, then I
can see how modern Anthony Comstocks could make out a case for
"protecting" many groups in our society, not merely children.
While I find the literature
and movies which come to us for clearance exceedingly dull and boring, I
understand how some can and do become very excited and alarmed and think that
something should be done to stop the flow. It is one thing for parents 5 and
the religious organizations to be active and involved. It is quite a different
matter for the state to become implicated as a censor. As I read the First
Amendment, it was designed to keep the state and the hands of all state
officials off the printing presses of America and off the distribution systems
for all printed literature. Anthony Comstock wanted it the other way; he indeed
put the police and prosecutor in the middle of this publishing business.
I think it would require a
constitutional amendment to achieve that result. If there were a constitutional
amendment, perhaps the people of the country would come up with some national
board of censorship. Censors are, of course, propelled by their own neuroses.
6 [390 U.S. 629, 656] That is why a universally accepted
definition of obscenity is impossible. Any definition is indeed highly subjective,
turning on the neurosis of the censor. Those who have a deep-seated, subconscious
conflict may well become either great crusaders against a particular kind of
literature or avid customers of it. 7 That, of course, is the danger of letting
any group of citizens be the judges of what other people, young or old, should
read. Those would be issues to be canvassed and debated in case of a
constitutional amendment creating a regime of censorship in the country. And if
the people, in their wisdom, launched us on that course, it would be a
Today this Court sits as the
Nation's board of censors. With all respect, I do not know of any group in the
country less qualified first, to know what obscenity is when they see it, and
second, to have any considered judgment as to what the deleterious or
beneficial impact of a particular publication may be on minds either young or
I would await a
constitutional amendment that authorized the modern Anthony Comstocks to censor
literature before publishers, authors, or distributors can be fined or jailed
for what they print or sell.
APPENDIX I TO OPINION OF MR. JUSTICE
A. COMSTOCK, TRAPS FOR THE YOUNG 20-22
And it came to pass that as
Satan went to and fro upon the earth, watching his traps and rejoicing over
[390 U.S. 629, 657] his numerous
victims, he found room for improvement in some of his schemes. The daily press
did not meet all his requirements. The weekly illustrated papers of crime would
do for young men and sports, for brothels, gin-mills, and thieves' resorts, but
were found to be so gross, so libidinous, so monstrous, that every decent
person spurned them. They were excluded from the home on sight. They were too
high-priced for children, and too cumbersome to be conveniently hid from the
parent's eye or carried in the boy's pocket. So he resolved to make another
trap for boys and girls especially.
He also resolved to make
the most of these vile illustrated weekly papers, by lining the news-stands and
shop-windows along the pathway of the children from home to school and church,
so that they could not go to and from these places of instruction without
giving him opportunity to defile their pure minds by flaunting these atrocities
before their eyes.
And Satan rejoiced greatly
that professing Christians were silent and apparently acquiesced in his plans.
He found that our most refined men and women went freely to trade with persons
who displayed these traps for sale; that few, if any, had moral courage to
enter a protest against this public display of indecencies, and scarcely one in
all the land had the boldness to say to the dealer in filth, "I will not
give you one cent of my patronage so long as you sell these devil-traps to ruin
the young." And he was proud of professing Christians and respectable
citizens on this account, and caused honorable mention to be made of them in
general order to his imps, because of the quiet and orderly assistance thus
Satan stirred up certain of
his willing tools on earth by the promise of a few paltry dollars to improve
greatly on the death-dealing quality of the weekly death-traps, and forthwith
came a series of new snares of fascinating [390 U.S. 629, 658] construction, small and tempting in price,
and baited with high-sounding names. These sure-ruin traps comprise a large
variety of half-dime novels, five and ten cent story papers, and low-priced
pamphlets for boys and girls.
This class includes the
silly, insipid tale, the coarse, slangy story in the dialect of the barroom,
the blood-and-thunder romance of border life, and the exaggerated details of
crimes, real and imaginary. Some have highly colored sensational reports of
real crimes, while others, and by far the larger number, deal with most
improbable creations of fiction. The unreal far outstrips the real. Crimes are
gilded, and lawlessness is painted to resemble valor, making a bid for bandits,
brigands, murderers, thieves, and criminals in general. Who would go to the
State prison, the gambling saloon, or the brothel to find a suitable companion
for the child? Yet a more insidious foe is selected when these stories are
allowed to become associates for the child's mind and to shape and direct the
The finest fruits of
civilization are consumed by these vermin. Nay, these products of corrupt minds
are the eggs from which all kinds of villainies are hatched. Put the entire
batch of these stories together, and I challenge the publishers and vendors to
show a single instance where any boy or girl has been elevated in morals, or
where any noble or refined instinct has been developed by them.
