Can the marketing and advertising of printed material constitute ‘‘pandering’’ that under the Roth test for obscenity prohibits the material from being mailed? Ginzburg was convicted of mailing publications and unsolicited circulars that indiscriminately pandered to ‘‘erotic interests.’’ He was sentenced to five years in prison. The majority led by Justice Brennan affirmed the lower court convictions and the appellate decision upholding them. This was one of three obscenity decisions handed down on the same day by majorities led by Justice Brennan. Justices Black, Douglas, Harlan, and Stewart wrote separate dissenting opinions in this case.
Justice Brennan’s opinion drew from Justice Warren’s concurring opinion in Roth (Roth v. United States, 354 U.S. 476, 1957) in which the chief justice suggested the focus should be on the defendant’s behavior and not on the character of the material in question. Justice Warren’s view was that current laws forbade persons from ‘‘purveying textual graphic matter openly advertised to appeal to the erotic interest of their customers.’’ Justice Brennan thus accepted the government’s argument that the setting in which the publications are presented can be assessed for obscenity using the Roth test. A background of ‘‘commercial exploitation of erotica solely for the sake of their prurient appeal’’ could be obscene.
The advertisements in this case deliberately represented the publications as ‘‘erotically arousing’’ and ‘‘stimulated the reader to accept them as prurient’’ with no expectation of ‘‘saving intellectual content.’’ Moreover, the advertisements gave the material a ‘‘salacious cast.’’ Evidence of pandering, particularly in ‘‘close cases,’’ may be ‘‘probative’’ under Roth since appeals to prurient interests indicate the transactions in question ‘‘involved sales of illicit merchandise, not sales of constitutionally protected matter.’’
Justice Black’s dissent attacked the Roth test for its vagueness. He concluded by pointing out that the justices deciding Ginzburg and its two companion cases wrote fourteen separate opinions, which, the justice claimed, by themselves revealed the interpretative challenges posed by Roth. Justice Douglas similarly attacked Roth and reviewed the lower court testimony to make the point that the publications were not obscene by Roth’s standards. Justice Harlan criticized the Court for exceeding the bounds of a federal statute that focused ‘‘solely’’ on the character the material deemed to be unmailable because it was obscene. He also restated his position that the statute only authorized banning ‘‘hard-core pornography,’’ a test, he said, that the majority and lower courts agreed the publications at issue did not meet.
Agreeing with Justice Harlan on the need to prove ‘‘patent indecency’’ before someone can be convicted for mailing obscene material, Justice Stewart went on to claim that the majority upheld Ginzburg’s convictions on the newly developed grounds under Roth of pandering even though he was not charged for this offense. As a consequence, this decision, the justice maintained, denied Ginzburg his due process rights. The companion cases to Ginzburg are Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts, 383 U.S. 413 (1966), and Mishkin v. New York, 383 U.S. 502 (1966).
ROY B. FLEMMING
References and Further Reading
Cases and Statutes Cited