Mishkin was convicted for publishing and intending to sell publications of ‘‘hard core pornography’’ that depicted heterosexuality, homosexuality, sadomasochism, fetishism, etc. New York’s appellate court upheld Mishkin’s conviction. Justice Brennan, writing for the majority, affirmed the court decision; his opinion was the third of a trio of decisions handed down on the same day (Ginzburg v. United States, 383 U.S. 463, 1966; Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts, 383 U.S. 413, 1966).
Mishkin argued the publications did not appeal to the prurient sexual interests of the ‘‘average person’’ and therefore were not obscene under the Roth ruling (Roth v. United States, 354 U.S. 476, 1957). Justice Brennan described this as ‘‘an unrealistic interpretation’’ of the prurient appeal requirement. The test is met if material is ‘‘designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large.’’ References to ‘‘average’’ or ‘‘normal’’ persons in Roth were intended merely to express the majority’s rejection of Hicklin’s (Regina v. Benjamin Hicklin, Law Reporter 3 Queen’s Bench 360, 1868) ‘‘most susceptible person’’ standard. In this case, the Roth standard is adjusted to the ‘‘social realities’’ that material should be assessed ‘‘in terms of the sexual interests of its intended and probable recipient group.’’ This clearly excludes ‘‘sexually immature persons,’’ so Justice Brennan claimed it avoided the problems found with the Hicklin standard. Since the publications in question were intended to appeal to the erotic interests of ‘‘sexually deviant groups,’’ they are obscene under Roth.
ROY B. FLEMMING
Cases and Statutes Cited