The leading character in
many, if not in the vast majority of these stories, is some boy or girl who
possesses usually extraordinary beauty of countenance, the most superb
clothing, abundant wealth, the strength of a giant, the agility of a squirrel,
the cunning of a fox, the brazen effrontery of the most daring villain, and who
is utterly destitute of any regard for the laws of God or man. Such a one is
foremost among desperadoes, the companion and [390 U.S. 629, 659] beau-ideal of maidens, and the high favorite
of some rich person, who by his patronage and indorsement lifts the young
villain into lofty positions in society, and provides liberally of his wealth
to secure him immunity for his crimes. These stories link the pure maiden with
the most foul and loathsome criminals. Many of them favor violation of marriage
laws and cheapen female virtue.
APPENDIX II TO OPINION OF MR. JUSTICE
A SPECIAL TO THE WASHINGTON POST [March
AUSTIN C. WEHRWEIN
White Bear Lake, Minn.,
March 2. - Faced with the threat of a law suit, the school board in this
community of 12,000 north of St. Paul is reviewing its mandatory sex education
courses, but officials expressed fear that they couldn't please everybody.
Mothers threatened to
picket and keep their children home when sex education films are scheduled.
Mrs. Robert Murphy, the mother of five who led the protests, charged that the
elementary school "took the privacy out of marriage."
"Now," she said, "our kids
know what a shut bedroom door means. The program is taking their childhood
away. The third graders went in to see a movie on birth and came out
She said second-grade girls
have taken to walking around with "apples and oranges under their
blouses." Her seventh-grade son was given a study sheet on menstruation,
she said, demanding "why should a seventh-grade boy have to know about
Mrs. Murphy, who fears the
program will lead to experimentation, [390 U.S. 629, 660] said that it was "pagan" and
argued that even animals don't teach their young those things "before
"One boy in our block told his
mother, `Guess what, next week our teacher's gonna tell us how daddy fertilized
you,'" reported Mrs. Martin Capeder. "They don't need to know all
But Norman Jensen,
principal of Lincoln School, said that the program, which runs from
kindergarten through the 12th grade, was approved by the school district's PTA
council, the White Bear Lake Ministerial Association and the district school
board. It was based, he said, on polls that showed 80 per cent of the children
got no home sex education, and the curriculum was designed to be
The protesting parents
insisted they had no objection to sex education as such, but some said girls
should not get it until age 12, and boys only at age 15 - "or when they
(In nearby St. Paul Park,
71 parents have formed a group called "Concerned Parents Against Sex
Education" and are planning legal action to prevent sex education from
kindergarten through seventh grade. They have also asked equal time with the
PTAs of eight schools in the district "to discuss topics such as
masturbation, contraceptives, unqualified instructors, religious belief,
morality and attitudes.")
The White Bear protesters
have presented the school board with a list of terms and definitions deemed
objectionable. Designed for the seventh grade, it included vagina, clitoris,
erection, intercourse and copulation. A film, called "Fertilization and
Birth" depicts a woman giving birth. It has been made optional after being
shown to all classes.
Mrs. Ginny McKay, a
president of one of the local PTAs defended the program, saying "Sex is a
natural and [390 U.S. 629, 661]
beautiful thing. We (the PTA) realized that the parents had to get
around to where the kids have been for a long time."
But Mrs. Murphy predicted
this result: "Instead of 15 [sic] and 15-year-old pregnant girls, they'll
have 12 and 13-year-old pregnant girls."
APPENDIX III TO OPINION OF MR. JUSTICE
(A). T. SCHROEDER, OBSCENE
LITERATURE AND CONSTITUTIONAL LAW 277-278 (1911).
It thus appears that the
only unifying element generalized in the word "obscene," (that is,
the only thing common to every conception of obscenity and indecency), is
subjective, is an affiliated emotion of disapproval. This emotion under varying
circumstances of temperament and education in different persons, and in the
same person in different stages of development, is aroused by entirely
different stimuli, and by fear of the judgment of others, and so has become
associated with an infinite variety of ever-changing objectives, with not even
one common characteristic in objective nature; that is, in literature or art.
