Is a state law constitutional when it prohibits the sale to minors of publications that may not be obscene to adults? The appellant, who operated a luncheonette on Long Island in New York and sold magazines, was convicted of selling ‘‘girlie’’ magazines to a sixteenyear- old boy. The boy’s mother sent him to the luncheonette to buy the material so that Ginsberg would be prosecuted under New York’s law prohibiting the sale of obscene material to persons under seventeen years of age.
New York’s statute declared that various representations of female nudity were harmful to persons under the age of seventeen if the representations (1) appealed predominantly to the prurient, shameful, or morbid interest of minors; (2) were patently offensive to prevailing standards in the adult community as a whole with respect to what was suitable material for minors; and (3) were utterly without redeeming social importance to minors. The New York Court of Appeals turned back Ginsberg’s challenge to the state’s authority to define obscenity based on its appeal to minors.
In doing so, the court of appeals followed the ‘‘variable concepts’’ notion of obscenity that Justice Brennan introduced in Mishkin v. New York, 383 U.S. 502 (1966), which adapted the Roth standard (Roth v. United States, 354 U.S. 476, 1957) according to the ‘‘sexual interests’’ of the ‘‘intended and probable recipient group,’’ including ‘‘sexually immature persons.’’ As Justice Brennan argues for the majority in affirming the New York court’s decision, the ethical or moral development of youth is an important interest of the state and accordingly within the state’s constitutional authority to regulate. Thus, it was ‘‘rational’’ for New York’s legislature to limit exposure to sexual material in order to avoid its harmful effects on minors even if this material would not be considered obscene from an average adult’s perspective. Justice Brennan dismisses in passing Ginsberg’s claim that New York’s statute was vague as well as his challenge to the scienter requirements of the law.
Justice Fortas dissented and objected to the majority’s unwillingness to determine whether the magazines in question were in fact obscene. Although the justice did not object to the variable obscenity standard, he complained that the majority failed to define what made the material in question obscene for persons under seventeen, but not obscene for those who are seventeen and older. In making this argument, Justice Fortas ignored the content of the New York statute and asked for an independent assessment by the Court. (Ginsberg’s lawyer did not claim the magazines were not obscene in the lower courts, and the Supreme Court majority chose not address this question.)
The question of scienter was also left unresolved from Justice Fortas’s perspective since Ginsberg was prosecuted for selling magazines that, under previous Supreme Court decisions, he had a right to sell. Finally, Ginsberg did not persuade the minor to buy the magazines and thus he was not guilty of pandering. The justice concluded that the majority’s decision meant that a state ‘‘may convict a passive luncheonette operator of a crime because a 16-yearold boy maliciously and designedly picks up and pays for two girlie magazines which are presumably are not obscene.’’
ROY B. FLEMMING
References and Further Reading
Cases and Statutes Cited