Mishkin v. New York
383 U.S. 502 (1966)

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U.S. Supreme Court

Mishkin v. New York, 383 U.S. 502 (1966)

Mishkin v. New York

No. 49

Argued December 7, 1965

Decided March 21, 1966

383 U.S. 502

APPEAL FROM THE COURT OF APPEALS OF NEW YORK

Syllabus

Appellant was convicted of violating § 1141 of the New York Penal Law for publishing, hiring others to prepare, and possessing with intent to sell obscene books.

Held:

1. The statute is not impermissibly vague. Roth v. United States,354 U. S. 476, 354 U. S. 491-492. Pp. 383 U. S. 506-507.

2. The books were properly found to be obscene. Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient appeal requirement of the Roth test is satisfied if the dominant theme of the material, taken as a whole, appeals to the prurient interest in sex of the members of that group. P. 383 U. S. 508.

3. There was ample evidence that appellant possessed the requisite scienter. Pp. 383 U. S. 510-512.

4. The unrestricted notation of probable jurisdiction of the appeal may be regarded as a grant of the writ of certiorari as to appellant's claim that the books had been illegally seized and that their admission into evidence was therefore improper. However, such writ is dismissed as improvidently granted for lack of sufficient clarity in the record as to justify resolution of the issue. Pp. 383 U. S. 512-514.

15 N.Y.2d 671, 724, 204 N.E.2d 209, 205 N.E.2d 201, affirmed.

Page 383 U. S. 503

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This case, like Ginzburg v. United States,383 U. S. 463, also decided today, involves convictions under a criminal obscenity statute. A panel of three judges of the Court of Special Sessions of the City of New York found appellant guilty of violating § 1141 of the New York Penal Law [Footnote 1] by hiring others to prepare obscene books, publishing obscene books, and possessing obscene books with intent to sell them. [Footnote 2] 26 Misc.2d 152, 207 N.Y.S.2d 390

Page 383 U. S. 504

(1960). He was sentenced to prison terms aggregating three years and ordered to pay $12,000 in fines for these crimes. [Footnote 3] The Appellate Division, First Department, affirmed those convictions. 17 A.D.2d 243, 234 N.Y.S.2d 342 (1962). The Court of Appeals affirmed without opinion. 15 N.Y.2d 671, 255 N.Y.S.2d 881, 204 N.E.2d 209 (1964), remittitur amended, 15 N.Y.2d 724, 256 N.Y.S.2d 936, 205 N.E.2d 201 (1965). We noted probable jurisdiction. 380 U.S. 960. We affirm.

Appellant was not prosecuted for anything he said or believed, but for what he did, for his dominant role in several enterprises engaged in producing and selling

Page 383 U. S. 505

allegedly obscene books. Fifty books are involved in this case. They portray sexuality in many guises. Some depict relatively normal heterosexual relations, but more depict such deviations as sadomasochism, fetishism, and homosexuality. Many have covers with drawings of scantly clad women being whipped, beaten, tortured, or abused. Many, if not most, are photo-offsets of typewritten books written and illustrated by authors and artists according to detailed instructions given by the appellant. Typical of appellant's instructions was that related by one author who testified that appellant insisted that the books be

"full of sex scenes and lesbian scenes. . . . [T]he sex had to be very strong, it had to be rough, it had to be clearly spelled out. . . . I had to write sex very bluntly, make the sex scenes very strong. . . . [T]he sex scenes had to be unusual sex scenes between men and women, and women and women, and men and men. . . . [H]e wanted scenes in which women were making love with women. . . . [H]e wanted sex scenes . . . in which there were lesbian scenes. He didn't call it lesbian, but he described women making love to women and men . . . making love to men, and there were spankings and scenes -- sex in an abnormal and irregular fashion."

Another author testified that appellant instructed him "to deal very graphically with . . . the darkening of the flesh under flagellation. . . ." Artists testified in similar vein as to appellant's instructions regarding illustrations and covers for the books.

All the books are cheaply prepared paper-bound "pulps" with imprinted sales prices that are several thousand percent above costs. All but three were printed by a photo-offset printer who was paid 40

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