Since few men have
identical experiences, and fewer still evolve to an agreement in their
conceptional and emotional associations, it must follow that practically none
have the same standards for judging the "obscene," even when their
conclusions agree. The word "obscene," like such words as delicate,
ugly, lovable, hateful, etc., is an abstraction not based upon a reasoned, nor
sense-perceived, likeness between objectives, but the selection or
classification under it is made, on the basis of similarity in the emotions
aroused, by an infinite variety of images; and every classification thus made,
in turn, depends in each person upon his fears, his hopes, his [390 U.S. 629,
662] prior experience, suggestions,
education, and the degree of neuro-sexual or psycho-sexual health. Because it
is a matter wholly of emotions, it has come to be that "men think they
know because they feel, and are firmly convinced because strongly
This, then, is a
demonstration that obscenity exists only in the minds and emotions of those who
believe in it, and is not a quality of a book or picture. Since, then, the
general conception "obscene" is devoid of every objective element of
unification; and since the subjective element, the associated emotion, is
indefinable from its very nature, and inconstant as to the character of the
stimulus capable of arousing it, and variable and immeasurable as to its
relative degrees of intensity, it follows that the "obscene" is
incapable of accurate definition or a general test adequate to secure
uniformity of result, in its application by every person, to each book of
Being so essentially and
inextricably involved with human emotions that no man can frame such a
definition of the word "obscene," either in terms of the qualities of
a book, or such that, by it alone, any judgment whatever is possible, much less
is it possible that by any such alleged "test" every other man must
reach the same conclusion about the obscenity of every conceivable book.
Therefore, the so-called judicial "tests" of obscenity are not
standards of judgment, but, on the contrary, by every such "test" the
rule of decision is itself uncertain, and in terms invokes the varying
experiences of the test[e]rs within the foggy realm of problematical
speculation about psychic tendencies, without the help of which the
"test" itself is meaningless and useless. It follows that to each
person the "test," of criminality, which should be a general standard
of judgment, unavoidably becomes a personal and particular standard, differing
in all persons [390 U.S. 629, 663]
according to those varying experiences which they read into the judicial
"test." It is this which makes uncertain, and, therefore, all the
more objectionable, all the present laws against obscenity. Later it will be
shown that this uncertainty in the criteria of guilt renders these laws
(B). KALLEN, THE ETHICAL ASPECTS OF
CENSORSHIP, IN 5 SOCIAL MEANING OF LEGAL CONCEPTS 34, 50-51 (N. Y. U. 1953).
To this authoritarian's
will, difference is the same thing as inferiority, wickedness and corruption;
he can apprehend it only as a devotion to error and a commitment to sin. He can
acknowledge it only if he attributes to it moral turpitude and intellectual
vice. Above all, difference must be for him, by its simple existence, an
aggression against the good, the true, the beautiful and the right. His
imperative is to destroy it; if he cannot destroy it, to contain it; if he
cannot contain it, to hunt it down, cut it off and shut it out.
Certain schools of
psychology suggest that this aggression is neither simple nor wholly
aggression. They suggest that it expresses a compulsive need to bring to open
contemplation the secret parts of the censor's psychosomatic personality, and a
not less potent need to keep the secret and not suffer the shamefaced dishonor
of their naked exposures. The censor's activities, in that they call for a
constant public preoccupation with such secret parts, free his psyche from the
penalties of such concern while transvaluing at the same time his pursuit and
inspection of the obscene, the indecent, the pornographic, the blasphemous and
the otherwise shameful into an honorable defense of the public morals. The
censor, by purporting, quite unconscious of his actual dynamic, to protect the
young from corruption, frees his consciousness [390 U.S. 629, 664] to dwell upon corruption without shame or
dishonor. Thus, Anthony Comstock could say with overt sincerity: "When the
genius of the arts produces obscene, lewd and lascivious ideas, the deadly
effect upon the young is just as perceptible as when the same ideas are represented
by gross experience in prose and poetry. . . . If through the eye and ear the
sensuous book, picture or story is allowed to enter, the thoughts will be
corrupted, the conscience seared, so such things reproduced by fancy in the
thoughts awaken forces for evil which will explode with irresistible force
carrying to destruction every human safeguard to virtue and honor." Did
not evil Bernard Shaw, who gave the English language the word comstockery,
declare himself, in his preface to The Shewing-Up of Blanco Posnet, "a
specialist in immoral, heretical plays . . . to force the public to reconsider
its morals"? So the brave Comstock passionately explored and fought the
outer expressions of the inner forces of evil and thus saved virtue and honor
But could this observation
of his be made, save on the basis of introspection and not the scientific study
of others? For such a study would reveal, for each single instance of which it
was true, hundreds of thousands of others of which it was false. Like the
correlation of misfortune with the sixth day of the week or the number 13, this
basic comstockery signalizes a fear-projected superstition. It is an
externalization of anxiety and fear, not a fact objectively studied and
appraised. And the anxiety and fear are reaction-formations of the censor's
Of course, this is an
incomplete description of the motivation and logic of censorship. In the great
censorial establishments of the tradition, these more or less unconscious
drives are usually items of a syndrome whose dominants are either greed for
pelf, power, and prestige, reinforced by anxiety that they might be lost, [390
U.S. 629, 665] or anxiety that they
might be lost reinforced by insatiable demands for more.
usually insure these goods by means of a prescriptive creed and code for which
their rulers claim supernatural origins and supernatural sanctions. The
enforcement of the prescriptions is not entrusted to a censor alone. The
ultimate police-power is held by the central hierarchy, and the censorship of
the arts is only one department of the thought-policing.
(C). CRAWFORD, LITERATURE AND THE
PSYCHOPATHIC, 10 PSYCHOANALYTIC REVIEW 440, 445-446 (1923).
Objection, then, to modern
works on the ground that they are, in the words of the objectors,
"immoral," is made principally on the basis of an actual desire to
keep sexual psychopathies intact, or to keep the general scheme of repression,
which inevitably involves psychopathic conditions, intact. The activities of
persons professionally or otherwise definitely concerned with censorship
furnish proof evident enough to the student of such matters that they
themselves are highly abnormal. It is safe to say that every censorship has a
psychopath back of it.
Carried to a logical end,
censorship would inevitably destroy all literary art. Every sexual act is an
instinctive feeling out for an understanding of life. Literary art, like every
other type of creative effort, is a form of sublimation. It is a more conscious
seeking for the same understanding that the common man instinctively seeks. The
literary artist, having attained understanding, communicates that understanding
to his readers. That understanding, whether of sexual or other matters, is
certain to come into conflict with popular beliefs, fears, and taboos because
these are, for the most part, based on error. . . . [T]he presence of an
opinion concerning which one thinks it would be unprofitable, immoral, or [390
U.S. 629, 666] unwise to inquire is, of
itself, strong evidence that that opinion is nonrational. Most of the more
deep-seated convictions of the human race belong to this category. Anyone who
is seeking for understanding is certain to encounter this nonrational attitude.
The act of sublimation on
the part of the writer necessarily involves an act of sublimation on the part
of the reader. The typical psychopathic patient and the typical public have
alike a deep-rooted unconscious aversion to sublimation. Inferiority and other
complexes enter in to make the individual feel that acts of sublimation would
destroy his comfortable, though illusory, sense of superiority. Again, there is
the realization on the part of the mass of people that they are unable to
sublimate as the artist does, and to admit his power and right to do so
involves destruction of the specious sense of superiority to him. It is these
two forms of aversion to sublimation which account for a considerable part of
public objection to the arts. The common man and his leader, the psychopathic
reformer, are aiming unconsciously at leveling humanity to a plane of
To the student of abnormal
psychology the legend, popular literature, and literature revelatory of actual
life, are all significant. In the legend he finds race taboos, in the popular
literature of the day he discovers this reinforced by the mass of contemporary
and local taboos, in literature that aims to be realistically revelatory of
life he finds material for study such as he can hardly obtain from any group of
patients. The frankness which he seeks in vain from the persons with whom he
comes into personal contact, he can find in literature. It is a field in which
advances may be made comparable to the advances of actual scientific research.
Moreover, the student of
abnormal psychology will commend realistic, revelatory literature not only to
his [390 U.S. 629, 667] patients, who
are suffering from specific psychopathic difficulties, but to the public generally.
He will realize that it is one of the most important factors in the development
of human freedom. No one is less free than primitive man. The farther we can
get from the attitude of the legend and its slightly more civilized successor,
popular literature, the nearer we shall be to a significant way of life.
(D). J. RINALDO, PSYCHOANALYSIS OF THE
"REFORMER" 56-60 (1921).
The other aspect of the
humanist movement is a very sour and disgruntled puritanism, which seems at
first glance to protest and contradict every step in the libidinous
development. As a matter of fact it is just as much an hysterical outburst as
the most sensuous flesh masses of Rubens, or the sinuous squirming lines of
Louis XV decoration. Both are reactions to the same morbid past experience.
The Puritan like the
sensualist rebels at the very beginning against the restraint of celibacy.
Unfortunately, however, he finds himself unable to satisfy the libido in either
normal gratification or healthy converted activities. His condition is as much
one of super-excitement as that of the libertine. Unable to find satisfaction
in other ways, from which for one reason or another he is inhibited, he
develops a morbid irritation, contradicting, breaking, prohibiting and
thwarting the manifestations of the very exciting causes.
Not being able to produce
beautiful things he mars them, smashing stained glass windows, destroying
sculptures, cutting down May-poles, forbidding dances, clipping the hair,
covering the body with hideous misshapen garments and silencing laughter and
song. He cannot build so he must destroy. He cannot create so he hinders
creation. He is a sort of social abortionist and like an [390 U.S. 629,
668] abortionist only comes into his
own when there is an illegitimate brat to be torn from the womb. He cries
against sin, but it is the pleasure of sin rather than the sin he fights. It is
the enjoyment he is denied that he hates.
From no age or clime or
condition is he absent; but never is he a dominant and deciding factor in
society till that society has passed the bounds of sanity. Those who wait the
midwife never call in the abortionist, nor does he ever cure the real sickness
of his age. That he does survive abnormal periods to put his impress on the
repressions of later days is due to the peculiar economy of his behavior. The
libertine destroys himself, devouring his substance in self-satisfaction. The
reformer devours others, being somewhat in the nature of a tax on vice, living
by the very hysteria that destroys his homologous opposite.
In our own day we have
reached another of those critical periods strikingly similar in its
psychological symptoms and reactions, at least, to decadent Rome. We have the
same development of extravagant religious cults, Spiritism, Dowieism, "The
Purple Mother," all eagerly seized upon, filling the world with clamor and
frenzy; the same mad seeking for pleasure, the same breaking and scattering of
forms, the same orgy of gluttony and extravagance, the same crude emotionalism
in art, letter and the theater, the same deformed and inverted sexual life.
Homo-sexualism may not be
openly admitted, but the "sissy" and his red necktie are a familiar
and easily understood property of popular jest and pantomime. It is all a mad
jazz jumble of hysterical incongruities, dog dinners, monkey marriages, cubism,
birth control, feminism, free-love, verse libre, and moving pictures. Through
it all runs the strident note of puritanism. As one grows so does the other.
Neither seems to precede or follow. [390 U.S. 629, 669]
It would be a rash man
indeed who would attempt to give later beginnings to the reform movements than
to the license they seem so strongly to contradict. Significant indeed is the
fact that their very license is the strongest appeal of the reformer. Every
movie must preach a sermon and have a proper ending, but the attempted rape is
as seldom missing as the telephone; and it is this that thrills and is expected
The same sexual paradox we
saw in the eunuch priests and harlot priestesses of Isis we see in the
vice-crusading, vice-pandering reformers. Back of it all lies a morbid sexual
condition, which is as much behind the anti-alcoholism of the prohibitionist, as
behind the cropped head of his puritan father, and as much behind the
birthcontrol, vice-crusading virgins as behind their more amiable sisters of
Interpreted then in the
light of their history, libertinism and reformism cannot be differentiated as
cause and effect, action and reaction, but must be associated as a two-fold
manifestation of the same thing, an hysterical condition. They differ in
externals, only insofar as one operates in license and the other in repression,
but both have the same genesis and their development is simultaneous.
(E). H. LASSWELL, PSYCHOPATHOLOGY AND
POLITICS 94-96 (1930).
Another significant private
motive, whose organization dates from early family days, but whose influence
was prominent in adult behavior, was A's struggle to maintain his sexual
repressions. ["A" is an unidentified, nonfictional person whose life
history was studied by the author.] He erected his very elaborate personal
prohibitions into generalized prohibitions for all society, and just as he laid
down the law against brother-hatred, he condemned "irregular"
sexuality and gambling and drinking, [390 U.S. 629, 670] its associated indulgences. He was driven to
protect himself from himself by so modifying the environment that his sexual
impulses were least often aroused, but it is significant that he granted
partial indulgence to his repressed sexuality by engaging in various activities
closely associated with sexual operations. Thus his sermons against vice
enabled him to let his mind dwell upon rich fantasies of seduction. His
crusading ventures brought him to houses of ill fame, where partly clad women
were discoverable in the back rooms. These activities were rationalized by
arguing that it was up to him as a leader of the moral forces of the community
to remove temptation from the path of youth. At no time did he make an
objective inquiry into the many factors in society which increase or diminish
prostitution. His motives were of such an order that he was prevented from
self-discipline by prolonged inspection of social experience.
That A was never able to
abolish his sexuality is sufficiently evident in his night dreams and day
dreams. In spite of his efforts to "fight" these manifestations of
his "antisocial impulses," they continued to appear. Among the direct
and important consequences which they produced was a sense of sin, not only a
sense of sexual sin, but a growing conviction of hypocrisy. His
"battle" against "evil" impulses was only partially
successful, and this produced a profound feeling of insecurity.
This self-punishing strain
of insecurity might be alleviated, he found, by publicly reaffirming the creed
of repression, and by distracting attention to other matters. A's rapid
movements, dogmatic assertions, and diversified activities were means of escape
from this gnawing sense of incapacity to cope with his own desires and to
master himself. Uncertain of his power to control himself, he was very busy
about controlling others, and engaged in endless committee sessions, personal
conferences, and public meetings for the purpose. He always managed [390 U.S.
629, 671] to submerge himself in a
buzzing life of ceaseless activity; he could never stand privacy and solitude,
since it drove him to a sense of futility; and he couldn't undertake prolonged
and laborious study, since his feeling of insecurity demanded daily evidence of
his importance in the world.
A's sexual drives continued
to manifest themselves, and to challenge his resistances. He was continually
alarmed by the luring fear that he might be impotent. Although he proposed
marriage to two girls when he was a theology student, it is significant that he
chose girls from his immediate entourage, and effected an almost instantaneous
recovery from his disappointments. This warrants the inference that he was
considerably relieved to postpone the test of his potency, and this inference
is strengthened by the long years during which he cheerfully acquiesced in the
postponement of his marriage to the woman who finally became his wife. He lived
with people who valued sexual potency, particularly in its conventional and
biological demonstration in marriage and children, and his unmarried state was
the object of good-natured comment. His pastoral duties required him to
"make calls" on the sisters of the church, and in spite of the cheer
which he was sometimes able to bring to the bedridden, there was the faint
whisper of a doubt that this was really a man's job. And though preaching was a
socially respectable occupation, there was something of the ridiculous in the
fact that one who had experienced very little of life should pass for a
privileged censor of all mankind.
[ Footnote 1 ] Two writers
have explained Comstock as follows: "He must have known that he could not
wall out from his own mind all erotic fancies, and so he turned all the more
fiercely upon the ribaldry of others." H. Broun & M. Leech, Anthony
Comstock 27 (1927). A notable forerunner of Comstock was an Englishman, Thomas
Bowdler. Armed with a talent for discovering the "offensive," Bowdler
expurgated Shakespeare's plays and Gibbon's History of the Decline and Fall of
the Roman Empire. The result was "The Family Shakespeare," first
published in 10 volumes in 1818, and a version of Gibbon's famous history "omitting
everything of an immoral or irreligious nature, and incidentally rearranging
the order of chapters to be in the strict chronology so dear to the obsessional
heart." M. Wilson, The Obsessional Compromise, A Note on Thomas Bowdler
(1965) (paper in Library of the American Psychiatric Association, Washington,
[ Footnote 2 ] "The
effectiveness of more subtle forms of censorship as an instrument of social
control can be very great. They are effective over [390 U.S. 629, 652] a wider field of behavior than is propaganda
in that they affect convivial and `purely personal' behavior. "The
principle is that certain verbal formulae shall not be stated, in print or in
conversation; from this the restriction extends to the discussion of certain
topics. A perhaps quite rationally formulated taboo is imposed; it becomes a
quasi-religious factor for the members of the group who subscribe to it. If
they are a majority, and the taboo does not affect some master-symbol of an
influential minority, it is apt to become quite universal in its effect. A
great number of taboos - to expressive and to other acts - are embodied in the
mores of any people. The sanction behind each taboo largely determines its
durability - in the sense of resistance opposed to the development of contradictory
counter-mores, or of simple disintegration from failure to give returns in
personal security. If it is to succeed for a long time, there must be recurrent
reaffirmations of the taboo in connection with the sanctioning power. "The
occasional circulation of stories about a breach of the taboo and the evil
consequences that flowed from this to the offender and to the public cause (the
sanctioning power) well serves this purpose. Censorship of this sort has the
color of voluntary acceptance of a ritualistic avoidance, in behalf of oneself
and the higher power. A violation, after the primitive patterns to which we
have all been exposed, strikes at both the sinner and his god." The
William Alanson White Psychiatric Foundation Memorandum: Propaganda &
Censorship, 3 Psychiatry 628, 631 (1940).
[ Footnote 3 ] And see
Gaylin, Book Review: The Prickly Problems of Pornography, 77 Yale L. J. 579,
[ Footnote 4 ] My Brother
HARLAN says that no other Justice of this Court, past or present, has ever
"stated his acceptance" of the view that "obscenity" is
within the protection of the First and Fourteenth Amendments. Post, at 705.
That observation, however, should not be understood as demonstrating that no
other members of this Court, since its first Term in 1790, have adhered to the
view of my Brother BLACK and myself. For the issue "whether obscenity is
utterance within the area of protected speech and press" was only
"squarely presented" to this Court for the first time in 1957. Roth
v. United States, 354 U.S. 476, 481 . This is indeed understandable, for the
state legislatures have borne the main burden in enacting laws dealing with
"obscenity"; and the strictures of the First Amendment were not
applied to them through the Fourteenth until comparatively late in our history.
In Gitlow v. New York, 268 U.S. 652 , decided in 1925, the Court assumed that
the right of free speech was among the freedoms protected against state
infringement by the Due Process Clause of the Fourteenth Amendment. See also
Whitney v. California, 274 U.S. 357, 371 , 373; Fiske v. Kansas, 274 U.S. 380 .
In 1931, Stromberg v. California, 283 U.S. 359 , held that the right of free
speech was guaranteed in full measure by the Fourteenth Amendment. But even
after these events "obscenity" cases were not inundating this Court;
and even as late as 1948, the Court could say that many state obscenity
statutes had "lain dormant for decades." Winters v. New York, 333
U.S. 507, 511 . In several cases prior to Roth, the Court reviewed convictions
under federal statutes forbidding the sending of "obscene" materials
through the mails. But in none of these cases was the question squarely
presented or decided whether "obscenity" was protected speech under
the First Amendment; rather, the issues were limited to matters of statutory
construction, or questions of procedure, such as the sufficiency of the
indictment. See United States v. Chase, 135 U.S. 255 ; Grimm v. United States,
156 U.S. 604 ; Rosen v. United States, 161 U.S. 29 ; Swearingen v. United
States, 161 U.S. 446 ; Andrews v. United States, 162 U.S. 420 ; Price v. United
States, 165 U.S. 311 ; Dunlop v. United States, 165 U.S. 486 ; Bartell v.
United States, 227 U.S. 427 ; Dysart v. United States, 272 U.S. 655 ; United
States v. Limehouse, 285 U.S. 424 . Thus, Roth v. United States, supra, which
involved both a challenge to 18 U.S.C. 1461 (punishing the [390 U.S. 629,
654] mailing of "obscene"
material) and, in a consolidated case (Alberts v. California), an attack upon
Cal. Pen. Code 311 (prohibiting, inter alia, the keeping for sale or
advertising of "obscene" material), was the first case
authoritatively to measure federal and state obscenity statutes against the
prohibitions of the First and Fourteenth Amendments. I cannot speak for those
who preceded us in time; but neither can I interpret occasional utterances
suggesting that "obscenity" was not protected by the First Amendment
as considered expressions of the views of any particular Justices of the Court.
See, e. g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571 -572; Beauharnais v.
Illinois, 343 U.S. 250, 266 . The most that can be said, then, is that no other
members of this Court since 1957 have adhered to the view of my Brother BLACK
[ Footnote 5 ] See Appendix
II to this opinion.
[ Footnote 6 ] Reverend Fr.
Juan de Castaniza of the 16th century explained those who denounced obscenity
as expressing only their own feelings. In his view they had too much reason to
suspect themselves of being "obscene," since "vicious men are
always prone to think others like themselves." T. Schroeder, A Challenge
to Sex Censors 44-45 (1938). "Obscenity, like witchcraft . . . consists,
broadly speaking, of a [delusional] projection of certain emotions (which, as
the very word implies, emanate from within) to external things and an endowment
of such things (or in the case of witchcraft, of such persons) with the moral
qualities corresponding to these inward states. . . . "Thus persons
responsible for the persistent attempts to suppress the dissemination of popular
knowledge concerning sex matters betray themselves unwittingly as the bearers
of the very impulses they would so ostentatiously help others to avoid. Such
persons should [390 U.S. 629, 656] know
through their own experience that ignorance of a subject does not insure
immunity against the evils of which it treats, nor does the propitiatory act of
noisy public disapproval of certain evils signify innocence or personal
purity." Van Teslaar, Book Review, 8 J. Abnormal Psychology 282, 286
[ Footnote 7 ] See Appendix
III to this opinion.
MR. JUSTICE FORTAS,
This is a criminal
prosecution. Sam Ginsberg and his wife operate a luncheonette at which
magazines are offered for sale. A 16-year-old boy was enlisted by his mother to
go to the luncheonette and buy some [390 U.S. 629, 672] "girlie" magazines so that Ginsberg
could be prosecuted. He went there, picked two magazines from a display case,
paid for them, and walked out. Ginsberg's offense was duly reported to the
authorities. The power of the State of New York was invoked. Ginsberg was
prosecuted and convicted. The court imposed only a suspended sentence. But as
the majority here points out, under New York law this conviction may mean that
Ginsberg will lose the license necessary to operate his luncheonette.
The two magazines that the
16-year-old boy selected are vulgar "girlie" periodicals. However
tasteless and tawdry they may be, we have ruled (as the Court acknowledges)
that magazines indistinguishable from them in content and offensiveness are not
"obscene" within the constitutional standards heretofore applied.
See, e. g., Gent v. Arkansas, 386 U.S. 767 (1967). These rulings have been in
cases involving adults.
The Court avoids facing the
problem whether the magazines in the present case are "obscene" when
viewed by a 16-year-old boy, although not "obscene" when viewed by
someone 17 years of age or older. It says that Ginsberg's lawyer did not choose
to challenge the conviction on the ground that the magazines are not
"obscene." He chose only to attack the statute on its face. Therefore,
the Court reasons, we need not look at the magazines and determine whether they
may be excluded from the ambit of the First Amendment as "obscene"
for purposes of this case. But this Court has made strong and comprehensive
statements about its duty in First Amendment cases - statements with which I
agree. See, e. g., Jacobellis v. Ohio, 378 U.S. 184, 187 -190 (1964) (opinion
of BRENNAN, J.). * [390 U.S. 629,
In my judgment, the Court
cannot properly avoid its fundamental duty to define "obscenity" for
purposes of censorship of material sold to youths, merely because of counsel's
position. By so doing the Court avoids the essence of the problem; for it the
State's power to censor freed from the prohibitions of the First Amendment
depends upon obscenity, and if obscenity turns on the specific content of the
publication, how can we sustain the conviction here without deciding whether
the particular magazines in question are obscene?
The Court certainly cannot
mean that the States and cities and counties and villages have unlimited power
to withhold anything and everything that is written or pictorial from younger
people. But it here justifies the conviction of Sam Ginsberg because the impact
of the Constitution, it says, is variable, and what is not obscene for an adult
may be obscene for a child. This it calls "variable obscenity." I do
not disagree with this, but I insist that to assess the principle - certainly
to apply it - the Court must define it. We must know the extent to which
literature or pictures may be less offensive than Roth requires in order to be
"obscene" for purposes of a statute confined to youth. See Roth v.
United States, 354 U.S. 476 (1957).
I agree that the State in
the exercise of its police power - even in the First Amendment domain - may make
proper and careful differentiation between adults and children. But I do not
agree that this power may be used on an arbitrary, free-wheeling basis. This is
not a case where, on any standard enunciated by the Court, [390 U.S. 629, 674] the magazines are obscene, nor one where the
seller is at fault. Petitioner is being prosecuted for the sale of magazines
which he had a right under the decisions of this Court to offer for sale, and
he is being prosecuted without proof of "fault" - without even a
claim that he deliberately, calculatedly sought to induce children to buy
"obscene" material. Bookselling should not be a hazardous profession.
The conviction of Ginsberg
on the present facts is a serious invasion of freedom. To sustain the
conviction without inquiry as to whether the material is "obscene"
and without any evidence of pushing or pandering, in face of this Court's
asserted solicitude for First Amendment values, is to give the State a role in
the rearing of children which is contrary to our traditions and to our
conception of family responsibility. Cf. In re Gault, 387 U.S. 1 (1967). It
begs the question to present this undefined, unlimited censorship as an aid to
parents in the rearing of their children. This decision does not merely protect
children from activities which all sensible parents would condemn. Rather, its
undefined and unlimited approval of state censorship in this area denies to
children free access to books and works of art to which many parents may wish
their children to have uninhibited access. For denial of access to these
magazines, without any standard or definition of their allegedly distinguishing
characteristics, is also denial of access to great works of art and literature.
If this statute were
confined to the punishment of pushers or panderers of vulgar literature I would
not be so concerned by the Court's failure to circumscribe state power by
defining its limits in terms of the meaning of "obscenity" in this
field. The State's police power may, within very broad limits, protect the
parents and their children from public aggression of panderers and pushers.
This is defensible on the theory that they cannot [390 U.S. 629, 675] protect themselves from such assaults. But
it does not follow that the State may convict a passive luncheonette operator
of a crime because a 16-year-old boy maliciously and designedly picks up and
pays for two girlie magazines which are presumably not obscene.
I would therefore reverse
the conviction on the basis of Redrup v. New York, 386 U.S. 767 (1967) and
Ginzburg v. United States, 383 U.S. 463 (1966).
[ Footnote * ] "[W]e
reaffirm the principle that, in `obscenity' cases as in all others involving
rights derived from the First Amendment guarantees [390 U.S. 629, 673] of free expression, this Court cannot avoid
making an independent constitutional judgment on the facts of the case as to
whether the material involved is constitutionally protected." 378 U.S., at
190 . See Cox v. Louisiana, 379 U.S. 536, 545 , n. 8 (1965). [390 U.S. 629,